Findings Of Fact Based upon all of the evidence, including the stipulation by the parties, the following findings of fact are determined: Background The parties Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan which is the subject of the dispute. Petitioners, Dick and Mary McGinley, are residents of Marion County. Since 1956 they have owned a rectangle-shaped parcel of property consisting of approximately 1,280 acres. The parcel is situated on State Road 484 two and one-half miles west of Interstate 75 between Belleview and Dunnellon and ten miles south-southwest of the City of Ocala. Approximately 318.57 acres lie north of State Road 484 while the remaining 961.38 acres lie south of that roadway. The County's plan amendment affects that part of petitioners' property which lies south of State Road 484. During the adoptive phase of the amendment, petitioners submitted written comments in opposition to the reclassification of their property. As such, they are affected persons within the meaning of the law and have standing to bring this action. The nature of the dispute The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County and DCA entered into a stipulated settlement agreement in March 1993, which required the County to adopt various remedial amendments. The first set of remedial amendments adopted by the County were determined to be not in compliance. After a second stipulated settlement agreement and addendum were entered into by the same parties, the County adopted further remedial amendments on April 7, 1994, one of which changed the land use designation on a portion of petitioners' property. A cumulative notice of intent to find the plan and remedial amendments in compliance was then issued by the DCA on May 30, 1994. On July 27, 1994, petitioners timely filed an amended petition for administrative hearing in which they contended the plan amendment which affected their property was not in compliance. In their complaint, petitioners alleged that the "future land use (of their property) was not based on accurate data regarding the area as required by Florida law." As further clarified by petitioners in the prehearing stipulation, they allege that the amendment is not based on adequate data and analysis, and it is not consistent with, or does not further the goals of, applicable statutes and rules. As to the latter allegation, petitioners have clarified this to mean that, as to their property, they do not agree that the plan amendment meets its stated goal of discouraging urban sprawl. The Plan Amendment As noted earlier, the County adopted its comprehensive plan in January 1992. Prior to the adoption of the plan, petitioners' property had been zoned A-1, agricultural district, since at least 1973. Under the January 1992 plan, petitioners' property was placed in an urban expansion area with a low density residential land use which allowed one dwelling unit per acre. Because of an objection by the DCA that the plan allocated too much land to the urban expansion area, the County agreed to adopt remedial amendments to cure that deficiency. In August 1993, the County adopted a remedial amendment to the plan which, among other things, continued an urban expansion designation for petitioners' property. Again, however, the DCA found the amendment not to be in compliance on the ground the plan still allocated too much land to urban uses. To satisfy this continuing concern, and in accordance with a settlement agreement with the DCA, the County agreed to reduce the amount of land allocated to urban uses by reclassifying various tracts of land in the County from urban expansion to urban reserve. In its remedial amendments adopted on April 7, 1994, among other things, the County proposed to change the land use designation on that part of petitioners' property (961.38 acres) lying south of State 484 from urban expansion area to urban reserve category with a rural land use designation, which allows one residential unit per ten acres, or less than 100 units. In contrast, that portion of petitioners' property lying north of State Road 484 (318.57 acres) will continue to remain in the urban expansion area with a medium density residential land use designation, which allows for four dwelling units per acre, or almost 1,400 units. Petitioners' Concerns Petitioners allege that the plan amendment is not based on adequate data and analysis and it fails to achieve its stated objective of preventing urban sprawl. In addition, at hearing petitioners suggested that the reclassification, if ultimately approved, constituted an unlawful taking of their property in violation of the United States Constitution. As to this claim, jurisdiction to adjudicate the same lies within that of a circuit court rather than with the undersigned, and in any event, it cannot be raised until after all administrative remedies, including this one, have been pursued. Petitioners' property is located in the middle of the northern half of a large, vested Development of Regional Impact (DRI) known as Marion Oaks, a project begun in the early 1970's. Their land is surrounded on all sides by mainly residential lots, many of which are vacant, and almost two dozen streets originating within the project end at their property line. Marion Oaks now has two golf courses, a school, library, fire station, bank and utilities. Thus, it contains a mixture of residential, commercial, recreational and other uses. As of the time of hearing, Marion Oaks had around 7,800 residents. Even though 78 percent of Marion Oaks' 24,564 residential lots have been sold, less than 10 percent of the lots have been developed. Therefore, most of the land in the project is vacant, and at its present rate of construction of around 130 residential units per year, Marion Oaks will not be built out for around 190 years. When the amendment was adopted, there was virtually no development in the western part of the DRI, the northern part was "sparsely" developed, a "little more" development was present in the southern part, and the bulk of the development was in the eastern part of the project. Indeed, the only commercial development, albeit very limited in nature, found in the project is approximately one and one-half miles east of petitioners' property. Therefore, it is fair to chararacterize Marion Oaks in its totality as being non-urban in character. Although petitioners have never applied for a development permit, they desire to develop their property by constructing a small shopping center consisting of a bank and supermarket which will serve as an anchor for other "neighborhood" type businesses. In addition, they plan to construct a golf course, perhaps an airport fly-in center, and more than a thousand "affordable- type" housing units to blend in with the other housing in Marion Oaks. With the dual land use designation on their property, however, petitioners point out that this type of development is not feasible. This was confirmed at hearing by their engineer. Petitioners first claim that the plan amendment is not consistent with the County's goal of discouraging scattered development and sprawl. They reason that, since the large Marion Oaks DRI surrounds their parcel of property, urban development is already present. It is true, as petitioners claim, that their property has road accessibility (State Road 484), the availability of centralized utilities and fire protection, and soil suited for development, all of which are necessary for urban development. Even so, Marion Oaks is largely undeveloped at this time, it can be characterized as non-urban, and at present growth rates it will not be built out for 190 years. Given these considerations, it cannot be said to the exclusion of fair debate that the plan is not consistent with, or does not further, the plan's goal of discouraging urban sprawl. Petitioners further contend that they were unfairly treated in this process. They point to another tract of land consisting of around 400 acres that was reclassified urban expansion even though it lies south of Lake Weir in southeastern Marion County in a predominately undeveloped area. Even if this is true, however, the classification of one isolated tract of land in this manner would not mean that petitioners' property would also qualify for the urban expansion category. In addition, petitioners contend that to allow them to develop their property at a medium residential density would be nothing more than infilling the center of an already developed tract of land, namely, the Marion Oaks DRI. Urban infill is defined by statute [s. 163.3164(27)] as follows: the development of vacant parcels of otherwise built-up areas where public facilities such as sewer systems, roads, schools, and recrea- tion areas are already in place and the aver- age residential density is at least five dwelling units per acre, the average non- residential intensity is at least a floor area ratio of 1.0 and vacant, developable land does not constitute more than 10 percent of the area. Since petitioners' property is not in an otherwise "built-up" area having a density of five units per acre as required by law, a designation or development of petitioners' property at urban densities would not be consistent with the concept of infilling. Finally, petitioners contend that the County's plan amendment is not supported by adequate data and analysis with respect to the County's imposition of a dual land use designation on their property. As to this contention, the County established that, prior to adopting the amendment, it performed a detailed field survey of all urban areas of the County, including petitioners' parcel. In addition, a property owner's matrix was prepared, and approximately 400 parcels of property, including petitioners, that were proposed for reclassification to another land use category were reevaluated. The only remaining question is why the amendment allows urban development at a density of four residential units per acre on the northern part of petitioners' property but only allows one residential unit per ten acres on the southern part when the entire parcel is surrounded on all sides by the same land use, namely, an existing DRI and subdivision. In other words, absent some data and analysis to the contrary, logic would dictate, and it can be reasonably inferred, that the same land use classification should apply to the entire parcel. However, the County's representation that a property survey and matrix support this change was not credibly contested. Further, on page 53 of the data and analysis supporting the amendment is found the following summary regarding the change on the northern 318.57 acres of petitioners' property from urban reserve residential to urban expansion medium density residential: The County recognizes that development of the complete enclave area will require DRI/ Comprehensive Plan Amendment review, and establishing the small Urban Expansion Area will accommodate some preliminary development prior to the need to commence the DRI/Amend- ment process while maintaining the continuity of the remaining non-urban enclave area lying south of CR 484, a Major Collector roadway. Given these considerations, it cannot be said to the exclusion of fair debate that the plan amendment, as it affects petitioners' property, is not supported by adequate data and analysis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered determining the challenged plan amendment to be in compliance. DONE AND ENTERED this 7th day of May, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4387GM Petitioners: Petitioners' Proposed Recommended Order did not contain a section entitled "Findings of Fact." Where proposed findings are found in other portions of the order, they have been partially accepted in findings of fact 8-16. Respondents: 1-3. Partially accepted in findings of fact 1 and 2. 4-7. Partially accepted in finding of fact 3. 8. Partially accepted in findings of fact 4 and 5. 9-11. Partially accepted in findings of fact 5 and 6. Partially accepted in finding of fact 12. Partially accepted in findings of fact 2 and 9. Partially accepted in findings of fact 9 and 10. Partially accepted in finding of fact 2. 15-16. Partially accepted in finding of fact 10. 17-18. Rejected as being unnecessary. 19-20. Partially accepted in finding of fact 14. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dick and Mary McGinley 5295 Southwest 135th Street Ocala, Florida 34473 Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
The Issue The issue for determination is whether Seminole Raceway, as proposed in Charles and Linda Wimberlys' Site and Development Plan and approved with conditions by the Leon County Development Review Committee (DRC), is consistent with the requirements of the 2010 Tallahassee-Leon County Comprehensive Plan (Comprehensive Plan) and is a permissible land use under applicable provisions of Chapter 10, Leon County Code (the Code).
The Issue At issue in these proceedings is the validity of respondent's proposed rules 9J-5.003(140) and 9J-5.006(6).
Findings Of Fact The parties Petitioner, St. Joe Paper Company, is a Florida corporation which owns either directly or through its subsidiaries approximately 1,500,000 acres of land in Florida. Petitioner, Florida East Coast Industries, Inc., is also a Florida corporation which owns either directly or through its subsidiaries approximately 17,500 acres of land along the east and west coast of Florida. Respondent, Department of Community Affairs (Department or DCA), is the state land planning agency under the provisions of Chapter 163, Part II, Florida Statutes, [the "Local Governmental Comprehensive Planning and Land Development Regulation Act" (the "Act")]. As the state land planning agency under the Act, the Department is charged by law with the duty to provide technical assistance to local governments in preparing comprehensive plans and with the duty to ascertain whether local comprehensive plans or plan amendments are in compliance with the provisions of Chapter 163, Part II, Florida Statutes. Here, the parties have stipulated that petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., as well as their subsidiaries, and intervenors, Florida League of Cities, 1000 Friends of Florida, Department of Environmental Protection, Florida Association of Realtors, R. J. Collins, Florida Electric Power Coordinating Group, and Florida Association of Counties, have standing. No such stipulation was, however, accorded intervenors Florida Land Council, Inc., Florida Farm Bureau Federation, Highlands County Farm Bureau, and Claude E. Smoak, Jr., and they offered no proof at hearing to demonstrate standing. Notwithstanding, the Department raised no objection and its post hearing submittal does not contest their standing. Publication of notice and the economic impact statement On October 2, 1992, the Department first published notice of the proposed revisions to Chapter 9J-5, Florida Administrative Code, in volume 18, number 40, of the Florida Administrative Weekly. Such publication contained the following statement regarding the economic impact of the proposed rules: SUMMARY OF THE ESTIMATED ECONOMIC IMPACT OF THE PROPOSED RULES: The estimated agency cost to be incurred by this action is $3,627, which is the cost of promulgating the rule amendment . . . It is not anticipated that the amendment will generate additional costs to local governments and other affected persons above and beyond those attributable to existing rules and statutes. Ultimately, it is believed that this amendment will result in more efficient patterns of development which allow services and facilities to be provided more cost efficiently . . . to local governments. The procedures required by the proposed amendments have no significant impact on competition and the open market for employment. There is no impact on small or minority business as defined by the Florida Small and Minority Business Assistance Act of 1985. On October 23, 1992, petitioners filed their initial petition for an administrative determination of the invalidity of the proposed rules. Such petition contended, inter alia, that the proposed rules were invalid for the agency's failure to prepare an economic impact statement that complied with the provisions of Section 120.54(2)(c), Florida Statutes. Petitioners did not, however, at any time, file a request for the preparation of an economic impact statement with the agency. 1/ Background of the rules Pursuant to Section 163.3184(8)(a), Florida Statutes, the Department is obligated to review each adopted local plan or plan amendment and determine if it is in compliance with the Act. Section 163.3184(1)(b), Florida Statutes, defines "in compliance" as: . . . consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II. In 1985 the Legislature directed the Department to develop Chapter 9J- 5, Florida Administrative Code, and apply it to the review of local plans. The Legislature has reviewed the rule, as adopted, and given it special legal protection from rule challenges. Section 163.3177(10), Florida Statutes. Among the rules so approved, was Rule 9J-5.006 which provided that "the purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of the local government comprehensive plan elements." Rule 9J-5.006(3)(b)7 provides that the future land use element shall contain specific goals, objectives and policies which discourage the proliferation of urban sprawl, and Rule 9J-5.011(2)(b)3 provides that the general sanitary sewer, soiled waste, drainage, potable water and natural groundwater aquifer recharge element shall contain objectives and policies which address the use of existing facilities and the discouragment of urban sprawl. The Department has, since approximately 1988, developed, refined and explicated its policy regarding the discouragement of urban sprawl in local government comprehensive plans. In a technical memo issued in 1989, the Department observed: If the goals and objectives of Florida's growth management laws are to be achieved, local plans must effectively deal with urban sprawl and the closely related issues of conservation, natural resource protection, and efficient use of public facilities and services. [DCA Exhibit 12] That publication further set forth the Department's definition of urban sprawl, and discussed the various provisions in the State Comprehensive Plan (Chapter 187, Florida Statutes), Chapter 163, Part II, Florida Statutes, and Chapter 9J- 5, Florida Administrative Code, which related to the discouragement of urban sprawl. As for the term "urban sprawl," the technical memo provided: The term "urban sprawl" as it is applied by the DCA in its review of local plans is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. * * * Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development can result in increased risks to water supplies and sensitive environmental areas. * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of crub and median cuts and access points permitted. Strip development frequently overburdens arterial roadways with local trips because local road networks are poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low- density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. * * * In other words, urban sprawl is the epitome of bad land use planning. It adversely impacts and often destroys precious natural resources. It promotes inefficient use of land resources and existing public facilities and services, and makes it difficult or impossible to provide new infrastructure and services efficiently to new development. It produces development that is typically unsightly and not aesthetically pleasing. It produces sterile, one-dimensional urban environments which are not convenient, enjoyable or healthy for their residents. Successfully discouraging urban sprawl through local comprehensive planning is not a mystical art. It requires rigorous data collection, thorough analyses of current and future needs, effective planning, and responsible decision making. . . . Also pertinent to the Department's policy on urban sprawl, and an assessment of the propriety of the proposed rules, the State Comprehensive Plan contains a number of goals and policies which both individually and collectively address the issue of urban sprawl. Some of these goals and policies are as follows: (5) HOUSING-- Goal.--The public and private sectors shall increase the affordability and availability of housing for low-income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost- effective operations. Policies-- * * * 3. Increase the supply of safe, affordable, and sanitary housing for low-income and moderate-income persons and elderly persons by alleviating housing shortages, recycling older houses and redeveloping residential neighborhoods, identifying housing needs, providing incentives to the private sector to build affordable housing, encouraging public- private partnerships to maximize the creation of affordable housing, and encouraging research into low-cost housing construction techniques, considering life-cycle operating costs. * * * (8) WATER RESOURCES.-- Goal.--Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. Policies.-- * * * 2. Identify and protect the functions of water recharge areas and provide incentives for their conservation. * * * 5. Ensure that new development is compatible with existing local and regional water supplies. * * * Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features. Protect aquifers from depletion and contamination through appropriate regulatory programs and through incentives. Protect surface and groundwater quality and quantity in the state. * * * Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state. NATURAL SYSTEMS AND RECREATIONAL LANDS-- Goal.--Florida shall protect and acquire unique natural habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. Policies.-- Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. Acquire, retain, manage, and inventory public lands to provide recreation, conservation, and related public benefits. Prohibit the destruction of endangered species and protect their habitats. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic and recreational value. Develop and implement a comprehensive planning, management, and acquisition program to ensure the integrity of Florida's river systems. Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation. Expand state and local efforts to provide recreational opportunities to urban areas, including the development of activity- based parks. * * * 13. Encourage the use of public and private financial and other resources for the development of recreational opportunities at the state and local levels. AIR QUALITY.-- Goal.--Florida shall comply with all national air quality standards by 1987, and by 1992 meet standards which are more stringent than 1985 state standards. Policies.-- * * * 2. Ensure that developments and transportation systems are consistent with the maintenance of optimum air quality. * * * ENERGY-- Goal.--Florida shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors, while at the same time promoting an increased use of renewable energy resources. Policies-- 1. Continue to reduce per capita energy consumption. * * * Improve the efficiency of traffic flow on existing roads. Ensure energy efficiency in transportation design and planning and increase the availability of more efficient modes of transportation. * * * HAZARDOUS AND NONHAZARDOUS MATERIALS AND WASTE.-- Goal.--All solid waste, including hazardous waste, wastewater, and all hazardous materials shall be properly managed, and the use of landfills shall be eventually eliminated. Policies-- * * * 11. Identify, develop, and encourage environmentally sound wastewater treatment and disposal methods. * * * LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new popu- lation and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the livability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. * * * 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. * * * DOWNTOWN REVITALIZATION.-- Goal.--In recognition of the importance of Florida's developing and redeveloping downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.-- Provide incentives to encourage private sector investment in the preservation and enhancement of downtown areas. Assist local governments in the planning, financing, and implementation of development efforts aimed at revitalizing distress downtown areas. Promote state programs and investments which encourage redevelopment of downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- Provide incentives for developing land in a way that maximizes the uses of existing public facilities. Promote rehabilitation and reuse of existing facilities, structures, and buildings as an alterna- tive to new construction. Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents. * * * (20) TRANSPORTATION-- Goal.--Florida shall direct future transport- ation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. Policies.-- * * * 2. Coordinate transportation investments in major travel corridors to enhance system efficiency and minimize adverse environmental impacts. * * * Encourage the construction and utilization of a public transit system, including, but not limited to, a high-speed rail system, in lieu of the expansion of the highway system, where appropriate. Ensure that the transportation system provides Florida's citizens and visitors with timely and efficient access to services, jobs, markets, and attractions. * * * (23) AGRICULTURE.-- Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Policies. * * * 9. Conserve soil resources to maintain the economic value of land for agricultural pursuits and to prevent sedimentation in state waters. The technical memo, heretofore discussed, addressed in significant detail how some of these goals and policies impact the issue of urban sprawl. The Department has also explicated its policy definition of urban sprawl, as well as the significance of urban sprawl to the state comprehensive plan, in a number of cases where, under the provisions of Section 120.57, a hearing was held to determine whether a plan was in compliance. [See, e.g., Department Exhibits 4-6]. More recently, a challenge to the Department's nonrule policy was rejected by a Hearing Officer of the Division of Administrative Hearings, and that decision was affirmed on appeal. Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). In that case, at page 968, the court observed: . . . The hearing officer found that indeed, there was a consensus on the meaning of urban sprawl and that urban sprawl is: [T]he extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard develop- ment pattern in which land uses are not functionally related to each other. Common patterns of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non- urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non- urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Next, and more importantly, the hearing officer found that DCA does not have any policies of general applicability concerning the application of the urban sprawl rules which it consistently applies to individual plans. The DCA has yet to crystallize any urban sprawl policies which it intends to apply to individual plans. He noted that the application process, which is by nature adjudicatory, demands a through understanding of each plan, including the data and analysis describing the characteristics of the land and existing land uses; the goals, objectives and policies prescribing proposed land uses; and the future land use map. Indeed, he recognized that the myriad of details involved in applying the urban sprawl rules to an individual plan may preclude rulemaking, but even if theoretically possible, rulemaking in the area of application is not now practicable. In short, the alleged nonrule policies do not meet the definition of a rule, Section 102.52(16). These findings, which are conclusive of the outcome of the rule challenge, are based upon competent substantial evidence in the record. Adam Smith Enterprises, Inc. v. Department of Environmental Regulation, 553 So.2d 1260, 1274 (Fla. 1st DCA 1989). The purpose of Chapter 9J-5 and the proposed rules The purpose of Chapter 9J-5, as stated in 9J-5.001, is to "establish minimum criteria for the preparation, review, and determination of compliance of comprehensive plans" pursuant to Chapter 163, Part II, Florida Statutes. "Criterion " is defined in Webster's New Collegiate Dictionary (1974) as "a standard on which a judgment or decision may be based." Consistent with such purpose, Chapter 9J-5 has heretofore established the general requirements for local comprehensive plans, including format (elements), data and analysis requirements, level of service standards, planning time frames, and monitoring and evaluation requirements. Rule 9J-5.005, Florida Administrative Code. The chapter also includes standards for the adoption of concurrency management systems to ensure that adopted level of service standards required for roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation, and mass transit, if applicable, will be maintained. Rules 9J- 5.0055 and 9J-5.0057, Florida Administrative Code. Finally, the chapter includes the minimum requirements for the future land use element; traffic circulation element; mass transit element; ports, aviation and related facilities element; housing element; sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element; coastal management element; conservation element; recreation and open space element; intergovernmental coordination element; and capital improvement element. Common to each of these elements is the requirement that the local government assess current conditions and needs, and project future growth based on appropriate and relevant data and analysis. Rules 9J-5.006-5.016, Florida Administrative Code. Here, the Department is proposing to define the term "urban sprawl" for purposes of Chapter 9J-5 and to establish a methodology or standard for the review of local comprehensive plans or plan amendments for the discouragement of urban sprawl. By so doing, the Department is seeking to codify in rule form the policies it has previously explicated on the subject. In gauging the propriety or sufficiency of the proposed rules, it is important to recognize that an analysis of urban sprawl is but one aspect of a complicated evaluation of a particular plan or plan amendment for consistency, and that such analysis is peculiarly dependent upon an evaluation of the specific plan or plan amendment and its supporting data and analysis. Concomitantly, an analysis of a plan or plan amendment to discern whether it discourages urban sprawl is site or community specific, and no single formula could address the myriad of growth patterns existent within the diverse communities of the State of Florida with mathematical certainty. The proposed rules The rules challenged in these proceedings are proposed rule 9J- 5.003(140), which defines "urban sprawl," and proposed rule 9J-5.006(6), which establishes a process for the review of plans for discouraging the proliferation of urban sprawl. Proposed rule 9J-5.003(140), defines "urban sprawl" as follows: "Urban sprawl" means urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: The premature or poorly planned conversion of rural land to other uses. The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area. The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. Urban sprawl is typically manifested in one or more of the following land use or development patterns: (1) Leapfrog or scattered development; ribbon or strip commercial or other development; or (3) large expanses of predominantly low-intensity, low-density, or single-use development. This definition of urban sprawl includes terms which also have proposed definitions in Rule 9J-5.003, and are not the subject of challenge. These provisions are as follows: (35) "Density" means an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre. * * * (37) "Development" has the meaning described in s. 380.04, F.S. * * * (55) "Functional relationship" means a complementary and interactive relationship among land uses or development, including at a minimum a substantial and positive exchange of human interaction, goods, resources, institutions, services, jobs or workers between land uses or developments. * * * (64) "Intensity" means an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on or below ground; the measurement of the use of or demand on natural resources; and the measurement of the use of or demand on facilities and services. * * * (116) "Rural areas" means low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property. The definition of urban sprawl proposed by the Department is a sound generic definition that finds support in the literature and among professional planners. Indeed, urban sprawl is generally conceived as an extension of urban- type development into rural or sparsely developed lands in a haphazard development pattern in which land uses are not functionally or proximately related to each other. Such development may be reasonably described as uncontrolled, poorly planned and premature since it commonly occurs in areas where infrastructure and services do not already exist to serve it and where the urban development or uses are not functionally related to the uses which predominate the area. Moreover, the proof supports the conclusion that, as observed in the proposed rule, the three patterns in which urban sprawl commonly manifests itself are leapfrog or scattered development, ribbon or strip commercial or other development (i.e., retail, office and multifamily residential development), and large expanses of predominately low-intensity, low density, or single-use development. While the proposed rule is sound in a generic sense, that does not suggest that the exercise of professional planning judgment is not required for its application. Indeed, whether the land area at issue in a comprehensive plan or plan amendment is a rural area interspersed with generally "low-intensity or low-density urban uses," and whether such uses or planned uses may be reasonably characterized as the "premature or poorly planned conversion of rural land to other uses," the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area," or the "creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided," certainly involve the exercise of professional judgment in any analysis of a comprehensive plan or plan amendment. Such analysis is not, however, bereft of objective factors to guide it or to test its ultimate conclusions. Indeed, any such analysis is dependent upon the specific comprehensive plan or plan amendment under review, which would include the future land use element, as well as the local government's specific data and analysis which support it. The other rule under challenge, proposed rule 9J-5.006(6), establishes a process for the review of comprehensive plans or plan amendments for discouraging the proliferation of urban sprawl. It is organized into twelve paragraphs, with paragraphs (g)-(j) being the focus of the subject challenge. The purpose or function of paragraphs (g)-(j) are described in the proposed rule as follows: Use of indicators. Paragraph (6)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. Methodology for determining indicators. Paragraphs (6)(h) through (6)(j) describe the three major components of a methodology to determine the presence of urban sprawl indicators. Paragraph (6)(h) describes how land use aspects of a plan shall be analyzed. The land use element, including both the future land use map and associated objectives and policies, represents the focal point of the local government's planning effort. Paragraph (6)(i) describes the unique features and characteristics of each jurisdiction which provide the context of the analysis and which are needed to evaluate the extent, amount or frequency of an indicator and the significance of an indicator for a specific jurisdiction. Paragraph (6)(j) recognizes that land use plans generally may be significantly affected by other development policies in a plan which may serve to mitigate the presence of urban sprawl indicators based on the land use plan alone. Paragraph (6)(j) describes development controls which may be used by a local government to mitigate the presence of sprawl. Simply stated, paragraphs (h)-(j) are the components for an analysis of a plan or plan amendment to discern whether any of the indicators of urban sprawl, specified in paragraph (g), are present. If present, "the extent, amount or frequency of that indicator . . . [or] multiple indicators" must "be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Proposed rule 9J-5.006(6)(d). The primary indicators, established by proposed rule 9J-5.006(6)(g), that a plan or plan amendment does not discourage the proliferation of urban sprawl, are stated to be: 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. 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. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately 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. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits in fill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among liked or related land uses. Results in the loss of significant amounts of functional open space. As heretofore found, urban sprawl is typically manifested by leapfrog or scattered development, ribbon or strip commercial or other development, and large expanses of predominantly low-intensity, low-density, or single-use development. Indicators 1-3 are appropriate indicators of urban sprawl as they reflect the three typical ways in which it is manifested. Moreover, a plan or plan amendment that evidenced such characteristics might reasonably be found not in compliance with the mandates of Sections 163.3177(1) and (6)(a), Florida Statutes; the State Comprehensive Plan, Section 187.201(16) and (18), Florida Statutes; and, the provisions of Chapter 9J-5, Florida Administrative Code, relating to, inter alia, the minimum criteria required of local government plans relating to the future land use element, and such provisions of law may be reasonably read to speak to the issue of discouraging urban sprawl. Indicator 4 is also an appropriate indicator of urban sprawl since the premature or poorly planned conversion of rural land to other uses frequently intrudes on, or fails to adequately protect and conserve natural resources, such as wetlands, natural groundwater aquifer recharge areas, lakes, rivers and shorelines. As with other indicators, this indicator finds support in, and furthers, existent law which speaks to the adoption of standards for the orderly and balanced growth of an area, including the conservation and protection of natural resources. See Section 163.3177(1) and (6)(d) and (g), Florida Statutes, Section 187.201(9), (10) and (16), Florida Statutes, and Rules 9J- 5.006, 9J-5.011, 9J-5.012, and 9J-5.013, Florida Administrative Code. Indicators 5 and 9 are also appropriate indicators of urban sprawl since the intrusion of urban activities into rural areas frequently has negative impacts on rural uses such as logging, farming and mining. As with the previous indicators, these indicators are supported by, and further, existent law, which addresses the orderly and balanced development of the area, the control and distribution of population densities, the conservation of soil resources to maintain viable agricultural pursuits, and the separation of rural and urban uses. See Section 163.3177(1), and (6)(a) and (d), Florida Statutes, Section 187.201(16)(a), 16(b)2, (23)(a) and (23)(b)9, Florida Statutes, and Rule 9J- 5.006, Florida Administrative Code. Indicators 6 and 7 are also appropriate indicators of urban sprawl since a failure to utilize existing and future capacity of public facilities and services often evidences a failure to guide development into areas with existent infrastructure appropriate for development. These indicators are consistent with, and further, current comprehensive planning laws which favor orderly and balanced development, encourage efficient development, and maximize the use of existing public facilities. See Section 163.3177(1) and (6)(a), Florida Statutes, Section 187.201(16)(a) and (b)1, (17)(a), (18)(a), and (18)(b) 1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 8 is an appropriate indication of urban sprawl for the same reasons addressed as to indicators 6 and 7, and because such premature expansion of land uses requires the extension of public facilities and services at disproportionate costs. This indicator is also consistent with, and furthers, the comprehensive planning laws addressed as to indicators 6 and 7. Indicator 10 is an appropriate indication of urban sprawl since a failure to encourage infill development or the redevelopment of existing neighborhoods and communities is consistent with failing to discourage urban sprawl. This indicator is consistent with, and furthers, the comprehensive planning laws which favor orderly and balanced growth, maximizing the use of existing facilities, the renewal of blighted areas and the revitalization of downtown areas. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(a), (16)(b)1-3, 17(a), 17(b)2, (18)(a) and (18)(b)1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 11 is an appropriate indication of urban sprawl for the same reasons addressed as to indicator 10, and is consistent with and furthers the comprehensive planning laws supporting that indicator. See also Rule 9J-5.010, Florida Administrative Code. Moreover, the encouragement of an attractive and functional mix of living, working, shopping and recreational activities in an urban area is the antithesis of urban sprawl. Indicator 12 is an appropriate indication of urban sprawl since urban sprawl patterns often result in poor accessibility among related land uses and increase the cost of transportation between related uses. This indicator is consistent with and furthers the comprehensive planning laws which favor orderly, balanced and efficient development, which includes timely and efficient access to services, jobs, markets and attractions. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(b)1 and 3, and (20)(b)9, Florida Statutes, and Rule 9J5-5.006, Florida Administrative Code. Finally, indicator 13 is an appropriate indication of urban sprawl since urban sprawl patterns often result in the loss of significant amounts of functional open spaces ("undeveloped lands suitable for passive recreation or conservation"). This indicator is consistent with and furthers the comprehensive planning laws which address orderly and balanced growth, conservation of natural resources, and the need for recreational and open space. See Section 163.3177(1) and (6)(d) and (e), Florida Statutes, Section 187.201(10) and (16)(b)2, Florida Statutes, and Rules 9J-5.006, 9J-5.013, and 9J-5.014, Florida Administrative Code. While the indicators are reasonable in a generic sense, their existence or significance in any given case is wholly dependent upon an analysis of the specific plan or plan amendment and the local government's specific data and analysis which support it. Notably, these are the factors contemplated by the provisions of paragraphs (h)-(j) of the proposed rule which, when analyzed, presume to provide the insight necessary to render such a conclusion as to whether any indicators of urban sprawl are present. The first step in the analysis is an evaluation of land uses, as prescribed by paragraph (h). Under such provision, a land use analysis is the focus of the review of the plan or plan amendment when determining whether it discourages urban sprawl. The rule provides a list of ten factors by which each land use type (i.e., residential, commercial, industrial, agricultural), included within the plan or amendment, will be evaluated. These factors are: extent, location, distribution, density, intensity, compatibility, suitability, functional relationship, land use combinations, and demonstrated need over the planning period. "Extent," "distribution," "density," "intensity," "compatibility," "suitability," and "functional relationship" are defined by proposed rule 9J- 5.003(50), (39), (35), (64), (28), (131) and (55), respectively. The term "demonstrated need over the planning period" is a term described in existing Rule 9J-5.006, which requires an analysis of the amount of land needed to accommodate the projected population, including the categories of land use and their densities or intensities of use. Petitioners did not challenge any of these rule definitions. The terms "location" and "land use combinations," while not defined in the rules, have a commonly understood meaning among professional planners. "Location" means the situs or relationship of any one land use to any other land use or geographic feature. "Land use combinations" means the different types of land uses (i.e., residential, commercial, industrial, agricultural) on a land use map. Paragraph (i) of the proposed rule specifies the local conditions against which each of the land use factors described in paragraph (h) is to be evaluated. The paragraph lists ten features or characteristics to be used in this evaluation which, like the analysis in paragraph (h), is based on the plan or plan amendment and its underlying data and analysis. These factors are: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Petitioners offered no proof at hearing directly challenging the propriety or reasonableness of any of the factors listed in this paragraph. Moreover, one would expect a plan or plan amendment, together with its data and analysis, to address these factors. Paragraph (j) of the proposed rule sets forth a list of development controls which, to the extent they are included in a local plan, will be evaluated to determine their impact on the land uses at issue and, therefore, the ultimate issue of whether the plan or amendment discourages urban sprawl. A local government is not required to adopt any of the development controls, but if they elect to include them in their plan or plan amendment, the controls, which may mitigate or obviate an urban sprawl issue, are pertinent to the urban sprawl question. Indeed, each of the development controls is an accepted planning technique to control or discourage urban sprawl, and a professional planner should be familiar with such controls and their implications. Viewing the provisions of paragraphs (g)-(j) as a whole, the gist of petitioners' challenge appears to be that, while the purpose of the rule is to discourage urban sprawl, the rule fails to indicate "how much sprawl is acceptable and how much sprawl is too much," that the various indicators and criteria have no established weighting, and the terms used lack definition. Under such circumstances, petitioners argue the rules are vague or vest unbridled discretion in the agency. [See Petitioners' proposed recommended order, paragraphs 27-29.] Such concerns are not however, supported by the proof. As heretofore noted, the meaning applied to the terms used in the rules at issue is contained in other proposed rules, the existing rule, or the terms are commonly understood among professional planners. Moreover, in most cases, the terms used are identical to those employed by the Legislature in the enactment of Chapter 163, Part II, and Chapter 187, Florida Statutes, and the provisions of existing Rule 9J-5, which has been accorded special status by the Legislature under Section 163.3177(9), Florida Statutes. Under such circumstances, these terms have been routinely applied for a significant period of time in the preparation and review of local plans, and are presumably understood by professional planners. In concluding that the indicators and criteria are reasonable, it has not been overlooked that they do not have an established weighting, nor that professional planners could reasonably disagree in their application to a particular circumstance. As to establishing a weighting for each indicator or criteria, the variety of circumstances among local governments and their plans or proposed amendments would foreclose such an approach. As to disagreements among professional planners, such is not a failing of the rule, but the consequence of the diversity or vagary among local plans or amendments, data and analyses and local conditions. Notwithstanding, the plans or amendments, data and analyses, and local conditions provide an objective basis upon which an evaluation can be made and, if necessary, challenged and tested. Finally, as to the rule's failure to prescribe "how much sprawl is acceptable and how much sprawl is too much" the same conclusion must prevail, since it is the plan or amendment, data and analysis, and local conditions that will derive that answer and not the rule. Indeed, the benchmark adopted by the Department to "discourage the proliferation of urban sprawl" is not unreasonable under the circumstances. The common meaning of "discourage" and "proliferation" used in the Department's mandate provide a reasonable benchmark for addressing a problem that cannot be quantified. The word "discourage" means "To dissuade or deter . . . To hamper; hinder . . . To try to prevent," and the word "proliferation" means "To increase or spread at a rapid rate." The American Heritage Dictionary, New College Edition (1979). In reviewing plans or plan amendments as required by the Act, it is presumed that the Department's planners will exercise sound planning judgment and will conform their conduct to existent law. See e.g., Atlantic Coast Line R. Co. v. Mack, 57 So.2d 447 (Fla. 1952). Should the Department fail to do so, or should there be a divergence of opinion among the parties or professional planners, the statutory framework provided by Section 163.3184, Florida Statutes, which establishes the procedures for adoption of comprehensive plans and plan amendments, provides a review process to test, if necessary, the sufficiency and consistency of any Departmental determination regarding urban sprawl or any other planning issue. Moreover, during the course of such review, deference is accorded the decision of the local government, not the Department. Regarding the review process, Section 163.3184, Florida Statutes, provides for initial review of proposed comprehensive plans and plan amendments by the Department, and the rendering of an "Objections, Recommendations, and Comments Report" (ORC Report) by the Department to the local government. The local government, upon receipt of the ORC report, may then adopt or adopt with changes the proposed plan or plan amendment. If adopted, a copy of the adopted plan or plan amendment is filed with the Department, which has 45 days to review it and determine if the plan or amendment is in compliance with the Act. The Department's determination of compliance can only be based upon one or both of the following: The state land planning agency's [Department's] written comments to the local government . . .; and Any changes made by the local government to the comprehensive plan or plan amendment as adopted. Section 163.3184(8)(a), Florida Statutes. If the Department issues a notice of intent to find the plan in compliance, any affected person is accorded an opportunity to file a petition for review pursuant to Section 120.57, Florida Statutes. "In this proceeding the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Section 163.3184(9)(a), Florida Statutes. Should the Department issue a notice of intent to find the comprehensive plan or plan amendment not in compliance, the notice is forwarded to the Division of Administrative Hearings (DOAH) for review pursuant to Section 120.57, Florida Statutes. In such proceeding, . . . the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a prepond- erance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination is fairly debatable. Section 163.3184(10)(a), Florida Statutes. In either case, the recommended order rendered by DOAH is subject to final agency action by the Department or the Administrative Commission, as appropriate, and ultimately judicial review. Sections 120.68 and 163.3184(9), (10) and (11), Florida Statutes.
The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
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 small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.
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.
The Issue The issue to be determined in this case is whether Martin County's amendments to its Land Development Regulations (LDRs), adopted by Ordinance 833, are consistent with the Future Land Use Element of the Martin County Comprehensive Plan.
Findings Of Fact The Department is the State land planning agency. The Martin County is a political subdivision of the State of Florida. Through its Board of County Commissioners, it adopted Ordinance 833 on November 17, 2009, amending the LDRs pertaining to fishing and hunting camps. Petitioner is a person who resides in Martin County. She has an ownership interest in three parcels of land in the County. Two of the parcels are adjacent to land that is eligible for development as a hunting camp under the new LDRs. An owner of land that is adjacent to one of Petitioner's parcels has submitted plans for a hunting camp to the County. Petitioner's principal complaint is that Ordinance 833 allows new commercial uses at fishing and hunting camps, which she contends are uses that are inconsistent with policies of the Future Land Use Element of the Comprehensive Plan that require new commercial development to be located in the Primary Urban Service Area and which require that agricultural lands be protected. There are no policies of the Martin County Comprehensive Plan that specifically address fishing and hunting camps, but the following policies are relevant to the determination of the issues raised by Petitioner. Policy 4.7A.2. Development in Primary Urban Service District. Martin County shall require new residential development with lots of one-half acre or smaller, commercial uses and industrial uses to locate in the Primary Urban Service District. This requirement is to ensure consistency with the County's growth management policies and Capital Improvements Element and to assure that the Plan's LOS standards will be provided and maintained cost-efficiently. Policy 4.7A.10. Priority for public services. In providing public services and facilities and allocating public financial resources for them first priority shall be given to the Primary Urban Service District. Second priority shall support the staged development of suitable lands in the Secondary Urban Service District at densities specified in Policy 4.7B.1 or as they are converted to the Primary Urban Service District. Public Services that support or encourage urban development in other areas shall not be provided, except for improvements necessary to remedy an existing deficiency. Policy 4.12A.2. 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 agricultural uses. Policy 4.13A.1 The FLUM identifies those lands in Martin County that are allocated for agricultural development. This designation is intended to protect and preserve agricultural soils for agriculturally related uses, realizing that production of food and commodities is an essential industry and basic to the County's economic diversity. * * * The further intent of the Agricultural designation is to protect agricultural land from encroachment by urban or even low density residential development. * * * Policy 4.13A.8(3) General Commercial development. * * * The areas designated for General Commercial development are specifically not adapted to permanent residential housing, and such uses shall be located in other areas designated for residential development. On the other hand, transient residential facilities including hotels and motels, timesharing or fractional fee residential complexes, or other transient quarters should be located in areas designated for commercial use. Ordinance 833 amended Article 3 of the LDRs, entitled "Zoning Districts." Section 3.3 was amended to change the definition of "fishing and hunting camps." The previous definition excluded overnight lodging facilities, but the amendment changed the definition to include "overnight accommodations, food, transportation, guides and other customary accessory uses and facilities as set forth in Section 3.76.1." Section 3.76.1 is a new section entitled "Hunting Camps" and establishes development standards for hunting camps, including a limitation on overnight accommodations to six guest rooms and a limitation on food service to customers of the hunting camp. Sales and rentals of hunting supplies and accessories are also limited to customers of the hunting camp. Ordinance 833 also defined "fishing and hunting camps" in a new Section 3.403. The definition in Section 3.403 is identical to the definition in Section 3.3, except that instead of including a reference to Section 3.76.1, the definition refers to Section 3.412.A. Section 3.412.A. adds the same development standards for hunting camps that are found in Section 3.76.1. There is no material difference between the two definitions. Common sense indicates that the lands designated "Agricultural" on the Future Land Use Map are more appropriate areas for fishing and hunting camps than the Primary or Secondary Urban Service Districts. People generally fish, hunt, and camp in rural areas, not in urban areas. Martin County contends that fishing and hunting camps are not commercial land uses, but are recreational uses. Petitioner claims, however, that the addition of overnight accommodations, food facilities, and accessory uses at fishing and hunting camps makes them inconsistent commercial uses. The dictionary definition of the word "camp" includes the idea of staying overnight in an area. See, e.g., Webster's New Collegiate Dictionary 158 (1979). If a person stays overnight in a camp, he or she must have shelter and food. It is a matter of general knowledge of which the Administrative Law Judge takes judicial notice that fishing and hunting camps often provide lodging for hunters and fisherman to stay overnight and facilities for eating. Policy 4.12A.2 of the Comprehensive Plan allows "low- intensity uses," including "small-scale service establishments necessary to support rural and agricultural uses" outside of urban service districts. This policy co-exists with Policy 4.7A.2, which requires new commercial development to be located in the Primary Urban Service District. Obviously, therefore, low-intensity uses and small-scale service establishments that support rural and agricultural uses are not the type of uses, even if they have commercial aspects, that must be located in the Primary Urban Service District. Although the County does not claim (for reasons that are not clear) that "customary accessory uses and facilities" for fishing and hunting camps are encompassed by the term "small-scale service establishments," the County asserts that customary accessory uses and facilities are the types of low- intensity uses which Policy 4.12A.2 allows outside the urban service districts. That is a reasonable interpretation of Policy 4.12A.2. The LDRs establish development guidelines for hunting camps that are consistent with low-intensity uses. Petitioner argues that no development guidelines are established for fishing camps and, therefore, they could be potentially include high-intensity commercial activities. If Ordinance 833 did not create development guidelines for fishing camps, that would not constitute a change because the previous LDRs already permitted fishing camps in agricultural areas without specifying any development guidelines other than a prohibition against overnight lodging. Both of the new definitions for "fishing camps" created by Ordinance 833 appear to incorporate by reference the guidelines applicable to hunting camps. However, even if the guidelines are not applicable to fishing camps, it cannot be assumed for the purposes of this consistency determination that the new LDRs permit uses at fishing camps that would not be low-intensity uses. The LDRs do not express or imply that intent. The new LDRs are not inconsistent with Policy 4.7A.10, related to the County's priorities for providing public services, because the LDRs do not support or encourage urban development. The new LDRS are not inconsistent with Policy 4.13A.1, related to the protection of agricultural soils because the allowance in the Comprehensive Plan for uses other than farming in the agricultural areas shows that the policy to protect agricultural soils is not meant to preserve every square foot of agricultural soil for farming. The new LDRS are not inconsistent with Policy 4.13A.1, related to the protection of agricultural lands from encroachment by urban or residential development because the LDRs do not authorize urban or residential uses in conjunction with fishing and hunting camps. Petitioner did not show that the restricted commercial activities at fishing and hunting camps are urban uses. Therefore, such uses do not contribute to urban sprawl. They are reasonably treated by the County as low-intensity, support services which are consistent with the Comprehensive Plan policies to prevent urban sprawl into agricultural areas and to otherwise protect agricultural lands.
The Issue The issue is whether Petitioner is entitled to a final order amending the development order for the Quadrangle DRI to authorize the replacement of office space with multifamily residential units.
Findings Of Fact The Roles of Residential Units and Residential Acreages in Quadrangle Development Orders Petitioner is a joint venture. Its partners are Weyerhauser Realty Company and RMDC Quadrangle Company. RMDC Quadrangle Company is a subsidiary of Reynolds Metal Development Company. (Tr., p. 320.) The partners have divided development rights between themselves, but legal title remains in Petitioner. (Tr., p. 321.) All references to "Petitioner" include Petitioner's predecessors in interest. On November 5, 1984, Respondent issued a development order (DO) approving the application for a development of regional impact (DRI) known as The Quadrangle (Quadrangle). (Resp. Ex. 3.) Quadrangle is located on 465 acres immediately west of the University of Central Florida in east Orange County. Quadrangle occupies about two-thirds of the area bounded by University Boulevard on the south, Alafaya Trail on the east, Rouse Road on the west, and McCulloch Road on the north. (Resp. Ex. 1.) At this location, McCulloch Road separates Orange and Seminole counties. (Tr., p. 87.) As originally proposed, Quadrangle was to have been a corporate business center with over two million square feet of office space and nearly one-half million square feet of supporting uses, including hotels and restaurants. (Resp. Ex. 1, pp. 10 and 13.) (All page references are to the actual number of pages starting with the first page of the exhibit and typically do not correspond to the page numbers shown on the exhibit.) The original DRI application identified 21 parcels: 13 for office, two for hotel, one for professional office/health center, one for retail, one for restaurant, one for bank/office, one for restaurant/recreation/park, and one for professional office. (Resp. Ex. 1, Table 1.) The original DRI application designated as office what is now known as Tract 7, which is the parcel at issue in this case. (Cf. Resp. Ex. 1, Land Use Plan, with Pet. Ex. 2A.) Ensuing requests for approvals of proposed land use changes addressed the requirements of local and state law governing, respectively, planned developments (PD) and DRIs. This case involves exclusively the DRI process. The documents initiating amendments to the DRI DO are contained in packages entitled "Notice of Change for the Quadrangle DRI" (NOPC). (The first such package bears a slightly different name.) The NOPCs contain the same information as that contained in the packages used to initiate PD amendments. (Each of these PD packages is called an "Amended Land Use Plan" (ALUP) and contains a map known by the same name. In December 1993, Petitioner filed an NOPC requesting a DO amendment approving residential development. (Pet. Ex. 3.) This was the first request to add any form of residential development, exclusive of hotels, to Quadrangle. The December 1993 NOPC explains the purpose of this request: The proposed amended development program has been designed to introduce multi-family housing into the project in an attempt to address a current deficiency in the marketplace as well as provide a more diverse mixture of land uses within The Quadrangle and the University Activity Center. As demonstrated in Table 1, the currently proposed changes include a reduction of office space by 825,000 square feet, the addition of 960 multi-family units and an increase of 250,000 square feet in the retail land use. The multi-family parcels will be developed with densities up to 18 dwelling units per acre. (Pet. Ex. 3, p. 3.) Explaining the flexibility that Petitioner sought for the Quadrangle DRI, the December 1993 NOPC adds: Exhibit 1--Development Plan (Revised) illustrates the proposed changes to the master development plan. The applicant requests approval to consider each remaining development parcel as a potential site for either commercial/retail, multi-family residential, or office land uses, thereby providing the flexibility needed to adequately incorporate the new land use proposed for the project. Table 1 of the December 1993 NOPC is a Substantial Deviation Determination Chart. This table provides Respondent and other reviewing agencies with information to help them determine, in the DRI process, if the proposed land use change is a substantial deviation from the development already approved by the DO, as previously amended. The Substantial Deviation Determination Chart contains six rows of land uses and four columns: land use, change category, proposed plan, and approved plan. (Pet. Ex. 3, Table 1.) Under Residential, Table 1 states, for the approved plan, "not applicable" because the then-current DO authorized no residential uses. For the proposed plan, Table 1 indicates 960 multifamily units and 56 acres. For "site locational changes," Table 1 refers to Exhibit 1. (Pet. Ex. 3, Table 1.) Exhibit 1, which is also mentioned in paragraph 7 of this recommended order, is the "Development Plan (revised)." The Development Plan comprises a color map, "land use legend," table entitled "Amended Development Program," and untitled table showing tracts, land uses, and acreages. (Pet. Ex. 3, Ex. 1.) Reflecting the proposal that was the subject of the December 1993 NOPC, the land use legend shows Tract 7 as "Office/M.F. [Multifamily] Residential." The Amended Development Program reports an introduction of 960 multifamily residential units, increase of 250,000 square feet of commercial retail/service, and decrease of 825,000 square feet of office/showroom. (Pet. Ex. 3, Ex. 1.) The untitled table on the Development Plan identifies specific, authorized land uses for each parcel. Also reflecting the proposal that was the subject of the December 1993 NOPC, the untitled table states: Tracts Land Use Acreage 1 Commercial/Office/Hotel 20.75 ac. 4A Office/M.F. Residential 23.87 ac. 4B Office/M.F. Residential 15.00 ac. 5 Office/M.F. Residential 18.13 ac. 7 Office/M.F. Residential 24.62 ac. 12 Office/M.F. Residential 12.63 ac. 17B Office/M.F. Residential 04.02 ac. 17C Office/M.F. Residential 07.70 ac. 21 Commercial/Office/Hotel 11.27 ac. 25B Commercial/Office 02.19 ac. 25C Commercial/Office/Hotel 03.89 ac. (Pet. Ex. 3, Ex. 1.) TOTAL 144.07 ac. Attachment B to the December 1993 NOPC is a traffic analysis prepared in November 1993 by Kimley-Horn Associates, Inc. The analysis explains adequately how no additional traffic impacts would result from the replacement of 825,000 square feet of office and office/showroom with 960 multifamily dwelling units and 250,000 square feet of retail. (Pet. Ex. 3, Attach. B.) Respondent is not challenging Petitioner's request for an amended DO on the basis of traffic impacts. (Tr., p. 283.) In any event, the single measure of the impact of Quadrangle was traffic trips. (Tr., pp. 120-21.). The November 1993 Kimley- Horn analysis established a formula by which Petitioner could and did demonstrate that all amendments to the DRI DO that Petitioner sought, including the subject amendment, did not generate offsite traffic impacts due to the decreases in Office that accompanied increases in Multifamily Residential. (Tr., pp. 279 et seq.) Each NOPC concludes with a proposed DO. The proposed DO attached to the December 1993 NOPC contains the Development Plan, which is described in paragraphs 10-12 of this recommended order. Although the hearing exhibit is incomplete, the proposed DO presumably incorporates by reference, in the same manner as described below for subsequent NOPCs, "the development quantities" set forth in the Development Plan. (Pet. Ex. 3, last two pages.) The DO actually approving the December 1993 NOPC is the Non-Substantial Deviation Amendment to Development Order for the Quadrangle Development of Regional Impact, dated May 10, 1994. The DO states that the "development quantities and land uses . . are . . . amended as described and stated in the attached Exhibits 'A' and 'B.'" (Stipulated Facts filed December 20, 1999 (Stip.), Ex. D, p. 2.) Exhibit A to the May 10, 1994, DO sets exchange ratios of one multifamily unit for 300 square feet of office and 1000 square feet of retail for 2400 square feet of office, in both cases up to the maximum measures of intensity approved by this DO. Exhibit A subjects these exchange ratios to the "following maximum result: Office--2,744,263 square feet[;] Commercial-- 397,000 square feet[;] Hotel--450 rooms[; and] Residential--960 units." (Stip., Ex. D, Ex. A.) Exhibit B to the May 10, 1994, DO is the Development Plan that is attached to the December 1993 NOPC. (Stip., Ex. D, Ex. B.) The ALUP accompanying the December 1993 NOPC is dated January 1994. (Pet. Ex. 4.) The January 1994 ALUP contains design standards for the newly added residential land use. (Pet. Ex. 4, p. 15.) For the most part, these standards involve buffers, setbacks, and net livable areas (Pet. Ex. 4, Ex. 3 (ALUM map)), although the PD approval presumably added other design standards to all residential development within Quadrangle. The first two issues, as stated in the Preliminary Statement above, involve the calculation and purpose of the acreage figures supplied by Petitioner for Multifamily Residential. Although over 100 acres bore the designation of Multifamily Residential after approval of the amendments sought by the December 1993 NOPC, the same acreage also bore the designation of Office. In calculating the 56 acres used in Table 1 of the December 1993 NOPC, Petitioner added the acreage of Tracts 4A, 4B, and 5. (Tr., p. 219.) (The total of these three parcels is actually 57 acres; all acreages in this case are approximations.) Although Tracts 7, 12, 17B, and 17C also bore an alternative Multifamily Residential designation, Petitioner chose to include in Multifamily Residential only the combined acreage of Tracts 4A, 4B, and 5, because Petitioner believed that these were the most likely parcels to be developed for residential, rather than office, uses. Also, Petitioner did not want to distort the Office designation by removing all of these parcels from Office when it was likely that some of them would develop as Office, not Multifamily Residential. Petitioner's acreage assignment is roughly consistent with the maximum allowable density; if each of these tracts developed at its maximum of 18 units per acre, these 56 acres would yield 1008 units, or 48 more units than authorized by the DO approving the December 1993 NOPC. In February 1997, Petitioner filed another NOPC seeking approval of 290 more residential units. The February 1997 NOPC states that the "approved program is shown on Table 1, Substantial Deviation Determination Chart." Explaining further, the February 1997 NOPC adds: "The proposed amended development program has been designed to expand multi-family housing to Tract #1 in an attempt to address a current deficiency in the marketplace and to specify some specific commercial uses so as to provide a more diverse mixture of land uses within The Quadrangle and the University Activity Center." The February 1997 NOPC notes that "Exhibit 1, Development Plan (Revised) illustrates the proposed changes to the master development plan." (Pet. Ex. 7, p. 3.) Exhibit 1 to the February 1997 NOPC is a Development Plan (revised February 10, 1997) featuring a color map. Tract 7 remains designated as Office/Multifamily Residential, as are Tracts 5, 12, 17B, and 17C. The Development Plan discloses that Tracts 4A, 4B, and 25B have been developed or sold. The table entitled "Amended Development Program" shows an increase of 290 multifamily residential units and a decrease of 72,000 square feet of commercial retail/service. (Pet. Ex. 7, Ex. 1.) Reflecting the sales of the three parcels and minor acreage recalculations, the untitled table included on the Development Plan provides the following information: Tracts Land Use Acreage 1 Commercial/Hotel/Office/ M.F. Residential 24.00 ac. 5 Office/M.F. Residential 15.95 ac. 7 Office/M.F. Residential 24.62 ac. 12 Office/M.F. Residential 12.63 ac. 17B Office/M.F. Residential 04.02 ac. 17C Office/M.F. Residential 07.70 ac. 21 Commercial/Office/Hotel 11.45 ac. 25C Commercial/Office/Hotel 04.13 ac. TOTAL 104.50 ac. (Pet. Ex. 7, Ex. 1.) Table 1 in the February 1997 NOPC is the Substantial Deviation Determination Chart. This chart indicates that the proposed plan is for an additional 290 multifamily residential units, to a new total of 1250 such units. Under the row for Residential, the chart shows the approved plan as 56 acres and the proposed plan as "Add Tract 1 77 acreage." (Pet. Ex. 7, Table 1.) The proposed DO attached to the February 1997 NOPC amends the "development quantities" to reflect the information contained in an exhibit that was omitted from the copy of the February 1997 NOPC admitted into evidence. Presumably, the attached document was the Development Plan. (Pet. Ex. 7, last two pages.) The DO actually approving the February 1997 NOPC is the Non-Substantial Deviation Amendment to Development Order for the Quadrangle Development of Regional Impact, dated June 24, 1997. The DO states that the "development quantities and land uses . . . are . . . amended as described and stated in the attached Exhibits 'A' and 'B.'" (Stip., Ex. E, p. 2.) Exhibit A to the June 24, 1997, DO is the Development Plan that is attached to the February 1997 NOPC. Exhibit B to the June 24, 1997, DO is the Substantial Deviation Determination Chart that is attached to the February 1997 NOPC. (Stip., Ex. E, Exs. A and B.) Petitioner calculated the 77 acres for Multifamily Residential by adding the acreage of Tract 1 to the 56 acres represented by Tracts 4A, 4B, and 5. (Tr., p. 222-23.) The reasoning was largely the same as that used when totaling the 56 acres in the December 1993 NOPC. Attempting to distinguish why Petitioner would add the acreage of Tract 1, but not Tract 7 at the time of the next NOPC for more residential units (discussed below), Petitioner explained that Tract 1 had not previously been designated Multifamily Residential. (Tr., p. 153.) By this time, Tracts 4A and 4B were under development as multifamily residential. (Cf. Pet. Ex. 3, Ex. 1 with Pet. Ex. 7, Ex. 1.) Occupying nearly all of the McCulloch Road frontage of Quadrangle, these parcels were, respectively, Phases I and II of a large apartment complex known as Knights Krossing. (Pet. Exs. 20, p. 20, and 47.) Tract 1 (except for less than two acres devoted to retail) became Phase III of Knights Krossing. (Pet. Ex. 20, p. 20.) In September 1997, Petitioner filed another NOPC seeking approval of additional residential units. The September 1997 NOPC requests the DO amendment that is the subject of this case. The September 1997 NOPC states that the "approved program is shown on Table 1, Substantial Deviation Determination Chart." Explaining further, the September 1997 NOPC adds: "The proposed amended development program has been designed to expand multi-family housing previously approved on Tract #7 and hotel rooms and restaurant in Tract #25C in an attempt to address an increasing deficiency in the marketplace, the project and the UCF Activity Center. Due to the tremendous growth of the University of Central Florida (currently 30,000 students), the need for these types of uses has increased." The September 1997 NOPC notes that "Exhibit A, Development Plan (Revised) . . . illustrates the proposed changes to the master development plan." (Pet. Ex. 11, p. 3.) Exhibit A to the September 1997 NOPC is the Development Plan (revised August 1997) featuring a black-and-white map. The Development Plan continues to designate Tract 7 as Office/Multifamily Residential, but shades the tract to show that it is an "amended area." The Development Plan also shades Tract 25C, which bears the underlying designation of Commercial/Office/Hotel. The only other tracts designated as Office/Multifamily Residential continue to be Tracts 5, 12, 17B, and 17C, and Tract 1 continues to bear its designation as Commercial/Hotel/Office/Multifamily Residential. The table entitled "Amended Development Program" shows an increase of 53 hotel rooms, 310 multifamily residential units, and 8000 square feet of commercial retail/service and a decrease of 234,863 square feet of office/showroom. (Pet. Ex. 11, Ex. A.) The untitled table on the Development Plan provides the following information: Tracts Land Use Acreage 1 Commercial/Hotel/Office/ 24.00 ac. M.F. Residential 5 Office/M.F. Residential 15.95 ac. 7 Office/M.F. Residential 24.62 ac. 12 Office/M.F. Residential 12.63 ac. 17B Office/M.F. Residential 04.02 ac. 17C Office/M.F. Residential 07.70 ac. 21 Commercial/Office/Hotel 11.45 ac. 25C Commercial/Office/Hotel 04.13 ac. (Pet. Ex. 11, Ex. A.) Table 1 in the September 1997 NOPC is the Substantial Deviation Determination Chart. This chart indicates that the proposed plan is for an additional 310 multifamily residential units, to raise the total for the Quadrangle DRI to 1560 such units. Under the row for Residential, the chart shows that the approved plan is still for 77 acres. (Pet. Ex. 11, Table 1.) The proposed DO attached to the September 1997 NOPC amends the "development quantities, land uses and acreage" to reflect "the attached schedules and master plans" as Exhibit A, which is the Development Plan. (Pet. Ex. 11, last three pages, and Stip., Ex. F, Attach. B, Ex. A.) The September 1997 NOPC marks the first time that Petitioner sought additional Multifamily Residential units without increasing the acreage assigned to residential uses in the Substantial Deviation Determination Chart. Petitioner admits that, in retrospect, it probably should have added the 24.62 acres represented by Tract 7. (Tr., p. 200.) As revealed by the shading of Tract 7 and the text quoted in paragraph 32 of this recommended order, Petitioner's purpose in increasing Multifamily Residential by 310 units was to allow residential development of Parcel 7. (Tr., p. 235.) However, Petitioner wanted its acreage figures to balance (Tr., p. 236), and Petitioner was concerned that adding the acreage of Tract 7 to Multifamily Residential would distort the Office acreage. (Tr., p. 233.) Only later did Petitioner discover, after discussions with a representative of the Department of Community Affairs, that Petitioner could have listed contingent acreages, so as to disclose that the actual use of parcels bearing multiple designations could not be ascertained until their sale or development. (Tr., p. 238.) The parties eventually bifurcated the requests contained in the September 1997 NOPC, and Respondent approved the exchange of 44,263 square feet of office space for 53 hotel rooms. (Stip., Paras. 8-12.) After discussion with nearby homeowners (Tr., p. 168), Petitioner reduced its request for 310 multifamily residential units to 240 such units. (Tr., p. 168 and Stip., Para. 13.) On March 23, 1999, Respondent conducted a public hearing on the residential aspect of the September 1997 NOPC and accompanying ALUP. (Stip., Para. 15.) Petitioner's present request for additional Multifamily Residential units is for a nonsubstantial deviation to the existing DO. (Stip., Para. 20.) No objection to this aspect of the September 1997 NOPC was lodged by the Department of Community Affairs (Stip., Para. 21), the East Central Florida Regional Planning Council (Stip., Para. 22), or Respondent's Development Review Committee, which found the amendment to be consistent with the Orange County Comprehensive Plan (Stip., Para. 23). In a DO, as defined by Section 380.031(3) and (4), Florida Statutes, Respondent denied the portion of the September 1997 NOPC seeking additional Multifamily Residential units. (Stip., Para. 17.) The only residential development in Quadrangle is Knights Krossing. (Stip., Para. 14.) Currently constructed and proposed units in Knights Crossing will use 965 of the already- approved 1250 Multifamily Residential units, leaving 285 such units available. (Stip., Para. 14.) Tract 4A has 241 units on 20 acres, Tract 4B has 217 units on 20 acres, and Tract 1 has 290 units on 19.4 acres, for a total of 748 units on about 60 acres. (Pet. Ex. 20, p. 20.) The additional 217 units are proposed for Phase IV of Knights Krossing. (Pet. Ex. 20, p. 27.) Phase IV will be developed on Tract 5, if the required land use approvals are obtained. (Tr., p. 191.) The prospective developer of Knights Krossing, Phase IV, is Mr. Davis. (Pet. Ex. 43, p. 1 and Pet. Ex. 19, p. 3.) The 217 units sought for Tract 5 plus the 748 units developed on Tracts 1, 4A, and 4B total the 965 units stated in the Stipulated Facts. The number of Multifamily Residential units requested by Petitioner in this case is dependent upon the resolution of the Davis proposal. The two obvious alternatives are if the Davis proposal were granted or if the Davis proposal were denied. However, if the Davis proposal were denied, there are two alternatives: if Tract 5 were developed residentially at its maximum density or if Tract 5 were not developed residentially (or, to the same effect, if the DO amendment sought in this case were to ignore subsequent residential development of Tract 5). Certain facts are common to all three alternatives. First, Petitioner (or its assignee) wishes to develop 420 Multifamily Residential units on Tract 7, regardless whether the Davis proposal were approved. (Tr., p. 327.) Second, Tracts 5 and 7 are the only unsold parcels bearing the Multifamily Residential designation. (Tr., p. 208.) Tract 17C was sold sometime ago (Pet. Ex. 23), Tract 12 has completed review by the Development Review Committee for office use, and Parcel 17B is under contract for hotel use (Tr., p. 208). (This recommended order shall ignore the possibility that Tracts 12 and 17B may return to the market undeveloped.) Third, at the maximum, per-tract density of 18 units per acre and ignoring any more restrictive effect of design standards, Tract 7 could accommodate a maximum of 450 Multifamily Residential units. In early Development Plans, Tract 5 was shown as 18 acres, so it could accommodate a maximum of 324 Multifamily Residential units. (See, e.g., Pet. Ex. 3, Exhibit 1.) However, in later Development Plans, Tract 5 was shown as 16 acres, due to the removal of two acres of open space from its northwest corner. (Pet. Ex. 23.) If the density is derived on a gross acreage basis, so as to include the excised open space, Tract 5 can still accommodate a maximum of 324 units. As for the first alternative, if the Davis proposal were approved, only 285 units of the currently approved 1250 units would remain for development. In this event, Petitioner would need an additional 135 units, so that 420 units could be developed on Tract 7. (Tr., p. 326.) Under this alternative, in which Petitioner needs an additional 135 Multifamily Residential units, Petitioner is seeking a DO amendment approving a total of 1385 Multifamily Residential units in Quadrangle. As for the second alternative, if the Davis proposal were denied and no proposal for the residential development of Tract 5 emerged (or, at least, were considered at this time), 502 units would remain for development. After subtracting the 420 units for Tract 7, 82 units would remain, unused. Under this alternative, Petitioner does not need a DO amendment to develop 420 Multifamily Residential units on Tract 7, except possibly to acknowledge Petitioner's right to develop 420 such units on Tract 7 for the reasons set forth with respect to the remaining three issues in this case. As for the third alternative, if the Davis proposal were denied and the DO amendment in this case were to take into account subsequent residential development of Tract 5 at the maximum density, Petitioner would need 242 additional Multifamily Residential units to accommodate 420 units on Tract 7 and 324 units on Tract 5. The calculations supporting these figures begin with the 748 units in Tracts 1, 4A, and 4B. This leaves 502 units of the presently approved 1250 units. If Petitioner effectively were to reserve the maximum number of units--324--for Tract 5, then 178 units would remain for Tract 7, and Petitioner would need another 242 units to reach 420 units. Under this alternative, in which Petitioner needs an additional 242 units, Petitioner is seeking a DO amendment approving a total of 1492 Multifamily Residential units in Quadrangle. In this case, Petitioner has chosen to pursue the first and third alternatives. (Petitioner's Proposed Recommended Order, p. 8.) Petitioner's adoption of the third alternative is evidenced by the following statement: Because the number of units to develop Tract 5 might increase, however, if [Petitioner] loses the appeal of the County's denial of the current request (and the current contract for it expires, requiring the formulation of a new development plan for Tract 5), [Petitioner] has continued to request approval for 240 additional units (and a total of 1490 units for the whole development) . . .. (Petitioner's Proposed Recommended Order, p. 8.) Petitioner's request for 240 units is contingent only upon the approval of 217 units for Tract 5; if this occurs, Petitioner would need only an additional 135 units. However, if the Davis proposal were denied, Petitioner would take all 240 units. After adding them to the 502 units remaining after the development of Tracts 1, 4A, and 4B, the resulting 742 units would provide the 420 units sought for Tract 7 and two units less than the maximum number of units allowable on Tract 5, assuming, again, that the density is calculated on the basis of gross acres (or that Petitioner has forgotten that two acres of open space have been taken from Tract 5). As Respondent contends, the third alternative is premature and excessively contingent. By seeking 240 units if the Davis proposal were denied, Petitioner is effectively trying to obtain residential units for Tracts 7 and 5 in this proceeding, without consideration of the specific compatibility issues pertinent to Tract 5, which is closer to the already- developed part of Knights Krossing and most of the residential development along McCulloch Road. By obtaining units now for the maximum development of Tract 5 through an as-yet identified development proposal, Petitioner would deny Respondent the opportunity of examining the proposal, as Respondent is examining Petitioner's proposal for Tract 7 in this case. Petitioner would also deny Respondent the opportunity of obtaining consistency concessions from the future developer of Tract 5 or its predecessor, as Respondent is doing in this case. The Davis proposal for Tract 5 has proceeded further in the land use approval process than has Petitioner's proposal for Tract 7. (Tr., p. 207.) Thus, the possibility of an approval of the Davis proposal is not unreasonably contingent, nor is the possibility of a denial. But the possibility of a denial followed by a hypothetical proposal at maximum density for Tract 5 is unreasonably contingent and prematurely presents land use issues, including compatibility, better left to future consideration by Respondent and the Florida Land and Water Adjudicatory Commission with full knowledge of all relevant facts surrounding a specific development proposal. The preceding analysis reveals an insubstantial contingency in Petitioner's requested number of additional units, if the Davis proposal were granted; an insubstantial contingency in Petitioner's requested number of additional units, if the Davis proposal were denied and no proposal of residential development for Tract 5 were considered in addressing, in this case, the number of Multifamily Residential units in Quadrangle; and an unreasonable contingency in Petitioner's requested number of additional units, if the Davis proposal were denied and an alternative, hypothetical proposal were considered in addressing, in this case, the number of Multifamily Residential units in Quadrangle. For these reasons, as to the first issue, Petitioner has shown that its request for additional Multifamily Residential units is not so contingent as to preclude informed consideration and approval, provided that, if the Davis proposal were approved, the amended DO approves an additional 135 Multifamily Residential Units and, if the Davis proposal were denied, the amended DO approves no additional Multifamily Residential units, but acknowledges that Petitioner may use the 420 units, subject to design standards, on Tract 7 and based on the favorable resolution of the following three issues. The second issue requires analysis of the means by which the Quadrangle DOs restrict land uses. Land use restrictions imposed on residential uses at Quadrangle express themselves in four ways: 1) the per-tract density limitation of 18 units per acre; 2) the design standards found in the ALUPs and PD restrictions; 3) the designation of only certain tracts as eligible for Multifamily Residential; and 4) the maximum number of Multifamily Residential units allowed on those tracts designated Multifamily Residential. Respondent contends that the acreages cited in the Substantial Deviation Determination Charts are a fifth restriction upon residential uses in the Quadrangle DOs. However, this is a misreading of these DOs, invited, perhaps, by Petitioner's inconsistent treatment of acreages. At no time did Petitioner add the acreages of all the tracts designated Multifamily Residential in any of its submittals to Respondent. To have done so would have understated--badly, at the start--the potential nonresidential uses in Quadrangle. In the first two residential DO amendments, Petitioner exercised reasonable judgment in deciding which acreages to include in the total acreage cited for Multifamily Residential. For these DO amendments, Petitioner rationally explained the bases for the totals of 56 and 77 acres, respectively, for Multifamily Residential. The explanation for omitting Tract 7 from the third requested DO amendment--initiated by the September 1997 NOPC--was unpersuasive. The purpose for again increasing the number of Multifamily Residential units was to allow residential development of Tract 7, and an increase in acreage would have better informed Respondent as to what was being proposed. However, Petitioner clearly revealed its intention to use the additional residential units on Tract 7 by shading the tract on the Development Plan and by the text quoted in paragraph 32 of this recommended order. In the final analysis, Respondent's contention that the Quadrangle DRI DOs restrict land uses by the acreages shown on a Substantial Deviation Determination Chart imposes an unreasonably simple restriction upon the way in which this DRI has operated from its inception. Multiple designations by parcel have preserved maximum flexibility for developers. Treating the acreages listed in the Substantial Deviation Determination Chart as restrictions on land uses frustrates the obvious purpose of multiple designations. Respondent was never misled by the listed acreages, given the numerous indicators of flexible land uses contained in the NOPCs. The limits upon residential land uses were always derived in this DRI from per-tract densities, design standards, tract designations, and maximum allowable units of Multifamily Residential. A single notation of projected acreage offered by way of background explanation does not defeat the clear purpose of multiple designations. The impossibility of misunderstanding by Respondent is also confirmed by the evolving nature of Quadrangle itself. The slightest familiarity with this DRI reveals that, in the course of 15 years, Quadrangle, launched as a relatively large office/research park without residential uses, had become a much more mixed-use project, or, perhaps more accurately, two projects--an office park/hotel complex in the south and a high- density residential development in the north. For these reasons, as to the second issue, Petitioner has shown that its request for additional Multifamily Residential units is not precluded by any acreage limitation anywhere in any of the NOPCs or the failure of Petitioner to increase the acreage listed in the Substantial Deviation Determination Chart contained in the September 1997 NOPC. Multifamily Residential on Tract 7 is Compatible with Adjacent and Nearby Residential Land Uses To the north of Knights Krossing is a single-family and multifamily residential development known as Hunter's Reserve. (Tr., 394.) Farther west on McCulloch Road are Riverwalk, on the north of the road, and Riversbend, on the south of the road. Both of these single-family residential developments are east of Rouse Road. Between Riversbend and Knights Krossing is Riverchase, formerly known as University Pines. (Pet. Ex. 47.) Riverwalk and Riverchase are predominantly owner-occupied developments. (Tr., p. 470.) Riverchase is a J-shaped parcel extending from McCulloch Road to the lake that separates Tract 7 from Tract 5. (Tr., p. 161 and Pet. Ex. 47.) The eastern half of the north boundary of Tract 7 abuts the south boundary of Riverchase. The western half of the north boundary of Tract 7 abuts undeveloped land outside of Quadrangle. Unlike Tracts 1, 4A, and 4B, which front on McCulloch Road, Tracts 7 and 5 lack such frontage. Although interior access across Tract 4B could permit residents of Tract 5 access to McCulloch Road, the lake on the east boundary of Tract 7 would prevent direct access for residents of Tract 7, who likely will access their property by way of an interior road that runs to Rouse Road, about 1200 feet north of University Boulevard. (Pet. Exs. 2C, 16, and 47.) The compatibility issue in this case involves the proximity of Tract 7 to nearby residential areas. Tract 7 will be medium density residential, as defined in the Orange County Comprehensive Plan (Resp. Ex. 24, Policy 1.1.11), and the nearby residential areas are mostly single-family residential, although not at exceptionally low densities. The added compatibility issue in this case is the expectation that, given its proximity to the University of Central Florida, Tract 7 will accommodate a large number of college students. The most serious problems are crime and fear of crime. During 1999, Knights Krossing generated 842 service calls. Over the same period of time, for example, Riversbend generated only 33 service calls. (Pet. Ex. 47 and Resp. Ex. 41.) However, the great disparity in these numbers is deceptive. The first three phases of Knights Krossing comprise 2624 bedrooms. (Pet. Ex. 20, p. 21.) Assuming no vacancy rate and only one person per bedroom, Knights Krossing would accommodate about 2500 persons. Riversbend has about 80 single- family homes. (Pet. Ex. 47.) Assuming three to four persons per home, Riversbend accommodates about 250-300 residents. Thus, adjusted for approximate population, Knights Krossing generated about two-and-one-half to three times the service calls than did Riversbend. Closer examination of the Knights Krossing service calls reduces the apparent disparity even further. Sixty-one of the 842 service calls are commercial in nature; for example, 26 service calls are for commercial alarms. These figures reflect the small amount of commercial/retail uses on Tract 1 and have no bearing on an exclusively residential development, such as that proposed for Tract 7. (Resp. Ex. 41, p. 2.) Of the remaining 781 service calls, 234 are for residential alarms, which are a separate category from residential burglary. (Resp. Ex. 41, p. 2.) Although serious nuisances to law enforcement due to the fact that they require responses, residential alarms, in themselves, do not represent a crime; presumably, alarms activated by an actual intruder, rather than a careless or intoxicated college student, would generate an entry under residential burglary, not residential alarms. To get a better idea of seriously disruptive, potentially criminal activity at Knights Krossing, it is therefore necessary to reduce the service calls by another 234 calls. The remaining 547 service calls at Knights Krossing compare more favorably to the service calls at Riversbend, whose data are not broken down, but, if like Riverwalk or Hunter's Reserve, represent only potentially serious matters. (Resp. Ex. 41, p. 1.) Knights Krossing generates one service call per four- and-one-half residents, and Riversbend generates one service call per seven-and-one-half to nine residents. Thus, the rate of serious service calls is not more than double at Knights Krossing than it is at Riversbend and possibly only fifty percent greater. Additionally, the nature of the service calls at Knights Krossing, as well as at nearby residential areas, reveals that the crime at Knights Krossing has not spilled over into surrounding areas. Only one nearby resident testified at the hearing. A resident of Riversbend (Tr. pp. 446-47), she reported that college students had used the playground reserved for residents of Riversbend, but she could not say if they were residents of Knights Krossing. (Tr., pp. 458-59.) Likewise, she could not link to Knights Krossing residents other disruptive behavior by young people, such as racing cars in the detention pond (Tr., p. 457), or menacingly following neighbors in their cars (Tr. p. 458). This resident admitted that she had never called the police herself due to disruptive behavior (Tr., p. 495) and that, on the two occasions that she was bothered by noise through a closed window, at least one of the times was due to the activities of a neighbor in her development. (Tr., p. 499.) Certain characteristics of Knights Krossing tend toward incompatibility with nearby residential areas. Of the 748 units available at Knights Krossing, 492 of them, or two-thirds, are four-bedroom units. (Pet. Ex. 20, p. 20.) Knights Krossing also offers individual, per-bedroom leases. (Tr., pp. 362 and 368.) Knights Krossing experiences considerable tenant turnover. (Tr., pp. 427-28.) However, Petitioner has attempted to eliminate these characteristics in its development proposal for Tract 7. As offered at the hearing, Petitioner has committed itself, and its successors and assigns, to develop no more bedrooms than were previously approved in an earlier proposal for Tract 7 by the Spanos Corporation; not to lease units by individual bedrooms or permit the subleasing or partial assignment of leases so as to achieve the same effect; to provide a single point of access to and from the development; to erect a landscaped fence or landscaped masonry wall around the perimeter of the development except on the borders of lakes; to erect lighting of not more than two foot-candles over all common areas and on poles of not more than 25 feet in height; to include in all leases a strict prohibition against loud noises after 10:00 p.m.; and to incorporate other substantive covenants and restrictions incorporated in a specific agreement among Petitioner, Spanos Corporation, and the Riverchase homeowners association (formerly known as the University Pines Property Owners Association, Inc., dated December 22, 1998. (Pet. Ex. 43.) Spanos Corporation had entered into a since-expired (Tr., p. 328) contract with Petitioner to purchase Tract 7 to build 420 Multifamily Residential units. The three-party agreement contains numerous substantive provisions governing the development of Tract 7. These provisions include a 100-foot natural buffer between Riverchase and Tract 7 with no improvement except a wrought-iron fence, additional wrought-iron fencing along other parts of the boundary of Tract 7, specific details concerning an eight-foot tall masonry wall, a front gate at the entrance to the development constructed on Tract 7, and the use of best efforts to direct street lighting in Tract 7 away from Riverchase homes. (Pet. Ex. 19.) Additionally, the agreement provides for only 804 bedrooms in the 420 units with no four- bedroom units and only 60 three-bedroom units. (Pet. Ex. 19.) In addition to Petitioner's efforts to harmonize the multifamily development with nearby residential developments, the compatibility determination is facilitated by the recognition of the intensification of land uses in the area surrounding Quadrangle. This area has experienced considerable development from 1994 to 1997. (Pet. Exs. 2A, 2B, and 2C and Tr., p. 90.) Agricultural tracts have been converted to other uses in response to the demands placed on this area by, among other things, its close proximity to the University of Central Florida. At the same time, it is undisputed that the proposed development of 420 units on Tract 7 would not adversely affect water and sewer services (Stip., Para. 28), stormwater management (Stip. Paras. 29 and 31), recreational facilities (Stip., Para. 29), schools (Stip., Para. 30), or traffic (Stip., Para. 33). Additionally, compatibility is facilitated by the design standards contained in Respondent's PD regulations. (Tr., pp. 187-89 and 372-74.) For these reasons, as to the third issue, Petitioner has shown that 420 Multifamily Residential units on Tract 7 would be compatible with all nearby residential development, provided the amended DO incorporates the provisions set forth in paragraphs 76 and 77 of this recommended order. Various provisions of the Respondent's 1990-2010 Comprehensive Policy Plan (Comprehensive Plan) apply to this case. (Resp. Ex. 42; all citations to provisions of the Comprehensive Plan are to this exhibit.) Comprehensive Plan Future Land Use Element (FLUE) Policy 1.1.12.1 authorizes specific land use designations, in addition to those generally used by the Comprehensive Plan, through PD review, which shall "ensure adjacent land use compatibility " FLUE Policy 1.1.14 describes the Future Land Use Map (FLUM) as the "proposed long-range general use of property for a designated target year." The Zoning Map indicates the "specific type of land use that the property is currently suited for based on existing conditions." FLUE Objective 1.6 is: to "alleviate the pressure of urban sprawl, reinforce a more efficient pattern of urban development, . . . reduce excessive travel demands," Respondent may reclassify lands as Traditional Neighborhood Development. FLUE Objective 3.1 is to promote "the physical and functional integration of a mixture of land uses." FLUE Policy 3.1.1 provides: "Continuous stretches of similar types and density of units shall be avoided. A diverse mix of land uses, housing types, and densities shall be promoted." Addressing PDs, FLUE Policy 3.1.20 provides: "A proposed change to an approved PD which would increase the land use intensity within the PD without a corresponding decrease in some other portion of the PD and result in greater off-site impacts, shall be reviewed to determine consistency with the comprehensive plan and whether a plan amendment is necessary." FLUE Policy 3.1.21 adds that the FLUM shall be amended to reflect PDs approved since the last FLUM amendment. FLUE Policy 3.2.25 provides that land use changes must be compatible with the existing development and development trend in an area. FLUE Policy 3.8.5 states that a proposed PD amendment shall be determined to be inconsistent with the FLUM if the amendment is inconsistent with the Comprehensive Plan policies ensuring land use compatibility and adequate public facilities or if the amendment results in an increase in the intensity of an existing approved land use, with additional offsite impacts, without a corresponding decrease in another approved land use. FLUE Objective 4.1 is for the enforcement of the FLUM and implementation of the PD regulations to "ensure the compatibility of adjacent land uses " The development of 420 Multifamily Residential units on Tract 7 is not inconsistent with any provisions of the Comprehensive Plan. If the Davis proposal were approved, the 135 additional Multifamily Residential units would be offset by a reduction of 40,500 square feet of Office, pursuant to the well- established exchange ratio. Additionally, as long as the previously described compatibility conditions are incorporated into the DO amendment, the addition of multifamily residential, in such close proximity to the employment and educational services provided by the University of Central Florida, heightens the mixture of uses that may lessen the burden placed on area roadways. For these reasons, as to the fourth issue, Petitioner has shown that an DO amendment authorizing the development of 420 Multifamily Residential units on Tract 7 would be consistent with the Comprehensive Plan, provided the amended DO incorporates the provisions set forth in paragraphs 76 and 77 of this recommended order.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order approving Petitioner's request for a development order amendment allocating another 135 Multifamily Residential units to the Quadrangle DRI, subject to the limitation of these units to Tract 7, a maximum development of 420 such units on Tract 7, the reduction of 40,500 square feet of Office, applicable design standards, the applicable per-tract density restriction of 18 units per acre, the conditions stated in paragraphs 76 and 77 of this recommended order, and the approval of the current Davis proposal for Tract 5. It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying Petitioner's request for additional Multifamily Residential units, in excess of 135, for the Quadrangle DRI. It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order approving Petitioner's request for a development order amendment acknowledging the allocation of 420 of the already-approved 1250 Multifamily Residential units to Tract 7, subject to applicable design standards, the applicable per-tract density restriction of 18 units per acre, the conditions stated in paragraphs 76 and 77 of this recommended order, and the denial of the current Davis proposal for Tract 5. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th of July, 2000. COPIES FURNISHED: Barbara Leighty, Clerk Florida Land and Water Adjudicatory Commission Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Carol Licko, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Timothy A. Smith Akerman, Senterfitt & Eidson, P.A. Post Office Box 231 Orlando, Florida 32802-0231 William D. Palmer Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804
Findings Of Fact Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined: Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area. Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this case on the ground the issues raised therein are moot. DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1996. COPIES FURNISHED: Henry J. Prominski, Esquire Post Office Box 540 Weirsdale, Florida 32195-0540 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the City's Future Land Use Map (FLUM) Amendment for Site 7 is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The City of Groveland is located in Lake County, mostly north of State Road 50 and the northeastern corner of the Green Swamp. The core of the City is in the vicinity of the intersections of State Road 50 with State Road 33 (to the south) and State Road 19 (to the north). There are many lakes and wetlands within the City and surrounding the City in Lake County. The Green Swamp was designated an Area of Critical State Concern by the Florida Legislature in 1979. It consists of approximately 500 million acres south from the City through south Lake County and into Polk County. It is bordered on the east by U.S. Highway 27 and on the west extends over the County line into Sumter County. The Green Swamp is important as a statewide resource to Florida because it is one of the last remaining intact ecosystems in Florida. It is one of Florida's largest wetland systems, second only to the Everglades. It includes the headwaters of five rivers, and provides recharge to the Floridan Aquifer, the primary source of drinking water for Florida. It is an ecologically and hydrologically significant resource. It provides habitat for many endangered species including gopher tortoise, scrub jay, and wood stork. In 2003, the City annexed the parcels known in this proceeding as Sites 4, 5, 6, and 7 from Lake County into the City. All of the parcels are located east of State Road 33 and south of State Road 50 and within the boundaries of the Green Swamp. Sites 4, 5, and 6 total 171.1 acres of wetlands bordering Sumner Lake and the City's boundaries before annexation. Site 7 consists of 361 acres (264 acres of uplands and 97 acres of wetlands). (There is an approximately 70-acre County "enclave" in the middle of Site 7 which remained in Lake County.) Site 7 currently is used to grow citrus. It is connected to the City through the other three sites and Sumner Lake. At the time of annexation (and until City plan amendments are found to be "in compliance"),4 the future land use designation for Sites 4, 5, and 6 was Lake County Rural/Conservation. Site 7 had and still has its Lake County future land use designations. Its 97 acres of wetlands are designated Lake County Rural/Conservation, which allows one dwelling unit per 10 acres, while the 264 acres of uplands are designated as Lake County Transition, which allows one unit per 5 acres, or one unit per acre if the “timeliness” criteria under the Lake County Comprehensive Plan are met. These parcels were the subject of the City's FLUM amendments adopted on August 2, 2004. The FLUM amendments changed the designation of Sites 4, 5, and 6 from County Rural/Conservation to City Conservation. These City designations have been found to be "in compliance." The FLUM amendments also changed the future land use designation of Site 7's 97 acres of wetlands to City Conservation, and its 264 acres of uplands to City of Groveland Green Swamp Single Family Rural Development (GSRD), which allows two dwelling units per acre. With a transfer of development rights from the undevelopable wetlands to the developable uplands, which would be allowed under both the City's and the County's comprehensive plans, the maximum number of dwelling units allowed on Site 7 under the City's designation would increase to 532, up from the 57 allowed under the current County designations. Compliance Issues As indicated in the Preliminary Statement, DCA's Petition and SOI alleged that the City's Plan, as amended by the Site 7 FLUM amendment, is not "in compliance" because: (1) it is inconsistent with Rule Chapter 9J-5 because it fails to discourage the proliferation of urban sprawl, as required by Rule 9J-5.006(5); (2) it is internally inconsistent with the City's Future Land Use Element (FLUE) Policies 1-1.10.1 (land use allocation), 1-1.10.2 (promoting orderly compact growth), and 1-1.10.3 (coordination with Lake County to reduce urban sprawl), and Intergovernmental Coordination Element (ICE) Policy 7-1.1.3 (land use planning of adjacent lands); (3) it is inconsistent with the Green Swamp Guiding Principles; (4) it is inconsistent with Section 163.3177(6)(a) and (8), Florida Statutes, and Rule 9J-5.005(2)(a), because it does not react appropriately to the data and analysis on environmental site suitability; and (5) it is inconsistent with State Comprehensive Plan Public Facilities Goal 17(a) and Policies 17(b)1.-2. Urban Sprawl It is no longer disputed that there is a demonstrated need for the additional residential development allowed by the Site 7 FLUM amendment. The real contention by DCA is that the development should not occur at Site 7. DCA's urban sprawl argument focuses on five of the 13 "primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl": 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Fla. Admin. Code R. 9J-5.006(5)(g). Indicator 4 DCA's argument as to Indicator 4 is two-fold: Site 7 is surrounded by rural land; and increasing densities will harm the natural resources of the Green Swamp. Site 7 is immediately surrounded by generally rural uses. As indicated, wetlands and Sumner Lake are to the immediate northwest. Directly to the north of the northernmost portion of Site 7 is a sprayfield owned and operated by the City of Clermont. North of the sprayfield is an open water body. The east side of Site 7 adjoins a marshy area on the west side of Lake Palatlakaha. The south side of Site 7 abuts CR 565 and low wetlands areas, with Lake Wash and other rural lands and wetlands farther south. While immediately surrounded by rural lands (City Conservation, County Rural/Conservation, and County Transition), Site 7 is located approximately 3,000 feet (not three miles, as DCA's primary witness on this issue believed as late as her deposition in this case) south of State Road 50, a highly traveled, major road that connects West Central Florida to East Central Florida. Site 7 is in a fast-growing area less than two miles southeast of the center of the City. Immediately to the north of Sumner Lake is the Westwood residential subdivision which lies along the southern boundary of State Road 50. Existing homes are scattered around the sprayfield. Westwood is located within the City’s boundaries and in the Green Swamp. It has a future land use designation of Green Swamp Single Family Low Density Development (GSLD), which allows up to four single-family detached homes per acre. This corresponds to the Lake County Ridge designation it had at the time it was annexed into the City. Westwood currently is under construction, with many homes already occupied. Along the northern side of State Road 50 north of Westwood is a parcel within the City designated on the FLUM as Commercial, which is proposed to be used for a Publix grocery store, and the Green Valley Country Club, an existing golf course community. To the west of Site 7 is an existing golf course and water ski community known as the Swiss Ski School. It is located within unincorporated Lake County in the Green Swamp and has a Planned Unit Development (PUD) approval for 296 residential units. To the west of the Swiss Ski School lie Stewart Lake and Olsen Lake and their associated wetlands, which are in the Green Swamp in the unincorporated County and have County designations of Rural/Conservation and Transition. Farther west, along State Road 33 and still in the Green Swamp, lie developments having FLUM designations of GSSFLD allowing up to four units per acre. Both those developments lie within City limits. To the south of Site 7, and in unincorporated Lake County, with a County designation of Transition, lies a subdivision along Monte Vista Road which is vested for residential development partly at a density of two units per acre and partly at one unit per acre. Although there will be wetlands and Sumner Lake in City Conservation designations between Site 7 and developments to the north and west in the City, leapfrog development is not a concern for Site 7 and its surrounding area. To the extent Site 7 is separated from other urban or suburban uses in the City by lakes, wetlands, and conservation lands, no urban, suburban or even rural development of those conservation lands should be expected, so that "leaping over" those undeveloped lands should not be considered an indicator of sprawl. For these reasons, it is found that the Site 7 FLUM amendment is not premature. Nor is the conversion from agricultural use to residential use poorly planned. The development will be compact and orderly, and public facilities and services are available. Natural resources already receive a significant amount of protection in the plan. The development of Site 7 will promote conservation of natural resources by allowing only uplands to be developed onsite and allowing a density of up to two units per acre. A lower density would be an inefficient use of developable land. An inefficient land use pattern encourages the premature conversion of environmentally significant lands. Indicators 6 and 7 DCA's arguments as to Indicators 6 and 7 essentially are that some public facilities and services will have to be extended to Site 7, that there are places in the City capable of development using only existing public facilities and services, and that the City has planned for future public facilities and services elsewhere--namely, in the North Overlay, which is described below. As for existing public facilities and services (Indicator 6), development under the site 7 FLUM amendment will receive the same public services of law enforcement, fire, emergency services, and schools as are currently available to Site 7, at a lower residential density, under the existing Lake County Transition land use. Pursuant to an interlocal agreement with Lake County, the City already provides law enforcement services not only to Site 7 and surrounding areas in the City, but also to adjacent areas in unincorporated Lake County. As the City already provides public services in the area, it will be more cost-efficient to spread those costs among more homeowners. The proposed amendment will allow more homeowners to share these costs. DCA's only response to these facts, some of which were not known by DCA's expert witness, was that "the increased population on the site may require additional staff and facilities to serve the population." DCA's PRO, at 41. As for water and sewer, as indicated, a connection to central water and sanitary sewer is available at State Road 50, approximately 3,000 feet from Site 7 (a fact also not known by DCA's expert witness until shortly before the hearing). The developer will be required to pay for the cost of the new lines to Site 7. After those lines are installed, nearby property owners can voluntarily connect to central water and sewer. A few of the nearby property owners who have septic tanks have indicated an interest in connecting to the Site 7 sewer lines. For these reasons, the proposed amendment would result in an efficient use of central water and sanitary sewer facilities. As for future public facilities and services (Indicator 7), in 2003, as a result of a settlement agreement between the City and DCA on the City's 2003 plan amendment, the City proposed and adopted the "Groveland North Overlay" area and associated policies as a plan for future growth. The North Overlay was found to be "in compliance," is part of the City's FLUE, and is designated on Map 1-7 of the City’s FLUM series. The North Overlay is located to the north of the existing City limits and consists of several thousand acres. It is identified as an area in which future annexations are likely to take place in order to meet growth needs. The area is adjacent to parcels already annexed by the City, designated for urban densities, and planned for public facilities. It allows for a mix of uses. It shows that the City had identified a growth strategy to meet its need for the planning timeframe and beyond. It was established to ensure that, as land in the North Overlay was annexed into the City, new development would not develop as urban sprawl, but rather would be managed in a way which created a more effective land use pattern. While adopting the North Overlay, the City has a policy to annex land only on a voluntary basis. It does not exercise its rights under Section 171.0413, Florida Statutes, to require contiguous, compact unincorporated territory to annex. For this reason, it is difficult for the City to foresee with certainty which lands will annex into its municipal boundaries. In addition, starting in the mid-1990's, before adopting the North Overlay, the City began to annex land to the south in the Green Swamp. At that time, the City began the process of amending its comprehensive plan to include provisions to comply with the Principles for Guiding Development in the Green Swamp. In late 2000, the City embarked on a study to guide development and facilitate municipal expansion in the Green Swamp. The DCA provided funding for the study through a technical assistance grant. DCA also provided feedback for the study. The City hired a private consulting firm to do the study and produce a series of four quarterly reports. The final report is entitled "City of Groveland Small Area Study Final Report November 1, 2001." The Small Area Study considered an area of approximately 2,580 acres in the Green Swamp, which the City reasonably projected may be annexed. The geographic boundaries of the study were larger in the first three phases of the study, but were constricted for the final report at the request of DCA planner, Bob Dennis, to be closer to State Road 33. In addition, future annexations were projected to be phased, with areas closer to State Road 33 projected to occur before areas farther away from there. Site 7 is even farther away from State Road 33 and entirely outside the final boundaries of the Small Area Study. But the Small Area Study was not intended to bind the City, or restrict the City's annexation rights and powers, or change the City's policy of voluntary annexation. In other words, the projected annexations and phasing did not preclude consideration of out- of-phase or out-of-area annexations. The DCA grant required the Small Area Study to evaluate the area south of Groveland using several criteria, including upland area, utility availability and expansion, road/transportation network, Lake County land use designation, current land use activities, environmental assessment impacts, and the Green Swamp rules. The Small Area Study recommended that the City adopt two land use categories to apply to residential development in the Green Swamp: a land use category allowing a maximum of four units per acre, and another land use category allowing a maximum of two units per acre. A requirement of 60 percent open space and limitations on impervious surface for residential development also were recommended. For the protection of the Green Swamp and the Floridian Aquifer, the study also recommended that clustered development be encouraged and that central water and sewer be provided. The Small Area Study also recommended that wetlands be designated a Conservation land use. The Small Area Study also recommended that the plan require an upland buffer of 50 feet from the edge of the wetland line and that all development be prohibited in wetlands and floodplains. The City adopted those recommendations, as well as others. All of those plan amendments were found be DCA to be "in compliance." One of those amendments, FLUE Policy 1.3.11, prohibits any structure in the Green Swamp to be located within fifty feet of a wetland line. This requirement exceeds the St. Johns River Water Management District (SJRWMD) performance standards for wetland buffers, which require an average uplands buffer of 25 feet, with a minimum buffer of 15 feet, as well as the standard included in the plan’s Conservation Policy 7.3.5, which applies only to development located outside of the Green Swamp, and requires an average buffer of 50 feet, with a minimum buffer of 25 feet. FLUE Policy 1.3.3 and Conservation Policy 7.13.1 prohibit all development in the wetlands and floodplains for land located within the Green Swamp. This policy is more stringent than the Guiding Principles and Rule 9J-5. Rule 28- 28.008(1) provides performance criteria for development in flood-prone areas, which may be adopted in land development regulations applying in Lake County portions of the Green Swamp. Rule 9J-5.013(3)(b) requires that land uses be distributed to allow wetland impacts to be minimized and mitigated. The City also implemented the recommendations of the Small Area Study for the two residential land use categories. As already indicated, the City adopted the GSLD land use category, allowing a density of up to four units per acre. FLUE Policy 1.1.17. It also adopted the GSRD land use category in FLUE Policy 1.1.18, allowing a density of up to two single family detached homes per acre. Both categories require that at least 60 percent of the property remain in open space and that development be clustered on the least environmentally sensitive portions of the site. The amendments adopting the GSLD and GSRD land use categories were found by DCA to be "in compliance" and consistent with the Principles of Guiding Development in the Green Swamp. However, those categories were not yet assigned to all land considered in the Small Area Study, much less land outside its final boundaries. The appropriateness of GSRD for Site 7 is the issue in this case. Indicator 8 DCA's arguments as to Indicator 8 essentially focus on the timeliness provision in Lake County's Transition designation and the requirement to provide some new public facilities and services as a result of the City's Site 7 FLUM amendment. See Finding 4, supra. Development of Site 7 under Lake County's Transition designation would be limited to one unit per five acres. Site 7 would not qualify for development at one unit per acre under the timeliness provision, which requires more than 40 percent of the surrounding area within a mile radius, and 60 percent of the surrounding area within a two-mile radius, to be developed at a density of one unit per acre or greater.5 In addition, development of Site 7 under the City's FLUM amendment would make one unit per acre development of the 70- acre County "enclave" within Site 7 timely, which in turn may make one unit per acre development of other County land in the vicinity timely under Lake County's Transition designation. In effect, DCA fears that the City's Site 7 FLUM amendment will have a "domino effect" that will trigger rapid, wholesale conversion of rural County Transition land that can be developed at one unit per five acres to Transition land "timely" for development at one unit per acre. But DCA did not prove that its fear is reasonable. DCA also fears that the City's Site 7 FLUM amendment ultimately will result in too much residential development in the Green Swamp. But future County land use designation changes that will harm the Green Swamp will be subject to challenge by DCA. In any event, whether the City's FLUM change at issue in this case is timely depends on a number of factors besides just the timeliness provision of Lake County's Transition designation. Indicator 8 addresses allowing "land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services," not just patterns or timing that increases those costs. (Emphasis added). DCA did not prove that extending water and sewer lines will be a disproportionately high cost for the developer to pay and pass on to homeowners. The water and sewer lines will be placed along an existing right-of-way and will be required to be extended approximately 3,000 feet to reach Site 7. Longer lines have been installed within City limits. Also, as discussed above relating to Indicators 6 and 7, the Site 7 FLUM amendment will allow a greater sharing of expenses of facilities and services. Indicator 9 As to Indicator 9, there is some merit to DCA's argument that the Site 7 FLUM amendment fails to provide a clear separation between rural and urban uses. But this is partly because of the lakes and wetlands between Site 7 and those urban uses. In addition, there are some urban-like uses between Site 7 and other urban uses in the City. See Finding 14, supra. Internal Consistency DCA's Petition and SOI alleged that the Site 7 FLUM amendment is internally inconsistent with other parts of the City's comprehensive plan addressing urban sprawl considerations: FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3; and ICE Policy 7-1.1.3. After the Site 7 FLUM amendment was adopted, the City further amended its comprehensive plan. FLUE Policies 1-1.10.1, 1-1.10.2, and 1- 1.10.3 became, respectively: Policy 1.1.2; Objective 1.6 and Policy 1.6.1; and Policy 1.6.2. ICE Policy 7-1.1.3 was replaced by ICE Policy 11.1.1, and there was no objection to substituting the new, equivalent policy for purposes of this proceeding. FLUE Policy 1.1.2 states: The City shall designate land use on the [FLUM] to accommodate needs identified within the Comprehensive Plan supporting document (i.e., Data Inventory & Analysis). The City shall allocate a reasonable amount of land above identified needs to avoid economic impacts which a controlled supply of land places on land values and market potential. As found, it is undisputed that the Site 7 FLUM amendment is internally consistent with this policy. In its response to the ORC, the City adequately demonstrated that it had a need for additional residential land to accommodate its future population. Moreover, the ratio between the City's future land use needs and population growth is only slightly more than 1:1. The Site 7 FLUM amendment does not create an over- allocation of land uses in relation to its estimated population growth. Again, DCA's challenge is to the location of Site 7. FLUE Objective 1.6 states: "Discourage urban sprawl through a future land use pattern which promotes orderly, compact development." FLUE Policy 1.6.1 states: Land use patterns delineated on the [FLUM] shall promote orderly, compact growth. The City shall encourage growth and development in existing developed areas where public facilities and services are presently in place and in those areas where public facilities can provide the most efficient service. Land shall not be designated for growth and development if abundant undeveloped land is already present within developed areas served by facilities and services." Based on the findings as to the urban sprawl indicators, supra, DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Objective 1.6 and Policy 1.6.1, much less that internal consistency is beyond fair debate. FLUE Policy 1.6.2 states: "The City of Groveland shall coordinate with Lake County through a Joint Planning Agreement to develop an areawide [sic] planning approach by 2010, taking into account environmental suitability, functional relationships and areas where public facilities and services are available or proposed to be available by year 2020." ICE Policy 11.1.1 states: "The City of Groveland shall continue to work closely with Lake County, Lake County School Board, other municipalities and affected regional, state and national government agencies to coordinate the comprehensive planning effort of the City with those agencies affected, through the provision of information and participation on committees and working parties." DCA did not prove that the Site 7 FLUM amendment is internally inconsistent with FLUE Policy 1.6.2 or ICE Policy 11.1.1, much less that internal consistency is beyond fair debate. To the extent that internal consistency requires that the local government to comply with the intergovernmental coordination provisions in its comprehensive plan when it proposes and adopts plan amendments, DCA also did not prove that the City failed to do so, much less that its failure to comply is beyond fair debate. The City regularly coordinates its plan amendments with Lake County. The City provided a copy of its 2004-02 amendment package to Lake County when the amendment was transmitted to DCA, as was indicated to DCA in the transmittal amendment cover letter to DCA. A local government’s submittal to an adjacent local government of a copy of an amendment under review is a common way for a local government to coordinate amendments with other local governments. The City also regularly coordinates planning issues with Lake County and other Lake County municipalities by attending meetings of their planning departments. Obviously, the Site 7 FLUM amendment was adopted long before FLUE Policy 1.6.2's 2010 target for a joint planning agreement. At this time, there is no voluntary joint planning strategy with which it can be argued that this amendment is inconsistent. At the hearing, DCA was permitted to also argue internal inconsistency with new plan provisions adopted in July 2005, and found to be “in compliance” in September 2005 (but not provisions adopted in September 2005 and under DCA challenge at the time of the hearing).6 Newly adopted Sanitary Sewer Objective 5.3 reads: MAXIMIZE EXISTING FACILITIES AND DISCOURAGE URBAN SPRAWL. The City shall maximize existing sanitary sewer facilities within its service area and promote compact efficient growth patterns. This objective must be read in conjunction with related Sanitary Sewer Policy 5.3.1, which requires all new development in the City to connect to the central sanitary sewer system, as well as with FLUE Policy 1.1.18, which requires all development in land designated GSRD to connect to central water and sanitary sewer utilities. Density is related to the ability to provide central sewer and water services. If a developer runs new water and sewer lines, which he must do at his own cost in the City, compact density will make development more economical for those services and will encourage an efficient land use pattern. A density of two units per acre is financially feasible for providing central water and sewer to Site 7, whereas the evidence was that a density of one unit per five acres, as urged by DCA, is not cost-effective for Site 7, at least given the developer's $6.5 million land acquisition cost. As the use of septic tanks is not an option in the City for any new development, a contiguous and compact form of development is essential not only for the property in question, but also for future development sites. Development of Site 7 will be connected to an existing City-owned and operated wastewater treatment plant, which has adequate capacity for the maximum of 532 homes allowed by the amendment. As the amendment will allow a compact development pattern of two units per acre and will maximize the use of an existing sewer facility, it is not internally inconsistent with ICE Objective 5.3. Newly-adopted ICE Objective 11.2 requires the City to implement a strategy to ensure the efficient provision of urban services, sound urban development, and accommodation of growth. The objective identifies negotiating interlocal agreements with Lake County and other local governments for joint planning areas and for providing public services. ICE Objective 11.2 requires future intergovernmental coordination and is not self-implementing. The Site 7 FLUM amendment is not internally inconsistent with ICE Objective 11.2. Guiding Principles The Guiding Principles were adopted by rule by the Administration Commission in 1974 and subsequently were approved by reference by the Legislature. See Rule 28-26.003; Ch. 79-73, § 5, Laws of Florida (1979). Preceding Rule Chapter 9J-5 and modern Florida statutory requirements for local comprehensive plans, the Guiding Principles actually were adopted to provide guidelines for the adoption of land development regulations. See Rule 28-26.004 and Rule Chapter 28-28, Land Planning-Part VII Boundary and Regulations for the Green Swamp Area of Critical State Concern-Lake County; § 380.0551(2), Fla. Stat. The City's plan contains goals, objectives, and policies that are consistent with the Guiding Principles. Nonetheless, DCA contends that the Site 7 FLUM amendment is inconsistent with the following objectives to be achieved under the Green Swamp Guiding Principles, Rule 28-26.003(1): Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the water available for aquifer recharge. * * * (j) Protect the natural flow regime of drainage basins.7 One of the primary reasons for designating the Green Swamp as an area of Critical State Concern is its relatively high aquifer recharge capabilities. This results from the relative proximity of the surficial aquifer to the ground surface, together with relatively high rate at which water percolates through the soils overlying the surficial aquifer. The relatively high aquifer recharge rate results in a relatively high potentiometric surface in the underlying Floridan aquifer (Central Florida's primary drinking water source) and drives the groundwater system throughout Central and Southwest Florida. Florida contains many areas of no recharge, but low- to-moderate recharge characteristics are common throughout Florida. Within the Green Swamp, there are areas of low, moderate, and high aquifer recharge, depending primarily on the proximity of the surficial aquifer to the ground surface and the characteristics of the overlying soils. In the area of Site 7, the surficial aquifer is approximately 150 feet below ground surface. Site 7 has both Type A (sandy, upland) soils, which have a high infiltration rate, and Type B (wetlands) soils. The area has been regionally mapped by SJRWMD as having a net recharge rate of 0-4 inches (low) on the western side of the site, and 4-8 inches (moderate) on the eastern part of the site. As such, these recharge characteristics of Site 7 can be said to be "common" for the Green Swamp. As for groundwater contamination, a map of the Floridan Aquifer Groundwater Vulnerability admitted into evidence by DCA showed that the groundwater for Site 7 and the surrounding area are "more vulnerable" to contamination. However, DCA did not present a map for other parts of the Green Swamp or the rest of Florida for comparison purposes, and its expert witness on the subject was unable to quantify vulnerability or directly compare Site 7 to other parts of the Green Swamp and the rest of Florida. However, he did testify that areas of "high vulnerability" extend all the way to the west of Tallahassee and that the western part of the Green Swamp generally is more vulnerable to groundwater contamination than the eastern part, where Site 7 is, because the surficial aquifer is at or near the ground surface in the western part of the Green Swamp. As to the natural flow regime of drainage basins, Site 7 lies in the Oklawaha River Drainage Basin. The natural local drainage of Site 7 is into the Palatlakaha River via several smaller drainage sub-basins: Sumner Lake Outlet, Palatlakaha Reach, Lake Wash Outlet, and Pine Island Outlets. The Palatlakaha is a major tributary to the Oklawaha River. DCA did not prove that the Site 7 FLUM amendment will adversely impact the natural flow regime of the drainage basin Site 7 is in. DCA did not prove that Site 7 has any hydrologic or environmental characteristics that would require more protection than other parts of the Green Swamp. It follows that DCA did not prove a need for Site 7 to have a lower density than is allowed under the GSRD land use category already approved by DCA for the Green Swamp. Similar residential densities also have been approved in other parts of the Green Swamp. A plan's goals, objectives and policies must be considered when evaluating the impacts of development allowed by a land use category. The FLUM, the goals, objectives, and polices are interrelated. See § 163.3177(6)(a), Fla. Stat. The hydrologic features and functions addressed in the Guiding Principles are protected in the plan, and those protections have been found by DCA to be consistent with the Guiding Principles. Those plan provisions will guide development to ensure that the aquifer, wetlands, flood detention areas, groundwater, surface water, Lake Sumner, and the natural flow of the drainage basin will be appropriately protected. The essence of DCA's argument that the Site 7 FLUM amendment is inconsistent with the Guiding Principles is that, regardless of how much protection the plan's provisions afford, the Site 7 FLUM will allow approximately ten times the various impacts of development--e.g., impacts on wetlands, reduction of aquifer recharge due to increased impervious surfaces, water quality impacts, and water quantity impacts-- at one unit to five acres under the current Lake County Transition designation, so that adverse impacts are not minimized, and resources are not protected, as envisioned in the Guiding Principles. There are several flaws in DCA's argument, even assuming the impact factor of ten. First, the logical extension of DCA's argument would be that minimization and protection require no additional adverse impacts. If so, development at one unit per acre under Lake County Transition's timeliness provisions--a fivefold increase in impacts, under DCA's rationale--also would be inconsistent with the Guiding Principles. Second, planning should be based on reality,8 and DCA did not prove that residential development would occur on Site 7 at one unit to five acres. To the contrary, while continued development of small parcels in areas designated Lake County Transition is plausible, the evidence was that it is financially infeasible to develop Site 7 as a whole residentially at that density.9 For that reason, while ordinarily it is appropriate only to compare potential impacts from different possible land use designations, in this case it is appropriate to consider the impacts of the current use of Site 7 as an orange grove when deciding whether the Site 7 FLUM amendment is consistent with the Guiding Principles. The evidence was clear that, under all the criteria in the Guiding Principles cited by DCA, residential development under the Site 7 FLUM amendment is far preferable to the continued use of the property as an orange grove10--the likely if not absolutely clear result of maintaining Lake County's Transition designation.11 Third, as mentioned in Finding 57, supra, it was clear from the evidence that DCA has found residential land use designations of two units per acre and greater not only elsewhere in the Green Swamp, both in the City and elsewhere, to be consistent with the Guiding Principles, and DCA failed to explain why those densities would be consistent with the Guiding Principles elsewhere but not at Site 7. Again under this issue, DCA in effect fears that the City's Site 7 FLUM amendment will have a "domino effect" that will ultimately result in the entire Green Swamp being designated for two-unit per acre residential densities. But the entire Green Swamp is not like Site 7. Future County land use designation changes that actually will harm the Green Swamp will be subject to challenge by DCA, and it is unreasonable to assume that DCA will allow densities of two units per acre throughout the Green Swamp if it is allowed at Site 7. Environmental Suitability For essentially the same reasons DCA argues inconsistency with urban sprawl rules and plan provisions and with the Guiding Principles, DCA also contends that the City did not react appropriately to data and analysis indicating Site 7's alleged environmental unsuitability for residential development at two units per acre. Based on the previous findings, DCA did not prove that allegation.12 State Comprehensive Plan DCA alleges that the Site 7 FLUM amendment is inconsistent with the State Comprehensive Plan's Public Facilities goal and two related policies. Public Facilities Goal (a) addresses the need to protect substantial investments in existing public facilities. Related Policy (17)(b)1. provides incentives for developing land in a way that maximizes the uses of existing public facilities. Public Facilities Policy 17(b)2. promotes the "rehabilitation and reuse of existing facilities, structures, and buildings as an alternative to new construction." As discussed above in the urban sprawl findings, the Site 7 FLUM amendment encourages the efficient use of existing public facilities. The increase in density, which the amendment allows, may be viewed as a land use incentive that encourages the maximization of existing public facilities both as to Site 7 and as to surrounding properties that may later connect to City utilities. The amendment furthers Public Facilities Goal (a) and Policy (b)(1). The Site 7 FLUM amendment also does not undermine or conflict with Policy (b)(2). The City’s plans to rehabilitate a downtown community redevelopment area (CRA) will not be adversely affected by development allowed by the proposed amendment. Also, there is insufficient land within the CRA to accommodate the City’s projected housing and land use needs. The amendment is not inconsistent with this policy.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Site 7 FLUM amendment to be "in compliance." DONE AND ENTERED this 28th day of November, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 2005.
