The Issue Whether Petitioner is a substantially affected party and entitled to a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. Whether LYNX' 1992 application for "Section 9" federal grant funds complied with the planning and grant requirements of the Federal Transit Act, 79 U.S.C. 1601, et seq, as amended, and state law. Whether LYNX complied with the Private Enterprise Participation requirements of the Federal Transit Administration (FTA). Whether the level of demand for mass transportation service in the International Drive Corridor requires that increased service capacity be provided and under what criteria. Whether the proposed restructured service for the International Drive Corridor should be provided by LYNX or a private mass transportation provider.
Findings Of Fact Central Florida Regional Transportation Authority (CFRTA) and the Orange-Seminole-Osceola Transportation Authority (collectively, LYNX) are each a public body authorized to provide mass transportation services within the counties of Orange, Seminole and Osceola, as well as all cities within those counties, including the City of Orlando. The two Authorities operate as one entity and have merged their activities and assets, with CFRTA being the successor entity. LYNX is the duly constituted regional transportation authority for the Central Florida Region, which includes Seminole, Orange and Osceola Counties. It is created and established pursuant to the Interlocal Agreement dated May 2, 1972, under the authority of Section 163.01, Florida Statutes, and Section 343.63, Florida Statutes. LYNX is a designated recipient of local federal transit assistance. Trykap Transportation Management, Inc., d/b/a World Transportation, Inc. (WTI) is a closely-held for-profit corporation which operates a mass transportation bus service, transporting riders from a number of hotels and motels in the Kissimmee, Lake Buena Vista and Orlando area to tourist attractions in Central Florida. Jay Kaplan is the president of WTI. The Federal Transit Administration (FTA) is the federal agency responsible for reviewing and approving applications for the use of federal grant funds in local transportation projects. ETC of Central Florida, Inc. (ETC) is a Florida not-for-profit corporation organized in 1988. Beginning in 1991, ETC has been instrumental in proposing and encouraging increased mass transportation service in the International Drive area. ETC supported the establishment of a special taxing district for the purpose of funding increased transportation service on International Drive. The International Drive Master Transit and Improvement District Municipal Service Taxing Unit (the District), an independent special district created by ordinance of Orange County, Florida, was created in December 1992 for the purpose of developing additional transit service for the International Drive area. This local government unit is an independent entity and is not related in any way to LYNX. The Orlando Urban Area Metropolitan Planning Organization (MPO) is responsible for transportation planning in the Orlando urbanized area. The MPO is responsible for preparing the Transportation Improvement Program (TIP) for submission to Florida's Department of Transportation and the FTA. The "International Drive (I-Drive) corridor" consists of a major north/south collector roadway, International Drive, which extends from Kirkman Road on the north to Central Florida Parkway on the south, a distance of approximately 4.6 miles. There are hotels, attractions, the Orange County Convention Center, restaurants and other commercial retail establishments located within the corridor. There are no residential areas located along the I-Drive corridor. Since 1976, LYNX has continuously provided bus service on and around International Drive. LYNX currently provides service on International Drive with 7 different routes. For several years, the International Drive corridor has been the subject of transit studies done by the City of Orlando, Orange County, ETC, the Metropolitan Planning Organization and other public and private entities having an interest in the International Drive corridor. As the regional transit authority, LYNX was involved early on in various discussions with ETC and the District regarding their plans for developing transportation on International Drive. Part of LYNX's responsibility as the regional transit authority is to offer assistance and advice in the promotion and development of public transportation. Consistent with that responsibility, LYNX staff met frequently with representatives of ETC and the District to answer technical and operational questions as well as to offer assistance, support and the benefit of LYNX's expertise and experience. In 1989, James F. Charlier was retained by the City of Orlando and the ETC as a transportation planning consultant. Charlier produced numerous studies, letters and presentation materials in regard to the I-Drive Project and appeared before numerous local government agencies on behalf of the Public Transit Project (PTP). A comprehensive study was also completed by Gannett- Fleming, Inc. for the PTP, entitled "Orlando/International Corridor Transportation Study Final Report" which analyzed four public transportation alternatives, including bus service for the I-Drive area. Following the formation of the District in December 1992, and through 1993, LYNX staff began to have conceptual discussions with the District about the possibility of LYNX enhancing its existing bus service on International Drive under contract with the District. During all of 1993 and the early part of 1994, there were dozens of meetings, workshops and public hearings conducted by various agencies in the community on LYNX's consideration of whether to restructure its current bus service. WTI participated fully in these preliminary proceedings. Jay Kaplan of WTI, often accompanied his legal counsel, attended between fifteen and twenty meetings regarding transportation services on International Drive, and he spoke at approximately half of those meetings. Kaplan's legal counsel also spoke at various meetings regarding transportation services on International Drive. WTI requested and received numerous documents as early as January, 1993, and continued to request and receive information throughout the course of the proceedings. At the same time, the District continued to explore the possibility of contracting with a private provider for transportation service on International Drive. Once the District began to develop more specifically its service needs, LYNX commenced its own analysis of whether to restructure its International Drive service. On March 22, 1994, LYNX issued a Draft Feasibility Analysis and Request for Written Comments Regarding New or Restructured Service in the International Drive Corridor relating to the provision of restructured bus service along International Drive. This Draft Feasibility Analysis stated the intent of LYNX to restructure its bus service in the International Drive corridor and also disclosed the specific costs and service plan for the project. The Draft Feasibility Analysis requested public comment on proposed public transportation service changes in the International Drive corridor. LYNX provided the Draft Feasibility Analysis and request for comment to over 200 private transportation companies whose interests might be affected by LYNX's decision, including WTI. WTI provided a written response within the 30-day comment period. Two other providers, Gray Line and A-1 Bus Lines, also submitted formal comments on the Draft Feasibility Analysis regarding restructured service on International Drive. The written comment on the Draft Feasibility Analysis submitted by WTI included WTI's complete response to the LYNX analysis. LYNX staff considered all comments filed in response to the draft feasibility analysis and prepared a staff recommendation for the LYNX Board. On May 9, 1994, LYNX gave notice of its intent to take action on May 12, 1994 on the restructured bus service. The details of the restructured service plan contemplated by LYNX appear in the Final Feasibility Analysis and Staff Recommendation published May 12, 1994. On May 12, 1994, LYNX held a board meeting for the purpose of receiving the LYNX staff recommendation and approving or rejecting the enhanced service plan. LYNX permitted counsel for WTI to address its concerns at the May 12, 1994 LYNX Board Meeting, and counsel for WTI presented a summary of its objections to implementation of the new or restructured bus service on International Drive. At the May 12, 1994 LYNX Board Meeting, the LYNX Board approved implementation of the restructured bus service on International Drive to commence on June 26, 1994. The Board also authorized entering into an interlocal agreement with the District. In June, 1994, the Governing Board of the District authorized the District to move forward with an agreement with LYNX for the provision of that service. LYNX did not reach a formal agreement with the District for the provision of bus service on International Drive prior to June 1994. The enhanced service commenced on June 26, 1994. In August 1992, LYNX submitted an application for so called "Section 9" federal grant funds under the provisions of the Federal Transit Act, 79 U.S.C. App. 1601, et seq. for the purchase of approximately 54 buses. The grant approval date was December 1992. LYNX ultimately ordered 47 buses, including fifteen thirty-passenger buses. The application was for federal formula grant dollars available to LYNX. The FTA allocates Section 9 grant dollars based upon a formula which considers a number of variables. The formula determines the amount of funding assistance to which each grantee is entitled under the Section 9 program, which is essentially a block-grant program. In its August 1992 application to the FTA, LYNX applied for grant funds to purchase buses for replacement of old equipment and expansion of its fleet generally. For purposes of the federal transit assistance program, the term "service level" refers to the location and number of individual bus transit stops, the frequency of service to such stops (also referred to as "headway"), extension of routes or internal changes to routes, and similar matters concerning passenger service. The Final Feasibility Analysis states that LYNX's restructured bus service involves changes in service levels in an existing corridor of service. The restructured service follows closely that service historically provided by LYNX along International Drive. The substantial difference between the restructured service and the service that LYNX has provided continuously along International Drive since 1976 is that additional bus stops have been added and those stops are serviced more frequently by new equipment, 1/ with the buses having clearly identifiable logo. A "transportation improvement program" (TIP) is a locally developed and controlled planning device. It is mandated under the provisions of the federal Mass Transit Act and regulations and guidance have been issued by the FTA to implement the Federal Transit Act. A transit grantee must disclose in the TIP federally-funded capital projects. A "project" for federal transit grant purposes is any proposal for new equipment, service or facilities which cannot be undertaken by a grantee with resources already in the control of that grantee. Changes in service levels, such as those made by LYNX on International Drive pursuant to the Final Feasibility Analysis, are not "projects" and do not require a modification of a TIP even if federally-funded buses are used to increase the service levels. "New" service is a project which must be included in a TIP. "New" service is defined as service provided in a new transit corridor not previously serviced by the transit grantee. Any enhancement of service in an already existing corridor is not "new" service, and therefore need not be included in the TIP. LYNX was not required to disclose its restructured service along the International Drive Corridor in the TIP or elsewhere in the grant application filed in August, 1992. Three things are required before service levels can be changed, these are: 1) an analysis of the demand for services, 2) an analysis of the cost of providing the revised service, and 3) notice to the public and interested parties and an opportunity for public comment. Each of the three prerequisites for modifying service may be satisfied by a written analysis which addresses service cost and other operating characteristics of the proposed service modification, and provides an opportunity under legal notice for comments to be received in writing from the public and interested parties. LYNX complied with these requirements by virtue of its Draft and Final Feasibility Analyses. Prior to the recision of the Federal Transit Administration's Private Enterprise Participation Policy, grant recipients were subject to certain private enterprise participation requirements in connection with their subsequent use of federal grant funds. Grant recipients developing new and restructured transit services were required to provide: 1) early consultation, a description of how new and restructured services would be evaluated (i.e., service criteria for the proposed change in service and a disclosure of the fully allocated costs of providing the proposed service directly with the grantee agencies' own equipment and personnel, 3) an opportunity for comment from the public and other interested parties, including private providers of transportation, 4) an analysis which reasonably flows from the record in support of the decision to provide the service either in-house or under contract, and 5) a dispute resolution process. The Draft Feasibility Analysis of new and restructured service for the International Drive corridor issued by LYNX in March 1994 complies with the federal private enterprise participation requirements. Lynx provided "early consultation" within the meaning of the federal private enterprise participation requirements with regard to new and restructured service in the International Drive corridor as part of the feasibility analysis of 1994. For a period of years prior to 1994, there were various public meetings, studies, and other elements of consultation with and among all sectors of the community, including private transportation providers. There were abundant opportunities for the public, including private transportation providers, to evaluate conditions, consider alternative service concepts for transit service in the International Drive corridor prior to the formulation of specific service criteria. The 1994 Draft Feasibility Analysis specifically afforded all interested parties a concrete opportunity to comment on LYNX's specific proposals regarding service criteria, costs and proposed operations. It also afforded interested parties an opportunity to have such comments analyzed and incorporated by LYNX into the Final Feasibility Analysis before the proposed modifications of service levels were presented to the LYNX governing board for review and decision. On or about March 24, 1994, LYNX issued a Notice of Draft Feasibility Analysis and Request for Written Comments Regarding New or Restructured Service for the International Drive Corridor (DFA). The DFA defined the I-Ride service and LYNX's intent to operate it. The DFA also incorporated by reference several prior studies. The DFA was sent to private providers, and requested submission of comments by April 25, 1994. The DFA provides an adequate description of how new and restructured service for the International Drive corridor would be evaluated. The DFA enumerates the pertinent service criteria (i.e., the number of vehicles proposed for the service, hours and days of service operation, the route and scheduled stops for the service, the qualifications and training of drivers and supervisors, and maintenance to be required). The DFA provides an adequate disclosure of the fully allocated costs of the proposed service. The DFA includes a breakdown of all of the cost pools which comprise the actual costs to LYNX of providing the service, including both direct costs and indirect costs. The submission of a private enterprise participation policy, including a complaint resolution process, is a requirement of receiving a federal transit assistance grant. The FTA's acceptance of the adequacy of a local private enterprise participation policy, including a complaint resolution process, is a precondition of receiving a federal transit assistance grant. As an FTA agency recipient, LYNX had in place a private enterprise participation policy, including a complaint resolution process, which conformed to the applicable federal requirements. On April 25, 1994, WTI filed its comments objecting to the I-Ride Project and requested a formal hearing prior to final agency action by the LYNX Board. On May 6, 1994, LYNX Executive Director issued an Operating Order to its drivers, dispatchers, and supervisors concerning the "Special Requirements of operators who elect to pick I-Ride division work assignments." Special training efforts were made to handle tourist relations and "ambassador training" was provided for I-Ride drivers before the service began. On May 9, 1994, LYNX gave Notice of Intent (NOI) to take action on May 12, 1994 to implement the I-Ride service, and to enter into an Interlocal Agreement with the District for the I-Ride bus service. The NOI failed to state the right or a time limit for a person substantially affected by the proposed action to request a formal hearing pursuant to Section 120.57(1), Florida Statutes. On May 12, 1994, prior to the LYNX Board meeting, WTI filed a formal Petition requesting a 120.57(1) hearing. At the May 12, 1994 Board meeting, WTI also appeared through counsel and requested a formal hearing. The request for hearing was initially denied. The LYNX Board proceeded to approve implementation of the I-Ride bus service to commence on June 26, 1994 and authorized entering into the interlocal agreement with the District. The LYNX Board erred in proceeding with implementation of the bus service. WTI is entitled to a hearing under Section 120.57(1) because it has demonstrated a "substantial interest" in this matter and is substantially affected by the proposed agency action, to wit: the implementation of the I- Ride services and interlocal agreement. The LYNX Board should have granted the petition and proceeded forward only as a party litigant. WTI's request for a formal hearing was granted by order, dated May 26, 1994, and a member of the LYNX Board was subsequently appointed as the hearing officer. The case was set for hearing. Upon denial of a motion to disqualify the presiding officer, the interlocutory order was appealed to the Fifth District Court of Appeal. The restructured I-Ride bus service was implemented and commenced service in mid-June, 1994 and is currently in operation. LYNX operates traditional fixed route local bus service with on-street stops. LYNX service does not use tour buses or shuttle vans, but rather regular city buses. The restructured LYNX service does not reach any area attractions that are not located on International Drive. LYNX buses do not stop or pick up or disembark passengers on private hotel property. The LYNX fare is 75 cents one way. WTI provides express "point-to-point" (i.e., door-to-door) shuttle service between a number of hotels located on International Drive and major attractions in the Orlando area. WTI's bus and shuttle van service picks up customers at hotels and delivers them to certain area attractions. Although WTI services a predetermined route, they only stop at hotels along that route if customers at the hotels have called ahead of time to make reservations. If there are no reservations at a given hotel, the shuttle van does not stop at that hotel and instead travels directly to its destination. In addition, the shuttle vans picks up customers only at such other locations on the route as are prearranged by the customers. WTI's bus service picks up customers from designated locations on International Drive and delivers those customers to the following locations only: Sea World, Universal Studios and Walt Disney World theme parks. Customers on WTI's buses disembark at the ultimate destination. Customers do not embark at any other stop along the route. The current fare charged by WTI for trips to Universal Studios and Sea World is $5.00 round trip and $3.00 one way per customer. The current fare to the Walt Disney World theme parks is $9.00 round trip and $5.00 one way per customer. The U.S. Department of Transportation defines the term "local bus service" as a bus service that picks up and discharges passengers at frequent, designated places (stops) on city streets. Such service does not require passengers to go to any particular destination stop. FTA Circular 9030.1A, Appendix A, Definitions. The service offered by LYNX is a "local bus service" as defined by the Department of Transportation. The U.S. Department of Transportation defines the term "gather service" as a service that collects passengers from many origins and delivers them to a specific point. Gather service passengers do not disembark at intermediate points on a route other than the designated final destination. FTA Circular 90.30.1A, Appendix A, Definitions. WTI's service falls within the Department of Transportation's definition of a "gather service." For purposes of federal transit planning and grants, a gather service does not compete with a local bus service. Applying the federal guidelines, the LYNX service on International Drive does not compete with WTI's service because the two are distinct kinds of service which serve different purposes and different markets. In addition, the LYNX service does not compete with WTI because there is very little overlap in actual destinations serviced by WTI and the LYNX service. The LYNX restructured service does not travel to Universal Studios, Walt Disney World theme parks or Belz Outlet Mall. The only destination serviced both by WTI and LYNX is Sea World. Sea World is geographically located near the end of International Drive. As a result, LYNX services Sea World and has done so for many years. Under its restructured plan, LYNX continues to service Sea World. The only change is the frequency with which LYNX buses service that stop. The competition that does result from service to Sea World was well known to WTI before it began its operations on International Drive in 1990. WTI has not shown substantial injury in fact because the bus services offered by WTI and LYNX are different and are not significantly competitive. WTI has not proven by a preponderance of evidence it has suffered actual economic loss as a result of the I-Ride service. The International Drive portion of WTI's total passengers in both 1993 and 1994 is less than 2 percent. WTI's total annual revenue from shuttle bus and point to point shuttle services was higher for 1994 than for 1993. In addition, WTI's average monthly revenue was also higher for 1994 than for 1993. Any losses suffered by WTI have not been proven to be attributable to the LYNX service. The daily average number of passengers taking a WTI shuttle bus or point to point shuttle from International Drive to Universal Studios during the latter half of the year was lower in 1994 than for the same period in 1993. Likewise, the daily average number of passengers taking a WTI point to point shuttle from International Drive to Belz Outlet Mall during the latter half of the year substantially decreased in 1994 from the 1993 level for the same time period. However, LYNX's restructured service does not go to the Belz Outlet Mall or Universal Studios. Therefore, WTI's decrease in passengers to Belz and Universal have not been shown to be the result of competition from LYNX's service. There is also strong direct correlation between WTI's 1994 revenue from shuttle bus and point to point shuttle services and the 1994 occupancy rates of hotels and motels on International Drive. When hotel and motel occupancy is up, so is WTI's revenue. Likewise, when hotel occupancy is down, WTI's revenue is also down. Changes in WTI's revenues correlate proportionately to changes in occupancy levels. LYNX's restructured service has had no apparent impact on the revenue generated by WTI from its International Drive services. Likewise, LYNX's I-Ride service has had no apparent impact on the number of passengers utilizing the transportation services of WTI on International Drive. The service proposal offered by WTI in response to the Draft Analysis is incomplete. WTI has not demonstrated significant cost efficiencies which would be realized by the LYNX by contracting out the service. The level of demand for mass transportation services in the International Drive corridor has grown to the point where increased service capacity is necessary. As the Regional Transportation Authority, LYNX is responsible for providing an integrated, efficient, and comprehensive public transportation system throughout the three-county area. LYNX is the only provider of scheduled mass transportation fixed route bus service in the International Drive corridor. LYNX operated eight fixed route scheduled bus routes serving the International Drive corridor prior to 1994. Based upon consideration of all of the evidence it is concluded that it would be more efficient for LYNX to directly operate the proposed restructured mass transportation fixed route bus service for International Drive. From the evidence of record, the proposed restructured service should be based upon the LYNX staff recommendation contained in the Final Feasibility Analysis and Staff Recommendation, dated May 12, 1994, and consisting of the following: The proposed new or restructured service would provide fixed route local circulator service between a terminal at the bus/shuttle/taxi drop off location in the Sea World complex near Sea Harbor Drive and a proposed terminus on American Way near the International Drive/ Kirkman Road intersection (see Exhibit H to the Draft Analysis for a map of the proposed route alignment). Southbound buses would operate along Sea Harbor Drive to International Drive, through several key employment, residential, commercial and tourist activity centers to the Kirkman Road terminal, making approximately 25 local stops. Northbound buses would proceed along International Drive from Kirkman Road to American Way and a temporary terminal at the Sea World complex. The initial Northbound route would make approximately 25 stops. As set forth in the Final Feasiblility Analysis the following service characteristics and criteria for the proposed new or restructured service on International Drive should include: The new service shall be implemented as soon as practicable. The proposed International Drive service will be provided 365 days a year from 5:00 a.m. to 2:00 a.m. The proposed level of service is five (5) to ten (10) minute headways. The International Drive service alignment shall be as depicted in Exhibit I of the Draft Analysis. The vehicles utilized for the International Drive service shall be new standard 30 foot coaches. A peak fleet of 12 coaches shall be provided with an additional provision of 4 coaches as spares. The system will require 2.5 terminal supervisors/starters who will be equipped with a van type vehicle. All maintenance and dispatch responsibilities shall be coordinated through LYNX Central Dispatch and Maintenance, currently located at 1200 West South Street, Orlando, Florida. All operators and supervisors must go through a special training program and must meet the qualifications required of LYNX drivers and supervisors. All vehicles must have equipment compatible with the LYNX radio communications program. LYNX must approve any fare/transfer policy as well as marketing strategy and/or policy. There shall be a formal maintenance and preventive maintenance program for the fleet and facilities which meets LYNX requirements. All labor, insurance, liability, maintenance, operations, safety systems, general reporting and recording, financial reporting and audits, and personnel/equal opportunity employment regulations required by or of LYNX must be met by the new system. All applicable licensing requirements, federal, state, and local, must be met. New or restructured fixed route scheduled bus service is necessary to meet the changing transportation requirements in the International Drive corridor. The service criteria enunciated in the Final Analysis constitutes the appropriate base-line to evaluate the dynamic service requirements of the International Drive corridor during a 2-year test period. The information provided to demonstrate the preparedness of private sector operators to undertake International Drive corridor service within the parameters of the service criteria which have been established is inadequate. No thorough, adequate, or credible comparison of costs and benefits has been offered to establish any potential benefits to contracting out the new or restructured service in the International Drive corridor. New or restructured fixed route scheduled bus service in the International Drive corridor should be established pursuant to the service criteria and alignment identified in the Final Analysis and be operated directly by LYNX as an in-house service. Staff should be authorized to enter into interlocal agreement with the District for said services.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that LYNX enter a final order which finds that: 1). WTI's is a substantially affected party and entitled to a formal hearing, pursuant to Section 120.57(1), Florida Statutes. LYNX's 1992 application for "Section 9" federal grant funds complied with the planning and grant requirements of the Federal Transit Act. LYNX complied with the Private Enterprise Participation requirements of the FTA and federal law. The level of demand for mass transportation service in the International Drive Corridor requires that increased service capacity be provided. LYNX can best provide the increased service capacity through its restructured service under the criteria set forth in the Final Feasibility Analysis and Staff Recommendation. WTI's request for attorney's fees and costs is denied. DONE and ENTERED this 28th day of August, 1995, in Tallahassee, 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 28th day of August, 1995.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McKibben, an Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing file was predicated upon Respondent’s notice of withdrawal without prejudice of protest. Accordingly, it is hereby ORDERED that the Dealer Agreement between Triumph Motorcycles (America), Ltd. and Con’s Cycle Center, Inc. d/b/a House of Power is terminated. DONE AND ORDERED this day of July, 2009, in Tallahassee, Leon County, Florida. A. FORD, Directo Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division Boon Vehicles this ay of July, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF:vlg Copies furnished: Alex Kurkin, Esquire Kurkin Brandes, LLP 4300 Biscayne Boulevard, Suite 305 Miami, Florida 33137 Melissa Fletcher Allaman, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432-02 Tallahassee, Florida 32399-0504 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS TRIUMPH MOTORCYCLES (AMERICA), LTD., Petitioner, Case No. 09-2448 vs. CON’S CYCLE CENTER, INC. d/b/a HOUSE OF POWER, Respondent. / RESPONDENT’S WITHDRAWAL WITHOUT PREJUDICE OF PROTEST Respondent, CON’S CYCLE CENTER, INC. d/b/a HOUSE OF POWER withdraws its Petition for Determination of Unfair Discontinuation Pursuant to Section 320.641(3), Florida Statutes. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was furnished (via US Mail or Email) on this 13" day of July, 2009 to: Jennifer Clark, Office of the Hearing Officer, Room A-308, Neil Kirkman Building, 2900 Apalachee Parkway, Tallahassee, Florida 32399, clark.jennifer@hsmv.state.fl.us, Melissa Allaman, Esq., Neilson, Mullins, Riley & Scarborough, LLP, 3600 Maclay Blvd., South, Suite 202, Tallahassee, Fl 32312-1267 melissa.allaman@nelsonmullins.com and Andrew Bertron, Esq., Nelson, Mullins, Riley & Scarborough, LLP, 3600 Maclay Bivd., South, Suite 202, Tallahassee, Fl 32312-1267, andrew.bertron@nelsonmullins.com. KURKIN BRANDES, LLP Attorneys for Respondent 4300 Biscayne Boulevard, Suite 305 Miami, Fiorida 33137 Telephone: 305-929-8500 Facsimile: 305-675-0564 By: Kurkirl’ ESq. FL Bar No. 899038 Filed July 13, 2009 12:41 PM Division of Administrative Hearings.
The Issue Whether Martin County Comprehensive Plan Amendment 14-6, adopted by Ordinance No. 965 on December 16, 2014, is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact The Parties and Standing Petitioner, Martin County Land Co. (Petitioner), owns real property and operates a business in Martin County. Respondent, Martin County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. On December 16, 2014, the County adopted Comprehensive Plan Amendment 14-6 (the Plan Amendment), which proposes to revise Chapters 2, 4, 10, and 11 of the County's Comprehensive Growth Management Plan (Comprehensive Plan). Petitioner submitted written and oral comments to the County concerning the Plan Amendment during the period of time between transmittal and adoption of the Plan Amendment. Background and Existing Conditions The County's original Comprehensive Plan was adopted in 1990 and was challenged by the Department of Community Affairs (DCA) as not "in compliance." Since its inception, the Comprehensive Plan has been the subject of substantial litigation, most of which has little relevance hereto. At least once every seven years, local governments are required to undertake an evaluation and appraisal of their comprehensive plans. See § 163.3191(1), Fla. Stat. During this evaluation, local governments must amend their plans to reflect changes in state requirements. See § 163.3191(2). The statute also encourages local governments to comprehensively evaluate changes in local conditions, and, if necessary, update their plans to reflect said changes. See § 163.3191(3). Local government plan amendments made pursuant to section 163.3191 are commonly referred to as "EAR amendments." The County adopted its most recent EAR amendments in 2009, following an evaluation and appraisal of the Comprehensive Plan and changes in state requirements. The 2009 EAR amendments were challenged by a number of parties as not "in compliance." Administrative challenge to the EAR amendments concluded, and the amendments became effective, in 2011. One of the signature features of the County's Comprehensive Plan is the urban service districts (USDs). The USDs were created as part of the Comprehensive Plan after 1990. The purpose of the USDs is to regulate urban sprawl by directing growth to areas where urban public facilities and services are available, or programmed to be available, at appropriate levels of service. The County refers to this approach as an "urban containment policy." Public urban facilities and services are defined by the Comprehensive Plan as "[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." Notably, neither package wastewater treatment plants (package plants) nor onsite wastewater treatment systems (septic systems) are included within the definition of public urban facilities. Commercial, industrial, and urban-density residential development, as well as future development requiring public urban facilities, are concentrated within the primary USD. With few exceptions, development within the primary USD is required to connect to regional wastewater systems. The existing Comprehensive Plan allows interim development on package plants only if the developer agrees to connect to regional wastewater systems when those systems become available. With very limited exceptions, septic systems are not permitted for new residential development within one-quarter mile of a regional wastewater system. Rural development at one unit per two acres (one/two acres) and estate development not exceeding one unit/acre are concentrated in the secondary USD where a reduced level of public facilities are programmed to be available at appropriate levels of service. A minimum lot size of one-half acre applies to all development. Regional sewer service may be extended to serve residential properties exceeding the one-half acre minimum lot size, and where lot sizes are inappropriate for septic systems. Development outside the USDs is limited to low- intensity uses, including Agricultural (not exceeding one unit/20 acres), Agricultural Ranchette (not exceeding one unit/five acres), and small-scale services necessary to support rural and agricultural uses. Some residential estate development is allowed on the fringe of the USDs at one unit/acre. Regional sewer service may not be extended outside the USDs, and package treatment plants are allowed only to serve a limited category of commercial development titled "Expressway Oriented Commercial Service Centers." The existing Comprehensive Plan does not establish a standard septic system flow rate. The County follows the state standards established in Florida Administrative Code Rule 64E- 6.008, which provide for a residential rate of 10,000 gallons per day (gpd) and a rate of 5,000 gpd for non-residential uses. Expressway-Oriented Transit Commercial Service Centers In 1985, in anticipation of the construction of Interstate 95 (I-95) through the County, the County created an overlay land use category, Expressway-Oriented Transient Commercial Service Centers (Expressway Nodes), "to recognize the immediate and unique needs of the public traveling through the County." The overlay is limited to the I-95 interchanges with County Road 714 (CR 714 or SW Martin Highway), located in the northern central area of the County; CR 76 (CR 76 or Kanner Highway), located in the western urbanized area of the County; and CR 708 (CR 708 or SE Bridge Road), located in the southwestern area of the County. The overlay is not self-implementing. Future Land Use Element (FLUE) Policy 4.13.A8(5), governing Expressway Nodes, includes a number of requirements for a proposed development to qualify for the designation. Notably, an applicant for development at one of the nodes must submit a market feasibility analysis demonstrating need by the traveling public for the proposed services, submit a Planned Unit Development (PUD) zoning application, and fully fund all urban services needed to serve the development. Further, no Expressway Node will be approved outside the primary USD unless the developer provides shared water and wastewater facilities for all subsequent development at the same interchange. To qualify, the development parcel must be a minimum of five gross acres, directly accessible from a major arterial roadway, and located in whole within 1,320 feet of an access ramp and within 1,320 feet of the intersecting arterial roadway. Unless proven safe through an engineered traffic study, the access point may not be closer than 660 feet from an access ramp. Of the three interchanges, only Kanner Highway, and that portion of SW Martin Highway east of the I-95 interchange, are designated major arterial roadways. Southeast Bridge Road and SW Martin Highway west of the interchange, are minor arterial roadways. The County must amend its Comprehensive Plan in order to reclassify a minor arterial to a major arterial. A roadway is typically reclassified from minor to major arterial when some threshold of traffic volume (based on trip counts) is achieved. No evidence was introduced to establish the particular threshold which distinguishes a minor from a major arterial. No evidence was introduced to establish the length of time for which the segment of SW Martin Highway east of the interchange has been classified a major arterial, thus meeting a primary threshold for Expressway Node development of the eastern quadrants of the interchange. Of the three interchanges, commercial services for the traveling public are located only at Kanner Highway. The interchange hosts at least three gas stations, a variety of fast-food and dine-in restaurants, and two hotels. Commercial services for the traveling public are available at the I-95 interchange at Indiantown Road in Palm Beach County, 16 miles to the south of the Kanner Road interchange. Services are also available 18 miles north of Kanner Road at the I-95 interchange at Gatlin Boulevard in St. Lucie County. Services for the traveling public are also available at a rest stop on I-95 in Martin County. Petitioner challenges, on several grounds, the deletion of FLUE Policy 4.13.A8(5), which provides for the Expressway Nodes overlay category. Data and Analysis First, Petitioner argues the deletion of FLUE Policy 4.13.A8(5) is not supported by data and analysis, as required by section 163.3177(1)(f). That section requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government that may include . . . surveys, studies, community goals and vision, and other data available at the time of adoption" of the plan amendment. Id. The Expressway Nodes designation pre-dates adoption of the USDs in 1990. The I-95 interchanges at SW Martin Highway and Bridge Road are located outside the USDs and the property at those intersections is designated for Agricultural land use. Thus, commercial development at those interchanges is inconsistent with the County's urban containment strategy and is an exception to the prohibition of urban uses outside the USDs. Further, SE Bridge Road functions as a minor arterial roadway, a designation which has not changed in the 30 years since the Expressway Nodes category was created. As such, the interchange does not qualify for commercial development under the restrictions of the policy itself. The same is true of SW Martin Highway west of I-95. While SW Martin Highway is a major arterial east of the I-95 interchange, no developer has come forward with a proposal to develop any service business at that interchange. According to historic traffic counts from the I-95 interchanges at both Kanner Road and SE Bridge Road, traffic has generally increased both northbound and southbound on I-95. Between 1998 and 2013, average annual daily trips (AADT) increased by 30,000 on I-95 southbound from Kanner Highway and 14,500 southbound from SE Bridge Road. In that same period, AADT trips eastbound on Kanner Highway increased by 16,500, and eastbound on SE Bridge Road by 1,700. Similar increases in trip counts occurred at the interchange ramps between 2009 and 2013. At Kanner Highway, AADT counts on the northbound off ramp increased by 2,000, southbound off ramp by 1,000, northbound on ramp by 600, and southbound on ramp by 1,800. According to the Petitioner's expert, this general trend will eventually lead to congestion of the service facilities at Kanner Road, which will cause motorists to either skip the Kanner Road exit altogether, or return to I-95 in search of another exit with the needed services. The data indicate similarly-increased AADTs at the I-95 interchange at Indiantown Road, the next interchange south of Kanner Road where services and facilities are available to the traveling public. Petitioner's expert likewise concluded that services at the Indiantown interchange are "pretty much maxed-out" and would likely also become congested in the future. AADT trip counts are data which were readily available to the County from the Department of Transportation (DOT) when the Plan Amendment was adopted. Petitioner argues that the Plan Amendment ignores this readily-available data by deleting the Expressway Nodes category. Petitioner's argument assumes a couple of factors. First, it assumes the County has an obligation to provide services to the public traveling through the County. Neither the Comprehensive Plan, nor the Community Planning Act, requires the County to provide said services. Second, it assumes that increased traffic counts through the interchanges directly correlate with increased demand on the services located there. Petitioner introduced no evidence to support this assumption. Increased trips through the interchange could be attributed to increased employment in the urbanized area of the County from residents in Palm Beach or St. Lucie Counties, or from rural areas within Martin County. The County's witnesses agreed that I-95 traffic counts would be relevant to the County's determination to delete the Expressway Nodes designation. However, the evidence does not support a finding that retaining the Expressway Nodes overlay is the only appropriate reaction to that data. Assuming Martin County was required to provide services to the traveling public, Petitioner did not establish the capacity of said services needed to serve the public, thus requiring the County to maintain the overlay. With the exception of hotel services, Petitioner introduced no evidence regarding a level of service or the utilization rate of the services provided at either the Kanner Road or Indiantown interchanges. With regard to hotels, Petitioner introduced hotel occupancy rates published by Smith Travel Data, a hospitality- industry source of statistics on occupancy and vacancy rates. In March 2015, excluding the beach hotels, the County hotels had an aggregate occupancy rate of 92 percent. The average annual occupancy rate of County hotels is in excess of 72 percent. Elimination of the Expressway Nodes overlay is supported by the County's urban containment strategy, as well as its history relative to package treatment plants. The SW Martin Highway and SE Bridge Road interchanges are outside the primary USD where regional sewer service is available. As long as they remain outside the primary USD, the option for wastewater treatment at those locations is limited to package treatment plants. The County has a clear policy prohibiting new package treatment plants. Existing FLUE Policy 4.7A.4 prohibits all package treatment plants outside the USDs except to serve development at the Expressway Nodes. Development at the Expressway Nodes is the only exception to the prohibition. The Plan Amendment deletes FLUE Policy 4.7A.4, thus eliminating the exception to the prohibition on package treatment plants, which prohibition is preserved elsewhere. In 1984, when John Polley, now Director of Utilities and Solid Waste, began working for the County, there were 89 private package treatment plants. In 1990, the County began a campaign to eliminate package treatment plants. Fifty-three package treatment plants were eliminated after being identified as threats to the Indian River Lagoon, pursuant to the Indian River Lagoon Act. Another 17 were eliminated because they did not comply with Department of Environmental Protection (DEP) standards, or had become mechanically obsolete and prone to failure. The County has focused on extending sewer service in the primary USD in order to reduce the need for new package treatment plants to serve development. By 2006, the County had eliminated 70 package treatment plants. There are only 19 package treatment plants in the County, and few, if any, have been approved and permitted in the County since 1990. Existing FLUE Policy 4.7C.2 is titled "Evaluation of urban uses near I-95 interchanges," and requires the County to "have completed an evaluation of potential urban uses in the vicinity of the I-95 interchanges with CR 708 and CR 714" by 2012-2013, and requires that "[t]he results of these studies shall be incorporated into the [Comprehensive Plan] via Plan Amendment." The Plan Amendment deletes FLUE Policy 4.7C.2. Martin County Principal Planner, Samantha Lovelady, produced a memorandum on Expressway Nodes in support of the Plan Amendment. The memorandum does not state that it was prepared to implement FLUE Policy 4.7C.2, nor did Ms. Lovelady testify that she prepared it pursuant to that policy. To the extent that the memorandum "evaluates potential urban uses" at the specified intersections, it concludes that the services at Kanner Highway, the rest area on I-95, and services available along I-95 just north in St. Lucie County and just south in Palm Beach County, all of which developed since the policy was adopted in 1985, have rendered the designation unnecessary. The memorandum concludes that the "original goal of this policy [to provide services to the public traveling through the County on I-95] has been achieved." FLUE Section 4.2.A(9)(b) of the Comprehensive Plan finds that based on an evaluation of the Future Land Use Map (FLUM) in 2009, the "raw data appear to show a significant deficit of commercial land necessary to accommodate economic needs." Further, the section provides, "[a]ny attempt to remedy the deficits should be based on geographic area in order to reflect sustainability principles and provide population centers with necessary services in an orderly and timely fashion." Petitioner argues the County deleted the Expressway Nodes overlay despite this data showing a deficit of available commercial property. The lands within the Expressway Nodes overlay have a FLUM designation of Agriculture, not Commercial. Further, there are several preconditions necessary for any of the property at those interchanges to be developed for commercial use, including a market demand study, PUD rezoning approval, and in the case of SE Bridge Road and SW Martin Highway west of the interchange, a required plan amendment to reclassify those roadways as major arterials. The evidence does not support a finding that elimination of the Expressway Nodes overlay would remove property from the County's commercial land use inventory. Furthermore, this section speaks to providing necessary services to "population centers." Neither of the I-95 interchanges at SE Bridge Road or SW Martin Highway is a population center. Internal Consistency Petitioner further challenges elimination of the Expressway Nodes as contrary to section 163.3177(2), which requires all elements of a comprehensive plan to be consistent with each other. Petitioner alleges that the Plan Amendment creates an inconsistency with FLUE Goal 4.2 "[T]o alleviate the negative impacts of inadequate public facilities and services and substandard structures for affected areas in the County." Petitioner's expert testified that removal of the Expressway Nodes designation will result in a lack of facilities to meet the needs of future travelers "as demand begins to evolve." The objectives and policies implementing FLUE Goal 4.2 speak directly to areas in need of redevelopment, including creation of Community Redevelopment Areas. There is no evidence to support a finding that the SW Martin Highway and SE Bridge Road interchanges are areas in need of redevelopment. Next, Petitioner contends the Plan Amendment is inconsistent with FLUE Policy 4.7A.5, which provides, in pertinent part: Policy 4.7A.5. Development options outside urban service districts. Martin County shall provide reasonable and equitable options for development outside the urban service districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. A small-scale service establishment shall be defined as a small, compact, low intensity development within a rural area containing uses and activities which are supportive of, and have a functional relationship with the social, economic and institutional needs of the surrounding rural areas. Petitioner's expert provided only conclusory testimony that the removal of the Expressway Nodes designation is inconsistent with this policy. FLUE Policy 4.7A.5 requires the County to allow some opportunity for development outside the USDs. There is no evidence on which to base a finding that the Expressway Nodes designation is the only allowance for development outside the USDs, thus removal of the designation does not conflict with this policy. Further, the Expressway Nodes designation, by its plain language, was created to serve the needs of the public traveling through the County. Deletion thereof does not conflict with a policy requiring some development to serve the needs of rural residents and businesses. FLUE Goal 4.8 requires of the County, as follows: To encourage energy conservation and promote energy-efficient land use and development that implements sustainable development and green building principles. Petitioner contends the Plan Amendment is inconsistent with this goal because travelers faced with congested facilities will travel further into the County along the intersecting roadways to find the desired services, thus increasing traffic and travel times, as well as use of hydrocarbons. The expert's testimony on this issue conflicts with his opinion that travelers faced with congested interchanges will either skip the interchange altogether, or re-enter I-95 to look for services at another interchange. On this issue, the expert's opinion is not accepted as credible. It is unreasonable to assume that a traveler would exit I-95 at an interchange which advertises no services and travel some distance on the crossroad in search of said services. Further, Goal 4.8 is implemented by objectives and policies which provide guidance for the County's land development regulations and which encourage green building standards and renewable energy resources. Petitioner appears to be taking the goal out of context. Finally, Petitioner cites FLUE Goal 4.10 and Policy 4.10B.2 as inconsistent with the Plan Amendment. The provisions read as follows: Goal 4.10. To provide for adequate and appropriate sites for commercial land uses to serve the needs of the County's anticipated residents and visitors. * * * Policy 4.10B.2. Criteria for siting commercial development. Commercial development shall be strategically directed to areas best able to accommodate its specific requirements of land area, site, public facilities and market location. The aim is to promote efficient traffic flow along thoroughfares, achieve orderly development and minimize adverse impacts on residential quality. Members of the public traveling through the County to other destinations are neither anticipated residents of, nor anticipated visitors to, the County. The Expressway Nodes designation was created to serve the "immediate and unique needs of the public traveling through the County." At hearing, Petitioner argued that the Plan Amendment was also inconsistent with provisions of the Economic Development Element of the County's plan. Inasmuch as Petitioner did not plead that issue in its Petition for Formal Administrative Hearing, the undersigned does not make any findings relevant thereto.3/ Balance of Uses Section 163.3177(1) provides, in pertinent part, as follows: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides as follows: The amount of land designated for future planned uses shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns, such as antiquated subdivisions. The amount of land designated for future land uses should allow the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business and may not be limited solely by the projected population. The Plan Amendment does not change the amount of land designated for any particular FLUM category. The Plan Amendment makes no change to the FLUM. Assuming, arguendo, that elimination of the Expressway Nodes overlay changes the amount of land designated for commercial use, that single change does not render the Comprehensive Plan out of balance or unable to foster vibrant, viable communities. The public traveling through Martin County to other destinations are neither permanent nor seasonal residents or businesses. Wastewater Treatment Options The Plan Amendment makes a number of changes in the wastewater treatment options available to serve development in the County. Within the primary USD, FLUE Policy 10.1A.2 requires all new subdivisions of less than one acre to be served by regional sewer. Under the existing Comprehensive Plan, only new subdivisions within the primary USD exceeding two units/acre must connect to regional sewer systems. FLUE Policies 4.7B.1 and 10.1A.2 prohibit the extension of regional sewer service into the secondary USD. Thus, new development in the secondary USD is limited to septic service (because package treatment plants are eliminated in another section of the Plan Amendment). FLUE Policy 10.2A.7 increases the threshold size of lots within new subdivisions which may be developed on septic systems. Where the existing Comprehensive Plan allows new subdivisions of half-acre lots to develop on septic, the Plan Amendment requires a minimum one-acre lot. Further, new development qualifies only if it is more than one-quarter mile from regional sewer system collection or transmission lines. Within the primary USD, approximately 100 undeveloped lots are located more than one-quarter mile from a connection point to the County's regional sewer service. FLUE Section 10.2.B prohibits development within the USDs on septic systems where regional sewer systems are available (i.e., within one-quarter mile of a regional service line). The same policy limits development on septic systems outside the USDs to "low density residential as permitted by the underlying future land use designation and small scale service establishments necessary to support rural and agricultural uses." FLUE Policy 10.1C.4 prohibits approval of development orders "where adequate water and sewer facilities cannot be provided." Similarly, FLUE Policy 10.1A.10 provides that development "shall not be approved where adequate regional water and sewage facilities cannot be provided, unless the development can meet the requirements for a [septic] system found in Policy 10.2A.7." Finally, FLUE Policy 10.2A.8 limits the maximum flow of septic systems to 2,000 gpd per lot. Taken together, the changes generally limit the type and density of future development allowed in the County. Within the primary USD, the Plan Amendment requires more dense development to connect to regional sewer systems while limiting use of septic systems to the lowest density development. Overall, the Plan Amendment encourages higher density future development and prioritizes regional service. These changes are consistent with the County's existing "urban containment policy" concentrating urban development within the primary USD. In the secondary USD, the Plan Amendment restricts future development to low density (one-acre lots) where regional service is not available within one-quarter mile, and requires all future development within one-quarter mile to connect. These changes have little practical effect because most of the secondary USD is slated for future development at a rural density of one unit/two acres, with some estate densities at one unit/acre. Outside the USDs, the Plan Amendment limits future development to low density residential, and limited commercial development to serve rural and agricultural needs, on septic systems. Petitioner's challenge focuses primarily on, and the majority of evidence introduced related to, the 2,000 gpd limit on septic tank flow. Petitioner challenges FLUE Policy 10.2A.8 and Section 10.2.B.2 on a number of grounds, each of which is taken in turn. Data and Analysis Section 163.3177 requires plan amendments to "be based upon relevant and appropriate data and an analysis by the local government." The statute provides, "[t]o 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 adoption of" the plan amendment at issue. Id. Further, "data must be taken from professionally accepted sources." § 163.3177(1)(f)2. The statute does not require original data collection by local governments. A septic system flow rate is the liquid flow rate of non-solid wastes (effluent) coming out of the residential or non-residential septic system after initial treatment. Septic systems are typically sized based on the flow rate. When the Comprehensive Plan was first adopted in 1982, the County adopted a maximum flow rate of 2,000 gpd. The 2,000 gpd standard was also the standard for the State of Florida at the time it was adopted by Martin County. In 1993, the Legislature amended the state standard to allow maximum flows of 10,000 gpd for all uses. See ch. 93-151 § 1, Fla. Laws. In 1998, the state standard for commercial facilities was reduced to 5,000 gpd, where it remains today. See ch. 98-151, § 7, Fla. Laws. Martin County did not adopt the state standard when it changed in either 1993 or 1998. The County maintained its lower maximum rate based on experience with septic system failures associated with poor maintenance, particularly of larger systems and commercial establishments, such as restaurants. The state standard was adopted by the County in its 2009 EAR amendments, which became effective in January 2011. Thus, the 2,000 gpd standard governed development in Martin County for almost 30 years. Despite the lengthy history of the 2,000 gpd standard in Martin County, the undersigned must find that the 2009 change to the higher state standards were supported by data and analysis since that change was found "in compliance" in 2011. Thus, the 2015 change back to the 2,000 gpd standard must likewise be based on data and analysis. The County identified protection of its ground and surface water bodies from contaminants associated with septic system effluent as the main reason for the change. In response to the Clean Water Act and the Florida Watershed Restoration Act, DEP implemented the Total Maximum Daily Load (TMDL) program. The program identifies water bodies which are "impaired" for a particular pollutant (i.e., exceeds the water body's capacity to absorb the given pollutant and still function for its designated use), and requires development of Basin Management Action Plans (BMAPs) to restore impaired waters. There are 32 impaired water bodies in Martin County. Among them are the St. Lucie Estuary and the Indian River Lagoon, which is part of the estuary. Both the estuary and the lagoon are impaired for nitrogen, among other contaminants. The lagoon is a brackish-water environment in which phosphorus occurs in high levels. The growth of algae and other microorganisms is limited in that environment by the availability of nitrogen in the ecosystem. Nitrogen is a "limiting factor." When too much nitrogen is present, algae and other microorganisms become overgrown. An overgrowth of algae consumes excessive amounts of oxygen and dissolved oxygen in the marine environment, a primary indicator of water quality. DEP adopted the TMDL for total nitrogen demand for the estuary in March 2009. The BMAP developed for the estuary includes both construction of stormwater management projects and conversion of particularly-identified developments from septic systems to regional wastewater service. In March 2013, the County identified first priority stormwater projects at a cost of $15,790,000, and second priority projects at a cost of $17,990,000. The County also identified ten subdivisions to prioritize for conversion from septic to sewer service at a cost of $88,140,000. Together with identified flood control projects, in 2013, Martin County estimated a grand total of $142,445,000 in projects to implement the BMAP. The County has extended sewer service to approximately 1,800 properties, converting approximately eight developments from septic to sewer service. Effluent from septic systems is only one source of nitrogen pollution to surface water bodies. Agriculture (from both fertilizer and animal waste), residential fertilizer, pet waste, and "atmospheric" nitrogen, are other sources of nitrogen pollution. A 2009 study by the Department of Health concluded that management of nitrogen sources, including septic systems, "is of paramount concern for the protection of the environment."4/ Initial treatment of raw wastewater occurs in the septic tank chamber, where solids settle to the bottom and liquids are separated from the solids. In this anaerobic (absent oxygen) state, the wastes are converted mainly to ammonia and ammonium (inorganic nitrogen). Septic tank effluent is then discharged to a drain field where nitrification occurs in an aerobic environment. Nitrification converts ammonium to nitrates in oxygen-rich unsaturated soils. Soils do not absorb nitrates, and much of the nitrates migrate to ground and surface waters causing contamination. If nitrogen remains in the oxygen-rich soil, it can be converted to nitrogen gas and eliminated through the atmosphere through the denitrification process. Carbon and other minerals must be present in the soil for denitrification to occur. Denitrification is also a slow process that occurs only in the vata zone, the oxygen-rich soil between the bottom of the drainfield and the top of the water table. The data and analysis, as well as the testimony presented at the final hearing, conflicted on the issue of how much nitrogen is removed from septic tank effluent through denitrification in Southeast Florida, where soils are well- drained, but the water table fluctuates seasonally. In September 2013, a study prepared for DEP estimated the amount of nitrogen load from removed septic systems to surface water bodies in Martin County, as well as the cities of Stuart and Port St. Lucie. The study "shows that the load estimates are strongly correlated with nitrogen concentrations in surface water quality data, suggesting that septic load is a significant factor for water quality deterioration."5/ In Martin County, where septic system removal was small scale, the study traced a majority of the removed nitrogen to specific water bodies.6/ The study found that the amount of nitrogen load is controlled by three factors: (1) length of flow path; (2) flow velocity; and (3) drainage conditions. The following excerpt is instructive: Figure ES-4 shows that the load estimate decreases with the mean length of flow paths; the two largest loads per septic system are for North River Shores and Seagate Harbor [in Martin County] where the flow paths are the shortest. . . . This is reasonable because longer flow paths result in more denitrification and thus smaller load estimate. In line with this, larger flow velocity corresponds to shorter travel time and thus smaller amount of denitrification and larger amount of load. . . . Figures . . . indicate that the setback distance should be determined not only by the distance between septic systems to surface water bodies but also by groundwater flow conditions (the distance probably plays a more important role here). The groundwater flow conditions are closely related to soil drainage conditions at the modeling sites. An October 2013 paper by Kevin Henderson, P.E., reviewed four studies between 1993 and 2011, and concluded that "[n]one of the studies are specific enough to [Southeast Florida] soils/groundwater aquifer to be definitive as regards nitrate nitrogen's fate once it becomes part of groundwater below a drainfield."7/ Henderson maintains that the Southeast Florida groundwater aquifer is low-flux. Henderson further reported that studies have shown that anticipated nitrogen and total nitrogen groundwater contamination "is consistently absent at distances of more than 40 feet from drainfields."8/ The County's soil and water expert, Catherine Riiska, disagreed, maintaining the Southeast Florida water table is seasonally-dependent, and fluctuates greatly between the wet and dry seasons. During the wet season, Ms. Riiska explained the drainage system is insufficient to keep the water table low during the rainy season. When the water table is high, there is little opportunity for denitrification and nitrates can be pulled directly into the water flow. While the experts disagreed as to how much nitrogen may be removed from septic tank effluent in Southeast Florida, the experts agreed that limiting the amount of potential flow from septic tanks will limit the amount of potential discharge, especially in the event of a failure of the system. Petitioner contends that the 2,000 gpd standard does not react appropriately to the data and analysis because it does not take into account factors other than effluent volume that contribute to total nitrogen loading from septic systems, such as distance to surface water bodies and size of area served by the septic system. The 2,000 gpd standard applies equally throughout the County regardless of location in proximity to surface water bodies. Septic systems can be regulated based on either flow or loading. Loading would be expressed in gallons per measure of property, such as gallons per acre per day. The County's Director of Utilities and Solid Waste, John Polley, agreed that, in terms of environmental impact, loading is a superior measure to flow rate. The County is not required to adopt the superior measure for environmental protection, but to adopt a measure which is supported by data and analysis. Finally, Petitioner contends that the 2,000 gpd standard is not based on data and analysis because it was chosen arbitrarily, without considering some less restrictive flow limit such as 3,000 gpd or 4,000 gpd. The 2011 change from the 2,000 gpd flow limitation to the higher maximum state standard was not supported by the Martin County Health Department. Robert Washam, a retired Environmental Administrator for the Martin County Health Department with more than 30 years' experience permitting and regulating septic systems in Martin County, testified and submitted in writing to the County as to his support for the change to 2,000 gpd. He iterated several reasons for his support, including the serious public health and environmental issues that can result from the failure of large septic systems; the documented failures of large systems inside the primary USD resulting in raw sewage flowing into wetlands, ditches, and eventually rivers; and the unsuitable soils and water table conditions for large septic systems in rural areas of the County.9/ Section 381.0065(4)(e) provides as follows: (e) Onsite sewage treatment and disposal systems must not be placed closer than: Seventy-five feet from a private potable well. Two hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of greater than 2,000 gallons per day. One hundred feet from a public potable well serving a residential or nonresidential establishment having a total sewage flow of less than or equal to 2,000 gallons per day. Fifty feet from any nonpotable well. Petitioner's wastewater expert, Richard Creech, acknowledged in his testimony that these thresholds reflect that there is an opportunity for contamination of the public water wells by the larger septic systems. Mr. Creech also agreed that, if a septic system is not properly maintained, functioning, designed, and sited, it may present a problem to surface waters. Petitioner did not prove that the 2,000 gpd standard would not protect ground and surface waters from nitrogen loading. That issue is clearly a subject of fair debate. Balance of Uses/Operation of Real Estate Markets Section 163.3177(1), provides, in pertinent part: The comprehensive plan shall provide the principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the area that reflects community commitments to implement the plan and its elements. This section applies to the County's Comprehensive Plan as a whole. No evidence was introduced to support a finding that the Comprehensive Plan, as a whole, fails to provide principles, guidelines, standards, and strategies for the orderly and balanced future economic, social, physical, environmental, and fiscal development of the County. Section 163.3177(6)(a)4. provides that the amount of land designated for future planned uses "shall provide a balance of uses that foster vibrant, viable communities and economic development opportunities and address outdated development patterns." Petitioner contends the County failed to consider the economic impact of reducing the septic system flow rate to 2,000 gpd. Petitioner introduced no evidence regarding the effect of the 2,000 gpd limit on the future economic development of the County, only that the County failed to conduct economic analysis thereof. While the County conducted no formal economic analysis of the change, the County clearly considered the effect of that limit on type and size of future development in the County. The 2,000 gpd flow limitation was not a significant development constraint during the nearly 30 years that it was in effect. Septic system size determinations are governed by Florida Administrative Code Rule 64E-6.008. The rule associates a specific gpd rate for each type of commercial, industrial, and residential establishment, based on factors such as the number of seats or patrons, number of employees, and number of bedrooms. A four-bedroom home up to 3,300 square feet can be developed on a septic system with a 400 gpd flow rate, well within the 2,000 gpd flow established under the Plan Amendment. A 2,000 gpd flow rate will accommodate a 650-seat church without regular meal service (or 580 seats with weekly meal preparation), a 200-room hotel, and a 13,000 square foot office building. The substantial expansion of the County's regional wastewater system inside the primary USD has reduced the prospective amount of future development on septic systems. Approximately 100 acres designated for non-residential use are beyond one-quarter mile from sewer availability from Martin County. All other future non-residential development in the primary USD will be unaffected by the septic system flow limitation. The flow limitation does not prohibit more intensive non-residential development in the primary USD. Rather, it encourages developers to expend funds to connect to the regional system so that increased intensity may be obtained. The flow limitation will have limited, if any, impact on the balance of allowable uses in the secondary USD. The low densities and the lack of any approved commercial uses in that District make higher septic flows unnecessary. The same is true for areas outside the USDs, where future development is limited to agricultural, very low density residential (one unit/20 acres), and some minor commercial land uses. Higher flow septic systems are also unnecessary in that area. Based on concerns expressed by agricultural interests during the adoption process, the Plan Amendment allows agricultural uses to exclude consideration of a septic system associated with a residence on the same site. Thus, the County considered the impact of the flow limitation on the predominant industry in the County. Miscellaneous Issues In its Petition, Petitioner also raised the issue of whether the deletion of FLUE Policy 4.13.A8 is inconsistent with the Future Land Use Map which retains the overlay designation. Petitioner did not present any evidence on this issue. Thus, Petitioner did not prove the allegation beyond fair debate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that Plan Amendment CPA 14-6, adopted by Martin County on December 16, 2014, is "in compliance," as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 1st day of September, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2015.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department take no action against the subject sign. DONE and ORDERED this 4th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION FLORIDA DEPARTMENT OF TRANSPORTATION, Petitioner, vs. CASE NO. 78-2368T HENDERSON SIGNS, Respondent. /
The Issue The ultimate issue is whether Sarasota County's comprehensive plan amendments adopted by Ordinance No. 2007-64 (Plan Amendments), as amended by remedial plan amendments adopted by Ordinance No. 2008-33 (Remedial Plan Amendments), are in compliance, as provided by Section 163.3184(1)(b), Florida Statutes, with respect to: 1) whether the county's designation of several segments of University Parkway as Level of Service (LOS) D for concurrency review, on the basis of a claim that the road is "constrained," is supported by data and analysis; 2) whether the supporting traffic analysis was conducted in a professionally acceptable manner; and 3) whether the identified transportation facilities are financially feasible.
Findings Of Fact Background Petitioner owns the Westfield Sarasota Square Mall in Sarasota County. The mall is located at U.S. Route 41 and Beneva Road. Petitioner timely submitted written and oral comments to the Plan Amendments and Remedial Plan Amendments. Having purchased the property in July 2002, Intervenors are the developers of Sarasota Interstate Park of Commerce (SIPOC) in Sarasota County. The development is located at the southwest quadrant of the interchange of I-75 and University Parkway. The boundary between Sarasota and Manatee counties is somewhere within the right-of-way of University Parkway between I-75 on the east (or a point just east of I-75) and U.S. Route 301 on the west. University Parkway is an east-west arterial, multilane road that extends to the east of I-75 past a large multiuse development in Manatee County known as Lakewood Ranches. To the west, University Parkway extends past the Sarasota airport to its terminus at U.S. Route 41 in the vicinity of New College. Honore Avenue is a north-south road (at least it is in the vicinity of University Parkway) and is the first road west of SIPOC. The first road south of SIPOC, DeSoto Road is an east-west road terminating just west of I-75 on the east and a short distance west of Honore Avenue on the west. Cattlemen Road is a major north-south road that runs just west of I-75 and crosses two roads with I-75 interchanges to the south of the University Parkway interchange: Fruitville Road and Bee Ridge Road. Until SIPOC, the northern end of Cattlemen Road was south of University Parkway. However, Intervenors are constructing North Cattlemen Road from University Parkway to the north (directly across from the point at which Cooper Creek Boulevard terminates at University Parkway), past DeSoto Road, to Richardson Road, which is the northern terminus of Cattlemen Road at present. Richardson Road is just north of Fruitville Road. On July 27, 1993, Sarasota County issued a development order (DO) for a development of regional impact for SIPOC. Pursuant to the DO, the approved use for SIPOC Phase I was 633,888 square feet of retail, and the approved uses for SIPOC Phase II were 215,210 square feet of retail, 547,488 square feet of light industrial, 240,982 square feet of office, 500 hotel rooms, and 750 multifamily dwelling units. Phase I of SIPOC is substantially complete and has resulted in the construction of a SuperTarget at the site. This case involves the development that will constitute Phase II of the SIPOC. On July 10, 2007, at the request of Intervenors, Sarasota County adopted two ordinances concerning SIPOC: Ordinance No. 2006[sic]-80 and Ordinance No. 2007-64. Ordinance No. 2006-80 amends the SIPOC DO to approve the following uses: 1,680,000 square feet of retail, 220,000 square feet of office, 500 hotel rooms, and 1750 multifamily dwelling units (Amended DO). The Amended DO, which was never challenged, is effective on the date that the Plan Amendments described in Ordinance No. 2007-64 are found in compliance. The buildout date of the Amended DO is December 31, 2009. For Phase II, the traffic impact intensities may not exceed 6405 gross p.m. peak hour trip ends or 3795 net new p.m. peak hour trip ends. Amended DO, p. B-6. The Master Development Plan depicts the proposed development, which fronts onto University Parkway, as divided into eastern and western sections by proposed North Cattlemen Road (and a 330-wide FPL transmission easement alongside the east side of North Cattlemen Road). From north to south, on the west side of the road and transmission line are commercial/office, commercial/residential, residential, and a conservation easement in the back of the parcel. On the east side of the road and transmission line are commercial/residential/office, residential, and a large stormwater management easement in the back of the parcel. Amended DO Condition H addresses transportation. Condition H.1 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase I or II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.1 states: No Construction Plan approval shall be issued for any SIPOC Phase I or II development until such time as contracts for construction of the following improvements have been executed, and no Certificate of Occupancy nor temporary Certificate of Occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at North Cattlemen Road intersection, including the following turn lane additions: One eastbound right turn lane for a total of one; One westbound left turn lane for a total of two; Two northbound left turn lanes for a total of two; Two northbound through lanes for a total of two; and Two northbound right turn lanes for a total of two. Construction of a northbound right turn lane at the Honore Avenue/DeSoto Road intersection. Construction of DeSoto Road as a divided two lane arterial from Honore Avenue to North Cattlemen Road. Construction of North Cattlemen Road as a divided four lane roadway from University Parkway to DeSoto Road. These improvements have been identified as being required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements, except the County shall assist in the acquisition of required right-of-way not under the ownership or control of the Applicant, provided that the Applicant shall be responsible for the expense thereof (except as otherwise set forth in agreements between the County and the Applicant). Amended DO, p. B-19. Amended DO Condition H.2 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.2 states: Construction Plan approvals shall not be issued for any SIPOC Phase II development until such time as contracts for the construction of the following improvements have been executed, and no certificate of occupancy nor temporary certificate of occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at Honore Avenue intersection including the following turn additions: one northbound left turn lane for a total of two; one westbound left turn lane for a total of two; one northbound through lane for a total of two; and one northbound right turn lane for a total of one, prior to 40 percent of the DRI buildout (1518 net new p.m. peak hour trips). Construction of the University Parkway at Cooper Creek Boulevard/North Cattlemen Road intersection including the following lane additions and/or modifications: reconfiguration of the inside northbound through lane to a left turn lane for a total of three; one southbound through lane for a total of one; one southbound right turn lane for a total of one prior to 60 percent of the DRI buildout (2277 net new p.m. peak hour trips). Construction of a northbound left turn lane at the University Parkway at I-75 East Ramps intersection for a total of three prior to 50 percent of the DRI buildout or 1898 net new p.m. peak hour trips. Signalization of Honore Avenue at DeSoto Road intersection when signal warrants are met. Construction of a roundabout at the North Cattlemen Road at DeSoto Road intersection. Construction of North Cattlemen Road as a divided four lane roadway from DeSoto Road to Richardson Road. Construction of Fruitville Road at Cattlemen Road intersection including the following lane additions: one northbound through lane for a total of two; one northbound left turn lane for a total of two; one southbound through lane for a total of two; one eastbound left turn lane for a total of two; one eastbound through lane for a total of four; and one westbound left lane for a total of two. Construction of Cattlemen Road at the North Access Driveway intersection including the following traffic control type and lane additions: Signalization of the intersection; One northbound left turn lane for a total of one; Two northbound through lanes for a total of two; One northbound through/right turn lane for a total of one; Two southbound left turn lanes for a total of two; Two southbound through lanes for a total of two; One southbound right turn lane for a total of one; Two eastbound left turn lane [sic] for a total of two; One eastbound through/right lane for a total of one; Two westbound left turn lane [sic] for a total of two; One westbound through lane for a total of one and; Two westbound right turn lanes for a total of two. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. These improvements have been identified as required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements. Amended DO, pp. B-19 to B-21. Amended DO Condition H.4 states: Sarasota County acknowledges that with the construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new pm, peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless Funding Commitments for the improvement(s) required to maintain the adopted [LOS] have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOS]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Sarasota County acknowledges that with construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new p.m. peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in the [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless the Funding Commitments for the improvement(s) required to maintain the adopted [LOS](s) have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOSs]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Amended DO, pp. B-22 to B-23. Amended DO Condition H.4.c identifies 21 intersections and one road segment (I-75 southbound from University Parkway to Fruitville Road) that shall be monitored during the capacity reservation period. Condition H.4.c provides: If in the Annual Traffic Monitoring Report, the [LOS] on any of the intersections or intersection approaches fall [sic] below the adopted [LOS], no further site and development plan approval shall be issued unless the required improvement(s) are made by the [Intervenors], or Funding Commitments for the improvement(s) have been provided by the [Intervenors], another private person, or a responsible entity. . . . Amended DO Condition H.4.c identifies, by road segment, the number of equivalent p.m. peak hour trips to be reserved during that period. The Amended DO defines the capacity reservation period as the period commencing with the effective date of the Amended DO and ending with the earlier of December 31, 2009, or the point at which cumulative SIPOC development, for which development orders have been issued, generates more than 6405 gross p.m. peak hour trip ends or more than 3795 net new p.m. peak hour trip ends. Amended DO Condition H.5 requires Intervenors to establish an annual traffic monitoring program, which is "to monitor the cumulative impacts of the development on the roadways, intersections, and intersection approaches in the traffic impact area." This report is also used for traffic impact and concurrency evaluation purposes for any SIPOC development submitted to Sarasota County after the expiration of the Facility Reservation Period. Amended DO, p. B-26. Amended DO Condition H.6 provides: Development Order applications, including Final Development Order applications, for any portion of the development submitted during the annual concurrency evaluation period in effect for a given monitoring report, shall not be approved if the annual concurrency evaluation contained in that report indicates that traffic resulting from the approval of said Development Order will impact any road, intersection, or intersection approach in the traffic impact area that is operating (or projected to operate) below the adopted [LOS] for that facility. Notwithstanding the above, a Development Order application may be approved if one of the following mitigative actions, or both in combination, are committed to by the [Intervenors] (as a condition of approval for that Development Order), or, by another responsible entity: Other traffic impact reduction measures are implemented, including but not limited to transportation system management (TSM) strategies, intended to eliminate the impact of the SIPOC development traffic on the deficiently operating facility(ies) . . . [or] Funding Commitments, as defined in Conditions A.11.a.i-iii, are provided for the improvement(s) necessary to eliminate the [LOS] deficiency on the road(s) and/or intersection(s) by the SIPOC DRI development. Amended DO, p. B-27. Amended DO Condition A.11 defines "Funding Commitments" as follows: "Funding Commitments" shall mean the fulfillment of an action necessary to ensure the completion of any road or intersection improvement required by this [Amended DO] or identified in any subsequent Annual Traffic Monitoring Report prior to the time the impacts from the development occur. These actions include one or any combination of the following: The provision of a binding commitment by a private person or responsible entity . . . for the design, engineering, and actual construction of the improvement to be completed when the improvement is identified as being necessary in the approved Annual Traffic Monitoring Report as required in this [Amended DO]; or A commitment for actual construction and completion of the improvement pursuant to an approved Developer Agreement; or For the purpose of reviewing a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement in the current i.e., first year of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or The placement of the construction phase for an improvement in the current i.e., first year of Manatee County's adopted Capital Improvement Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of Manatee County; or The placement of the construction phase for an improvement in the current i.e., first year of the [DOT]'s adopted 5-Year Work Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of [DOT]. Amended DO, p. B-3. Funding Amended DO Condition A.11.IV.iv adds: For the purposes of reviewing a development order that is not a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement within the first five years of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or, The placement of the construction phase for an improvement within the first five years of Manatee County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Manatee County; or, The placement of the construction phase for an improvement within the first five years of the Florida Department of Transportation's . . . adopted 5-Year Work Program for roads and intersections under the jurisdiction of [the Florida Department of Transportation]. Amended DO, pp. B-3 to B-4. By Ordinance No. 2007-64, Sarasota County adopted the Plan Amendments changing the FLUM designations on SIPOC. After DCA found the Plan Amendments not in compliance, by Ordinance No. 2008-33, Sarasota County adopted the Remedial Plan Amendments. The procedural history of the Plan Amendments and Remedial Plan Amendments is set forth in the Preliminary Statement and incorporated by reference. It is important to note that the Cumulative Plan Amendments apply exclusively to SIPOC. The Remedial Plan Amendments add a new paragraph to the Transportation chapter of the Sarasota County comprehensive plan. With the existing, unchanged language in the first paragraph and the new language in the second paragraph, this part of the Transportation chapter now reads: Although the [LOS] standard . . . provides an overall goal toward which the County can strive, the adoption of a[n LOS] as high as "C" peak hour, based on a 100th highest hour design criteria, for constrained and backlogged roadways would not be environmentally or financially feasible. Constrained County roadways are defined as exhibiting a[n LOS] lower than the adopted standard and not being able to attain the adopted standard because prohibitive costs or environmental limitations prevent the construction of at least two additional through lanes. Backlogged County roadways are defined as roadways operating below the adopted standard which do not have prohibitive financial or environmental constraints but are not scheduled for major capacity improvement in the County's Five Year Schedule of Capital Improvements. Thus, the LOS for constrained roadways, i.e. prohibited due to physical or other policy limitations or backlogged roadways, i.e. currently un-funded in the 5-Year Schedule of Capital Improvements, is to maintain the current [LOS] with minimum degradation. Between U.S. 301 and I-75, University Parkway lies along the Manatee/Sarasota County line. The generalized [LOS] data of Table 6-2 shows University Parkway between U.S. 301 and I-75 to have been operating at . . . LOS D in 2003. University Parkway has been constructed as a six-lane divided arterial roadway and is not planned to be widened to include additional general purpose lanes. Also, University Parkway has an adopted LOS "D" for purpose of evaluating transportation concurrency in Manatee County and absent any indication to the contrary would have an adopted LOS "C" for Sarasota County concurrency purposes. To resolve this discrepancy, to acknowledge current operating conditions, and based on the interlocal agreement with Manatee County regarding access control and maintenance responsibilities for University Parkway, Sarasota County considers the adopted LOS on University Parkway to be "D" for evaluating transportation concurrency. Therefore, University Parkway has been included in "Table 6-5: Designated Backlogged and Constrained Roadways in Sarasota County" as constrained at LOS D. Ordinance No. 2008-33, Section 2. Presumably, the "current conditions" on University Parkway to which the above-cited language refers is to 2008 because, as noted in the following section, the 2006 directional peak hour volumes of the University Parkway segments west of I-75 were all LOS B, except for five such segments at LOS C. In any event, the Remedial Plan Amendments add seven segments of University Parkway from I-75 to a point west of the SIPOC, but east of U.S. Route 301, as "constrained" with an LOS D. Ordinance No. 2008-33, Section 3. The Remedial Plan Amendments provide that the SIPOC is in Special Planning Area #1--a new FLUM designation. They add: The [SIPOC DRI] Substantial Deviation Application for Development Approval (ADA) serves as supporting data and analysis for the area identified on the . . . FLUM as the SIPOC DRI--Special Planning Area 1. As required, the SIPOC DRI ADA is a comprehensive analysis of the suitability of the area for the development as well as the proposed impacts of the project. This DRI analysis can be used by Sarasota County to guide the timing, location, type and amount of future development. Thus, the Application for Development Approval, sufficiency responses and [Amended DO] provide supporting data and analysis for the land use designation on the FLUM. Ordinance No. 2008-33, Section 4. The Remedial Plan Amendments amend the future land use element of the Sarasota County comprehensive plan to incorporate the above-described density and intensity limits, as well as hotel rooms and dwelling units, identified above in the Amended DO. Ordinance No. 2008-33, Section 6. The Remedial Plan Amendments identify a new Five-Year Schedule of Capital Improvements, Table 10-3, which is obviously limited to SIPOC. For traffic circulation, the new capital improvement schedule provides (all costs are in millions'): Project Pre-2008 2008 2009 2010 2011 Future Total Add DeSoto Rd. 2.27 2.5 0.27 0.27 0.15 0 5.5 Add N. Cattle man Rd.- 5.0 Richardson Rd. 0 5.0 21.0 6.3 2.5 39.0 Add University Pkwy./Honore 0 0 0 0 0 0 0 Ave. Inter- section Add University Pkwy. Northbound 0 0 0 0 0 0 0 Off-ramp [to I-75] Ordinance No. 2008-33, Section 9. The Remedial Plan Amendments further identify Special Planning Area 1 as follows: Special Planning Area 1 is the . . . SIPOC DRI. The Substantial Deviation Application for Development Approval (ADA) provides data and analysis regarding its significant and adverse impacts to local and regional roadways. [Intervenors], in coordination with Sarasota County, ha[ve] committed to provide funding and right-of-way as needed from the DRI property to mitigate for the improvements required to maintain the adopted [LOS] on area roadways . . . resulting from the impacts of the SIPOC DRI. The required improvements to the roadway system . . . are provided in the [Amended DO] and summarized as follows: Improvements to the roadway included in the County's Five-Year Capital Improvements Program (CIP) are as follows: North Cattlemen Road from Richardson Road to University Parkway. This project has been programmed in the CIP in the amount of $39,907,103 . . .. DeSoto Road from Harold Avenue to North Cattlemen Road. This project has been programmed in the CIP in the amount of $5,462,227 . . .. Improvements to the intersection of University Parkway and Honore Avenue. This project will be funded by [Intervenors]. The current construction estimate is $2,250,000 . . .. Improvements to the northbound exit ramp of I-75. This project will be funded by [Intervenors]. The current construction estimate is $2,000,000 . . .. A public transit transfer facility station will be designed, permitted and constructed by [Intervenors] and will be designed to accommodate a minimum of four buses and will be constructed at such time as Sarasota County Area Transit establishes service to the development. The estimated cost is $300,000 . . .. Ordinance No. 2008-33, Section 10. The Remedial Plan Amendments become effective when DCA enters a final order finding them to be in compliance. Ordinance No. 2008-33, Section 14. Whether Adoption of LOS D for University Parkway Is Supported by Data and Analysis The present record is devoid of evidence that any of these segments of University Parkway are constrained. Nothing in the record suggests that the constraints of prohibitive costs or significant natural resources preclude the widening of University Parkway. By definition, these segments of University Parkway were backlogged, prior to the reduction in their LOS standard to D, as they were operating below their adopted LOS standard of C and were omitted from the five-year capital improvement schedule for capacity enhancement sufficient to restore a C LOS standard. Backlogged segments remain deficient and are to be maintained so as to minimize further degradation. Of course, by reducing the LOS standard to the actual LOS--D--Sarasota County relieves these University Parkway segments of their backlogged status. Instead, the clear intent of the county was to reduce the LOS standard of these segments, not to treat them and their failure to attain LOS C as special cases. The second of the cited paragraphs above essentially designates these segments of University Parkway as LOS D, not because they are constrained or were (prior to the new designation) backlogged, but because: 1) Manatee County designates the same segments as LOS D, 2) the segments are operating at LOS D, and 3) Manatee County is unlikely to share the cost of enhancing the capacity of these segments when they are operating at their (Manatee-County) adopted LOS standard. Sarasota County's proposed recommended order, at paragraph 19, candidly concedes these points. Without regard to Sarasota County's confusing attempt to designate the University Parkway segments as constrained or backlogged, the three cited reasons for lowering the LOS standard to D for these segments of University Parkway are data and analysis supporting the action taken by Sarasota County. Petitioner has failed to prove to the exclusion of fair debate that the designation of the affected University Parkway segments as LOS D is not consistent with the criterion of supporting data and analysis. Whether Supporting Traffic Data Are Appropriate and Traffic Data Were Collected and Applied in a Professionally Acceptable Manner Kimley-Horn and Associates, Inc., (KH) performed the traffic analysis in connection with the Amended DO and Cumulative Plan Amendments. In November 2005, KH prepared a Transportation Methodology Statement (TMS) for use in conjunction with the SIPOC Phase II DRI Substantial Deviation (from the DO). The TMS briefly describes Phase II of the SIPOC development. The TMS slightly overstates, by percentage, retail uses by 120,000 square feet (using 1,800,000 square feet, rather than 1,680,000 square feet) and substantially understates, by percentage, office uses by 120,000 square feet (using 100,000 square feet, rather than 220,000 square feet), but, obviously, the total of the two uses is the same as the total stated in the Amended DO. The TMS states that KH will use the trip generation rates published by the Institute of Transportation Engineers, Trip Generation, 7th Edition, 2003. The TMS notes that hotel trips require a different source due to their exclusion from Trip Generation. The TMS states that KH will determine trip "general trip distribution of project traffic" by "application of the Florida Standard Urban Transportation Model Structure" (FSUTMS), which is a transportation planning model. The TMS states that KH will use FSUTMS for "project distribution" and "general assignment of project traffic to the roadway network." Trips are first distributed between attractor land uses and producer land uses and then are assigned to specific facilities. Thus, it is necessary to distribute trips between SIPOC and various offsite locations and, using this information, to assign traffic to the roadway network in the vicinity of the attractors. The TMS adds: In addition to [FSUTMS], existing traffic patterns adjacent to the project site, including the location of production- and attraction-based land uses, will be used as supplement data to estimate project traffic assignment. A copy of the distribution and electronic files of the input files to be used in this model will be provided in the analysis report to the appropriate review agencies. The TMS states that, in distributing project traffic, KH will use the existing roadway network plus committed improvements in the first three years of Manatee County's current capital improvement program, Sarasota County's current capital improvement program, and Florida Department of Transportation's (DOT's) Work Program. The TMS states that KH will obtain the necessary socio-economic projections for the buildout year of 2009 from the Sarasota/Manatee Area Transportation Study and will supplement these data to include certain other approved DRIs, which are listed. The TMS states that the analysis report will summarize the socio-economic adjustments. The TMS states that KH will estimate internal capture and pass-by capture of project traffic based on the review of FSUTMS in Trip Generation, 2nd Edition, June 2004--as well as other ITE-related documents and engineering judgment applied to the characteristics of SIPOC, Phase II. Internal capture is a function of mixed-use developments, such as SIPOC, in which persons using the retail, office, or residential components of the single development remain within the development, rather than enter the roadways surrounding the development. Pass-by capture describes the function of a development interrupting a trip on the surrounding roadway system and later releasing the trip back onto the surrounding roadway system. The TMS adds that the total pass-by capture trips will be estimated for the retail part of SIPOC, Phase II, and will be limited to 10 percent of the future background traffic estimates adjacent to the project site. The TMS adds that KH will document all assumptions and applied procedures in the analysis report. The resulting reduction in internal capture and pass-by capture trips will, according to the TMS, produce net, new trips, which KH will use to identify the transportation impact study area. The TMS states that KH will review the impacts of project traffic on the adjacent roadway network following the requirements of Section 380.06, Florida Statutes, and Florida Administrative Code Rule 9J-2.045, which are consistent with the rules of DCA. Relying on the procedures used in the Phase I transportation analysis, which had been recently approved, KH will then identify the study area as "all roadway segments for which SIPOC net, new project traffic will consume 5.0 percent or greater of the . . . LOS C directional, peak-hour service volume of each affected roadway link located within Sarasota County, including University Parkway and I-75." For roadways in Manatee County, excluding I-75, the LOS will be D. The TMS states that peak-hour service volumes will be estimated based on the most recent information available from DOT and the Transportation Research Board, Highway Capacity Manual, 2000 Edition. In particular, the TMS notes that KH will use four- lane, divided capacity for North Cattlemen Road from University Parkway to DeSoto Road and two-lane, divided capacity for North Cattlemen Road from DeSoto Road to Richardson Road and DeSoto Road from Honore Avenue to North Cattlemen Road. The TMS adds that KH will use six-lane, divided capacity for University Parkway from I-75 to Lakewood Ranch Boulevard to the east and the proposed ramp improvements to the University Parkway/I-75 interchange. The TMS identifies the LOS standards of various road segments surrounding SIPOC, including LOS D for University Parkway from U.S. Route 301 to Lakewood Ranch Boulevard. (University Parkway east of I-75 is entirely in Manatee County.) The TMS identifies the analysis period as the p.m., peak season, peak hour for both existing and future conditions. For the existing condition, Intervenors shall obtain recent traffic count data. The TMS notes that KH will forecast future nondevelopment (background) traffic for the buildout year of 2009, using the results of the FSUTMS model, forecasted traffic projections from public agencies, and actual historical traffic counts from the study area. Comparing the FSUTMS outputs for 2005 and 2009, KH will determine the appropriate growth rates for specific roadways within the study area. By applying those growth rates to the existing traffic data, KH will determine future background traffic volumes. The TMS states that the analysis report will contain complete documentation of all assumptions and applied procedures. The TMS states that KH will perform roadway link capacity analysis for all regionally significant roadways and any subregional roadways in the study network that provide primary access to SIPOC. The TMS identifies the sources of procedures for this analysis and assures that the analysis report will contain electronic files with the results of the roadway link capacity analysis. The TMS states that KH will assess project traffic for potential improvements where it contributes at least five percent of the appropriate LOS peak hour directional service volume of a regional roadway in the transportation impact study area. KH will identify improvements only when the roadway is expected to operate below its adopted LOS peak hour service volume. The analysis report will identify improvements attributed to SIPOC only if project traffic consumes at least five percent of the adopted LOS peak hour service volume or the "critical movements of the intersections located at the endpoints of an impacted roadway segment." The TMS states that KH will perform similar analyses of intersections in terms of their LOSs and need for improvements when operating below their adopted LOS standards. KH circulated the TMS among various agencies, including Sarasota County, DOT, and the Southwest Florida Regional Planning Council (RPC). None of these agencies offered any criticism of the proposed methodology. As part of their application for development approval that led to the Amended DO, Intervenors filed a Substantial Deviation from the SIPOC DRI. Part V of this document is Public Facilities, and Section A of Part V is Transportation. This Transportation Substantial Deviation document shall be referred to as the "TSD." At the time of the preparation of the TSD, Phase I of SIPOC was under construction, so KH combined the land uses and their associated traffic for both phases for the analysis contained in the TSD. KH based its analysis on 2009 projections because that is the year of buildout of Phase II. The TSD states that KH used current policies of Sarasota County and RPC to identify the transportation study area, which comprises the regionally significant roadway links, intersections, and interchanges on which Phases I and II project trips associated with SIPOC consume at least five percent of the adopted LOS. The TSD identifies the adopted LOS as C for each affected roadway link in Sarasota County, including University Parkway west of I-75 and I-75 in Sarasota and Manatee counties, and D for roadways in Manatee County. Evidently, at the time of the preparation of this part of the TSD, Sarasota County had not yet identified the need to lower the LOS for University Parkway to D. However, TSD Table 5.A.2 reports that the University Parkway segments west of I-75 have an adopted LOS D. University Parkway would obviously be in the transportation study area regardless whether KH has used a LOS standard of C or D for its segments west of I-75. The TSD states that KH used the existing roadways plus roadway improvements funded for construction for the first three years in the capital improvement programs of Sarasota and Manatee counties and the DOT Work Program, except that KH used five years of the DOT Work Program for construction of I-75 improvements. The TSD states that KH used ITE's, Trip Generation, 7th Edition (2003) to determine that SIPOC, through Phase II, would generate 68,894 daily trip ends and 6405 trip ends in the p.m., peak hour, consisting of 3148 inbound and 3257 outbound, as well as 2158 trip ends in the a.m. peak hour, consisting of 1143 inbound and 1015 outbound. The TSD states that KH used an internal capture rate of 33 percent and a pass-by capture rate of less than 10 percent of future background traffic. Subtracting the internal capture and pass-by capture rates from the total gross trips, TSD Table 5.A.5 reports that the total, net, new external project trips is 38,120 daily, including 1708 in and 1817 out during p.m. peak hour and 713 in and 585 out during a.m. peak hour. The TSD describes the process by which KH calculated 2009 total traffic, which consists of SIPOC traffic plus background (i.e., nonSIPOC) traffic. KH inputted into FSUTMS socioeconomic data provided by the Sarasota/Manatee County Metropolitan Planning Organization (MPO), supplemented by data from other approved DRIs in the area. The TSD details the process by which KH isolated the effects of SIPOC in projecting background traffic. For project traffic, the TSD states that KH used FSUTMS output to distribute trips and, with "minor refinements based upon existing and proposed attractive-type land uses near the project site," to develop roadway assignment percentages. TSD, p. 12. TSD Table 5.A.1 reports the LOS service volumes for road segments in the vicinity of SIPOC, the projected traffic assignment (expressed as a percentage of the LOS service volume) assigned to each road segment, and an indication whether the five-percent threshold has been met, so as to require the inclusion of the road segment in the transportation study area. The TSD states that KH also applied the percentages to the trip generation estimates, with an adjustment for background traffic, to determine projected traffic volumes through Phase II. A revised version of this table is in the Third Sufficiency Response. TSD Table 5.A.2 shows service volumes for existing roadways based on their adopted LOSs. For instance, all depicted University Parkway segments west of I-75 bear an LOS D, which produces a service volume of 2790. The service volume of 2790 is for peak hour conditions. Using p.m. peak hour traffic counts conducted by KH, Table 5.A.3 indicates the actual p.m. peak hour roadway volumes for 2006, divided by direction. For the University Parkway segments west of I-75, the existing volumes are all at least 400 trips below 2790, so as to earn LOS Bs for all segments, except five, which are at LOS C. In general, Table 5.A.3 reports that all road segments in the study area were within their adopted LOS standards for 2006, and Table 5.A.4 reports that all intersections in the study area were within their adopted LOS standards for 2006, as well. In projecting 2009 traffic volumes, the TSD describes the process undertaken by KH to determine the volume of Honore Avenue traffic that would be diverted to North Cattlemen Road, once the latter facility is constructed. KH also assigned a minimal amount of traffic to DeSoto Road between Honore Avenue and North Cattlemen Road to account for the use of this new facility by background traffic. For project traffic, KH made "minor adjustments," of the type noted above, in assigning traffic to road segments in the study area. Projecting 2009 conditions, TSD Table 5.A.6 shows the directional p.m. peak hour traffic volumes for the project, background, and total. For instance, eastbound and westbound, the University Parkway segment from North Cattlemen Road/Copper Creek Boulevard west to Honore Avenue will have project volumes of 436 and 463 trips, background volumes of 2725 and 2672 trips, and total volumes of 3161 and 3135 trips, which would exceed the LOS D volume of 2790 trips reported above in TSD Table 5.A.2. TSD Table 5.A.7 reports, by road segment, the ratio of project traffic to total traffic. On the segment discussed immediately above, the project will constitute about 14 percent of peak hour total traffic in both directions. On other segments, such as the North Cattlemen Road and DeSoto Road segments that will primarily serve SIPOC, peak hour project traffic will be about 80-90 percent of peak hour total traffic. The TSD states that KH identified a road segment as critical and in need of further analysis if the 2009 projections revealed that it was operating below its adopted LOS standard and project traffic consumed at least five percent of its adopted peak-hour directional LOS volume TSD Table 5.A.8 reports the result of the roadway analysis, which, with "detailed arterial analysis," finds all segments, including the above-mentioned Honore/Cooper Creek segment of University Parkway, to be operating in 2009 at their adopted LOS or better. However, despite the application of "detailed arterial analysis," Table 5.A.8 designates five of the University Parkway segments, including the Honore/Cooper Creek segment, and three segments of Honore Avenue as critical links. Each of these eight segments was designated a critical link in both directions. TSD Table 5.A.9 identifies the intersections in the study area and projects that five of them will, by 2009, fall below their adopted LOS standard. Table 5.A.9 includes recommended improvements to restore LOSs to adopted levels or better. For the intersections at Honore Avenue and DeSoto Road and North Cattlemen Road and DeSoto Road, the improvement is to add signals. For the intersections at University Parkway and Honore Avenue and University Parkway and North Cattlemen/Cooper Creek, the improvements are to add two new turn lanes at each intersection. For the intersection at University Parkway and the I-75 east ramps, the improvement is to construct a new turn or ramp lane. In connection with the DRI-approval process, Sarasota County and DOT issued comments and questions, which prompted Intervenors' engineering firm to file at least three sufficiency reports. In the First Sufficiency Report, the RPC noted that a four-year planning horizon (2005-09) was a relatively short timeframe for using FSUTMS, so KH needed to check outputs for "reasonableness." In the Second Sufficiency Report, KH had to justify to Sarasota County KH's detailed assumptions and conclusions, such as its internal capture rate of 33 percent for am peak hour and its refusal to use an annual growth rate in traffic on University Parkway east of I-75 of 15 percent (as suggested by the FSUTMS output). KH also had to respond to DOT comments by adding to a map trip distribution percentages to certain road segments and correcting some LOS levels used in certain of the TSD tables. In the Third Sufficiency Response Table 1, KH identified the recommended transportation improvements to be funded by Intervenors as follows: Roadway Improvement Timeframe Honore Ave. & Construct north- Phase I DeSoto Rd. bound (NB) right- turn lane. University Pkwy. Construct EB right- Phase I & W. Project Drive turn lane. University Pkwy. Construct 2 NB left- Phase I & N. Cattlemen Rd. turn lanes, 2 NB through lanes, 2 NB right-turn lanes, 1 EB right-turn lane, and 2 WB left-turn lanes. N. Cattlemen Rd. Construct 4-lane Phase I divided road from University Pkwy to DeSoto Rd. DeSoto Rd. Construct 2-lane Phase I divided road from Honore Ave. to N. Cattlemen Rd. University Pkwy. Construct 2nd NB left- Phase II & Honore Ave. turn lane and 2nd WB left-turn lane. Con- vert NB right-turn lane to through lane and construct new NB right-turn lane. University Pkwy. & Convert SB right-turn Phase II Cooper Creek Blvd./ lane to through lane N. Cattlemen Rd. and construct new SB right-turn lane. University Pkwy. Construct 3rd NB Phase II & I-75 E ramps left-turn lane. Honore Ave. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Construct 2-lane Phase II divided or possibly 4-lane divided from DeSoto Rd. to Richardson Rd. The reviewing agencies ultimately approved the KH transportation analysis, but Petitioner claims that the transportation analysis was not professionally acceptable. Even Petitioner's witnesses offered no objection to the capture rates and traffic volumes used by KH. The thrust of Petitioner's objections to the traffic analysis is not to the inputs or model, but to the manual adjustments that KH made to the model outputs when assigning traffic to specific road segments. Some of these adjustments resulted in the removal of certain road segments from the transportation study area and thus from further analysis of the adverse impacts from SIPOC. The KH employee responsible for this project, Robert Agrusa, has 23 years' experience performing traffic studies and 20 years' experience using FSUTMS. Mr. Agrusa has worked in the Sarasota area nearly exclusively for over 15 years and has worked on the traffic impacts of DRIs. FSUTMS is a model whose original purpose was to assist long-range transportation planning, thus the comment by the RPC reviewer for the need to use care in using FSUTMS for the relatively short timeframe involved in this exercise. The model's sensitivity is limited as to attractive land uses near the subject project. For instance, the model fails to differentiate between a convenience store and a regional shopping mall; both are simply retail land uses. The engineer using FSUTMS for the purpose for which it was used in this planning exercise must examine the outputs carefully, compare them to existing and future land uses, and adjust the model- generated trip assignments based on his or her professional judgment. According to a Sarasota County transportation engineer, adjustments to FSUTMS output are more common in the I-75 corridor where the model's traffic analysis zones are less precise. Other authorities likewise support manual adjustments to model outputs. Among the manual adjustments described by Mr. Agrusa was an increase in the number of trips absorbed by large residential areas west of SIPOC, both north and south of University Parkway. These areas include 3000-4000 dwelling units that, in his professional judgment, were inadequately weighed by FSUTMS in distributing trips. For similar reasons, Mr. Agrusa made a similar adjustment in assignments in the area south of University Parkway and north of Fruitville Road, where even more dwelling units are located. Another manual adjustment described by Mr. Agrusa illustrates well the issue raised by Petitioner. Mr. Agrusa increased the trips on I-75, north and south of University Parkway, to reflect the regional draw of SIPOC, especially its retail uses. No transportation engineer in this case disagrees that SIPOC is a regional draw. An increase in I-75 trips means a corresponding decrease of trips on University Parkway, Honore Avenue, and North Cattlemen Road. However, the magnitude of such changes was typically limited to 2-3 percentage points, and each percentage point of net new trips is only 40 two-way trips or 80 one-way trips. As Petitioner contends, small changes can result in large effects. Mr. Agrusa raised the percentage of project trips on I-75 south of University Parkway from nine percent to 12 percent. As already noted, this would lighten the projected traffic on other segments, especially North Cattlemen Road and Honore Avenue. By raising the percentage only to 12, though, Mr. Agrusa did not cause the burdened interstate segment to have to be included in the study area because, at 12 percent, the project contributed 4.99 percent of this segment's volume. Had Mr. Agrusa raised the percentage to 12.5 percent, the five percent threshold would have been met, and this segment of I-75 would have had to have been included in the study area. But Mr. Agrusa testified that he did not restrict this increase to lower the volumes on road segments already in the study area and raise it as far as possible without adding the increasingly burdened segment to the study area; absent evidence of some impropriety in this adjustment, it is impossible to find that it was not professionally acceptable, especially in the absence of objection from DOT as to exclusion of I-75 from the study area. All transportation engineers, including Petitioner's witness, agreed that a manual adjustment was indicated to increase the assignment of trips to I-75; they disagreed only as to the extent of the increase. Projecting traffic volumes even for just four years is necessarily a rough-hewn process, which, in this case, did not even assign an input to the cost of fuel and its effect on traffic volumes. The magnitude of the changes for which Petitioner contends would introduce into this process more precision than the process can support. The projection is for only four years, so, with or without manual adjustments to model outputs, the potential for error is reduced when compared to longer planning horizons. Given the detailed methodology and analytic exercise described above, the multiple-agency review, and the absence of affirmative evidence of bad faith, KH collected appropriate data in a professionally acceptable manner and applied the data, in a professionally acceptable manner, to identify the study area, the impacted road segments and intersections, and the improvements necessary to maintain adopted LOS standards on these segments and intersections. Petitioner has failed to prove to the exclusion of fair debate that the data and analysis regarding the Cumulative Amendments are inconsistent with the criteria that the date be appropriate to the plan provisions and that the data be collected and applied in a professionally acceptable manner. Whether the Identified Transportation Facilities Are Financially Feasible and Properly Scheduled in the Capital Improvement Program As of the date of the final hearing, Intervenors had already constructed all of the Phase I transportation improvements (Amended DO Conditions H.1.a-d) and the following Phase II transportation improvements: the roundabout at North Cattlemen Road and DeSoto Road (Amended DO Condition H.2.e), the roundabout at North Cattlemen Road and northern Access Drive (Amended DO Condition H.2.i), and the roundabout at North Cattlemen Road and the southern Access Drive (Amended DO Condition H.2.j). As of the date of the final hearing, Intervenors had almost completed construction of the signalization of Honore Avenue and DeSoto Road (Amended DO Condition H.2.d). As of the date of the final hearing, a third party had completed construction of intersection improvements at Fruitville Road and Cattlemen Road (Amended DO Condition H.2.g). As of the date of the final hearing, Intervenors had delivered to Sarasota County a letter of credit or performance bond of $33 million--sufficient to pay for the construction of North Cattlemen Road from DeSoto Road to Richardson (Amended DO Condition H.2.f) and the North Access Drive (Amended DO Condition H.2.h), for which the combined cost is estimated to be $29,517,244, and the construction of the intersection improvements at University Parkway at Cooper Creek/North Cattlemen (Amended DO Condition H.2.b), for which the cost is estimated to be $3,100,000. This leaves only two transportation projects from the Amended DO Condition H for Intervenors to complete: construction of the intersection improvements at University Parkway and Honore Avenue (Amended DO Condition H.2.a), for which the cost is estimated to be $2,250,000, and construction of the east ramp improvements at I-75 and University Parkway (Amended DO Condition H.2.c), for which the cost is estimated to be $2,000,000. Intervenors secured its undertaking to pay for these remaining transportation improvements by providing Sarasota County with financial assurance--in the form of new capital contribution agreements--adequate for these two improvements plus the construction of the transit station, but Intervenors entered into these agreements after the adoption of the Cumulative Plan Amendments. Based on the KH traffic analysis, which has not been shown to have been unreliable or unprofessional, these transportation improvements will offset the impacts of SIPOC, Phases I and II, sufficient to avoid a violation of any adopted LOS standard for any road segment or intersection. If, for some reason, the improvements were not to be adequate, the monitoring program in the Amended DO will ensure that development orders will be suspended, pursuant to the conditions contained in the Amended DO, the reference in the Remedial Plan Amendments to Intervenors' financial undertakings in the Amended DO (thus incorporating them into the comprehensive plan), and concurrency provisions in the Sarasota County comprehensive plan, unless and until these traffic impacts are offset by transportation improvements sufficient to restore service volumes to the adopted LOS standards. Additionally, the Remedial Plan Amendments contain a five-year schedule of capital improvements that adequately describes the relevant transportation improvements and the years of funding. The KH traffic analysis drives the finding that the transportation improvements already completed and to be undertaken by Intervenors will prevent any road segment or intersection from falling below the adopted LOS standard due to impacts from SIPOC traffic. As a backup, the Amended DO provides for monitoring of traffic volumes and suspends development if and when SIPOC traffic causes any road segment or intersection to fall below its adopted LOS standard. In turn, these findings inform findings as to the consistency of the undertaken capital improvements with the criteria of financial feasibility and scheduling capital improvements. Petitioner has failed to prove to the exclusion of fair debate that the Cumulative Plan Amendments are not consistent with the criteria of financial feasibility and scheduling capital improvements.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order finding the Cumulative Plan Amendments to be in compliance. DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2008. COPIES FURNISHED: Lynette Norr Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Christopher Torres Greenberg Traurig, PA 625 East Twiggs Street, Suite 100 Tampa, Florida 33602 Stephen E. Demarsh Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236-6808 Alan W. Roddy Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Martha Harrell Chumbler Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Shaw Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2160 Thomas Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Findings Of Fact The sign here in issue was erected in 1992 and remained in the same location until December 1986. The sign is located along the west side of U.S. 19 in Pasco County, Florida, 41 feet from the western edge of the pavement. The DOT right-of-way at this location is 57 feet. U.S. 19 is part of the state highway system. Respondent stipulated that the sign was located in the DOT right-of-way and was in violation. Upon receipt of the violation notice, the association relocated the sign off of the DOT right-of-way within ten days of the notice of violation (December 11, 1986).
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s failure to appear at the scheduled hearing, which was deemed to be a voluntary dismissal with prejudice. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Cycle Exchange LLC d/b/a Cycle Exchange, be granted a license for the sale of motorcycles manufactured by Astronautical Bashan (BASH) at 14540 North Florida Avenue, Tampa (Hillsborough County), Florida 33603, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed June 7, 2011 8:28 AM Division of Administrative Hearings DONE AND ORDERED this — o) day of June, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this. 3 day of June, 2011. wt Vinayak, Dealer ok Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Carlos Urbizu Mobility Tech, Inc. d/b/a Charlie’s Scooter Depot 5720 North Florida Avenue, Unit 2 Tampa, Florida 33604 Wendy Yu Peace Industry Group (USA), Inc. 6600B Jimmy Carter Boulevard Norcross, Georgia 30071 Patcharee Clark Cycle Exchange LLC 14540 North Florida Avenue Tampa, Florida 33613 Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
The Issue The issue in this case is whether the Petitioner is entitled to additional points on the October 1996 Civil Engineering exam.
Findings Of Fact In October 1996, Jane A. Caldera (Petitioner) took the Principles and Practice of Engineering Examination. By grade report dated February 17, 1997, the Petitioner was notified by the Department of Business and Professional Regulation (Department) that she had received a score of 67 points on the exam. A minimum score of 70 points was required to pass the October 1996 engineering examination. The Petitioner challenges the scoring of her responses on question 121 and question 423 (parts 1, 2 and 4). Question 121 required mathematical calculation of channel flow rates based on a hypothetical set of facts. On question 121, the Petitioner received four points from a total of ten available points. The evidence establishes that the Petitioner should have received a total of six points for her response to question 121. The scoring plan for question 121 provides that six points are awarded for "minimum competence." The scoring plan for question 121 defines minimum competence as follows: Must attempt all parts of part (a) and gives answers for flow depth and flow discharge within [plus or minus] 5 percent but omits flow state. OR Solves flow depth and flow discharge within accuracy of [plus or minus] 10 percent, for both, and provides demonstrated answer for flow state. OR Neglects inlet loss in solution of flow depth and flow discharge, and provides demonstrated answer for flow state. (Emphasis supplied.) The Petitioner asserts that her answer to question 121 meets the level of minimum competence because she provided the correct answer for flow state, depth and discharge, but neglected to allow for the inlet loss in her answer. The greater weight of the evidence supports the Petitioner's assertion. Respondent's Exhibit 4, a re-score result by the National Counsel of Examiners for Engineering and Surveying states that the Petitioner is not entitled to additional points on question 121 because the "examinee's solution does not meet the accuracy criteria set for a score of 6 and did more than required for a score of 2. Therefore, the solution was scored at a level of 4." The re-scoring report is uncorroborated hearsay. The re-scoring report does not appear to follow the specific criteria set forth in the scoring plan for the examination. The scoring of the Petitioner's response to question 121 was arbitrary and capricious. Question 423 requires calculations related to motor vehicle traffic flow. A hypothetical set of facts are included which identifies the percentages of passenger cars, three-axle trucks, four-axle trucks, and five-axle trucks passing a traffic count station. Question 423, part one, states "[t]he annual number of passenger cars (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part one, an examinee must determine the total number of vehicles and then calculate the total number of passenger cars as a percentage of the total vehicle count, in order to correctly answer the question. Question 423, part two, states "[t]he annual number of five-axle trucks (vehicles) passing through this count station is most nearly:" and provides four possible answers. In order to answer question 423, part two, an examinee must determine the total number of vehicles and then calculate the total number of five-axle trucks as a percentage of the total vehicle count, in order to correctly answer the question. The word "(vehicles)" in question 423 parts one and two is extraneous. The question can be answered without inclusion of the reference to "(vehicles)." The Petitioner asserts that inclusion of the reference to "(vehicles)" in the question is confusing and prevents an examinee from responding appropriately. The evidence fails to support the Petitioner's assertion. Question 423, part four, states "[t]he 30th highest hourly volume (vehicles) at the count station is most nearly:" and provides four possible answers. In order to respond to question 423, part four, the "K-factor" must be considered. A K-factor is a ratio commonly expressed as a subscript, related to traffic flow computation. In question 423, part four, the hypothetical fact states that the "K-factor is 0.10" but does not state the K- factor in the form of a subscript. The Department asserts that the examinee should have assumed a value of K30. The Petitioner asserts, and the evidence establishes that the appropriate K-factor in an urban setting is K200. The Department's expert witness was asked if there was any basis to assume that the K-factor in the problem was K30 "as opposed to any of the other K's that are used in traffic engineering problems," to which he replied that there was not. The evidence fails to establish that question 423, part four, contains sufficient information which would lead an examinee to reasonably assume a factor of K30 was applicable under the set of hypothetical facts provided in the question. The Department's assertion that a factor of K30 should be assumed by an examinee is arbitrary and capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order awarding to Jane A. Caldera such additional points as are set forth herein. DONE AND ENTERED this 16th day of June, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1998. COPIES FURNISHED: R. Beth Atchison Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jane A. Caldera 16810 Stanza Court Tampa, Florida 33624 Mario Romero, Esquire Bull and Associates, P.A. 111 North Orange Avenue, Suite 1700 Orlando, Florida 32801 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
