Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This controversy began when respondent, Narbi International Investments Company, Inc. (Narbi or applicant), made application with respondent, Lake County (County), to rezone a 108.5 acre tract of land from Agricultural to Planned Unit Development (PUD). The land lies one and one-half miles west of U. S. Highway 27 and just north of County Road 474 in the southeastern part of Lake County. It is also within the boundaries of the Green Swamp Area of Critical State Concern. The purpose of the rezoning was to allow Narbi to construct a residential development to be known as Corinthian Park. After certain modifications to the project were made, including a restructuring of the project to eighty single-family residential units, the County adopted Ordinance No. 63-90 on December 18, 1990, which granted the rezoning request. Because the ordinance is a "development order" (DO) within the meaning of Chapter 380, Florida Statutes, the County rendered a copy of the ordinance to petitioner, Department of Community Affairs (DCA), for its review. Concluding that the ordinance was inconsistent with the principles for guiding development in the Green Swamp Area of Critical State Concern as codified in Chapter 28-26, Florida Administrative Code, the Lake County Comprehensive Plan (plan) and the County land development regulations, and had been improperly "rendered" to DCA for its review, DCA filed a petition for appeal of development order with the Florida Land and Water Adjudicatory Commission (FLWAC). The petition was later amended in minor respects. At hearing, petitioner withdrew its contention that the order had been improperly rendered. In addressing the above issues, the parties have presented numerous expert witnesses. As might be expected, there is conflicting testimony on many of the issues. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and the accepted testimony is embodied in the findings below. The Parties Petitioner has been designated as the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes. It has the authority to appeal any development order issued in an area of critical state concern within forty-five days after the development order is rendered to the DCA. The appeal herein was timely filed. The County is a political subdivision of the State of Florida and has the responsibility for issuing development orders for developments in unincorporated Lake County. Ordinance No. 63-90 is such a development order and is the subject of this appeal. Narbi is the corporate owner and developer of certain real property in an unincorporated part of southeastern Lake County consisting of approximately 108.5 acres. The eighty-unit project will be known as Corinthian Park. The Proposed Project and Adjacent Properties From a geographical perspective, Narbi's property lies approximately twelve miles south of Clermont, Florida, or just north of the Polk County line, and less than five miles west of the boundaries of Reedy Creek Improvement District (Walt Disney World) and Orange County. The tract of land is odd-shaped with a small part fronting on the north side of County Road 474 and the remainder extending northward through a tract of undeveloped acreage, a small part of which is an abandoned, dead orange grove. Indeed, because of three hard freezes in a seven year period, the County has an abundance of former orange grove operations that are now available for development purposes, and Narbi seeks to convert its property from agricultural purposes to a residential development. Except for the development described in the following finding of fact, the area is largely forests and wetlands, and the area surrounding Narbi's land is vacant. Approximately one mile west of the project site and to the north of County Road 474 lie an asphalt plant and excavation fill area. Both of these activities predated the designation of the Green Swamp as an area of critical state concern. In addition, a corridor of development lies along U. S. Highway 27 to the east. However, that development sits on or near the Lake Wales Ridge, which is a high, dry sandy ridge on the eastern boundary of the Green Swamp area and out of the hydrologic basin of the Green Swamp. The development in that area includes another approved residential development project known as the Greater Groves Subdivision, which was given an approval by the DCA for 150,000 square feet of retail space and 445 homes having a density of 2.75 units per acre, a large, mixed-use tract of land known as South Lake Subdivision having 8,000 units and a DCA-approved density of 13 units per acre, a travel trailer park, a campground and travel trailer park, and migrant housing. In addition, there is a 900 acre project one mile west of Corinthian Park called the Ray Ranch development which is the subject of another DCA challenge. However, at the time of the final hearing, the parties were in the process of executing a settlement agreement, the terms of which are not of record. It is noted that there was no evidence that the Ray Ranch development or any other approved project was comparable in any respect to Corinthian Park or had the same physical characteristics as are found on Narbi's land and thus those developments have no precedential value in this proceeding. The project is designed to have eighty single-family dwelling units on separate lots with a gross density of .74 units per acre. Prior to the approval of the rezoning, the site was zoned agricultural with a permitted density of one unit per five acres. Present plans call for each home, including driveways, to have a maximum 3,000 square feet. A central water system will serve the subdivision but individual septic tanks will be utilized for each home. Narbi proposes to construct the project in three phases consisting of 30, 27 and 23 lots, respectively. However, the third phase cannot be constructed until the County adopts a new stormwater management ordinance that meets the DCA's approval. After the build out is completed, approximately forty-eight percent of the acreage, or fifty-two acres, including all wetlands on the property, will be dedicated to conservation, preservation, recreation and open space areas. At the same time, eight percent of the acreage will have impervious surfaces, roads and houses, while the remaining ninety-two percent will have pervious or noncovered areas. Narbi's property contains 26.1 acres of wetlands and approximately ten acres within the 100 year flood plain. The only alteration to the flood plain will be one road crossing, and all water retention areas are to be located outside of the 100 year flood plain. In addition, stormwater runoff will be treated before going into the flood plain. The remainder of the property consists of pine flatwoods and uplands. The center of the property, which once contained a small orange grove, has been cleared. The features on this property are similar to those found on other property in the immediate area, all of which is zoned agricultural. The Green Swamp and its Significance In 1979, a part of an area known as the Green Swamp was designated by the legislature as an area of critical concern. As such, it is one of only four areas in the state given this designation. The area was accorded special protection because of its significance as a source of potable water, its function as a wildlife habitat and refuge, and its importance as a high recharge area for the Floridan Aquifer. The designated area covers approximately 900 square miles in parts of Lake and Polk Counties and consists largely of undeveloped forested and wetland areas. In addition, five major rivers originate in this portion of the State. It should be noted that all of the land in and around Narbi's project which lies west of U. S. Highway 27 is within the Green Swamp area. The Floridan Aquifer underlies the entire state except for the extreme northwestern corner. It serves as a source of drinking water for one-half of the state's population and thus constitutes the state's principal water supply aquifer. The Green Swamp is a source of recharge (or replenishment through the downward percolation of surface water into the aquifer) of the groundwater in the aquifer thereby allowing the aquifer to maintain its volume and high quality of water. A principal feature of the aquifer is a series of limestone formations which lie below the ground surface keeping the fresh water under pressure. The high point (potentiometric surface) of the pressure system occurs in the Green Swamp thus giving that area critical importance. In the area around Narbi's project, there is a layer of sand overlying the aquifer. There is also a geologic fault that allows direct connection to the aquifer. This means that in this area there is direct recharge into the aquifer with very little filtration to remove contaminants. Even where a clay layer exists over the aquifer, it is not confining because it contains cracks, fissures, and outcroppings of limestone which allow direct contact into the aquifer. Moreover, clay soils do not retain organic compounds, but allow them to filter through to the aquifer. Thus, the aquifer is vulnerable to contamination found in runoff which percolates without filtration into the aquifer. The Documents Governing this Controversy The land use element of the comprehensive plan was originally adopted in February 1977 and has been amended from time to time. It applies within the unincorporated portions of the County. On November 5, 1985, the County adopted Ordinance 1985-19 which brought the plan into conformity with all state regulations regarding the Green Swamp Area of Critical State Concern, including the principles for guiding development. Those principles are codified in Chapter 28-26, Florida Administrative Code. It is noted that in 1986 the DCA determined that the 1977 plan, as amended through 1985, and the land development regulations, as amended through 1985, were in compliance with state law as they applied to those portions of the Green Swamp Area of Critical State Concern within Lake County. That approval is codified in Chapter 9J-8, Florida Administrative Code. The conservation element to the plan was adopted on June 4, 1980, and sets forth various goals, objectives and policies "aimed at protecting the natural environment from misuse." There is also a compendium of land development regulations found in a document known as the Lake County Zoning Regulations, as amended 1988, which are relevant since they provide regulations governing the development of a PUD and include the zoning map which was changed by virtue of the rezoning application. Effective July 9, 1991, the County adopted a new comprehensive plan. However, Narbi's rezoning request is subject to the old plan requirements. Consistency with County Comprehensive Plan According to the amended petition for appeal, as later clarified by the DCA, Ordinance No. 63-90 is inconsistent with the county comprehensive plan in two respects. First, DCA contends that the proposed residential density for Narbi's project is inconsistent with a land use element, three general plan policies and one objective set forth in the comprehensive plan. More specifically, it contends that the approved density contravenes the conservation subsection of the plan categories for residential uses, policies 4, 10 and 11 of the general plan policies, and objective 5 of the conservation element of the plan. All of these items were specifically incorporated into the plan to provide special protection to the Green Swamp Area of Critical State Concern. DCA also asserts that the ordinance is in conflict with Section 3.C. of the land use element (the Urban Containment Policy) in that the project would constitute or contribute to "leapfrogging and uncontrolled urban sprawl." These contentions are addressed separately below. The conservation plan category for residential uses is found in section 4 of the land use element. In all, six plan categories were established to provide a range of residential density to be used in various categories of land use, including conservation areas. As is relevant here, the conservation element provides that county lands lying within the Green Swamp Area of Critical State Concern are determined to be of environmental value and should be "conserved". The conservation element goes on to define the term "conserve" to mean: uses such as parks, agriculture, very low density residential which will not overly damage natural conditions, as well as, "no development" use. The cited general plan policies are found in the land use plan element and were developed for the purpose of "implement(ing) the urban containment policy and to establish policies to develop the land use map, upon which the resulting zoning map will be based." Among them is policy 4 pertaining to residential development in the County. In 1985, the County amended policy 4 by adding subsection E. to provide that all residential development within the Green Swamp Area of Critical State Concern shall conform to the principles of guiding development. Those principles of guiding development are more fully discussed in a subsequent section of this Recommended Order. Also relevant is policy 10 requiring that the County give "full consideration . . . to environmental factors . . . as they pertain to land use" and that a conservation element be established. Finally, policy 11 recognizes agriculture as an important and necessary economic activity within the County, provides that adequate and appropriate water shall be reserved for its continuance, and provides further that urban development shall be discouraged in those portions of the County presently used as agriculture. The last item cited by the DCA is objective 5 of the conservation element which pertains to environmentally sensitive areas. It establishes a goal of preserving "those environmentally sensitive areas . . . in order to safeguard Lake County's natural resources for present and future residents." The above cited provisions of the plan show clearly that the site of Narbi's project is considered to be an environmentally sensitive area which must be afforded special protection. The plan itself uses such terms as "very low density", "no development", "conserve" and "preserve" in describing the type of development to be allowed. At the same time, in order to comply with its plan, the County is obliged to give full consideration to environmental factors, discourage urban type development in portions of the county now zoned agricultural, and preserve sensitive areas for future residents. In devising residential densities for various plan categories, the County has adopted the following guidelines: Estate 1 unit per 3 or more acres Low Density 1.1 - 2.75 units per acre Medium 2.76 - 7.0 units per acre High 7.1 - 15.0 units per acre However, as noted earlier, the conservation element calls for "very low residential" density in lands to be "conserved", such as those in the Green Swamp area where Narbi's project will be located. As can be seen, there is no plan category for "very low residential", and this omission underpins in part the controversy between the parties. At hearing, the parties sharply differed on what gross density falls within the category of "very low residential". Since the plan defines "low density" residential as 1.1 to 2.75 units per acre, the County takes the position that anything below that level of density, including the proposed .74 units per acre for Narbi's project, would necessarily fall within the very low density category. Indeed, it has consistently interpreted the plan in this manner since the 1985 amendment was adopted. The DCA contends that a density of .2 units per acre (or one unit per five acres) is consistent with the conservation element of the plan. This view is deemed to be more credible and reasonable since that element refers to parks, agricultural, very low density and no development uses as being appropriate for the Green Swamp area. This interpretation of the term "very low density" is also consistent with other portions of the plan in that only scattered, residential housing was contemplated in environmentally sensitive lands, the residential density for agricultural lands is one unit per five acres and thus this residential density would be consistent with the lands surrounding Narbi's project, and the DCA's suggested density is lower than the one unit per three acres approved for estates, a category that falls between regular residential and agricultural densities. It is also noted that a one unit per five acres density would be more compatible with the objective of safeguarding the County's natural resources for future residents, and the general policies of discouraging urban type development on lands now zoned agriculture, "conserving" protected lands, and giving "full consideration" to environmental factors. Therefore, it is found that Ordinance 63-90 is inconsistent with the conservation subsection of the plan categories, general plan policies 4, 10 and 11, and objective 5 of the conservation element of the plan. The DCA also contends that the project would constitute or contribute to "leapfrogging and urban sprawl" and thus be violative of section 3.C. (urban containment policy) of the plan. That policy is found on page 1-12 of the land use element of the plan and provides in part as follows: Only limited expansion shall be approved beyond the current limits of any Urban Area or Urban Compact Node until the gross residential density of that existing Urban Area reaches two dwelling units per acre. Further, no urban development should be permitted unless the half section(s) in which it is situated be contiguous with the declared urban area. This limitation does not apply to agricultural uses requiring approval procedures, such as, conditional use permits and site plan approval in the agricultural zoning districts. The intent of this recommendation is to prevent "leapfrogging" and uncontrolled urban sprawl, but without creating an undesirably high density urban environment. * * * The urban containment policy then is the general framework upon which the Lake County Land Use Plan and the resultant implementative ordinances and policies are based. The Urban Containment Policy is based on limited growth in rural areas rather than on existing trends. Almost all proposed development is placed in or around existing urban areas, so that urban services and transportation facilities can be provided economically. Environmentally sensitive areas were avoided whenever possible as were agricultural areas. (Emphasis added) The same policy goes on to establish ten criteria for the location of urban activities. Among them are two which provide that (a) urban development should be "clustered around existing communities" and (b) "areas for rural density residential development are limited to existing areas that have low agricultural potential." It is noted that the County has classified the existing development along U. S. Highway 27 to the east of the project site as being an urban compact node. The County does not view the urban containment policy as being a barrier to the Narbi project for several reasons. First, it does not consider the project as being "urban development" within the meaning of the plan and thus believes the urban containment policy has no application. Second, in light of the high start-up costs for developing orange groves, which was the former use of a small part of the property, it sees no agricultural potential for the land. As to the first reason, the plan considers urban areas to be those areas in which residential use is more than one dwelling unit per gross acre. The plan does not have a similar provision for rural areas in terms of residential density. However, the County has historically interpreted its plan to mean that anything "non-urban" is rural. Since the plan defines the minimum threshold for residential low density in urban areas as being 1.1 units per acre, the County construes all development outside of urban areas to be rural or non-urban so long as the density is less than 1.1 units per acre. Thus, it considers the contention that the project constitutes urban sprawl to be misplaced. As to the second reason, the County forsees no agricultural potential in Narbi's property. Therefore, it views the project as being consistent with the criterion that "areas for rural density residential development are limited to existing areas that have low agricultural potential." On page 1-3 of the land use element, the term "urban sprawl" is defined as "the scattering of generally low-intensive developments in suburban and rural areas." The plan goes on to state that urban sprawl "causes severe problems for local municipalities and the County," imposes a "heavy" financial burden on local jurisdictions for added services, and "yields a low return on a large capital investment" by extending public services through undeveloped lands to outlying developments. After recognizing these adverse impacts, the policy states that its intent is to "prevent 'leapfrogging' and uncontrolled urban sprawl" especially in "environmentally sensitive areas." The County's definition of urban sprawl is similar in many respects to the definition used by DCA. Though the term is not defined by statute or agency rule, the agency has, on a case by case basis, utilized a nonrule policy of not favoring development orders which approve projects that constitute or contribute to urban sprawl. The DCA construes the term to mean a development pattern that is associated with scattered, low intensity, unplanned, uncontrolled development that is usually approved in what are generally rural areas. When this occurs, there is no coordination between such development and public facilities and services or the protection of natural resources. Put another way, urban sprawl results in the inefficient use of public services, higher costs to local government, and a lack of protection for natural resources. Thus, the policy used by DCA is rational, logical and persuasive and is supported by an adequate record foundation. There are three types of urban sprawl: leapfrog development, strip development, or single use pattern of development. Leapfrog development is described in the record as being a spot zone type of development in which vacant areas have been bypassed, and where a single development exists in an outlying area that is not contiguous or connected to an existing residential pattern. It is also a land use that is incompatible with the surrounding land uses. In this case, the Corinthian Park project falls within the category of leapfrog development. Applying the above considerations to the project in question, it is found that the project is inconsistent with the plan's urban containment policy. More specifically, the project falls within the definition of leapfrogging and urban sprawl as defined by the plan and DCA, and most importantly, the County's urban containment policy specifically recommends that this type of growth be "avoided whenever possible" in environmentally sensitive areas. In making this finding, the undersigned has rejected the County's contention that the proposed subdivision is non-urban development and has accepted the DCA testimony which establishes that a level of density no greater than one unit per five acres is properly considered rural density. Therefore, the development is properly characterized as urban. Next, while the land probably has little potential for agricultural purposes as the County suggests, that consideration is but one of many in the determination of whether the project violates the urban containment policy. When weighed against the admonitions that there be "only limited expansion . . . beyond the current limits of an . . . urban compact node", that the purpose of the policy is to "prevent 'leapfrogging' and uncontrolled urban sprawl", that there be "limited growth in rural areas", and that such growth be "avoided whenever possible" in environmentally sensitive areas, it is found that Ordinance 63-90 is in contravention of Section 3.C. of the plan. Consistency With Land Development Regulations This issue involves allegations by the DCA that the proposed increase in residential density for the project is incompatible with subsection 696.20B. of the zoning code and that the site alteration criteria in Rule 28- 28.28.008(7), Florida Administrative Code, have not been met. The latter allegation has been categorized as a land development regulation issue since such regulations, if properly enacted, should require compliance with chapter 28-28. In addition, the County has cited section 696.13 of the zoning code as authorizing the approval of the rezoning application. Findings regarding the validity of these allegations are set forth below. Paragraph B.1. of Section 696.20 provides the following criterion for residential density in a PUD: Density. The criteria for establishing the residential gross density (not including natural water bodies) shall be: a. Compatibility with other zoning districts in the vicinity of subject property with adopted densities in the Lake County Land Use Element of the comprehensive plan. DCA contends that the approved density for Narbi's project is in violation of the above criterion. As noted earlier, the authorized (adopted) residential density for agricultural zoning is one unit per five acres. All of the land surrounding the site of the project is now zoned agricultural. Thus, with a proposed density of .74 units per acre, the project will be inconsistent with the adopted density for the surrounding lands as proscribed by subsection 696.20B. Even though the County's land development regulations do not specifically require compliance with Rule 28-28.008(7)(a), Florida Administrative Code, Ordinance 63-90 must still meet its requirements. That rule pertains to site alteration limitations in the Green Swamp area with the aim of preserving the natural drainage capabilities of major soil associations. The rule limits the amount of site alteration to the following percentages of the area of each association within any given total site: Upland association 60% Pine flatwood association 25% Wetland association 10% In other words, only ten percent of wetlands, twenty-five percent of pine flatwoods, and sixty percent of the uplands can be disturbed. The remainder of the area must remain in its natural state. As now proposed, the project exceeds the criteria for pine flatwoods and upland areas by some twenty acres. That is to say, Narbi proposes to develop approximately twenty acres of pine flatwoods and upland areas that should remain undisturbed under the rule criteria. All of the excess acreage is related to phase 3 of the project which, assuming the County prevails in this action, is still on hold until the County adopts a stormwater drainage ordinance meeting DCA's approval. It is noted, however, that even after the approval of an ordinance, there is no guarantee that this would cause DCA to waive the requirements of the rule. Section 696.13 of the zoning code prescribes a four-step process for a developer to secure final plat approval and construct a PUD. In general terms, these steps are rezoning, preliminary plat or preliminary plan, construction drawings, and final plat. As of the time of hearing, Narbi had only completed the first of the four steps. Later on in the process, Narbi will be required to give the County more detailed engineering and technical data regarding the project, and it will not be allowed to complete construction of the project until the final plat is approved and recorded. The County suggests that since phases 1 and 2 of the project meet the site alteration criteria for both flatwood areas and uplands, Narbi should be allowed to proceed with construction of the project as to those two phases, but not allowed to complete phase 3 until the stormwater drainage ordinance is approved and Narbi can demonstrate compliance with the rule and other criteria through more detailed information. Besides the fact that it would be difficult, if not impossible, to revoke the zoning once Narbi had completed two of the three phases of the project, the criteria in rule 28-28.008(7)(a) are applied to the entire project, and not just on a phase by phase basis. Thus, to demonstrate compliance with the rule, an applicant must show compliance with the site alteration criteria for the total project. In addition, approval of the stormwater drainage ordinance by itself does not necessarily mean that the rule criteria will be waived. Therefore, it is found that Ordinance 63-90 is incompatible with section 696.20 of the land development regulations and rule 28-28.008(7)(a). Consistency with Chapter 28-26 The Florida Cabinet, sitting as the Administration Commission, has promulgated Chapter 28-26, Florida Administrative Code, which defines the boundaries of the Green Swamp Area of Critical State Concern and provides principles for guiding development within that area. These principles are designed to conserve and protect the natural environmental resources and public facilities within the designated area and ecologically linked areas and apply to all development within the critical area. The principles contain eleven objectives which are codified as paragraphs (a) through (k) of rule 28- 26.003(1). Relevant to this proceeding are the objectives in paragraphs (a)-(d) and (g) of rule 28-26.003(1), which seek to "minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas", "(p)rotect . . . ground water and surface water which are necessary for the protection of resources of state and regional concerns", "(p)rotect the water available for aquifer recharge", "(p)rotect the functions of the Green Swamp Potentiometric High of the Floridan Aquifer", and "(p)rotect . . . existing ground and surface-water quality." By its appeal, DCA asserts that Ordinance 63-90 is in violation of each of those objectives and thus is inconsistent with the comprehensive plan which has adopted these objectives. The validity of this allegation turns on whether the use of individual septic tanks for each home in the subdivision will adversely affect the groundwater quality of the Green Swamp, and whether the project itself will negatively impact the groundwater and the Floridan Aquifer. In resolving these factual issues, the undersigned has discounted the County's contention that because it is prohibited by special act from regulating wastewater facilities with an average flow of less than 1200 gallons per day, and residential septic tanks have a much lower average daily flow, the County had no authority to deny the rezoning request on the ground septic tanks would be used at each home site. This is because the County has far wider authority under its plan to disapprove a project because of an applicant's failure to comply with chapter 28-26. The development order requires that, as a prerequisite to obtaining a building permit, the applicant meet the minimum requirements for septic tanks pursuant to Chapter 10D-6, Florida Administrative Code. That chapter, which is administered by the Department of Health and Rehabilitative Services (HRS), provides minimum construction standards for septic tanks on a statewide basis, except for the Florida Keys. Under this chapter, an applicant must obtain a permit from HRS to install a septic tank. It should be noted that these statewide standards are construction standards and not performance-based standards for monitoring environmental degradation. In addition, the standards do not take into account environmentally-sensitive lands such as those having an Area of Critical State Concern designation. Thus, it is found that the chapter 10D-6 requirements are primarily intended to protect the public health as opposed to the environment. On-site sewage disposal systems are made up of two components: the septic tank component and the soil infiltrative component. The tank is nothing more than a holding tank designed to (a) separate solids and floatable materials contained in domestic wastewater and (b) allow anaerobic digestion of the organic materials by anaerobic type organisms. The remaining clear effluent then exits the tank into the soil infiltrative process, which is a network of drain pipes placed in a twelve-inch layer of gravel. The network is more commonly referred to as the drain field. The drain field distributes the effluent evenly throughout that area of land. It is then treated by the soils. After traveling through the soils, the effluent eventually enters the groundwater table. Because the drain field provides the only treatment to the effluent after it leaves the tank, it is important that the soils in which the drain fields are placed have good soil hydraulic conductivities and that the distance from the pipes to the groundwater table be adequate. In the project area where the tanks are to be placed, the water table will be only ten inches below the bottom of the drain field system. In addition, the sands in that area are Immokalee, Myakka and Placid sands and are considered either moderately or severely limited for on-site sewage disposal systems. This is because those types of sand allow the effluent to percolate through the soil more quickly than other types of soil and thus the effluent receives very little treatment prior to entering the groundwater. Comtaminants such as nitrogen, phosphorus, toxic biodegradable and non-biodegradable organic compounds are often present in domestic wastewater and, because of the soil composition and water table elevation, could be expected to enter the groundwater from the septic tanks. Chapter 10D-6 does not provide for follow-up inspections by HRS for residential septic tank systems. An inherent problem with the use of septic tanks is that property owners fail to properly maintain their septic tank systems. As a general rule, maintenance is undertaken only when the organic loading to the system has been substantial enough to make it back up in the home. In addition, a septic tank failure can go undetected long enough for the introduction of contaminants into the groundwater. Although Narbi has agreed to modify its plans and to install 1,000 gallon septic tanks and water savers for toilets and showers to reduce the loading rate in each home to 333 gallons per day rather than the average of 450, there will still be unacceptable levels of contaminants entering the groundwater without adequate treatment. This is true even if the tanks are constructed in accordance with chapter 10D-6. Therefore, it is found that Ordinance 63-90 is inconsistent with the plan in that the adverse impacts caused by the use of individual septic tanks in the density proposed for the project will result in a violation of the objectives in paragraphs (a) through (d) and (g) of rule 28- 26.003(1). The DCA also asserts that the project itself will negatively impact the groundwater and the Floridan Aquifer. As noted earlier, the project sits on the eastern edge of the Green Swamp Area of Critical State Concern. A geologic fault found beneath the surface of the ground allows direct connection to the Floridan Aquifer. At the same time, there is no confining clay layer overlying the aquifer, and the soil in the project area is of the type that provides very little filtration to harmful contaminants which percolate through the soil and into the groundwater. Nitrates are contaminants that are generated from a variety of sources, including human beings and warm-blooded animals. A large amount of nitrates can be expected to be generated in the project area thereby causing contamination of the groundwater. Although it is possible to filter nitrates through complex and expensive technology, the applicant has not proposed this curative measure. It should be noted that soils by themselves do not adequately filter nitrates out of the runoff. There are also 26.1 acres of wetlands on Narbi's property. Because of the interaction between the surface water and groundwater, it is possible over the long-term for the contaminants and runoff to adversely impact the wetlands. A lowering of the groundwater quality will indirectly lower the quality of the wetlands water or its base flow. Once contaminants enter the groundwater, they have a very long residence time. This is because the groundwater is a protected confined medium, not subject to the sun's ultraviolet radiation nor oxidation by air, and it has a very stable PH. Although Narbi has proposed to have stormwater runoff designed to meet the Outstanding Florida Waters (OFW) criteria, this in itself is insufficient to assure that the groundwater will not be harmed. Given these considerations, it is found that Ordinance 63-90 violates the plan in that the project will cause a violation of the objectives in paragraphs (a) through (d) and (g) of rule 28-26.003(1). I. Conditions Under Which the Project Can be Approved The evidence supports a finding that if the proposed density of the project is downsized to one unit per five acres, and all other provisions in the plan are satisfied, as well as the site alteration criteria in rule 28- 28.008(7)(a), the rezoning application may be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding approval of Ordinance 63-90; that the order state that Narbi International Investments Company, Inc. may develop the project if it reduces the density to one unit per five acres and otherwise shows compliance with all provisions in the plan and rule 28-28.008(7)(a); and that Lake County be directed to properly administer and enforce its land development regulations in accordance with chapter 380. RECOMMENDED this 4th day of May, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6599DRI Petitioner: 1. Accepted in finding of fact 3. 2. Accepted in finding of fact 4. 3. Accepted in finding of fact 5. 4-5. Accepted in finding of fact 8. 6. Accepted in finding of fact 11. 7. Accepted in finding of fact 8. 8-9. Accepted in findings of fact 14 and 15. 10. Accepted in finding of fact 11. 11-12. Accepted in finding of fact 7. Accepted in findings of fact 29 and 30. Partially accepted in finding of fact 6. 15. Accepted in finding of fact 30. 16. Accepted in finding of fact 19. 17. Accepted in finding of fact 20. 18. Accepted in finding of fact 17. 19-20. Accepted in finding of fact 20. 21. Accepted in finding of fact 24. 22-24. Accepted in finding of fact 25. 25. Rejected as being unnecessary. 26-27. Accepted in finding of fact 21. 28. Accepted in finding of fact 23. 29-30. Accepted in finding of fact 26. 31. Rejected as being unnecessary. 32. Accepted in finding of fact 31. 33-36. Accepted in finding of fact 12. 37-40. Accepted in finding of fact 13. 41-42. Accepted in finding of fact 42. 43. Accepted in finding of fact 41. 44. Accepted in finding of fact 44. 45. Rejected as being unnecessary. 46. Accepted in finding of fact 43. 47-51. Accepted in finding of fact 44. 52-54. Accepted in finding of fact 37. 55. Accepted in finding of fact 38. 56-57. Accepted in finding of fact 35. 58-60. Accepted in finding of fact 39. 61. Rejected as being unnecessary. 62-63. Accepted in finding of fact 40. Respondent County: Accepted in finding of fact 5. Accepted in finding of fact 4. Accepted in finding of fact 3. Accepted in finding of fact 11. Accepted in finding of fact 14. Rejected as being unnecessary. 7-8. Accepted in finding of fact 2. Accepted in finding of fact 8. Partially accepted in finding of fact 9. The remainder is rejected. See finding of fact 43. Accepted in finding of fact 44. 12-13. Accepted in finding of fact 10. 14-15. Accepted in finding of fact 9. 16-20. Accepted in finding of fact 20. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 30. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 11. Accepted in finding of fact 13. Accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 40. Accepted in finding of fact 35. Rejected as being contrary to the more credible evidence. 31-32. Rejected as being unnecessary. 33. Rejected as being irrelevant. 34-35. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. Rejected as being irrelevant. Accepted in finding of fact 40. Partially accepted in finding of fact 40. The remainder has been rejected as being contrary to the more credible evidence. Accepted in finding of fact 40. Rejected as being contrary to the more credible evidence. Partially accepted in finding of fact 44. 43-52. Rejected since the testimony of witness Dehan has been accepted on this issue. Respondent Narbi: Rejected as being irrelevant. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. 4-7. Rejected as being contrary to the more credible evidence. 8-9. Rejected as being irrelevant for the reasons cited in finding of fact 7. 10. Partially accepted in finding of fact 19. The last sentence is rejected as being contrary to the more credible evidence. 11-12. Rejected as being contrary to the more credible evidence. Rejected as being irrelevant. Partially accepted in finding of fact 24. The last sentence is rejected as being contrary to the more credible evidence. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 31. 17-18. Rejected as being irrelevant. The first sentence is rejected as being contrary to the more credible evidence. The second sentence is accepted in finding of fact 44. Rejected as being unnecessary. Accepted in finding of fact 8. Rejected as being contrary to the more credible evidence. Rejected as being irrelevant. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 40. 26-29. Rejected as being contrary to the more credible evidence. 30. Rejected as being irrelevant. 31-32. These matters were considered in evaluating the testimony of the witnesses. COPIES FURNISHED: Douglas M. Cook, Director Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 L. Kathryn Funchess, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Timothy P. Hoban, Esquire 315 West Main Street Tavares, FL 32778 Max Sabeti 4063 Goldenrod Road Suite 208 Winter Park, FL 32792
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
Findings Of Fact The Department is a state land planning agency charged with responsibility to administer and enforce the provisions of Chapter 380, Florida Statutes, and the rules promulgated thereunder, concerning the regulation of real estate development as pertinent hereto. See Sections 380.031(18) and 380.032(1), Florida Statutes (1989). The land development regulations enacted by local governments in the Apalachicola Bay ACSC, such as County Ordinance No. 89-7, are subject to approval by the Cabinet of the State of Florida, sitting as the Florida Administration Commission; and the Department is authorized by Sections 380.05(13) and 380.11(2)(a), Florida Statutes (1989), to institute administrative Proceedings to require counties to Properly administer land development regulations. Most of the County, including the subject real Property, is designated as the Apalachicola Bay ACSC, pursuant to Section 380.0555, Florida Statutes. The County, through its Board of County Commissioners, is a local government within the Apalachicola Bay ACSC, as designated Pursuant to Section 380.0555, Florida Statutes, and is responsible for the adoption and implementation of County Ordinance No. 89-7, a land development regulation applicable in the ACSC. The Saunders are the owners and Developers of approximately 39 acres of real property in Lanark Village, Franklin County, Florida, known as "Deer Run Estates". In February of 1989, the Saunders Purchased the subject property as an undivided tract of land, described by metes and bounds. In March of 1989, the Saunders secured a permit from the County authorizing the clearing of underbrush and dead trees from the subject Property. They secured a second permit on May 11, 1989, authorizing the construction of a road on the Property. Finally, they Secured a permit shortly thereafter authorizing the erection of a real estate sales sign on the property. On May 11, 1989, Respondent, Christina Saunders, filed a plat of the Deer Run Estates subdivision with the County Planner. The plat divided the subject property into 37 one-acre lots. As of May 11, 1989, the only actual development activity conducted on the property by the Saunders was land clearing. The plat filed by Ms. Saunders was accepted by the County planner, Allen Pierce, pursuant to Article VI, Section 6.2, of County Ordinance No. 89-7, exempting "Partially-developed subdivisions" from the requirements of that ordinance. The County planner accepted all plats filed with the planning office, including that for Deer Run Estates, without actually conducting a site inspection to determine the amount and type of existing development in a given subdivision. None of the plats accepted by the County planning department were rendered to the DCA for review. Soon thereafter, on May 16, 1989, the Board of County Commissioners adopted County Ordinance No. 89-7, repealing the prior subdivision Ordinance No. 74-1. Ordinance No. 89-7 was approved by the Florida Administration Commission and became effective on August 28, 1989. Ordinance No. 89-7 established more specific standards for improvements and established a procedure for obtaining subdivision approval, which consists of submission of a sketch plat, preliminary plat, and final plat review. Ordinance No. 89-7, Article VI, Section 6.2, provides: Land shall be subdivided and developed only in accordance with the requirements of this ordinance. Development permits for land requiring subdivision approval shall not be issued except when the land has been properly subdivided. Lot owners wishing to develop their lot or lots within a recorded subdivision shall be denied a building permit until the subdivision has been approved and recorded. However, unapproved, but partially developed subdivisions filed with the Franklin County planning department prior to the approval of this ordinance by the administration commission shall be exempt from the provisions of this ordinance and the county shall not be under any obligation to provide subdivision improvements. When Ordinance No. 89-7 became effective, the entire 39-acre parcel of property was owned by the Saunders, jointly. No written contract for the sale of any of the property was entered into until October 23, 1989, when the Developers accepted a purchase money deposit on a lot from a Mr. Massey. The County issued a building permit to Mr. Massey authorizing the construction of a single-family residence. This was the first structure to be erected on the subject property since its abandonment as an Army post in the 1940's. Construction of the Massey residence began in late December of 1989 or early January of 1990. This property had been used as the military base known as "Camp Gordon Johnson" during World War II but was later abandoned by the military; and the improvements on the property were dismantled and sold. During the ensuing years, the property was cleared a number of times by various owners; however, no permanent structures or improvements were built. There was no recognized use of the property between the late 1940's and approximately 1988 or 1989, a period of approximately 40 years. Thereafter, in March of 1989, the Developers secured the permit authorizing the clearing of the underbrush and dead trees, the permit authorizing the construction of a road on the property, and the permit related to the real estate sales sign. As of May 11, 1989, the only development activity being conducted on the subject property by the Saunders was some land clearing of underbrush and dead trees. The Developers have not yet installed water lines or sewer lines, and water service is not yet available to the individual lots in the Deer Run Estates subdivision. No roads have yet been constructed or paved within the subdivision, and no storm water management plan has been submitted for approval. Neither have the Saunders obtained a sketch plat or preliminary approval for the subdivision nor have they obtained final plat approval from the County Commission in a public hearing process, as required by the provisions of Ordinance No. 89-7. The roads which presently exist within the subdivision, F Street, Doe Lane, and Buck Lane, are not constructed in accordance with the standards identified in Ordinance No. 89-7. Rather, they are leftover, abandoned roads dating back to World War II, when they served the installations constituting Camp Gordon Johnson. The roads are substandard and were in a deteriorated condition as of the date of approval of the ordinance on August 28, 1989, having been abandoned for some 40 years. Piles of limerock have been placed on the property preparatory to roadwork; brush has been cleared; and the Massey residence may have been started as of late 1989 or early 1990. Although the Developers have filed a plat and divided the property by survey into individual lots, the property remains under the ownership and possession of the original Developers, the Saunders, with the exception of the lot sold by contract of sale to Mr. Massey, upon which he constructed a single- family residence. No infrastructure consisting of water or sewer lines and service, ditches, drainage swales, or other means of handling surface runoff and storm waters, the paving of any existing roads and construction of new roads or streets, or any activity associated with "development", in terms of Section 380.04, Florida Statutes, in its definition of development, have been conducted on the subject property, with the exception of the clearing of underbrush and dead trees and the piling of limerock on the property preparatory to doing roadwork. These items involve alteration of the land and clearing of land as an adjunct of construction (if, indeed, the land clearing was an adjunct to the construction, which was not proven), but the Department's expert witnesses established that, although such activity may be acts within the definition of development, they do not, at the state of completion reached as of the time the ordinance became effective, and for some time thereafter, constitute a "partially-developed" subdivision. It was established that "partially developed" means that at least some infrastructure, such as construction of roads, water and sewer utility service, and storm water management plans and construction, should have been accomplished. Substantial progress had not been made in installing these various, basic component parts of a subdivision which are necessary to allow residences to be constructed and occupied, with ingress and egress routes at least under substantial construction. No such infrastructure necessary for a subdivision to operate had been installed, or even substantially begun, at the time of the effective date of Ordinance No. 89- 7, and even at the time of hearing. Consequently, the Deer Run Estates subdivision was not "partially developed" at the time pertinent hereto, when the ordinance became effective, or before, when the plat thereof was filed with the County planning office. The fact that several deteriorated roads or streets, as well as 20 concrete slabs, left over from the military use of some 40 years ago, does not constitute an element of partial development. Those concrete slabs, or some of them, might be usable in developing future residences; however, the concrete slabs and relict streets were installed for a very different type of development some 40 years ago and abandoned since then. The fact that they still exist on property, which essentially receded back to property of a rural, undeveloped character, cannot serve to vest the subdivision as a partially developed one, exempting it from compliance with the land use regulation or ordinance at issue. Neither the deteriorated military roads nor the concrete slabs were clearly shown to have been useful in their present condition for the proposed residential development and, thus, cannot be considered to constitute elements of a "partially developed" subdivision for purposes of the exemption involved in this proceeding.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department requiring the following corrective actions: That the Saunders cease any and all development in and upon the property known as "Deer Run Estates" other than those activities which are required in order to comply with the County Ordinance No. 89-7 and that only development in compliance with all its requirements be conducted after the necessary immediate steps are taken by the Developers to comply. That the County cease issuing development permits authorizing development activity in Deer Run Estates, except for those activities which are required in order to meet the requirements of Ordinance No. 89-7. That the County properly administer and enforce its land development regulations in accordance with the provisions of Section 380.0555(9), Florida Statutes, with regard to the parties and subdivision at issue. DONE AND ENTERED this 31st day of May, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 31st day of May, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-5028 Petitioner's Proposed Findings of Fact 1-25. Accepted. Respondents' Proposed Findings of Fact (Respondent, Franklin County, adopted the Respondents Sanders' proposed findings of fact. 1-3. Accepted, but not dispositive of material issues presented for adjudication. Accepted. Accepted, but not dispositive of material issues presented for adjudication. Accepted, but not dispositive of material issues presented for adjudication. Accepted, but not dispositive of material issues presented for adjudication. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accord with the preponderant weight of the evidence. Accepted, but not itself dispositive of the material issues presented. Accepted, but not itself dispositive of the material issues presented. Accepted, but not itself dispositive of the material issues presented. COPIES FURNISHED: William E. Sadowski Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399 G. Steven Pfeiffer, Esq. General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399 L. Kathryn Funchess, Esq. Julia L. Johnson, Esq. Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Walter Smith, Esq. P.O. Box 603 Apalachicola, FL 32320 Alfred O. Shuler, Esq. SHULER AND SHULER P.O. Box 850 Apalachicola, FL 32320
The Issue The issue is whether the plan amendments adopted by the City of Pompano Beach (City) by Ordinance Nos. 2011-24 and 2011- 25 on February 8, 2011, are in compliance.
Findings Of Fact The Parties Petitioner is a resident and owner of real property within the City. Through counsel, she submitted written and oral comments to the City during the transmittal and adoption hearings for the plan amendments. Petitioner is employed by the Seminole Tribe of Florida at its casino located in Coconut Creek, Broward County (County). PPI's claim that this challenge is rooted in gaming interests of the Seminole Tribe of Florida appears to be a valid assumption. The City is a municipal corporation in the County and is responsible for adopting and maintaining its Plan. It adopted the amendments pursuant to former section 163.32465, in effect at that time, which codified an adoption process known as the Alternative State Review Pilot Program (Pilot Program). Under the Pilot Program, the Department of Community Affairs (DCA)1 did not issue an Objections, Recommendation, or Comments report or a notice of intent regarding compliance or non- compliance of the plan amendments. The DCA and other reviewing agencies did, however, issue letters advising that they did not object to the final version of the adopted amendments. PPI owns property in the City and is the applicant for the amendments. PPI submitted comments in support of the amendments throughout the adoption process. The Amendment Process in Broward County Under the County Charter, land use changes to the City's Plan that are not more restrictive than the County Land Use Plan must be reviewed by the Planning Council to ensure that they are in "substantial conformity" with the County Land Use Plan. However, the Planning Council does not review the City's plan amendments for consistency with the City's Plan or chapter 163. After the County's review was completed, the DCA recommended that certain changes be made. The amendments were transmitted back to the City and were amended to conform to the DCA's recommendations. The amendments were then required to undergo the same review process a second time. Although a determination was made by the Planning Council that the initial amendments were in substantial conformity with the County Land Use Plan, the revised amendments cannot be recertified for consistency until this challenge has been concluded. If plan amendments are in substantial conformity with its Land Use Plan, the County must amend its Plan to incorporate the City's changes. Based upon a favorable recommendation by the Planning Council, on September 28, 2010, the County adopted companion amendments, although not identical to the City's revised amendments. Those amendments are the subject of a pending challenge by the same petitioner in Case No. 10-9939GM and have not yet become effective. A hearing in that case is now scheduled in September 2013. Until that challenge is resolved, the City amendments cannot become effective. The Property PPI owns approximately 230 acres of property within the City. The property is bounded on the north by Racetrack Road, by North Cypress Bend Drive to the south, by Powerline Road to the west, and the CSX railroad tracks to the east. The current land use designation on 160 acres is Commercial Recreation (CR), while the remaining 70 acres has a Regional Activity Center (RAC) designation. The 70 acres makes up the southern part of a pre-existing RAC known as the Arvida Pompano Park Regional Activity Center (Arvida RAC), whose boundaries are coextensive with a Development of Regional Impact approved in the 1980s, but which expired in 2004. Except for the 70 acres owned by PPI, the Arvida RAC is fully developed. The CR property lies just to the south of the Arvida RAC and forms the southern boundary of that development. The 160 acres is now occupied by the Pompano Park Harness Track, Isle of Capri Casino, surface parking lots, various commercial uses, horse stables, a training area, and other uses associated with the harness track and casino. The 160 acres is the only property in the City designated as CR. That designation allows an extremely wide range of permitted uses: outdoor and indoor recreation facilities such as active recreation complexes, marinas, stadiums, jai-alai frontons, bowling alleys, golf courses, and dog and horse racing facilities; accessory facilities, including outdoor and indoor recreation facilities that support the primary recreation facility; hotels, motels, time shares, and similar lodging ancillary to the primary commercial recreation uses; and other active and passive recreation uses. The site was once considered for a new baseball stadium for the Florida Marlins and a hockey arena for the Florida Panthers. The CR property can have more than one primary use. For example, besides the harness track, the casino is an "indoor recreation facility" and qualifies as a second primary use. If a hotel has resort and destination features that are open to the public, the amenities can become a primary use. Under the City's interpretation of CR land, a hotel containing a destination function with resort and recreation features is also a primary use. Ancillary facilities for each of these uses is also allowed. The City is already 95 percent built-out, and it considers PPI's property to be regionally significant, under developed, and ripe for redevelopment as a major attraction. For these reasons, it supports the designation of the property as a new RAC. PPI filed the application because it desires greater flexibility in planning for the future development of the property. If the amendments become effective, PPI intends to expand the existing casino and build a large resort hotel, various commercial and residential uses, and other amenities associated with those activities. The Amendments In December 2009, PPI submitted an application to the City to reduce the existing Arvida RAC by removing PPI's 70 acres south of Racetrack Road; eliminate the development intensity assigned to those 70 acres; and combine the 70 acres removed from the Arvida RAC with its 160 acres of CR property to create a new South RAC. PPI also proposed to transfer credit for the remaining undeveloped portion of the Arvida RAC to the new South RAC. After the local review process was completed, the plan amendments were transmitted to the DCA, which issued a letter of comment recommending that the amendments be revised to identify the maximum amount of development (i.e., square footage) that would be allowed in each non-residential use, including CR, commercial, and office. Based on the DCA's comments, the application was modified by PPI to include floor area ratios (FARs) for each non-residential use, and in October 2010 the revised amendments were approved by the City on first reading. The DCA reviewed the revised amendments and had no objections. In February 2011, the revised amendments were adopted on second reading. Petitioner then timely filed her challenge. The map amendment (Ordinance No. 2011-25) changes the land use designation on the CR property to RAC. It consolidates the 70-acre parcel with the 160-acre parcel to create a unified RAC designation. The amendment does not change the boundary or designation of uses within the existing Arvida RAC. The amended FLUM now shows only a single RAC, with different intensity and density standards assigned to the North and South RACs in the text amendment.2 The text amendment to the FLUE (Ordinance No. 2011-24) affects a total of 399 acres of land, which covers both the existing Arvida RAC and the 160 acres of CR property south of Racetrack Road. It amends the listed uses for the Arvida RAC and names the uses for the new South RAC. The amendments permit a mixed use complex on PPI's property with a combination of 135 acres of CR (rather than 160 acres), 27 acres of commercial uses, 26 acres of office uses, and 43 acres of residential usage, consisting of 1,050 mid-rise apartments and 250 garden apartments, or a total of 1,300 residential units. The only new use introduced by either amendment is the 1,300 residential units. The maximum intensity on the CR property is not defined in the text of the Plan. However, FLUE policy 01.07.20 allows development on the 160 acres to a maximum intensity of 105 feet in height with 50 percent floor area coverage. This equates to an effective FAR of 5.0. All parties agree that a 5.0 FAR is unrealistic, and PPI never considered using that level of development. For this reason, the text amendment reduces the CR intensity to 0.31, which represents a far more reasonable and realistic development limitation. The amendment limits the maximum development within the South RAC to the following maximum FARs: 0.31 for commercial recreation use; 0.84 for office use; and 0.65 for commercial use. To the extent any portion of the 160 acres is re-designated as commercial or office, the amendment limits the maximum potential development on that acreage. Petitioner's Objections Petitioner's objections, broadly defined, are that the amendments are not in compliance because (a) they are not based on relevant and appropriate data and analysis regarding transportation impacts; (b) they are internally inconsistent with four policies in the FLUE, one objective and two policies in the Transportation Element (TE), one policy in the Capital Improvement Element (CIE), and three policies in the Housing Element (HE); and (c) they are not supported by appropriate data and analysis regarding affordable housing. Data and Analysis -- Transportation Section 163.3177(1)(f) requires that plan amendments be based on "relevant and appropriate data and analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the comprehensive plan or plan amendment." In addition, "the future land use plan and plan amendments shall be based upon surveys, studies, and data regarding the area, as applicable, including: . . . [t]he availability of water supplies, public facilities and services." § 163.3177(6)(a)2.d., Fla. Stat. FLUM amendments must be based on an "analysis of the availability of facilities and services." § 163.3177(6)(a)8.a., Fla. Stat. Finally, "[w]here data is relevant to several elements, consistent data shall be used." § 163.3177(2), Fla. Stat. Relying on the foregoing statutory requirements, Petitioner contends that the data and analysis regarding transportation impacts are inconsistent with the data and analysis supporting the TE and CIE; the various data and analysis supporting the amendments are not accurate and professionally acceptable because they underestimate impacts to transportation facilities by overstating the maximum development intensity of the property under the existing CR land use designation and do not identify the true impact of the amendments; and the City did not react appropriately to the data and analysis demonstrating serious impacts to already failing roadways in the area. In broad terms, a traffic impact analysis identifies the potential traffic impacts of the plan amendments on the transportation system. In their analyses, the parties used very different assumptions as to the maximum development intensity under the existing land use designations on the PPI property. Each analysis compares the traffic generated at the maximum intensity permitted under the existing land uses to the traffic generated by the maximum density/intensity under the plan amendments. The City does not require that a particular methodology or set of assumptions be used in performing an analysis. This is because the methodologies and assumptions used in a traffic impact study may differ, and they are grounded in part on the expert's sound judgment, experience, and discretion. PPI submitted two traffic impact analyses, one in March 2010 and the second in October 2010. Because the City disagreed with PPI's pre-amendment assumptions in the first analysis and assumed a smaller development under the existing land uses, it recommended that an independent traffic engineer be hired to conduct a second analysis and verify the transportation impacts. Due to a lack of resources, the City does not conduct its own traffic analysis; instead, it typically defers to the traffic analysis conducted by the Planning Council or, in some cases, it may hire its own consultant. PPI's second analysis assumed a different mix of pre- amendment CR uses. Also, it used the County Metropolitan Planning Organization's (MPO's) latest model (the Florida Standard Urban Transportation Model Structure, a/k/a FSUTMS) for traffic distribution, which was not available until after the first analysis had been completed. The second analysis assumed that under existing land uses the 160 acres could be developed with a 15,000 seat racetrack (instead of a 5,625 seat facility); a 125,000 square- foot casino; a 400,000 square-foot amusement center; a 2,333 room hotel; 350,000 square feet of accessory retail; and a new 100,000 square-foot theme park. The analysis sought to represent the existing condition of the property as reflecting a reasonable amount of development which could actually be built on the property. While these assumed uses dramatically expand the existing development on the parcel, each is permitted under the CR category, and the intensities are substantially lower than those allowed under the FLUE limitations. The assumed pre-amendment development was compared with an assumed post-development condition of a 11,591 seat racetrack; a 96,561 square-foot casino; a 309,091 square-foot amusement center; a 1,750 room hotel; 270,455 square feet of accessory retail; and a 77,273 square-foot theme park. Thus, PPI's post-amendment assumptions represented a reduction in the pre-development conditions. The October study concluded that the plan amendments would generate 6,578 net new daily trips and 568 net new total afternoon peak-hour trips (i.e., trips during rush hour). It further concluded that a number of roadway segments would continue to operate at unacceptable Level of Service (LOS) F in the future no matter whether the amendments were approved or not. Notably, only State and County roadways were impacted, and those impacts have been further evaluated by the Planning Council through its own traffic impact study. To mitigate these impacts, the revised study identified various improvements or modifications to the three affected segments, Racetrack Road east of Powerline Road, Racetrack Road east of Southwest 23rd Avenue, and Powerline Road north of McNab Road. These modifications were accepted as adequate mitigation by the City. Although Petitioner questioned whether the proposed mitigation could be enforced without being incorporated into the Plan, the City takes the position that PPI's representations are enforceable. If additional mitigation is required, PPI has agreed that this can be provided during the permit stage. After receiving PPI's second impact analysis, the City noted that it was "more detailed" than the City's abbreviated analysis performed after PPI's first study; it agreed with PPI's use of FARs for each land use category (as recommended by the DCA) to determine the maximum development that could occur; it agreed that the accepted analysis "shows a lower net increase in the demand for public facilities and services than the City's analysis"; and it concluded that "the project can meet all applicable concurrency requirements." By then, the City was also aware that the County had adopted PPI's companion amendments, and the Planning Council, with the MPO's technical assistance, had made its own evaluation of traffic impacts before amending its own Plan. The Planning Council used a different methodology to analyze traffic impacts for CR land use amendments. Unlike PPI, the Planning Council's analysis did not assume the maximum development potential in either the before or after condition. Rather, it converted the acreage of uses in the before and after conditions by assuming a development potential of 10,000 square feet per acre for all non-residential uses, which equals a 0.23 FAR. It also assumed that the only new use would be the addition of 1,300 new residential units. The Planning Council analysis concluded that the amendments would add 305 afternoon peak-hour trips to the regional roadway network, or fewer than that found in PPI's study. The County further concluded that the net increase in trips would not significantly impact the two major roadways in the area, Powerline Road and Atlantic Boulevard, and that they would continue to operate at LOS F even if the amendments were not approved. Under current Planning Council review standards, any impact that is less than three percent of the capacity of a roadway is considered insignificant. There were no impacts that exceeded this threshold. The Planning Council's traffic impact analysis and supporting data are a part of the data and analysis supporting the City's amendments. Petitioner contends that PPI's second traffic study is flawed in several respects. One concern is that the assumptions made by PPI in determining the pre- and post-amendment conditions on its property "significantly overestimate the development in the pre-approval condition," and therefore "grossly underestimate the net increase in traffic." Using different assumptions, Petitioner's expert prepared his own traffic impact analysis which substantially reduces the pre- amendment maximum development on the property. In all, Petitioner's expert prepared 11 different scenarios, some showing no impacts at all, but he eventually decided to use the tenth version, which is probably the most favorable to his position. The permitted uses under the City's CR category are extremely broad and mimic the permitted uses under the "very, very broad" CR category in the County's Plan. Petitioner's expert opined that because the CR land use is so "ill-defined," the "best indicator" of what could be built in the before condition "appeared to be the plat." A plat is a development permit approved by, and recorded with, the County. It normally reflects what a property owner intends to build on his property at the time the plat is approved or in the very near future. The County then uses the plat to determine the amount of impact fees to be paid by the owner. Because it can be amended at any time, usually when a land use amendment is being processed or when more development is contemplated, a plat is not used to determine the maximum potential development capacity on a parcel. Notably, PPI could easily file an application for approval of a new plat on the CR land showing exactly what it assumed in pre-amendment conditions. The existing plats themselves were not made a part of the record. By using recorded plats for his entire analysis, including the CR land, which he admitted was "a little unusual," Petitioner's expert significantly reduced the amount of development in a pre-amendment condition, increased the difference between pre- and post-amendment traffic, and created more post-amendment traffic impacts on the road network. However, this assumption is contrary to the plats' intended use, it does not represent a parcel's true development potential, and at best it produces results that are no more reasonable than the results presented by PPI. The City's Future Conditions Analysis (FCA) makes up a part of the narrative portion of the TE and forecasts future travel demands, land use growth, and traffic operations within the City. The FCA was "developed to be consistent with the MPO travel demand process and incorporates the [MPO's] analysis, findings and recommendations as appropriate for the City." Jt. Ex. 1, TE, p. 60. Petitioner contends that PPI failed to coordinate with the MPO data and analysis (specifically the LOS standards and traffic volumes), incorporated by reference into the TE, when it prepared its pre-amendment conditions. Thus, she argues that the amendments are inconsistent with the data and analysis supporting the TE (and by implication the CIE), and it results in far more traffic in the existing condition than the MPO model assumes. See § 163.3177(2), Fla. Stat. The Planning Council traffic impact study is a part of the data and analysis supporting the City amendments. In performing their pre-amendment analyses, both the Planning Council and MPO reviewed the same MPO "analysis, findings, and recommendations" that are incorporated by reference into the City's Plan. Notably, the Planning Council's analysis concluded that the additional traffic generated by the difference between the assumed pre- and post-amendment conditions would not cause significant impacts on the regional transportation network. Testimony presented by the City and PPI established that all relevant portions of the City Plan were reviewed for consistency, and unless a provision was found to have some significance, no reference to that provision was made in the traffic impact analysis, application, or staff report. Even if PPI's traffic impact study does not overtly state that PPI coordinated with the MPO data and analysis before making its pre-amendment assumptions, the Planning Council data and analysis are sufficient to show that the required review and coordination were made. The City reacted appropriately to the data. Petitioner's expert also leveled criticisms regarding the following aspects of PPI's traffic impact study: the level of internal trip capture; by-pass capture; and pedestrian access internal to the site, i.e., walking to a site. Petitioner did not prove that the assumptions supporting those aspects of the study were unreasonable. Petitioner has failed to establish beyond fair debate that the plan amendments are not supported by relevant and appropriate data and analysis regarding transportation impacts, or that they are inconsistent with other data and analysis supporting the Plan. Affordable Housing Petitioner contends that affordable housing was not addressed by PPI or the City, and PPI failed to provide any data and analysis with regard to various affordable housing requirements in the City's Plan. Given these omissions, she contends that the City did not react appropriately by approving the amendments. The application contains a section relating to affordable housing. While PPI referred to HE policies 05.03.02, 05.08.02, and 05.08.05 and County Land Use Plan policy 1.07.07, no explanation was given as to how the amendments conform to these provisions. Policy 1.07.07 provides a number of ways to meet the affordable housing policies, methods, or programs to achieve and/or maintain a sufficient supply of affordable housing. One option is that when a plan amendment adds more than 100 residential dwelling units, an applicant must agree to either provide 15 percent of the proposed residential units in the project for affordable housing or make a contribution of $750.00 per residential unit, to be paid to the local government when building permits are issued. To comply with this requirement, an applicant must provide the County a declaration of restrictive covenants. As explained at hearing, rather than undertaking a detailed analysis of its HE policies when reviewing land use amendments, the City routinely follows the dictates of policy 1.07.07 and allows an applicant to "buy out" its affordable housing obligation. It then uses the money for one of the City's housing programs, either to subsidize the demand side, or the existing supply of affordable housing. The City already has an ample supply of affordable housing, and it prefers that developers buy out their obligations since the cash can be used more effectively to achieve HE goals, objectives, and policies. This process was followed here, and the City allowed PPI to "buy-out [its obligation] at $750.00 x 100 percent of the units." In doing so, it relied on PPI's declaration of restricted covenants provided to the County, the fact that an in-lieu fee would best meet its affordable housing needs, and its expectation that the money would then be used to support one of its housing programs. This information (data) was available to the City and was in existence at the time the amendments were adopted, it was presented at final hearing, and it is sufficient to support the amendments. See § 163.3177(1)(f), Fla. Stat. Petitioner failed to establish beyond fair debate that the plan amendments are not supported by adequate data and analysis regarding affordable housing or that the City did not react appropriately to that data. Internal Inconsistency Section 163.3177(2) requires that the "elements of the comprehensive plan shall be consistent." Petitioner contends that the amendments are inconsistent with four FLUE policies; one TE objective and two TE policies; one CIE policy; and three HE policies. Petitioner also argues that the amendments are inconsistent with FLUE section 3.02K, which establishes criteria that must be met in order for a property to qualify for a RAC designation. Among other criteria, FLUE subsection 3.02K.4 requires that a RAC "provide direct access to existing or proposed airports, ports, and rail mass transportation facilities." It is undisputed that the property is bounded on its east side by the CSX railroad tracks. The South Florida Regional Transportation Authority (RTA) uses those tracks to operate a rail mass transportation facility known as Tri-Rail between Palm Beach and Dade Counties. Through its Board of Directors, the RTA has established station stops at various points on its route; there is, however, no station stop adjacent to PPI's property. Because the property sits adjacent to the railroad tracks, it is eligible to be considered for a station stop. At any time, but logically after this challenge is concluded and development begins, PPI and the City can submit a formal joint proposal for a station stop. Also, PPI can offer inducements to the RTA, such as dedicating land for a station stop and assisting in its funding. In addition, the RTA currently provides a shuttle service, which can easily transport PPI patrons to the station stop. These considerations support a finding that the property has "direct access" to the Tri-Rail, as contemplated by the FLUE. Petitioner contends, however, that in order to have direct access, PPI must have a binding commitment from the RTA to build a station stop before the amendment is approved. This narrow interpretation has been rejected as not being as or more reasonable than the City's interpretation of its Plan. Petitioner next contends that the amendments are internally inconsistent with HE policies 05.01.05, 05.03.02, and 05.08.01. In general terms, the first policy requires that the City promote affordable housing; the second requires that the City support public and private sector efforts to create and preserve affordable housing for very-low, low, and moderate- income groups in areas designated for residential land use for future and current residents; and the third policy requires the City to "consider the ability of the proposal to provide affordable housing" and allows restrictive covenants to be used as a tool to meet those needs. PPI's execution of a restrictive covenant to buy out its obligation for affordable housing, and the City's use of those funds to provide affordable housing in the manner as it sees fit, are sufficient to achieve consistency with the requirements that the City promote and support affordable housing, and that it allow restrictive covenants to be used as a tool to meet those needs. Petitioner also contends that the amendments are internally inconsistent with CIE policy 13.03.02, which requires that the City provide infrastructure necessary to maintain the LOS standards concurrent with the impact of development. The traffic impact analyses performed by PPI and the Planning Council demonstrate that the amendments will not significantly impact the regional transportation network. To the extent any adverse impacts may occur, PPI has agreed to mitigate those impacts. Petitioner contends that the amendments conflict with TE objective 02.02.00 and policies 02.02.05 and 02.07.02. The objective requires that the City coordinate the transportation system with the uses shown on the FLUM to ensure that adequate transportation services are provided. The first policy requires that the City continue supporting a system that allows development to occur in concurrence with the FLUM and consistent with the established LOS standards. The second policy requires that the City review future land use amendments in concert with maintenance of the adopted LOS standards. For the reasons previously found, the plan amendments are not internally inconsistent with the objective or policies. Finally, Petitioner contends that the amendments are internally inconsistent with FLUE policies 01.01.01, 01.01.02, 01.01.03, and 01.01.05. These policies require that the City adopt and maintain services based on LOS standards; review all proposals for development using the adopted LOS standards; phase development concurrent with the availability of infrastructure; and review proposals for new development to identify the cumulative impacts of the development on public services and facilities. For the reasons previously stated, the plan amendments do not conflict with these policies. Petitioner failed to prove beyond fair debate that the plan amendments are internally inconsistent with objectives or policies in the FLUE, HE, CIE, and TE.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the Plan Amendments adopted by Ordinance Nos. 2011-24 and 2011-25 are in compliance. DONE AND ENTERED this 19th day of June, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 19th day of June, 2013.
The Issue The issue is whether the Land Development Code (LDC) adopted by Ordinance No. 2007-12 on August 22, 2007, as amended on February 27, 2008, is inconsistent with the effective comprehensive plan for the City of Doral (City), which is the Miami-Dade Comprehensive Development Master Plan (County Plan).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Section 64 is a Florida corporation. The Grand is a Florida limited partnership. Both entities are owned by the same individual. On September 25, 2001, Section 7 acquired ownership of an approximate ten-acre tract of property in the County (now the City) located along the southern boundary of Northwest 82nd Street, between 109th and 112th Avenues. See Petitioners' Exhibit 416. On December 16, 2005, title in one- half of the property was conveyed to The Grand in order to divide the property into two different ownerships. Id. It was Petitioners' intent at that time to build two hotels on separate five-acre tracts, one owned by Section 7 and the other by The Grand. The City is located in the northwestern part of Dade County and was incorporated as a municipality in June 2003. At the time of incorporation, the County's Plan and Land Use Code were the legally effective comprehensive plan and land development regulations (LDRs), respectively. On April 26, 2006, the City adopted its first comprehensive plan. After the Department determined that the Plan was not in compliance, remedial amendments were adopted on January 10, 2007, pursuant to a Stipulated Settlement Agreement. Although the Department found the Plan, as remediated, to be in compliance, it was challenged by a third party, and the litigation is still pending. See DOAH Case No. 06-2417. Therefore, the County Plan is still the legally effective Plan. See § 163.3167(4), Fla. Stat. The Department is the state land planning agency charged with the responsibility of reviewing LDRs whenever the appeal process described in Section 163.3213, Florida Statutes, is invoked by a substantially affected person. History of the Controversy When Petitioners' property was purchased in 2001, the County zoning on the property was Light Industrial (IU-1), having been rezoned by the County to that designation on October 9, 1984. See Petitioners' Exhibit 5. One of the uses permitted under an IU-1 zoning classification is a hotel with up to 75 units per acre. See Petitioners' Exhibit 6. The land use designation on the County's LUP map for the property is Low- Density Residential (LDR), with One Density Bonus, which allows 2.5 to 6 residential units per acre with the ability for a "bump-up" in density to 5 to 13 units per acre if the development includes specific urban design characteristics according to the County urban design guide book. Language found on pages I-62 and I-63 of the Future Land Use Element (FLUE) in effect at the time of the incorporation of the City (now found on pages I-73 and I-74 of the current version of the FLUE) provides in relevant part as follows: Uses and Zoning Not Specifically Depicted on the LUP Map. Within each map category numerous land uses, zoning classifications and housing types may occur. Many existing uses and zoning classifications are not specifically depicted on the Plan map. . . . All existing lawful uses and zoning are deemed to be consistent with the [Plan] unless such a use or zoning (a) is found through a subsequent planning study, as provided in Land Use Policy 4E, to be inconsistent with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as determined by the Code of Metropolitan Dade County, Florida. As noted above, if there is a concern that zoning might be inconsistent with land use, using the criteria described in the provision, the County may initiate a planning study to analyze consistency and down-zone the property to a less intense use if an inconsistency is found. Although the County initiated a number of planning studies after it adopted its Plan in 1993, and ultimately down-zoned many properties, none was ever initiated by the County for Petitioners' property. Essentially, when existing uses and zoning are not depicted on the County LUP map, the language in the FLUE operates to deem lawfully existing zoning consistent with the land use designation on the property. In this case, the parties agree that the zoning of Petitioners' property is not depicted on the County LUP map. Therefore, absent a planning study indicating an inconsistency, the zoning is deemed to be consistent with the land use category. On August 22, 2007, the City adopted Ordinance No. 2007-12, which enacted a new LDC, effective September 1, 2007, to replace the then-controlling County Land Use Code. Although the LDC was adopted for the purpose of implementing the new City Plan, until the new Plan becomes effective, the LDC implements the County Plan. Amendments to the LDC were adopted by Ordinance No. 2008-1 on February 27, 2008. The LDC does not change the zoning on Petitioners' property. However, it contains a provision in Chapter 1, Section 5, known as the Zoning Compatibility Table (Table), which sets forth the new land use categories in the City Plan (which are generally similar but not identical to the County land use categories) and the zoning districts for each category. Pertinent to this dispute is an asterisk note to the Table which reads in relevant part as follows: Under no circumstances shall the density, intensity, or uses permitted be inconsistent with that allowed on the city's future land use plan. . . . Zoning districts that are inconsistent with the land use map and categories shall rezone prior to development. See Petitioners' Exhibit 27 at p. I-3. Under the Table, only residential zoning districts (with up to ten dwelling units per acre and no density bonus) are allowed in the City's proposed LDR land use category. Therefore, if or when the City Plan becomes effective, before Petitioners can develop their property, they must rezone it to a district that is consistent with the land use designation shown on the Table. There is no specific requirement in the LDC that the City conduct a planning study when it has a concern that the zoning is inconsistent with the relevant land use category in the new City Plan. Petitioners construed the asterisk note as being inconsistent with the text language on pages I-62 and I-63 of the County Plan. See Finding of Fact 5, supra. Accordingly, on August 21, 2008, Petitioners submitted a Petition to the City pursuant to Section 163.3213(3), Florida Statutes, alleging generally that they were substantially affected persons; that the LDC was inconsistent with the County Plan; that the LDC changes the regulations regarding character, density, and intensity of use permitted by the County Plan; and that the LDC was not compatible with the County Plan, as required by Florida Administrative Code Rule 9J-5.023.2 See Petitioners' Exhibit 103. The City issued its Response to the Petition on November 20, 2008. See Petitioners' Exhibit 104. The Response generally indicated that Petitioners did not have standing to challenge the LDC; that the Petition lacked the requisite factual specificity and reasons for the challenge; that the LDC did not change the character, density, or intensity of the permitted uses under the County Plan; and the allegation concerning compatibility lacked factual support or allegations to support that claim. On December 22, 2008, Petitioners filed a Petition with the Department pursuant to Section 163.3213(3), Florida Statutes, alleging that the LDC implements a City Plan not yet effective; that the LDC changes the uses, densities, and intensities permitted by the existing County Plan; and that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan. See Petitioners' Exhibit 105. After conducting an informal hearing on April 7, 2009, as authorized by Section 163.3213(4), Florida Statutes, on July 23, 2009, the Department issued a Determination of Consistency of a Land Development Regulation (Determination). See Petitioners' Exhibit 102. See also Section 7 Tract 64 Property, Inc., et al. v. The City of Doral, Fla., Case No. DCA09-LDR-270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In the Determination, the Department concluded that Petitioners were substantially affected persons and had standing to file their challenge; that the provision on pages I-62 and I-63 of the County FLUE did not apply to Petitioners' property because the uses and zoning of the property are specifically designated on the LUP map; that the law does not prohibit the Department from reviewing the LDC for consistency with the not yet effective City Plan; and that because the LDC will require Petitioners to rezone their property to be consistent with the City Plan, the challenge is actually a challenge to a rezoning action and not subject to review under this administrative process. See § 163.3213(2)(b), Fla. Stat. On August 13, 2009, Petitioners filed their Petition for Formal Proceedings with DOAH raising three broad grounds: that the LDC unlawfully implements a comprehensive plan not yet effective; that it changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with the County Plan; and that it changes the uses, densities, and intensities permitted by the not yet effective City Plan and is inconsistent with that Plan. See Petitioners' Exhibit 39. These issues are repeated in the parties' Stipulation. As to other issues raised by Petitioners, and evidence submitted on those matters over the objection of opposing counsel, they were tried without consent of the parties, and they are deemed to be beyond the scope of this appeal. The Objections Petitioners first contend that the LDC unlawfully implements a comprehensive plan not yet in effect, in that it was specifically intended to be compatible with, further the goals or policies of, and implement the policies and objectives of, the City Plan. See Fla. Admin. Code R. 9J-5.023. But Petitioners cited no statute or rule that prohibits a local government from adopting LDRs before a local plan is effective, or that implement another local government's plan (in this case the County Plan). While the LDC was adopted for the purpose of implementing a City Plan that the City believed would be in effect when the LDC was adopted, the City agrees that until the new City Plan becomes effective, the LDC implements the County Plan. Even though the two Plans are not identical, and may even be inconsistent with each other in certain respects, this does automatically create an inconsistency between the LDC and County Plan. Rather, it is necessary to determine consistency between those two documents, and not the City Plan. Except for testimony regarding one provision in the LDC and its alleged inconsistency with language in the County FLUE, no evidence was presented, nor was a ground raised, alleging that other inconsistencies exist. The Table note and the County Plan do not conflict. The LDC is not "inconsistent" merely because it was initially intended to implement a local plan that has not yet become effective. Petitioners next contend that the LDC changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with that Plan. Specifically, they contend that the note following the Zoning Compatibility Table in Chapter 1, Section 5 of the LDC is inconsistent with the language on pages I-62 and 63 (now renumbered as pages I-73 and I-74) of the County Plan. In other words, they assert that an inconsistency arises because the note requires them to down- zone their property before development, while the County Plan deems their zoning to be consistent with the County LUP map unless a special planning study is undertaken. The evidence establishes that if there is a conflict between zoning and land use on property within the City, it is necessary to defer to the language on pages I-62 and I-63 of the County FLUE for direction. This is because the County Plan is the effective plan for the City. Under that language, if no planning study has been conducted, the zoning would be deemed to be consistent with the land use. On the other hand, if a planning study is undertaken, and an inconsistency is found, the property can be rezoned in a manner that would make it consistent with the land use. Therefore, the LDC does not change the use, density, or intensity on Petitioners' property that is permitted under the County Plan. It is at least fairly debatable that there is no conflict between the Table note and the County Plan. Finally, Petitioners contend that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan because the current industrial zoning designation will be inconsistent with the LDR land use designation. Petitioners argue that once the new City Plan becomes effective, the LDC requires them to down-zone their property before development. However, this concern will materialize only if or when the new City Plan, as now written, becomes effective; therefore, it is premature. Further, the definition of "land development regulation" specifically excludes "an action which results in zoning or rezoning of land." See § 163.3213(2)(b), Fla. Stat. Because the challenged regulation (the note to the Table) is "an action which results in zoning or rezoning of land," the issue cannot be raised in an administrative review of land development regulations. Id. The other contentions raised by Petitioner are either new issues that go beyond the scope of the Petition filed in this case or are without merit.
The Issue The issue in Case 08-1144GM is whether Martin County Comprehensive Growth Management Plan (CGMP or Plan) Amendment 7-20, called the "Land Protection Incentives" (LPI) Amendment (LPIA), which was adopted by Ordinance 777 on December 11, 2007, and amended by Ordinance 795 on April 29, 2008, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1 The issue in Case 08-1465GM is whether Martin County's Comprehensive Plan Amendment 7-22, called the "Secondary Urban Service District" (SUSD) Amendment (SUSDA), which was adopted by Ordinance 781 on December 11, 2007, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Petitioners' Standing FOF and MCCA objected to the LPIA and the SUSDA during the time period from transmittal to adoption of those amendments.3 FOF FOF is a non-profit organization incorporated in 1986, shortly after Florida’s Local Government Comprehensive Planning and Land Development Regulation (Growth Management) Act was enacted to monitor the Act's implementation. FOF engages in legislative, legal, and grassroots advocacy for sustainable comprehensive land use planning in Florida. It conducts membership meetings, sends newsletters to members and others, hosts meetings open to the general public, and initiates or participates in litigation or administrative proceedings concerning amendments to local comprehensive plans. Its main office is in Tallahassee, where several employees work. It also has a branch office in Lake Worth, Palm Beach County, where one employee works. It has no office or employees in Martin County. There was no evidence that FOF has applied for or obtained any license or permit to operate a business in Martin County; nor was there any evidence as to the requirements for obtaining such a license or permit. FOF has approximately 3,500 members; approximately 550 members live or own property in Martin County. FOF does not have a continuous presence in Martin County, other than its members who live and own property there, but it continuously monitors comprehensive planning and related growth management issues in Martin County and from time to time engages in activities in Martin County. Since 1990, FOF was involved in the Loxahatchee Greenways project, a major river corridor running through Martin County; was involved in the protection of Jonathan Dickinson State Park, which is in Martin County; undertook its Palm Beach and Martin County Green Initiative (which addressed housing, legal, transportation, and other planning issues in Martin County and resulted in the distribution of educational materials on Martin County planning issues); opposed specific local development proposals; supported a sales tax referendum to buy and preserve environmentally- sensitive lands; collaborated with the County planning department to update the housing element of the County Comprehensive Plan; assisted with a local affordable housing initiative; published a booklet on comprehensive planning in the County; and conducted a public survey of County residents assessing attitudes about planning. FOF staff members speak at and participate in annual growth management forums in Martin County, which are attended by a substantial number of its members. FOF has regularly commented in person and in writing to the Martin County Commission on proposed CGMP changes. FOF also has previously participated as a party in administrative hearings conducted in the County concerning the CGMP, during which its president has testified as an expert planner. The relief requested by FOF in this case is germane to its goals and appropriate to request on behalf of its members. MCCA MCCA is a Florida not-for-profit corporation created in 1997. It is a membership-based organization of 120 individuals and 14 other organizations. MCCA itself does not own real property in Martin County. However, at least 38 individual members reside and own real property in the County, and at least one organizational member (Audubon of Martin County) owns real property in the County. MCCA does not maintain an office or have paid employees. It operates through its members, who volunteer. MCCA's Articles of Incorporation state that it was formed "to conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, [and] to maintain and improve the quality of life for all of the residents of Martin County." It engages in various forms of lobbying and advocacy for or against amendments to Martin County's Comprehensive Plan, including initiation or participation in litigation and administrative proceedings. It conducts membership meetings in the County, sends newsletters to members and others, hosts meetings in the County that are open to the general public (including an annual growth management meeting with FOF and an annual awards luncheon with local conservation groups), and works with member organizations on issues relating to the Indian River Lagoon (IRL), including petition drives. The relief requested by MCCA in this case is germane to its goals and appropriate to request on behalf of its members. Martin County Comprehensive Growth Management Plan The CGMP establishes two "urban service districts" in the County, a Primary Urban Service District (PUSD) and a Secondary Urban Service District (SUSD). See CGMP, § 4.4.G. The PUSD has been part of the Plan since it was first adopted in 1982, while the SUSD was added during the major revision of the Plan in 1990. Approximately 65,702 acres (101 square miles) are located within the PUSD. The PUSD encompasses most of the eastern coastal area of the County surrounding four incorporated municipalities, (Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park), plus an isolated inland area known as Indiantown. Approximately 9,621 acres (14 square miles) are located within the SUSD. All land within the SUSD is immediately adjacent to land within the PUSD, but is split into several discontinuous sections so that some of the land along the western border of the PUSD abuts land outside the urban service districts. The County's purpose for having urban service districts is to "regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available at the levels of service adopted in [the Plan]." CGMP, § 4.4.G. The Plan further provides: Objective: Martin County shall concentrate higher densities and intensities of development within the strategically located [PUSDs], as delineated, including commercial or industrial uses as well as residential development exceeding a density of two units per acre . . . . * * * b. Policy: Martin County shall require that new residential development containing one-half acre or smaller lots, commercial uses, and industrial uses shall be located within the [PUSD]. * * * Objective 2. Martin County shall concentrate rural and estate densities not exceeding one unit per gross acre within the [SUSDs] where a reduced level of public facility needs are programmed to be available at the base level of service adopted in the Capital Improvements Element. a. Policy: Martin County shall designate land uses within the [SUSD] in order to provide for the use and extension of urban services in an efficient and economical manner, and consistent with the reduced intensity of urban services normally associated with densities of one unit per gross acre (Estate Density RE-1A) and one unit per two gross acres (Rural Density). . . . * * * f. Policy: In areas designated as [SUSD], where development is proposed that would contain one- half acre lots, or commercial and industrial uses, a change to a [PUSD] designation must be approved by the Board of County Commissioners as part of a land use amendment . . . . The Plan thus generally establishes residential density for land within the PUSD at 2 or more dwelling units per acre, and for land within the SUSD at 1 dwelling unit per acre to 1 dwelling unit per 2 acres. The remaining land within the County that is not within the PUSD or SUSD is generally referred to as "outside" the urban service districts. There are approximately 269,034 acres of such land. The vast majority of such land (approximately 210,379 acres) is designated in the Plan for "agricultural" use. Most of the other land outside the urban service districts is designated for either "public conservation" or "public utilities" See CGMP, § 4.4.L., § 4.4.M.1.a., i., and j. The Plan currently allows residential use of land outside the urban service boundaries that is designated for agricultural use but limits it to either 1 dwelling unit per 5 acres, known as "agricultural ranchette," or 1 dwelling unit per 20 acres. See CGMP, § 4.4.M.1.a.& c. The Plan further specifies for the latter that: Residential development in the agricultural area is restricted to one-single family residence per gross 20-acre tract. [N]o development shall be permitted which divides landholdings into lots, parcels or other units of less than 20 gross acres. Acreage may be split for bona fide agricultural uses into parcels no smaller than 20 gross acres. . . . Residential subdivisions at a density or intensity or greater than one single- family dwelling unit per 20 gross acre lot shall not be allowed. (CGMP, § 4.4.M.1.a.) Throughout the Plan, residential development on lots of 2 acres or more is consistently referred to as "rural" development (even within the SUSD), while residential development on smaller lots is consistently referred to as "urban" and must be in either the PUSD or SUSD. It was undisputed that the County's adoption of such a distinction between urban and rural residential lots was a professionally acceptable planning practice. Preservation of the County's agricultural lands is a goal of the Plan. See CGMP, § 4.4.L.1. It is also later stated in a policy related to the allocation of land: Through its planning, capital improvements, cooperative extension, regulatory and intergovernmental coordination activities, Martin County shall continue to protect agriculture as a viable economic use of land. (CGMP, § 4.4.M.1.b.) Preservation of conservation and open space areas within the County is the subject of an entire element of the Plan. See CGMP, Chap. 9.4 The County's goal is "to effectively manage, conserve, and preserve the natural resources of Martin County, giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries, and wildlife, with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon." CGMP, § 9.4.A. Preservation of conservation and open space areas is also addressed in numerous other objectives and policies throughout the several elements of the Plan and is a predominant theme of the entire Plan. The provision of "urban public facilities and services" is expressly limited by a policy to the County's urban service districts "in order to preserve agricultural lands and provide maximum protection to the farmer from encroachment by urban uses." CGMP, § 4.4.L.1.a. The Plan defines the term "public urban facilities and services" as "regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." CGMP, § 4.1.B.4. However, the term is often used in the Plan in a rearranged or abbreviated manner, such as "urban public facilities and services" (§ 4.4.G.1.f.(7)), "public facilities and services" (§ 4.4.G and § 4.4.G.1.f.), "public services and facilities" (§ 4.4.G.1.i.), "public urban facilities" (§ 4.4.G.1.c.), "public urban facilities" (§ 4.4.G.1.i.), or merely "public facilities (§ 4.4.G.1.) or "urban services " (§ 4.4.G.2.a.). LPIA Provisions The LPIA adds a new objective and new policies under the Future Land Use Element goal addressing "natural resource protection," which provides: Martin County shall protect all the natural resource systems of the County from the adverse impacts of development, provide for continued growth in population and economy and recognize the inter-relationship between the maintenance of urban support infrastructure in waste management, air and water quality, and the coastal zone environmental quality. (CGMP, § 4.4.E.) To the existing 6 objectives under that goal, the LPIA adds a seventh which states: Martin County shall create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007. For the purposes of Section 4.4.E.7., and supporting paragraphs, the definition of open space, found in Section 9.4.A.11., CGMP, shall not include roads, highways and their median strips and berms. This objective is intended to encourage the conveyance of fee simple title of land listed for public acquisition by state, regional or local environmental or governmental agencies or land trusts. Lands listed for acquisition include, but are not be limited to [sic], land designated for public acquisition under the Save Our Rivers program, the Indian River Lagoon, North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program. The overall purpose of the LPIA is to encourage the owners of tracts of land outside the urban service districts that are at least 500 acres to choose a different pattern of development than the Plan now allows, by allowing a substantial reduction in the minimum lot size so that the development may be "clustered" on a smaller "footprint" within the overall tract of land, but only if at least 50% of the entire tract is "set aside" permanently for conservation, open space, or agricultural use and stripped of its potential for future development. This approach, it is hoped, will make it easier and cheaper for the County and other governmental entities to acquire the large tracts of land they desire to use for the CERP and other conservation projects. The LPIA does not allow for more development than is allowed under the Plan currently. It allows the same amount of development to be arranged on a tract of land in a different pattern than is currently allowed. It accomplishes this primarily through the combination of a change in the minimum lot size from "20 acres" to "over 2 acres" with a new allowance for "clustering" the smaller lots on a portion of an overall tract of land rather than having an equal number of larger lots spread throughout the entire tract of land. The LPIA adopts six policies to accomplish the new objective: Policy (7)a. provides for the protection of the land "set aside" to be conveyed or subject to an easement in favor of a combination of the County, the South Florida Water Management District, and a third entity, chosen from among the other governmental or not-for-profit conservation- oriented organizational entities listed in the policy. Policy (7)b. requires that a combination of a comprehensive plan amendment and a PUD agreement be used for the change in the development characteristics of the land. The PUD agreement would address the portion of the tract subject to development and not "set aside," while the plan amendment would address (at a minimum) the remaining portion of the tract which is permanently "set aside" for conservation, open space, or agricultural use and would no longer have any potential for residential development. Policy (7)c. provides additional specificity concerning the subject matters that would be addressed by the comprehensive plan amendment, such as any required change in land use designation for the set-aside portion of the tract of land, and if it remains designated for agricultural use, the removal of any potential for development. Policy (7)d. primarily provides additional specificity concerning the subject matters that would be addressed by the PUD agreement, setting minimum requirements to be met such as the tract having to be a minimum of 500 acres in size; the development being "fiscally neutral to existing taxpayers"; the lots having to be more than 2 acres in size; the inability to develop in environmentally sensitive areas on the tract; and the acknowledgment of a permanent restriction against any future increase of density on the tract. The policy also essentially repeats some of the requirements enunciated in the second and third policies regarding the conveyance of title or easement and the required comprehensive plan amendment, and addresses who pays the closing costs for the set-aside portion of the tract. Policy (7)e. establishes additional requirements specifically applicable to land that has been "listed for acquisition by state, regional, or local agencies as part of an established conservation program." Policy (7)f. enumerates the "site specific benefits" that the second policy states the County must consider when deciding whether to approve an application for development under the optional pattern allowed by the LPIA, such as whether more than the minimum 50% of the tract will be "set aside" permanently, whether the location fills "gaps in natural systems, wildlife corridors, greenways and trails," or whether buffers are provided along roads "to limit access and to protect vistas." The LPIA requirement for at least 50% of an entire tract being set aside for one of the three public purposes, when coupled with other requirements of the Plan such as establishment of construction setback distances, preservation of wetlands and creation of buffers around wetlands, preservation of certain uplands, would result in more than 50% of an undeveloped tract of land remaining in an undeveloped state and at least 50% of agricultural land remaining in agricultural use. Meaning and Predictability of LPIA Standards Petitioners contend that the LPIA fails to establish meaningful and predictable standards in numerous respects. No Guide to Location and Pattern of Development Petitioners contend that the LPIA fails to establish meaningful and predictable standards essentially because it does not identify the lands to be preserved and developed, leaving the results up to the choice of landowners to make proposals and Martin County's case-by-case decisions on future development proposals. See PPRO, ¶¶52-53. However, the goals of the LPIA are quite clear, and there is no basis to speculate that Martin County will make decisions contrary to those goals--for example, by approving PUDs or agricultural uses on the most environmentally-sensitive part of tract, ignoring the importance of environmentally-sensitive and agricultural lands and the impact of development patterns on them, and ignoring the impact of the pattern of development under the LPIA on rural character. Petitioners also criticize the LPIA for not being clear "whether a subject property must be in single ownership." (PPRO, ¶61.) However, it is not clear why that omission would be pertinent. Undefined Increase in Maximum Density Petitioners contend that, in four ways, the LPIA increases maximum density in the Agricultural category without defining the amount of the increase. Waiver of Density Limits Clearly, the LPIA exempts the PUD option from "the agricultural land use policies in Section 4.4.M.1.a. pertaining to the 20 acre lot size . . . ." LPIA § 4.4.E.7.d.(8). Contrary to Petitioners' contention, that does not eliminate density standards. Residential lots must be greater than two acres. See LPIA § 4.4.E.7.d.(3). Maintenance of Residential Capacity Petitioners contend the LPIA increases density because its objective is to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007." LPIA § 4.4.E.7. (Emphasis added.) Petitioners complain that County-wide residential capacity on that date is not identified and that the objective requires residential capacity in Agricultural lands to increase as it decreases elsewhere in the County. This interpretation is unreasonable. The County's interpretation, that residential units lost by preservation are to be maintained by clustering on the remaining Agricultural lands, is more reasonable. Transfer of Wetland Density Petitioners contend that the LPIA increases density by allowing transfer of wetland density in the Agricultural future land use category. See LPIA § 4.4E.7.d.(7). Under the Plan before the LPIA, up to half of wetland density can be transferred to uplands in a PUD. See CGMP § 9.4A7.b.(8). PUDs were not allowed in Agricultural lands before the LPIA. But Petitioners did not prove that allowing the transfer and clustering of residential units into a PUD on Agricultural lands under the LPIA would change the total number of residential units already allowed in Agricultural lands (at one unit per 20 acres). Alleged Failure to Remove Density from All Non-PUD Land Petitioners contend that the LPIA increases density by not stripping residential units from all so-called non-PUD land. Contrary to this contention, the more reasonable interpretation is that land not set aside for permanent preservation in a proposal made under the LPIA must be part of the proposed PUD. In any event, even if an LPIA proposal could include land that is neither set aside for preservation nor part of the PUD land, no residential units is such land would be transferred to the PUD, and failure to strip such land of its residential units would not affect the total number of units associated with the LPIA proposal. Petitioners also contend that the LPIA allows text amendments to increase density on land set aside for preservation under the LPIA because it specifies that such land must be changed on the FLUM and will not be eligible for "any additional [FLUM] amendment which increases residential density or intensity of use . . . ." LPIA § 4.4E.7.d.(7). The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. Even if text amendments are not prohibited, they would apply to all land in a particular land use category, not just to land set aside under the LPIA. Subsequent Plan Amendments Not Required for PUD Petitioners contend that the LPIA "is unclear as to whether a PUD can be approved without a subsequent plan amendment specifically authorizing the two-acre lot subdivision site plan." PPRO, ¶80. This contention supposedly arises from the language of LPIA § 4.4.E.7.c.: "The Comprehensive Plan amendment that is part of a joint Plan Amendment and concurrent PUD application submitted under this objective must address the land use designation on the land set aside in perpetuity as contiguous open space, environmentally sensitive land and/or agricultural land uses in the following manner: . . . ." (Emphasis added in PPRO, ¶82.) The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. It ignores LPIA § 4.4.E.7.d.(7): "The Comprehensive Plan amendment filed concurrently with the PUD application shall allow the site-specific clustering of density in one portion of the total subject site, including the transfer of full density of any wetlands on the site, at a density that shall not exceed one unit per twenty acres for the total site prior to conveyance. . . . The Plan amendment shall further specify that neither the land conveyed nor the land controlled by the PUD agreement shall be eligible for any additional [FLUM] amendment which increases residential density or intensity of use . . . ." While LPIA § 4.4.E.7.d.(7) discusses land that is conveyed, it is reasonably clear that a Plan amendment addressing the PUD also would be required for lands that are set aside using one of the other mechanisms specified in the LPIA. Public Benefit Criteria Petitioners contend that LPIA Section 4.4.E.7.b. and f. gives the County "unfettered discretion to reject or approve a PUD 'for any reason.'" PPRO, ¶90. Those sections provide that approval of a PUD will be based on consideration of "significant site-specific public benefits," some of which are listed. While it is true that the LPIA gives the County discretion to grant or approve a PUD based on its consideration of those factors, Petitioners did not prove "unfettered discretion." First, minimum requirements under the LPIA first must be met. Second, the list of public benefits gives some guidance as to the kinds of additional public benefits that will justify approval of a PUD. Petitioners did not prove that a comprehensive plan provision allowing for PUD zoning need be any more specific to be implemented in a consistent manner. Protection of Land Set Aside Petitioners contend that the LPIA fails to protect land set aside under the LPIA because it does not identify the land most appropriate for preservation or require that it be set aside. This contention ignores the objective to encourage conveyance of "land listed for public acquisition by state, regional or local agencies as part of established conservation programs" which "include, but are not be [sic] limited to land designated for public acquisition under" several named public acquisition programs. LPIA § 4.4.E.7. It also ignores the policy: "No development in the PUD shall be allowed on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species . . . ." LPIA § 4.4.E.7.d.(4). It also ignores the policy that "PUDs that include land listed for acquisition by state, regional or local agencies as part of an established conservation program shall be subject to . . . additional requirements": including fee simple conveyance of at least half of such land; and no development in the PUD on such land "unless the land has been previously impacted by agricultural activities and the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." LPIA § 4.4.E.7.e.(1)-(2). In addition, various means of protecting such lands are several of the listed "additional significant site-specific benefits" of a PUD proposal to be considered in the approval process. See LPIA § 4.4.E.7.f. Petitioners contend that the LPIA fails to "require set-aside lands to be contiguous to other farmland, open space, or natural lands" and "contiguous, functional, and connected to adjacent and regional systems." PPRO, ¶¶102-98 [sic]. These contentions ignore the objective to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses. . . ." LPIA § 4.4.E.7. They also ignore that land in public acquisition programs ideally is contiguous to other open space and natural lands. Petitioners did not prove their contention in PPRO ¶97 [sic] that it is necessary to specify the public acquisition programs for the LPIA to be implemented in a consistent manner. Petitioners contend that the LPIA fails to define the "perpetual easement" mechanism allowed in LPIA Section 4.E.7.a. for setting aside land in lieu of fee simple conveyance. See PPRO, ¶103. This contention ignores the policy in LPIA Section 4.E.7.d.(5) to use perpetual easements as a means of enforcing the prohibition against increasing residential density or intensity of use by FLUM amendments, as well as the policy in LPIA Section 4.E.7.d.(6) to use perpetual easements "to restrict future uses and ensure the government agencies or other entities holding fee simple title do not sell or develop the property inconsistent with this policy or the approved uses within the PUD Agreement." Petitioners did not prove their contention in PPRO ¶103 that it is necessary to further define "perpetual easement" for the LPIA to be implemented in a consistent manner. Petitioners contend in PPRO ¶¶105 and 107 that the LPIA fails to define the "agricultural uses" to be preserved in LPIA Section 4.4.E.7.c.(3) and allows the County to "specify allowed uses" without limitation and with "no certainty that farmland will be protected as farmland by easement." (Emphasis in PPRO ¶105.) Petitioners contend that everything allowed in the Agricultural category under the Plan will be allowed. See PPRO ¶107. Contrary to Petitioners' contention, it is reasonably clear that, while the language of LPIA Section 4.4.E.7.c.(3) contains a typographical error, the policy clearly is to maintain existing agricultural uses, not to allow intensification of agricultural use or expansion into "non-farm" uses that might be allowed in the Agricultural category. Alleged Threat to IRL and CERP Lands Petitioners contend that, by making development under its PUD option more marketable, the LPIA will encourage PUDs that do not protect and that fragment IRL and CERP lands. Petitioners did not prove that such a result is likely. Petitioners contend that the adverse impacts on IRL and CERP lands is more than speculation in part because of the wording of the policy in LPIA Section 4.4.E.7.c.(2), which is misstated in PPRO ¶114 and actually states: "If the land to be protected and maintained in perpetuity is land that is part of the North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program, the plan amendment must include a future land use amendment to change the Future Land Use Designation to Institutional-Public Conservation." The language used in the policy is poor. But Petitioners' interpretation--that only land set aside for protection that is part of all of the described CERP projects will be protected--is absurd since no such land exists. That interpretation and Petitioners' interpretation that no IRL lands are protected under the LPIA ignore and are contrary to the language and intent of the objective stated in LPIA Section 4.4.E.7. and of the policies stated in Section 4.4.E.7.a., c.(1), and d.(5). The County's interpretation, that CERP and IRL lands are eligible for protection, is more reasonable. Definition of Critical Habitat Petitioners contend that LPIA Section 4.4.E.7.d.(4) does not provide a meaningful or predictable standard because the term "critical to the support of listed plant or animal species" is not better defined. Actually, PUD development is prohibited "on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species." While the policy could have been better defined, Petitioners did not prove that a better definition is necessary for the LPIA to be implemented in a consistent manner. Petitioners contend that, regardless of the "critical habitat" definition, the policy language in LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4) by prohibiting PUD development "on land listed for acquisition . . . unless the land has been previously impacted by agricultural activities " Actually, the policy continues to state that the exception only applies if "the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." Petitioners' interpretation, that the policy allows PUD development on virtually all Agricultural lands, is unreasonable and contrary to the language and intent of the LPIA. The County's interpretation is more reasonable and is reasonably clear. It allows for distinctions among the various kinds of agricultural activities, which the Plan already recognizes. See, e.g., CGMP § 4.2.A.6.b.(8) ("Many low intensity agricultural uses such as range (pasture) land can be compatible with environmentally significant resource areas.") For these reasons, Petitioners did not prove that LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4), or that the LPIA cannot be implemented in a consistent manner. LPIA and Urban Sprawl In part based on unreasonable interpretations of the LPIA's objective and policy language, Petitioners contend that Martin County's Comprehensive Plan as amended by the LPIA no longer discourages urban sprawl and that the LPIA encourages urban sprawl. In part because the interpretations were unreasonable, Petitioners' urban sprawl contentions were not proven. Even if the LPIA results in a proliferation of PUDs with clusters of residences on lots slightly larger than two acres, which is the minimum lot size, it would not equate to urban (or suburban) sprawl. Assuming PUDs based on 500-acre tracts, it would result in a cluster of 25 homes within a 500-acre rural area. The LPIA does not plan for the extension of urban services to those homes and does not provide for or allow any new commercial or industrial development. Both the LPIA and the rest of the CGMP include provisions, most notably those related to the urban service districts, to reasonably ensure that urban sprawl will not result. To the extent that the LPIA triggers the first primary indicator of urban sprawl in Florida Administrative Code Rule5 9J-5.006(5)(g) ("designates for development substantial areas of the jurisdiction for low-intensity, low density or single use development or uses in excess of demonstrated need"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the second primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[p]romotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development"). The development promoted, allowed, or designated by the LPIA is not "urban" and does not "leap over undeveloped lands which are available and suitable for development." It allowed for development already promoted, allowed, and designated to arrange itself differently in a rural area. Petitioners did not prove that the LPIA triggers the third primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (designation of urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development"). Petitioners did not prove that the LPIA triggers the fourth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (promotes premature conversion of rural land to other uses, thereby failing to adequately protect and conserve natural resources). To the contrary, its primary purpose is to protect and conserve natural resources and rural land. Petitioners did not prove that the LPIA triggers the fifth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to adequately protect "adjacent agricultural areas" as well as "passive agricultural activities and dormant, unique and prime farmlands and soils"). Petitioners did not prove that the LPIA triggers either the sixth or seventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to maximize use of existing and future public facilities and services). Petitioners did not prove that the LPIA triggers the eighth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[a]llows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services"). Petitioners did not prove that the LPIA triggers the ninth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to provide a clear separation between rural and urban uses"). Petitioners did not prove that the LPIA triggers the tenth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[d]iscourages or inhibits infill development or redevelopment of existing neighborhoods and communities"). Although LPIA PUDs obviously would not be infill or redevelopment, it was not proven that they will discourage or inhibit infill and redevelopment. To the extent that the LPIA triggers the eleventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to encourage an attractive and functional mix of uses"), the Agricultural lands designation already does. To the extent that the LPIA triggers the twelfth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[r]esults in poor accessibility among linked or related uses"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the thirteenth primary indicator of urban sprawl in Rule 9J- 5.006(5)(g) ("[r]esults in the loss of significant amounts of functional open space"). The LPIA does not exacerbate the two already-existing indicators of urban sprawl, but Petitioners still contend that the indicators are triggered by the LPIA essentially because development will proceed more quickly under the LPIA. This contention was not proven. Even if it were, Petitioners did not prove that the LPIA encourages the proliferation of urban sprawl or that the CGMP, as amended by the LPIA, fails to discourage the proliferation of urban sprawl. LPIA Data and Analysis Petitioners contend that the LPIA is not supported by data and analysis because the County explained it as a necessary response to the proliferation of 20-acre ranchette developments whereas only 75 have been built and only 15 have certificates of occupancy. Actually, the ranchette developments were only one reason for the LPIA, and the data and analysis showed 13 approved developments as of mid-September 2007, and three more approvals plus two pending applications for approval a year later. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA implements some but not all of the recommendations in the various reports and studies cited by the County as part of the data and analysis. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA does not conform to some recommendations in the various reports and studies cited by the County as part of the data and analysis. However, Petitioners base their contentions largely on unreasonable interpretations of the language of the objective and policies of the LPIA. In addition, the data and analysis they point to essentially reflect merely that planners disagree on the best plan for the Agricultural lands. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA is not identical to the Atlantic Ridge project amendment. While all agree that the Atlantic Ridge project is a resounding success story, it is unique. The obvious and understandable inability to instantaneously duplicate Atlantic Ridge to the greatest extent possible in the Agricultural lands should not prevent the County from taking any action in its direction, such as the LPIA. Taken together, the data and analysis are adequate to support the LPIA. LPIA and TCRPC Regional Policy Plan Petitioners contend that the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP). The TCRPC's SRPP was not introduced in evidence, but the TCRPC's Executive Director testified and sponsored the TCRPC's report on the LPIA and the SUSDA. The TCRPC's findings on consistency with its SRPP were not contradicted. According to the TCRPC, the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP) Policies 2.1.1.1 and 2.1.1.2, which are to determine areas that are environmentally significant and to map, acquire, and manage them. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Goal 1.1, which requires sustainable countryside development in urban enclaves, such as towns and villages, with mixed-use and appropriate densities between 4-10 units per acre, on strategically selected locations while preserving contiguous, targeted land identified through SRPP Policies 2.1.1.1 and 2.1.1.2. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Policy 15.1.3.1, which is to increase the clarity of local land use plans so that preferred forms of development can be pre-approved. Instead, the LPIA uses the case-by-case PUD approval process to determine the ultimate development patterns for the Agricultural lands. The inconsistency with SRPP Policy 15.1.3.1 is the only LPIA inconsistency not already equally present in the existing CGMP. The TCRPC's concern as to the other inconsistencies is that the LPIA will make residential development in the Agricultural lands more marketable and increase the rate of residential growth in a manner inconsistent with SRPP Goal 1.1 and Policies 2.1.1.1 and 2.1.1.2. Internal Consistency of the LPIA Petitioners contend that the LPIA is inconsistent with CGMP Sections 1.6 and 1.11.A. for being inconsistent with the TCRPC's SRPP. CGMP Section 1.6 states that "elements of the [CGMP] shall be consistent and coordinated with policies of [various entities, including the TCRPC]. Petitioners did not prove that the County does not interpret that provision to require internal consistency and coordination with the other entities' policies, or that such an interpretation would be incorrect. CGMP Section 1.11.A. refers to amendment procedures. Essentially, it states that plan amendments must be "in compliance." There was no evidence that the County intended it to require strict and absolute consistency with the TCRPC's SRPP, or any evidence to prove that it would be incorrect for the County to interpret it not to. Petitioners also contend that the LPIA is inconsistent with CGMP Section 1.11.K., which also refers to amendment procedure. Petitioners did not prove that the LPIA is inconsistent with CGMP Section 1.11.K. for not having concurrently-processed land development regulations (LDRs) since concurrently-processed LDRs are only required "[t]o the extent necessary to implement a proposed amendment," and Petitioners did not prove that concurrently-processed LDRs are necessary. Petitioners also contend that the LPIA is inconsistent with numerous other provisions of the CGMP. These contentions were not proven. Most, if not all, were based on unreasonable interpretations of the LPIA. SUSDA Provisions The SUSDA amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the SUSD to apply for connection to regional water and sewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner. The policy of SUSDA Section 4.4.G.2.g. expressly states: The County Commission has determined that it is in the best interest of the health, safety, and welfare of the citizens of Martin County that regional water and sewer services be made available to properties within the [SUSD], in order to: (1) Protect our natural resources . . . from the negative impacts of onsite sewage disposal (septic) systems and private wells to serve individual residential units; (2) Provide fire protection; [and] (3) Provide safe drinking water. The policy of SUSDA Section 4.4.G.2.h. requires that the extension of any such services to properties within the SUSD must have Board approval, which cannot occur unless the Board finds that certain enumerated criteria have been met, including: Regional utility services may be provided to properties within the [SUSD] upon the request of the affected property owner, and upon payment of the required costs for connection to the regional system. Such services may only be provided by a regional utility, public or private, within a service area shown on Figure 11-2. Package plants for the provision of utility service are prohibited except under the provisions of the [CGMP]. The regional utility must demonstrate the treatment facility has capacity for the proposed connection and priority has been given to projects within the [PUSD]. Extension of utility services shall not be construed to imply support for any increase in the residential density of the property inside the [SUSD]. Property lying outside the Urban Service Districts . . . shall not receive utility service from a regional wastewater system. Extension of utility service outside the Urban Service Districts shall be prohibited. Development within the [SUSD] shall maintain lot sizes that exceed one-half acres. The SUSDA also contains new charts added to both the sanitary sewer services element and the potable water services element that display the numerical capacity of the regional water and sewer systems to handle additional customers upon extension of lines to the SUSD. See SUSDA Tables 10-3 through 10-6 and 11- 12 through 11-15. There was no credible evidence of any likelihood that the adoption of the SUSDA would allow the further extensions of water and sewer lines from the SUSD to properties outside the urban service districts. The testimony offered by Petitioners was speculative at best and depended upon an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting such extension of services. See SUSDA §§ 4.4.G.2.h.(6)-(7) and 4.5.H. Meaning and Predictability of SUSDA Standards Petitioners contend that the SUSDA's standards are not meaningful or predictable because of the undefined term "central water and sewer" in the policy in SUSDA Section 4.4.G.2.a. Petitioners contend that "central water and sewer" can be interpreted to mean something other than a regional utility, and that the SUSDA can be interpreted to allow regional utility, package plant, and other similar types of utility systems serving two or more houses outside the urban services districts. Petitioners' interpretations are unreasonable and contrary to the language and intent of the SUSDA. Petitioners' evidence was speculative and depended on an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting package treatment plants in the SUSD. See SUSDA § 4.4.G.2.h.(3) and § 4.5.H. In addition, the evidence was that package treatment plants may no longer be economically feasible. The County's interpretation is more reasonable--"central water and sewer," as used in SUSDA Section 4.4.G.2.a., means the provision of regional utility services by Martin County in the SUSD, and no such facilities may be provided outside the urban service districts. SUSDA Data and Analysis Petitioners contend that the data and analysis do not support the SUSDA essentially because they do not establish "any actual health, safety, or welfare problems." PPRO, ¶208. The absence of proof of actual health, safety, or welfare problems is not fatal in view of the rest of the data and analysis supporting the SUSDA. Since the creation of the SUSD in 1992, development in the PUSD has resulted in the extension of water and sewer lines up to the border between the PUSD and the SUSD. In effect, the intended SUSD transition area has transitioned. Meanwhile, the regional water and sewer utilities serving the County now have the necessary capacity to serve the PUSD and the SUSD. Improved fire protection in the SUSD is a benefit of regional water service, allowing installation of community fire hydrants. Without it, developers in the SUSD must rely on installed sprinklers and emergency generators and water drawn from nearby lakes or installed water tanks. While regional water service can fail temporarily in major storms, and the data and analysis did not include actual instances of fire damage cause by the lack of regional water service in the SUSD, regional water service generally provides more reliable and less costly fire protection. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit potable water wells, regional water service generally is better, more reliable, and less costly. The data and analysis did include actual instances of home owners having to install expensive water treatment systems due to increasing chloride levels in their potable water wells. Connection to regional water service would eliminate those costs and concerns. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit septic tanks systems for onsite sewage treatment (i.e., systems that meet environmental and health standards), such systems can fail if improperly installed, maintained, and repaired. If they fail, nutrients such as nitrogen and phosphorus can leach into and harm the groundwater and nearby surface waters. The North Fork of the Loxahatchee River, which is nutrient-impaired, probably would benefit from elimination of septic tanks. Regional sewer service generally is better for the environmental and public health. The data and analysis suggest that allowing regional water and sewer service in the SUSD, with the SUSDA's requirement for developers to pay the cost of installation, probably will save the County money in the long run. It will be a significant cost to the County if it has to install water and sewer lines post-development. Petitioners attack the credibility of the data and analysis supporting the SUSDA because regional water and sewer service is optional in the SUSD. But there were data and analysis that, even if regional water and sewer service in the SUSD is preferable, there are valid reasons to make it optional at this time. Alleged Environmental Impact of the SUSDA Petitioners contend that the SUSDA will have negative environmental impacts in part from a proliferation of package treatment plants in the SUSD, which is discouraged in CGMP Section 4.4. See PPRO, ¶¶221, 223. This contention is based on Petitioners' unreasonable interpretations of two sentences of the SUSDA. SUSDA Section 4.5.G. prohibits interim water systems outside the urban service districts and allows them, with conditions, in the PUSD where connection to a regional utility is not feasible. Petitioners interpret these two sentences to mean that interim water systems are allowed, without conditions, in the SUSD. The County's interpretation is more reasonable. Since the SUSDA makes connection to the regional utilities optional, there is no need for interim water systems in the SUSDA, and the SUSDA should not be construed to allow them there. Petitioners contend that the SUSDA will have negative environmental impacts in part essentially because increased development results in increased pollution. See PPRO, ¶228. To the extent true, it would be equally or more true of similar development without regional water and sewer services. SUSDA and Urban Sprawl Petitioners contend, in part due to their unreasonable interpretations of the objective in SUSDA Section 4.4.G.2.a., that Martin County's Comprehensive Plan as amended by the SUSDA, no longer discourages urban sprawl and that the SUSDA encourages urban sprawl. In part due to the unreasonableness of Petitioners' interpretation of the SUSDA, Petitioners' urban sprawl contentions were not proven. It is unlikely that the SUSDA will encourage urban sprawl. Petitioners also contend that the SUSDA will encourage urban sprawl simply by allowing denser development in the 5,000- 6,000 acres of the SUSDA not yet developed. This contention is contrary to the SUSDA policy: "Extension of utility services shall not be construed to imply support for any increase in residential density of the property inside the [SUSD]." SUSDA § 4.4.G.2.h.(5). Even if the SUSDA increased density in the SUSDA, increase in density itself does not promote urban sprawl. To the contrary, it is possible for increased density to discourage urban sprawl. Petitioners did not prove that increasing density in the SUSDA itself encourages urban sprawl or that, with the SUSDA, the CGMP will discourage urban sprawl less. Petitioners contend that the SUSDA will create pressures to develop areas that border the SUSD, leaping over areas suitable for urban development. See PPRO, ¶¶236-237. This contention actually devalues the very urban service district concept Petitioners seek to defend and can be said about any urban district boundary. Currently, there are many places where the PUSD borders the Agricultural lands. The pressures created by the SUSDA will be no greater than the pressures that have existed in those places all along. Petitioners contend that the SUSDA will increase costs to the County essentially because, notwithstanding SUSDA's requirement that developers pay the cost of connection, development will not pay for itself in the long run (taking into account costs of operations, maintenance, and repair.) To the extent true, it can be said of all development and does not prove that the SUSDA encourages urban sprawl. Petitioners did not prove that the SUSDA triggers any of the indicators of urban sprawl; did not prove that the SUSDA encourages the proliferation of urban sprawl; and did not prove that the CGMP, as amended by the SUSDA, fails to discourage the proliferation of urban sprawl. Internal Consistency of the SUSDA Petitioners contend that the SUSDA is internally inconsistent with CGMP Section 4.4.G.1.i., which gives priority in the provision and funding of water and sewer services to the PUSD, essentially because the data and analysis ensure that water demands in the PUSD can be met through 2025. The lack of data and analysis at present to ensure that water demands in the PUSD can be met beyond 2025 does not prove that priority will not be given to the needs of the PUSD.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the LPIA and the SUSDA are "in compliance." DONE AND ENTERED this 10th day of April, 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 10th day of April, 2009.
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
The Issue The issues in this case are whether the Small Scale Comprehensive Plan Amendment No. 05S-01 (the Plan Amendment) adopted by Polk County (County) through the enactment of Ordinance No. 05-004 is “in compliance,” as that term is defined by Section 163.3184(1)(b), Florida Statutes,1 and whether Petitioner, Citizens for Proper Planning, Inc. (CPPI), has standing as an “affected person” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact The ECRA is a local special district governmental agency established pursuant to Chapter 163, Part III, Florida Statutes, and is composed of a seven-member board of directors. The boundaries of the Eloise Community Redevelopment Area include an area consisting of approximately 665 acres within the unincorporated Eloise area of Polk County (the Redevelopment Area). The Subject Property is located within the Redevelopment Area. See JE 8A. The ECRA meets once a month, except July, when they do not normally meet. Its purpose is to discuss and implement the ECRA Redevelopment Plan’s six objectives within the Redevelopment Area. The ECRA opposed the Plan Amendment by and through its attorney and submitted oral and written comments, recommendations, and objections to the County regarding the Plan Amendment during the Plan Amendment adoption proceedings. As a part of its presentation to the County regarding the Plan Amendment, the ECRA delivered to the County, ECRA Resolution No. R-05-01, objecting to the Plan Amendment. The parties agree that the ECRA has standing in this proceeding. Petitioner, Bruce Bachman (Mr. Bachman), resides in Winter Haven, Polk County, Florida. His residence is located outside of the Redevelopment Area and is approximately three (3) miles from the Subject Property. He is employed as the operator (since 1980) and general manager of Phoenix Industries, LLP, (Phoenix), located at 621 Snively Avenue, County Road (CR) 655 in Eloise, which is adjacent to and across the street from the Subject Property. Mr. Bachman has served as the Chairman of the Board of Directors of the ECRA since 1998. Phoenix operates a warehousing and distribution complex for dry, refrigerated, and frozen food products east of Snively Avenue and across the street from the Subject Property. The Phoenix property stretches north and south within an elongated area within the Redevelopment Area, and is open 24-hours a day, seven days a week.2 See JE 8A at "30". (The railroad, designated with a red line, runs north and south through the Phoenix property. JE 8A.) Phoenix has spent approximately $115,000 changing the angles of its buildings and moving docks so that trucks could maneuver on the property, and not have to enter Snively Avenue to do so. Mr. Bachman is involved with the Eloise residential area and the Redevelopment Area generally and his contributions to the Eloise area are well-noted in the record. His work with the community includes working with the students at Snively Elementary School. Individually, and on behalf of the ECRA, Mr. Bachman submitted oral and written comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Bachman has standing in this proceeding. Petitioner, Johnny Brooks (Mr. Brooks), resides at 143 8th Street, Eloise, Polk County, Florida, approximately three (3) blocks southwest from the Subject Property. His home is located within the main residential component of the Redevelopment Area. He was born in Eloise (on 5th Street) and has lived, with his wife, at the 8th Street address for 41 years. Mr. Brooks also serves as Vice-Chairman of the Board of Directors of the ECRA. Although disabled, Mr. Brooks is an active member of the Eloise Community. For example, he and his wife conduct a “homework club” at the Eloise Community Resource Center (opened in 2002) located between 7th and 8th Streets and Snively Avenue, which is east and down the block from his residence. JE 8A at "2". They also use the computer lab at the resource center for adult education. They use the neighborhood Snively/Brooks Park, JE 8A at "4", approximately one block south of the Brooks' residence and west of the Snively Elementary School, JE 8A at "3", for, among other activities, Easter egg hunts and Christmas parties. Mr. Brooks is also involved in the Eloise Neighborhood Association, which offers adult computer classes, GED classes, and classes in English as a Second Language. He and his family use other resources within the Redevelopment Area, such as the Snively Elementary School, and a post office, JE 8A at "1", which is located approximately one block north of the Subject Property between 4th and 5th Streets, near Snively Avenue. Mr. Brooks attends the Eloise United Methodist Church (built in 1966-1967), which is located on land designated as Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is located on the southwest side of Snively Avenue, and approximately five or six blocks south of the Subject Property and approximately two blocks south of the Snively Elementary School and the Snively-Brooks Park.4 Mr. Brooks submitted oral comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Brooks has standing in this proceeding. CPPI is an organization comprised of approximately two hundred members, located throughout Polk County, Florida. CPPI has been an existing corporation since 2002. No application, request to join or payment of dues is currently required for membership. According to its executive chairperson, Jean Reed, its purpose is to "better plan for our growth in Polk County." Ms. Reed lives approximately one mile east of Eloise and four of five of the CPPI Board of Directors live within a mile of Eloise. All CPPI members live in the County. CPPI had been involved in County hearings and an administrative hearing involving a small scale comprehensive plan amendment. The organization currently encourages donations and plans to charge dues next year. CPPI submitted oral comments, recommendations and objections to the County during the Plan Amendment adoption proceedings. No evidence was presented to show that CPPI owns real property within the County. The County and the Intervenor dispute CPPI’s standing in this proceeding. The County is a political subdivision of the State of Florida, empowered to adopt, implement, and amend its Comprehensive Plan in accordance with the laws of Florida. Intervenor, Don C. Smith (Smith or Intervenor), owns the Subject Property. He purchased the Subject Property of 9.9 acres, which is part of a contiguous 20-acre site, in May of 2003. Mr. Smith learned that the Subject Property had an RL-4 land use designation just prior to his purchase of the Subject Property. The parties agree that Mr. Smith has standing in this proceeding. The Eloise Community Redevelopment Area The Redevelopment Area consists of approximately 665 acres. EE 2, Plan at 30. It is generally bounded by the CSX railroad to the north of US 17; by Lake Lulu and Shell Road on the east; by Snively Avenue (CR 655) on the south; and by Wahneta Canal and a portion of Wahneta farms on the west. JE 8A.5 (Snively Avenue is a four-lane undivided, major collector highway, but is not a buffer.) Both historically and presently, the Redevelopment Area has been composed of mixed uses in an urban area. Under the FLUM, there are eight separate land uses within the Redevelopment Area: Industrial (IND), Business Park Center (BPC- 2), High Impact Commercial (HIC), Institutional (INST-1), Community Activity Center (CAC), Residential Suburban (RS), Residential Low-1 (RL-1), and Residential Low-4 (RL-4). JE 8A. Beginning at the northern portion of the Redevelopment Area and moving from west to east, south of the CSX railroad and approximately one block south of US 17, the land uses designated on the FLUM are HIC, CAC, and HIC. Moving southward and east of Snively Avenue, the land use designation for a triangular portion of land is BPC-2. The land use designation adjacent to and immediately south of the BPC-2 designation and east of Snively Avenue is designated as IND. The IND designation covers the land in a southerly direction until Snively Avenue intersects with Croton Road. The land to the east and adjacent to the BPC-2 and IND designations is designated as RL-1. There is a small portion of land near Shell and Croton Roads at the southern boundary of the Redevelopment Area designated as Residential Suburban (RS). (The RS designation continues to the east outside of the Redevelopment Area. Lake Lulu is to the east of the eastern RL-1 and RS designations.) There is also land designated as RL-1 west of Snively Avenue, bisected by Unnamed Street, extending west of Wahneta Canal and south-southwest of the Snively Elementary School/Snively-Brooks Park area, to the southwestern boundary of the Redevelopment Area.6 The Snively Elementary School and the Snively-Brooks Park are located in the INST-1 land use designation.7 JE 8A. Approximately 150 children walk to and from this elementary school (with another 60 to middle and high schools outside the Redevelopment Area), utilizing the sidewalk bordering the western portion of Snively Avenue. The majority of the children attending the elementary school reside in the RL-4 designated area (mainly between 1st and 9th Streets). Mr. Smith agreed that the elementary school was in close proximity to the Subject Property. Mr. Smith testified that after meetings with the ECRA, he moved the fence in front of the Subject Property and business back ten feet so that the children could have more room to walk down the street. He also instructed his drivers of big trucks and heavy equipment not to enter the Subject Property during times when the children are going to and from school. There are several school crossings, crossing Snively Avenue. There is a bus stop at 5th Street and Snively Avenue for children attending middle and high school. JE 8A at "6". There are also bus stops on 7th Street and in front of the elementary school. JE 8A at "5" and "7". Except for the residential portions of the CAC and BPC-2 areas, the primary residential area of the Redevelopment Area is generally bounded by US 17 and 1st Street on the north, the Wahneta Canal on the west, and to just north of Snively Elementary School and 9th Street on the south. JE 8A; EE 2, Plan at 6 and Figure 2. The Eloise Community Redevelopment Area Uses 1. In General The Redevelopment Area, for at least the last 40 years, has supported a wide variety of industrial, commercial, institutional, and residential uses. Mr. Brooks and Mr. Smith testified that the Redevelopment Area has supported these mixed uses and has historically been defined by the interrelationship of these various uses with the predominant industrial activities within its boundaries. In the past, the established residential area (RL-4) was once a successful working-class neighborhood which primarily provided homes to those workers who were employed in the citrus plants located within the industrial classified areas. That residential area is now blighted and provides housing for low and moderate income families. Though well established, the RL-4 residential area contains a substantial number of vacant lots within that residential designated area. 2. Redevelopment Area Problems and Redevelopment During the early 1980’s, Eloise was a troubled community, suffering, for example, from theft and vandalism. The community had difficulty finding minority contractors willing to work at Phoenix because of the problems associated with the community. By the early 1990s, the residential area of the Redevelopment Area had deteriorated to such an extent that the Housing and Neighborhood Development Division (HND), an agency of the County, became actively involved in the redevelopment of the community. In 1992, the Eloise Neighborhood Association was formed. In 1996, a Neighborhood Revitalization/Redevelopment Plan was commissioned by HND. This plan was prepared by County staff. Also in 1996, the HND and the Eloise Neighborhood Association prepared the Eloise Neighborhood Revitalization/Redevelopment Plan, which “focused on the 138 acres generally bounded by the CSX Railroad on the east, the railroad and US 17 on the north, the Wahneta Canal on the west, to just south of the Snively Elementary School. Its recommendations included improved social services, land use changes, housing programs and infrastructure improvements.” In 1998, a Declaration of Slum and Blight was adopted by the Board through Resolutions Nos. 98-08 and 98-66, which, respectively, made a finding of blighting conditions in Eloise and adopted a redevelopment plan for Eloise. As a result, the ERCA was created pursuant to Section 163.356, Florida Statutes, to rehabilitate, conserve, and/or redevelop the Redevelopment Area. In 2000, the Board, pursuant to Section 163.360, Florida Statutes, adopted Ordinance No. 00-33, approving of the Eloise Redevelopment Plan as the Community Development Plan for the Redevelopment Area. It was the purpose and intent of the Board that the Eloise Redevelopment Plan be implemented in the Redevelopment Area. The Board made numerous findings in Ordinance No. 00- 33 including a determination that “[t]he Plan conforms to the general plan of the county as a whole” and that “[t]he Plan conforms to the Polk County Comprehensive Plan.” The Board also determined that “[t]he need for housing accommodations has increased in the area.” The Eloise Redevelopment Plan has not been adopted as part of the County's Comprehensive Plan. Thus, the Plan Amendment need not be consistent with the Eloise Redevelopment Plan to be “in compliance.” The May 2000, Eloise Redevelopment Plan describes the then existing ownership patterns such that “[t]he existing Eloise residential neighborhood between 1st and 9th Streets is subdivided into platted, fifty-foot wide lots. Most are 100-125 feet in depth. Lots along 9th Street abutting the school are platted as 70-foot wide lots. The ownership pattern in this area typically follows the lot lines. Most are individually owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly relevant here, it is also stated: “Lots 33 and 34 [part of the Subject Property] are each approximately 9 acres and are owned by Alterman Transport Corporation (ATC). The site is currently used for storage and, in the past, was zoned GI [General Industrial] and R-3. In the current Comprehensive Plan, however, this site is planned for Residential Suburban (RS) to be compatible with the surrounding neighborhood. The trucks are a legal-nonconforming use and may continue but any future development shall comply with the RS land use district.” EE 2, Plan at 16. The Eloise Redevelopment Plan also recommended that the Alterman Trucking Annex, also known as the Alterman Transportation Corporation, be developed for up to 75 single- family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of (The Subject Property was also formerly known as the Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.) In 2001, the County also changed the classification of the Subject Property from RS to RL-4 pursuant to Ordinance No. 01-45. See Finding of Fact 54. In addition to the creation of the ECRA, the County, through the HND, has attempted to revitalize the Redevelopment Area. Since 1993, HND has spent approximately $4.4 million dollars in these efforts. These funds have been spent on community policing ($424,790), slum and blight clearing ($47,428), housing rehabilitation ($186,807), parks and recreation ($149,982), water/sewer/drainage ($1,094,677), construction of the Eloise Community Center ($2,147,037), replacement of five homes ($314,138), and rehabilitation and repair of five homes ($46,819). As part of the Eloise Redevelopment Plan, many additional infrastructure improvements have been proposed, such as fire hydrants, turnaround areas for emergency vehicles and fire trucks, storm water installation, and sewer for the Residential Area of Eloise between 1st and 9th Streets and between Snively Avenue and the canal. The proposed projects for water, sewer, and storm water include 350 parcels to be served in this Residential Area. The construction of the Eloise Community Center has been the most costly expense in these efforts. After the County obtained this parcel from Phoenix Industries, it was discovered that the land was contaminated and more than $400,000 was spent on environmental clean-up costs for this property. The ECRA and the County have made progress in the area of code enforcement. Furthermore, crime has been cut in half and a drinking ordinance was passed by the County upon request of the ECRA and the Eloise Neighborhood Association. Eloise, with the County's cooperation, also initiated a Community- Oriented Policing program. There has been an increase in construction in the area, both on the residential and commercial/industrial side of Snively Avenue. The ECRA has also been working on a beautification strategy. For example, Phoenix spent $35,000 for landscaping, removing barbed wire, installing an irrigation system, and installing an attractive entrance to its facilities. Further beautification is planned for other areas along Snively Avenue, the main gateway to the area from US 17, and improvements to Snively Elementary School, for which the ECRA allocated up to $10,000. Currently, the socio-economic status of the families living within the residential portion of the Redevelopment Area is low and moderate income. But, as noted above, the area is being revitalized, including the addition of several Habitat for Humanity-built homes. Mr. Bachman confirmed that "[t]hings have changed now," including the employment of minorities and an increase in diversity at the elementary school. The Subject Property The Subject Property is located within the Redevelopment Area on the southwest side of Snively Avenue between 5th and 6th Streets. JE 8A. The Subject Property consists of approximately 9.9 acres, which is part of a 20-acre parcel owned by Mr. Smith. Tr. 261. (There is a vacant parcel not subject to the Plan Amendment, also acquired by Mr. Smith at the same time, adjacent to and west of the Subject Property, which appears to be within a flood zone area. JE 8A at “46”. The canal serves as the western border for this parcel.) Currently, there are ten to eleven residences along 5th Street, north of the Subject Property, and ten residences between the Subject Property and 6th Street, south of the Subject Property. See EE 7. There does not appear to be any appreciable distance between these residences and the Subject Property. Aside from the residential homes north and south of the Subject Property, there are also retail, auto repair, and other commercial uses which border on Snively Avenue. See, e.g., IE 1, aerial with 15 photographs; JE 3 at 5 of 27; Tr. 295-297; JE 8A. According to Mr. Smith, he requested the land use designation change to cure the non-conforming status of the Subject Property. All operations on the Subject Property had ceased for less than one year when he purchased the Subject Property. The Subject Property has historically and, except as noted above, continuously been utilized since the late 1960’s for industrial-type purposes, including motor freight activities which include loading and unloading citrus trucks, racking, truck repair, and truck weighing. These activities would not necessarily be restricted to an Industrial land use designation;8 the current use of the Subject Property as a motor freight terminal is also permitted within a BPC-2 land use designation. There has been no substantial change in the use of the Subject Property since 1980.9 Mr. Brooks testified that while he was growing up in Eloise, the Subject Property "was primarily truck parking for the citrus plant." He "worked for the scale house back in the late 60's before the plant went down and all [they] did was like park the trucks there for unloading and which would be in the citrus plant itself." However, he never knew the Subject Property "to be an industrial park itself," during the late 1960's. Historically, Mr. Snively, who died in 1957, owned several different businesses across the street from the Subject Property, including a fresh fruit packing house, JE 8A at "20", juice plant, JE 8A at "21", concentrate plant, JE 8A at “22”. The plant closed in 1969 or 1970. In and around 1972, during the summer, Mr. Smith worked for the Snively operation when they parked their citrus trucks on the Subject Property and then for the Alterman operation on-site when he loaded and unloaded trucks. Under the County's zoning ordinance adopted in November 1970, the Subject Property, along with the Phoenix Industries Property, its adjoining property, and the property southeast and adjacent to Snively Elementary School, were zoned as General Industrial (GI). Like the Subject Property, this industrial area is located east and immediately adjacent to property classified as residential (RS) (although the property is presently undeveloped). By an amendment to the FLUM adopted by Ordinance No. 91-06 on April 19, 1991, the Subject Property was classified as RS, rather than IND.10 At the same time, the Phoenix Industries Property, its adjoining property, and the property immediately adjacent to Snively Elementary all maintained their Industrial classification. The May 2000 Eloise Redevelopment Plan recommended, in part, consideration of "a plan amendment from RS to RL-4 for the properties north of Snively [Elementary] School and west of Snively Avenue" which included the Subject Property. EE 2, Plan at 38. On July 11, 2001, the County adopted Ordinance No. 01- 45, which changed the land use designation on the FLUM from RS to RL-4, for all of the property (including the Subject Property) between 1st Street and just south of 9th Street and between Snively Avenue on the east and the canal on the west. EE 1 at map page 2. The land use designation for the Snively- Brooks Park was also changed to INST-1 from IND. Other land use designations were changed pursuant to Ordinance No. 01-45. EE 1. See also Tr. 130-136, 139-140. The FLUM changes implemented strategies set forth in the Eloise Redevelopment Plan and adopted recommended changes to the FLUM. See Tr. 163. The RL-4 designated property is located immediately adjacent to and on the north, west, and south sides of the Subject Property. JE 8A. Across Snively Avenue from the RL-4 property is the industrial area which was previously used in the citrus industry and which is currently used by Phoenix warehousing and trucking activities. JE 8A. "The purpose of the [RL-4] District is to provide areas for low density residential needs of residents in urban areas who desire areas with smaller lots, a minimum of 6,000 square feet." § 204A7., Land Development Code (LDC). The County and Mr. Smith contend that the Subject Property was mistakenly or erroneously classified as RS in 1991 and RL-4 in 2001. However, the preponderance of the evidence indicates that no mistake or error was made in 1991 or 2001 based, in part, on the chronology of events regarding the land use changes mentioned above. Merle H. Bishop, A.I.C.P., the current Director of Growth Management for the County, has been an employee of Polk County for 30 years, and was involved in the adoption of the original Comprehensive Plan in 1991. In preparing land use designations for the initial FLUM, he used aerial photographs primarily and the existing zoning at the time. Since that time, he and staff have discovered errors in mapping the land uses of property, including industrial. Typically, the errors have been corrected when presented to the Board for comprehensive plan changes to the FLUM. Mr. Bishop testified that pursuant to a policy in the Comprehensive Plan, the County desired to “recognize industrial uses.” Tr. 444-445. According to Mr. Bishop, an active industrial use would only be eliminated with good reason, i.e., such as it was a remote and isolated industrial use. Tr. 455. According to Mr. Bishop, the Subject Property, the southern parcel by the elementary school, and the Phoenix Industries property made up a major industrial use area. Tr. 456. Although Mr. Bishop stated the Subject Property "would have been" designated as Industrial in 1991 given its use, Tr. 511-512, Mr. Bishop could not "say whether or not [they] missed this on the map when [they] mapped it. I mean it appears -- I mean, when you look at the map, it's very general; or whether there was an intention to not map it." Tr. 483-484. Mr. Bishop did not testify persuasively that the Board, in 1991 or in 2001, erroneously designated the Subject Property as RS and then RL-4. The February 2, 2005, staff report, mentions the applicant’s contention that a mapping error occurred, but implicitly rejects this argument. JE 3 at 11 and 12 of 27. Staff stated: The site has recently changed ownership and the current property owner wants the non-conforming uses to become conforming uses. Recognizing the existing use will enable to [sic] owner to continue utilizing the site as it has historically been used and allow the redevelopment of the property as needed. In addition, the use has remained the same since the early 1970’s according to the applicant. The applicant also states that Policy 2.113-A2 of the Comprehensive Plan states that the [FLUM] Series shall include all major existing industrial areas; since the property has historically been used for industrial uses, the recognition of the site will correct the County’s mapping error. On the other hand, staff and the ECRA has [sic] indicated, for this and the prior requested land use change (CPA 04A-05), that the impacts to the residential neighborhood is [sic] more significant than the redevelopment of the site for commercial or industrial uses. The County worked with the residents, business owners, and land owners in the area to develop a redevelopment plan, in which, the site was intentionally made non-conforming by the community and the County in order to create separation between the industrial uses across the street from the residential uses on the west side of CR 655 (Rifle Range Road [sic]). Therefore, the applicant’s primary argument for recognizing the historical use is not relevant. JE 3 at 12 of 27. Mr. Bishop was not directly involved with the staff review although he participated at the pubic hearing before the Board. If the Subject Property were vacant, Mr. Bishop would not recommend an Industrial land use designation. He supports the land use change because of the existing (at the time) use of the Subject Property and to have the property be a conforming use. Tr. 506-507. The history of industrial-type use on both the Subject Property and other sites in the Redevelopment Area has been a subject of significant concern. Although no tests have been conducted to determine whether the Subject Property is contaminated, Dr. Cherry testified that as a result of its long industrial use, it is likely that contamination will be present, which would render its use for residential purposes not realistic. Tr. 221-223. Since the subject property is located near the property upon which the community center was constructed and both parcels were part of a larger industrial area and utilized for similar uses, Dr. Cherry suspects that the Subject Property will likewise be contaminated. Tr. 222. If the Subject Property is contaminated, it is Dr. Cherry's opinion that there will be insufficient funds to clean the area. Tr. 219. Consequently, Dr. Cherry opined that if the Subject Property could not be used for industrial purposes, it would likely be unable to be developed as residential and most likely would be abandoned, thereby becoming a “brownfield.” This would significantly burden the redevelopment efforts in the Redevelopment Area. However, the Subject Property has not been declared a “brownfield” and no finding can be made regarding the environmental condition of the Subject Property based upon the record of this case. The Small Scale Plan Amendment Application and Adoption On or about August 10, 2004, Mr. Smith filed an application requesting the County to re-designate the land use of the Subject Property from RL-4 to IND. JE 2. According to the “Narrative Summary,” “[t]his change will provide for the continuation of historical motor freight uses and provide for optional industrial uses.” Id. On January 4, 2005, the County published Notice in a newspaper of local circulation providing that the Board would consider the adoption of the Plan Amendment at its meeting of January 19, 2005. At the January 19, 2005, meeting, the County tabled consideration of the Plan Amendment to its meeting of February 2, 2005. The Polk County Planning Division Staff report is dated February 2, 2005. This report contains a detailed analysis of the application. The Planning Division recommended denial of the Plan Amendment. (The report indicates that the Planning Commission recommended approval (3 to 1 vote) of the Plan Amendment.) The Planning Division found, in part, that "the proposed development request IS NOT compatible with surrounding land uses and general character of the area of the residential uses on the southern side of Snively Avenue (CR 655) and IS NOT consistent with the Polk County Comprehensive Plan for a land use change to Industrial (IND) because it would likely intrude into the existing residential neighborhood, allow for more intensive uses to be developed next to existing homes, and not be consistent with the approved Eloise Redevelopment Plan." (Emphasis is original). On February 2, 2005, the Board voted to adopt the Plan Amendment by the adoption of Ordinance No. 05-004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order concluding that the Plan Amendment adopted by Polk County Ordinance No. 05-004 is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2005.
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 30th day of June, 2011.
