The Issue The issue in this proceeding was whether the Petition to Establish the Harmony Ranch Community Development District (Petition) meets the applicable criteria in chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1.
The Issue Whether Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Each of the four Petitioners owns property in Escambia County and submitted written or oral comments regarding the Plan Amendment to the County between the date the Plan Amendment was transmitted to the Department of Economic Opportunity (“Department”) and the date it was adopted by the County Commission. Escambia County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive land use plan, pursuant to section 163.3167, Florida Statutes (2019). Existing Conditions There are approximately 610 square miles of land in the unincorporated County. Of that, almost half (48.75 percent) is designated for agricultural use. Escambia County can be roughly described as an hourglass shape. The northern portion is dominated by agricultural uses and is overwhelmingly designated as Agricultural on the County’s 2030 Future Land Use Map (“FLUM”). The Agricultural (“AG”) land use category allows a maximum residential density of one dwelling unit per 20 acres (“1du/20 acres”). In contrast, the southern portion has a much more urban development form. The central urban core, located west of the City of Pensacola, is designated as Mixed-Use Urban, with a sprinkling of Industrial designations, and Commercial designations along the major thoroughfares. Radiating out to the north and west of the urban core is a swath of Mixed-Use Suburban, with some areas designated for Recreation, and Commercial along major thoroughfares. Farther west are lands designated for Conservation, which extend to the Perdido River, the County’s western boundary. The “neck” of the hourglass serves as a transition between the agricultural northern portion and the urban and suburban southern portion of the County. The dominant future land use categories in this area are Agriculture, Mixed-Use Suburban, and a category critical to this case, Rural Community, or “RC.” Rural Communities According to the Comprehensive Plan (“the Plan” or “the existing Plan”), the RC FLUM category is: ntended to recognize existing residential development and neighborhood serving nonresidential activity through a compact development pattern that serves the rural and agricultural areas of Escambia County. The designation was applied to pockets of mixed residential and commercial developments that served the agricultural areas in existence when the Plan was originally adopted. The FLUM depicts roughly 20 RCs in the County, almost all of which are located in the northern portion. The uses allowed in RC are agriculture, silviculture, residential, recreational facilities, public and civic, and compact traditional neighborhood supportive commercial. Development is limited to a residential density of two units per acre (“2du/acre”), but does not impose a cap on the intensity of commercial development. The County’s policy in establishing and maintaining RCs is best reflected in Goal FLU 3 and its implementing Objective and Policies, which read, as follows: GOAL FLU 3 Rural Strategies Escambia County will promote rural strategies, including protecting agriculture, silviculture, and related activities, protecting and preserving natural resources and guiding new development toward existing rural communities. OBJ FLU 3.1 Rural Development All new development within the rural areas, including commercial development, that is compatible with the protection and preservation of rural areas[,] will be directed to existing rural communities. Policies FLU 3.1.1 Infrastructure Expenditures. Escambia County will limit the expenditure of public funds for infrastructure improvements or extensions that would increase the capacity of those facilities beyond that necessary to support the densities and intensities of use established by this plan unless such expenditures are necessary to implement other policies of this plan. FLU 3.1.2 Water Facility Extensions. Escambia County will coordinate with potable water providers on any extensions of potable water facilities in the rural area. FLU 3.1.3 FLUM Amendments. During consideration of FLUM amendments, Escambia County will consider the impacts of increased residential densities to the agriculture and silviculture industries as well as public facility maintenance and operation expenditures (i.e., roads, water, sewer, schools) needed to serve the proposed development. FLU 3.1.4 Rezoning. Escambia County will protect agriculture and the rural lifestyle of northern Escambia County by permitting re-zonings to districts, allowing for higher residential densities in the RC future land use category. FLU 3.1.5 New Rural Communities. To protect silviculture, agriculture, and agriculture-related activities, Escambia County will not support the establishment of new rural communities. Designated Sector Area Plan The Designated Sector Area Plan (“DSAP”) was created and adopted in the Plan in 2011, and comprises approximately 15,000 acres in the transitional area between the urban and suburban south County and rural and agricultural north County. The DSAP plans for the location of traditional urban neighborhoods, new suburban and conservation neighborhoods, and regional employment districts, and includes the location of existing and planned public facilities to serve the new development. As noted by the County’s Development Director, Horace Jones, in August 2018, the primary purpose of the DSAP was to “prevent urban sprawl into the agrarian and rural communities . . . so that we can’t continue to intrude upon those prime farmland areas, upon those large parcels of land in the AG category.” At the final hearing, Mr. Jones several times confirmed that the purpose of the DSAP was to prevent urban sprawl into the agricultural areas of the County. As noted by the County’s Senior Urban Planner, Juan Lemos, in August 2018, “We haven’t gotten to that point where we need those agricultural lands to build houses for people . . . or to develop businesses[.]” At final hearing, Mr. Lemos confirmed that his opinion on that issue has not changed.3/ The Plan Amendment The Plan Amendment, plainly and simply, deletes FLU 3.1.5 in its entirety. The Plan Amendment represents a policy change by the County to allow consideration of plan amendments establishing new RCs in the County. Petitioners’ Challenges Petitioners allege the Plan Amendment is not “in compliance” because it: (1) creates internal inconsistencies in the existing Plan; (2) is not based on relevant and appropriate data and an analysis by the local government; and (3) fails to discourage urban sprawl. Internal Inconsistencies Petitioners allege the Plan Amendment is inconsistent with FLU Goal 3, “Rural Strategies,” and Objective 3.1, “Rural Development.” The Goal provides that, in rural areas, the County will “guide[] new development toward existing [RCs],” and the Objective provides that “[a]ll new development within rural areas . . . will be directed to existing [RCs].” The language of both the Goal and Objective is clear and unambiguous. Establishment of new RCs in the rural areas of the County will not guide new development to existing RCs, and will be contrary to both the Goal and the Objective. However, the Plan Amendment neither establishes new RCs nor creates a policy supporting the establishment of new RCs. It merely deletes a policy expressing the County’s intent not to support new RCs. Absent an express policy in the County’s existing Plan, the Plan Amendment is not internally inconsistent with FLU Goal 3 and Objective 3.1.4/ The preponderance of the evidence does not support a finding that the Plan Amendment creates internal inconsistencies in the existing Plan. Data and Analysis The County agenda items for transmittal and adoption hearings on the Plan Amendment were devoid of any supporting data or analysis. The County’s transmittal package to the Department and other reviewing agencies contained only the ordinance adopting the Plan Amendment accompanied by a cover letter. The Plan Amendment reflects a policy change by the County to consider allowing establishment of new RCs. The Plan Amendment does not change the land use of any particular parcel of land in the County, and does not change the uses allowed, or the density or intensity of development allowed thereon. The Plan Amendment does not, in and of itself, require the expenditure of public funds, nor does it immediately impact the provision of public services in the rural areas of the County. Whether the County will establish any new RCs in the rural areas of the County depends on whether a property owner proposes one in the future, and whether the County approves said proposal, after consideration of all applicable Plan policies. The agenda items for both the transmittal and adoption hearings on the Plan Amendment contain the following as background for the Plan Amendment: The Escambia County Board of County Commissioners finds that an amendment to its Comprehensive Plan is necessary and appropriate based on the changing needs within the County; and it is in the best interest of the health, safety, and welfare of the County to amend its Comprehensive Plan. (emphasis added). At the final hearing, the County offered no data to establish the “changing needs within the County” referenced in the background statement. In effect, the County offered no data or analysis at final hearing to support the Plan Amendment. Mr. Jones testified that “there were some discussions [among Commissioners] on why they were adopting this and why they felt it was necessary.” He stated, “the record reflects that they stated that basically it was to give someone an opportunity for them to make a request to make an application [for RC].” Mr. Jones’s hearsay testimony was not corroborated by any non-hearsay evidence. In a series of leading questions, Mr. Jones affirmed that the County Commissioners “found that FLU 3.1.5 restricted the ability of landowners to even request a change to the rural community future land use category,” and “found that the [Policy] restricted the ability of landowners to construct residences due to the density limitations of only one dwelling unit per 20 acres.” Mr. Jones’s testimony was neither credible nor persuasive. Mr. Jones’s explanation of the reason for the Plan Amendment was undermined by his subsequent testimony that the Commission had the authority to approve a plan amendment, changing the designation of property from AG to RC, even without repealing Policy FLU 3.1.5. If that is true, there is absolutely no basis for the Plan Amendment.5/ In a series of leading questions from his counsel, Mr. Jones agreed that “this text amendment was necessary to allow . . . existing residential areas [within AG] to change to RC in order to come into the appropriate future land use category” and “determined that there were areas within the agricultural future land use designation which would benefit from the ability to change to a rural community future land use category.” However, Respondent offered no evidence of the location of any such residential areas outside of existing RC communities, or an explanation of why the assigned AG designation was inappropriate. Nor did Mr. Jones expound on the benefit the Plan Amendment would allegedly bestow on property in the agricultural areas. This testimony was conclusory and lacked foundation. Mr. Jones’s testimony was further undermined by his refusal to speak for the Commission when questioned by the Petitioners regarding the Commission’s reasons for the Plan Amendment, contrasted with his eager agreement with leading statements from his counsel offering reasons for the Plan Amendment. On redirect, when Mr. Jones responded to Petitioner Rogers’s question regarding the County’s reasons for adopting the Plan Amendment, he referred generally to “economic reasons” and vaguely referred to “other public reasons as she previously stated,” deferring to his counsel’s leading questions. (emphasis added). Mr. Jones’s testimony that the Commission’s justification for the Plan Amendment is to allow property owners to apply for a change is unreliable hearsay evidence, later contradicted by his own testimony that the Commission could have approved a land use amendment to that effect prior to adoption of the instant Plan Amendment. Mr. Jones’s testimony is rejected as unreliable and unpersuasive. The preponderance of the evidence supports a finding that the Plan Amendment is not supported by any relevant data or an analysis thereof. Urban Sprawl Petitioners’ final contention is that the Plan Amendment fails to discourage urban sprawl as required by section 163.3177(6)(a)9. That section lists 13 “primary indicators” that a plan amendment does not discourage the proliferation of urban sprawl. Of those, Petitioners allege the Plan Amendment meets the following primary indicators: Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are suitable for development. Promotes, allows, or designated urban development in radial, strip, isolated, or ribbon patterns generally emanating from existing urban developments. * * * Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. Fails to maximize use of existing public facilities and services. * * * Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. * * * Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. In support of this allegation, Petitioners presented the testimony of Christian Wagley, who was accepted as an expert in sustainable development and environmental planning. Mr. Wagley testified that the Plan Amendment will allow a forty-fold increase in density of development allowed in the largely rural, agricultural northern county area (i.e., the increase in density between that allowed in the Agricultural category: 1du/20 acres--and that allowed in RC: 2du/acre), and significantly diminish available Agricultural lands and increase demand for urban services outside the urban area. Mr. Wagley’s testimony is based on the assumption that the County will actually approve, in the future, new RCs in the largely agricultural northern portion of the County. That assumption is insufficient to form the basis of a finding of fact in the instant case. The Plan Amendment does not convert any Agricultural lands to the RC category. It does not “promote, allow, or designate” urban development in the rural areas of the County; “promote, allow, or designate” development in a radial, strip, or isolated pattern; fail to maximize use of existing public facilities and services, or allow for land use patterns which disproportionately increase the cost of providing and maintaining public facilities and services; fail to provide a clear separation between rural and urban uses; or discourage or inhibit infill development or redevelopment. Petitioners introduced a map depicting the United States Department of Agriculture prime soils overlayed on the Agriculturally-designated lands in the County. While this map demonstrates that prime farmland is plentiful in the northern agricultural area of the County, it does not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. The preponderance of the evidence does not support a finding that the Plan Amendment fails to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is not “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of January, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2020.
The Issue The issues to be addressed are whether the Petition to establish the District meets the criteria set forth in Section 190.005, Florida Statutes, and whether the hearing process has been conducted in accordance with the requirements of Section 190.005, Florida Statutes, and Florida Administrative Code Chapter 42-1.
The Issue At "issue" in this hearing was a petition to amend Rule 42X-1, Florida Administrative Code, to expand the boundaries of the Fiddler's Creek Community Development District (CDD) by approximately 137 acres and simultaneously contract the boundaries by approximately 137 acres (for approximately no net change in overall total acreage), and to change its name by adding the numeral 1.
The Issue Whether the Florida Land and Water Adjudicatory Commission (the “Commission”) should grant the Petition of the Tolomato Community Development District ("Tolomato") and the Split Pine Community Development District ("Split Pine") (collectively, the "Districts" or "Petitioners") to merge the two community development districts pursuant to Section 190.046(3), Florida Statutes? Concomitantly, whether the Commission should adopt a rule pursuant to Section 190.005, Florida Statutes, that establishes a single community development district with boundaries that incorporate the areas of Tolomato and Split Pine merged into the single district to be known as the Tolomato Community Development District (the "Merged District")?
Conclusions Pursuant to Section 190.005(1)(d), Florida Statutes, the initial two sessions of a local public hearing were conducted on July 7, 2009, before David M. Maloney, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), at the Ponte Vedra Beach Library Community Room, 101 Library Boulevard, Ponte Vedra, Florida 32082 and the Baymeadows Residence Inn Marriott, 8365 Dix Ellis Trails, Jacksonville, Florida 32256. Two additional sessions were held on July 27, 2009, at the same locations.
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Brooks of Bonita Springs Community Development District.
The Issue The issue in this proceeding is whether the petition to establish the Sampson Creek Community Development District meets the applicable criteria set forth in Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code.
Findings Of Fact Petitioner is seeking the adoption of a rule by the Commission to establish the Sampson Creek Community Development District. The proposed District consists of approximately 1,015 acres located within unincorporated St. Johns County, Florida. There are two out-parcels, totaling 3.7 acres, within the areas to be included in the District. No adverse impact on these out parcels is expected from the establishment of the district. The estimated cost of the infrastructure facilities and services which are presently expected to be provided to the lands within the District was included in the Petition. Petitioner's Composite Exhibit 1 was identified for the record as a copy of the Petition and its exhibits as filed with the Commission. Witnesses Maier, Walters, Boring, and Fishkind each stated that he had reviewed portions of the contents of the petition and its attachments and affirmed the petitions findings. Witness Maier testified that the Petitioner has written consent to establish the District from the owners of one hundred percent of the real property located within the lands to be included in the District. Witness Maier also presented deeds for parcels of land within the boundaries of the proposed District which have been acquired by the Petitioner or its subsidiaries, as well as consent forms from the Petitioner's subsidiaries. The Petition and its attached exhibits are true and correct, with the addition of the deeds showing land ownership and owners' consent as specified above. Witnesses Walters and Fishkind reviewed the proposed District in light of the requirements of the State Comprehensive Plan, Chapter 187, Florida Statutes. Witness Walters also reviewed the proposed District in light of the requirements of the St. Johns County Comprehensive Plan. From a planning and economic perspective, four subjects, subject 16, 18, 21, and 26, of the State Comprehensive Plan apply directly to the establishment of the proposed District as do the policies supporting those subjects. Subject 16, titled Land Use, of the State Comprehensive Plan recognizes the importance of locating development in areas with the fiscal ability and service capacity to accommodate growth. The proposed District will: have the fiscal capability to provide a wide range of services and facilities to the population in the designated growth area; help provide infrastructure to development the County, thereby helping limit unintended, unplanned sprawl; facilitate the delivery of infrastructure and services to assist in fulfilling the community plan. Subject 18, titled Public Facilities of the State Comprehensive Plan provides that the state shall protect substantial investments in public facilities and plan for and finance new facilities to serve residents in a timely, orderly and efficient manner. The proposed District will be consistent with this element because the District will: plan and finance the infrastructure systems and facilities needed for the development of lands within the District in a timely, orderly, and efficient manner; provide the infrastructure systems and facilities within the District with the landowners and residents benefiting from the new public facilities bearing the costs associated with construction, operation, and maintenance of the facilities; act in a type of 'infrastructure partnership' with St. Johns County; have financial self-sufficiency through the use of special assessments, as well as user charges or fees, to provide public facilities; provide a consistent, innovative and fiscally sound alternative for financing public facilities by bringing the cost of managing and financing public facilities down to a level of government closest to its beneficiaries and connecting those who pay for facilities with those who directly benefit from those facilities and services; and be structured to assure secure revenue sources capable of meeting District responsibilities. Subject 21, titled Governmental Efficiency of the State Comprehensive Plan provides that governments shall economically and efficiently provide the amount and quality of services required by the public. The proposed District will be consistent with this element because the proposed District will: cooperate with other levels of Florida government, such as through entering into interlocal agreement to address maintenance issues for certain roads; be established under uniform general law standards as specified in Chapter 190, Florida Statutes; be professionally managed, financed, and governed by those whose property directly receives the benefits; not burden the general taxpayer with costs for services or facilities inside the District; and plan and implement cost efficient solutions for the required public infrastructure and assure delivery of selected services to residents. Subject 26, titled Plan Implementation of the State Comprehensive Plan, provides that systematic planning shall be integrated into all levels of government, with emphasis on intergovernmental coordination and citizen involvement. The proposed District is consistent with this element of the State Comprehensive Plan because: the proposed District will systematically plan for the construction, operation and maintenance of the public improvements and the community facilities authorized under Chapter 190, Florida Statutes, subject to and not inconsistent with the local government comprehensive plan and land development regulations; the District meetings are publicly advertised and are open to the public so that all District property owners and residents can be involved in planning for improvements; Section 189.415, Florida Statutes, requires the District to file and update public facilities reports with the County, which it may rely upon in any revisions to the local comprehensive plan. Based on the testimony and exhibits in the record, the proposed District will not be inconsistent with any applicable element or portion of the State Comprehensive Plan. Witness Walters testified that since St. Johns County has already found the development within the proposed District to be not inconsistent with the St. Johns County local comprehensive plan, the establishment of a community development district would not cause any inconsistency and would be in furtherance of four of the plan's policies, goals and objectives: Policy H.1.3.4 of the St. Johns County Comprehensive Plan states that 'DRI's planned unit subdivisions, and other large developments shall provide for the dedication of parks and open space to be generated by the development according to the level of service standards.' The proposed District will finance the construction of, and ultimately own and maintain, a community recreational facility. Goal J.1 of the St. Johns County Comprehensive Plan states that St. Johns County is to ensure the orderly and efficient provision of infrastructure facilities and services such as roads, utilities, recreation, and drainage. The proposed District will serve as an alternative provider of these infrastructure systems and services to meet the needs of the lands within its boundaries; Objective J.1.7 of the St. Johns County Comprehensive Plan states that the County shall manage fiscal resources to ensure the provision of needed infrastructure. The proposed District will provide the infrastructure facilities and services needed for its lands without burdening the fiscal resources of the County or impacting the bonding limits contained in Policy J.1.7.; Objective K.1.6 of the St. Johns County Comprehensive Plan calls for St. Johns County to work cooperatively with other units of government to address issues and concerns. The proposed District may be expected to enter into interlocal agreements with the County to provide certain enhanced maintenance. Additionally, over the long term, the establishment of the proposed District will provide another unit of local government in place and able to cooperate with the County on future issues and concerns. The State of Florida Department of Community Affairs also reviewed the petition to establish the proposed District and concluded that the petition was consistent with the local comprehensive plan. Based on the evidence in the record, the proposed District will not be inconsistent with any applicable element or portion of the local comprehensive plan, and will in fact further the goals provided. Most of the land in the proposed District is part of a planned community included in a Planned Unit Development (PUD) approval issued by St. Johns County. The PUD was approved on February 10, 1998. The PUD is found in St. Johns County Ordinance No. 98-7. Section 6 of the PUD Application, which is incorporated into Ordinance 98-7 by reference, explicitly states that a community development district will be established and requires the establishment of the District prior to the sale of the first lot within the development. Petitioner is developing all of the lands within the District as a single master-planned community. Witness Walters testified that functional interrelation means that each community purpose has a mutual reinforcing relationship with each of the community's other purposes. Each function requires a management capability, funding source and an understanding of the size of the community's needs, so as to handle the growth and development of the community. Each function must be designed to contribute to the development or the maintenance of the community. The size of the District as proposed is approximately 1,105 acres. From a planning perspective, this is a sufficient size to accommodate the basic infrastructure facilities and services typical of a functionally interrelated community. Compactness relates to the location in distance between the lands and land uses within a community. The community is sufficiently compact to be developed as a functionally inter-related community. The compact configuration of the lands will allow the District to provide for the installation and maintenance of its infrastructure facilities in a long-term cost efficient manner. The property is sufficiently contiguous when all parts of a project are either in actual contact or are close enough to allow the efficient design and use of infrastructure. The proposed District is sufficiently contiguous for planning purposes and for the purpose of district governance. The size of the proposed community within the District provides a sufficient economic base to absorb the debt costs and annual operating costs for the proposed District. There will be no economic disincentives to the provision of the infrastructure facilities contemplated. From planning, economics, engineering, and management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed as a single functionally interrelated community. It is presently intended that the District will participate in the construction or provision of certain infrastructure improvements as outlined in the petition. Installation and maintenance of infrastructure systems and services by the District is expected to be financed by bonds and repaid through the imposition of special assessments on benefited property within the District. Use of such assessments will ensure that the real property benefiting from District services is the same property which pays for them. Two types of alternatives to the use of the proposed District were identified. First, the County might provide facilities and services from its general fund or through a MSTU. Second, facilities and services might be provided by some private means, without public bidding, with maintenance delegated to a homeowners association (HOA). The District exceeds the available alternatives at focusing attention to when and where and how the next system of infrastructure will be required. This results in a full utilization of existing facilities before new facilities are constructed and reduces the delivered cost to the citizens being served. Only a community development district allows for the independent financing, administration, operations, and maintenance of the land within such a district. Only a community development district allows district residents to completely control the district. All of the other alternatives do not have these characteristics. From an engineering perspective, the proposed District is the best alternative to provide the proposed community development services and facilities because it is a long-term stable, perpetual entity capable of maintaining the facilities over their expected life. From planning, economic, engineering, and special district management perspectives, the proposed District is the best alternative available for delivering community development services and facilities to the are that will be served by the District. The services and facilities proposed to be provided by the District are not incompatible with uses and existing local and regional facilities and services. The District's facilities and services within the proposed boundaries will not duplicate any existing regional services or facilities which are provided to the lands within the District by another entity. None of the proposed services or facilities are presently being provided by another entity for the lands to be included within the District. Therefore, the community development services and facilities of the proposed district will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. As cited previously, from planning, economics, engineering, and special district management perspectives, the area of land to be included in the proposed District is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developed and become a functionally interrelated community. The lands to be included within the proposed District have a need for the basic infrastructure being provided. From an engineering perspective, the area within the proposed District is also large enough to support a staff necessary to operate and maintain the proposed infrastructure systems and facilities. Based upon these characteristics, the proposed District is expected to be financially viable. From planning, engineering, economic, and management perspectives, the area that will be served by the intended District is amenable to separate special-district government. Chapter 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, impose specific requirements regarding the petition and other information to be submitted to the Commission. Section 190.005(1)(a), Florida Statutes, requires the petition to contain a metes and bounds description of the external boundaries of the District. Petitioner's Composite Exhibit 1 contains such a description. Section 190.005(1)(a)1, Florida Statutes, also requires a description of any real property within the external boundaries which is to be excluded from the District and the last known address of the owners of such properties. Petitioner's Composite Exhibit 1 contains the required information. Section 190.005(1)(a), Florida Statutes, requires that the petition contain the proposed timetable for the construction of any district services and the estimated construction costs for those services as well as the designation of the future general distribution, location, and extent of public and private land uses proposed for the area by the future land use element of the adopted local government comprehensive plan. Petitioner's Composite Exhibit 1 contains this information. Section 190.005(1)(a), Florida Statutes, requires the petition to contain written consent to establishment of the District by the owners of one-hundred percent of the real property to be included within the proposed District. Petitioner's Composite Exhibit 1 contains this information which was supplemented by Petitioner at hearing, as it or its subsidiaries acquired title to the lands proposed to be included within the District. Sections 190.005 and 190.006, Florida Statutes, require that each member of a board of supervisors be a resident of Florida and a citizen of the United States. The proposed board members meet these criteria. Section 109.005(1)(a), Florida Statutes, requires the petition to include a Statement of Estimated Regulatory Costs (SERC), which meets the requirements of Section 120.541, Florida Statutes. The petition contains a SERC. It meets all requirements of Section 120.541, Florida Statutes. The SERC contains an estimate of the costs and benefits to all persons directly affected by the proposed rule to establish the District -- the State of Florida and its citizens, the country and its citizens, Petitioner, and consumers. Beyond administrative costs related to rule adoption, the State and its citizens will only incur minimal costs from establishing the District. These costs are related to the incremental costs to various agencies of reviewing one additional local government report. The proposed District will require no subsidies from the State. Benefits will include improved planning and coordination of development, which is difficult to quantify but is nonetheless substantial. Administrative costs incurred by the County related to rule adoption should be minimal. Benefits to the County will include improved planning and coordination of development, without incurring any administrative or maintenance burden for facilities and services within the proposed District except for those it chooses to accept. Consumers will pay non-ad valorem or special assessments for certain facilities. Location within the District is voluntary. Generally, District financing will be less expensive than maintenance through a property owners' association or capital improvements financed through developer loans. Benefits to consumers in the area within the community development district will include a higher level of public services and amenities than might otherwise be available, completion of District-sponsored improvements to the area on a timely basis, and a larger share of direct control over community development services and facilities within the area. Petitioner has complied with the provisions of Section 190.005(1)(b), Florida Statutes, in that St. Johns County was paid the requisite filing fees. Section 190.005(1)(d), Florida Statutes, requires the Petitioner to publish notice of the local public hearing in a newspaper of general circulation in St. Johns County for four consecutive weeks prior to the hearing. The notice was published in a newspaper of general paid circulation in St. Johns County (the St. Augustine Record) for four consecutive weeks on March 13, 2000, March 20, 2000, March 27, 2000, and April 3, 2000. All publications were prior to the hearing. Mr. Stephenson, on behalf of the County's community development district processing group formed in accordance with Section 5.06.00 of the St. Johns County Land Development Code, presented the following proposed findings regarding the approval of the development within the proposed District: On October 28, 1999, the St. Johns County Board of County Commissioners entered into an Impact Fee Agreement with St. Joe Residential Acquisitions, Inc., and A & S Land Development Company to widen a portion of CR 210 in order to meet concurrency requirements for two projects. St. Joe Residential Acquisitions, Inc. is the developer of the property contained within the Sampson Creek CDD Petition. The project is approved with a Planned Unit Development (PUD) zoning and contains 799 single family residential dwelling units and associated roadways, retention areas, common areas, sales and recreation complex, and an 18-hole golf course. St. Johns County Board of County Commissioners approved the PUB on February 10, 1998. The PUD provides that a CDD will be established and will be in place prior to the sale of the first lot so that purchasers will be aware of their participation and membership in the CDD and of their obligation to pay any taxes that may be levied by the CDD. The PUD and Impact Fee Agreement are separate County approved documents and the creation and operation of a CDD does not in any way affect these documents or their approval without further review by the St. Johns County Board of Commissioners. Impact fee credits shall be awarded in accordance with approved Impact Fee Agreement which ensures that the credits are awarded to the appropriate entity. The CDD processing group finds no inconsistencies with the six factors as described in Section 190.005(6), Florida Statutes. With these findings, Mr. Stephenson testified that St. Johns County has no objection to the establishment of the proposed District.
Conclusions On Monday April 10, 2000, at 10:00 a.m., the local public hearing for the Petition to Establish the Sampson Creek Community Development District was held before Administrative Law Judge Diane Cleavinger, at the St. Johns County Public Library, 950 Davis Pond Boulevard, in St. Johns County, Florida. The hearing was conducted pursuant to Section 190.005, Florida Statutes, for the purpose of taking testimony, public comment, and receiving exhibits on the petition of the St. Joe/Arvida Company, L.P. (Petitioner) to establish the Sampson Creek Community Development District (District) in northern St. Johns County, Florida. This report is prepared and submitted to the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 190.005, Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, pursuant to Chapters 120, and 190, Florida Statutes, and Chapter 42-1, Florida Administrative Code, establish the Sampson Creek Community Development District as requested by Petitioner by formal adoption of the proposed rule, after inclusion of the legal description, in substantially the form attached to this Report of Findings and Conclusions as Attachment 3. DONE AND ENTERED this 16th day of May, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2000. COPIES FURNISHED: Jonathan T. Johnson, Esquire Carolyn S. Raepple, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Daniel Woodring, Esquire Florida Land and Water Adjudicatory Commission The Capitol, Suite 2105 Tallahassee, Florida 32399 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission The Capitol, Suite 1601 Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP 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.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall 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 this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Conclusions For Petitioners Martin County Conservation Alliance, Inc., Donna Melzer, and Elisa Ackerly: Donna Sutter Melzer, Esquire 3471 Southwest Centre Court Palm City, Florida 34990-2312 For Petitioners Groves Holdings, LLC, Groves 12, LLC, and Groves 14, LLC: Andrew J. Baumann, Esquire Tara J. Duhy, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401-4327 For Respondent Martin County: David A. Acton, Esquire Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3322 Linda Loomis Shelley, Esquire Fowler White Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301-1547 For Respondent Department of Community Affairs: L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
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 Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 7th day of September, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2010.
