The Issue The issue in this case is whether Sumter County comprehensive plan amendment 94D1 adopted on September 20, 1994, by Ordinance No. 94-6 is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, T. D. Farnsworth and James E. Boyd, own property and reside within the northern part of unincorporated Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group while Boyd serves as its treasurer. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Villages of Lake Sumter, Inc. (Villages), is a Florida corporation and the owner and developer of the Tri-County Villages development of regional impact, which is the subject property of this proceeding. Villages submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. Tri-County Villages To place this dispute in proper perspective, it is necessary to trace the history of the development which has occurred in and around the subject property. As noted earlier, intervenor is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. The Challenged Amendment On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. The Tri-County Villages DRI and ADA and plan amendment are related in that Section 380.06(6), Florida Statutes, requires that the local government's review of the DRI and corresponding comprehensive plan amendment be initiated and concluded at the same time. In the instant case, the Tri-County Villages ADA served as much of the background data and analysis for the plan amendment. The Tri-County Villages DRI also served as the sector plan for the area covered by the amendment. In addition to the voluminous data and analysis included in the Tri- County Villages ADA, the plan amendment also included detailed data and analysis. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related issues, an analysis of environmental considerations, a population and housing analysis, a concurrency analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis collectively demonstrated that the urban development proposed by the amendment was appropriate for the designated area. C. Is the Plan Amendment in Compliance? In their proposed recommended order, petitioners summarize their objections to the plan amendment as follows: (a) the amendment fails to protect agricultural lands, (b) the amendment encourages urban sprawl, (c) the future land use map is internally inconsistent, (d) there is no demonstrated need for 1,960 acres of PUD land use, (e) PUD is not a valid land use category, (f) the amendment does not ensure adequate fire and emergency medical services, (g) the County failed to coordinate with the local school board, (h) there is no reasonable protection from flooding, (i) the amendment does not provide adequate parks and recreational facilities, (j) affordable housing needs are not met, and there is no requirement that the developer install water and sewer facilities at its own expense. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 1,960 acres of agricultural land will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by FLUE objective 7.1.2 and Rule 9J- 5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insures retention of agricultural activities." If the plan amendment fails to "adequately protect adjacent agricultural areas," the cited rule considers this failure to be a prime indicator that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, FLUE objective 1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly and logical fashion based on need and suitability. The agricultural lands being converted as a result of the plan amendment are appropriate for conversion. The plans, FLUE data and analysis demonstrate that one of the best areas for urban development in the County is the northeast portion of the County which covers the agricultural lands in the plan amendment. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the urban infrastructure currently in place. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD and Tri- County Villages amended development order sector plan will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. In view of the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land. Urban sprawl In the same vein, petitioners contend that the amendment fails to discourage urban sprawl because of the conversion of 1,960 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, and which have allegedly been violated. They also point to the fact that large portions of the existing development have not been sold or built out, only 2 percent of the 1,960 acres will be devoted to commercial land use, the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references FLUE policy 1.2.5.(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural area, it must score approximately 50 points based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD failed to score 50 points, it was deemed to encourage urban sprawl and would not be approved by the County. The plan amendment scored 130 points, well in excess of the 50 point threshold. In addition to satisfying FLUE policy 1.2.5.(a), the plan amendment is consistent with FLUM maps VII-18A and VII-18C, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the FLUE data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18A demonstrates that the land included in the plan amendment has only slight limitations for urban development. Similarly, Map VII-18C indicates that the land has only slight limitations in regard to urban sprawl. In fact, portions of land covered by the plan amendment are already within an established urban expansion area which is the OBGW DRI. Finally, the PUD mixed land use category and sector plan concept adopted by the plan amendment are planning methods specifically recognized and encouraged by prior DCA policy as reflected in the DCA's Technical Memo Special Edition 4-4 and the urban sprawl provisions incorporated into Rule 9J- 5.006(5)(l), Florida Administrative Code, effective May 18, 1994, as methods of discouraging urban sprawl. Indeed, the rule provides in part that mixed use development and sector planning . . . will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Given the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. The consistency of the future land Petitioners next argue in general terms that the FLUM does not "reflect policies which call for maintaining agricultural lands, discouraging urban sprawl, promoting land use compatibility, protection from flooding, providing for adequate public recreation facilities, and other objectives," and thus it is internally inconsistent. The FLUM series in the plan as well as the FLUM series as amended by the plan amendment is a pictorial representation of the goals, objectives, and policies of the comprehensive plan. In the absence of any credible evidence to the contrary, it is found that petitioners have failed to show to the exclusion of fair debate that the FLUM is internally inconsistent as alleged in their petition. Demonstrated need Petitioners next allege that the plan amendment "is premature in time and fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege that the FLUM "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Chapter 163, Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. In addition, the DCA may not choose one methodology over another. At hearing, petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended that other factors such as mortality rates and resale figures should have been used in calculating the multiplier. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations and Comments report. That report recommended that the County provide an analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population during the planning time frame (the year 2014) established by the Tri-County Villages Amended Development Order sector plan. Based on historic data, the County calculated a multiplier which depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately 87 percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In actuality, a 1.87 multiplier is not really the most accurate depiction of the allocation of residential land county-wide because the population for OBGW and the other PUD in the County was not included in the calculation. In an effort to provide a more accurate multiplier, the County added to the equation the projected population for OBGW and the PUD. The resulting revised multiplier equalled 1.46. Petitioners developed a multiplier of their own of 1.88. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Moreover, petitioners' methodology was unacceptable because it did not project its population over the correct planning horizon. Petitioners failed to consider the 2014 planning horizon established by the Tri-County Villages Amended Development Order sector plan which controls the development of land covered by the plan amendment. Instead, petitioners multiplier incorrectly used the 2001 planning horizon established by the plan. In addressing the need for additional residential allocation, the amount of residential land allocated must be a reflection of the population expected through the end of the Tri-County Villages sector plan 2014 planning horizon. The type of development contemplated by the plan amendment and the additional population has not previously occurred in the County. Since development of OBGW commenced in 1992, the building permits issued in the County have increased by 94 percent. Much of this increase can be attributed to OBGW. The number of yearly certificates of occupancy for OBGW has stayed relatively constant and is expected to remain constant throughout the planning horizon. Intervenor's marketing scheme for OBGW seeks to attract retirees predominately from the northeastern part of the United States. The residents are not generally County residents prior to moving to Tri-County Villages. This same marketing scheme will be used for the future development of the Tri-County Villages. Thus, the future Tri-County Villages residents are not expected to be from the County. Tri-County Villages is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Because this new population is a reality which was not comtemplated by the plan, and the plan does not have an excess of allocated residential land, the need for the increased residential densities has been demonstrated. Petitioners have not shown to the exclusion of fair debate that the plan amendment was premature or not based on a demonstrated need. PUD as a land use category Because a planned unit development (PUD) is not "recognized" as a land use category in Rule 9J-5.006(1), Florida Administrative Code, petitioners contend that the use of that category in the plan amendment renders it not in compliance. For purposes of its compliance review, the DCA used the version of chapter 9J-5 which was in effect at the time of the submittal of the plan amendment. Then existing Rule 9J-5.006(1)(a), Florida Administrative Code, which was effective on March 23, 1994, established the generalized land uses which must be shown on the Existing Land Use Map (ELUM). Rule 9J-5.006(4)(a), Florida Administrative Code, requires that these same generalized land uses must be depicted on the FLUM as well. While it is true that PUD is not one of the generalized land uses listed in chapter 9J-5, the two rules cited above both allow a local government to depict other land use categories on the ELUM and FLUM. Because the plan references PUD as a mixed land use category, the County has properly depicted that category on both the ELUM and FLUM. Petitioners have failed to show that PUD as a mixed land use category is not recognized under the rules in existence when the plan amendment was reviewed. Compatibility with adjacent agricultural lands Petitioners have also alleged that the County has "not demonstrated compatibility with adjacent agricultural and rural residential land uses." They point to the fact that the area adjacent to and near the development is a "friendly rural community," and they allege that the development will harm this wholesome atmosphere. The plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and DRI Master Development Plan, both incorporated into the plan amendment, shows that the Tri-County Villages development will provide approximately 1,100 acres of open space. Much of this open space will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development which serves to separate the more urban development from the adjacent agricultural and rural uses. Another mechanism which ensures compatibility is the phased method of development proposed for the project. Under the phasing approach, only contiguous portions of the property will be developed at any given time during the planning period. In addition, existing agricultural uses on the property will continue until such time as the proposed development reaches that property. Given these considerations, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent land uses. Levels of service In their amended petition, petitioners assert that the plan amendment is in violation of FLUE objective 7.1.6 and FLUE policy 7.1.6.1, objective 1.1 and policy 1.1.1 of the Capital Improvements Element, Rules 9J-5.005(3), 9J- 5.011(2)2., 9J-5.015(3)(b)1., and 9J-5.016(3)(a) and (b)4., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, all pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services and flooding. Policy 1.1.1 of the Capital Improvements Element adopts a recreational facility level of service for such facilities as softball fields, baseball fields, basketball courts, boat ramps and the like. The amount of facilities required is based on population. Under the plan, the County must take the necessary steps to insure that the availability of these facilities is addressed during the concurrency review process and not at the compliance review stage. In other words, when a proposed development reaches the stage of requesting a building permit, the County may require as a condition of the issuance of that building permit that a developer provide a certain facility. In this regard, it is noted that Chapter 163, Florida Statutes, requires that any development comply with concurrency requirements while the Tri-County DRI Amended Development Order requires that the developer provide for adequate public facilities. Both the plan amendment and the development authorized therein generally address the recreational level of service. However, if no additional facilities are constructed in the future, the plan amendment does not provide adequate baseball fields, softball fields, boat ramps or handball courts consistent with policy 1.1.1. In addressing these potential deficiencies, intervenor represented to the County that as a retirement community, the development would not generate a demand for these types of facilities. That is to say, the retiree population inhabiting the development would be less likely to participate in activities such as baseball or softball. The population would, however, generate a need for other recreational facilities such as golf courses, swimming pools, shuffleboard courts and bocci ball facilities, all of which the development has a surplus. In response to this concern, the County concluded that it was not appropriate to require the construction of certain facilities when the project would not generate a need for them. The County indicated that, during the plan evaluation and appraisal stage required in 1998, an amendment to the plan would be transmitted which would revise the plan to take into account such situations. If such an amendment is not adopted, intervenor will need to provide additional facilities necessary to meet concurrency requirements. There is no established level of service in the plan for fire protection or emergency medical services. Intervenor has, however, addressed these services in the Amended Development Order for the development. As reflected in that order, intervenor donated a five-acre parcel and constructed a fire station adjacent to the development. The station may also be used to house emergency medical services, if needed, although an existing emergency medical service provider is located in close proximity. Intervenor also donated to the County $80,000 for the purchase of fire fighting equipment, and each household pays the County a $30 annual fee for fire protection. Therefore, fire protection and emergency medical services have been addressed. The plan establishes no level of service standard for schools. Because the development is a retirement community, children under age 19 are prohibited. As a consequence, it was determined that impacts to school facilities would be minimal. Intervenor contacted and advised the school board of its retirement community development plans and projected student impacts. In response, the school board concluded that minimal impact was expected as a result of the development. To the extent that the development in the future allows school age children to reside therein, the Amended Development Order specifically calls for a substantial deviation determination pursuant to Section 380.06(19), Florida Statutes, to evaluate the potential impacts to school facilities. As a result of further review, intervenor may be required to provide additional school facilities. The plan establishes a level of service for stormwater drainage in terms of quantity and quality. Based on flooding which has occurred in the existing OBGW development, petitioners suggest that flooding will occur in the development proposed in conjunction with the plan amendment. While such flooding has occurred in the OBGW development, there is no evidence that the flooding was caused by a reduction or violation of the stormwater drainage level of service. Indeed, the evidence shows that the flooding was caused by an unusually heavy period of rainfall in combination with debris clogging the inlets of the stormwater system. The actual stormwater system for OBGW, which was reviewed and approved in the OBGW DRI review process, was designed for and required to meet the plan's drainage level of service. As a concurrency matter, any system designed for the future development contemplated in the plan amendment will also be required to meet the stormwater drainage level of service. Accordingly, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment violates the plan's level of services standard for stormwater drainage. Affordable housing Petitioners further allege that the plan amendment "fails to provide for affordable housing as required by Objective 3.5 of the Housing Element of the (plan)" in violation of various rules and the state comprehensive plan. The rule alleged to have been violated requires a local government to analyze the affordable housing stock within the local government. The local government must then adopt comprehensive plan goals, objectives, and policies which establish programs to ensure an adequate supply of affordable housing for the present and future residents. Housing Element objective 3.5 and the implementing policies which follow provide one of the mechanisms, coordination with the private sector, which the County uses to address the provision of affordable housing countywide. The provisions of objective 3.5 and the implementing policies place no specific requirements on the private sector. These plan provisions only require that, in addressing the provision of affordable housing, the County work with the private sector. Contrary to petitioners' assertion, neither the plan provisions nor chapter 9J-5 require the plan amendment to address the affordable housing deficiencies countywide. As a DRI requirement, however, the plan amendment does address the provision of affordable housing. A detailed housing analysis was provided in the Tri-County Villages ADA. The analysis included a review of the affordable housing stock pursuant to the East Central Florida Regional Planning Council's housing demand, supply and need methodology. The analysis further concluded that after phase 3, additional affordable housing may be necessary. To address this deficiency, the ADA for the development requires intervenor to reanalyze the available affordable housing consistent with objective 3.5 of the Housing Element. Thus, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to provide affordable housing. i. Infrastructure funding Finally, petitioners allege that the plan amendment is inconsistent with FLUE policy 1.5.4. That policy provides as follows: All PUDS shall provide for central potable water and sanitary sewer facilities at the developer's expense and provide for fire hydrants and fire flow within the development in accordance with the National Fire Protection Association Standards. Intervenor has created community development districts as a mechanism to fund the development infrastructure. Intervenor is able to raise funds by the sale of bonds through these districts. The residents of the development will ultimately repay the bonds. Even so, petitioners allege that this funding mechanism is inconsistent with the cited policy because the infrastructure is not funded "at the developer's expense." The purpose and intent of the policy was to insure that the County not be obligated to fund infrastructure related to the PUD development. The developer, and ultimately the residents, of the project will fund the infrastructure through the community development districts. The County will not be obligated. This funding mechanism is consistent with policy 1.5.4. in that the County is not responsible for the funding of the PUD-related infrastructure. Accordingly, petitioners have not shown to the exclusion of fair debate that the plan amendment is inconsistent with the cited policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Sumter County's comprehensive plan amendment 94D1 is in compliance. DONE AND ENTERED this 11th day of July, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6974GM Petitioners: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-5. Rejected as being unnecessary. 6. Partially accepted in finding of fact 40. 7. Partially accepted in finding of fact 34. 8-9. Rejected as being unnecessary. 10. Partially accepted in findings of fact 7-9. 11-14. Rejected as being unnecessary. Partially accepted in finding of fact 8. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 8. 19-21. Partially accepted in finding of fact 2. 22-23. Covered in procedural statement. 24-29. Partially accepted in findings of fact 16-20. 30-41. Partially accepted in findings of fact 21-25. 42. Rejected as being unnecessary. 43-77. Partially accepted in findings of fact 28-36. 78-85. Partially accepted in findings of fact 37-39. 86-95. Partially accepted in findings of fact 40-42. 96-148. Partially accepted in findings of fact 43-49. 149-162. Partially accepted in findings of fact 50-53. 163-166. Partially accepted in findings of fact 54-56. Respondents/Intervenor: With certain changes, the substance of proposed findings 1-53 has been generally incorporated into this recommended order. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mr. T. D. Farnsworth 12364 County Road 223 Oxford, Florida 34484 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 David L. Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nancy G. Linnan, Esquire Post Office Drawer 190 Tallahassee, Florida 32302-0190 R. Dewey Burnsed, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2011.
The Issue The issues to be determined in this case are whether the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O-10, and revised in part by the remedial amendments in Ordinance Number 2010-O-01 (“Plan Amendments”), are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review comprehensive plan amendments and to determine whether amendments are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality in Volusia County and has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Hammock Creek is a Delaware limited liability company registered with the State of Florida. It owns the property that is the subject of the Plan Amendments. Through its representatives, Hammock Creek submitted comments to the Edgewater City Council at the transmittal and adoption hearings for the Plan Amendments. Petitioner Richard Burgess resides in the City, owns real property in the City, and operates a business in the City. At the public hearings on the original amendment package adopted by Ordinance No. 2008-O-10, Petitioner made comments on behalf of Edgewater Citizens Alliance for Responsible Development, Inc. (ECARD), as its vice-president. ECARD was an intervenor in this proceeding, but voluntarily dismissed its petition before the final hearing. Petitioner submitted written comments on his own behalf at the adoption hearing for the remedial amendments adopted by Ordinance No. 2010-O-01. The Plan Amendments The Plan Amendments create a new land use category, the Restoration Sustainable Community Development District (“Restoration SCD”), which is described in a new Restoration SCD Sub-Element of the FLUE: The Restoration SCD is the result of a conscious planning approach based on the most current New Urbanist research and advanced practices. The compact development pattern is designed to and shall provide for a diverse community with distinct place types and multiple experiences that are appealing to residents, employees, and visitors. It shall provide for walkability, a broad range of inclusive household demographics, the ability to connect the community directly to a natural experience, transit ready design, and a high level of environmental stewardship and planning. * * * In order to facilitate this vision, the City shall recognize that density is important to the restoration SCD outcome, but no more important than the mixing of uses, the development of a diverse population through the provision of housing choice and employment centers, the connection of streets and the design of structures and spaces on a human scale. The Restoration SCD land use category applies to 5,187 acres of land on the west side of Interstate 95 that are owned by Hammock Creek. The Restoration SCD site is not currently being used, but in the past was used for silviculture. The Restoration SCD site was annexed into the City in 2005, but is being assigned a future land use designation for the first time. The Volusia County land use categories for the property are Environmental Systems Corridor, which allows a maximum residential density of one unit per 25 acres, and Forestry Resource, which allows a maximum residential density of one unit per 20 acres, or up to one unit per five acres with clustering. The Restoration SCD Sub-Element includes the Restoration SCD Conservation/Development Areas Map, which divides the site into three areas: Conservation, SCD Conservation/Restoration, and SCD Community Development. The SCD Community Development area is also referred to as the “Build Envelope” because it is the only area where development can occur. The Build Envelope is approximately 25 percent of the total land area. At least 50 percent of the Restoration SCD site is required to be permanently protected open space. The SCD District is integrally related to a Development of Regional Impact (DRI) proposed for the lands that are the subject of the Plan Amendments. The Resolution SCD includes several of the development controls listed in Florida Administrative Code Rule 9J- 5.006(5)(j) which discourage urban sprawl, including: open space requirements; clustering; the establishment of minimum development density and intensity; phasing of urban land use types, densities, and intensities; traditional neighborhood development form; buffering; planned unit development requirements; restriction of the expansion of the urban area; and jobs-to-housing balance requirements. Edgewater is a relatively old Florida City that was developed with strip commercial along the highway and other development forms that were typical before the enactment of Chapter 163 and the requirement for comprehensive planning. The Restoration SCD introduces modern development principles and forms. Within each element of the City’s Comprehensive Plan, there are data and analysis summaries. There is also a separate section entitled “Population Projections.” The Plan Amendments revise or add information to some of these data and analysis summaries. The Plan Amendments also include some “housekeeping” changes that delete obsolete portions of the Comprehensive Plan and extend several planning horizons in the plan from 2010 to 2020. Mixed Uses Petitioner contends that the Restoration SCD lacks adequate policies to implement the types of land uses allowed, the percentage distribution among the mixed uses, or other objective measurement, and the density or intensity of each use as required by Rule 9J-5.006(4)(c). Restoration SCD is the future land use designation for the entire site. Policy 3.1.1 describes seven subcategories of uses within Restoration SCD: Residential, Mixed-Use Town Center, Work Place, Transit-Ready Corridor, Utility Infrastructure Site, Schools, and Open Space. Various policies of the Restoration SCD Sub-Element establish minimum and maximum percentages for the subcategories of uses. Table I-4 in the Plan Amendments shows the various land uses, their densities and intensities, and their acreages. The Restoration SCD land use designation has an overall residential density cap of 8,500 residential units and a non-residential intensity cap of 3,300,000 square feet. Policy 7.1.1 ensures a continuing balance of residential and non-residential development by tying the number of residential building permits that can be issued to the square footage of non-residential development that has been constructed. For example, residential units cannot exceed 1,500 until 180,000 square feet of non-residential uses have been constructed. Format Petitioner contends that the Plan Amendments are not consistent with the format requirements of Rule 9J-5.005(1) because the sources, dates, and other information associated with tables, figures, and other materials included in the Plan Amendments are not identified. Exhibit A to the new Restoration SCD Sub-Element does not show a source, preparation date or name of the preparer. FLUE Table I-3 shows a source and name of the preparer, but not a preparation date. FLUE Table I-4 shows a source, a preparation date, and name of the preparer. Within the Population Projections section of the Comprehensive Plan, Table P-1 shows a source, but not a preparation date or name of the preparer. Table P-2, Figures P-1 and P-2, and Tables P-3 through P-5 do not show sources, preparation dates, or names of the preparers. Tables P-6 and P-7 show sources and names of the preparers, but no preparation dates. Table P-9 does not show a source, preparation date, or name of the preparer. Within the Housing Element, Tables III-13 through III- 15 and Tables III-17 through III-20 show sources and names of the preparers, but no preparation dates. The tables and figures that Petitioner objects to are included in the Comprehensive Plan as supporting data and analysis. They are not parts of goals, objectives, or policies. Rule 9J-5.005(2)(e) requires that maps include major natural and man-made geographic features and city and county boundaries. The Resolution SCD Conservation/Development Areas Map does not show geographic features or government boundaries. There are other maps in the FLUE that show natural and man-made geographic features and city and county boundaries. Policies 1.1.1 and 3.1.1 refer to Map “H”, which is part of the DRI Development Order. Petitioner objects to the omission of Map “H” from the Comprehensive Plan. The Director of the Department’s Division of Community Planning stated that it is not the practice of the Department to treat a format error or omission as requiring a determination that a plan amendment is not in compliance. Adoption by Reference Petitioner contends that the Plan Amendments adopt regulations and other materials by reference, but not in accordance with Rule 9J-5.005(2)(g), which requires that the reference “identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted.” Petitioner asserts that the following provisions include inadequate adoptions by reference: Policy 1.1.1, Policy 3.1.1, Objective 4.1, Policy 4.1.3, Policy 4.1.7, Policy 4.1.11, Goal 5, Policy 6.1.1, Policy 8.1.4, Policy 9.1.1, Policy 10.1.1, Policy 11.1.1, Policy 11.1.4, and Policy 12.1.6. Policies 1.1.1 and 3.1.1, Objective 4.1, and Policies 4.1, 4.1.3, 4.1.7, and 4.1.11 refer to state, regional, and federal laws or regulatory programs, but they do not purport to adopt these laws and programs by reference. The purpose of these provisions is not for the City to apply or have any role in the regulatory process or decision-making associated with the referenced laws and programs. The wording of these provisions is consistent with the City’s assertion that its intent is merely to provide notice of related permitting programs with which the developer will have to comply. Goal 5 refers to New Urbanism and other land use design principles as described in the literature of the Congress of New Urbanism, the Urban Land Institute and similar organizations, but the goal does not purport to adopt this literature by reference. The goal states that design policies will be adopted by the City in the future. No specific design principles are adopted, by reference or otherwise, in Goal 5. Policy 6.1.1 refers to affordable housing and defines the term as a percentage of Volusia County’s Average Median Income. The policy does not purport to adopt any materials by reference. Policies 8.1.4 and 11.1.1 refer to design principles which are to be adopted in the future. The policy does not purport to adopt this literature by reference. No specific design principles are adopted, by reference or otherwise, in Policies 8.1.4 or 11.1.1. Policy 9.1.1 addresses school concurrency and refers to a Capacity Enhancement Agreement (“CEA”) entered into by the City, the developer, and the Volusia County School Board to ensure that schools are timely planned and constructed to serve the student population. The policy does not purport to adopt the CEA by reference. Petitioner did not show that the CEA is not self-executing. Policy 10.1.1 refers to “green” development practices that meet the certification programs of the United States Green Building Coalition or the Florida Green Building Code, which will be incorporated into the DRI Development Order. The policy does not purport to adopt these certification programs by reference. No specific green design practices are adopted, by reference or otherwise, in Policy 10.1.1. Policy 11.1.4 refers to vehicle trips as calculated by the Institute of Transportation Engineers Trip Generation Manual. This is the standard manual used by all traffic engineers. The policy does not purport to adopt the manual by reference. Planning Timeframes Petitioner contends that the Plan Amendments cause the Comprehensive Plan to be internally inconsistent because there are different planning horizons in the Plan. The Plan Amendments extend several planning horizons to 2020, but the planning horizon in the Recreation and Open Space Element remains 2010, the water supply work plan has a planning horizon of 2018, and the Public School Facilities Element has a planning horizon of 2025. Petitioner did not identify an adverse effect created by the different planning horizons. The City is currently preparing its Evaluation and Appraisal Report (EAR)-based amendments. The EAR process is statutorily mandated, periodic review and update of the entire Comprehensive Plan. It is the logical process for reviewing and revising planning horizons in the plan. Conservation Element and Housing Element Data Petitioner contends that the support documentation that is included as part of the Conservation Element is not the best available data. However, Petitioner did not produce better data, except for the Florida Fish and Wildlife Conservation Commission’s more recent listed species rules, or show how better data do not support the Plan Amendments. Similarly, Petitioner contends that some of the support documentation that is included as part of the Housing Element is not the best available data. Petitioner did not produce better data or show how better data do not support the Plan Amendments. Need Petitioner contends that the best available data do not show a need for the residential and nonresidential land uses allowed by the Plan Amendments. The Population Projections section in the Comprehensive shows a projected City population of 34,481 by 2020. The Department determined that the 2020 population forecast was reasonable. It is not the practice of the Department to require local governments to update their population projections every time an amendment is adopted. The 2020 population projection is derived from forecasts of the University of Florida’s Bureau of Business and Economic Research BEBR. BEBR forecasts county populations, from which city population projections must be extrapolated. BEBR frequently under-forecasts population growth for cities. BEBR forecasts do not account for localized factors that can change the attractiveness of a particular area to prospective new residents and, therefore, stimulate population growth. Applying an “allocation factor,” the Department determined that the number of residential units allowed by the Plan Amendments was reasonably in line with the 2020 forecast. An allocation factor is a multiplier applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. In addition, population projections are not the sole consideration in determining the need for a plan amendment. In the case of the Restoration SCD, higher densities and intensities are necessary as a part of the intended development form. Higher densities and intensities are also necessary to achieve the objectives of Section 163.3177, Florida Statutes, including the encouragement of transit-oriented and energy-efficient communities. A need analysis for non-residential land uses in the Resolution SCD was not conducted by the City because the non- residential uses are intended to serve and be integrated with the residential uses, and are required to be developed in pace with the residential development. The Department found this approach acceptable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding that the amendments to the City of Edgewater’s Comprehensive Plan, adopted by Ordinance No. 2008-O- 10 and revised by Ordinance Number 2010-O-01, are “in compliance.” DONE AND ENTERED this 27th day of July, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2010.
The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1
Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, 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 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue Whether the 14 applications (application numbers 54481 through 54494) for the eight sign structures (six double-sided and two single-sided) adjacent to Interstate Route 95 and the Florida Turnpike within the City of Port St. Lucie should be granted or denied by Respondent.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner’s Applications Petitioner’s applications are for sign structures at eight different locations within the City of Port St. Lucie (the City). Six of the structures are two-sided sign structures and two are single-sided sign structures. Petitioner’s 14 applications were received by Respondent on July 1, 2003. The applications were completed in accordance with Respondent's Rules. Respondent’s original Notices of Denied Application were dated and mailed out July 29, 2003, and were received by Petitioner on August 1, 2003. Petitioner filed its Petition for Formal Administrative Hearing on August 21, 2003. On December 2, 2003, Respondent issued amended notices of denied application on each of the 14 applications. Referral of the Petitions to the DOAH was delayed at the request of Petitioner. All Sign Sites are Located in a Commercial or Industrial Zone. The sites upon which the proposed sign structures will be erected are located on parcels that have been zoned commercial or industrial. The parcels where the proposed sign structures will be erected have been designated “Utility” by the City’s Future Land Use Map and have been designated “Utility” under its Land Development Regulations. The City’s Comprehensive Plan includes the “Utility” land use as a category of Industrial land use. The City’s Land Development Regulations include the “Utility” land use category under Article IX, Industrial Districts. The sign sites are designed to correspond to the parcels of land designated in the City’s Zoning Book, as follows: Application No. 54487 is located at site 7-1, on Parcel 7. Application Nos. 404708 & 404710 are located at site 35-2, on Parcel 35. Application Nos. 404701 & 404702 are located at site 35-5, on Parcel 35. Application Nos. 404697 & 404699 are located at site 35-6, on Parcel 35. Application Nos. 404705 & 404706 are located at site 35-7, on Parcel 35. Application No. 404698 is located at site 41-2 on Parcel No. 41. Application Nos. 404704 & 404704 are located at site 46-1, on Parcel 46. Application Nos. 404707 & 404709 are located at site 48-1, on Parcel 48. The certified statements of the City’s zoning official establish that the sign sites are each located in a commercial or industrial zone. All applications submitted by Petitioner were submitted on Respondent's forms, which have been incorporated into Respondent’s rules by reference. Page 2 of 2 of each application submitted by Petitioner included a section to be completed by a City zoning official, and each provided as follows: To be completed by appropriate zoning official: Designation of parcel on the Future Land Use Map: UTILITY, WHICH IS AN INDUSTRIAL LAND USE CATEGORY. The primary land uses under this designation are: DEVELOPMENT ACCOMMODATING MAJOR PUBLIC AND PRIVATE UTILITIES, INCLUDING BUT NOT LIMITED TO PUBLIC AND PRIVATE STORM WATER SYSTEMS, WATER AND WASTEWATER PLANTS, ELECTRICAL SUBSTATION AND TRANSMISSION AND STORM WATER RIGHTS-OF-WAY, TELEPHONE SWITCHING STATIONS. Current Zoning of parcel (from Land Development Regulations): UTILITY, WHICH IS AN INDUSTRIAL LAND USE CATEGORY. The primary land uses under this designation are: UTILITIES FACILITIES, STORM WATER SYSTEMS, WATER AND WASTEWATER PLANTS, ELECTRICAL SUBSTATION AND TRANSMISSION FACILITIES, TELEPHONE, CABLE TELEVISION AND SIMILAR COMMUNICATIONS FACILITIES. Sign located within city limits? _X_ Yes No Please provide the name and telephone number of the person the Department may contact if additional information is required: I certify that the above information reflects the designation of the parcel as it is shown on the current comprehensive plan adopted pursuant to Chapter 163, Florida Statutes, and with all local governmental requirements, and that I am authorized to sign this form on behalf of the county/municipality named above: Cheryl S. Friend ________ Signature of Local Government Official Cheryl S. Friend, Asst. Director of P&Z Printed Name and Title 5/22/03 Date The testimony of Petitioner’s expert witness established that the proposed sign sites are each located in a commercial or industrial zone. Edward Williams was accepted in this case as an expert in planning and zoning, and he has over 28 years' experience in applying planning and zoning principles. He has been a[0]ccepted as an expert in planning and zoning in Florida courts in over 30 counties. Williams [0]testified that he reviewed the issue of whether the parcels where signs are to be located are within commercial or industrial zones and concluded that they were[0]. [0] Williams reviewed the Future Land Use Element of the City’s Comprehensive Plan, which plainly defines "Utility" as an industrial land use. [0]The City’s zoning code also shows Utility zoning as an industrial use. [0]The City decided it was appropriate, considering all factors, to adopt a utility zoning category as a part of the industrial use classification because of the nature of the community. Williams concluded that, based on the actual uses identified under the various land use categories designated by the City, the City correctly placed the "Utility" category under the industrial land use category. [0]9. The Utility category under the City's Future Land Use Element and Land Development Regulations is intended for facilities that are larger than those that serve residential areas. They are more significant than just service lines. 10. Long-established land use classification systems utilized by planners to classify land use, and which are based on the activities performed and their impact on other properties and other uses, show that the proposed sign sites are located in commercial or industrial zones. These long-established land use classification systems have been used by local governments in Florida[0] to prepare comprehensive plans, land development regulations, and zoning maps. An evaluation of all of these classification systems shows that utilities are listed in the heavy commercial and in the industrial type categories. By their nature, by their use, and by their compatibility issues, they are commercial and industrial uses.[0][0] [0]11. The utility uses described under the City’s Future Land Use Element and its Land Development Regulations do meet the definition of industrial uses in Florida Administrative Code Rule 9J-5.003(58). The public considers those utility uses to be industrial uses. The unchallenged statements of the City’s “zoning official” and Williams’ expert testimony establish that each sign site is located on a parcel of land designated for commercial or industrial use under both the Future Land Use Map of the City’s Comprehensive Plan and the City’s Land Development Regulations adopted pursuant to Chapter 163, Florida Statutes (2003).1 John Garner’s contention that the uses authorized under the “Utility” designation are not commercial or industrial uses is not consistent with the land use planning principles or land use classification systems used as the basis for comprehensive planning in Florida. Garner has misapprehended the nature and patterns of industrial development in Florida. His description of industrial development is incorrect, to the extent that Florida's industrial uses are of a less heavy and dirty type typical of heavy industrial states and are more easily integrated with commercial and residential areas. Security is an issue for industrial uses in some areas of the state, and they are fenced in, but this is not common in the current development of industrial parks, where security is provided at the building, not the roads or perimeter. Though providing a general description of the nature of industrial uses in Florida that emphasized controlled access, heavy traffic, and the like, Garner acknowledged that industrial uses can be stand alone locations on a single lot. Comprehensive planning in Florida is accomplished under Chapter 163, Florida Statutes. The general purpose of the future land use element of a comprehensive plan is to reflect the local government’s long-range vision of how a community should develop and where certain uses are going to develop. From a planning standpoint, it is inappropriate to direct Respondent to review comprehensive plans and land development regulations to identify permitted uses on a parcel, but ignore technical planning and zoning principles in favor of lay definitions. Respondent works closely with the Department of Community Affairs and should be consistent in how it applies planning principles. Respondent’s Uniform Interpretation of Subsection 479.01(3), Florida Statutes According to Garner, Respondent interprets the terms “commercial or industrial use” found in Subsection 479.01(3), Florida Statutes, as those words are “commonly understood,” rather than as applied in land development regulations. Garner uses the layman’s everyday interpretation of the term "industrial" when applying the term. Respondent has a uniform interpretation of Subsection 479.01(3), Florida Statutes, under which it utilizes an everyday lay definition of commercial or industrial zone, rather than a technical planning and zoning approach. Garner’s opinion that the sign sites were not designated as industrial uses was based on this uniform interpretation. That interpretation is not reflected in Florida Administrative Code Chapter 14-10. Commercial or Industrial Zoning Not Enacted Primarily to Permit Signs The testimony of Petitioner’s expert witness is persuasive that the commercial or industrial zoning of the proposed sign sites was not enacted primarily to permit signs. According to Garner, Florida Administrative Code Rule 14- 10.0052(2)(a) is not triggered if commercial or industrial uses are the primary permitted uses. There is no problem under that portion of the rule if the allowed uses for a parcel are commercial or industrial in nature. Similarly, Florida Administrative Code Rule 14-10.0052(2)(b) is not triggered if commercial or industrial uses are the primary permitted uses. The industrial uses authorized under the City’s Future Land Use Map and its Land Development Regulations are primary permitted uses and not incidental to other primary uses or permitted only by variance or special exception. Such uses are expressly permitted under the City’s Comprehensive Plan and Land Development Regulations. As applied by Respondent, in order for zoning of a parcel to run afoul of Florida Administrative Code Rule 14- 10.0052(2)(c), both factors in that portion of the rule must exist; that is, both the physical dimensions or other attributes of the affected parcel would not reasonably accommodate traditional commercial or industrial uses and the area surrounding the affected parcel is not predominantly commercial or industrial. Williams e[0]valuated whether the dimensions or other attributes of the parcels would accommodate traditional industrial uses and [0]concluded that traditional commercial and industrial uses could be accommodated on the parcels. His conclusions are persuasive. There are many possible commercial or industrial uses that can be accommodated on all of the parcels at issue in this case, including warehousing, equipment storage yards, material storage yards, and small manufacturing facilities. The utility uses designated for these parcels are one of the types of industrial uses that could be accommodated on these parcels. However, regardless of that fact, a full range of industrial uses, including warehousing, manufacturing facilities, and storage facilities, can be accommodated on these parcels. The sizes or configurations of these parcels do not preclude their development for commercial and industrial uses in the traditional sense. Lots in the 50 to 60-foot range can accommodate traditional commercial and industrial uses, including regular warehouses, fabrication yards, contractor yards, equipment yards, and material yards. A review of the City's Land Development Regulations shows that there are no restrictions that would prevent industrial uses on these parcels. It is not unusual to see industrial development on parcels the size and shape of those on which the signs are proposed to be located. Many of these parcels are actually quite large in size. They are oddly configured as a result of platting and construction of roads, but not so oddly configured that they couldn't be developed for commercial or industrial uses. Garner offered the opinion that none of the parcels upon which the sign sites were located would accommodate traditional industrial uses. However, Garner has had no direct experience in the ownership, proposal, permitting, development or operation of any commercial or industrial development in Florida. Garner was of the opinion that three of the parcels had size or shape problems, but admitted that the other parcels were large enough to physically accommodate industrial development. Garner admitted that essentially all of the parcels could be fenced for security and access control. Ultimately, the principal basis for Garner’s position that the parcels would not accommodate traditional industrial development was that it is not “appropriate” for industrial uses to obtain their access through residential streets. He testified that all but one parcel (containing Site No. 48-1) currently obtains access exclusively through residential streets. However, Garner did not know how much industrial development in Florida actually uses access through residential streets and was not personally familiar with actions of local zoning officials on requests by industrial developers to have access through residential streets. In order to determine whether these parcels can accommodate traditional commercial or industrial uses, it is necessary to consider the development history of Port St. Lucie, and platting by General Development Corporation, in the 1960's, that restricted the size and location of lots within the City. There are differences in typical commercial and industrial development in a rural versus urban/city setting. In a city, 2,000 square-foot lots are developable and are highly desirable. Commercial and industrial development can be found on lots as small as 30 feet wide, due to past platting, but commercial or industrial development on 50-foot lots is fairly standard. A review of the City’s Future Land Use Map shows that many existing commercial and industrial areas in the City have their access through residential areas. Preexisting plats prohibit access in any other way. [0]The reason that the City does not restrict access for industrial uses through residential areas is that the prior plats by General Development limited how the community could grow. Garner was not aware of any restriction under City codes that would restrict industrial development from using residential streets for access. He was not aware of any restriction that would prevent access for an industrial use from using residential streets, or whether the City has any problem with a developer bringing industrial traffic through a residential area. In fact, there are no restrictions under the City’s Land Development Regulations against industrial uses having their access through residential areas. The reason that there are no such restrictions is revealed through the City’s Future Land Use Element. The City’s Future Land Use Element shows that the City is trying to increase its commercial/industrial acreage, provide jobs and employment opportunities and deal with the plats and roads its been given. The General Development plat and the extension of the interstate and turnpike system have seriously constrained how the community can develop. The City’s Future Land Use Element recognizes that there is insufficient commercial and industrial development in the City and attempts to increase that through the planning process. The commercial or industrial zoning of the parcels was not enacted primarily to permit signs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order granting the 14 applications (application numbers 54481 through 54494) for outdoor advertising sign permits submitted by Petitioner. DONE AND ENTERED this 3rd day of January, 2007, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 3rd day of January, 2007.
Findings Of Fact Petitioner, William Burke, is the developer of the Countryside Retirement Resort, a proposed development of regional impact, (DRI), located in DeSoto County, Florida. Sunrise Farms, a Florida general partnership, is the owner in fee simple of the site, but is not a party in this matter. Respondent, DeSoto County Board of County Commissioners, is a local government with jurisdiction over the proposed project site. It is responsible for the administration of the DeSoto County Comprehensive Plan, land development regulations, and zoning code. On August, 15, 1990, after a duly-noticed public hearing, the Board of Commissioners of DeSoto County denied Burke's Application for Development Approval and Request for Rezoning. On April 23, 1991, the Board of Commissioners of DeSoto County, pursuant to Chapter 163, Florida Statutes (1989), and the rules promulgated thereunder, adopted its current comprehensive plan. Intervenor, Department of Community Affairs, is the state land planning agency with the power and duty to enforce and administer Chapter 380, Florida Statutes, and the rules and regulations promulgated thereunder. The Department is also authorized to appeal DRI development orders issued by local governments pursuant to Section 380.07, Florida Statutes, and has demonstrated a substantial interest in the outcome of this proceeding. Intervenors, M. Lewis Hall, Jr., M. Lewis Hall, III, Don T. Hall, Frank D. Hall and Steven V. Hall, are landowners near the subject site, and are substantially effected persons. The proposed site of the project is located on Highway 31, approximately ten miles from the City of Arcadia, at the SW 1/4 and W 1/2 of the SE 1/4 of Section 1, Township 39 South, Range 25 East, DeSoto County Florida The project has been named Countryside Retirement Resort (Countryside), and is a proposed PUD intended as an Adult Residential Community which is designed to contain, at build-out, a maximum of 1440 park model residential homesites and 60 transient RV spaces on approximately 239.71 acres. The 1440 permanent park model resort homes are to be offered as a "turn-key" package to insure architectural control and adherence to project design. Park model homes are prefab, factory-built units, which are not susceptible to being moved again. The units in each phase will have a single bedroom, and the estimated price for all phases is $55,000, including the lot and lot preparation. Gross density for the project is 6.0 and 6.25 units per acre, based upon 1440 (park model homes) and 1500 (including 60 RV spaces) units, respectively. The development is privately funded and includes all streets, utility systems, public safety services, community buildings, recreational facilities, and general community amenities. The project area is currently zoned A-5 or improved pasture agricultural, with one dwelling unit per five acres permitted. To the north, the property is zoned A-10, citrus grove agricultural. To the south, the property is zoned improved pasture-agricultural, A-5. The Petitioner proposes to dedicate the 40 feet along the South side of the property to DeSoto County for street purposes. Adjacent to the public dedication will be a 40 foot project buffer for fencing, landscaping, and stormwater containment. The main entrance is to be located at State Road 31, approximately 1,000 feet North of Pine Island Street. Turn lanes are to be provided to minimize any potential detriment to the flow of traffic on the state roadway. As requested by County staff, forty feet of additional right-of-way has been set aside for the future widening of Pine Island Street. In addition to the 40 foot right-of-way for Pine Island Street (approximately 3.66 acres), access and improvements at all intersecting streets will be made. The additional traffic, sewer and potable water impacts will be provided for by the developer. A secondary access from Pine Island Street runs east from SR 31 approximately two miles, and dead ends at the Hall Ranch. The adjoining 40 foot buffer strip features, in addition to security fencing, a perimeter drainage swale and earthen mounds with landscaping that will screen the community from the public roadway. The buffer strip is not intended for future road purposes. The 40 foot buffer will be placed around the perimeter of the site. The buffer will consist of earthen berms and landscaping to protect the community from the outside, and the outside from the community, to make it as self-supporting and self-contained as possible. A 6.5 acre tract in the southwestern corner of the site has been reserved to provide for the commercial institutional needs of the residential community. Anticipated commercial uses include a general store (providing food, hardware, and dry goods), personal service shops, professional office space, and a motel (58 units) with a restaurant. Institutional uses include an arts and crafts building, a volunteer fire station equipped with a "quick response" vehicle, and office space for use by the sheriff's office, a second floor residence apartment for the community manager, the project's water treatment plant, and a helipad for emergency medical services. A general utility area, including maintenance building, the wastewater treatment plant, and a dry storage area for boats and RV's will be located in the Southeast corner of the property, buffered from adjoining properties and from the internal community. The project will also feature an 18 hole executive golf course with a pro shop and aquatic driving range, a multi-use clubhouse, four lighted tennis courts, six neighborhood swimming pools, and a series of mini-parks. The Petitioner's intent is to design the resort to function as a relatively self-contained and readily identifiable neighborhood of the County. The project calls for an on-site sewage treatment plant with tertiary filtration attached to the plant. At build-out, the plans call for the plant to treat approximately 315,000 gallons of sewage per day. A total of 8.99 acres of both man-made and natural wetlands were identified on the site. The project complies with applicable regulations with respect to preservation of wetlands. Approximately 27.75 acres of wetlands are to be created, and approximately 22.95 acres of proposed lakes will exist at completion. The project conforms with applicable regulations with respect to water use. The project's drinking and irrigation water will be served from on-site wells. An on-site water treatment plant will also be built. Adequate provisions are made for hurricane shelters and evacuations measures. The project conforms with applicable regulations with respect to air emissions. The project conforms with applicable regulations with respect to vegetation and wildlife. The entire site is cleared of natural vegetation and managed as improved pasture. The project site as well as adjoining land is not unique agricultural land. The project will not significantly deplete the agricultural community adjacent to the project or in the general neighborhood. Estimates from 1982 indicate that 236,722 total acres of pasture exist in DeSoto County. Removal of the project site from cattle production represents a total of .097% of the total pasture acreage in the County. Approximately 96% (230 acres) of the existing site is improved pasture land for cattle grazing while 6.9 acres or less than 3% of the project's site covers wet prairie. No natural wildlife corridors exist between the subject parcel and any surrounding natural lands. There are no significant historical or archeological sites or corridors considered likely to be present within the project area. Approval of the project would add to the tax revenue base of DeSoto County. The DeSoto County landfill is designed to meet the needs of the County until the year 2000 based on its projected increase of population. The proposed project at buildout, prior to the year 2000, falls below the projected increases of population. The projected increase in population by the year 2000 ranges from 4300 to 5800 with the proposed project generating a theoretical maximum increase in population of 3,000 persons if all units were occupied on a year round basis. The landfill will have adequate capacity to meet the demand from the project. No unusual or industrial or hazardous wastes will originate on-site. A 1.75 acre site has been reserved for the sewage treatment plant in the Southeast corner of the subject property. Sludge is scheduled to be disposed of by a licensed hauler. A tertiary wastewater treatment plant is to be provided in all phases of development. The wastewater is to be filtered and highly disinfected to provide treatment effluent for irrigation purposes. The plant will be situated on approximately 3/4 of an acre including surrounding open space and buffer areas. The utility site is of sufficient size to provide treatment of waste water for the entire development. All on-site facilities (collection treatment) are to be operated and maintained by the homeowner's association in accordance with the Florida Department of Environmental Regulation operating permits. On-site treatment and disposal facilities are being proposed that will be capable of serving the entire development. The proposed drainage system for the project is consistent with applicable regulations. The water supply system proposed for the development complies with applicable regulations. Florida Power and Light Company has sufficient capacity to provide electrical service to the project. While the project will contribute property taxes to the educational system, the development will not have a negative impact on the DeSoto County District School System, since this project will be an adult community, and no school-age children are contemplated. 94.18 acres, or almost 40% of the development site, are to be devoted to recreation uses and open space. A helipad will be constructed to enhance MedVac emergency services to the project and the surrounding area. DeSoto Memorial Hospital is licensed for 82 beds, and provides emergency services. DeSoto Memorial Hospital is a community not-for-profit facility, serving the DeSoto County area and located in Arcadia, Florida. Health Care and medical services are available at the Hospital and the Arcadia area to meet the needs of the Countryside residents. The county operated ambulance (EMS and ALS certified) offers 15 to 20 minute response time from its headquarters station on State Road 70, a distance of 7 miles, via SR 31. Fire protection services for the project are to be provided by the public safety department of DeSoto County. The nearest fire station is located at State Road 70 and Airport Road about seven miles north of the property. Under normal traffic conditions, response time is estimated to be approximately 10 to 12 minutes. The county's fire protection services are to be enhanced by the construction of an auxiliary fire station on-site. The Petitioner proposes to develop a volunteer fire department from among the residents of the project with emphasis on fire, emergency medical, quick response fire truck and a building for sheltering in the event of a disaster or potential emergency (portable electric, water, restrooms, kitchen and proper square footage to accommodate the residents of the development) would serve as a benefit to the County on SR 31. On April 23, 1991, the Board of County Commissioners for DeSoto County adopted Ordinance 91-03, a new comprehensive plan for the County. Included are goals, objectives and policies in the Future Land Use Element of the Plan. The Future Land Use Element, Goal L. Objective L2 of the DeSoto County Comprehensive Plan, provides that: Development orders and/or permits for future development and redevelopment activities shall be issued only if public facilities necessary to meet level of service standards, adopted as part of the Capital Improvements Element of this Plan, are available concurrent with the impacts of development. The Future Land Use Element, Policy L2.5 of the DeSoto County Comprehensive Plan, provides that: No local development order or permit will be issued unless the County determines that the appropriate level of service standards can be met for: drainage; potable water; recreation and open space; solid waste disposal; traffic circulation; and waste water treatment. Traffic Circulation Element, Goal T of the DeSoto Comprehensive Plan, provides that the goal of the traffic element of the Plan will be to "provide for a safe, efficient and economical traffic circulation system." To implement Goal T, Objective T1 provides that, "DeSoto County shall provide a safe and efficient transportation system, and shall establish minimum criteria and standards to ensure the effective functioning of all public roadways within its jurisdiction." The proposed development site accesses State Road 31, a north/south, two-lane minor arterial roadway connecting the City of Arcadia with the City of Fort Myers. SR 31 is currently at a Level of Service (LOS) of B, or better. The DeSoto County Comprehensive Plan, Policy T1.1, has established a peak season/peak hour level of service standard of D or better for SR 31. The Five- Year Schedule of Capital Improvements in the DeSoto County Comprehensive Plan does not provide for the improvement of SR 31. The average daily traffic maximum volumes established by the Department of Transportation for a LOS D on a minor arterial, such as State Road 31, is 15,000 trips per day. Four separate traffic studies were performed regarding the potential impacts of the proposed development on State Road 31. The first two studies were performed by Mr. Gordon Meyers of Ink Engineering, Inc., the third by Mr. Richard Doyle of Tampa Bay Engineering, Inc., and the fourth by Ms. Nanette Hall of Florida Transportation Engineering, Inc. The study area included segments of SR 31 and the intersection of SR 31 and SR 70, as well as, SR 31 and SR 760-A. SR 70 runs east-west and expands from a two lane roadway to a four lane major arterial at the intersection of SR 70 and SR 31. CR 760-A is a two-lane rural major collector extending westerly from SR 31, just north of the G. Pierce Wood Memorial Hospital, to US 17, which provides access to the Punta Gorda area and Interstate 75. The Department of Transportation has three traffic counting stations on State Road 31 from which reliable traffic data has been collected since 1984. The location of these traffic counting stations are as follows: Station #26, is located just south of the intersection between State Road 31 and State Road 70; Station #4, is located approximately halfway between the site of the proposed development and State Road 70, north of the intersection between State Road 31 and County Road 760A; Station #31, is located south of the intersection between State Road 31 and County Road 760A, and north of the proposed site of the proposed development. All four studies made projections as to the anticipated increase in traffic volume at these stations should the proposed development be approved. The four traffic studies obtained the following projections for the anticipated traffic volumes and corresponding LOS's that would exist at the traffic counting stations upon build out of the proposed development summarized in the table below: LOCATION FIRST STUDY SECOND STUDY THIRD STUDY FOURTH STUDY (MEYER) (MEYER) (DOYLE) (HALL) Station #31 12,474/LOS D 7,610/LOS C 12,474/LOS D 13,466/LOS D Station #4 13,557/LOS D 9,250/LOS C 10,080/LOS D 15,384/LOS E Station #26 15,172/LOS E 9,380/LOS C 10,341/LOS D 17,111/LOS E Of the four traffic studies performed, the projections of the fourth (Hall) study were the most reliable. It was the only study to use historic data available on State Road 31 in the Calculation of a growth rate for background traffic volume, and did not suffer from the methodological flaws that existed in the other studies. The fourth (Hall) traffic study indicated that the proposed development at build out would cause large sections of State Road 31 to exceed its level of service established by the DeSoto County Comprehensive Plan, and reduce the level of service below D. The fourth (Hall) study also projected the traffic impacts of the proposed development if developed in two phases, the results (expressed in average daily traffic and peak hour/peak season impacts) of which are summarized in the table below: LOCATION PEAK HOUR/PEAK SEASON AVERAGE DAILY TRAFFIC PHASE I PHASE II PHASE I PHASE II Station #31 892/LOS C 1,394/LOS D 9,062/LOS C 13,466/LOS D Station #4 1,033/LOS D 1,544/LOS E 10,732/LOS D 15,384/LOS E Station #26 1,183/LOS D 10,341/LOS D 12,397/LOS D 17,111/LOS E Countryside has never requested phased approval for the project. The fourth (Hall) traffic study indicated that even if approval were given for "Phase I" alone, a major portion of the LOS D capacity of the roadway (approximately 80% to 85% of the capacity) would be used up, reducing the possibilities for further development of those sections of State Road 31 between the proposed development and State Road 70. The proposed development will not meet the appropriate level of service for traffic circulation. Land Use Element Policy L6.8 of the DeSoto County Comprehensive Plan provides that: Residential development in a Rural/Agricultural area shall not exceed a maximum density of one dwelling unit per ten gross acres. In a Rural/Agricultural area, the lowest order of commercial goods and services which serve the daily needs of nearby residents may be permitted only on arterial or collector roadways. Commercial areas in a Rural/ Agricultural area shall be appropriately buffered, shall not exceed 3 acres in size, shall not exceed impervious surface lot coverage of 70 per cent, and shall be no less than 2 miles from other commercial development in a Rural/Agricultural area or in other future land use categories. Industrial uses within a Rural/Agricultural area may be permitted only when such activity is related to the extraction or processing of minerals; or when related to agriculture; or is of a scale and nature that would not be acceptable in Town Center. Other industrial uses, such a power plants or manufactured or processing facilities may be permitted, and shall have access to a collector or arterial roadway, shall meet all local regulations, and shall be appropriately buffered from surrounding land uses, including agricultural uses. Within a Rural/Agricultural area, the approval of residential development shall acknowledge that the protection of agricultural lands is a primary function of a Rural/Agricultural area, and that land management activities associated with agricultural uses may be incompatible with residential development. However, such management activities are considered to be an essential element of the protection of successful operations on agricultural lands and the continuation of such activities shall take precedence. Future Land Use Element, Goal L. - Objective L3 of the DeSoto County Comprehensive Plan, provides that "DeSoto County shall promote compatible future land use patterns." The current DeSoto County Comprehensive Plant, Future Land and Use Element, Objective L6, provides: Objective L6: As a part of this plan, DeSoto County's Future Land Use Map series shall be applied only in conjunction with the policies of this element and other elements of the DeSoto County Comprehensive Plan, and shall generally illustrate and coordinate the appropriate distribution of residential, commercial, industrial, agricultural, preservation, public and utility facility land uses to effectively manage the projected population growth of the County. The Future Land Use Map (FLUM) and the Plan's policies are used to effectively manage the projected population growth of the County. The Countryside project is not depicted, in terms of an appropriate land use category, on the FLUM. The Future Land Use Map indicates that the project site is located in an R/A (Rural/Agricultural) land use designation with a maximum allowable density of one residential unit per ten acres. The density of the proposed project is in excess of six dwelling units per acre. The 1991 DeSoto Comprehensive Plan, data and analysis section, indicates that there are 2,765 approved, unconstructed recreational vehicle (RV) sites in nine undeveloped, but approved RV parks, covering 448 acres. The Plan indicates that these approved RV sites will meet the anticipate need through the year 2000. The 1991 Plan estimates that 427 seasonal residents (usually retirees), will be added to the seasonal population of the County between 1990- 2000. Based on two persons per dwelling unit and six dwelling units per acre, only 214 units of new RV residential development will be needed between 1990 and 2000. The existing approved, but unconstructed RV sites, exceed the projected need almost thirteen times. The proposed DRI would add an additional 1500 units, resulting in 4,051 more units than the projected need. Policy L3.3 of the DeSoto County Comprehensive Plan provides that: Land uses which are potentially incompatible either due to type of use or intensity of use, shall be buffered from one another through the provision of open space, landscaping, berms, alternative site design or other suitable means. Land development regulations shall establish criteria for appropriate buffering between adjacent land uses. Policy L3.4 of the DeSoto County Comprehensive Plan provides that, "where the application of such measures as identified in Policy L3.3 cannot mitigate the incompatibility between proposed and existing land uses, the proposed land use shall be disapproved." The proposed development is not functionally related to the surrounding agricultural activities and numerous incompatibilities between the land uses shall arise as adjacent landowners conduct agricultural activities such as application of pesticides and fertilizers and other activities which produce smells, sprays, dust, noises and other externalities incompatible with residential use. The incompatibility of this project with existing land uses cannot be eliminated under the proposed buffers of berms, landscaping, and fencing proposed in the ADA. To implement Goal L. Objective L4 of the DeSoto County Comprehensive Plan, Policy L4.1 provides that: The DeSoto County Comprehensive Plan and implementing land development regulations, to be adopted by August 1, 1991, shall include provisions that permit or require a variety of land development techniques that discourage sprawl while protecting natural resources including: Establishment of mixed use future land use categories in the DeSoto County Comprehensive Plan to provide residential, commercial and employment opportunities in close proximity; Clustering of development to protect natural resources, open space and agricultural uses, provide for access management to arterial or collector roadways, provide for appropriate buffering, and make efficient use of public facilities and services; Establishment of guidelines or incentives to encourage infill development in the Town Center, Mixed Use Corridor and Suburban Residential areas, which may include . . . There is a clear intent in the DeSoto County Comprehensive Plan to discourage urban sprawl. "Urban sprawl" is defined in the plan as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental, agricultural and natural resource protection. Urban sprawl typically manifests itself in one or more of the following ways: 1) leapfrog development; 2) ribbon or strip development; and 3) large expanses of low-density, single-dimensional development." The proposed development is an example of the leapfrog development type of urban sprawl. It provides for residential development far beyond the projected needs of the surrounding area. It is located far from the nearest urban centers and is surrounded by rural land uses. The proposed development would create an urban level of density and intensity of use within a rural area. It is not a well balanced mixed use development. It is not compatible with, nor functionally related to, the surrounding uses, and is designed to be cutoff and separated from those uses. The proposed development cannot be considered a "rural village." It does not support surrounding agricultural activities, but is, in fact, incompatible with surrounding land uses. Because of its location and lack of multiple uses, this development will encourage lengthy commuting, contrary to the policies of the state comprehensive plan to continue to reduce per capita energy consumption, Section 187.201(12), Florida Statutes. The proposed project is not an efficient development because of its location away from existing facilities and services, shopping and employment, contrary to the policies of the state comprehensive plan to encourage efficient development and direct development toward areas which will have the capacity to service new population and commerce, Section 187.201(21), Florida Statutes. The State Comprehensive Plan, Section 18, "Public Facilities," provides that Florida shall protect the substantial investments in existing public facilities. This project conflicts with this policy, as investments in existing public facilities are best protected by directing growth to nearby locations to efficiently use those facilities, Section 187.201(18), Florida Statutes. The proposed project also conflicts with the state comprehensive plan policy related to governmental efficiency, which encourages the replacement of small scale economically inefficient local public facilities with more economical regional facilities. The project proposes to establish small facilities, rather than efficiently utilize larger facilities, Section 187.201(21), Florida Statutes. Section 380.08(3), Florida Statutes provides: (3) If any governmental agency denies a development permit under this chapter, it shall specify its reasons in writing and indicate in writing any changes in the development proposal that would make it eligible to receive the permit. The Board of Commissioners, in issuing its denial of the Countryside Retirement Resort specified its reasons for denial and identified changes which would make it eligible for approval as follows: The proposed development known as "Countryside Retirement Resort" is not consistent with the DeSoto County Comprehensive Plan, nor the DeSoto County Land Use Regulations. The proposed development does not make adequate provision for public facilities needed to accommodate the impact of the proposed development. There are no known changes that would make the proposed development eligible to receive approval due to the inappropriateness of the requested zoning. The DeSoto County Zoning Ordinance, Section 14.5(a), provides that among factors to be considered in a rezoning is "whether the proposed change would be contrary, and would have an adverse effect on the Comprehensive Plan." The DeSoto County Zoning Ordinance, Section 14.5(b), provides that among the factors to be considered in a rezoning is "the existing land use pattern." The existing land use pattern in the area is agricultural. The proposed development would create a medium density residential enclave within the existing land use pattern of agricultural use. The DeSoto County Zoning Ordinance, Section 14.5(c), provides that among the factors to be considered in a rezoning is "the possible creation of an isolated district unrelated to adjacent and nearby districts." The proposed development would be an isolated district of high intensity residential land use surrounded by agricultural and low intensity residential land uses. The DeSoto County Zoning Ordinance, Section 14.5(d), provides that among the factors to be considered in a rezoning is "the population such as schools, utilities, street, etc." The existing allowable density in this area of DeSoto County is 1 unit per 10 acres. The proposed development would increase this to 6 units per acre. Response time for police, fire, and rescue services would be poor if provided by existing facilities and personnel. Persons needing essential services that could only be provided in the City of Arcadia would have at least a twenty minute round trip. The County would experience a greater burden in providing services to the proposed development than it would if the development were located closer to the City of Arcadia. The DeSoto County Zoning Ordinance, Section 14.5(f), provides that among the factors to be considered in a rezoning is "whether changed or changing conditions make the passage of the proposed amendment necessary." There are no changed or changing conditions in the area which would make it necessary to amend the zoning or the Comprehensive Plant. The DeSoto County Zoning Ordinance, Section 14.5(g), provides that among the factors to be considered in a rezoning is "whether the proposed change will adversely influence living conditions of the neighborhood." The proposed development would create a high density residential development, urban type land use in an area of DeSoto County which heretofore enjoyed a rural character. The DeSoto County Zoning Ordinance, Section 14.5(h), provides that among the factors to be considered in a rezoning is "whether the proposed change will create or excessively increase traffic congestion or otherwise affect public safety." The proposed development would create traffic congestion, and would adversely affect public safety. The DeSoto County Zoning Ordinance, Section 14.5(l), provides that among the factors to be considered in a rezoning is "whether the proposed change will be a deterrent to the improvement or development of adjacent property in accordance with existing regulations." The proposed development would have an adverse impact on adjacent properties as property owners attempt to develop their properties. This development would drastically reduce the reserve capacity of State Road 31, and adjacent property owners would find it increasingly difficult and expensive to meet the Levels of Service required by the Comprehensive Plan. The DeSoto County Zoning Ordinance, Section 14.5(m), provides that among the factors to be considered in a rezoning is "whether the proposed change will constitute a grant of a special privilege to an individual owner as contrasting with the public welfare." The proposed development would not constitute the grant of a special privilege if approved, since the developer is seeking approval of a PUD. The DeSoto County Zoning Ordinance, Section 14.5(n), provides that among the factors to be considered in a rezoning is "whether there are substantial reasons why the property cannot be used in accordance with existing zoning." There is no reason why the property on which the proposed development is to be located could not be used for what it zones, agricultural usage. The DeSoto County Zoning Ordinance, Section 14.5(o), provides that among the factors to be considered in a rezoning is "whether the change suggested is out of scale with the needs of the neighborhood or the County." The proposed development is out of the scale with the needs of the County and the immediate neighborhood. The neighborhood is designated at a maximum density of 1 unit per 10 acres. This development would be at a density of 6 units per acre. The DeSoto County Zoning Ordinance, Section 14.5(p), provides that among the factors to be considered in a rezoning is "whether it is impossible to find other adequate sites in the County for the proposed uses in districts already permitting such use." There was no showing that other sites in DeSoto County could not be developed at this time. The DeSoto County Zoning Ordinance, Section 9.3, Planned Unit Development Districts (PUD), provides in part that it is the intent of the PUD Ordinance "to provide an optional alternative zoning procedure so that planned developments may be instituted at appropriate locations in the County in accord with the planning and development objectives of the County." The proposed development is not in an appropriate location, nor is it in accord with the planning and development objectives of the County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered by the Florida Land and Water Adjudicatory Commission denying of the application for development approval of Petitioner, and upholding the decision of the DeSoto County Board of County Commissioners to deny the request for rezoning for the Countryside Retirement Resort. DONE AND ENTERED this 27th day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of January, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs - 1(in part),2,3,6(in part),7(in part),16,17,18,19,20(in part),21,22(in part),23,24,26,27(in part),28,29(in part),30, 31,32,33,36(in part),37,38,39,40,41,42,43,44,46(in part),49 (in part),50,51,52,53,54,55,56,57,58,59,60,61 (in part),62,63,64,65,66,67,68,69 (in part),71,72 (in part),73,74,75(in part),76,81,92,95(in part),96(in part),98,99,100,101,105,106(in part),108,109(in part),112(in part) Rejected as against the greater weight of evidence: paragraphs - 4,5,6(in part),(in part),8,15,47,48,72(in part),77,78,79,80,82,83,84,88,89,102,104,106(in part),107,109(in part),110,111,112(in part),113,114 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 9,10,11,12,13,14,20(inpart),22(in part),25,27(in part),29(in part),34,35,36(in part),45,46(in part),49(in part),61(in part),69(in part),70,73,75(in part),85,86,87,90,91,97,103 Rejected as argument or conclusions of law: paragraphs - 93,94,95(in part),96(in part) Respondent's proposed findings of fact. Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18 (in part),19(in part),26,27,28,29,30,32(in part),36,37,38,39,40, 41,42,43,44,45,46,47,48,49,50,51,52,53,54,58,59,60,61,62,63,64,65,66,67,68,69,70 ,71,72,74,75,76(in part),77(in part),78,79,80,81, 82,84,85,86,87 Rejected as against the greater weight of evidence: paragraph - 83 Rejected as irrelevant, immaterial, or subsumed: paragraphs - 18(in part),19(in part),20,21,22,23,24,25,37 (in part),55(in part),56(in part),57(in part),73 Rejected as argument or conclusions of law: paragraphs - 14,31,32(in part),33,34,35,55(in part),56(in part),57(in part),76(in part),77(in part) Intervenor Department of Community Affairs' proposed findings of fact Accepted in substance: paragraphs - 1,2,3,4,5,6,7(in part),8,9,10,11,12,13,15,16,17,18,19,20,21(in part),22(in part),23(in part),24,25,26,27,28,29 Rejected as against the greater weight of evidence: paragraphs - 7(in part) Rejected as argument or conclusion of law: paragraphs - 14,21(in part),22(in part),23(in part) Intervenors Halls' proposed findings of fact. Intervenors Halls did not submit separate proposed findings, but adopted the proposals submitted by the Respondent. COPIES FURNISHED: Charlie Stampelos, Esquire William Wiley, Esquire MCFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Gary Vorbeck, Esquire Fred Bechtold, Esquire VORBEC, & VORBECK 207 East Magnolia Avenue Arcadia, Florida 33821 Kathryn Funchess Asst. General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Lewis Hall, Jr., Esquire HALL & HEDRICK Republic National Bank Building 150 Southeast Second Avenue Suite 1400 Miami, Florida 33131 William E. Sadowski Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 G. Steven Pfeiffer, Esquire General Counsel, Dept. of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399 Douglas M. Cook, Director Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, Florida 32399-0001
The Issue The issue is whether the City of Crestview's (City's) small-scale development amendment adopted by Ordinance No. 1370 on November 26, 2007, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background B & H is a Florida corporation which owns and operates a number of concrete batch plants and a surveying and engineering company known as Integrated Engineering Solutions, LLC. The parties have stipulated that B & H is the owner of property within the City and submitted comments to the City in support of the change in the land use prior to the adoption of the plan amendment. As such, B & H is an affected person and has standing to participate in this matter. In 2005, B & H purchased a 75.56-acre tract of vacant, undeveloped land in the unincorporated part of Okaloosa County (County), just southwest of the City. The parcel is generally bounded on its northern side by Interstate 10 (I-10) and by a 150-foot wide Gulf Power Company easement on its southern boundary. All of the property carried a County land use designation of RR, which limits development to one residential unit per five acres. See Future Land Use Element (FLUE) Policy 10.1.e. (Petitioner's Exhibit A). After B & H purchased the property, it applied for development approval (including a land use change from RR to an industrial) from the County. In the face of substantial public opposition, and a negative staff recommendation, B & H withdrew its application during a County Planning Commission hearing on April 12, 2007. (The County staff noted that the property "is located in the immediate vicinity of . . . a residential subdivision"; that a wide range of industrial uses would be allowed on the property if it was changed to IN; that the requested action would have the effect of "spot zoning"; that there is no shortage of industrial-zoned lands in other areas of the County; and that "the requested action is not compatible with the proximate residential subdivision and does not result in an appropriate transition of uses, densities, and intensities as expressed in [FLUE] Policy 4.4.") Shortly thereafter, B & H filed a petition for voluntary annexation with the City. On August 27, 2007, the City annexed a 9.98-acre parcel of B & H's land lying in the eastern half of the larger parcel. (The remainder of the larger parcel remains in the County.) B & H then filed an application in the form of a small-scale development amendment seeking a change in the land use on the property from RR to IN. Because the size of the parcel was less than 10 acres, the change in land use was accomplished by this type of amendment, which is not reviewed by the Department of Community Affairs (Department). See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. According to FLUE Policy 7.A.3.4.f. in the City's Plan, the IN category is designed to protect lands for production and distribution of goods and for other industrial activities. A wide range of industrial uses and commercial uses are allowed in this category. Specific uses include light and heavy manufacturing, assembly, training facilities, vehicle repair (including body work and painting), packaging, processing, wholesale business and warehousing, truck terminals, borrow pits, asphalt/concrete plants, heavy equipment sales, service and/or rentals, and other uses similar to those listed herein. Residential uses are prohibited except as an accessory to a permitted use. In addition to the application for a change in the FLUM, B & H submitted an application for site plan approval for a concrete batch plant to be located on the southern end of the subject property. This use would be consistent with the IN category. However, until this proceeding is concluded, the site plan will not be reviewed, modified, or approved by the City, and therefore any development provisions incorporated therein are not final. Further, the proposed use (a concrete batch plant) requires the issuance of a permit by the Department of Environmental Protection (DEP). On September 9, 2007, the City Planning Commission conducted a public hearing to consider the amendment and voted 4-1 to recommend approval of the application to the City Council. On October 8, 2007, a first reading of Ordinance No. 1370 implementing the amendment occurred at the City Council meeting. On October 22, 2007, a public hearing was held before the City Council. The City Council voted 3-2 to deny the amendment. On November 13, 2007, the City Council conducted another public hearing for the first reading of the amendment. On November 26, 2007, the City Council conducted a second public hearing on the amendment and adopted Ordinance No. 1370 enacting the amendment. (New zoning on the land will not be imposed until or unless the plan amendment here is found to be in compliance.) Although not subject to review by the Department, the following day the City sent a copy of the adopted Ordinance to the Department. On December 24, 2007, Petitioner, who resides in Antioch Estates, a nearby residential subdivision located within the City, filed her Petition with DOAH. On February 7, 2008, she moved to amend the Petition and authorization to do so was granted by Order dated February 8, 2008. In her Amended Petition, she generally contended that the amendment is not in compliance because it is internally inconsistent with other Plan provisions in several respects; the amendment is not supported by adequate data and analysis; the property being reclassified is greater than 10 acres in size and therefore cannot qualify as a small-scale development amendment; the City did not analyze the financial feasibility of the amendment; and the City failed to conduct the necessary intergovernmental coordination and review. The parties have stipulated that Petitioner resides within the City and offered comments in opposition to the amendment prior to its adoption. As such, she is an affected person and has standing to challenge the amendment. At the hearing, Petitioner, who is a planner for the City of Destin but resides in Crestview, acknowledged that before she filed her initial Petition, her husband was contacted by a representative of Couch Ready Mix USA (Couch), a non-party who operates a concrete batch plant 0.8 miles southeast of Antioch Estates on Old Antioch Road, and with whom B & H would compete if the application is approved and a new concrete batch plant constructed on the site. However, Petitioner stated that she would have filed a petition even if her husband had not been contacted by Couch. Even so, it is fair to infer from the evidence that funding for Petitioner's counsel and two experts was provided by Couch. The Subject Property The subject property is a 9.98-acre parcel bordered on the north by I-10 and on the east, west, and south by property owned by B & H, all of which is designated RR and zoned Agricultural. Directly to the east of the larger B & H parcel is a 70-foot strip of vacant land owned by Rhett Enzor, a non- party whose land stretches from I-10 southward to the Gulf Power easement. The Enzor property also carries a RR land use designation and Agricultural zoning. Besides the 70-foot strip on the eastern side, Mr. Enzor owns the other property that surrounds the larger parcel to the south and west; however, the extent of that property is not of record. Just to the east-northeast and adjacent to the Enzor property is a residential subdivision (Antioch Estates) comprised of around 125 homes. The subdivision is divided into two sections - the larger section lying north of I-10 and the smaller section located just south of I-10. It is unclear whether the entire subdivision has 125 units, or if the southern portion alone has that number. In any event, Petitioner and members of the public who offered comments at the hearing reside in the southern portion of the subdivision and oppose the application. At its closest point, the western boundary of the subdivision (particularly lots 51-55) appears to be slightly more than 600 feet from the 9.98-acre parcel, but no more than 70 feet or so from the eastern boundary of the larger parcel. The distance to the proposed concrete batch plant, which will lie in the south-southwest end of the subject property, is slightly less than one-quarter mile. An elementary school (Antioch Elementary School) with an enrollment of around 800 students and 100 staff, built sometime after 1996, is located just east of Antioch Estates. A former borrow pit, Blocker Pit, lies south of the subdivision, while an active borrow pit, Garret Pit, lies around one-half mile or so southeast of the subdivision. Antioch Estates is classified by the City as Low Density Residential (LDR), while the school is in the Public Use land use category. Under FLUE Policy 7.A.3.4.a., the LDR category "is limited to residential uses, customary accessory uses, recreation uses, churches and places of worship and planned unit developments. Non-profit and civic organizations may be permitted by special exception. This category is intended for single family homes which may be developed with up to six (6) units per gross acre." Antioch Road appears to be a major arterial road running in a northwest-southeast direction (crossing over or under I-10) just east of the elementary school. (Less than a mile southeast of the school, Antioch Road becomes P.J. Adams Parkway.) All vehicles wishing to access the school, Antioch Estates, or the 9.98-parcel (as well as the larger B & H parcel) must do so by turning off of Antioch Road onto Garret Pit Road, a County-maintained road which intersects with Antioch Road just south of I-10. Within a short distance, Garret Pit Road intersects with Whitehurst Lane, a paved road which runs in a northwest direction from Garret Pit Road to the school and eventually makes a loop in the subdivision. At the Whitehurst Lane intersection, Garret Pit Road turns into a dirt road. Vehicles traveling to B & H's property continue south on Garret Pit Road for 300 feet or so until it intersects with Point Center Road, a privately-owned, unplatted and undedicated dirt road which runs directly west from Garrett Pit Road (and roughly parallel to I-10) through the Enzor strip and into the eastern side of the B & H property. From there, it appears that vehicles would turn south for a short distance on Borrow Pit Road (also referred to as Barrow Pit Road on certain map exhibits), another dirt road which eventually turns westward when it reaches the southern boundary of B & H property. The 9.98-acre parcel is around 66 feet north of Borrow Point Road. According to a B & H witness, Point Center Road and Borrow Pit Road are not actually roads, but are more akin to dirt trails which trucks now use to reach the excavating and land fill sites. Finally, Point Center Road passes approximately 140 feet south of, and parallel to, the southern boundary of Antioch Estates. When the subject property was annexed into the City, it retained the County FLUM designation of RR and zoning of Agricultural. The FLUM and zoning designations are retained until a plan amendment and rezoning is approved by the City. Under the County's Plan, residential uses in RR must not exceed one unit per five acres. There is currently an inactive borrow pit (covering around six acres) on the southern part of the 9.98-acre parcel, which extends westward into the larger parcel. B & H says it has no intention of resuming this operation. A small storage facility with "manholes," "pipe," and other "equipment" sits on the southwestern corner of the property, while a small wetlands area of less than an acre occupies the northwestern corner. To the west of the subject parcel on the northwestern corner of the larger parcel is an active, permitted 7.5-acre Construction & Demolition (C & D) landfill. There is some ambiguity in the testimony over the actual size of the landfill; however, in DEP's letter of intent dated March 17, 2006, which transferred Permit No. 0002800-002-SO from the original owner (Point Center, Inc.) to B & H, it stated that B & H is authorized to operate a 7.5-acre disposal unit until March 17, 2010. See Petitioner's Exhibit B. Although the useful life of the existing C & D landfill will eventually run out, at the hearing B & H's Project Manager stated that the company has an application pending with DEP to expand the landfill. The status of that matter is unknown. Expansion of a non-conforming land use, however, may be problematic. See Finding of Fact 21, infra. Besides the active C & D landfill, B & H is also periodically retrieving fill dirt from the larger parcel for site work operations, using up to 30 dump trucks for this work. According to a witness, the larger parcel still has around 3,000,000 cubic yards of usable dirt. Whether B & H is authorized to conduct borrow pit operations on the larger parcel is not of record. More than likely, once the landfill is used up (or no later than March 2010 when the permit expires unless it is renewed), the non-conforming use will have run its course, and the RR designation will apply to all future activities on the larger parcel. Although the entire B & H parcel was classified as RR, the borrow pit and C & D landfill are non-conforming uses under the County's Plan, presumably having been in existence before the County's Plan was adopted. A non-conforming use is one where the actual use of the property is not consistent with the future land use of the comprehensive plan or not consistent with the zoning of the property. There are very strict parameters as to whether or not you can change or modify a non-conforming use. Normally, changes to non-conforming uses are not allowed. A non-conforming use can not be expanded. B & H has acknowledged that it intends to seek annexation of the entire larger parcel into the City. With the exception of the C & D landfill, it is also planning to request a FLUM amendment from RR to IN for the remainder of the larger parcel. Thus, if the instant application is approved, it is fair to say that this action will be the forerunner of an effort to reclassify the entire 75.56 acres (except the 7.5-acre landfill) as industrial property, leaving only the 70-foot strip of Enzor property as a RR buffer between the industrial land and the subdivision. Petitioner's Objections Ten-Acre Maximum Petitioner's first objection is that the amendment does not meet the statutory criteria for a small-scale development amendment because the use involves more than 10 acres. See § 163.3187(1)(c)1., Fla. Stat. ("[t]he proposed amendment [must involve] a use of 10 acres or fewer"). Petitioner argues that parcel size is not the only determinant of what must be included in the amendment, and that any acreage that is integral to the design and operation of the proposed use is considered in determining whether the small scale development amendment criteria are met. Petitioner argues that B & H failed to include in the amendment all acreage that is integral to the design and operation of the proposed use. It is undisputed that the subject parcel is 9.98 acres, as determined by Kermit George, who sealed the property's survey for B & H, and as confirmed by City employee Teresa Gaillard by using the Autocad software program. Relying primarily upon site plans for the concrete batch plant filed by B & H with the City, however, Petitioner contends that the acreage (.0604 acres) related to a 66-foot driveway which will access the south side of the property from Borrow Pit Road, the acreage (1.607 acres) related to the use of Borrow Pit Road after turning off of Point Center Road, the acreage (.052 acres) for an easement necessary to run a County water line from B & H's southern property line to the smaller parcel, and the 150-foot buffer on the east side of the site (which will be required by the City when or if a concrete batch plant is permitted and built) must be included in the total amount of acreage. Excluding the buffer, Petitioner has calculated this additional land to total 1.7194 acres. Petitioner argues that even if only one of the above items is included, it would cause the size of the amendment to exceed ten acres and lose its status as a small-scale development amendment. It is fair to infer from the evidence that the dirt trail that makes up Borrow Pit Road, as well as the 66-foot trail from Borrow Pit Road to the subject property, are already being used by B & H trucks or other vehicles to access the landfill and borrow pit area. Therefore, this "infrastructure" will be used for other purposes, irrespective of whether development on the 9.98-acre parcel occurs. At the same time, the City's planning expert noted that good planning practices do not require that the land necessary to access a parcel with roads or utilities, and off-site buffering, be included in calculating whether the "use" of the parcel exceeds 10 acres. Except as to the buffering issue, this interpretation of the statutory language is more logical and reasonable than Petitioner's approach and is hereby accepted. Compare Parker v. St. Johns County et al., DOAH Case No. 02-2658, 2003 Fla. ENV LEXIS 34 at *12 (DOAH Dec. 17, 2002, DCA Feb. 27, 2003)("[i]t would be unreasonable to construe Section 163.3187(1)(c)1., Florida Statutes, as requiring local governments and applicants to calculate pro rata share impacts of off-site utilities, determine proportionate acreage based on those impacts, and apply those figures to the small scale acreage calculations"). The issue of whether the acreage related to the off- site buffering should be included as a use is not so clear cut. The City Land Development Code (LDC) requires that there be appropriate buffering between industrial and residential land uses. While the pertinent portion of the LDC is not of record, the evidence submitted by B & H and the City shows that an approximate 150-foot buffer will be necessary on the eastern side of the parcel. A City witness testified that the buffering "would normally take place upon the property being developed." However, because the use will occur in an existing borrow pit (which is 20 feet below the surface of the adjacent land), the City concluded that it would be more appropriate to place any required vegetative buffer and fencing off-site on the edge of the larger parcel, also owned by B & H. The buffering is an integral part of the project being placed on the parcel. In other words, the plant cannot be built without the required buffering. Therefore, the land on which the buffer and fence will be placed should be included as an integral part of the property's use. Compare St. George Plantation Owners' Association, Inc. v. Franklin County et al., DOAH Case No. 96- 5124GM, 1997 Fla. ENV LEXIS 37 at *18-20 (DOAH Feb. 16, 1997, Admin. Comm. Mar. 25, 1997) where three off-site absorption beds required to serve a wastewater treatment plant were considered an integral part of the facility, thereby increasing the size of the amendment's "use" from 9.6 to 14.6 acres. By adding the acreage for the 150-foot off-site buffer and fencing to the 9.98 acres, the use of the property that is the subject of the amendment clearly involves more than 10 acres and cannot qualify as a small-scale development amendment. Data and Analysis Petitioner also objects to the amendment as not being supported by relevant and appropriate data and analysis, as required by Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2). Paragraph (2)(a) of the rule requires that "plan amendments . . . shall be based upon relevant and appropriate data and the analyses applicable to each element." To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Id. Petitioner points out that B & H has acknowledged (by way of answers to Requests for Admissions and stipulated facts in its Motion in Limine) that it did not present to the City any studies or data related to noise, traffic, property values, air pollution, or protected natural resources that may be impacted by, or attributable to, a concrete batch plant being placed on the subject property. She also argues that to the extent an analysis was made in the City's staff report (as to infrastructure demands, protection of wetlands and natural resources, traffic, financial feasibility, and compatibility), it was based on incorrect data or was otherwise insufficient. The City's planning consultant prepared the staff report for the City, which summarizes the data and analysis supporting the amendment. See § 1, Joint Exhibit E, which is a six and one-half page staff report. The analysis was performed on the premise that a concrete batch plant would be located on the subject property. The staff report indicates that "[t]he purpose of the amendment is to provide for the development of a concrete batch plant." See page 1, § 1, Joint Exhibit E. The staff report contains in summary form the data and analysis supporting the amendment. Section 1 reflects that the City relied upon (a) FLUM map sheet 7-5, which indicated that all adjacent lands except I-10 on the north side are in the RR land use category while lands in the vicinity are classified as LDR, MDR, Conservation, Public Lands, Industrial, and Commercial; (b) data reflecting that the existing use of land on the subject property is vacant and undeveloped; the larger B & H parcel contains a C & D landfill and is otherwise vacant; adjacent properties include numerous single-family homes and subdivisions, existing and planned multi-family projects, planned commercial uses, and a school; and wetlands are located in the northwest corner of the subject property; (c) data showing that the type of development on the property will be a concrete batch plant; (d) data showing that the amendment will "result in a significant decrease in potential demands on all City infrastructure systems" (potable water, sewer, solid waste, recreation/open space, drainage, and traffic) because it will eliminate potential future demands for residential units that would otherwise be allowed on the RR property; (e) data reflecting that the change in land use is compatible and suitable with adjacent lands because the proposed facility is "not adjacent to any homes, schools or other similar uses," and the adjacent properties are owned by B & H; (f) data showing that the site is generally level with an average elevation of 100 feet; (g) data in the Soil Survey of Okaloosa County, Florida indicating that the soil "is suited for the planned use and development of the subject property"; (h) data reflecting that there is "a small area with wetland soils" in the northwest corner of the property which will not be developed; and (i) data indicating that there are no historic and archeological resources on the property. The consultant also reviewed the current Plan to determine if the plan amendment was consistent with all relevant provisions and concluded that the "amendment is consistent with and furthers the adopted Comprehensive Plan." He added that at the same time the small-scale amendment was being considered, the City was also considering a set of large-scale amendments to its Plan (presumably to the FLUM), and the data and analysis used for those amendments provide further support for the amendment being challenged. However, the nature of the large- scale amendments, and their underlying data and analysis, are not of record or otherwise identified. Finally, the City did not perform a concurrency analysis since it says that the Department no longer requires one at the amendment stage and instead defers that task until the development process begins. Whether the City specifically considered the concerns noted in the County's staff report recommending a denial of the land use change is not clear. However, the staff report discounted the notion that the amendment would encourage urban sprawl (or "spot zoning" in the words of the County staff report) since it promotes urban infill development. In response to a criticism by Petitioner, at hearing the City's consultant utilized further data from City sources, presumably available at the time the amendment was adopted, which indicate that the total available capacity for new customer usage from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the water requirements related to the proposed industrial usage. Without providing specifics, the consultant also opined that if the County is called upon to provide water to the site, as B & H now intends, it likewise has sufficient capacity to do so. In analyzing the impacts on infrastructure, the City assumed that a change from RR to IN, and the placement of a concrete batch plant on the property, would "result in a significant decrease in potential demands on all City infrastructure systems." The more persuasive evidence shows, however, that when comparing the new traffic that would be generated by potential residential units on the property versus a concrete batch plan, the latter would probably generate an increase of at least 110 vehicle trips per day, most by heavy trucks, which is more than five times the number of trips used in the City's analysis. In contrast, the staff report stated that the projected demands from development of the plant "[i]n theory, [could result in] up to 20 trucks trips per day" but this high a number was "not likely." In this respect, the data being used and analyzed were not correct or were incomplete, and the City's assumptions drawn from that data were flawed. Thus, as to these impacts, the amendment is not supported by adequate data and analysis. Although the staff report also failed to reflect the increased water usage that would be generated by the concrete batch plant, at hearing the City relied upon available data to show that both the City and County had sufficient capacity to provide water service for the plant. To a certain degree, compatibility and suitability overlap one another. "Compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This criterion is used to evaluate whether the proposed industrial land use is compatible with the uses on nearby or adjacent properties. On the other hand, subsection (128) of the rule defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development." This criterion requires a determination of whether the industrial land use category is suitable in this particular area, given the existing characteristics of the land. After reviewing and analyzing data on the issue of suitability and compatibility, the City concluded that because B & H owned all the lands around the site (except on the northern boundary which adjoined I-10), "adverse issues [not otherwise identified in the report] associated with compatibility should be minimized." To further support its finding of suitability and compatibility, the report went on to state that the subject property "is not adjacent to any homes, schools or other similar uses." While the data used by the City (such as the FLUM map) were adequate, the City did not react to it in an appropriate manner. The City is correct in concluding that a change to an industrial land use category may be suitable on land where a non-conforming borrow pit already exists. However, because the proposed industrial use is in "relative proximity" to rural residential land on three of its sides, a large residential subdivision that begins no more than 200 yards away, an access road used by numerous heavy trucks which lies only 140 feet south of the subdivision, and a single outlet for all traffic exiting the subdivision, school, and B & H property, it is fair to infer that there will be a direct or indirect negative impact on those adjacent or nearby uses in contravention of Florida Administrative Code Rule 9J-5.003(123). In this respect, the amendment is not supported by adequate data and analysis. The City's recognition of the wetlands area on the subject property, and its finding in the report that such lands would be protected if development occurs, constitutes sufficient data and analysis and appropriate reaction thereto to satisfy the statute and rule. Petitioner also contends there was no analysis related to the fact that Point Center Road, the private road used to access the parcel, crosses wetlands "at the bottom of the hills," and the wetlands will be impacted by the change. As pointed out at hearing, however, the road has been there "forever," and filling of the adjacent wetlands occurred many years ago, or long before B & H acquired the property. Other than paving the road if the land change is approved, no other "filling" will occur, and the City's assessment of this matter was sufficient. All other contentions by Petitioner regarding the lack of sufficient data and analysis to support the amendment have been considered and rejected. Financial Feasibility Section 163.3177(2), Florida Statutes, requires that "the comprehensive plan shall be financially feasible." Relying upon this statute, Petitioner contends that the City failed to analyze whether the amendment was financially feasible. According to Petitioner's expert, when a FLUM change is made, a financial feasibility analysis must be made, which requires that the local government make a facility-based analysis to demonstrate whether the local government has sufficient capacity for the change. Specifically, she argues that there is no commitment from the County to provide water, and that the City did not analyze whether the City or County has the capacity to provide sufficient water to serve a concrete batch plant. Although the staff report addresses this issue in summary fashion and without specifics, at hearing the City's planning consultant testified, without contradiction, that the total available capacity from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the potential water requirements of a concrete batch plant on the site. He also opined, without contradiction, that if the County is called upon to provide the water, it likewise has sufficient capacity to do so. Based upon this analysis of available data, it is found that financial feasibility was adequately addressed by the city. Intergovernmental Coordination Petitioner next contends that the City did not evaluate and coordinate the amendment with the County, as required by Section 163.3177(4)(a), Florida Statutes, Florida Administrative Code Rule 9J-5.015, and the Intergovernmental Coordination Element (ICE) of the City's Plan. The statute provides in part that "[c]oordination of the local comprehensive plan with the comprehensive plans of . . . the county . . . shall be a major objective of the comprehensive planning process." The two most relevant provisions in the Plan on this subject, both very general in nature, are ICE Goal 13.A., which states that a goal of the Plan is to "[p]rovide coordination of this plan (ordinance) with Okaloosa County, other local governments (as appropriate) and other governmental agencies providing services within the City[,]" and ICE Objective 13.A.1., which provides that the City shall "review, on an annual basis, actions that have taken place to coordinate the Comprehensive Plan of Crestview with the Plans of other units of government and the Okaloosa County School Board." Although the County was given constructive notice of B & H's annexation request through the publication of a notice in a local newspaper on July 7, 2007, there is no evidence that the County was given specific notice that an application for a change in the FLUM had been filed by B & H and was being processed by the City, or that the County was afforded an opportunity to provide input into that process, if it chose to do so. Given the unique circumstances here, coordination is especially important since the subject property is surrounded on three sides by County land designated as RR with Agricultural zoning, the requested change would create a small industrial pocket in the middle of County RR land, and the County staff had just prepared a report recommending denial of the same change before the City annexed the property. While the cited statute, rule, and Plan provisions clearly do not contemplate that adjacent local governments have veto power over the City's ability to enact plan amendments, or that the City is required to accept alternative suggestions proposed by other entities, at a minimum they contemplate that notice of changes be given to adjacent local governments, and that those local governments be afforded the right to offer input, if any, prior to consideration of the amendment. See, e.g., City of West Palm Beach et al. v. Department of Community Affairs et al., DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM, 2005 Fla. ENV LEXIS 192 at *34-35 (DOAH July 18, 2005, DCA Oct. 21, 2005). Because there was no coordination here, even minimal, the adoption of the plan amendment contravened the cited statute, rule, and ICE Goal 13.A. Internal Consistency Petitioner next argues that, contrary to the requirement in Section 163.3187(2), Florida Statutes, that there be "internal consistency" within a plan, the amendment is inconsistent with the Plan in the following respects: quality of life (Legal Element Section 1.04); compatibility (FLUE Policy 7.A.1.2.c.); school siting (FLUE Policy 7.A.9.1.); and wetlands impacts (Conservation Element Goal 11.A and Objective 11.A.2.). Petitioner first contends that the amendment is inconsistent with the stated general intent and purpose of the Plan, which is found in Section 1.04 of the Plan's Legal Element. That Element contains a "whereas" clause, the Plan's title, jurisdiction for adopting the Plan, the City Council's intent in adopting the Plan, and its effective date. The Element indicates that it is intended to implement Florida Administrative Code Rule 9J-5.001, which sets forth the broad purposes of Florida Administrative Code Rule Chapter 9J-5. Section 1.04 provides in relevant part that the Plan is intended to "maintain and improve the quality of life for all citizens of the City" and to protect and promote the "public health, safety and general welfare of its citizens." This salutary language is so broad and aspirational in nature that the undersigned does not construe it, or other provisions in the Legal Element, as an appropriate basis for finding an amendment not in compliance. Petitioner's argument is accordingly rejected. Petitioner also argues that the amendment is inconsistent with the Plan's requirement that compatibility of adjacent land uses be ensured. FLUE Policy 7.A.1.2.c. appears to be the only Plan provision specifically dealing with this issue and it provides that the LDC shall contain detailed provisions to "ensure compatibility of adjacent land uses." B & H and the City take the position that during the zoning and development phase of the process (rather than during the plan amendment stage) the LDC would be used to ensure compatibility, as required by the Plan. However, the issue of compatibility was analyzed by the City and presented to the City Council, and the staff report contains an entire section on compatibility and suitability. See Finding of Fact 30, supra; § 1, pages 3-4, Joint Exhibit E. Therefore, it is appropriate to consider at the plan amendment stage whether the change in land use is compatible with adjacent or nearby properties. As noted earlier, Antioch Estates is a low-density residential subdivision directly to the east of the B & H parcel. At its closest point, the subject property is around 200 yards from the subdivision. The distance from the subdivision to the proposed concrete batch plant is less than a quarter-mile. At the same time, the road over which the heavy trucks will travel to and from the industrial site is no more than 140 feet south of the southern boundary of the subdivision, and the connecting road eventually terminates at an outlet onto Antioch Road shared by traffic from the subdivision and school. Finally, B & H acknowledges that the proposed change here is a precursor to a request for annexation of the larger parcel into the City and a change in the land use on the larger parcel (except for the land fill) to industrial. This would leave the Enzor property (which is only 70 feet wide) as the sole remaining RR buffer with Antioch Estates. Given these considerations, the change in land use will not "[e]nsure compatibility of adjacent land uses," as required by FLUE Policy 7.A.1.2. Finally, Petitioner contends that the amendment is inconsistent with FLUE Policy 7.A.9.1.1., which provides that a "proposed school location shall be compatible with existing and projected uses of adjacent property." (Emphasis added). Since the Antioch Elementary School already exists, it appears that this provision has no application. For the same reason, Petitioner's contention that the amendment contravenes Section 1013.36(3), Florida Statutes, is also rejected. That statute requires that a new school should not be sited adjacent to factories or other properties from which noise, odors, or other disturbances would be likely to interfere with the educational program. While compatibility issues with existing schools are relevant when a map change is being made, they can only be considered in the context of Plan provisions which directly apply to those issues. Summary In summary, because the amendment involves a use of more than 10 acres, it does not meet the criteria in Section 163.3187(1)(c)1., Florida Statutes; the amendment is not supported by adequate data and analysis with respect to impacts on infrastructure (traffic) and compatibility; the amendment contravenes the statutory, rule, and Plan requirement that it be coordinated with other local governments; and it is internally inconsistent with FLUE Policy 7.A.1.2.c., which requires compatibility of adjacent uses. All other contentions raised by Petitioner have been considered and rejected.
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 adopted by the City by Ordinance No. 1370 on November 26, 2007, is not in compliance. DONE AND ENTERED this 21st day of April, 2008, 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 21st day of April, 2008.
The Issue The issues in this case are whether two City of Palm Bay Comprehensive Plan Amendments, one of which was "small scale development amendment" under Section 163.3187(1)(c), Florida Statutes, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Brevard County (County) is a political subdivision of the State of Florida. See Section 7.05, Florida Statutes. The County is bordered on the north by Volusia County, on the west by Volusia, Orange, and Osceola Counties, on the south by Indian River County, and on the east by the Atlantic Ocean. The City of Palm Bay (City) is a municipality in southeast Brevard County, just to the southwest of the City of Melbourne. In its extreme northeast, the City borders on the Intracoastal Waterway. From there, it fans out to the southeast, surrounded on all sides by the County. The Department of Community Affairs (DCA) is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The Small-Scale Amendment: Review and Adoption On June 3, 1999, William Wilson submitted an application to amend the City's Future Land Use Map (FLUM) for a 1.1558-acre (small-scale) parcel of land in the unincorporated County at the southeast corner of the intersection of Valkaria Road (an east/west thoroughfare) and Babcock Street (a north/south thoroughfare), in anticipation of annexation by the City. In this vicinity, the unincorporated County lay to the east, across Babcock Street, between the City and the Intracoastal Waterway. The unincorporated County land to the north, east, and south of the parcel had a future land use designation of "Residential" on the County's FLUM; the City land to the west had a residential future land use designation on the City's FLUM. The requested amendment was from the existing County "Residential" designation to City "Commercial." A zoning change also was requested from County AU (Agricultural Residential) to City CC (Community Commercial). The parcel subject to the small-scale amendment request has a single-family home and free-standing residential garage located onsite. Projected impacts from commercial development on the parcel met all relevant City level of service (LOS) standards. (The County has not put environmental suitability at issue with respect to the parcel.) The City planning staff recommended approval of the requested plan amendment; staff recommended approval of the zoning change but to City NC (Neighborhood Commerical). These requests were heard by the City Planning and Zoning Board, sitting as the local planning agency (LPA), on October 20, 1999. The LPA voted to recommend to the City Council that the plan amendment be approved and that the zoning change to City NC also be approved. By Ordinance 2000-08, adopted on March 2, 2000, the City annexed the small-scale parcel, effective immediately upon enactment of the Ordinance. By Ordinance No. 2000-09, also adopted on March 2, 2000, the City Council granted the request to change the future land use designation of the parcel on the City's FLUM to City "Commercial." By Ordinance No. 2000-10, zoning on the parcel was changed to City NC. The Large-Scale Amendment: Review and Adoption On July 6, 1999, Brian West submitted an application to amend the City's FLUM for a 19.57-acre parcel on the northeast corner of the intersection of Valkaria Road and Babcock Street (immediately north of the small-scale parcel, across Valkaria), in anticipation of annexation by the City. The requested amendment was from the existing Brevard County "Residential" designation to City "Commercial" future land use. A zoning change from County AU (Agricultural Residential) to City CC (Community Commercial) also was requested. This 19.57-acre (large-scale) parcel is vacant. The County has not put environmental suitability at issue with respect to the large-scale parcel. The City's planning staff recommended approval of the requested plan amendment, which was heard by the City's Planning and Zoning Board, sitting as the LPA, on October 20, 1999, along with the small-scale request. The LPA voted to recommend to the City Council that the large-scale amendment be denied. On February 15, 2000, the City Council conducted a special meeting to consider the requested large-scale annexation, plan amendment, and zoning change and voted to approve the requests. However, at the time, the City also was in the process of developing plan amendments in response to its Evaluation and Appraisal Report (EAR); as a result, transmittal to DCA was deferred until transmittal of the EAR-based amendments. On January 18, 2001, the City Council met in regular session and voted to transmit the requested large-scale amendment to DCA, along with the other EAR-based amendments. On May 17, 2001, DCA issued its Objections, Recommendations, and Comments (ORC) Report regarding the transmitted comprehensive plan amendments. DCA raised several objections and made comments regarding the amendment. The ORC Report was received by the City on May 21, 2001. (The greater weight of the evidence was contrary to testimony of the City's Planning Manager that the ORC Report received on that date was incomplete.) On October 2, 2001, the City Council adopted Ordinance No. 2001-65, which adopted the requested amendment for the large-scale parcel from County Residential to City Commercial future land use. The EAR-based amendments also were adopted on the same date by Ordinance 2001-66. By Ordinance 2001-86 adopted on November 1, 2001, the City annexed the large-scale parcel, effective immediately. Re-Adoption of Plan Amendments at Issue At some unspecified time after October 2, 2001, the City became aware of concerns voiced by DCA regarding the sequence and timing of the large-scale annexation and FLUM amendment. To address these concerns, the City adopted Ordinance No. 2001-105 on December 20, 2001. This Ordinance repealed and re-adopted Ordinance No. 2000-65. At some unspecified time after March 2, 2000, the City became aware of concerns raised by DCA that adoption of the small- scale FLUM amendment took place before the City adopted plan amendments to comply with new school siting requirements, contrary to a statutory prohibition. In order to address these concerns, the City adopted Ordinance No. 2000-79 on January 4, 2001, to repeal and re-adopt Ordinance No. 2000-09, re-designating the small-scale parcel for "Commercial" future land use. DCA Notice of Intent and City's EAR-Based Amendments On January 21, 2002, DCA published a Notice of Intent to find the readopted large-scale amendment "in compliance." DCA subsequently caused to be published a Notice of Intent to find this readopted amendment "in compliance." The EAR-based amendments adopted on October 2, 2001, included certain text amendments, but these amendments had no direct bearing on the plan amendments at issue in this case. All plan text provisions relating to the plan amendments at issue in this case remained "substantially the same" after the EAR-based amendments. Need for Additional Commercial Future Land Use and Internal Consistency The County contends that analysis of the data in existence at the time of adoption of the plan amendments at issue in this case does not support a need to change the future land use on these parcels from County Agricultural Residential to City Commercial. But the following Findings are based on these data and analysis. City data and analysis dated January 2001 indicated in pertinent part: In 2011 the City will need 719 acres of commercial land and at buildout, will need approximately 1,725 acres. The Future Land Use Map currently allocated approximately 1,612 acres for commercial and office development. This is slightly below the needs identified over the long term time periods. The expansion of existing Activity Centers and the development of new Activity Centers should easily accommodate this minor increase. Between now and the next required Plan update in 2007, the City should analyze the available commercial land to determine if existing designated lands are appropriately located or whether new areas should be established and existing designations converted to other land use types. Of particular interest in that regard would be the large amount of neighborhood commercial presently designated but which is primarily vacant. It was not clear from the evidence how the acreage figures in the data and analysis were calculated. It does not appear from the evidence that the figure for commercial acreage "needed" included any "cushion" or "margin of error." If the City has more land allocated for commercial future land use than is expected to be "needed" within the planning horizon of its Comprehensive Plan (the year 2011), it may be the result of pre-platting of the City by General Development Corporation. If so, the City also has an even greater excess of acreage allocated for residential future land use since approximately 90 percent of the City was pre-platted for small, quarter-acre residential lots. As a result of pre-platting, it now appears that, at build-out (expected in about 20-30 years), the City will have an excess of allocated for residential land use and a shortage of acreage allocated for commercial land use (among other non-residential uses.) As a result, there is a current need to begin to reduce the amount of acreage allocated for residential future land use and add commercial acreage (as well as other non-residential uses.) A disproportion of City land allocated to commercial future land use is in the northern part of the City, between Malabar Road and Palm Bay Road, a considerable distance from the intersection of Babcock Street and Valkaria Road. Before the plan amendments at issue in this case, there was hardly any commercial future land use in the City in the vicinity of the Babcock/Valkaria intersection. Almost all of what little commercial future land use could be found in the vicinity was in small parcels--the single exception being a 15-acre parcel at the intersection of Eldron and Grant approximately two miles to the south. There also was very little land allocated to commercial future land uses in the unincorporated County anywhere near the Babcock/Valkaria intersection. Almost all of the unincorporated County in the vicinity had Rural Residential future land use. There was some County Neighborhood Commercial across Babcock from the 15- acre parcel of City Commercial two miles to the south of the intersection. There also was some County Neighborhood Commercial and a small amount of County Community Commercial future land use east of Babcock about a mile to the north of the intersection. A 40-acre parcel approximately 650 feet to the east of the intersection was changed from County rural residential to general commercial zoning in 1988. But at around the time the City began to process the plan amendments at issue in this case, the County purchased the land and re-designated it for Public future land use and GML (Government-Managed Land) zoning. Most of the City's population growth in the last 20 years has been in the southern and western part of the City, to the west of the Babcock/Valkaria intersection. Between 1986 and 1999, residential development within 2-3 miles of the amendment sites increased approximately 160 percent. As a result, whereas 17 years ago most of the City's population was east of Interstate 95, now approximately half the population resides west of Interstate 95 (although 60 percent still resides north of Malabar Road.) Due to the sparse commercial use in the vicinity, either in the City or the unincorporated County, there is a need for more land designated for commercial future land uses in the southern part of the City to serve the rapidly growing population in that area. The applicant for the large-scale amendment submitted a letter projecting a need for 1.5 million square feet of retail space in the City based on a comparison of "current space" with average retail space per capita in Florida. The County criticized the professional acceptability of this submission as data and analysis to demonstrate need for additional commercial acreage in the City. Standing alone, the submission may be fairly subject to the County's criticism; but considered along with the other data and analysis, the submission adds to the demonstration of need for the plan amendments. It was estimated that commercial uses at the intersection of Babcock and Valkaria will generate an additional 12,000 vehicle trips on Babcock in the vicinity of its intersection with Valkaria. This estimate further demonstrates a need for additional commercial future land use in the vicinity. At least some of the vehicle trips expected to be generated in the vicinity of the Babcock/Valkaria intersection as a result of adding commercial future land use there would correspond to a reduction in vehicular traffic from the southern part of the City to and from commercial areas in the northern part of the City. For that reason, by helping balance the amount of commercial land use available in the northern and southern parts of the City, adding commercial future land use in the southern part of the City could be reasonably expected to reduce traffic overall. Commercial land uses generally generate higher tax revenue and demand fewer government services than residential land uses. Meanwhile, the City provides most of the government services in the Babcock/Valkaria vicinity and has a backlog of infrastructure projects. For that reason, an economic benefit reasonably is expected to accrue to the City from adding commercial in the southern part of the City.2 Future Land Use Element FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon area need. . . ." FLU Policy 3.1A states: "The acreage of commercial land permitted by the Future Land Use Map shall not exceed projected needs." The County did not prove that the proposed FLUM amendments are inconsistent with either this Objective or this Policy. The plan amendments at issue are based upon area need and do not exceed projected needs, as reflected in the data and analysis. Compatibility and Internal Consistency The County contended that City Commercial future land use for the amendment parcels is incompatible with surrounding land uses and internally inconsistent with provisions the City's FLU Objective 2.3, to: "Prevent incompatible land uses from locating in residential areas in order to promote neighborhood stability and prevent deterioration." In the unincorporated County to the east of Babcock Street, there are primarily large-lot, rural residential land uses with some agricultural uses such as horses and tree-farming. But, as indicated, there are platted residential lots in the City to the west of Babcock Street that are urban (or suburban) in character. During the course of these proceedings, the County abandoned its contentions as to incompatibility of the small-scale amendment except for the existence of a residential structure on the property. In arguing that the existence of the residential structure on the property makes commercial future land use incompatible, the County relied on the City's zoning LDRs. But zoning and consistency of zoning with the requirements of zoning LDRs are not at issue in this comprehensive plan amendment case. See Conclusion 52, infra. Even if zoning and consistency with zoning LDRs were at issue, the applicant's residential structure would not defeat the applicant's proposed future land use change; rather, granting the application would mean that use of the residential structure would have to be discontinued after the future land use change. As to the large-scale amendment, the County also relies in part on alleged inconsistency with an LDR--in this instance, the City's LDR for Community Commercial zoning that these areas are "to be primarily located in or near the intersection of arterial roadways." But, again, zoning and consistency of zoning with the requirements of zoning LDRs are not issues for determination in this comprehensive plan amendment case. Id. Even if zoning and consistency of zoning with the requirements of zoning LDRs were at issue, consistency and compatibility still would be fairly debatable. The evidence was that Valkaria was designated as a collector road at the time of adoption of the proposed large-scale amendment and that Babcock was designated as an arterial roadway to the north of Valkaria and as a collector to the south of Valkaria. The City characterized Babcock as a minor arterial. By its terms, the LDR in question does not prohibit Community Commercial zoning except in or near the intersection of arterial roadways; it only provides that these areas are to be located primarily in or near these intersections. Even if City Community Commercial zoning were clearly inconsistent with the City's LDR for Community Commercial zoning, City Neighborhood Commercial zoning has no similar provision for location vis-a-vis arterial roads. Since the City only has one commercial future land use category, City Commercial would be the appropriate City future land use designation for City Neighborhood Commercial zoning. The County's contentions as to the large-scale amendment also are seriously undermined by the existence of both County Community Commercial and County Neighborhood Commercial future land use east of Babcock. In addition, a County-sponsored Small Area Study (SAS) of approximately 11,500 acres of land east of the intersection along Valkaria Road recommended County Neighborhood Commercial future land use for the northeast and southeast corners of the intersection of Babcock and Valkaria (as well as County Restricted Neighborhood Commercial zoning). As indicated, the City's Comprehensive Plan does not distinguish between the two categories of commercial future land use and, if any commercial future land use is compatible with surrounding land uses, City Commercial future land use is appropriate. Contrary to the County's argument, it makes no difference to the appropriateness of City Commercial future land use that County Neighborhood Commercial future land is more limited than City Commercial future land use (or that County Restricted Neighborhood Commercial zoning is more limited than City Community Commercial zoning). The County argued that the large-scale future land use amendment was inconsistent with City FLUE Policy 2.3A, which states that LDRs must "continue to contain provisions to ensure that land uses surrounded by and/or abutting residential areas are not in conflict with the scale, intensity, density and character of the residential area." There is nothing about the proposed FLUM changes that is inconsistent with this Policy. Consistency of LDRs with this Policy is not at issue in this proceeding. See Conclusion 53, infra. The County also questioned the adequacy of buffer between commercial uses on the large-scale parcel and nearby residential uses. Precise questions as to the adequacy of buffer are decided under the LDRs, during site development review and permitting. However, it is noted that there is a 50-foot wide "paper street" (i.e., a platted right-of-way that never was developed as a street) to the west of the large-scale parcel. In addition, zoning as City Community Commercial was conditioned upon additional buffer to the east (25 feet wide) and to the north (50 feet wide). Consideration also is being given to a Habitat Conservation Plan of an undetermined size in the northern portion of the site for use as a "fly-over" for scrub jays. In addition, actual use of the residential land in the unincorporated County to the north of the large-scale parcel includes a car repair business with garage and approximately 15 cars in various states of disrepair.3 For all of the foregoing reasons, the evidence did not establish either internal inconsistency or incompatibility of commercial uses on the large-scale parcel with existing residential uses. Infrastructure and Internal Consistency At the time of adoption of the plan amendments at issue, central water and sewer services had not yet been extended to the two parcels. However, it was clear from the evidence that adequate central water and sewer capacity existed to accommodate commercial development on these parcels and that central water and sewer was being extended to the parcels. The Capital Improvements Element of the City's Comprehensive Plan listed $1.7 million being budgeted for water and sewer improvements in fiscal year 2001/2002, and in excess of $15.3 million budgeted in fiscal year 2002/2003. FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon . . . the availability of supporting infrastructure." The County did not prove that the proposed plan amendments are inconsistent with this Objective. Urban Sprawl and Internal Consistency The County maintains that the proposed plan amendments exacerbate urban sprawl. But the County provided no detailed analysis of the indicators of urban sprawl in Rule 9J-5, Florida Administrative Code, to support its contention. In arguing urban sprawl, the County relied on its contentions that there was no demonstrated need to convert County rural residential land use to City commercial land use. This argument has been rejected. See Findings 20-31, supra. The County's urban sprawl argument also focused on uses in the unincorporated County east of Babcock and characterizes the plan amendments as placing commercial land use in a rural area. This focus and characterization ignores the existence of urban residential uses in the City west of Babcock. Seen in proper perspective, the proposed plan amendments allow commercial land use that would tend to mitigate and discourage the kind of urban sprawl promoted by the pre-platting of the City. Instead of having to travel to access commercial uses in distant parts of the City, City residents in the vicinity would have a much closer option under the proposed amendments (as would County residents in the vicinity). FLU Objective 1.4 in the City's Comprehensive Plan is to: "Establish a Growth Management Area to control urban sprawl." FLU Policy 1.4B states: "City funds shall not be utilized to expand public facilities and services for future growth outside of the established Growth Management Area." The small-scale parcel was outside the established Growth Management Area (GMA) at the time of adoption of the small-scale amendment. But it does not follow that the small-scale amendment constitutes urban sprawl. Nor does it follow that the small-scale amendment is inconsistent with either the Objective or the Policy. The small-scale amendment can be made a GMA before any City funds are used to expand public facilities and services for future commercial use of the small-scale parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding both the small-scale amendment and the large- scale amendment of the City of Palm Bay (adopted by Ordinance 2000- 79 and by Ordinance 2001-105, respectively) "in compliance." DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2002.
