Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean. The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities. Jupiter is also bordered by unincorporated areas of Palm Beach County. The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach. The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard. Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope. Growth in Jupiter: A Brief History The Jupiter of today is much different than the Jupiter of only a few decades ago. In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136. During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities. This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers. The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents. There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/ There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped. A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida. Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County. Jupiter does not have a traditional downtown area. Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles. The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development. At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway. The Planning Process and the Indiantown Road Corridor Study In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later. During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics. In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor. Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989. The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989. The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989. The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council. Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor. Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan. He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County. Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study. On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance." Contents of the Comprehensive Plan: A General Overview The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements. Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/ Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional. Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map. Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor. Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis." The Town Council adopted this "data inventory and analysis" as part of the Plan. Contents of the Comprehensive Plan: Goals, Objectives and Policies The following is the lone goal set forth in the Plan's future land use element: Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County. Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows: Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990. The following are among the policies in the future land use element that further address the subject of "managed growth:" Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations. Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials. Policy 1.1.5- Strip or highway commercial development shall be discouraged. Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/ containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/ Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility. Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses. Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage. Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection, 1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity. Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows: By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan. The following are among the policies in the future land use element that further address the subject of "land use compatibility:" Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations. The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning. Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above. Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990. Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows: The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques. The following are among the policies in the future land use element that further address the subject of "land development regulations:" Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address: subdivision of land signage wellfield and aquifer protection drainage and stormwater management periodic flooding open space needs off-street parking environmentally sensitive areas/habitats In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan. Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document. Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria: Commercial Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services. Location Criteria: In areas accessible to immediate surrounding neighborhoods; Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips; When a part of a planned unit development must be situated in the interior of the project and not along an external roadway; In areas where water supply and sewerage facilities services are available. Intensity measures: Site area- minimum 20,000 sq. ft. maximum 2 acres Site coverage maximum- 35% Height limitation- 35 feet/2 stories General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics. Location Criteria: At major intersections, or existing commercial core areas; Central to and/or readily accessible from all residential areas of the community; Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips; Not adjacent to low density, single family neighborhoods; Adjacent to Medium Density Residential areas when proper buffering is provided; Situated preferably on an arterial roadway, but never on a local street; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses. Location Criteria: Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.); Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses; In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided; May locate in industrial park however should be located in designated tract of land in park; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses. Location Criteria: Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail); Should be spatially separated from residential areas; Should not be located in proximity to other commercial activities, e.g., retail stores, offices; Suitable siting is near or in industrial areas due to similar location and transportation needs; In areas where water supply and sewerage facilities services are available. Intensity Measures: Site coverage maximum- 35% Building height maximum- 35 feet Industrial * * * Conservation * * * Public/Institutional * * * Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows: To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth. Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows: Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service. Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows: Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans. Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans. Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary. Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/ Contents of the Comprehensive Plan: Data Inventory and Analysis The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan. For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:" Growth Management Philosophy Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is now evolving into a "total service" community. To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions: Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits. It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line. The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/ * * * Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/ * * * Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/ * * * Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/ * * * IMPORTANT POLICY ISSUES 1. Town image, e.g., bedroom community, full service town. 22/ The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan: Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors. As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/ * * * Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . . Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage, off-street parking, buffering, to control development would be necessary. Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip. Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/ * * * [S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter. To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/ * * * The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/ * * * IMPORTANT POLICY ISSUES . . . 2. Gateway into Town; . . . Depth of commercial along Indiantown Road; Strip commercial development vs. a node policy; . . . 9. Maintaining areas in residential use by eliminating pressures of commercial development; * * * Besides the commercial demands of the local population, [with] the opening of Interstate 95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/ * * * Most neighborhood and community shopping centers are located on major roadways, primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/ * * * The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . . Principal local arterials 34/ . . . f. Indiantown Road from U.S. 1 to west town limit Collector streets 35/ Indiantown Road from County Road A1A to U.S. 1 36/ * * * The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S. 1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . . The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990. Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . . The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/ * * * Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/ * * * The future major streets are shown by functional classification on Exhibit 3 . . . and are summarized as follows. . . . Principal local arterials . . . g. Indiantown Road from Alternate A-1-A to I-95. . . Collector streets Indiantown Road from County Road A-1-A to U.S. 1 39/ * * * At buildout the proposed coastal population densities in the surge vulnerable areas in the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows: -Indiantown Road at six lanes 40/ * * * The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . . The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/ * * * Intergovernmental coordination is necessary in order to implement the following policies: POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway. Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree. Agencies involved: Florida Department of Transportation Palm Beach County Metropolitan Planning Organization (MPO) Palm Beach County Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council Recommended methods for coordination/ cooperation: FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans. The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans. The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/ The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:" Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development. The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan: The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows: Compatibility with surrounding land uses Intensity of use Adequacy of facilities -water services -sewer services -roadway access -fire and police service Environmental impact Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element. The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that the Town should strive to avoid or at least minimize through the planning process: Misuse of Land Widely scattered land development results in a pattern which is more costly to provide with essential services; Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the [Town] for providing flood abatement measures; Land and water resources are destroyed by scattered substandard development; and Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth. Conflicting Uses of Land Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment. Overuse of Land Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking; Strip development along major highways results in reduced traffic capacity and increased traffic congestion; Excessive land coverage by buildings and parking areas results in inadequate open space; and Poorly conceived site and building design standards can result in overuse of land. Ordinances Creating the Indiantown Road Overlay Zoning District In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor. These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.). The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows: The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor. Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives. Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so. The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90. 61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District; and the U.S. Highway One District. Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts. Ordinance 15-90 further restricted the land use activities permitted in these subdistricts. The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception. Ordinance 15-90 absolutely prohibits, without exception, anywhere from 11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor. Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities. Relationship of the I.O.Z. to the Comprehensive Plan Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan." It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error. A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor. The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter." The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor." Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates. There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan. It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities. To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community. Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan. While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan. As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan. As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories. Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5. Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity. There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary. There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan. As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan. Petitioner's Challenge to the I.O.Z.'s Use Restrictions Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987. Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area. Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land. On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows: This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007 of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and 15-90 were adopted March 6, 1990. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 were adopted March 20, 1990. Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses. Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not state that a new zoning district would be created limiting uses from those already available for the underlying zoning. Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial. Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road. The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact. Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station. The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter Florida 33458, telephone number (407)744-4778. The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter. The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows: Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation. This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778. Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition is attached. The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from 41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site development standards for property within the IOZ. The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned. The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road. The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan. The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties. By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials: those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question. The requested materials were furnished on or about March 28, 1991. An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration. Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity. In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element. Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus. By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing." On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan." The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision: The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s. 163.3202(3), F.S. There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy 1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency. On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge. Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would take action to eliminate them to avoid the sanctions it would face if it did not take such action.
The Issue The issue is whether a change on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Respondent, Manatee County (County), by Ordinance No. 09-31 on August 11, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the County. The County is a local government that administers its Plan, which it amends from time to time. The County adopted the Ordinance which approved the change in the FLUM being challenged here. Petitioner is a Florida limited liability company with offices located at 4379 Ocean Boulevard, Sarasota, Florida. It owns property in the County. Petitioner appeared at the transmittal hearing for the amendment and submitted comments on the record in opposition to the amendment. FBE is a Florida limited liability company and has contracted to purchase the subject property from Patron. It operates a renewable energy development company in the County. It submitted comments to the County during the adoption process. Patron is a Florida limited liability company that owns the subject property. It submitted comments in support of the plan amendment during the adoption process. History of the Amendment On March 27, 2009, FBE (as agent for Patron) filed a Land Development Application (application) with the County Planning Department requesting approval of a FLUM change for the property from IL to P/SP(1). See Joint Exhibit 1. The existing IL land use authorizes office, light industry, research/ corporate parks, warehouse distribution, intensive commercial uses, neighborhood retail uses, hotel/motel, selected single- family, and residential uses. See Joint Exhibit 12. The Plan describes the general range of potential uses under the new category as recreational uses, sanitary landfills, permanent water and wastewater treatment/storage/disposal facilities, and other public facilities including, but not limited to, public airports, major maintenance facilities, solid waste transfer stations, and major utility transmission corridors. Id. Residential uses are not allowed. One intent of the P/SP(1) category is to recognize facilities associated with private utilities, such as the biomass plant proposed by FBE. Id. The application indicated that FBE intends to operate a sixty-megawatt biomass integrated power plant on the property and to continue to retain all uses allowed by the IL category. (In contrast to a power plant that uses coal or oil to generate electricity, a biomass plant uses renewable energy sources such vegetative materials to create electric energy.) The power generated at the facility will be sold to Progress Energy Florida, an investor-owned public utility. The application was accepted, numbered PA-09-08, and assigned Ordinance No. 09-31. Sometime in early April 2009, a staff report was prepared by the County's Principal Planner, Leon Kotecki, which included land use characteristics and development trends, plan amendment justification, and positive and negative aspects of the application and mitigating factors. See Joint Exhibits 5 and 6. The staff report also included what is described as a Plan Amendment Detailed Review and Land Planning Analysis that discussed services and natural features, urban development considerations, and consistency with the Plan, the State Comprehensive Plan (State Plan), Florida Administrative Code Rule Chapter 9J-5,1 and relevant portions of the Florida Statutes (2009).2 The report recommended that the application be approved. In making this favorable recommendation, the planner compiled and reviewed data on land compatibility, traffic impacts, and water and sanitary uses. He also took into account the topography of the site, how the Coastal High Hazard Area (CHHA) affected the site, its proximity to Port Manatee, and the surrounding uses. On April 4, 2009, the County published an advertisement of a public hearing on the application in the Bradenton Herald and the Sarasota Herald Tribune. Also, letters were sent to all property owners within 500 feet of the proposed amendment. Petitioner received personal notice of the amendment by letter dated May 20, 2009. On April 16, 2009, the Planning Commission conducted a hearing on the plan amendment and by a 4-1 vote recommended transmitting the amendment to the Board of County Commissioners. On April 21, 2009, the Board of County Commissioners conducted a public hearing and voted 6-0 to transmit the proposed amendment (as a part of a larger amendment package) to the Department for its review. On June 29, 2009, the Department issued its Objections, Recommendations, and Comments (ORC) report for a series of map amendments, including the biomass project. See Joint Exhibit 4. In the ORC, the Department lodged an objection regarding the lack of sufficient planning guidelines as required by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i), specifically noting that the amendment did not restrict the property to a particular use. Id. at p. 3. That policy requires that an amendment for a proposed P/SP(1) category include a declaration of the specific use for which the P/SP(1) category is sought. The ORC also indicated that the amendment was not consistent with various goals, policies, and objectives in the State Plan for the reasons cited in the Objections portion of the ORC. Id. at pp. 3-4. The ORC recommended that the amendment include site-specific policies establishing meaningful and predictable guidelines and standards to guide development on the site. Id. at p. 3. After receipt of the ORC, the County revised the plan amendment by including a text amendment containing ten conditions (stipulations) that would apply if the property was developed as an electric generating facility using biomass fuels and/or solar energy. These conditions were included in the adopting ordinance as a new Section D.5.4 in the General Introduction Chapter and are a part of the Plan. See Joint Exhibit 10 at pp. 4-5. The new section provides that the property is limited to an "electricity generating facility using only biomass fuels and solar energy retaining the light industrial uses as provided for in the former IL Industrial Future Land Use Category applicable to the site." Id. at p. 4. The section further provides that the ten conditions are "minimal requirements" and that further conditions may be added during the development process, as necessary. Id. at p. 5. Thus, future stipulations at a later date can exceed the minimum requirements in the County's Land Development Code. On August 11, 2009, the County conducted a public hearing and adopted Ordinance No. 09-31, with the changes presented by its staff. On September 29, 2009, the Department published its Notice of Intent to find the amendment in compliance in the Bradenton Herald. On October 20, 2009, Petitioner filed its Petition challenging the map change and text amendment. The issues have been more narrowly defined in its Proposed Recommended Order and can be summarized as follows: the amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it impermissibly allows IL uses in the P/SP(1) land use category; the amendment is inconsistent with Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes, because it impermissibly expands the uses in the P/SP(1) category by including IL uses and does not contain the required intensity standards; the amendment is internally inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails to declare a specific use for the IL uses; the amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the amendment is inconsistent with the requirements of Rules 9J- 5.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a), Florida Statutes, because it is not based on an analysis of the best available data regarding the suitability of the site for a biomass facility; and the amendment is inconsistent with the requirements of Rule 9J-5.005(2)(a) because it was not based on an analysis of the best available data for compatibility with residential uses in the surrounding area. The Property and Surrounding Uses Patron's property consists of around 44.4 acres and is located at 11551 and 11805 U.S. Highway 41 North in the northwest part of the County, just south of the Hillsborough County line. The eastern side of the property adjoins U.S. Highway 41, a major four-lane highway running north-south, while property owned by CSX Corporation (CSX), including an active railroad track, and then a large drainage canal border the site on its western side. (The railroad track is around one-quarter mile west of U.S. Highway 41.) West of the canal is agricultural land and a large parcel owned by Port Manatee designated as IL but used as conservation lands. To the south (in IL-designated land) lies an aircraft parts manufacturing facility owned by Trielectron Industries, which shares a boundary with Petitioner's property. To the north, the site adjoins property owned by Florida Power & Light Company, on which a substation is located. FBE plans to connect its power plant to the electric grid through this substation. The property is bisected by Armstrong Road, an unpaved County-maintained road running east-west, which provides access from U.S. Highway 41 to Patron's property and the land just west of the CSX property. Approximately one-third of the property lies north of Armstrong Road, while the remaining two-thirds lie south of the road. The southern 450 to 500 feet of the site consists of wetlands, forests, and vegetation, which serve as both a distance and visual buffer to uses to the south and southwest. (Because of these wetlands, a biomass plant would have to be constructed on the middle of the site.) Immediately west of the CSX property is an unpaved road that turns south to provide access to row crop fields and then to an 88-acre, rectangle-shaped parcel owned by Petitioner. Port Manatee, a deepwater seaport connected to the Gulf of Mexico through Tampa Bay, is less than a mile north of the site. The area between Port Manatee and Patron's property contains port-related uses which are mostly industrial uses such as construction yards and an aggregate plant. To the east of the port is a closed phosphate processing plant and associated phosphogypsum stacks, which are the remains after the phosphate is processed. The existing zoning on the property is Planned Development Encouragement Zone (PDEZ). The existing uses allowed under that category include a range of light and heavy industrial uses and are listed on the General Development Plan approved by the County on December 4, 2008. See County Exhibits 13 and 24. This information is relevant here because the zoning classification is consistent with the County's intent to focus heavy industrial uses within close proximity to Port Manatee. Development trends in the area of Port Manatee and the Patron property are predominately industrial. All of the surrounding development is either light or heavy industrial uses with the exception of six single-family homes located on Chapman Road, which terminates on the eastern side of U.S. Highway 41 just south of the site and extends eastward. The homes are located in a strip of land extending east on Chapman Road for a quarter mile or so and south for around a mile on the eastern side of U.S. Highway 41 that is classified as Retail/Office/ Residential (ROR). That category allows a range of uses including retail, wholesale or commercial uses, and public or semi-public uses. Thus, the residential units have the potential to eventually transition to nonresidential uses without a map change. There remain a few open parcels of land in the area that are available for additional development. Petitioner's property comprises around 88.7 acres. The southwest corner of Patron's property lies around one- quarter mile from the northeast corner of Petitioner's property. Counting the 450-foot green space on the southern end of Patron's property, the distance between the site of the plant and Petitioner's main parcel is around 1,900 feet. Petitioner also owns a narrow strip of land extending northward from the main parcel to Armstrong Road. This strip adjoins the western side of the CSX railroad track and provides access to the property from U.S Highway 41. On November 30, 2004, the County approved a residential project for Petitioner's property and rezoned the land from Suburban Agriculture and Suburban Agriculture/Coastal High Hazard Overlay District to Planned Development Residential/ Coastal High Hazard Overlay District. The project is known as the Estates at Bishop Harbor. The Preliminary Site Plan for the property depicted 66 lots for single-family detached residences. Before any development occurred, however, the original developer defaulted on the mortgage held by Petitioner, a foreclosure occurred, title to the property reverted to Petitioner, and no development ever occurred. The property is still vacant. At the time of the hearing, Petitioner had an application pending before the County to change the land use designation on 83.31 acres from Residential-1 (one dwelling unit per acre) to IL. The outcome of that application is unknown. The remaining 5.39 acres are already designated IL. Based on these circumstances, it is fair to infer that the long-delayed construction of the planned residential subdivision is questionable. Stipulation 6 of the approval of the change in land use on Petitioner's property was a requirement that a Notice to Buyers be included in the Declaration of Covenants and Restrictions and in the sales contracts or a separate addendum to the sales contracts and final site plans that includes language informing prospective homeowners that there are neighboring industrial uses and the potential for future industrial development including possible truck traffic and noises associated with industrial uses. Petitioner's Objections Petitioner first contends that the plan amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and inconsistent with the requirements of Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it permits light industrial uses in the P/SP(1) land use category. Petitioner argues that IL uses are not permitted in the P/SP(1) category. It also argues that by failing to include specific intensity standards in the amendment for the allowed IL uses, the amendment is inconsistent with the requirements of Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. The rule requires that the FLUE contain policies regulating land use categories included on the FLUM and establishing standards for intensities of use for each future land use category. The statute requires that each land use category be defined in terms of uses allowed and include standards to be followed in the control and distribution of building and structure intensities. Policy 2.2.1.22 establishes the P/SP(1) land use category; Policy 2.2.1.22.1 describes the intent of the category; Policy 2.2.1.22.2 describes the general range of potential uses in the category; and Policy 2.2.1.22.3 provides the range of potential intensity for the category. The general range of potential uses in the P/SP(1) category include: Recreational uses, sanitary landfills, permanent water and wastewater treatment/ storage/disposal facilities and other major public facilities including but not limited to, airports owned or operated by a public entity, major maintenance facilities, solid waste transfer stations, [and] major utility transmission corridors. Also, when the P/SP(1) designation is an easement on privately-held property, other uses consistent with the adjacent future land use category or categories, where consistent with the purpose of the easement and consistent with all other goals, objectives, and policies of this Comprehensive Plan, may also be considered. (See also Policy 2.1.1.5) Policy 2.1.1.5 provides further clarification on the allowed uses in this category by requiring that the County ensure the availability of sufficient land in the P/SP(1) category "to allow development of major public or semi-public uses (e.g., electrical generation facilities . . .) in appropriate areas when compatible with surrounding development." Joint Exhibit The Plan permits light industrial uses within the P/SP(1) category. Notwithstanding the broad range of uses described above, FLUE Policy 2.2.1.5 provides the County with more flexibility in determining the appropriate uses for any given plan category. The policy states that the future land use category listings of uses are "generalized," they are not "all inclusive," and they "may be interpreted to include other land uses which are similar to or consistent with those set forth in the general range of potential uses." See Joint Exhibit 12. IL uses are similar in character and intensity to the type of uses listed in the P-SP(1) category. Because the property was classified as IL before the amendment, all of the IL uses in that category have been evaluated and determined by the County to be appropriate in terms of location, impact, and intensity. For these reasons, it is fairly debatable that the plan amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J- 5.006(3), and Section 163.3177(6)(a), Florida Statutes. Likewise, the P-SP(1) category has a broad range of uses in terms of intensity, and even though the amendment does not contain specific intensity standards for the IL uses, the Plan contains other provisions required by Chapter 9J-5 to ensure compatibility between any future uses on the site and the surrounding properties in terms of intensity. Therefore, it is fairly debatable that the plan amendment is consistent with Rule 9J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. Petitioner further argues that the plan amendment is inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires that "[a]n applicant shall be required to declare a specific use or uses for a specific piece of property for which the applicant is proposing to amend the existing future land use category to P/SP(1)." Petitioner argues that while FBE has identified one specific use for the P/SP(1) category -- a biomass plant -- it has not declared the specific use or uses which FBE is proposing under the IL category. Because the light industrial uses allowed under the IL category remain the same as before the amendment, and were previously evaluated when the Plan was originally adopted in 1989, it is fairly debatable that the amendment is consistent with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference to IL uses is adequate since it merely recognizes uses already approved and in effect. In its Proposed Recommended Order, Petitioner also contends that the plan amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3) because the County's five-year Capital Improvements Program contains no programmed improvements for U.S. Highway 41. The rule requires that there be a transportation analysis to support a FLUE amendment. However, this issue was not raised in the parties' Stipulation and need not be addressed. See Heartland Environmental Council, Inc. v. Dept. of Comm. Affrs., et al., Case No. 94-2098GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25, 1996)("[a party] is bound by the allegations in its Petition for Hearing . . . as further limited by the Prehearing Stipulation"). Even if it was a viable issue, the evidence shows that during the review and adoption process, the County relied upon a Florida Department of Transportation traffic analysis link sheet for February 2009 and information supplied by the applicant, which show that the current levels of service (LOS) on U.S. Highway 41 are A and B, that the projected number of peak hour trips will actually result in an overall net decrease in trips when compared to the existing Plan category, and that no capital improvements are needed. See Joint Exhibit 2 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner that the LOS on U.S. Highway 41 may deteriorate if a biomass plant is not built and the IL uses are developed to their maximum potential is speculative at best and not supported by the evidence. Petitioner next contends that the amendment is inconsistent with the requirements of Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b) because it was not based on the best available data regarding the suitability of the site for the biomass facility. The statute requires that the FLUE be based on "surveys, studies and data regarding the area, including . . . the character of undeveloped land." Rule 9J-5.005(2)(a) requires that the amendment be based on relevant and appropriate data and analysis, while Rule 9J-5.006(2)(b)3. requires that the amendment be based on an analysis of the character of the land in order to determine its suitability for use, including the topography of the site. In support of this argument, Petitioner points out that when the County planner reviewed the amendment, he assumed that less property was within the CHHA than was depicted on the FLUM, that a majority of the property was at or above 10 feet in elevation, and that it would not flood in a Category I storm event. The planner reached this conclusion based on a review of large-scale United States Geological Survey (USGS) topographic maps and Light Detecting And Ranging (LIDAR) maps. However, an undated topographic survey (prepared for an earlier prospective purchaser of the Patron property and given by Patron to FBE when it signed a contract to purchase the property) and a technical memorandum prepared by FBE's consultant, Golder Associates, Inc., on March 31, 2009, reflected that much of the property lies within the CHHA at an elevation of five feet or less, or below the 5.8-foot storm surge elevation for a Category I storm event. This information was in the personal files of FBE's president and its out-of-town consultant and was not given to the County prior to the adoption of the amendment. Petitioner argues that this information is the best available data, and that if the County had been given these documents during its review process, it would have determined that the Patron property was not suitable for industrial uses. The County was not given the survey and memorandum prepared by the FBE consultant because that information was prepared only for use at the site plan review stage. This is not unusual since the County does not require signed and sealed surveys and engineering reports during the amendment process. While the data were in existence prior to the adoption of the map change in August 2009, they were not disclosed until a few days before final hearing (through discovery) and consequently were not "available for public inspection" prior to the amendment's adoption. After analyzing the new data (over objection of opposing counsel) for the first time at hearing, the County planner indicated that if he had known that the elevation was lower than that depicted on the USGS maps, he would have "given [the application] closer consideration." Even so, he emphasized that his recommendation would still be the same because any development on the site can be protected during the development process by berms, suspension of units aboveground, and other development standards. Assuming arguendo that the data were "available for public inspection" and should have been considered for that purpose, given the rigorous standards that apply during the site approval process, it is still fairly debatable that the amendment is supported by adequate data and analysis as to the suitability of the site and that the County reacted to it in an appropriate manner. Similarly, Petitioner points out that the technical memorandum prepared by FBE's consultant on March 31, 2009, revealed that the soils on the site are not suitable for a heavily loaded structure such as a biomass plant. Therefore, it argues that the amendment was not based on professionally acceptable data and analysis with respect to the suitability of the property to support a biomass plant, as required by Section 163.3177(6)(a), Florida Statutes, and Rules 9J- 5.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a land use analysis for soils in order to determine the suitability of proposed uses on the site. In addressing this issue in the staff report, the planner relied upon the 1983 Soil Survey of Manatee County and determined that the property had three types of soil: Bradenton Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See Joint Exhibit 2 at p. 17. He further determined that these three soils are "poorly drained, level to nearly level, sandy to loamy, and underlain by sandy marine sediment and limestone." Id. However, because several heavy industries are already operating adjacent and within the immediate surrounding area with the same type of soil limitations, he concluded that the soil limitations could be "overcome by the proper design of drainage facilities and engineering design of buildings." Id. It is fairly debatable that the data and analysis are adequate to support the amendment in this respect, and that the County reacted to that data in an appropriate manner. Petitioner further argues the amendment violates Rule 9J-5.005(2)(a) because it is not based on a compatibility analysis of the industrial uses with the residential uses in the surrounding area. Like the preceding two objections, this one is framed in terms of a lack of the best available data to support the amendment. In its Proposed Recommended Order, Petitioner also cites as being relevant to this objection FLUE Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a change in land use to P/SP(1) only be made "in appropriate areas when compatible with surrounding development," and that an applicant "provide information and analysis on the compatibility of the proposed use or uses . . . with surrounding development." Petitioner points out that there are six single-family homes, characterized by one expert as an "artifact" from an earlier era, that extend out one-half mile along Chapman Road to the east/southeast of Patron's property, and that the County failed to consider the compatibility of industrial uses with those homes. It also argues that the County's analysis was based on the construction of a sixty-megawatt facility, as proposed by FBE, and did not consider a larger, more intense facility. In making its compatibility analysis for the surrounding area, the County considered all residences on Chapman Road extending out eastward a quarter to a half mile, which included the six houses in question. With the exception of the six houses, the data relied upon by the County reflected that the entire surrounding development is either light or heavy industrial uses, which is consistent with the County's focus to encourage industrial development in the Port Manatee area. The six houses are in a strip of land designated as ROR, which allows a mix of retail, office, and residential uses. Some of the existing uses that are near the homes, and within the ROR category, are considered "intensive." Given this type of development, it is highly unlikely that more homes will be constructed in the ROR area. If and when a biomass plant is constructed, existing development standards will be used to ensure compatibility with the ROR uses. Petitioner did not refute this evidence. When considering the area and uses as a whole, it is fairly debatable that there are adequate data and analysis to support a determination that the new land use will be compatible with the residential uses in the surrounding area. All other issues raised by Petitioner and not addressed herein have been considered and found to be without merit.
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 denying USFG's Petition and determining that the plan amendment adopted by Ordinance No. 09-31 is in compliance. DONE AND ENTERED this 28th day of July, 2010, 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 28th day of July, 2010.
The Issue The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Background The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination. Joint Exhibit J.3. The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment. Summary of Rural Fringe Amendments In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe"). The Rural Fringe is described in the amendments as follows: The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands. * * * The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east. The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District. J.4 at 50. Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs). Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands. Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2. The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation. Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands. Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows: Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale. J.4 at 62. The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities. J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64. In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65. Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands. Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and 29-30. Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species." J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation. In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element. Standing of Petitioners and Intervenors The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing. The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County. Century is a for-profit corporation that has its principal place of business in Collier County. Century owns 12.5 acres of land in Collier County. According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford. According to Lester, the various Waterford-managed entities are involved in real estate development and have spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development. Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings. Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County. An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County. According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner. Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals. . . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County. Petitioners' Challenges Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20 Delineation of Sending and Receiving Lands A. Data and Analysis The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther. The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County. On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page. Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered. While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller. Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and Century did not make any information available to the County between the transmittal and adoption hearings.21 In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001. SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23 Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24 Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, "ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra. The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM. The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe. Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996. Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing. Petitioners initially seemed to contend that the County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions. The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south. A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.) FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection. Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as 400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population. The (South) Belle Meade NRPA is considered Priority 1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998. It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station. FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat. To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation. Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status. In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands. It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data. Sending and Receiving Delineations in General Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands). Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps. Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County-- Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.) In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy 6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25) and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable. NBM Delineations Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis. The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations. The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28 and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand. J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections 13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections 13 and 14 in the northeast corner. The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use, which is sandwiched between NBM and more densely developed urban land use to the west. NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM. In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use. Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16); (2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33). Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be provided to both the rural village and the existing residents of NGGE. While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development. Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving. The designation of the western quarters of Sections 22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development. Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral. Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.) Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of sewer and water service along Golden Gate Boulevard and, from there, into NBM. Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61. In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected. TDR Program The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows: The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . . J.4 at 50-51. The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area. TDR programs balance the protection of areas incompatible with development with the preservation of private property rights. They are also recognized as a development tool for overcoming urban sprawl. Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres). J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year. The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area. For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59. If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61. A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51. Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending. This ratio is not achieved within the Rural Fringe. Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category). Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51. In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of 20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.) In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively. J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location. For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64. Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre. The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per acre must be obtained through the purchase of TDRs. J.4 at Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits. Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply. In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr. Nicholas. It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it. In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program. In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
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 finding the Collier County's Rural Fringe Amendments to be "in compliance." DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
The Issue Whether the amendments to the Hendry County Comprehensive Plan adopted on February 25, 2014, by County Ordinance No. 2014- 03, are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2013).1/
Findings Of Fact The Parties and Standing Respondent, Hendry County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Petitioner, the Seminole Tribe of Florida (Petitioner or Seminole Tribe), owns real property consisting of the Big Cypress Seminole Indian Reservation and adjacent non-reservation lands located in the County. The address of the main tribal office is 31000 Josie Billie Highway, Clewiston, Florida 33440. On February 25, 2014, the Board of County Commissioners held a public hearing and adopted the Plan Amendment. The Seminole Tribe submitted written and oral comments to the County concerning the Plan Amendment through their counsel and several Tribal members at the adoption public hearing. Existing Land Uses and Future Designations Hendry County is approximately 1,190 square miles in size. The County is predominantly an agriculturally-based community with roughly 55 percent of the total land area in agricultural production and another 12 percent designated as preserve. Approximately 71 percent of the land area in the County is designated Agriculture on the Future Land Use Map (FLUM).2/ Lands within the Agriculture Future Land Use Category (Ag FLU), some 529,936 acres, predominantly comprise the central, southern and eastern portion of the County. The Ag FLU designates those lands which “will continue in a rural and/or agricultural state through the planning horizon of 2040.” The County has limited property designated for future industrial and commercial use. Less than one-half percent of the land area on the FLUM is designated as Industrial. Less than two-tenths percent is designated as Commercial. Other future land use categories which allow Industrial development include Agriculture, Public, Multi-Use Development, and land within the Rodina sector plan, which authorizes a maximum of 1,900,000 square feet of Office, Civic, and Industrial uses. Industrial uses allowed within the Agriculture land use category include processing of agricultural products as Level One uses allowed as permitted uses, special exceptions, or accessory uses under the Land Development Code. A number of other uses, such as utilities, bio-fuel plants, mining, and solid waste recovery, are allowed as Level Two uses which require rezoning of the property to a Planned Unit Development, with significant review by County staff and approval by the Board of County Commissioners. Less than one percent of the land area is designated for Public Use. The Public land use category designates areas which are publicly-owned, semi-public, or private lands authorized for public purposes, such as utilities and solid waste facilities. The largest industrial site in the County is the AirGlades industrial complex, which is designated as a Public land use on the FLUM. The site is approximately 2,400 acres in size, but only roughly 200 acres is in industrial use. The complex cannot be fully developed due to inadequate County wastewater facilities serving the site, Federal Aviation Authority restrictions (e.g., height limitations) on development in proximity to the Airglades airport, and lack of opportunity for fee ownership of property owned by the County.3/ Roughly one-half percent of the land area is designated Multi-Use. Designated lands are generally located adjacent to the primary transportation system and existing or programmed utilities. The purpose of this land use category is to promote new development and redevelopment of the properties located within the category. The Floor Area Ratio (FAR) for Industrial development in the Multi-Use category is limited to 0.75. As with industrial uses, commercial uses are allowed in land use categories other than Commercial. The Agriculture category allows commercial uses such as ornamental horticulture and nurseries. Non-residential intensity is generally limited to an FAR of .40. Commercial development is allowed within both the Medium–Density and High-Density Residential FLU Categories; however, development is limited to residential-serving commercial, must be approved through the PUD rezoning process, and is limited to 15 percent of the uses within the PUD. Less than one percent of the County is designated as Rural Special Density, and, under the existing Plan, this designation cannot be expanded. The Residential Special Density category allows commercial and retail on no more than 10 percent of the designated area and with a total cap of 200 square feet at buildout. Commercial development is also allowed within the Multi-Use category, but is limited to an FAR of .25 for retail commercial, .50 for mixed-use buildings (maximum of 25 percent retail), and .30 FAR for mixed-use buildings with commercial on the first floor. The County is sparsely populated with concentrations surrounding the cities of Clewiston and LaBelle, including Port LaBelle, as well as the unincorporated areas known as Felda and Harlem. The cities of LaBelle and Clewiston and the unincorporated populated areas are located at the northernmost end of the County along State Road 80 (SR 80). The Felda Community is located in the northwestern portion of the County, south of the City of LaBelle. Most of the development in the County since 1999 has occurred in and surrounding the incorporated areas of LaBelle and Clewiston, primarily adjacent to the City of LaBelle and along SR 80 from LaBelle to the Lee County line. The vast majority of land in the County is not served by centralized public utilities, such as sewer and water. Existing public utilities, including centralized water and sewer, are limited to the northernmost areas of the County surrounding the cities of LaBelle and Clewiston, and along SR 80. South of LaBelle and Clewiston, there are only three north/south and two east/west principle arterial or collector roads in the County. All of these are two-lane roads, and only SR 29 south of LaBelle is planned to be widened to four lanes under either alternative in the County’s 2040 long-range transportation plan. Economic Conditions It is undisputed that the economic condition of the County is dire. The County ranks high in many negative economic indicators, including a 30 percent poverty rate (compared to 17 percent statewide), the highest unemployment rate in the state for 34 of the most recent 36 months, and an annual wage $10,000 lower than the state average. Roughly 80 percent of County school children qualify for a free or reduced-price lunch, and a high percentage of the County population are Medicaid recipients. The County’s ability to raise revenue through taxation is limited by the extent of property exempt from ad valorem taxation (e.g., government-owned property), and the extent classified as Agricultural and assessed at less than just value. Slightly more than half of the just value of property in the County is subject to an Agricultural classification. Another 21 percent of the just value of property in the County is government-owned, thus exempt from ad valorem taxation. More than half of the parcels in the County are taxed as vacant residential, and less than two percent are taxable commercial properties. On May 24, 2011, the Board of County Commissioners conducted a workshop on proposed new Mission, Vision, and Core Values statements for the County. On September 13, 2011, the Board adopted the following Vision statement: “To be an outstanding rural community in which to live, work, raise a family and enjoy life by creating an economic environment where people can prosper.” The Plan Amendment The Plan Amendment was adopted in an effort to attract large-scale commercial and industrial businesses to locate in, and bring jobs to, the County. Under the Plan Amendment, a new development project that is designated as an Economic Engine Project (EEP), and “large-scale commercial and/or industrial” developments, are expressly permitted in any and all FLU categories throughout the County with the exception of Agricultural Conservation, Residential - Pre-Existing Rural Estates, and Felda Estates. The Plan Amendment is designed to spur economic development by “streamlining” the permitting process to give the County a competitive advantage in attracting new business. By permitting EEPs and large-scale commercial and industrial uses in nearly every future land use category, the Plan Amendment is intended to eliminate the costs (in both time and money) of processing comprehensive plan amendments for future development projects. The amount of land eligible for siting either an EEP or a large-scale commercial and/or industrial development under the Plan Amendment is approximately 580,000 acres.4/ The majority of that land area, 529,936.49 acres, is located within the Agriculture FLU category. The Plan Amendment significantly rewrites the Economic Development Element of the County’s Plan, and adds new policies to Chapter 1, Goal 2 of the Future Land Use Element (FLUE), related to “Innovative Planning and Development Strategies.” The Plan Amendment rewrites Goal 2 as follows:5/ In order to protect water resources, protect the environment and wildlife habitat, build a more sustainable tax base, encourage economic development, promote energy efficiency, and to permit job creation for the citizens and residents of Hendry County, the following innovative land use planning techniques should be encouraged: In order to build a sustainable tax base, encourage economic development, promote job creation, and support vibrant rural and urban communities, the following flexible development strategies are encouraged: Innovative and flexible planning and development strategies list in Section 163.3168, Florida Statutes. Innovative and creative planning tools. Innovative Flexible and strategic land use techniques listed and defined in this comprehensive plan. The Plan Amendment adds the following new Objective and Policies to FLUE Goal 2: Objective 2.1: Recognize the substantial advantages of innovative approaches to economic development to meet the needs of the existing and future urban, suburban and rural areas. Policy 2.1.1: A qualifying County economic development and job creation project (Economic Engine Project) is a project that complies with Policy 10.1.7. of the Economic Development Element, Hendry County's compatibility requirements, Policy 2.1.2, and which will have adequate infrastructure. These projects shall be allowed in any category listed in the Future Land Use Element except those lands designated as Agriculture Conservation, Residential/Pre- Existing Rural Estates, and Felda Estates residential areas, consistent with the goals, objectives, and policies of the Economic Development Element. Additionally, Economic Engine Projects shall be allowed in adopted sector plans only if they advance or further the goals, objectives and policies of respective lands pursuant to 163.3245, and the sector plan. Densities and Intensities shall not exceed the values that are established for commercial and industrial uses in the respective land use categories. In the residential land use categories, an Economic Engine Project shall not exceed an Intensity of 0.25 FAR. Policy 2.1.2: Large-scale commercial and/or industrial developments will be allowed in any Future Land Use category, except those lands designated as Agriculture Conservation, Residential/Pre-Existing Rural Estates, and Felda Estates residential areas if they meet the requirements below. In addition, large-scale commercial and/or industrial developments will be allowed in adopted sector plans only if they advance or further the goals, objectives and policies of respective lands pursuant to 163.3245, F.S., the sector plan, and meet the requirements below. Policy 2.1.2 does not apply to industrial development located in the industrial land use category nor commercial development located in the commercial land use category. The development is approved as a PUD as provided in the Land Development Code; The development is consistent with siting proposals developed by County staff and approved by the Board of County Commissioners; The project has direct access to principal arterials and collectors or access to the principal arterials and collectors via local roads with adequate capacity which can be readily provided by the development; The project has access to, will upgrade/extend existing utilities, or construct on-site utilities; or a public or private provider will extend and/or expand the utilities (including an upgrade if necessary) or has the extension of utilities in the utility's financially feasible plan. The project must have access to all existing or planned necessary utilities, such as water, sewer, electricity, natural gas, cable, broadband, or telephone; The project has access to and can provide on-site rail facilities, when appropriate; The project will provide sufficient open space, buffers, and screening from exterior boundaries where warranted to address all compatibility issues. Large-scale Commercial and/or Industrial development must be a minimum of eighty (80) acres. The County reserves the right to require the project area to be larger if the County finds that a project with more land is necessary to address the impacts of the development on the surrounding area, or if the County concludes that a larger site is necessary to provide a viable project. The project must demonstrate that it will produce at least fifty (50) new jobs within three years after the project is initiated. The development must contribute positively to the County's economy. If the project requires that the County expend funds not already provided for in the County Capital Improvement Program, the developer shall cooperate with the County in obtaining the funds. This provision includes requiring the County to accelerate a programmed project. If necessary, the owner/developer of the project will work with the appropriate educational facilities to create the necessary education and training programs that will enable Hendry County residents to be employed with the Large- scale Commercial and/or Industrial development. Intensities shall not exceed the Floor Area Ratio for Commercial and/or Industrial uses that are established in their respective land use categories. In the residential land use categories, an Economic Engine Project shall not exceed an Intensity of 0.25 FAR. Densities shall not exceed the Floor Area Ratio for Commercial uses that are established in their respective land use categories. Additionally, the Plan Amendment adds the following definitions to the Plan: "Economic Engine Project" means a qualifying County economic development and job creation project which complies with Policy 10.1.7. of the Economic Development Element and means the proposed development, redevelopment or expansion of a target industry. "Target Industry" means an industry that contributes to County or regional economic diversification and competitiveness. Targeted industries that are eligible to qualify as a County-approved Economic Engine Project include, but are not limited to: The targeted industries and strategic areas of emphasis listed with Enterprise Florida The targeted industries of Florida's Heartland Regional Economic Development Initiative Projects aligned with efforts of Visit Florida Projects that promote tourism Marine Industries; and Agricultural Industries New Economic Development Element Policy 10.1.7, reads as follows: The County Administrator has the authority to designate a project as a County-approved Economic Engine Project provided it meets the definition of an Economic Engine Project, the criterion in future land use element Objective 2.1, and policies 2.1.1- 2.1.2. Petitioner’s Challenge Petitioner challenges the Plan Amendment as not “in compliance” with chapter 163. Specifically, Petitioner alleges that the Plan Amendment fails to appropriately plan for orderly future growth by providing measurable and predictable standards to guide and control the future growth and distribution of large-scale commercial and industrial developments and Economic Engine Projects throughout the County; is not based on relevant and appropriate data and analysis; is internally inconsistent with other goals, objectives, and policies in the Plan; and fails to discourage urban sprawl. Meaningful and Predictable Standards Section 163.3177(1) provides, “The [local government comprehensive plan] shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations.” Section 163.3177(6)(a) requires the local government to designate, through the FLUE, the “proposed future general distribution, location, and extent of the uses of land for” commercial and industrial categories of use. Further, this section requires the local government to include the “approximate acreage and the general range of density or intensity of use . . . for the gross land area in each existing land use category.” Subparagraph 163.3177(6)(a)1. requires local governments to define each future land use category “in terms of uses included” and to include “standards to be followed in the control and distribution of population densities and building and structure intensities.” Designated Economic Engine Projects The Plan Amendment does not define an EEP in a manner sufficient to put property owners on notice as to what use might be approved within the approximately 580,000 acres affected by the Plan Amendment. The Plan Amendment defines an EEP as a “proposed development, redevelopment or expansion of a target industry.” “Target industry” is further defined by the Plan Amendment as “an industry that contributes to County or regional economic diversification and competitiveness.” The definition continues, as follows: Targeted industries that are eligible to qualify as a County-approved Economic Engine Project include, but are not limited to: The targeted industries and strategic areas of emphasis listed with Enterprise Florida The targeted industries of Florida’s Heartland Regional Economic Development Initiative Projects aligned with efforts of Visit Florida Projects that promote tourism Marine Industries Agricultural Industries Under Policy 2.1.1, a project that meets the definitions above may be designated as an EEP by the County Administrator, pursuant to Policy 10.1.7, if it meets the criterion in Policy 2.1.2, and if it “complies with the County’s compatibility requirements and [has] adequate infrastructure.” As adopted, the Plan Amendment provides no meaningful standard for the use or development of land for an EEP. The definition of an industry that “contributes to County or regional economic diversification and competitiveness” is essentially open-ended, defining an EEP only in the sense that it must be different from the existing predominate County industry -- Agriculture. Yet, even that distinction is eliminated by the inclusion of “Agricultural Industries” on the list of target industries “that are eligible to qualify as a County-approved” EEP. The list of industries defined as “eligible to qualify as a County-approved” EEP provides no meaningful standard because it incorporates by reference industries listed by, targeted by, or “aligned with,” private and quasi-government entities such as Enterprise Florida, Visit Florida, and Florida’s Heartland Regional Economic Development Initiative. The definition does not even fix to a specific date the list of targeted industries designated by those business development entities, thus rendering the Amendment “self-amending,” without any meaningful list of qualifying uses. Moreover, the definition of “target industry” incorporates these third-party lists with the qualification “including but not limited to.” Thus, determination of an EEP is at the sole discretion of the County Administrator. Sarah Catala, Hendry County associate planner, is the author of the Plan Amendment. Ms. Catala testified that an EEP could encompass a wide variety of uses, including ecotourism (e.g., bird-watching tours), manufacturing, and large-scale commercial development such as a Super Walmart. The Plan Amendment is essentially circular. The definition of an EEP refers to compliance with Policy 10.1.7, but Policy 10.1.7 refers back to the definition and the criteria in Policies 2.1.1 and 2.1.2. Policy 2.1.1 requires an EEP to comply with Policy 10.1.7, as well as Policy 2.1.2. Objective 2.1 and Policies 2.1.1 and 2.1.2 lack meaningful and predictable standards for the use and development of EEPs. Policy 2.1.1, as previously referenced, refers the reader to Policy 2.1.2 and further states that EEPs must “comply with Hendry County’s compatibility requirements” and must have “adequate infrastructure.” The Plan Amendment does not define either “compatibility requirements” or “adequate infrastructure.” Nor does the Plan Amendment cross-reference any specific compatibility or infrastructure requirement in either the Plan or the County’s Land Development Regulations. The County highlights Policy 2.1.2 as the measurable criterion that directs the location, timing and extent of development of both EEPs and large-scale commercial and industrial developments throughout the County. However, as discussed below, Policy 2.1.2 does not resolve the Plan Amendment’s failure to provide meaningful and predictable standards directing the location, amount and timing of the development of EEPs or large-scale commercial and industrial in the County. Large-scale Commercial and Industrial Developments Policy 2.1.2 adds “large-scale commercial and industrial developments” as an allowable use in every FLU category in the County with the exception of the same three categories from which EEPs are excluded: Agriculture Conservation, Residential/Pre-Existing Rural Estates, and Felda Estates. Large-scale commercial and industrial developments must meet the requirements listed in paragraphs (a) through (n) of Policy 2.1.2.6/ Policy 2.1.2(a) requires EEPs and large-scale commercial and industrial developments allowed by the Plan Amendment to undergo a rezoning to Planned Unit Development (PUD) during which time various site-specific criteria found in the land development regulations will be applied to development of a particular project. The PUD rezoning criterion in the County’s LDRs govern the location of a particular use on a specific property. The PUD requirements do not relate in any way to the appropriate location of either an economic project or large-scale commercial or industrial development within the approximately 580,000 acres open for those developments under the Plan Amendment. Thus, this criterion is not a meaningful standard that provides for the general distribution, location, and extent of land for EEPs or large-scale commercial or industrial use. Policy 2.1.2(b) requires EEPs and large-scale commercial and industrial developments allowed by the Plan Amendment to be “consistent with siting proposals developed by County staff and approved by the Board of County Commissioners.” It is undisputed that the said siting proposals have yet to be developed by staff. Ms. Catala anticipates developing a locational matrix that will “match up locations in the County with the needs of a business.” As such, the siting proposals will provide locational standards for future EEPs and large- scale commercial and industrial developments. As written and adopted, though, the Plan Amendment contains no such standards. Policy 2.1.2(c) requires EEPs and large-scale commercial and industrial developments to have “direct access to principal arterials and collectors or access to the principal arterials and collectors via local roads with adequate capacity which can be readily provided by the development.” This criterion simply requires EEPs and large-scale commercial and industrial developments to have access to a roadway of some sort. It does not guide developments to locate within proximity to a roadway, or require direct access to a particular class of roadway. The criterion does not preclude the developer from building a road from the project to an existing local roadway. Furthermore, the Plan Amendment neither defines the term “adequate capacity” nor cross-references an existing definition of that term elsewhere in the Plan. Without a definition, the reader is left to speculate whether a particular project site is appropriate in proximity to any particular roadway. As written, Policy 2.1.2(c) does not provide meaningful standards for the location, distribution, or extent of either EEPs or large-scale commercial or industrial projects within the approximately 580,000 acres designated eligible for these uses under the Plan Amendment. Policy 2.1.2(d) relates to the provision of utilities to serve an EEP or large-scale commercial or industrial project. The Policy reads as follows: The project has access to, will upgrade/extend, or construct on-site utilities; or a public or private provider will extend and/or expand the utilities (including an upgrade if necessary) or has the extension of utilities in the utility’s financially feasible plan. The project must have access to all existing or planned necessary utilities, such as water, sewer, electricity, natural gas, cable, broadband, or telephone. This criterion provides so many alternatives, it is essentially meaningless. Boiled down, the provision requires only that the project have utilities, which is essential to any development. The criterion does not direct the location of one of these projects to areas where utilities exist or are planned, but rather allows them anywhere within the approximately 580,000 acres as long as the developer provides needed utilities, somehow, some way. Policy 2.1.2(e) requires “[t]he project [to have] access to and . . . provide on-site rail facilities, when appropriate[.]” This criterion provides locational criterion to the extent that a development for which rail facilities are integral must locate in proximity thereto. However, that criterion is self-evident. The policy does not add any guidance for the location, distribution, and extent of EEPs and large- scale commercial or industrial projects which do not require rail facilities. Policy 2.1.2(f) requires the project to “provide sufficient open space, buffers, and screening from exterior boundaries where warranted to address all compatibility issues.” Buffers, screening, and open space requirements are addressed at the PUD rezoning stage of development and do not provide guidance as to the location of development within any particular land area. Furthermore, the language does not direct an EEP or large-scale commercial or industrial development away from existing uses which may be incompatible therewith. The Plan Amendment actually anticipates incompatibility and requires development techniques to address incompatibilities at the rezoning stage. Policy 2.1.2(g) requires a minimum of 80 acres for a large-scale commercial or industrial development. The policy allows the County to increase that minimum size “if the County finds that a project with more land is necessary to address the impacts of the development on the surrounding area, or if the County concludes that a larger site is necessary to provide a viable project.” The policy has a veneer of locational criterion: it excludes development or redevelopment of parcels, or aggregated parcels, which are smaller than the 80 acre threshold. However, the policy provides an exception for the County to require larger parcels solely at its discretion. Again, the policy anticipates incompatibility between large- scale commercial or industrial development and the existing land uses. Policies 2.1.2(h), (i), (j), (k), (l), and (m) bear no relationship to location, distribution, or extent of the land uses allowed under the Plan Amendment. Petitioner has proven beyond fair debate that the Plan Amendment neither provides for the general distribution, location, and extent of the uses of land for commercial and industrial purposes nor meaningful standards for the future development of EEPs and large-scale commercial and industrial development. Section 163.3177(1) requires local government plan amendments to establish meaningful guidelines for the content of more-detailed land development regulations. Policy 2.1.2(b) requires large-scale commercial and industrial developments to be consistent with “siting proposals,” which Ms. Catala testified are anticipated to be adopted in the County’s land development code. Ms. Catala generally described a matrix that would help industry “get the best fit for their needs in the County.” The Plan Amendment does not provide any guidelines for adoption of a matrix or any other siting proposals to be adopted by County staff and approved by the Board of County Commissioners pursuant to Policy 2.1.2.(b). Lastly, section 163.3177(6)(a) requires that the FLUE establish the general range of density and intensity of the uses allowed. Ms. Catala testified that the intent of the Plan Amendment is not to change the density or intensity of uses from those already allowed in the plan. The plain language of the Plan Amendment does not support a finding that densities and intensities of use remain the same under the Plan Amendment. The intensity of non- residential development allowed under the Plan Amendment is, at best, unclear, and in some cases left entirely to the discretion of the Board of County Commissioners. Policy 2.1.1 provides that the densities and intensities of EEPs “shall not exceed the values that are established for commercial and industrial uses in the respective land use categories.” The County argues that a fair reading of the Policy restricts non-residential development to the intensities established in the underlying category for non-residential development. Under Policy 2.1.2, intensities of large-scale commercial and industrial developments “shall not exceed the Floor Area Ratio for Commercial and/or Industrial Uses established in their respective land use categories.” While a fair reading of Policy 2.1.1 restricts the intensity of commercial or industrial development to the density established in the underlying land use district, Policy 2.1.2 does not. The pronoun “their” refers back to the Commercial and Industrial land use categories. Thus, under Policy 2.1.2, commercial and industrial uses can develop in other land use categories at the intensities established in the Commercial or Industrial category. Further, both Policy 2.1.1 and Policy 2.1.2 cap EEP intensity at 0.25 FAR in residential FLU categories. This language overrides the existing cap on non-residential development in those categories established in the FLUE. It also overrides those FLU categories, such as Residential Low- Density, which establish an FAR of 0.00. Finally, Policy 2.1.2 contains no intensity cap on development of commercial and industrial development within residential FLU categories. The County explains that large- scale commercial and industrial developments are simply not allowed in FLU categories, such as Residential Low-Density, which establish an FAR of 0.00. The County’s interpretation is not consistent with the plain language of the policy. Policy 2.1.2 specifically allows large-scale commercial and industrial development in all land use categories except Agricultural-Conservation, Residential/ Pre-Existing Rural Estates, and Felda Estates. If the County intended to exclude other FLU categories, they would have been included in the list of exceptions. Petitioner has proven beyond fair debate that the Plan Amendment does not establish the general range of intensity of large-scale commercial and industrial development. Data and Analysis Section 163.3177(6)(a)2. requires local government FLUE amendments “to be based upon surveys, studies, and data regarding the area, as applicable” including the following: The amount of land required to accommodate anticipated growth. The projected permanent and seasonal population of the area. The character of the undeveloped land. The availability of water supplies, public facilities, and services. The need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. The compatibility of uses on land adjacent to an airport as defined in s. 330.35 and consistent with s. 333.02. The discouragement of urban sprawl. The need for job creation, capital investment, and economic development that will strengthen and diversify the community’s economy. The need to modify land uses and development patterns with antiquated subdivisions. County staff did not collect data or perform an analysis of the character of the undeveloped land affected by the Plan Amendment. County staff did not perform any analysis of the suitability of the land area affected by the Plan Amendment for either a large-scale commercial or industrial development nor for an EEP. County staff did not perform an analysis of the availability of the County water supplies, wastewater treatment, or other public facilities, to serve large-scale commercial or industrial development or an EEP located within the area affected by the Plan Amendment. In fact, County staff acknowledged that wastewater treatment facilities are inadequate to support full buildout of the industrial sites available at the Airglades airport facility. County staff did not perform an analysis of the compatibility of large-scale commercial or industrial development adjacent to the Airglades airport facility. In preparing the Plan Amendment, County staff clearly relied upon data reflecting the County’s needs for job creation, economic development, and a diversified economy, including the Department of Revenue Property Tax Overview for Hendry County, and the fact that the County is designated a Rural Area of Critical State Concern. County staff also considered, in support of the Plan Amendment, the County Commission’s recently-adopted Vision statement: “To be an outstanding rural community in which to live, work, raise a family and enjoy life by creating an economic environment where people can prosper.” No evidence was introduced to support a finding that County staff analyzed whether the Plan Amendment would achieve the goals of strengthening and diversifying the County’s economy. The County introduced the testimony of Greg Gillman, the County’s Economic Development Director, regarding his efforts to attract new business to the County, as well as the obstacles the County faces in these efforts. Mr. Gillman testified regarding five particular scenarios in which he worked with companies to find a suitable location in the County. In one scenario, the price was too high for the potential buyer. In another, the potential buyer was put off by the wooded acreage. In another, the seller would not subdivide. In another, the property is undergoing a PUD rezoning process. In the final scenario, Mr. Gillman testified the potential buyer rejected all proposed sites without explanation. Mr. Gillman did not give a single example of a scenario in which a potential business opportunity was lost due to the need to change the FLUM designation of a property. In fact, Mr. Gillman testified that he does not even show sites without appropriate land use classifications to potential buyers. While there is a plethora of data on the limited amount of land in the County classified for commercial and industrial uses, County staff gathered no data regarding, and conducted no analysis of, the vacancy rate of sites on which commercial and industrial uses are currently allowed. Mr. Gillman provided anecdotal evidence regarding recent efforts to redevelop vacant sites, some of which have been successful. Ms. Catala testified that, in addition to relying on the County’s Vision statement and economic data, she reviewed the comprehensive plans of other jurisdictions. From that review, she gleaned the idea of an EEP. The County introduced no evidence to support a finding that the threshold of 80 acres for an EEP was based upon data at all. Mr. Gillman’s testimony revealed that Ms. Catala originally proposed a higher threshold (perhaps 120 acres), but that he recommended a smaller acreage. Mr. Gillman gave no explanation of the basis for his recommendation. Section 163.3177(f) provides, “To be based on data means to react to it an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue.” Given the lack of evidence linking the Plan Amendment to spurring economic development, the County failed to demonstrate that it reacted appropriately to the economic data on which it relied. Even if Mr. Gillman’s anecdotes were accepted as data, they do not support eliminating plan amendments to allow commercial and industrial development in a variety of other land use categories. Internal Inconsistency Section 163.3177(2) provides as follows: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent. The Petitioner alleges the Plan Amendment changes to the FLUE and Economic Development Element are inconsistent with a number of goals, objectives, and policies found within the FLUE and in other plan elements. Each one is taken in turn. Future Land Use Element First, Petitioner alleges internal inconsistency within the FLUE, specifically between the Plan Amendment and FLUE Goal 1, Objective 1.1, and Policies 1.1.1, 1.1.3, 1.1.4, 1.1.5, 1.1.9, 1.1.10, 1.1.11, and 1.1.13. Policy 1.1.1 governs land uses allowed within the Agriculture FLU category. The policy states, in pertinent part, as follows: Purpose The purpose of the Agriculture Future Land Use Category is to define those areas within Hendry County which will continue in a rural and/or agricultural state through the planning horizon of 2040. * * * Location Standards Areas classified as Agriculture are located within the rural areas of Hendry County. Lands in this category are not within the urban area, but may be adjacent to the urban area. Some of these lands may be converted to urban uses within the 2040 planning horizon. However, the majority of the lands classified Agriculture will remain in a rural, agricultural land use through the year 2040. The Plan Amendment affects more land designated as Agriculture than that designated in any other category. Slightly more than 70 percent of the County, almost 530,000 acres, is designated as Agriculture, and all of it is subject to development for an EEP or an 80-acre minimum commercial or industrial project under the Plan Amendment. Development of ill-defined EEPs and 80-acre minimum large-scale commercial and industrial projects is not consistent with designating lands “which will continue in a rural and/or agricultural state” through 2040. Respondent counters that the Plan Amendment is not inconsistent with Policy 1.1.1 because that Policy already allows a number of non-traditional agricultural uses which are commercial and/or industrial in nature, and may be sited through the PUD rezoning process, just as the uses allowed under the Plan Amendment. Policy 1.1.1 authorizes the use of Agriculture lands for utilities, bio-fuel plants, mining and earth extraction and processing operations, solid waste facilities, resource recovery facilities, and other similar uses. The County’s argument is not persuasive.7/ The non- agricultural uses allowed under the existing plan are agriculturally-related or agriculture-dependent uses, such as bio-fuel, mining, and resource recovery, or uses which, by their nature, are best suited to less-populated rural areas, such as utilities and solid waste facilities. In contrast, large-scale commercial and industrial uses are not limited to agriculturally-related or utility uses. Under the Plan Amendment, anything from an auto parts manufacturing plant to a Super Walmart could be developed in areas designated Agriculture. Any number of urban uses could be developed under the auspices of an EEP or large-scale commercial. Under the Plan Amendment, no amendment to the County’s comprehensive plan will be needed to allow such urban uses in the Agriculture category. Policies 1.1.3, 1.1.4, and 1.1.5 govern land uses in the following FLU categories: Residential – Rural Estates, Residential – Medium Density, and Residential – High Density, respectively. According to Policy 1.1.3, the purpose of the Residential – Rural Estates category is “to define those areas within Hendry County which have been or should be developed at lower density in order to promote and protect the rural lifestyle through the planning horizon of 2040.” The Policy permits only residential and customary accessory uses within the category. The Policy specifically sets a FAR of 0.00 for non- residential development. According to Policy 1.1.4, the purpose of the Residential – Medium Density category is “to identify those areas within Hendry County which currently, or should be, encouraged to become the primary location of residential development offering a mixture of residential products at suburban/urban style density through the planning horizon 2040.” The policy permits single- and multi-family development, as well as mobile homes, and customary accessory uses. Commercial development is allowed only as an element of mixed-use developments, of which commercial is limited to 15 percent. Additional limitations on commercial apply, including limits on size and character, location within the mixed-use development, and buffering from adjacent residential uses. Policy 1.1.4 establishes an FAR of 0.10 for non-residential development. According to Policy 1.1.5, the purpose of the Residential – High Density category is “to define those areas within Hendry County which are or should become higher density residential development through the planning horizon 2040.” The policy permits all types of residential development and customary accessory uses. As with medium-density category, Policy 1.1.5 allows some commercial development within mixed-use developments subject to limitations on size and character, location within the mixed-use development, and buffering. The policy establishes an FAR of 0.10 for non-residential development. Under the Plan Amendment, each of these three Residential categories is available for siting an EEP. New Policy 2.1.2 allows for development of EEPs in these categories at an FAR of 0.25. The Plan Amendment allows EEPs within the Residential Rural Estates category directly in contravention of Policy 1.1.3, which limits uses to residential, recreational, and limited agricultural, and provides zero intensity for non- residential uses. As previously noted, the Plan Amendment broadly defines EEPs, and the record supports a finding that such a project could encompass anything from a manufacturing facility to a Super Walmart. The broad array of uses to diversify the County’s economy is in conflict with the County’s previous decision, reflected in Policy 1.1.3 to designate these areas for future development at low-density residential “to promote and protect the rural lifestyle.” Likewise, the Plan Amendment opens up the Residential Medium Density and Residential – High Density categories for location of ill-defined EEPs in contravention of Policies 1.1.4 and 1.1.5, which limit development in those categories to primarily residential, only allowing commercial within a mixed- use development and limited to a maximum of 15 percent. Furthermore, the Plan Amendment allows these developments at a greater intensity than the FAR of 0.10 established for non- residential density in those categories. The parties disagreed as to whether the Plan Amendment authorizes large-scale commercial and industrial development in the Residential – Rural Estates category governed by Policy 1.1.3. The argument primarily turns on interpretation of new Policy 2.1.2, as discussed in the previous section herein titled “Meaningful and Predictable Standards.” The County contends that the correct interpretation of Policy 2.1.2 allows a large-scale commercial or industrial development at the maximum intensity established in the underlying land use category. In other words, if the underlying land use category establishes an FAR of 0.00 for industrial development, no industrial development is allowed. However, if the same category establishes an FAR for commercial development, the Plan Amendment allows commercial development in that category limited to the intensity established by the FAR. The undersigned has rejected that interpretation as discussed in the prior section herein. Petitioner contends that the language allows commercial and industrial development in every non-exempt land use category at the intensities established in the Commercial and/or Industrial land use category, as applicable. Petitioner’s interpretation is the correct interpretation, and indeed the only possible reading of the plain language of Policy 2.1.2(l).8/ Policy 1.1.9 governs uses in the Commercial land use category. The Policy allows non-residential development at the following intensities: Retail Commercial – 0.25 FAR Office – 0.50 FAR 0.50 FAR for mixed-use building with a maximum of 25% retail and a minimum of 75% office 0.30 FAR for mixed-use development with commercial on the first floor and residential on stories above the first floor. Allowing large-scale commercial development at the stated intensities directly conflicts with Policy 1.1.3, which provides an FAR of 0.00 for non-residential development in Residential – Rural Estates; Policy 1.1.4, which caps intensity at 0.10 for commercial in Residential – Medium; and Policy 1.1.5, which provides an FAR of 0.10 in Residential – High. Thus, Plan Amendment Policy 2.2.1 is in conflict with Policies 1.1.3, 1.1.4, and 1.1.5. Policy 1.1.10 governs uses in the Industrial land use category. The Policy allows industrial development at an intensity of 0.75. Allowing large-scale industrial development at an intensity of 0.75 directly conflicts with Policy 1.1.3, which provides an FAR of 0.00 for non-residential development in Residential – Rural Estates; and Policies 1.1.4 and 1.1.5, which limit non-residential uses to commercial and recreation in the Residential – Medium and Residential – High land use categories. Thus, Plan Amendment Policy 2.1.2 is in conflict with Policies 1.1.3, 1.1.4, and 1.1.5. Petitioner alleges the Plan Amendment is inconsistent with Policies 1.1.9 and 1.1.10 governing development within the Commercial and Industrial categories, respectively. The allegations were not supported by a preponderance of the evidence. The Plan Amendment does not alter either the uses allowed in those categories or the intensity of development allowed therein. Those policies are essentially unscathed. However, because the Plan Amendment allows the types and intensities of development described in the Commercial and Industrial categories to occur in residential and other categories in which those uses and intensities conflict, the Plan Amendment is inconsistent with the policies governing those residential and other categories. Policies 1.1.9 and 1.1.10 are merely the conduits through which Policy 2.1.2 is found to be inconsistent with Policies 1.1.3, 1.1.4, and 1.1.5. Policy 1.1.11 governs land uses in the Public category. The Policy establishes the following purpose and uses: Purpose The purpose of the Public Future Land Use Category is to establish regulations relative to use and location of publicly- owned lands, semi-public lands, and private lands authorized for public purposes which currently exist or which may become public through the planning horizon 2040. Description/Uses Lands in this category are areas designated for public and semi-public uses, including governmental buildings, schools, churches, and worship centers, utilities, solid waste handling and disposal facilities, airports, logistic centers when operated on public property, recycling facilities, and similar public and semi-public uses. This category may also include publicly-owned parks and other public/semi-public recreational facilities. There is no dispute that the Plan Amendment would allow both EEPs and large-scale commercial and industrial uses within the Public land use category. Large-scale commercial and industrial development is inconsistent with the purpose of the Public land use category adopted in Policy 1.1.11 and the uses established therein. Because the Plan Amendment provides no clear definition of an EEP, and leaves the determination solely to the County Administrator, it is impossible to determine whether allowing said development in the Public land use category would necessarily be inconsistent with Policy 1.1.11. Policy 1.1.13 governs uses in the Leisure/Recreation category. The Policy establishes the following purpose and uses: Purpose The purpose of the Leisure/Recreation Future Land Use Category is to define those areas within Hendry County which are used or may become used for free standing/independent leisure/recreation activities through the planning horizon 2040. * * * Description/Uses Leisure/Recreation areas are sites which are currently developed for leisure/recreation facilities or undeveloped sites which are designated for development as leisure/ recreation facilities. . . . Uses allowed within this category shall be limited to sports facilities whether individually developed or in sports complexes, active and/or passive parks, recreation vehicle parks, campgrounds (whether primitive or improved), marinas, golf courses, equestrian centers and riding areas, sporting clay facilities, eco tourism activities, and similar leisure and recreation facilities and ancillary facilities. Large-scale industrial and commercial development would directly conflict with the purpose and types of use allowed within this category pursuant to Policy 1.1.13. As the Plan Amendment provides a very broad definition of EEP, it is impossible to determine that every such use would be inconsistent with Policy 1.1.13. In fact, since an EEP may include eco-tourism uses, location within Leisure/Recreation may be entirely suitable. Petitioner next contends that the Plan Amendment is internally inconsistent with Policy 1.5.17, which provides, as follows: The County’s development regulations shall specifically encourage redevelopment, infill development, compatibility with adjacent uses, and curtailment of uses inconsistent with the character and land uses of surrounding area, and shall discourage urban sprawl. No evidence was introduced regarding whether the County’s land development regulations fall short of this Policy mandate. The County’s expert testified that he had not reviewed the County’s land development regulations to determine whether they met this requirement. Petitioner’s expert provided no testimony on this issue. Petitioner did not prove the Plan Amendment is inconsistent with Policy 1.5.17. Other Plan Elements Next, Petitioner contends the Plan Amendment is inconsistent with Infrastructure Element Objective 7.A.3 and Policy 7.A.3.1, which read as follows: Objective 7.A.3: The County shall maximize use of existing sewer facilities and discourage urban sprawl within infill development. In addition, limit the extension of sewer service to areas designated for urban development on the Future Land Use Map. This Objective shall be implemented through the following policies: Policy 7.A.3.1: The Future Land Use Element and Map allows density and the most flexibility for development in the areas near the Cities where sewer facilities are available, or are more feasible for sewer connections than the more remote areas. The Plan Amendment allows development of both EEPs and large-scale commercial and industrial projects regardless of the availability of existing sewer facilities to the project site. The Plan Amendment expresses no preference between, and alternately allows said development with either, access to existing sewer facilities, or provision of on-site wastewater treatment. The Plan Amendment does not change the land use designations on the existing Future Land Use Map. Nearly 580,000 acres opened up for EEPs and large-scale commercial and industrial development under the Plan Amendment is designated on the FLUM as Agriculture. Policy 1.1.1 specifically defines the Agriculture category for those areas of the County “which will continue in a rural and/or agricultural state through the planning horizon of 2040.” The Policy clearly characterizes the Agriculture designations on the FLUM as “rural areas of Hendry County,” and, while it recognizes that “some of these lands may be converted to urban uses” within the planning horizon, “the majority of the lands classified Agriculture will remain in a rural, agricultural land use through the year 2040.” Policy 2.1.2 specifically allows a public or private provider to “extend and/or expand” utilities in order to serve an EEP or large-scale commercial or industrial development. Thus, the Plan Amendment does not “limit the extension of sewer service to areas designated for urban development on the Future Land Use Map” as required by Objective 7.A.3. Likewise, the Plan Amendment does not “allow the greatest density and the most flexibility for development in the areas near the Cities where sewer facilities are available, or are more feasible for sewer extensions than the more remote areas.” Indeed, Ms. Catala testified consistently that one of the main objectives of the Plan Amendment was to provide more flexibility for development than allowed under the existing plan. Next, Petitioner maintains the Plan Amendment is inconsistent with Traffic Circulation Element Policy 8.5.3, which reads as follows: Revisions of the roads on the Future Traffic Circulation Map shall be coordinated with and connect or directly serve existing development areas or projected growth areas shown on the Future Land Use Map. The Plan Amendment does not revise any roads on the Future Traffic Circulation Map. No evidence was presented that the said revisions would not be coordinated with existing or projected growth areas shown on the Future Land Use Map. Thus, Petitioner did not prove the Plan Amendment is inconsistent with Policy 8.5.3. Next, Petitioner contends the Plan Amendment is inconsistent with Concurrency Management Element Policy 9.2.1, which reads, as follows: The Future Land Use Map is developed to coincide with the availability of public facilities and/or natural resources such that new facilities are not necessarily required for new development. The Plan Amendment allows both EEPs and large-scale commercial and industrial development to occur without regard to availability of public facilities. Although Policy 2.1.2 recognizes the importance of serving these new projects by adequate utilities of all types, it specifically allows public providers to build new, or extend existing, infrastructure to serve those developments. Further, the Plan Amendment anticipates the construction of new facilities to serve these developments, even requiring the County to accelerate projects in its Capital Improvements Program. The Plan Amendment conflicts with Policy 9.2.1 by authorizing development in areas on the FLUM for which public facilities are neither available nor planned. Future Land Use Map Series Finally, Petitioner alleges the Plan Amendment is inconsistent with the maps adopted in the current plan, specifically the FLUM and Conservation Map series. Because the Plan Amendment allows large-scale commercial and industrial developments in land use categories with which those uses are inconsistent, the location and distribution of uses shown on the FLUM are no longer accurate. The Conservation Map series indicates the generalized location in the County of eight different environmental categories, including soils, panther habitat, and historical resources. Very little evidence was adduced relative to whether the Plan Amendment directly conflicted with any one of the maps in the series. The evidence presented related more to the issue of whether the Plan Amendment was supported by data and analysis. Petitioner did not prove beyond fair debate that the Plan Amendment directly conflicts with the Conservation Map series. Urban Sprawl Petitioner’s final challenge to the Plan Amendment is that it does not discourage urban sprawl as required by section 163.3177(6)(a)9. Section 163.3177(6)(a)9.b. provides as follows: The future land use element or plan amendment shall be determined to discourage the proliferation of urban sprawl if it incorporates a development pattern or urban form that achieves four or more of the following: Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems. Promotes the efficient and cost- effective provision or extension of public infrastructure and services. Promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system, including pedestrian, bicycle, and transit, if available. Promotes conservation of water and energy. Preserves agricultural areas and activities, including siliviculture, and dormant, unique, and prime farmlands and soils. Preserves open space and natural lands and provides for public open space and recreation needs. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. Provides uses, densities, and intensities of use and urban form that would remediate an existing or planned development pattern in the vicinity that constitutes urban sprawl or if it provides for an innovative development pattern such as transit-oriented development or new towns as defined in s. 163.3164. Petitioner maintains the Plan Amendment does not meet any of the listed criterion, thus the Plan Amendment does not discourage the proliferation of urban sprawl. The County maintains the Plan Amendment meets at least four of the foregoing indicators, and, thus, must be determined to discourage the proliferation of urban sprawl. The County’s expert witness testified that, in his opinion, the Plan Amendment meets indicators I, II, IV, V, VII, and perhaps VI. In making the following findings, the undersigned considered the testimony of both Petitioner’s and Respondent’s expert witnesses and found Petitioner’s expert opinions to be the more credible and persuasive. The Plan Amendment meets indicator I if it directs or locates EEPs and large-scale commercial and industrial development “in a manner that does not have an adverse impact on and protects natural resources and ecosystems.” The Plan Amendment contains no locational criteria for EEPs and large-scale commercial and industrial developments within the 580,000 acres of land opened up for these uses under the Plan Amendment. County staff had data, in the form of the existing conservation land use map series and the soils map, to draw from in determining areas inappropriate for these types of development. Ms. Catala did not rely upon that data, however, explaining instead that her knowledge of the location of wetlands, floodplains, and other natural resources within the subject area was derived from her day-to-day work. Ms. Catala performed no analysis of the impact of potential large-scale commercial or industrial uses on the natural resources and ecosystems which are present in the affected area. The County argues that the Plan Amendment meets criterion I because it does not allow the subject developments in the Agriculture Conservation Land Use Category, thus the Plan Amendment directs development away from natural resources located in that category. Policy 1.1.1(b). states the purpose of the Agriculture Conservation category is to define those areas within the County which are predominantly jurisdictional wetlands or contain a large portion of wetlands. Land in this category also includes state projects designed to meet the water quality and quantity goals related to the Comprehensive Everglades Restoration Plan. The policy strictly limits both the type and intensity of development which may be located within this category. For example, non-agricultural development is limited to large-lot single-family homes, clustered developments, and rural PUDs, at an intensity no greater than 0.10. The County’s argument misses the mark. The issue is not whether the uses allowed under the Plan Amendment are excluded from land in protected categories, but whether the Plan Amendment directs development away from natural resources present in the 580,000 acres affected by the Plan Amendment. The Conservation Element Map Series documents the location of wetland, floodplains, primary and secondary panther habitat, and hydric soils within the County, including the area affected by the Plan Amendment. Because the Plan Amendment allows the subject development to occur anywhere within the 580,000 acres without regard to location of natural resources, it cannot be found to direct or locate development “in a manner that does not have an adverse impact on and protects natural resources and ecosystems.” The Plan Amendment does not meet criterion I. Criterion II applies if the Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services. The Plan Amendment allows the subject development to locate without regard to the availability of public infrastructure or services. The Plan Amendment acknowledges that the development must be served, but anticipates that a public or private provider may have to extend services to the property, and does not discourage location of said projects in remote areas where said services are neither available nor planned. Further, the Plan Amendment acknowledges that the County may have to “expend funds not already provided for in the County Capital Improvement Program” to serve the development. Extending services to remote areas of the County is neither efficient nor cost-effective, especially in light of the fact that development could occur in multiple far-flung areas under the Plan Amendment. The Plan Amendment does not meet criterion II. Likewise, the Plan Amendment does not meet sprawl criterion IV because it does nothing to promote conservation of water and energy. The Amendment allows on-site utilities, including wells, to service new development. By allowing development in remote areas of the County, the Plan Amendment does not promote energy conservation. Likewise, the Plan Amendment does not meet criterion V, “[p]reserves agricultural areas and activities, including silviculture, and dormant, unique and prime farmland and soils.” The Plan Amendment does not relate to the soils map and direct development away from prime farmland and soils. Further, the Plan Amendment allows conversion of some 580,000 acres of land designated “Agriculture” to non-agricultural uses. Lands in the Agriculture land use category have been designated by the County to “continue in a rural and/or agricultural state through the planning horizon of 2040.” The Plan Amendment meets criterion VI if it “preserves open space and natural lands and provides for public open space and recreation needs.” The County’s expert testified that the Plan Amendment will increase the County’s tax base so that more public open space and recreation can be provided. Petitioner’s expert testified that the subject developments will intrude into rural open spaces and natural lands and “could change the scenic landscape” of the County. The Plan Amendment does not meet criterion VI. Criterion VII applies if the Plan Amendment creates a balance of land uses based upon demands of the residential population for the non-residential needs of the area. Neither party introduced any evidence regarding the amount of commercial or industrial development needed to serve the residential population of the County. Certainly the unemployment statistics indicate a need for employment opportunities. Petitioner did not prove that the Plan Amendment does not meet criterion VII. Criterion III and VIII do not apply to the Plan Amendment. Having determined that the Plan Amendment does not meet four or more of the criterion to be determined not to promote the proliferation of urban sprawl, the analysis then turns to the primary indicators of urban sprawl. Section 163.3177(6)(a)9.a. lays out 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl. Again, the evidence conflicted as to whether the Plan Amendment meets any of the indicators. In making the following findings, the undersigned has considered the testimony of both Petitioner’s and Respondent’s expert witnesses, and found the testimony of Petitioner’s expert to be the more credible and persuasive. The Plan Amendment meets several of the primary indicators of the proliferation of urban sprawl. The Plan Amendment allows loosely-identified EEPs and large-scale commercial development to occur in roughly 580,000 largely rural acres currently designated for Agriculture. The Plan Amendment does not limit location of these developments within the Agriculture designation. Thus, the Plan Amendment “[p]romotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while using undeveloped lands that are available and suitable for development” which is indicator II. Promoting these areas for development is, in fact, the main purpose of the Plan Amendment. Indicator IV is triggered if the Plan Amendment “[f]ails to adequately protect and conserve” a litany of natural resources and natural systems. The Plan Amendment meets this indicator because it does not direct development away from natural resources which may be located within the 580,000 acres in which it promotes development. Under the Plan Amendment, vast areas currently in, or designated for, agricultural uses, are allowed to convert to urban uses without a plan amendment. The Plan Amendment does not direct development away from existing agricultural uses. Thus, the Plan Amendment meets indicator V: “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.” Similarly, the Plan Amendment “[f]ails to provide a clear separation between rural and urban uses[,]” thus triggering indicator IX. On the issue of public facilities, the Plan Amendment meets both criterion VI and VII. The Plan Amendment fails to maximize the use of existing public facilities because it does not direct development to areas where public facilities, including roads, sewer, and water, are available. Likewise, the Plan Amendment fails to maximize the use of future public facilities, because it allows development to occur in areas where public facilities are not planned. In addition, the Plan Amendment anticipates the extension of facilities to serve potentially far-flung development, but would not require subsequent future development to locate where the new service was available (i.e., infill development). For this same reason, the Plan Amendment discourages infill development, triggering indicator X. Similary, because it allows scattered large-scale development, the Plan Amendment triggers indicator VIII: “Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining” a litany of public facilities and services. Petitioner did not prove by a preponderance of the evidence that the Plan Amendment triggers indicators I, III, XI, XII, and XIII. Petitioner proved that the Plan Amendment meets indicators II, IV, V, VI, VII, VIII, IX, and X. On balance, the Plan Amendment does not discourage the proliferation of 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 determining that the Plan Amendment is not “in compliance.” DONE AND ENTERED this 12th day of February, 2015, 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 12th day of February, 2015.
The Issue The general issue for determination in this case is whether Amendment 00-D1 to Sumter County’s comprehensive plan (the “Plan Amendment”) is "in compliance" with the Local Government Comprehensive Planning and Land Development Act, Sections 163.3161 through 163.3217, Florida Statutes. (All statutory references are to the 2000 codification of the Florida Statutes.) The initial Petition to Request Administrative Hearing (Petition) alleged numerous reasons why the Plan Amendment should be found not "in compliance." But from the time of the initial Petition--through the Joint Prehearing Stipulation, opening statement at final hearing, and Proposed Recommended Order (PRO)--Petitioners reduced the number of reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU) from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed in this proceeding. In addition, Intervenor contends that Sumter Citizens Against Irresponsible Development (SCAID) does not have standing.
Findings Of Fact Intervenor, the Villages of Lake-Sumter, Inc., owns land in the northeast part of Sumter County on which Intervenor plans to construct a mixed-use development of regional impact (DRI) known as the Villages of Sumter. The proposed DRI will encompass approximately 4,679 acres and is anticipated to contain: 11,097 residential dwelling units; 1,250,000 square feet of commercial area; 250,000 square feet of office area; 157,000 square feet of institutional area; 120,000 square feet of hotel (300 rooms); 100,000 square feet convention center; 23,500 square feet of movie theater (8 screens); 512 acres of golf courses (126 holes); 8 marina slips; 602 acres of wildlife management and Kestrel foraging areas; 162 acres of lakes, 162 acres of roads, 31 acres of parks and buffers; and 227 acres of stormwater and open space. The proposed DRI will feature neighborhood and town centers and will extensively utilize clustering, open spaces, and buffering as part of its design. It is anticipated that the Villages of Sumter DRI will have an internal vehicle capture rate of over 60%--i.e., over 60% of vehicle trips starting in the DRI will not go outside the DRI. The DRI will provide water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. Eighty percent of the residents in the Villages of Sumter DRI will have to be occupied by persons 55 of age or older, and no one under 19 will be permitted to reside within this DRI. When Intervenor filed its Application for Development Approval (ADA) for the Villages of Sumter DRI, Intervenor also requested the subject Plan Amendment to accommodate the DRI, including a change in the Future Land Use Element (FLUE) and FLUM from Agricultural use to UEA and PUD. The ADA itself served as a major part of the data and analysis supporting the Plan Amendment. (Another major part of the data and analysis was the Evaluation and Appraisal Report (EAR) prepared by the County in 1995.) The western part of the northern boundary of the Plan Amendment parcel (i.e., the Villages of Sumter DRI) will be the western part of the southern boundary of a related DRI developed by Intervenor known as the Tri-County Villages. From there, the Tri-County Villages DRI extends north to the southern border of Marion County and east to the western border of Lake County. (Towards the east, the northern boundary of the DRI drops just a little south of the southern border of Marion County.) Tri- County Villages is a large mixed-use DRI. It includes residential, commercial, recreational, and open space land uses. Prior to the Tri-County Villages DRI, Intervenor or its predecessor also developed other related mixed-use DRIs to the east in Lake County. SCAID was formed in 1993 or 1994 to oppose the Tri- County Villages DRI and 1994 comprehensive plan amendments adopted to accommodate the Tri-County Villages DRI. SCAID, T. Daniel Farnsworth, and James E. Boyd filed a petition initiating Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd vs. Department of Community Affairs and Sumter County, DOAH Case No. 94-6974GM, to oppose DCA's determination that the County's 1994 amendments were "in compliance." SCAID, Farnsworth, and Weir are collaterally estopped to deny facts established in DOAH Case No. 94-6974GM (SCAID I). (Latham and Roop are not estopped.) See Conclusions of Law 63-64, infra. In any event, all Petitioners agreed to official recognition of the Final Order entered in DOAH Case No. 94-6974GM. Among the facts established by adoption of the Recommended Order by the Final Order in SCAID I was the history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri-County Villages DRI: [¶4] [I]ntervenor [Villages] is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. [¶5] In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. [¶6] In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. [¶7] In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. [¶8] On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. [¶9] The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. [¶10] The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. [¶11] Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. SCAID I, 17 F.A.L.R. 4527, 4531-32 (Dept. Community Affairs Aug. 1995). (The Recommended Order may also be found on WESTLAW at 1995 WL 1052949.) At its inception, the Tri-County Villages DRI was projected to build-out in approximately 2015. When the Tri- County Villages DRI first began construction in late 1992, the developer pulled 24 building permits. In 1993, the County issued 406 residential building permits, 365 of which were pulled for the Tri-County Villages DRI. In 1997, the developer pulled 1,052 building permits for the Tri-County Villages DRI. To date, approximately 13,000 homes have been built in the Tri- County Villages DRI. Based upon present projections, the Tri- County Villages DRI is anticipated to be substantially built-out in 2003-04, 12 years ahead of its initially projected build-out date of 2015. Presently, there are numerous cultural and recreational activities, shopping options, medical and governmental services available to residents within the Tri-County Villages DRI. While still designated as a UEA and PUD on the County's FLUM, the Tri-County Villages DRI in fact is a self-contained urban area, especially in the context of Sumter County. Sumter County is mostly rural. According to the 1995 EAR, the County's permanent (non-seasonal) population was projected to be: 38,961 for 1998; 56,000 for 2005; and 64,200 for 2010. The unincorporated portion of the County contains 334,903 acres, approximately 99,436 acres of which are state- owned conservation lands, and approximately 202,000 acres of which are agricultural lands. There are five municipalities in the County--Wildwood, Bushnell (also the County seat), Center Hill, Coleman and Webster. None are as urbanized as the Tri- County Villages DRI. Simultaneous Conversion Objective 7.1.2 of the County's comprehensive plan provides in pertinent part: Upon adoption of this plan, Sumter County shall . . . provide for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban expansion area boundary and insures retention of agricultural activities, preserves natural resources and discourages urban sprawl. In pertinent part, the County Plan's Policy 7.1.1.2(e) provides that the County's land development regulations governing PUDs should be based on and consistent with the following standards for densities and intensities: Within the Urban Expansion Area, a base density of up to 8 residential units per gross acre in residential areas and 6 units per gross acre in commercial areas are allowed. . . . . Outside of an Urban Expansion Area, a base density of up to 4 residential units per gross acre in residential, commercial and agricultural areas are allowed. Policy 7.1.5.1 allows PUDs "in the following land use districts and at the following densities/intensities of use": 8 dwellings per gross acre in "Residential Areas Inside UEA"; 6 dwellings per gross acre in "Commercial Areas Inside UEA"; and 4 dwellings per gross acre in "Res./Comm. Uses Outside UEA." Petitioners contend that the foregoing objective and policies somehow combine to preclude the simultaneous conversion of Agricultural FLU to UEA and PUD; they appear to contend that these policies necessitated an intermediate conversion to UEA. (Protection of agricultural lands was raised in a more general sense, but this precise issue was not raised prior to final hearing.) But Petitioners argument not only is not persuasive, it is not even easily understood. It is at least fairly debatable that the objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even without prior notice of this precise issue, one of the County's expert witnesses in land planning persuasively testified that the cited objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even Petitioners' expert land planner ultimately agreed that there is nothing in the Florida Statutes or Florida Administrative Code Rules Chapter 9J-5 to prevent conversion of agricultural uses to more urban uses. Demonstrated Need As reflected in previous Findings of Fact, the subject Plan Amendment is for a highly mixed-use PUD. Of the many mixed uses involved, Petitioners focus on the allocation of land for residential use in their challenge to the demonstration of need for the Plan Amendment. In this context, demonstrated need refers to the existence of adequate data and analysis to demonstrate the need for additional allocation of residential dwelling units on the FLUM. Petitioners assert that the methodology utilized by the County to project need is flawed. Determination of the need for a certain allocation of residential densities starts with a projection of population on the planning horizon (2020). In doing so, all available data and analysis must be considered. (Petitioners also assert that Policy 7.1.2.5(b)1. of the County's comprehensive plan requires such an analysis "utilizing professionally accepted methods," but that policy speaks to additional densities and allocations of land use for developments proposed in agricultural areas, while the Plan Amendment in this case converts the agricultural land to UEA and PUD.) For the purpose of analyzing whether there is a demonstrated need for this Plan Amendment, the County's planner, Roberta Rogers, relied upon need projections made in conjunction with the preparation of the County's EAR. The EAR, prepared in 1999, included a projection of the County's population for the 2020 planning horizon. The EAR projected that the permanent population of unincorporated Sumter County, by the year 2020, will be 79,475. (The total County permanent population is projected to be 94,205.) One of the purposes of an EAR is to provide data and analysis for comprehensive plan amendments. In preparing the population projections reflected in the EAR, Rogers began her analysis by referring to the projections for Sumter County formulated by the Bureau of Economic and Business Research ("BEBR"), as reported in 1996. The 1996 BEBR Report actually reflected projections made in 1995. BEBR publishes yearly reports that state both the estimated current and the projected future populations for each Florida county. The population projections reflected in BEBR Reports are based upon historical trends of 10-15 years' duration. Because the development in the Tri-County Villages DRI is a relatively recent phenomenon, Rogers believed that reliance upon the BEBR projections alone would have resulted in a significant under-projection of the County's future population. As a consequence, Rogers added an annual rate of growth of 1000 building permits per year through 2005 and 500 permits per year through the remaining portion of the planning period for the Tri-County Villages and the Villages of Sumter. Her approach was a conservative approach, since the actual number of building permits issued for the Tri-County Villages DRI in the past two years has significantly exceeded 1000 per year. Rogers conferred with BEBR, prior to completing her analysis, and was assured that her approach was appropriate. Such an adjustment for the Villages is particularly appropriate since the Villages cater to a very specific segment of the population, i.e., persons 55 and above. Over the twenty- year planning horizon relevant to the Plan Amendment, the population of persons in Florida aged 55 and above will increase dramatically as the "baby boomer" population ages. The demand for residential housing for these senior citizens will show a similar dramatic increase. Henry Iler, the Petitioners' land planning expert, took the contrary position, opining that no additional growth factor should be added to the 1996 BEBR projections. However, Dr. Henry Fishkind, an expert in demography who was involved in the original development of the BEBR population projection methodologies, directly contradicted Iler's opinion, concluding instead that Ms. Rogers' methodology was appropriate. As Dr. Fishkind stated that [Sumter] county has experienced a dramatic structural change to its population growth and development because of the Villages, and that has altered the characteristics of its population growth. In light of that, the use of past trends, which is what the bureau [BEBR] does, is simply extrapolate past trends, would not be appropriate, for it would not have taken into account that major structural change. Ms. Rogers identified the structural change, she measured its amount, and then she added on to the bureau's projections, which were extrapolations of the past trends. That's a very appropriate adjustment, and it's the kind of adjustment that econometricians and economists make on a regular basis. DCA's analysis concurred that the high absorption rates in the Tri-County Villages DRI had to be taken into account. To have ignored the explosion of growth in the Tri- County Villages DRI, particularly in view of the generally accepted expectation that the population to be served by the Tri-County Villages and by the Villages of Sumter will experience tremendous growth, would have resulted in an inaccurate population forecast. Even Iler had to concede that he was aware of building permit data being used to project population figures. It is simply not his preferred methodology to use such information. Thus, Rogers' projection of the County's total population for the year 2020 appropriately incorporated all available and relevant data and was formulated using an accepted methodology. While not part of their PRO, Petitioners previously attacked the County's population projections by questioning the continued success of the Villages to attract out-of-state retirees. Primarily through Weir's testimony, they attempted to raise the specter of a reduction of sales and Intervenor's subsequent financial ruin. But there was no credible evidence to support Petitioners' prophecy of doom. On the evidence presented in this case, it would be more rational from a planning standpoint to expect the Villages to continue to be a marketing and financial success. Having reasonably projected future population, it was then incumbent upon the County to determine how many dwelling units would be needed to accommodate anticipated housing needs. This determination was made by Gail Easley, an independent planner retained by the County to assist Rogers in preparation of the EAR. Easley performed this calculation for the County. Easley used 2.46 as the average number of persons per dwelling unit in the County, a figure taken from the BEBR reports (not from 1990 census information, as Iler incorrectly surmised.) There was no evidence that a number other than 2.46 was appropriate. It would not be appropriate for the number of dwelling units needed in the future to be calculated simply by the division of the anticipated population by the average household size. Rather, it is appropriate to apply a "market factor" (or multiplier) in order to ensure that there is a choice of types of housing and to accommodate lands that are not actually useable for residential construction. Even Petitioner's expert, Henry Iler, agreed that the use of a market factor was appropriate in order to ensure sufficient housing supply and to avoid an increase in housing prices. Easley furnished Rogers with the market factor for the EAR. The market factor chosen by Easley was 1.5, a factor she viewed as conservative and as appropriate for a jurisdiction that is beginning to urbanize. In more rural counties, a higher market factor, such as 2.0, should be used. While Iler implied that a lower marker factor would be more suitable, the record clearly established that the market factor used by Easley fell within the range of reasonable choices. (In SCAID I, the ALJ expressly found, in paragraph 31 of the Recommended Order, that the 1.87 market factor used by the County on that occasion was reasonable and actually low compared to factors used for other comprehensive plans that had been found to be "in compliance." As reflected by this Finding of Fact, facts and circumstances bearing on the choice of a market factor for Sumter County have not changed significantly to date. Cf. Conclusion of Law 64, infra.) Applying the 1.5 market factor to the projected population and average household size, the County determined that 62,274 dwelling units will have to be accommodated during the twenty-year planning horizon. (This includes 48,461 units in permanent housing, 9,113 in seasonal housing, and 4,700 in transient housing.) The County then allocated those dwelling units in various land use categories. Much of Petitioners' PRO on this point was devoted to criticizing parts of the evidence in support of the demonstration of need. They state the obvious that Easley did not perform a demonstration of needs analysis for the Plan Amendment in the EAR, but that was not the purpose of the EAR; nonetheless, the EAR contained valuable data and analysis for use in the demonstration of need analysis for the Plan Amendment. Petitioners also questioned DCA's reliance on the DRI ADA in conducting its demonstration of need analysis, based on the timing of the ADA and Plan Amendment submissions and decisions; but it is not clear what it was about the timing that supposedly detracted from DCA's demonstration of need analysis, and nothing about the timing made it inappropriate for DCA to rely on the data and analysis in the ADA. Petitioners criticized Rogers' reference to up-to-date building permit information that was not offered in evidence; but this information only further supported Rogers' demonstration of need analysis. Petitioners asserted that one of Intervenor's witnesses may have overstated residential sales in the Tri- County Villages DRI (1,750 sales a year versus evidence of 1,431 building permits for 1999); but the witness's statement was not used in any of the demonstration of need analyses. Finally, Petitioners attacked one of Intervenor's witnesses for an alleged "conflict of interest, a lack of professional integrity and an indication of bias"; but the basis for this allegation supposedly was evidence that the witness worked for the County while also working for Intervenor or its predecessor for a few years in the late 1980's, not enough to seriously undermine the credibility of the witness's testimony in this case (which in any event had little or nothing to do with the demonstration of need analyses.) It is at least fairly debatable that the County's demonstration of need was based on relevant and appropriate data, and professionally acceptable methodologies and analyses. Likewise, it at least fairly debatable that the County's projections regarding housing needs, the growth in the retirement population, and the absorption rates achieved in the existing Tri-County Villages DRI adequately support the allocation of 11,000 dwelling units permitted by the Plan Amendment. So-called "90% Rule" The County's Plan Policy 4.6.1.1 provides: The County shall maintain approximately 90% of its land area in land uses such as agricultural (including timberland, mining and vacant), conservation, and open (recreation, open space etc.) land uses for this planning period. (Emphasis added.) This policy is found in the Utilities Element of the County's comprehensive plan under a goal to protect and maintain the functions of the natural groundwater aquifer recharge areas in the County and under an objective to protect the quantity of aquifer recharge. Although couched as an approximation, the policy has been referred to as the "90% rule." Based on the evidence presented in this case, it is at least fairly debatable that the subject Plan Amendment is not inconsistent with Policy 4.6.1.1. The primary debate had to do with the proper treatment of certain "open space" provided in the Tri-County Villages DRI and the Villages of Sumter DRI-- 1,032 acres in the former and 2,135 acres in the latter. This "open space" consists of golf courses, preserves, wetlands, parks/buffers, and some stormwater/open spaces. Petitioners' expert refused to count any of this acreage for purposes of the so-called "90% rule" because, while the FLUE and FLUM have Agricultural, Conservation, and Recreation land use categories, there is no category designated "Open Space." (Meanwhile, there is an entire element of the plan entitled "Recreation and Open Space.") The witnesses for the County and DCA counted those 3,167 acres. They reasoned persuasively that the policy's express mention of "open space" (as opposed to a specific land use category designated "Open Space") supports their position. They also argued persuasively for the logic of including "open space," which serves the objective of the policy to "protect quantity aquifer recharge quantity," even if there is no specific land use category designated "Open Space." Counting the 3,167 acres of "open space" in the two DRIs, the percentage calculated under Policy 4.6.1.1 exceeds 90% for existing land uses. Omitting that land, as well as another 500 acres that should have been counted, Petitioners' expert calculated 88.96%. Petitioners' expert also calculated a lower percentage (85.34%) by using land uses he projected for the end of the planning period. However, Petitioners' expert conceded that it was not clear that Policy 4.6.1.1 should be interpreted in that manner. If so interpreted, it would be possible for all plan amendments reducing agricultural, conservation, and open FLUs to be prohibited even if existing land uses in those categories did not fall below "approximately 90%" for another 20 years. It is at least fairly debatable whether such a result is logical, or whether it is more logical to wait until existing land uses in those categories did not fall below "approximately 90%" before prohibiting further FLUE and FLUM amendments. Urban Sprawl Petitioners contend that the Plan Amendment fails to discourage urban sprawl. They attempted to prove seven urban sprawl indicators. But their evidence was far from sufficient to establish any beyond fair debate. Petitioners did not prove that the Plan Amendment promotes, allows or designates for development substantial areas of the jurisdiction to develop as low intensity, low density, or single-use development or uses in excess of demonstrated need. To the contrary, while gross residential density may be relatively low (2.4-2.6 units per gross acre), the Plan Amendment PUD provides for highly mixed-use development, not single-use development, and densities in residential areas within the PUD are significantly higher (up to 5.6 units per acre), especially for Sumter County. Petitioners also did not prove that the Plan Amendment promotes, 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, or that the Plan Amendment promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. To the contrary, the evidence was that part of the northern boundary of the Plan Amendment parcel coincides with the western part of the southern boundary of the Tri-County Villages DRI, and the Villages of Sumter PUD will be an extension of the Tri-County Villages DRI, which already has all the characteristics of an existing urban area. The reason why the eastern part of the northern boundary of the Plan Amendment parcel does not coincide with the southern boundary of the Tri-County Villages DRI is the existence of land in between which is already in use and not available to become part of the Plan Amendment PUD. Development will not be in a radial or ribbon pattern like (usually) commercial development along main roadways; nor will development be isolated. Petitioners did not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities, and dormant, unique and prime farmlands and soils. Obviously, conversion of agricultural land eliminates such land from agricultural use. But the Plan Amendment protects adjacent agricultural land by phasing development starting from existing urban areas in the Tri-County Villages DRI by mixing in open and recreational uses throughout the Villages of Sumter PUD and by providing some additional buffer between the periphery of the PUD and adjacent agricultural lands. Petitioners did not prove that the Plan Amendment fails to maximize the use of existing public facilities and services. Indeed, Petitioners' land use planning expert admitted at the hearing that he "didn’t have the time or expertise, really, to try to evaluate this particular question." To the contrary, the evidence was that the Plan Amendment PUD will include water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. In addition, impact to schools will be minimal or non-existent due to the character of the PUD as a retirement community. Petitioners did not prove that the Plan Amendment fails to provide a clear separation between rural and urban uses. To the contrary, the evidence was that clustering, open spaces and buffering in the Villages of Sumter PUD will provide a clear enough separation between rural and urban uses. Petitioners did not prove that the Plan Amendment discourages or inhibits in-fill development or the redevelopment of existing neighborhoods and communities. Specifically, Petitioners argued that in-fill in the City of Wildwood will be discouraged. But the evidence was to the contrary. Not only would development of the kind envisioned in the Plan Amendment PUD be unlikely to occur in Wildwood, sufficient land is not available for such a development there. Actually, the Plan Amendment might encourage in-fill in Wildwood, where service providers for the Villages of Sumter might be expected to reside. SCAID SCAID was formed in 1993 or 1994 by a small group of Sumter County citizens for the purposes of preserving the "rural lifestyle" of Sumter County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. SCAID has about 80 members, who are not required to pay dues. The majority of SCAID's members live in Sumter County, including all of the individual Petitioners in this case. SCAID is not incorporated but has by-laws drafted in 1995 or 1996. The by-laws provide for election of officers for one-year terms, but SCAID has not had an election of officers since 1994. Petitioner, T. Daniel Farnsworth, is and always has been SCAID's president. The evidence was that, when former SCAID member James Boyd resigned, Petitioner Linda Latham was appointed to replace him as secretary. SCAID has held just two meetings since its inception. Approximately 15-20 persons attended each meeting. Most communication with members is by regular and internet mail. Financial contributions are solicited from time to time for litigation efforts initiated by SCAID. Farnsworth, on behalf of SCAID, submitted comments on the Plan Amendment to the County between the transmittal hearing and the adoption hearing. Farnsworth and Weir also testified on behalf of Petitioners at final hearing. The other individual Petitioners did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, under Section 163.3184(9)(b), the Department of Community Affairs enter a final order that Sumter County's Amendment 00-D1 is "in compliance." DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2001. COPIES FURNISHED: Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 Jane M. Gordon, Esquire Jonas & LaSorte Mellon United National Bank Tower Palm Beach Lakes Boulevard, Suite 1000 West Palm Beach, Florida 33401-2204 Terry T. Neal, Esquire Post Office Box 490327 Leesburg, Florida 34749-0327 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Council Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2100
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.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission 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 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S 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 3rd day of September, 2010.
The Issue The issue to be resolved in this portion of this power plant site certification proceeding is whether the site for the proposed Seminole Generating Station Unit 3 Project is consistent and in compliance with the applicable land use plans and zoning ordinances of Putnam County, Florida, pursuant to Section 403.508(2), Florida Statutes.1
Findings Of Fact SECI is a member-owned generation and transmission electric cooperative. SECI supplies power to ten electric cooperative members throughout Florida. These cooperatives primarily serve rural areas of the State. SECI's members currently serve approximately 1.6 million customers throughout the State. SECI's headquarters are in Tampa, Florida. SECI first came into existence in 1948 under the Federal Rural Electrification Act to provide electric power to rural areas. Initially, SECI purchased power from other utilities for its individual members. In the 1970s, in response to the oil embargo, SECI's member cooperatives determined it was in their best interest to build their own power supply. SECI then licensed, constructed, and commenced operation of the coal- fired power plant near Palatka, in Putnam County. SECI also has a power plant in Hardee County, Florida. These two power plants allow SECI to provide approximately 70 percent of the power for the member cooperatives, while purchasing 30 percent of the power needs of the member cooperatives from other utilities. The Site is located in the unincorporated area of the county. It is approximately five miles north of the city of Palatka. The St. Johns River is located to the south and to the east of the power plant site. The Site is a 1,300 megawatt facility located on a site comprised of two parcels of land totalling approximately 2,000 acres in size. The larger parcel of the site, which contains the existing coal-fired Units 1 and 2 and almost all related facilities, began operation in 1984. Other existing facilities on the larger parcel include: two boiler buildings and the turbine generator buildings; precipitators, scrubber modules, and a combined flue stack; two natural draft cooling towers; a coal yard for unloading and storage of coal; an A-frame storage building for limestone used in the scrubber process; a rail spur and rail loop used to bring coal into the Plant site; and a coal conveyor to bring the coal from the coal yard to the boilers. The new Unit 3 will be constructed on this larger parcel. The balance of the larger parcel of the Site is in pine flat woods. North and northwest of the power plant is the Lafarge wallboard facility, where combustion by-products from the existing units are converted into synthetic gypsum for the manufacture of wallboard. The Site also includes a smaller parcel of approximately 4.5 acres located approximately 1,000 feet to the south along the St. Johns River. An intake pump house is located on this parcel to pump water from the river for use by the existing units. Currently, there are four underground pipes (one of which is not in use) and an underground duct bank with electrical conduit. The underground pipes and duct bank continue from the smaller parcel to the larger parcel through an existing privately-granted easement. The Site and the existing two steam electric generating units, Units 1 and 2, were certified in proceedings under the PPSA that took place in 1978 and 1979. In 1978, when the Site initially was being developed and certified under the PPSA, Putnam County was in the process of developing its Comprehensive Plan and its Future Land Use Map (FLUM). However, the County had zoning regulations in place, and it and rezoned the larger and smaller parcels as a PUD for the purpose of an electrical generating facility. During the 1978 land use hearing, which also addressed the pipeline easement which provides access to the St. Johns River, the Hearing Officer concluded that the Site was consistent and in compliance with the land use plans and zoning regulations in effect at that time. The Siting Board subsequently adopted the Hearing Officer’s conclusions regarding land use and zoning issues. In its Order Relating to Land Use and Zoning, entered on March 21, 1979, the Siting Board determined that the Site, including the intake pump house and pipeline easement, was consistent and in compliance with the land use plans and zoning ordinances of Putnam County. In the Order Relating to Land Use and Zoning, the Siting Board also ordered the “responsible zoning and planning authorities . . . to refrain from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site.” IN RE: Seminole Electric Cooperative, Inc., Application for Power Plant Site Certification, Putnam County, DOAH Case No. 78-1388, 1979 Fla. ENV LEXIS 10 (Siting Board Mar. 21, 1979. Sierra Club was a party to the original site certification proceeding and is bound by its determinations on consistency with land use and zoning. SECI is proposing to construct a new Unit 3 at the Site designed for a capacity of 750 megawatts. The new unit and related facilities are much like the existing facilities and will utilize many of the existing onsite facilities. Like the two existing units, the new Unit 3 will burn coal as its primary fuel with up to 30 percent petroleum coke. The new unit will consist of a turbine generator building, a new boiler building, precipitators, scrubber modules, and a wet electrostatic precipitator. A single flue gas stack will serve the new unit. A new mechanical draft cooling tower will also be constructed on the site to serve the new Unit 3. The new cooling tower will have a lower profile than the existing natural draft cooling towers. The existing coal yard will be expanded for the new unit and additional facilities will be added in the limestone scrubber area to handle the additional gypsum that will be created. Construction for the new Unit 3 is planned to begin in late 2008. As planned, the new unit is expected to start up in May 2012. SECI's Unit 3 project will integrate the new unit into the existing plant facilities. The existing administration building and parking lot will support the new unit. SECI will continue to use the existing rail spur, including for the delivery of coal and construction materials. The existing switchyard and transmission area will be utilized for the new unit. There will be no new off-site electrical transmission lines for the Unit 3 Project. The existing plant access off Highway 17 will be improved to enhance access for turning vehicles into the site. As indicated, the existing units are supplied with cooling and other service water from the St. Johns River. SECI proposes to utilize the existing pump house and to install an additional water pipeline and duct bank within the easement to supply primarily cooling water and also other service water (primarily for bottom ash handling and for the scrubber system) to the proposed Unit 3. There will be some enhancements to the pumps and motors inside the pump house to increase the capacity of water withdrawals. Otherwise, there will be no changes to the existing pump house for the new Unit 3 project. The cooling and other service water for Unit 3 will be conveyed to the main power plant site by an additional 36-inch pipeline to be placed underground and within the existing private easement. As indicated, the existing easement was created in 1978 and the existing pipelines were installed as part of the development of Units 1 and 2. A second duct bank will also be placed in the existing easement. There will be no facilities constructed above the ground surface within that easement. The easement will be restored to its existing condition after the new water pipeline is installed. The existing land uses adjacent to the Site are primarily undeveloped land. Residential areas along the St. Johns River are the closest development to the Site, with the exception of the Lafarge gypsum plant located adjacent to the larger parcel of the Site. The closest communities are Bridgeport, which is located approximately 3.5 miles to the east, and Bostwick, which is located 2.5 miles to the north. The pattern of development in the area since the existing Units 1 and 2 began operation in 1984 has been single family residential development located along the river and the construction of the Lafarge wallboard plant. With the exception of the wallboard plant, the areas between that residential corridor and the Site, as well as in all four directions around the site, continue to be undeveloped land. There are two existing homes located near the Site. One home is located approximately one mile south of the proposed Unit 3 stack, and another home is approximately one mile west of the Plant site. There is existing power plant infrastructure between the Unit 3 site and those two nearest residences, including the large natural draft cooling towers, wastewater treatment equipment, and other associated facilities. The addition of the proposed Unit 3 would be compatible with the existing land uses at and near the Site. The new Unit 3 will have very similar operating characteristics to the existing units, but will use additional air emissions controls. The residential development along the St. Johns River has continued while Units 1 and 2 have operated. The new Unit 3 will be able to co-exist with existing land uses in that the new Unit 3 is not expected to have a significant adverse impact to nearby residential development. When its Comprehensive Plan with FLUM was adopted (after the Siting Board’s March 1979 Order Relating to Land Use and Zoning), the County designated the larger parcel in the Industrial Future Land Use category to recognize the existing Units 1 and 2 at the site. Electrical power plants are an allowed use in the Industrial future land use category. Approximately two-thirds of the smaller parcel of the site fronting on the St. Johns River was designated Agricultural II and approximately one-third (the part contiguous to the river) was designated Rural Residential under the County’s Comprehensive Plan and FLUM. The existing pump house is located on the Rural Residential part of the parcel. The underground water pipes and electrical duct bank lead from the pump house towards the larger parcel of the Site, which is designated Industrial. The existing pump house and underground water pipes and electrical duct bank are allowed uses in both the Agricultural II and in the Rural Residential future land use districts, as a Type 2 Community Facility. The underground water pipes and electrical duct bank proceed from the smaller parcel to the larger parcel of the Site through a privately-granted easement across property designated Agricultural II on the County’s FLUM. The County’s Comprehensive Plan does not prohibit such facilities in that land use designation. The lands in the pipeline easement are zoned Agricultural. Such facilities also are not precluded in that zoning district. The installation of the existing underground water pipes and electrical duct bank within the easement was approved by Putnam County at the time of the original site certification proceeding for the Site. In October 1978, the Putnam County Code Administrator stated that the County’s zoning for the lands covered by the easement to the St. Johns River did not preclude the use of the easement for the pipeline installation. On January 10, 2006, the Putnam County Commission adopted Ordinance 2006-02, which amended the original PUD zoning approval for the Site. The amended PUD zoning ordinance covers both parcels of the Site. This amended PUD zoning ordinance allows the placement of Unit 3 and its related facilities within both parcels of the Site. The PUD zoning ordinance incorporates a Development Agreement between Putnam County and SECI, which addresses the Unit 3 facilities proposed to be constructed by SECI. As part of the PUD zoning amendments, the Putnam County Board of County Commissioners reviewed SECI's Unit 3 Project for consistency with the County’s Comprehensive Plan. The Commission found the Project to be consistent with the County’s Comprehensive Plan. More specifically, Ordinance No. 2006-02 found that SECI’s proposed amendment to the PUD zoning was “consistent with the Comprehensive Plan,” would “not adversely affect . . . orderly development,” met “the requirements of the Land Development Code,” and “will not be placed in agricultural lands.” (SECI Exs. 12B, 13A, and 13B) The Development Agreement incorporated into Ordinance No. 2006-02 acknowledges that the existing pipeline easement “is not a part of the PUD.” The Development Agreement clearly differentiated between underground pipelines and other aspects of the Unit 3 Project: The existing pipeline easement, which is not a part of the PUD, runs across property zoned for agricultural uses and falling [sic] within the Agricultural II future land use category. Neither the County Comprehensive Plan nor the Land Development Code precludes the repair, replacement or addition of underground water pipes necessary to plant operations. The underground pipes, and the pipeline easement, were part of the original certification and any modifications required to accommodate Unit 3 will be reviewed as part of the site certification process. Subject to site certification under the PPSA, Unit 3 will be constructed primarily east of, but integrated with, existing Units 1 and 2 such that any new development activity will fall within that portion of Parcel 1 designated under the Industrial future land use category. But for the existing pump house, Parcel 2, which is part of the PUD, will remain undeveloped. Pumps within the existing pump house will be replaced or upgraded and existing underground water pipes may be replaced or upgraded, and new underground pipes may be added, but no new uses or structures are intended for Parcel 2. The pipeline easement – which is not part of the PUD – will remain undeveloped although pipes may be repaired, replaced (or additional pipes installed) underground between Parcels 1 and 2. Although no new uses or above-ground structures are anticipated on Parcel 2 or the pipeline easement, both are considered to be part of the electrical power plant to be certified under the PPSA and will be reviewed along with Parcel 1 throughout the State site certification process to which the COUNTY shall be a party. (SECI Ex. 13B, pp. 5-6) Sierra Club participated in the Putnam County January 2006 zoning hearing on the amended PUD zoning for the Site. The Sierra Club did not object to the adoption of the amended PUD zoning ordinance at that hearing. No party has appealed the Putnam County Commission’s amended PUD zoning ordinance for SECI's Unit 3 Project. Sierra Club is now bound by the determinations of land use and zoning consistency in these prior proceedings, as well as in the original site certification proceeding. Putnam County entered into a Stipulation with SECI which addresses land use and zoning issues. In the Stipulation, Putnam County acknowledged that the adoption of Putnam County Ordinance 2006-02, which amended the PUD zoning for the Site, and the approval of the Development Agreement referenced in that Ordinance by the Putnam County Board of County Commissioners, both confirm that the Site, including the proposed Unit 3 and the associated facilities, are consistent and in compliance with applicable land use plans and zoning ordinances as required under Section 403.508(2), Florida Statutes. Despite its participation in both the 1979 site certification proceeding and the 2006 re-zoning process, Sierra Club nonetheless takes the position in this case that the pump house and cooling water pipeline are “industrial” facilities which are not consistent with the future land use designations for the lands occupied by those facilities. Putnam County has adopted a definition of “development” that provides in pertinent part: The following operations or uses shall not be taken for the purposes of this act [the County’s land development code] to involve ‘development’: (b) Work by any utility and other persons engaged in the distribution or transmission of gas or water, for the purpose of inspecting, repairing, redoing, or constructing on established rights-of-way any sewers, mains, pipes, tables, utility tunnels, power lines, towers, poles, tracks or the like. Putnam County’s Land Development Code, Article 12, Section 12.01.01.a.2. This definition of “development” also applies to actions “seeking legislative action to amend this Code and the Comprehensive Plan” of Putnam County. Id. The County’s definition of “development” therefore excludes the additional cooling water pipeline and duct bank within the established easement containing similar pipelines and duct bank between the principal power plant site and the riverside pump house. No Comprehensive Plan amendments or other zoning approvals would be required for those pipelines and duct banks as they are not “development” subject to the plan or the local land development code. Underground pipelines and electrical duct banks such as those proposed for SECI's Unit 3 project are not typically regulated as a land use. All developed areas have water and sewer pipelines that radiate through different zoning districts and that serve the users that subscribe to such water and sewer service. The practical effect of regulating such facilities as “development” could result in a spider web of land use and zoning classifications running wherever those facilities are placed. Even if it were to be concluded that the underground water pipes and electrical duct banks were "development" subject to Putnam County’s Comprehensive Plan, SECI's expert land planner testified without contradiction that they would be considered a Type 2 community facility as defined in the Comprehensive Plan: "Type 2 [Community Facilities and Services] are light infrastructure facilities, including but not limited to, water wells, water tanks, sewage pump stations, electrical substations, and water and wastewater treatment plants with a capacity of less than 500,000 gallons per day." Type 2 community facilities are allowed in all eleven of Putnam County’s Future Land Use categories. As indicated, the smaller parcel of the Site is zoned as a PUD that allows the activities proposed. The easement for the underground water pipes and electrical duct banks is zoned for Agriculture zoning. As indicated, use of the easement for the underground facilities has been approved by the County since 1978. Unrebutted testimony demonstrated that there will be no physical changes to the pump house itself, but only replacement of the pump inside with a larger one with more capacity, and that the additional underground water pipe and duct bank will not be visible, as the land will be restored to current conditions. Sierra Club offered no evidence contradicting Putnam County’s interpretation of its own Comprehensive Plan land development regulations; offered no evidence as to how the community could be adversely affected by the continued use of the pump house, with larger pump, and the addition of underground water pipes and duct bank in the existing pipeline easement; and offered no evidence that these facilities for the pumping and conveyance of river water to the plant site constitute “industrial” uses under the land use plans and zoning regulations of Putnam County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board find, pursuant to Section 403.508(2), Florida Statutes, that the site for SECI’s Unit 3 and its related facilities, to be located in Putnam County Florida, as described by the evidence presented at the hearing, are consistent and in compliance with existing land use plans and zoning ordinances and site-specific zoning approvals of Putnam County. DONE AND ENTERED this 31st day of August, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2006.
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
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 Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue Whether Escambia County Ordinance No. 2017-65 (Ordinance) adopted on November 30, 2017, amending the Heavy Commercial/Light Industrial (HC/LI) zoning district in the Escambia County Land Development Code (LDC) is consistent with the 2030 Escambia County Comprehensive Plan (Comp Plan). Whether Remedial Ordinance No. 2018-30 (Remedial Ordinance) adopted on August 2, 2018, alleviates any inconsistency in the Ordinance such that the HC/LI zoning district regulation is consistent with the Comp Plan.
Findings Of Fact The Petitioner lives and owns property in Cantonment, Escambia County, Florida, in proximity to parcels of land impacted by the Ordinance and Remedial Ordinance. As such, the Petitioner would be subject to an increase in noise and traffic resulting from the Ordinance and Remedial Ordinance, as well as an adverse change in the character of her rural neighborhood. The County is a non-charter county and political subdivision of the State of Florida. The County is the affected local government and is subject to the requirements of chapter 163. DEO is the state land planning agency and has the duty to review and investigate petitions submitted under section 163.3213, challenging land development regulations adopted by local governments. The Ordinance was enacted to amend Part III of the County's LDC to address consistency of parcels zoned HC/LI with the MU-S FLU Category. The preamble to the Ordinance indicates a previous consolidation of zoning districts implemented on April 16, 2015, "did not eliminate all occurrences of zoning districts that appear to allow uses, density, or other intensities of use not authorized by the prevailing purposes and associated provisions of applicable future land use categories." The County's Board of County Commissioners (Board) found that "there are occurrences of HC/LI zoning within the MU-S future land use category," and "it is in the best interests of the health, safety, and welfare of the public to address any inconsistency created by HC/LI zoning within the MU-S future land use category." After the DEO's determination of partial inconsistency, the County adopted the Remedial Ordinance, which makes no reference to the April 15, 2015, consolidation of zoning districts in the preamble. In addition, the Remedial Ordinance amends the Ordinance to delete certain confusing references to parcels and their previous zoning as of April 15, 2015. Thus, the Remedial Ordinance is much clearer than the Ordinance in addressing the prior inconsistency created by HC/LI zoning within the MU-S FLU category. Mixed-Use Suburban Future Land Use Category The MU-S FLU is described in FLU Policy 1.3.1 of the Comp Plan as "[i]ntended for a mix of residential and non- residential uses while promoting compatible infill development and the separation of urban and suburban land uses." The MU-S FLU lists the range of allowable uses as "[r]esidential, retail sales & services, professional office, recreational facilities, public and civic, limited agriculture." The MU-S FLU prescribes standards, such as a residential maximum density of 25 dwelling units per acre (du/acre) and a non-residential maximum intensity floor area ration (FAR) of one. The MU-S FLU also describes the mix of land uses that the County intends to achieve for new development in relation to location, i.e., the distance from arterial roadways or transit corridors. Within one-quarter mile of arterial roadways or transit corridors: residential percentages of 8 to 25 percent; public, recreational and institutional percentages of 5 to 20 percent; non-residential uses such as retail service at 30 to 50 percent; and office at 25 to 50 percent. Beyond one-quarter mile of arterial roadways or transit corridors: residential percentages of 70 to 85 percent; public, recreational and institutional percentages of 10 to 25 percent; and non- residential percentages of 5 to 10 percent. The mix of land uses described by the Comp Plan MU-S FLU category can be implemented by multiple zoning districts in the LDC. Certain zoning districts within MU-S further the residential intentions of the FLU category and other zoning districts further the non-residential intentions of the MU-S FLU category. However, all zoning districts within MU-S contain some element of residential use. The Ordinance and Remedial Ordinance The Remedial Ordinance amended the purpose subsection (a) of section 3-2.11 of the County LDC by adding language that directly limited the "variety and intensity of non- residential uses within the HC/LI [zoning] district" by "the applicable FLU." This means that although various non- residential uses are permitted in the HC/LI zoning district, the FLU category in the Comp Plan determines the "variety and intensity" of those non-residential uses. The Ordinance had amended subsection (h) of section 3-1.3 of the County LDC to clarify that "[o]ne or more districts may implement the range of allowed uses of each FLU, but only at densities and intensities of use consistent with the established purposes and standards of the category." This clarification is consistent with FLU Policy 1.1.4 in the Comp Plan, which states that "[w]ithin a given future land use category, there will be one or more implementing zoning districts." The Remedial Ordinance amended the permitted uses in subsection (b) of section 3-2.11 of the County LDC by deleting the confusing reference to parcel sizes and their previous zoning as of April 15, 2015. In paragraph (6) of subsection 3-2.11(b), the Remedial Ordinance made clear that the listed "industrial and related uses" are not permitted "within MU-S." In general, the other permitted uses mirror the range of allowable uses in the MU-S FLU category. The Remedial Ordinance amended the conditional uses in subsection (c) of section 3-2.11 to make clear that the listed industrial and related conditional uses are not permitted within MU-S. The Ordinance added MU-S to the site and building requirements in subsection (d) of section 3-2.11 to require a maximum FAR of 1.0. The Remedial Ordinance also imposed a maximum structure height for "any parcel previously zoned GBD [Gateway Business District] and within the MU-S" of 50 feet, which is lower than the maximum of 150 feet for HC/LI zoning not within MU-S. The Remedial Ordinance amended the location criteria in subsection (e) of section 3-2.11 to limit "[a]ll new non- residential uses proposed within the HC/LI district" to parcels previously zoned GBD and within the MU-S FLU category that are located along and directly in front of "U.S. Highway 29 or State Road 95A." In addition, another location criterion limits new non-residential uses along arterial streets to within one-quarter mile of their intersection with an arterial street. The provisions of the Ordinance and Remedial Ordinance are consistent with the County Comp Plan. Petitioner's Objections The Petitioner contended that the HC/LI zoning regulation allows intensities and scales of commercial uses that are inconsistent with the character of a predominantly residential FLU like MU-S. The Petitioner based her contention on the Comp Plan definition of "suburban area" and argued that the Ordinance and Remedial Ordinance permitted uses, densities, and intensities that were not "suburban in nature." "Suburban area" is defined in the Comp Plan as "[a] predominantly low-density residential area located immediately outside of an urban area or a city and associated with it physically and socioeconomically." By contrast, "mixed-use" is defined in the Comp Plan as "any use that includes both residential and non-residential uses." See ch. 3, § 3.04, Escambia Cnty. Comp Plan. Contrary to the Petitioner's contention, the MU-S FLU category's primary focus is on a mix of uses in a suburban area. See Findings of Fact Nos. 6-8, above. Indeed, the FLU element of the Comp Plan expresses a purpose and intent to encourage mixed- use development. Also, the Petitioner's focus on the differences between the MU-S and Mixed-Use Urban (MU-U) FLU categories in the Comp Plan was misplaced. The premise that the HC/LI zoning district implements the MU-U FLU category better than it implements the MU-S FLU category was not the issue to be determined in this proceeding. Rather, it was whether the Ordinance, as amended by the Remedial Ordinance, amending the HC/LI zoning district in the LDC is consistent with the Comp Plan. All other contentions not specifically discussed have been considered and rejected.
