The Issue The issue for determination is whether Seminole Raceway, as proposed in Charles and Linda Wimberlys' Site and Development Plan and approved with conditions by the Leon County Development Review Committee (DRC), is consistent with the requirements of the 2010 Tallahassee-Leon County Comprehensive Plan (Comprehensive Plan) and is a permissible land use under applicable provisions of Chapter 10, Leon County Code (the Code).
The Issue The issue to be determined in this case is whether the Leon County Development Review Committee’s preliminary conditional approval of a site and development plan for the Brookside Village Residential Subdivision is consistent with the Tallahassee-Leon County 2030 Comprehensive Plan (“Comp Plan”) and the Leon County Land Development Code (“Code”).
Findings Of Fact The Parties Petitioner Moore Pond Homeowners Association, Inc. (“Moore Pond”), is a Florida not-for-profit corporation whose members are residents of Moore Pond, a single-family subdivision bordering the Project to the east. Petitioner Ox Bottom Manor Community Association, Inc. (“Ox Bottom Manor”), is a Florida not-for-profit corporation whose members are residents of Ox Bottom Manor, a single-family residential subdivision bordering the Project to the west. Respondent Golden Oak is a Florida limited liability company. Golden Oak is the applicant for the Project and the owner of the property on which the Project will be developed. Respondent Leon County is a political subdivision of the State of Florida, and has adopted a comprehensive plan that it amends from time to time pursuant to chapter 163, Florida Statutes. Land Use Designations The Project is located on land that is designated as Residential Preservation on the Future Land Use Map of the Comp Plan, and is in the Residential Preservation zoning district established in the Code. Residential Preservation is described in both as “existing homogeneous residential areas” that should be protected from “incompatible land use intensities and density intrusions.” Policy 2.2.3 of the Future Land Use Element (“FLUE”) of the Comp Plan permits residential densities within Residential Preservation of up to six dwelling units per acre (“du/a”) if central water and sewer services are available. Central water and sewer services are available in this area of the County. The Project is located within the Urban Services Area established by the FLUE, which is the area identified by the County as desirable for new development based on the availability of existing infrastructure and services. The Project The Project is a 61-lot, detached single-family residential subdivision on a 35.17-acre parcel. To avoid adverse impacts to approximately 12 acres of environmentally sensitive area in the center of the property, the Project places the single-family lots on the periphery of the property with access from a horseshoe-shaped street that would be connected to Ox Bottom Road. The environmentally sensitive area would be maintained under a conservation easement. The “clustering” of lots and structures on uplands to avoid environmentally sensitive areas is a common practice in comprehensive planning. The Comp Plan encourages clustering or “compact” development to protect environmentally sensitive features. The Project would include a 25-foot vegetative buffer around most of the perimeter of the property. There is already a vegetative buffer around a majority of the property, but the vegetative buffer will be enhanced to achieve 75 percent opacity at the time of additional planting and 90 percent opacity within five years. The buffers would include a berm and privacy fence. The proposed buffers exceed the requirements in the Code. In the course of the application and review process for the Project, Golden Oak made changes to the site and development plan to address concerns expressed by residents of the neighboring subdivisions. These changes included an increase in lot sizes abutting lots within Moore Pond and Ox Bottom Manor; a reduction in the number of lots from 64 to 61; and an expansion and enhancement of buffers. In addition, Golden Oak revised the proposed covenants and restrictions for the Project to incorporate minimum square footage requirements and to prohibit second-story, rear-facing windows on homes abutting lots in Moore Pond and Ox Bottom Manor. The Development Review Committee approved the Project, subject to the conditions outlined in the staff report and an additional condition regarding buffers. Compatibility Petitioners contend the Project would be incompatible with adjacent residential uses in Moore Pond and Ox Bottom Manor and, therefore, the Project should be denied because it violates the provisions of the Comp Plan and Code that require compatibility. Petitioners rely mainly on FLUE Policy 2.2.3, entitled “Residential Preservation,” which states that “Consistency with surrounding residential type and density shall be a major determinant in granting development approval.” Although Moore Pond and Ox Bottom Manor are also designated Residential Preservation, Petitioners claim the Project would be incompatible because of the differences in development type and density. The Project is the same development type (detached, single-family) and density (low density, 0-6 du/a) as the surrounding development type and density. Petitioners assert that the Project is a different development type because it is “cluster housing.” Cluster housing is not a development type. Clustering is a design technique. The clustering of detached, single-family houses does not change the development type, which remains detached, single-family. Petitioners object to the density of the Project of 1.73 du/a, but their primary concern is with the Project’s “net density” or the density within the development area (outside of the conservation easement). Most of the lots in the Project would be about 1/8 to 1/4 of an acre, with the average lot size being 0.26 acres. In contrast, the lots in Moore Pond range from 1.49 to 12.39 acres, with the average size being 3.08 acres. The lots in Ox Bottom Manor range from .53 acres to 0.96 acres, with the average size being 0.67 acres. There is also a significant difference in lot coverage between the Project and the two adjacent subdivisions. The witnesses for the County and Golden Oak never acknowledged the reasonableness of Petitioners’ claim of incompatibility or the notion that owners of large houses on large lots would object to having on their border a row of small houses on small lots. However, the objection of Moore Pond and Ox Bottom Manor residents was foreseeable. The gist of the arguments made by Oak Pond and the County is that the Project is compatible as a matter of law. Respondents demonstrated that the applicable provisions of the Comp Plan and Code, as interpreted by the County, treat a proposed Residential Preservation development as compatible with existing Residential Preservation developments. Put another way: a low density, detached single-family development is deemed compatible with existing low density, detached single- family developments. No deeper analysis is required by the County to demonstrate compatibility. Petitioners’ claim of incompatibility relies principally on FLUE Policy 2.2.3(e), which states in part: At a minimum, the following factors shall be considered to determine whether a proposed development is compatible with existing or proposed low density residential uses and with the intensity, density, and scale of surrounding development within residential preservation areas: proposed use(s); intensity; density; scale; building size, mass, bulk, height and orientation; lot coverage; lot size/configuration; architecture; screening; buffers, including vegetative buffers; setbacks; signage; lighting; traffic circulation patterns; loading area locations; operating hours; noise; and odor. Petitioners attempted to show that the application of these factors to the Project demonstrates it is incompatible with Moore Pond and Ox Bottom Manor. However, Policy 2.2.3 also sets forth guiding principles for protecting existing Residential Preservation areas from other types of development on adjoining lands. No guidelines are included for protecting Residential Preservation areas from proposed low density residential development. The County asserts that this reflects the County’s determination that low density residential development is compatible with existing Residential Preservation areas and, therefore, Policy 2.2.3 does not require that the Project be reviewed using the listed compatibility factors. The County showed that its interpretation of FLUE Policy 2.2.3 for this proceeding is consistent with its past practice in applying the policy. Respondents also point to Table 6 in FLUE Policy 2.2.26, which is a Land Use Development Matrix which measures a parcel’s development potential based on certain land use principles contained in the FLUE, including the parcel’s potential compatibility with surrounding existing land uses. The Matrix shows that a proposed low density residential land use “is compatible/allowable” in the Residential Preservation land use category. Petitioners argue that the Project is incompatible, using the definition of “compatibility” in section 163.3164(9), Florida Statutes: “Compatibility” means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Petitioners contend the Project would unduly negatively impact Moore Pond and Ox Bottom Manor. Respondents contend it would not. However, as explained in the Conclusions of Law, this definition in chapter 163 is not an extra criterion for approving or denying the Project. Without abandoning their argument that Policy 2.2.3 does not require a compatibility analysis for the Project, both Golden Oak and the County performed compatibility analyses because of the objections raised by adjacent residents. Golden Oak’s expert planner analyzed compatibility on a larger scale by looking at subdivisions within a quarter-mile radius of the Project site. She found a range of densities and lot sizes, including one subdivision with a higher density and smaller lot size. However, nothing in Policy 2.2.3 or the other provisions of the Comp Plan suggests that the incompatibility of a proposed development with an existing, adjoining development is permissible if the proposed development is compatible with another development within a quarter of a mile. Still, her analysis showed the County’s past practice in interpreting and applying the relevant provisions of the Comp Plan and Consistency Code is consistent with the County’s position in this proceeding. Respondents’ compatibility analyses were based in part on legal factors. For example, it was explained that under the Comp Plan, residential density is always applied as gross density rather than net density. This policy is reasonable because it encourages clustering and compact development which helps to achieve important objectives of the Comp Plan, such as the protection of sensitive environmental features. However, it does not follow that because clustering has benefits, it cannot cause incompatibility. Clustering is a well-established growth management technique, despite the fact that clustering can cause some adverse impacts when it increases densities and intensities on the border with adjoining land uses. Such impacts are addressed with buffer requirements. This approach strikes a reasonable balance of the Comp Plan’s goals, objectives, and policies. If the buffer requirements are inadequate, as Petitioners claim, that is an issue that cannot be addressed here. Petitioners also contend the Project is inconsistent with sections of the Code that require compatibility. For example, section 10-6.617 pertains to the Residential Preservation zoning district and states that, “Compatibility with surrounding residential type and density shall be a major factor in the authorization of development approval.” Section 10-7.505(1) provides that each development shall be designed to “be as compatible as practical with nearby development and characteristics of land.” These general statements in the Code are implemented through the more specific requirements in the Code for proposed new developments. Petitioners did not demonstrate that the Project is inconsistent with any of the specific requirements of the Code for the reasons already discussed. The County showed that its interpretations of section 10-7.617 and section 10-7.505(1) for this proceeding are consistent with its past practice in applying these provisions. Summary Compatibility for purposes of land use determinations is not in the eye of the beholder, but is determined by law. The County’s growth management laws incorporate professional planning principles and use development techniques and density ranges, which provide flexibility in achieving important objectives, such as environmental protection. The focus is not on lot-to-lot differences, but on maintaining stable communities and neighborhoods. The preponderance of the evidence, which includes the County’s past interpretation of, and practice in applying, the compatibility provisions of the Comp Plan and Code, demonstrates that the Project is consistent with all requirements for approval.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Leon County Board of County Commissioners enter a final order approving the Project, subject to the conditions outlined by the Development Review Committee in its written preliminary decision dated August 18, 2017. DONE AND ENTERED this 26th day of December, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2017. COPIES FURNISHED: Justin John Givens, Esquire Anderson & Givens, P.A. 1689 Mahan Center Boulevard Tallahassee, Florida 32308 Alex Nakis 6036 Heartland Circle Tallahassee, Florida 32312 Mark Newman 6015 Quailridge Drive Tallahassee, Florida 32312 Gene Sherron 6131 Heartland Circle Tallahassee, Florida 32312 Jessica M. Icerman, Assistant County Attorney Leon County Room 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed) Carley J. Schrader, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Gregory Thomas Stewart, Esquire Nabors, Giblin and Nickerson, P.A. Suite 200 1500 Mahan Drive Tallahassee, Florida 32308 (eServed) Kerry Anne Parsons, Esquire Nabors, Giblin & Nickerson, P.A. 1500 Mahan Drive Suite 200 Tallahassee, Florida 32308 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Erin J. Tilton, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Jeremy Vincent Anderson, Esquire Anderson & Givens, P.A. Suite B 1689 Mahan Center Boulevard Tallahassee, Florida 32308 (eServed) Vince S. Long, County Administrator Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 Herbert W. A. Thiele, County Attorney Leon County Suite 202 301 South Monroe Street Tallahassee, Florida 32301 (eServed)
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue The issue in this case is whether an amendment to the Metropolitan Dade County comprehensive plan adopted as Item No. 6, Ordinance No. 94-192, is "in compliance", as those terms are defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Village of Key Biscayne (hereinafter referred to as the "Village"), is a local government (a municipal corporation) located within Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department, among other things, is charged with responsibility for the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Metropolitan Dade County (hereinafter referred to as "Dade County"), is a political subdivision of the State of Florida. Dade County is responsible under the Act for the preparation, processing, and review of land use plans and amendments thereto within its jurisdiction. Intervenor, Marine Exhibition Corporation (hereinafter referred to as "Marine"), is the applicant for the amendment which is at issue in this case. Marine is the owner of the Miami Seaquarium (hereinafter referred to as the "Seaquarium"), a saltwater oceanarium and tourist attraction located in Dade County, Florida. The Village's Standing. The Seaquarium is located on Virginia Key, an island located in Biscayne Bay. The Seaquarium is connected with the mainland of Dade County by the Rickenbacker Causeway. The Village is located on Key Biscayne. Key Biscayne is an island located in Biscayne Bay. Key Biscayne is connected to Virginia Key. Key Biscayne is connected with the mainland of Dade County through Virginia Key. The Rickenbacker Causeway runs through Virginia Key, past the Seaquarium, over a bridge onto Key Biscayne. The Causeway becomes Crandon Boulevard, which runs to and through the Village and ends at Cape Florida, at the southeastern corner of Key Biscayne. Virginia Key and Key Biscayne are located within the jurisdictional boundaries of Dade County. The closest Village boundary to the Seaquarium is located approximately 2 and 1/4 to 2 and 1/2 miles from the Seaquarium property. The Village is located completely within Dade County's jurisdictional boundaries. The Village, therefore, owns property located in Dade County. The Village conducts all of its business within its city limits, located on Key Biscayne. The weight of the evidence failed to prove that the plan amendment at issue in this proceedings will "produce substantial impacts on the increased need for publicly funded infrastructure" of the Village or will create a "substantial impact on areas designed for protection or special treatment within the [Village's] jurisdiction." See Section 163.3184(1)(a), Florida Statutes. The Village raised objections by oral and written comments concerning the proposed amendment (hereinafter referred to as the "Proposed Amendment"), at public hearings during the period of time commencing with the transmittal hearing and ending when the Proposed Amendment was adopted by Dade County. The Village's objections and comments did not include objections or comments concerning density and intensity standards. The Seaquarium. The Seaquarium is located on thirty-seven acres. The property is owned by Dade County and has been subject to a long-term lease to Marine. Dade County also owns all structures erected on the site and all marine mammals. The Seaquarium has been in operation at its present site since 1954. The Seaquarium has a history of providing entertainment, educational and recreational uses to residents and visitors to Dade County. Existing uses of the Seaquarium include approximately ten marine mammal exhibits and corresponding shows featuring these mammals, a marina, theme-oriented gift shops and restaurants. Educational activities at the Seaquarium include: (a) a program to train teachers in marine science and student field trips (over 75,000 students attend the past year) in cooperation with Dade County and Broward County, Florida; (b) the largest manatee rehabilitation and recapture program in the United States; (c) an internship program with the Mast Academy, a magnet school for gifted high school students; and (d) research and development exchange programs with the National Oceanographic and Atmospheric Administration (hereinafter referred to as "NOAA"). Florida Quality Development Designation. Marine decided to improve its facilities at the Seaquarium through a project it labeled "Seaquarium Village." Marine initially sought and obtained a designation from the Department of the Seaquarium Village as a Florida Quality Development (hereinafter referred to as "FQD"), pursuant to Chapter 163, Florida Statutes. The Seaquarium Village project was subsequently challenged by the Village pursuant to Section 163.3215, Florida Statutes. The Village alleged that Seaquarium Village was not consistent with Dade County's comprehensive plan (hereinafter referred to as the "Plan"). The Third District Court of Appeal entered an opinion on November 9, 1993, finding that the project was inconsistent with the Dade County Comprehensive Development Master Plan (hereinafter referred to as the "Plan"). Village of Key Biscayne v. Dade County, 627 So.2d 1180 (Fla. 3d DCA 1993), rev. den., 639 So.2d 976 (1994). The Proposed Amendment. The Plan includes a Land Use Element. The Land Use Element identifies locations in Dade County where various land uses, including intensities of use, will be allowed during the period for which the Plan applies. The land uses are also depicted on the Future Land Use Map. One of the land uses provided for in the Plan is the "Parks and Recreation" land use. The Seaquarium is located within the "Parks and Recreation" Land Use Plan map category of the Plan. The Plan includes the following descriptive text concerning the "Parks and Recreation" Land Use Plan map category: Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational, entertainment or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Marine filed an application in November of 1993 with Dade County seeking approval of a modification of the "Parks and Recreation" land use category for the site of the Seaquarium. The proposed modification ultimately adopted by Dade County, after Dade County and Marine cooperated to agree on the proposed language, provides for the addition of the following language immediately after the descriptive text quoted in finding of fact 24: [Included in the category is the Seaquarium, a unique tourist attraction with a long history of educational, entertainment, and recreational benefit both to residents of Dade County and to visitors. Notwithstanding any other provisions in the Parks and Recreation section of the Land Use Plan Element, in order to continue and to enhance its contributions to the community, this facility may be authorized to renovate, expand, and increase the variety of its educa- tional, recreational and entertainment attractions. Accordingly, the following additional uses may be permitted at the Seaquarium site: recreational and educational uses, restaurants, gift shops, marine or water amusements, and environmentally- related theaters.] 1/ The Proposed Amendment does not apply to any Parks and Recreation site other than the Seaquarium site. Following transmittal of the Proposed Amendment to the Department, the Department issued its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), on or about September 1, 1994. In the ORC the Department objected, in relevant part, to the lack of adequate data and analysis to demonstrate the compatibility of the Proposed Amendment with the surrounding land uses and raised questions concerning whether the proposed project was in a Coastal High Hazard Area. In response to the ORC, Dade County provided the following information to the Department: (a) the record of the transmittal and adoption hearings; (b) Chapter 9J-11 deliverables; (c) information on the surrounding land uses in the vicinity of the Seaquarium; (d) the Seaquarium FQD; (d) the Seaquarium ADA; and (e) information concerning coastal high-hazard area. The proposed Seaquarium modification of the Parks and Recreation Land Use Element was adopted by Dade County on October 13, 1994, by Ordinance No. 94- 192. In December, 1994, after review of the Proposed Amendment and the additional information provided by Dade County, the Department issued a Notice of Intent to Find the Proposed Amendment in Compliance. The decision of the Department was challenged by the Village on or about December 30, 1994. Intensity or Density of Use. The Act provides the following regarding the Future Land Use plan element required to be included in all comprehensive plans: . . . designating proposed future general distribution, location, and extent of the uses of land for residential uses, commercial uses, industry, agriculture, recreation, conservation, education, public buildings and grounds, other public facilities, and other categories of the public and private uses of land. . . . Each land use category shall be defined in terms of the types of uses included and specific standards for the density or intensity of use. . . . Section 163.3177(6)(a), Florida Statutes. See also Rule 9J-5.006(3)(c)7., Florida Administrative Code. The requirement of Section 163.3177(6)(a), Florida Statutes, concerning densities and intensities applies to all comprehensive plans and amendments thereto. "Densities" and "intensities" are objective methods of determining the extent to which land may be utilized. "Densities" are usually expressed in terms of the number of units allowed per acre of land. Rule 9J-5.003(33), Florida Administrative Code, defines "density" as "an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre." This definition of "density" was first adopted by rule in 1994. Densities are usually associated with residential uses. "Density" requirements are not relevant to the Proposed Amendment because it does not involve residential use of land. "Intensities" are most often expressed in terms of spatial uses, such as the amount of allowable floor space, lot coverage, or height. Rule 9J- 5.003(63), Florida Administrative Code, defines "intensity" as "an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on natural resources; and the measurement of the use or demand on facilities and services." This definition of "intensity" was first adopted by rule in 1994. The purpose of requiring density and intensity standards is to promote intelligent planning which allows for the measurement of developments on natural resources and infrastructure capacity, and allows the evaluation of compatibility with surrounding land uses. Initial Approval of the Plan. The Plan was submitted to the Department for initial review in 1988. The Plan was one of the first comprehensive plans reviewed pursuant to the Act by the Department. At the time of the Department's initial review of the Plan, there was no definition of density or intensity provided by rule. The definitions of density and intensity included in Rules 9J-5.003(33) and (63), Florida Administrative Code, were not adopted until 1994. The Parks and Recreation category of the Plan, when originally submitted for review, was required to include an intensity standard. The Plan's definition of the Parks and Recreation land use category did not, however, contain a specific restriction on intensity of use such as a floor area ratio, maximum lot coverage, or height restriction. Rather than include a specific intensity restriction in the Plan, Dade County elected to describe the types of nonresidential uses which would be allowed under the Parks and Recreation land use category. Dade County restricted allowable uses to those which are complementary to the site and its natural resources. Dade County believed that its description of allowable uses constituted an adequate intensity standard, providing an objective measurement of the extent that land could be developed, the use and demand on natural resources, and the use and demand on facilities and services. Dade County is the largest county in Florida. It includes approximately 2000 to 2100 square miles. Dade County, therefore, elected to emphasize its natural resources and public service impacts on a "macromanagement" basis. The Parks and Recreation land use category included in the Plan allows a wide range of park and recreational uses, including "neighborhood parks, area parks, metropolitan parks, regional and state parks, including Everglades National Park, [and] tourist attractions such as the Seaquarium, Metro Zoo, [and] Viscaya . . . ." Transcript, Vol. III, Page 402. The Department approved the Plan without objection, recommendation or comment with regard to the definition of the Parks and Recreation land use category. The "Baby Seal Policy". The Department's policy concerning the application of the Act to growth management plans has evolved since the initial plans were reviewed. The Department has recognized that some of the plans it initially approved may be "less than perfect". In recognition of this problem, the Department found it necessary to develope a policy to deal with plans that do not comply with the Department's interpretation of the Act now that the Department has more experience interpreting and applying the Act. The Department's response to the problem of dealing with plans that may not comply with the Act, but have previously been approved, is referred to as the "Baby Seal Policy". This policy has been described as follows: Local government A's comprehensive plan provides that ten baby seals may be killed over the planning period while local government B's plan provides that no baby seals may be killed. Both plans are initially approved by the Department. Subsequently, the Department adopts a rule that prohibits the killing of baby seals. Local government A then amends its plan to allow the killing of eight baby seals rather than ten. Local government B also amends its plan to allow the killing of two baby seals. In applying the "Baby Seal Policy" the Department would approve local government's amendment because it moves local government A's plan closer to complying the prohibition against killing baby seals. Local government B's amendment would not be approved, however, because it moves its plan further from complying with the prohibition. The Department's Baby Seal Policy was developed so that the Department can comply with the requirement of Rule 9J-5.002(2)(h), Florida Administrative Code, that the Department consider as part of its review of plan amendments whether an amendment makes substantial progress towards consistency with applicable requirements of the rules and the Act. Rule 9J-5.002(2)(h), Florida Administrative Code, requires consideration during the review of a proposed plan amendment of the following: Whether the provision at issue constitutes substantial progress over existing provisions regarding consistency with and furtherance of Chapter 163, the State Comprehensive Plan, Strategic Regional Policy Plan and this Chapter, where the existing provisions are in a plan or plan amendment previously found in compliance. The Department's "Baby Seal Policy" encourages local governments to adopt amendments to previously approved plans (which may not be in compliance with all provisions of the Act and/or Chapter 9J-5, Florida Administrative Code), which bring those plans closer to being in compliance with the Act and/or Chapter 9J-5, Florida Administrative Code. I. Application of the Baby Seal Policy to the Proposed Amendment. The Department recognizes that the Parks and Recreation land use category of the Plan may not be in compliance with the requirements of Chapter 9J-5, Florida Administrative Code, because it does not provide for the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment, however, continues Dade County's choice of describing the Parks and Recreation land use category by specifying the types of allowable uses at the Seaquarium. There is no doubt that the Proposed Amendment includes uses allowable on the Seaquarium site which, when read alone and without regard to the Plan's overall definition of the Parks and Recreation land use category, are broad. The Proposed Amendment clearly does not include the type of intensity standard now required by Rule 9J-5.003(63), Florida Administrative Code. The Proposed Amendment does, however, provide more detail as to the allowable uses on the Seaquarium site than currently included in the Parks and Recreation land use category. Consequently, the Proposed Amendment does provide greater certainty for indentifying the potential impacts of development at the Seaquarium site than the current definition of the Parks and Recreation land use category. The Proposed Amendment does, therefore, move the Plan in the direction of compliance with Chapter 9J-5, Florida Administrative Code, in furtherance of the Baby Seal Policy and as required by Rule 9J-5.002(2)(h), Florida Administrative Code. Internal Consistency. Internal consistency between and within elements of a growth management plan is required by the Act. Internal consistency must be maintained when a plan is amended. Without consistency in the provisions of a plan, it will not be clear what actions are allowable and unallowable under a plan. The Proposed Amendment provides that certain modifications of the Seaquarium site will be allowable under the Plan "[n]otwithstanding any other provisions in the Parks and Recreation Section of the Land Use Plan Element . . . ." This language creates a clearly designated exception to, or deviation from, other requirements of the Land Use Plan Element. A clearly specified exception to, or deviation from, a provision in a plan does not create an inconsistency. The evidence failed to prove that the Proposed Amendment creates an internal inconsistency with the Plan. Data and Analysis. Plan amendments must be supported by data and analysis. Rules 9J- 5.005(2) and 9J-5.006(2), Florida Administrative Code. Dade County provided, in addition to information concerning the surrounding area and coastal high hazard areas requested by the Department, the FQD and the Application for Development Approval (hereinafter referred to as the "ADA"), to the Department in support of the Proposed Amendment. While the FQD and the ADA pertain to a specifically proposed development, these documents contain data concerning the Seaquarium site, the only site to which the Proposed Amendment applies. Although the Proposed Amendment is not limited to the project approved in the FQD or the portion of the ADA which relates expressly to the project approved in the FQD, the ADA contains information concerning the only site to which the Proposed Amendment applies. That information, or data, and the analysis thereof is relevant to a determination of whether the Proposed Amendment should be approved. The information contained in the ADA is useful in estimating the impacts of the types of development that are permissible pursuant to the Proposed Amendment and not just the impacts of the development addressed in the FQD. The FQD and the ADA also provide information concerning what type of project may reasonably be expected at the Seaquarium site. Much of the pertinent data contained in the ADA also constitutes the best information available concerning the Seaquarium site and, therefore, the subject of the Proposed Amendment. While the only expert witness called by the Village, Mr. David Russ, opined that the FQD does not constitute the data and analysis required in support of the Proposed Amendment, Mr. Russ did not give a similar opinion concerning the ADA. Nor had Mr. Russ read the ADA. Non-development specific data provided to the Department in the ADA included information concerning services and facilities related to development at the site. In particular, data is included in the ADA concerning traffic and emergency services (proposed traffic improvements, trips, the existing roadway network, the applicable level of service and projected background traffic). Data was also provided in the ADA concerning wastewater, drainage and potable water (existing water distribution and transmission systems, pervious and impervious conditions), and solid waste. Data and analysis concerning the natural resources of the Seaquarium site was also included in the ADA. Existing on-site vegetation and wildlife are inventoried and information concerning air quality and wetlands is provided. Data and analysis concerning historical and archeological resources is also provided in the ADA. Question 12 of the ADA provides information concerning the need for renovation and expansion of the Seaquarium site. Data and analysis concerning the need for redevelopment of the site was unrefuted by competent, substantial evidence. The Department was also provided with data and analysis concerning the area which surrounds the site. Surrounding uses included the University of Miami Rosentiel School of Marine and Atmospheric Sciences, the United States National Marine Fisheries Laboratory Station and offices, the National Oceanographic and Atmospheric Administration offices, the Mast Academy, the City of Miami Marine Stadium and the Metro Dade County Central Regional Wastewater Treatment Facility. The Seaquarium and redevelopment which would be allowable pursuant to the Proposed Amendment are compatible with these surrounding uses. The Village's suggestion that the data and analysis provided to the Department in the FQD and the ADA (which had not been read by the Village's expert witness) was not sufficient because the FQD pertains to a specific project is not supported by the weight of the evidence. The FQD and, more importantly, the ADA contain sufficient data and analysis to support the allowable land uses of the Proposed Amendment. In addition to suggesting that the data and analysis provided to the Department is insufficient because the data and analysis relates to a specific project, the Village has argued that insufficient data and analysis has been provided with regard to intensity of use. This argument is essentially an extension of the Village's argument concerning the lack of an intensity standard. There is as much, or more, data and analysis provided with the Proposed Amendment concerning intensity of use as there is to support the existing Parks and Recreation land use category. The data and analysis to support the Parks and Recreation land use category which is presumed to exist, may also be relied upon in reviewing a plan amendment. Additionally, the data and analysis provided as a part of the ADA is sufficient to support the maximum intensity of use allowable pursuant to the Proposed Amendment. The evidence failed to prove that there was not adequate data and analysis to support a determination that the Proposed Amendment is "in compliance".
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Amended Petition for Administrative Hearing Pursuant to Section 120.56, Florida Statutes, filed by the Village of Key Biscayne. DONE and ENTERED this 31st day of July, 1996, in Tallahassee Florida. LARRY J. SARTIN, 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 31st day of July, 1996.*
The Issue The issue is whether the City of Panama City's small scale development amendment adopted by Ordinance No. 2055.1 on February 8, 2005, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Creekstone is a limited liability corporation and presumed to be the owner of a 3.212-acre tract of land at 305 East Beach Drive, Panama City.3 (The record does not show when or if Creekstone actually purchased the property; when the application for a land use change on the property was filed with the City, Creekstone was a contract purchaser. In its Proposed Recommended Order, however, the City states that Creekstone "recently acquired" the property.) The property lies at the northwest edge of a residential area known as The Cove and is just south of the central business district of the City. The Cove is separated from the business district by a small waterbody known as Massalina Bayou (Bayou), which is spanned by the Tarpon Bridge (Bridge) at one of the Bayou's most narrow points. The 225-foot Bridge provides the most direct and easiest access between the two areas of the City. For many years, and beginning before the City adopted its Plan, Tibbetts Boat Works, Inc. (Tibbets) occupied the site and was engaged in the boat repair business, consisting of hull repair, engine maintenance, other mechanical services, and boat bottom painting, a legal but nonconforming use under the City's land development code. Photographs of the area suggest that the business is no longer active, presumably because the property has been sold. On or about December 8, 2004, SFB Investment Company, LLLP (SFB), who then owned the property but had a contract to sell it to Creekstone, filed an application with the City Planning Board seeking a change in the land use and zoning on the property. At the Planning Board meeting on January 10, 2005, the staff noted that the proposed change would "allow an encroachment of commercial into a predominately residential area" and recommended denial of the application on the ground that the change "is inconsistent with the LDR and the Comp Plan."4 By a 3-1 vote, the City Planning Board rejected the staff recommendation and recommended that the application be approved. On February 8, 2005, by a 4-1 vote, the City accepted the recommendation of the City Planning Board and adopted Ordinance No. 2055.1, which amended the FLUM by reclassifying the land use designation on the property from MU to GC for the purpose of allowing the owner to "develop [a] multi-family project on [the] property." (Simultaneously with that change, the City also changed the zoning on the property from Mixed Use- 3 to General Commercial-2, which allows a wide range of activities, including residential, professional office and services, low-intensity commercial, public/institutional/ utilities, and high-intensity commercial.) The MU land use classification "is intended to provide areas for medium to high density residential development and low intensity commercial development," allows a density of "not more than twenty (20) dwelling units per acre," and an intensity of "[n]o more than 75% lot coverage as determined by the size of the lot compared to the amount of impervious roof and driveway/ parking lot surface." On the other hand, the GC district is "intended to provide areas for high intensity commercial development, including retail sales and services, wholesale sales, shopping centers, office complexes, and other similar land uses." There are no density restrictions, but intensity is limited to "[n]o more than 90% lot coverage." Thus, while the two land uses are similar in some respects, the highest and best use on the property will now be "high intensity commercial development," such as shopping centers and office complexes, a much more intensive use than is presently permitted under the MU land use category. To address this concern, witness Harper indicated that SFB has filed a restrictive covenant on the property which includes a shoreline buffer, as well as use, height, and setback restrictions. At the Planning Board meeting on January 10, 2005, however, the staff stated "that a covenant would not be enforceable." Under the existing land use (MU), the owner can construct up to 64 residential units on the property. That number is derived by multiplying the size of the property (3.212 acres) times the allowed density (20 units per acre). However, the current zoning on the property (which is apparently tied to the MU land use category) prohibits the construction of buildings which exceed 65 feet in height. Because of this height restriction, which limits the number of residential units that can be constructed on the property, the owner has requested a change in the land use (and zoning) so that it can develop a multi-family residential condominium project (nine stories in height) with approximately 77 units. On March 10, 2005, Mr. Cooper filed his Petition challenging the small-scale amendment. He later filed an Amended Petition on April 21, 2005. Mr. Cooper resides and owns property one-half block south of the subject property (in an area designated as a special historical zone of the City) and submitted objections to the amendment during the adoption process. As such, he is an affected person and has standing to file this challenge. Joint Exhibit 9 reflects that Creekstone is a "contract purchaser" of the subject property. It also reflects that it appeared through counsel at the adoption hearing on February 8, 2005, and offered comments in support of the plan amendment. As such, Creekstone is an affected person and has standing to participate in this case. In the parties' Pre-Hearing Stipulation, Mr. Cooper (through his former counsel) identified numerous issues, many of which were not raised in his Amended Petition. At hearing, however, he contended only that the GC land use is incompatible with the character of the surrounding area, and that the amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the Future Land Use Element (FLUE) of the Plan. All of the objectives and policies relate to the compatibility issue. In all other respects, Petitioner agrees that the plan amendment is in compliance. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Subject Property West Beach Drive runs in a northwest-southeast direction through the downtown business portion of the City until a few blocks north of the Bridge, where it changes to East Beach Drive. The roadway continues south across the Bridge and in a southerly direction along the eastern edge of St. Andrews Bay, a much larger waterbody which lies between the City and Panama City Beach. Approximately one-half mile south of the Bridge, East Beach Drive takes a 90-degree turn to the east. Most, if not all, of the peninsula south of the Bayou and Bridge and continuing until East Beach Drive turns to the east is known as The Cove, a part of which has been designated by the City as a historic special treatment zone because of its historical significance. The predominate character of The Cove is older, single-family homes. As noted above, the Bayou separates The Cove from the central business district and serves as a natural barrier between the two areas. The property is an odd-shaped parcel which sits just east of the southern terminus of the Bridge and fronts on the Bayou. (The central business district lies directly across the Bayou to the north and northwest, is classified as General Commercial or Public/Institutional, and includes a wide array of offices, government buildings, restaurants, and other commercial and public uses.) The western side of the property faces East Beach Drive. Immediately across East Beach Drive to the west (and facing St. Andrews Bay) is the Cove Harbor Condominium, a nine-story, multi-family residential condominium which was apparently constructed under MU standards, which apply to that parcel. Immediately to the east of the property is a single- family residence and then a two-story townhouse complex. The southern boundary of the property (which appears to run approximately 325 feet or so) faces East Second Court, a local road which begins on East Beach Drive and runs eastward until Watson Bayou (perhaps a mile or so away). Although a map of the historical district was not introduced into evidence by the parties, the northern and western reaches of the special treatment zone appear to begin just east of the intersection of East Second Court and East Beach Drive since the homes at 114 and 122 East Second Court are designated as having historical significance. See Respondent's Exhibit 4. These two homes appear to lie directly across the street from the southern boundary of Creekstone's property. Except for a two-story, multi-family structure (Cedar Cove Townhouses) which sits across East Second Court facing the southwest corner of the subject property, the remainder of the southern boundary of Creekstone's property faces four single-family homes. Several other multi-family structures are scattered throughout the area to the south and east, while the remainder of the neighborhood extending for at least one-half mile to the south and all the way to Watson Bayou on the east is predominately single-family residences. Finally, a condominium is located about one-half mile south of the property on the waterfront where East Beach Drive makes a 90-degree turn to the east. Except for Tibbets' activities, there is no commercial encroachment (by non-conforming use or land use classification) in the immediate area south of the Bridge and Bayou. The current FLUM shows that, with three exceptions, the entire area south of the Bridge and the Bayou to the end of the peninsula, and extending east at least a mile to Watson Bayou, is either classified as Mixed Use or Residential Low Density. (Perhaps a mile or so to the southeast there is one parcel classified as Recreation, another as Public/Institutional (which is probably a school), and a smaller adjoining parcel classified as General Commercial.) Thus, if the change is approved, the subject property will be the only parcel south of the Bridge and Bayou (except for the above exceptions which lie around a mile away) which is classified as commercial; the remainder is either mixed use or residential. Over the years, Tibbets has been the subject of City code enforcement actions, investigations by City code enforcement personnel, and investigations by the Department of Environmental Protection (DEP). It has also caused chronic environmental problems in the area. On August 27, 2002, DEP and Tibbets executed a Consent Order to resolve certain violations. Also, on April 10, 2001, Mr. Paul L. Benfield, who apparently either owned Tibbets or was associated with it in some manner, entered into a Consent Order with DEP because of his unlawful filling of 0.114 acres of jurisdictional wetlands on the site. It is fair to describe the subject property as blighted, unsightly, and in disrepair. Photographs received in evidence suggest that the business is no longer active. The parcel is fenced on three sides, and, besides an older structure which apparently housed Tibbets' office, the property contains a mixture of empty storage crates, pilings, and various pieces of equipment that were once used in the boat repair business. There are also several docks or small piers extending into the Bayou from the northwestern corner of the site. Finally, it appears that much of the eastern half of the parcel contains wetlands and is largely undeveloped. Although the staff report dated December 31, 2004, recommended denial of the application, noting that it would allow "an encroachment of commercial into a predominately residential area," it acknowledged that "[a]llowing this request can make a case for helping to rid this area of a problematic non- conforming use." See Joint Exhibit 6, page 2. Petitioner's Objections As narrowed at hearing, Mr. Cooper contends only that the plan amendment is not compatible with the character of the adjoining land in The Cove and is thus internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the FLUE. He also relies upon Policy 2.5.5(6)(e) of the City's Land Development Code. However, plan amendments do not have to be consistent with land development regulations in order to be in compliance. See § 163.3184(1)(b), Fla. Stat. Objective 1.1 requires that the City maintain a FLUM "which coordinates future land uses with . . . [compatibility]5 of adjacent land uses." Policy 1.1.1, which furthers that objective, provides in part that the City will regulate land uses through the designation of land use districts on a FLUM, and that the "location and extent of development within the City" should be "consistent with . . . compatibility of adjacent land uses." Under this objective and policy, then, land use districts on the FLUM should be located in a manner which assures compatibility with adjacent land uses. Objective 1.4 provides that the City shall "maintain procedures for the elimination or reduction of land uses inconsistent with the character of the City and the future land uses designated in the Plan." In furtherance of that objective, Policy 1.4.1 requires that the City "restrict proposed development which is inconsistent with the character of the community." Taken literally, the objective encourages the City to reduce or eliminate land uses that are inconsistent with the character of the surrounding area or other land use districts. In the same fashion, the policy requires that the City prohibit development that is not consistent with the character of the adjoining area. Finally, among other things, Policy 1.2.1 requires that the City "administer land development regulations for implementation of the Comprehensive Plan" in such a manner as to "ensure the compatibility of adjacent land uses." (The City has adopted such regulations for this purpose.) Because the implementation of land development regulations is not in issue, the provision does not appear to be relevant. According to the City's Director of Public Works, The Cove, or at least that part which lies in the area around Creekstone's property, is considered to be a part of the central business district since the two areas are "contiguous," and therefore the extension of the commercial land use district across the Bayou would be consistent with the character of the immediate area. The same view was also expressed by witness Grey. However, the two areas are physically separated by a waterbody (the Bayou) and are connected only by a 225-foot bridge which spans the Bayou at one of its most narrow points. At the same time, the land uses in the two areas are distinctly different: the business district contains a wide array of commercial and public/institutional uses while the predominate character of The Cove is single-family residential, with a scattering of multi-family residential dwellings such as townhouses and a condominium. The fact that the City interprets its GC district (presumably through its zoning regulations) as allowing certain residential uses does not change this dichotomy in character. Therefore, it is inappropriate to consider The Cove and the central business district as being contiguous, or to base a finding of compatibility on the fact that commercial uses are now found across the Bayou in the business district. The commercial land use classification has never been extended into the residential neighborhood south of the Bayou. If the change becomes effective, the new land use would be incompatible with the Residential Low Density and Mixed Use land uses which now make up the entire neighborhood. It would also be incompatible with the historic special treatment zone, which lies directly across the street from Creekstone's property. Finally, the creation of a commercial district in this area of The Cove would change the character of the neighborhood, and it is fair to infer that, even if SFB's covenant is enforceable, it would still lead to, and justify, the reclassification of other nearby parcels into commercial uses. Given these considerations, the proposed land use is internally inconsistent with the City's objective and policy that there be "[compatibility] of adjacent land uses," see Objective 1.1 and Policy 1.1.1, and Plan provisions encouraging the elimination of land uses and associated development which are inconsistent with the "character of the community." See Objective 1.4 and Policy 1.4.1. The minutes of the two meetings which culminated in the adoption of Ordinance No. 2055.1 reflect that the City's (and Planning Board's) principal rationale for the reclassification of the property was to eliminate an unsightly nonconforming use (boat repair business) which occupied the site. While it is true that the City's Plan encourages the revitalization and redevelopment of blighted areas, and provides that developers should be given "flexibility" when seeking to revitalize blighted areas, see Objectives 1.3 and 1.15 of the FLUE, there is no evidence that these objectives are intended to override (and trump) the provisions of the Plan which require that adjacent land uses be compatible with one another and preserve the character of the neighborhood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2055.1 is not in compliance. DONE AND ENTERED this 19th day of August, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2005.
The Issue At issue in these proceedings is the validity of respondent's proposed rules 9J-5.003(140) and 9J-5.006(6).
Findings Of Fact The parties Petitioner, St. Joe Paper Company, is a Florida corporation which owns either directly or through its subsidiaries approximately 1,500,000 acres of land in Florida. Petitioner, Florida East Coast Industries, Inc., is also a Florida corporation which owns either directly or through its subsidiaries approximately 17,500 acres of land along the east and west coast of Florida. Respondent, Department of Community Affairs (Department or DCA), is the state land planning agency under the provisions of Chapter 163, Part II, Florida Statutes, [the "Local Governmental Comprehensive Planning and Land Development Regulation Act" (the "Act")]. As the state land planning agency under the Act, the Department is charged by law with the duty to provide technical assistance to local governments in preparing comprehensive plans and with the duty to ascertain whether local comprehensive plans or plan amendments are in compliance with the provisions of Chapter 163, Part II, Florida Statutes. Here, the parties have stipulated that petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., as well as their subsidiaries, and intervenors, Florida League of Cities, 1000 Friends of Florida, Department of Environmental Protection, Florida Association of Realtors, R. J. Collins, Florida Electric Power Coordinating Group, and Florida Association of Counties, have standing. No such stipulation was, however, accorded intervenors Florida Land Council, Inc., Florida Farm Bureau Federation, Highlands County Farm Bureau, and Claude E. Smoak, Jr., and they offered no proof at hearing to demonstrate standing. Notwithstanding, the Department raised no objection and its post hearing submittal does not contest their standing. Publication of notice and the economic impact statement On October 2, 1992, the Department first published notice of the proposed revisions to Chapter 9J-5, Florida Administrative Code, in volume 18, number 40, of the Florida Administrative Weekly. Such publication contained the following statement regarding the economic impact of the proposed rules: SUMMARY OF THE ESTIMATED ECONOMIC IMPACT OF THE PROPOSED RULES: The estimated agency cost to be incurred by this action is $3,627, which is the cost of promulgating the rule amendment . . . It is not anticipated that the amendment will generate additional costs to local governments and other affected persons above and beyond those attributable to existing rules and statutes. Ultimately, it is believed that this amendment will result in more efficient patterns of development which allow services and facilities to be provided more cost efficiently . . . to local governments. The procedures required by the proposed amendments have no significant impact on competition and the open market for employment. There is no impact on small or minority business as defined by the Florida Small and Minority Business Assistance Act of 1985. On October 23, 1992, petitioners filed their initial petition for an administrative determination of the invalidity of the proposed rules. Such petition contended, inter alia, that the proposed rules were invalid for the agency's failure to prepare an economic impact statement that complied with the provisions of Section 120.54(2)(c), Florida Statutes. Petitioners did not, however, at any time, file a request for the preparation of an economic impact statement with the agency. 1/ Background of the rules Pursuant to Section 163.3184(8)(a), Florida Statutes, the Department is obligated to review each adopted local plan or plan amendment and determine if it is in compliance with the Act. Section 163.3184(1)(b), Florida Statutes, defines "in compliance" as: . . . consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II. In 1985 the Legislature directed the Department to develop Chapter 9J- 5, Florida Administrative Code, and apply it to the review of local plans. The Legislature has reviewed the rule, as adopted, and given it special legal protection from rule challenges. Section 163.3177(10), Florida Statutes. Among the rules so approved, was Rule 9J-5.006 which provided that "the purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of the local government comprehensive plan elements." Rule 9J-5.006(3)(b)7 provides that the future land use element shall contain specific goals, objectives and policies which discourage the proliferation of urban sprawl, and Rule 9J-5.011(2)(b)3 provides that the general sanitary sewer, soiled waste, drainage, potable water and natural groundwater aquifer recharge element shall contain objectives and policies which address the use of existing facilities and the discouragment of urban sprawl. The Department has, since approximately 1988, developed, refined and explicated its policy regarding the discouragement of urban sprawl in local government comprehensive plans. In a technical memo issued in 1989, the Department observed: If the goals and objectives of Florida's growth management laws are to be achieved, local plans must effectively deal with urban sprawl and the closely related issues of conservation, natural resource protection, and efficient use of public facilities and services. [DCA Exhibit 12] That publication further set forth the Department's definition of urban sprawl, and discussed the various provisions in the State Comprehensive Plan (Chapter 187, Florida Statutes), Chapter 163, Part II, Florida Statutes, and Chapter 9J- 5, Florida Administrative Code, which related to the discouragement of urban sprawl. As for the term "urban sprawl," the technical memo provided: The term "urban sprawl" as it is applied by the DCA in its review of local plans is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. * * * Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development can result in increased risks to water supplies and sensitive environmental areas. * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of crub and median cuts and access points permitted. Strip development frequently overburdens arterial roadways with local trips because local road networks are poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low- density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. * * * In other words, urban sprawl is the epitome of bad land use planning. It adversely impacts and often destroys precious natural resources. It promotes inefficient use of land resources and existing public facilities and services, and makes it difficult or impossible to provide new infrastructure and services efficiently to new development. It produces development that is typically unsightly and not aesthetically pleasing. It produces sterile, one-dimensional urban environments which are not convenient, enjoyable or healthy for their residents. Successfully discouraging urban sprawl through local comprehensive planning is not a mystical art. It requires rigorous data collection, thorough analyses of current and future needs, effective planning, and responsible decision making. . . . Also pertinent to the Department's policy on urban sprawl, and an assessment of the propriety of the proposed rules, the State Comprehensive Plan contains a number of goals and policies which both individually and collectively address the issue of urban sprawl. Some of these goals and policies are as follows: (5) HOUSING-- Goal.--The public and private sectors shall increase the affordability and availability of housing for low-income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost- effective operations. Policies-- * * * 3. Increase the supply of safe, affordable, and sanitary housing for low-income and moderate-income persons and elderly persons by alleviating housing shortages, recycling older houses and redeveloping residential neighborhoods, identifying housing needs, providing incentives to the private sector to build affordable housing, encouraging public- private partnerships to maximize the creation of affordable housing, and encouraging research into low-cost housing construction techniques, considering life-cycle operating costs. * * * (8) WATER RESOURCES.-- Goal.--Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. Policies.-- * * * 2. Identify and protect the functions of water recharge areas and provide incentives for their conservation. * * * 5. Ensure that new development is compatible with existing local and regional water supplies. * * * Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features. Protect aquifers from depletion and contamination through appropriate regulatory programs and through incentives. Protect surface and groundwater quality and quantity in the state. * * * Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state. NATURAL SYSTEMS AND RECREATIONAL LANDS-- Goal.--Florida shall protect and acquire unique natural habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. Policies.-- Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. Acquire, retain, manage, and inventory public lands to provide recreation, conservation, and related public benefits. Prohibit the destruction of endangered species and protect their habitats. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic and recreational value. Develop and implement a comprehensive planning, management, and acquisition program to ensure the integrity of Florida's river systems. Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation. Expand state and local efforts to provide recreational opportunities to urban areas, including the development of activity- based parks. * * * 13. Encourage the use of public and private financial and other resources for the development of recreational opportunities at the state and local levels. AIR QUALITY.-- Goal.--Florida shall comply with all national air quality standards by 1987, and by 1992 meet standards which are more stringent than 1985 state standards. Policies.-- * * * 2. Ensure that developments and transportation systems are consistent with the maintenance of optimum air quality. * * * ENERGY-- Goal.--Florida shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors, while at the same time promoting an increased use of renewable energy resources. Policies-- 1. Continue to reduce per capita energy consumption. * * * Improve the efficiency of traffic flow on existing roads. Ensure energy efficiency in transportation design and planning and increase the availability of more efficient modes of transportation. * * * HAZARDOUS AND NONHAZARDOUS MATERIALS AND WASTE.-- Goal.--All solid waste, including hazardous waste, wastewater, and all hazardous materials shall be properly managed, and the use of landfills shall be eventually eliminated. Policies-- * * * 11. Identify, develop, and encourage environmentally sound wastewater treatment and disposal methods. * * * LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new popu- lation and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the livability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. * * * 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. * * * DOWNTOWN REVITALIZATION.-- Goal.--In recognition of the importance of Florida's developing and redeveloping downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.-- Provide incentives to encourage private sector investment in the preservation and enhancement of downtown areas. Assist local governments in the planning, financing, and implementation of development efforts aimed at revitalizing distress downtown areas. Promote state programs and investments which encourage redevelopment of downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- Provide incentives for developing land in a way that maximizes the uses of existing public facilities. Promote rehabilitation and reuse of existing facilities, structures, and buildings as an alterna- tive to new construction. Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents. * * * (20) TRANSPORTATION-- Goal.--Florida shall direct future transport- ation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. Policies.-- * * * 2. Coordinate transportation investments in major travel corridors to enhance system efficiency and minimize adverse environmental impacts. * * * Encourage the construction and utilization of a public transit system, including, but not limited to, a high-speed rail system, in lieu of the expansion of the highway system, where appropriate. Ensure that the transportation system provides Florida's citizens and visitors with timely and efficient access to services, jobs, markets, and attractions. * * * (23) AGRICULTURE.-- Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Policies. * * * 9. Conserve soil resources to maintain the economic value of land for agricultural pursuits and to prevent sedimentation in state waters. The technical memo, heretofore discussed, addressed in significant detail how some of these goals and policies impact the issue of urban sprawl. The Department has also explicated its policy definition of urban sprawl, as well as the significance of urban sprawl to the state comprehensive plan, in a number of cases where, under the provisions of Section 120.57, a hearing was held to determine whether a plan was in compliance. [See, e.g., Department Exhibits 4-6]. More recently, a challenge to the Department's nonrule policy was rejected by a Hearing Officer of the Division of Administrative Hearings, and that decision was affirmed on appeal. Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). In that case, at page 968, the court observed: . . . The hearing officer found that indeed, there was a consensus on the meaning of urban sprawl and that urban sprawl is: [T]he extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard develop- ment pattern in which land uses are not functionally related to each other. Common patterns of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non- urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non- urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Next, and more importantly, the hearing officer found that DCA does not have any policies of general applicability concerning the application of the urban sprawl rules which it consistently applies to individual plans. The DCA has yet to crystallize any urban sprawl policies which it intends to apply to individual plans. He noted that the application process, which is by nature adjudicatory, demands a through understanding of each plan, including the data and analysis describing the characteristics of the land and existing land uses; the goals, objectives and policies prescribing proposed land uses; and the future land use map. Indeed, he recognized that the myriad of details involved in applying the urban sprawl rules to an individual plan may preclude rulemaking, but even if theoretically possible, rulemaking in the area of application is not now practicable. In short, the alleged nonrule policies do not meet the definition of a rule, Section 102.52(16). These findings, which are conclusive of the outcome of the rule challenge, are based upon competent substantial evidence in the record. Adam Smith Enterprises, Inc. v. Department of Environmental Regulation, 553 So.2d 1260, 1274 (Fla. 1st DCA 1989). The purpose of Chapter 9J-5 and the proposed rules The purpose of Chapter 9J-5, as stated in 9J-5.001, is to "establish minimum criteria for the preparation, review, and determination of compliance of comprehensive plans" pursuant to Chapter 163, Part II, Florida Statutes. "Criterion " is defined in Webster's New Collegiate Dictionary (1974) as "a standard on which a judgment or decision may be based." Consistent with such purpose, Chapter 9J-5 has heretofore established the general requirements for local comprehensive plans, including format (elements), data and analysis requirements, level of service standards, planning time frames, and monitoring and evaluation requirements. Rule 9J-5.005, Florida Administrative Code. The chapter also includes standards for the adoption of concurrency management systems to ensure that adopted level of service standards required for roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation, and mass transit, if applicable, will be maintained. Rules 9J- 5.0055 and 9J-5.0057, Florida Administrative Code. Finally, the chapter includes the minimum requirements for the future land use element; traffic circulation element; mass transit element; ports, aviation and related facilities element; housing element; sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element; coastal management element; conservation element; recreation and open space element; intergovernmental coordination element; and capital improvement element. Common to each of these elements is the requirement that the local government assess current conditions and needs, and project future growth based on appropriate and relevant data and analysis. Rules 9J-5.006-5.016, Florida Administrative Code. Here, the Department is proposing to define the term "urban sprawl" for purposes of Chapter 9J-5 and to establish a methodology or standard for the review of local comprehensive plans or plan amendments for the discouragement of urban sprawl. By so doing, the Department is seeking to codify in rule form the policies it has previously explicated on the subject. In gauging the propriety or sufficiency of the proposed rules, it is important to recognize that an analysis of urban sprawl is but one aspect of a complicated evaluation of a particular plan or plan amendment for consistency, and that such analysis is peculiarly dependent upon an evaluation of the specific plan or plan amendment and its supporting data and analysis. Concomitantly, an analysis of a plan or plan amendment to discern whether it discourages urban sprawl is site or community specific, and no single formula could address the myriad of growth patterns existent within the diverse communities of the State of Florida with mathematical certainty. The proposed rules The rules challenged in these proceedings are proposed rule 9J- 5.003(140), which defines "urban sprawl," and proposed rule 9J-5.006(6), which establishes a process for the review of plans for discouraging the proliferation of urban sprawl. Proposed rule 9J-5.003(140), defines "urban sprawl" as follows: "Urban sprawl" means urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: The premature or poorly planned conversion of rural land to other uses. The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area. The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. Urban sprawl is typically manifested in one or more of the following land use or development patterns: (1) Leapfrog or scattered development; ribbon or strip commercial or other development; or (3) large expanses of predominantly low-intensity, low-density, or single-use development. This definition of urban sprawl includes terms which also have proposed definitions in Rule 9J-5.003, and are not the subject of challenge. These provisions are as follows: (35) "Density" means an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre. * * * (37) "Development" has the meaning described in s. 380.04, F.S. * * * (55) "Functional relationship" means a complementary and interactive relationship among land uses or development, including at a minimum a substantial and positive exchange of human interaction, goods, resources, institutions, services, jobs or workers between land uses or developments. * * * (64) "Intensity" means an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on or below ground; the measurement of the use of or demand on natural resources; and the measurement of the use of or demand on facilities and services. * * * (116) "Rural areas" means low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property. The definition of urban sprawl proposed by the Department is a sound generic definition that finds support in the literature and among professional planners. Indeed, urban sprawl is generally conceived as an extension of urban- type development into rural or sparsely developed lands in a haphazard development pattern in which land uses are not functionally or proximately related to each other. Such development may be reasonably described as uncontrolled, poorly planned and premature since it commonly occurs in areas where infrastructure and services do not already exist to serve it and where the urban development or uses are not functionally related to the uses which predominate the area. Moreover, the proof supports the conclusion that, as observed in the proposed rule, the three patterns in which urban sprawl commonly manifests itself are leapfrog or scattered development, ribbon or strip commercial or other development (i.e., retail, office and multifamily residential development), and large expanses of predominately low-intensity, low density, or single-use development. While the proposed rule is sound in a generic sense, that does not suggest that the exercise of professional planning judgment is not required for its application. Indeed, whether the land area at issue in a comprehensive plan or plan amendment is a rural area interspersed with generally "low-intensity or low-density urban uses," and whether such uses or planned uses may be reasonably characterized as the "premature or poorly planned conversion of rural land to other uses," the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area," or the "creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided," certainly involve the exercise of professional judgment in any analysis of a comprehensive plan or plan amendment. Such analysis is not, however, bereft of objective factors to guide it or to test its ultimate conclusions. Indeed, any such analysis is dependent upon the specific comprehensive plan or plan amendment under review, which would include the future land use element, as well as the local government's specific data and analysis which support it. The other rule under challenge, proposed rule 9J-5.006(6), establishes a process for the review of comprehensive plans or plan amendments for discouraging the proliferation of urban sprawl. It is organized into twelve paragraphs, with paragraphs (g)-(j) being the focus of the subject challenge. The purpose or function of paragraphs (g)-(j) are described in the proposed rule as follows: Use of indicators. Paragraph (6)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. Methodology for determining indicators. Paragraphs (6)(h) through (6)(j) describe the three major components of a methodology to determine the presence of urban sprawl indicators. Paragraph (6)(h) describes how land use aspects of a plan shall be analyzed. The land use element, including both the future land use map and associated objectives and policies, represents the focal point of the local government's planning effort. Paragraph (6)(i) describes the unique features and characteristics of each jurisdiction which provide the context of the analysis and which are needed to evaluate the extent, amount or frequency of an indicator and the significance of an indicator for a specific jurisdiction. Paragraph (6)(j) recognizes that land use plans generally may be significantly affected by other development policies in a plan which may serve to mitigate the presence of urban sprawl indicators based on the land use plan alone. Paragraph (6)(j) describes development controls which may be used by a local government to mitigate the presence of sprawl. Simply stated, paragraphs (h)-(j) are the components for an analysis of a plan or plan amendment to discern whether any of the indicators of urban sprawl, specified in paragraph (g), are present. If present, "the extent, amount or frequency of that indicator . . . [or] multiple indicators" must "be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Proposed rule 9J-5.006(6)(d). The primary indicators, established by proposed rule 9J-5.006(6)(g), that a plan or plan amendment does not discourage the proliferation of urban sprawl, are stated to be: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits in fill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among liked or related land uses. Results in the loss of significant amounts of functional open space. As heretofore found, urban sprawl is typically manifested by leapfrog or scattered development, ribbon or strip commercial or other development, and large expanses of predominantly low-intensity, low-density, or single-use development. Indicators 1-3 are appropriate indicators of urban sprawl as they reflect the three typical ways in which it is manifested. Moreover, a plan or plan amendment that evidenced such characteristics might reasonably be found not in compliance with the mandates of Sections 163.3177(1) and (6)(a), Florida Statutes; the State Comprehensive Plan, Section 187.201(16) and (18), Florida Statutes; and, the provisions of Chapter 9J-5, Florida Administrative Code, relating to, inter alia, the minimum criteria required of local government plans relating to the future land use element, and such provisions of law may be reasonably read to speak to the issue of discouraging urban sprawl. Indicator 4 is also an appropriate indicator of urban sprawl since the premature or poorly planned conversion of rural land to other uses frequently intrudes on, or fails to adequately protect and conserve natural resources, such as wetlands, natural groundwater aquifer recharge areas, lakes, rivers and shorelines. As with other indicators, this indicator finds support in, and furthers, existent law which speaks to the adoption of standards for the orderly and balanced growth of an area, including the conservation and protection of natural resources. See Section 163.3177(1) and (6)(d) and (g), Florida Statutes, Section 187.201(9), (10) and (16), Florida Statutes, and Rules 9J- 5.006, 9J-5.011, 9J-5.012, and 9J-5.013, Florida Administrative Code. Indicators 5 and 9 are also appropriate indicators of urban sprawl since the intrusion of urban activities into rural areas frequently has negative impacts on rural uses such as logging, farming and mining. As with the previous indicators, these indicators are supported by, and further, existent law, which addresses the orderly and balanced development of the area, the control and distribution of population densities, the conservation of soil resources to maintain viable agricultural pursuits, and the separation of rural and urban uses. See Section 163.3177(1), and (6)(a) and (d), Florida Statutes, Section 187.201(16)(a), 16(b)2, (23)(a) and (23)(b)9, Florida Statutes, and Rule 9J- 5.006, Florida Administrative Code. Indicators 6 and 7 are also appropriate indicators of urban sprawl since a failure to utilize existing and future capacity of public facilities and services often evidences a failure to guide development into areas with existent infrastructure appropriate for development. These indicators are consistent with, and further, current comprehensive planning laws which favor orderly and balanced development, encourage efficient development, and maximize the use of existing public facilities. See Section 163.3177(1) and (6)(a), Florida Statutes, Section 187.201(16)(a) and (b)1, (17)(a), (18)(a), and (18)(b) 1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 8 is an appropriate indication of urban sprawl for the same reasons addressed as to indicators 6 and 7, and because such premature expansion of land uses requires the extension of public facilities and services at disproportionate costs. This indicator is also consistent with, and furthers, the comprehensive planning laws addressed as to indicators 6 and 7. Indicator 10 is an appropriate indication of urban sprawl since a failure to encourage infill development or the redevelopment of existing neighborhoods and communities is consistent with failing to discourage urban sprawl. This indicator is consistent with, and furthers, the comprehensive planning laws which favor orderly and balanced growth, maximizing the use of existing facilities, the renewal of blighted areas and the revitalization of downtown areas. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(a), (16)(b)1-3, 17(a), 17(b)2, (18)(a) and (18)(b)1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 11 is an appropriate indication of urban sprawl for the same reasons addressed as to indicator 10, and is consistent with and furthers the comprehensive planning laws supporting that indicator. See also Rule 9J-5.010, Florida Administrative Code. Moreover, the encouragement of an attractive and functional mix of living, working, shopping and recreational activities in an urban area is the antithesis of urban sprawl. Indicator 12 is an appropriate indication of urban sprawl since urban sprawl patterns often result in poor accessibility among related land uses and increase the cost of transportation between related uses. This indicator is consistent with and furthers the comprehensive planning laws which favor orderly, balanced and efficient development, which includes timely and efficient access to services, jobs, markets and attractions. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(b)1 and 3, and (20)(b)9, Florida Statutes, and Rule 9J5-5.006, Florida Administrative Code. Finally, indicator 13 is an appropriate indication of urban sprawl since urban sprawl patterns often result in the loss of significant amounts of functional open spaces ("undeveloped lands suitable for passive recreation or conservation"). This indicator is consistent with and furthers the comprehensive planning laws which address orderly and balanced growth, conservation of natural resources, and the need for recreational and open space. See Section 163.3177(1) and (6)(d) and (e), Florida Statutes, Section 187.201(10) and (16)(b)2, Florida Statutes, and Rules 9J-5.006, 9J-5.013, and 9J-5.014, Florida Administrative Code. While the indicators are reasonable in a generic sense, their existence or significance in any given case is wholly dependent upon an analysis of the specific plan or plan amendment and the local government's specific data and analysis which support it. Notably, these are the factors contemplated by the provisions of paragraphs (h)-(j) of the proposed rule which, when analyzed, presume to provide the insight necessary to render such a conclusion as to whether any indicators of urban sprawl are present. The first step in the analysis is an evaluation of land uses, as prescribed by paragraph (h). Under such provision, a land use analysis is the focus of the review of the plan or plan amendment when determining whether it discourages urban sprawl. The rule provides a list of ten factors by which each land use type (i.e., residential, commercial, industrial, agricultural), included within the plan or amendment, will be evaluated. These factors are: extent, location, distribution, density, intensity, compatibility, suitability, functional relationship, land use combinations, and demonstrated need over the planning period. "Extent," "distribution," "density," "intensity," "compatibility," "suitability," and "functional relationship" are defined by proposed rule 9J- 5.003(50), (39), (35), (64), (28), (131) and (55), respectively. The term "demonstrated need over the planning period" is a term described in existing Rule 9J-5.006, which requires an analysis of the amount of land needed to accommodate the projected population, including the categories of land use and their densities or intensities of use. Petitioners did not challenge any of these rule definitions. The terms "location" and "land use combinations," while not defined in the rules, have a commonly understood meaning among professional planners. "Location" means the situs or relationship of any one land use to any other land use or geographic feature. "Land use combinations" means the different types of land uses (i.e., residential, commercial, industrial, agricultural) on a land use map. Paragraph (i) of the proposed rule specifies the local conditions against which each of the land use factors described in paragraph (h) is to be evaluated. The paragraph lists ten features or characteristics to be used in this evaluation which, like the analysis in paragraph (h), is based on the plan or plan amendment and its underlying data and analysis. These factors are: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Petitioners offered no proof at hearing directly challenging the propriety or reasonableness of any of the factors listed in this paragraph. Moreover, one would expect a plan or plan amendment, together with its data and analysis, to address these factors. Paragraph (j) of the proposed rule sets forth a list of development controls which, to the extent they are included in a local plan, will be evaluated to determine their impact on the land uses at issue and, therefore, the ultimate issue of whether the plan or amendment discourages urban sprawl. A local government is not required to adopt any of the development controls, but if they elect to include them in their plan or plan amendment, the controls, which may mitigate or obviate an urban sprawl issue, are pertinent to the urban sprawl question. Indeed, each of the development controls is an accepted planning technique to control or discourage urban sprawl, and a professional planner should be familiar with such controls and their implications. Viewing the provisions of paragraphs (g)-(j) as a whole, the gist of petitioners' challenge appears to be that, while the purpose of the rule is to discourage urban sprawl, the rule fails to indicate "how much sprawl is acceptable and how much sprawl is too much," that the various indicators and criteria have no established weighting, and the terms used lack definition. Under such circumstances, petitioners argue the rules are vague or vest unbridled discretion in the agency. [See Petitioners' proposed recommended order, paragraphs 27-29.] Such concerns are not however, supported by the proof. As heretofore noted, the meaning applied to the terms used in the rules at issue is contained in other proposed rules, the existing rule, or the terms are commonly understood among professional planners. Moreover, in most cases, the terms used are identical to those employed by the Legislature in the enactment of Chapter 163, Part II, and Chapter 187, Florida Statutes, and the provisions of existing Rule 9J-5, which has been accorded special status by the Legislature under Section 163.3177(9), Florida Statutes. Under such circumstances, these terms have been routinely applied for a significant period of time in the preparation and review of local plans, and are presumably understood by professional planners. In concluding that the indicators and criteria are reasonable, it has not been overlooked that they do not have an established weighting, nor that professional planners could reasonably disagree in their application to a particular circumstance. As to establishing a weighting for each indicator or criteria, the variety of circumstances among local governments and their plans or proposed amendments would foreclose such an approach. As to disagreements among professional planners, such is not a failing of the rule, but the consequence of the diversity or vagary among local plans or amendments, data and analyses and local conditions. Notwithstanding, the plans or amendments, data and analyses, and local conditions provide an objective basis upon which an evaluation can be made and, if necessary, challenged and tested. Finally, as to the rule's failure to prescribe "how much sprawl is acceptable and how much sprawl is too much" the same conclusion must prevail, since it is the plan or amendment, data and analysis, and local conditions that will derive that answer and not the rule. Indeed, the benchmark adopted by the Department to "discourage the proliferation of urban sprawl" is not unreasonable under the circumstances. The common meaning of "discourage" and "proliferation" used in the Department's mandate provide a reasonable benchmark for addressing a problem that cannot be quantified. The word "discourage" means "To dissuade or deter . . . To hamper; hinder . . . To try to prevent," and the word "proliferation" means "To increase or spread at a rapid rate." The American Heritage Dictionary, New College Edition (1979). In reviewing plans or plan amendments as required by the Act, it is presumed that the Department's planners will exercise sound planning judgment and will conform their conduct to existent law. See e.g., Atlantic Coast Line R. Co. v. Mack, 57 So.2d 447 (Fla. 1952). Should the Department fail to do so, or should there be a divergence of opinion among the parties or professional planners, the statutory framework provided by Section 163.3184, Florida Statutes, which establishes the procedures for adoption of comprehensive plans and plan amendments, provides a review process to test, if necessary, the sufficiency and consistency of any Departmental determination regarding urban sprawl or any other planning issue. Moreover, during the course of such review, deference is accorded the decision of the local government, not the Department. Regarding the review process, Section 163.3184, Florida Statutes, provides for initial review of proposed comprehensive plans and plan amendments by the Department, and the rendering of an "Objections, Recommendations, and Comments Report" (ORC Report) by the Department to the local government. The local government, upon receipt of the ORC report, may then adopt or adopt with changes the proposed plan or plan amendment. If adopted, a copy of the adopted plan or plan amendment is filed with the Department, which has 45 days to review it and determine if the plan or amendment is in compliance with the Act. The Department's determination of compliance can only be based upon one or both of the following: The state land planning agency's [Department's] written comments to the local government . . .; and Any changes made by the local government to the comprehensive plan or plan amendment as adopted. Section 163.3184(8)(a), Florida Statutes. If the Department issues a notice of intent to find the plan in compliance, any affected person is accorded an opportunity to file a petition for review pursuant to Section 120.57, Florida Statutes. "In this proceeding the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Section 163.3184(9)(a), Florida Statutes. Should the Department issue a notice of intent to find the comprehensive plan or plan amendment not in compliance, the notice is forwarded to the Division of Administrative Hearings (DOAH) for review pursuant to Section 120.57, Florida Statutes. In such proceeding, . . . the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a prepond- erance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination is fairly debatable. Section 163.3184(10)(a), Florida Statutes. In either case, the recommended order rendered by DOAH is subject to final agency action by the Department or the Administrative Commission, as appropriate, and ultimately judicial review. Sections 120.68 and 163.3184(9), (10) and (11), Florida Statutes.
The Issue The issue is whether a proposed amendment to the Pinellas County Countywide Future Land Use Plan (FLUP) changing the land use designation on a 22.18-acre parcel located at 2301 Chautauqua Avenue in the City of Clearwater (City) from Residential Suburban/Preservation to Residential Low/Preservation should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1988, the Legislature provided the County with countywide planning authority (see Chapter 88-458, Laws of Florida). That same year, the Legislature enacted Chapter 88- 464, Laws of Florida, which amended Chapter 73-594, Laws of Florida, and required the County to develop "a countywide future land use plan" and "other [necessary] elements," also known as the Countywide Comprehensive Land Use Plan of Pinellas County. Among other things, Chapter 88-464 prescribes the process by which changes to land use designations are made within the County. Under that process, all local government comprehensive plans, including the City's, are required to be consistent with the FLUP. Presumably, the laws were enacted because of the County's dense development (it is one of, if not the most, densely developed counties in the State), the large number of incorporated cities and towns (24) within the County, and the desire to have some degree of countywide uniformity in land use planning decisions. The law goes on to provide that amendments to the FLUP "relating to land use designation for a particular parcel of property may be initiated only by a local government that has jurisdiction over the subject property." In this case, the subject property lies within the City; therefore, the proposed change was initiated by the City. Under the review process in place for adopting an amendment to the FLUP, the proposed amendment is first presented to the City, then to the PPC, which consists of 13 representatives from various towns and cities in the County, the School Board, and the County, and finally to the Pinellas County Board of County Commissioners, sitting as the CPA. The subject property is located at 2301 Chautauqua Avenue, Clearwater, Florida. Chautauqua Avenue (also identified as Main Street on some maps) runs for a short distance in a north-south direction parallel to, and just east of, U.S. Highway 19 in the northeastern part of the City. Except for two houses, some tennis courts, and assessory buildings, the 22.18-acre tract of land is largely undeveloped. The land also includes a small pond located in the northwest quadrant and wetlands along its eastern side, which fronts on Lake Chautauqua (the Lake). Mr. Lawrence H. Dimmitt, III, one of the two co-trustees, acquired ownership of the southern half of the property in January 1986, while the remainder of the parcel was not acquired by the Trustee until December 2001. In June 2002, the property was annexed by the City pursuant to a request by the Trustee (to enable City water and wastewater services to be extended to the property). The property is now under contract to be sold to a developer (The Rottlund Company, Inc.), who desires to construct 90 town homes in 34 buildings, assuming the amendment is approved. Since July 21, 1982, the upland portion of the property (16.22 acres) has been classified as RS, which allows 2.5 residential units per acre. The wetlands and some adjacent land totaling around 4.6 acres on the eastern portion of the property next to the Lake are classified as, and must remain, Preservation. In addition, a small pond (1.35 acres) on the property is classified as Water/Drainage Feature. The proposed amendment does not affect the classifications of the wetlands and pond. All of the surrounding property (except the property immediately to the west between Chautauqua Avenue and U.S. Highway 19, which is classified as Commercial Limited) also carries an RS land use designation. The other nearby property along U.S. Highway 19 is classified as some form of commercial or mixed office/residential use. Countrywide Mall, the County's only regional shopping mall, is situated on U.S. Highway 19, less than a mile away. The property is located approximately 700 feet east of U.S. Highway 19 between Second Avenue South and Second Avenue North. U.S. Highway 19 is six lanes wide, was described by witnesses as being the most heavily traveled roadway in the County, and has intense commercial or mixed use development on both sides of the highway. Immediately to the west of the property (between U.S. Highway 19 and Chautauqua Avenue) is a Chevrolet automobile dealership and repair facility owned by the Dimmitts. A Cadillac dealership (also owned by the Dimmitts) is just south of the Chevrolet dealership. The entire eastern boundary of the property fronts on the Lake, while perhaps a dozen or so single-family homes, mainly constructed in the 1990s, sit on large lots scattered throughout the area immediately north of the property. From that area to Enterprise Road, a major arterial east-west roadway approximately 2,000 feet north of the Trustee's property, the land is largely undeveloped. The property immediately to the south is also classified as RS and is also largely vacant at the present time, except for a few single-family dwellings. The land which lies southeast of the property and the Lake is also designated RS and consists of a series of upscale, large, single-family residential subdivisions. The local roads adjacent to and near the property are substandard and do not meet the City or County standards. The main access to the property (from the west) is from U.S. Highway 19 using First Avenue North, which intersects with U.S. Highway 19 next to the car dealership. Because of a median in the middle of U.S. Highway 19, however, cars entering U.S. Highway 19 from First Avenue North can only turn right (northbound).1 The only access from the property to an intersection allowing vehicles to turn north or south on U.S. Highway 19 is provided by traveling south on a series of narrow, meandering, residential County roads (e.g., Third Avenue South, Second Street East, Fourth Avenue South, Union Street, and Soule Road) and eventually reaching Sunset Point Road (State Road 588), an east-west roadway intersecting with U.S. Highway 19 to the west. There is no access to the property from the north. The evidence shows that partly because of the poor road access, the nearby car dealerships and other commercial development, and the commercial lighting at the car dealerships which remains on throughout the night, the property has never been developed. Another contributing factor is that the former long-time owners of the northern half of the property (until it was sold to the Dimmitts in December 2001) had no wish to develop the property while they retained ownership. The Land Use Categories and History of the Area When the County's first comprehensive plan was adopted in 1974, three residential categories were established: low density (up to 7.5 units per acre); medium density (up to 15 units per acre); and high density (up to 30 units per acre). At that time, the Trustee's property and most of the surrounding residential properties were designated the least intensive residential use category and remained unchanged until 1982. In response to the state Growth Management Act, in 1980 the PPC developed more specific residential categories to manage population growth. The low density category was further defined to include five residential categories: Preservation (0.5 units per acre); Residential Conservation (1.0 units per acre); Residential Suburban (2.5 units per acre); Residential Low (5.0 units per acre); and Residential Urban (7.5 units per acre). As noted above, in 1982 the County reclassified the upland portion of the property, as well as the properties to its north and south, and west of the Lake, as RS. Some other areas to the southeast and northwest of the Trustee's land were reclassified at 5.0 dwelling units per acre, which category is now known as RL. In September 1984, two zoning requests "in the neighborhood [of the Trustee's property]" to allow "multifamily development at 5.0 units/acre" were denied by the County, mainly because the area contained "very low density single-family housing, with houses sitting on large lots (mostly about 2 acres in size), used in a residential/agricultural manner." At the same time, the County instructed its staff to "review zoning and Land Use Plan designation in the area to insure protection of the existing character of the land." That same year, the County amended the land use classification on these properties from RL, which permitted 5.0 units per acre, to RS, which permitted only 2.5 units per acre. In 1987, the City annexed a 17.4-acre vacant tract of land directly south of the Lake (and southeast of the Trustee's property). Before annexation, the property was classified as Residential/Open Space. According to a PPC recommendation presented to the County, the City filed an application with the County seeking to amend the CLUP (now known as the FLUP) by changing the land use to RS so that the vacant land would "be compatible with the existing land use pattern in this vicinity." The change was approved by the County. In all, at least thirteen parcels in the Lake Chautauqua area have been reclassified since 1980. Many of these are downzoning changes which merely reflect what had actually been planned, developed, and built pursuant to the dictates of the marketplace. In other words, the change reflected existing development of not more than 2.5 units per acre. There are also two instances when the Commission upzoned parcels in the area, that is, increased the allowable density from Recreation/Open Space to a higher category (7.5 units per acre), but these properties are outlying parcels and not in the immediate area. Most recently (early 2003), a developer proposed (and has pending a request) to develop six lots 130 feet by 600 feet in depth with single-family dwellings on property lying on the western shore of the Lake just north of the Trustee's property. These large lots would be consistent with the development now existing immediately to the west (and just north of the Trustee's property). It is fair to infer from the evidence that the County's intent over the last 25 years or so has been to restrict development in the area around the Trustee's property to single-family residences with a density of no more than 2.5 units per acre. The Application On February 21, 2002, the Trustee filed an application with the City for a change in land use designation on its property from RS and P to RL and P (so as to increase density from 2.5 to 7.0 units per acre). Although not a part of this proceeding, the Trustee also filed an application seeking to rezone the property from Rural Residential to Low Medium Residential and Preservation. The City's Zoning Department reviewed the application, found that all applicable criteria had been met, and recommended approval. The application then proceeded to a public hearing before the City's Community Development Board (CDB) on May 21, 2002. Following the public hearing, the CDB recommended approval of both applications. On June 20, 2002, the matters were taken up by the City Commission. The staff's detailed report recommending approval is found in Petitioners' Exhibit 2. Because of neighborhood opposition, however, the Trustee agreed to amend the application by reducing the density from 7.5 units per acre (RL) to 5.0 units per acre (RS). Thereafter, the City approved the application. This approval was formalized through the adoption of Ordinance No. 6978-02. At that point, the City became the nominal applicant for the amendment. A copy of the amendment was then forwarded to the Department of Community Affairs (DCA). The DCA's review was completed on October 3, 2002, when it advised the City by letter that it had "no objections to the proposed amendment" and that its letter would serve as the DCA's Objections, Recommendations and Comments. The application was submitted to the PPC on August 13, 2002. Following its review, the PPC staff, together with the staff of the Professional Advisory Committee (PAC), which is composed of professional planning staff members from the various municipalities throughout the County, recommended that the application be approved. On September 18, 2002, the PPC, by a 6-5 vote, recommended denial of the application, mainly because of traffic issues. Under the review process, the matter then came before the CPA. However, the City and the Trustee requested that the matter be remanded to the PPC to enable the Trustee to address the traffic issues. A remand was approved by the CPA on October 15, 2002. After reconsideration of the matter, which included proposed changes by the City to mitigate the traffic impact, the PPC staff and PAC unanimously recommended approval of the application. The application then proceeded to the PPC, and by a 9-3 vote on March 19, 2003, the PPC recommended approval. Although land use amendments recommended for approval by the PPC are "rarely" overturned or changed by the CPA, on April 1, 2003, the Board of County Commissioners, sitting as the CPA, unanimously rejected the proposed amendment. The same date, Resolution No. 03-55 was adopted which memorialized this action and indicated that the decision was based "upon the facts presented at the hearing, which included the character of the neighborhood and transportation impacts." According to the parties' Pre-Hearing Stipulation, the rejection was "due to [the amendment's] incompatibility with and negative impact on the established character of the neighborhood and the precedence [sic] of allowing multi-family development into an overwhelming single-family residential area." This appeal followed. The issues in the case Under the Countywide Rules, which were adopted in 1989 and govern changes to the FLUP, depending on their size and nature, plan amendments are classified into two categories: subthreshold amendments and general amendments. The former type of amendment is minor in nature and entails a less rigid review process while general amendments (those that do not qualify as subthreshold amendments) must be evaluated according to six "Relevant Countywide Considerations" (Considerations) found in Sections 5.3.5.1 through 5.3.5.6. Because the proposed amendment falls within the general amendment category, the six Considerations must be reviewed to determine if any come into play. If an amendment adversely impacts a Consideration, it is not consistent with the FLUP. In denying the amendment, the CPA determined that only two Considerations were relevant and would be impacted - Section 5.3.5.2 (Adopted Roadway Level of Service (LOS) Standard) and Section 5.3.5.6 (Adjacent to or Impacting an Adjoining Jurisdiction). All other Considerations were determined to be inapplicable. Although the County's Resolution indicated that the traffic Consideration played a part in its decision to deny the amendment, the parties' Prehearing Stipulation reflects that the CPA no longer considers that Consideration to be in issue. However, because evidence concerning traffic was presented at hearing, albeit more in the context of impacts on the character of the neighborhood than on LOS standards on U.S. Highway 19, a discussion of that Consideration is appropriate. Section 5.3.5.2 provides in part that "the amendment must not be located on or impact a roadway segment where the existing Level of Service (LOS) is below LOS 'D', or where projected traffic resulting from the amendment would cause the existing LOS to fall below LOS 'D'." Here, however, the evidence shows that the portion of U.S. Highway 19 (directly west of the property) between Enterprise Road and Sunset Point Road is already operating at LOS "F". Under the existing land use classification (RS), the Trustee (or developer) can construct as many as 46 single- family homes. At hearing, the developer acknowledged that the property can be successfully developed in that mode. Assuming that the maximum number of homes would be built, regardless of which type of development occurs, the traffic impacts would be essentially the same since a town home generates only 60 percent of the traffic of a single-family home. The evidence also shows that any additional traffic generated by development will have a negligible overall impact (less than three-tenths of one percent of the existing capacity) on U.S. Highway 19, which is already at LOS "F". The Florida Department of Transportation concurs in this finding, and has concluded that the development will not adversely impact that road. As noted above, the plan amendment was initially rejected by the PPC by a 6-5 vote, mainly because of traffic issues, and a concern that the additional traffic onto U.S. Highway 19 at First Avenue South might have a negative impact on that roadway. The City and Trustee then requested that the CPA remand the application to the PPC so that traffic issues could be further addressed. At that time, the City considered two alternatives to alleviate traffic concerns and provide a different access route to the area. First, it considered the possibility of extending Second Avenue South to the east and southeast to connect with, and widen, Lake Shore Drive (a County road), which runs around parts of the northwestern and southwestern sections of the Lake, and eventually provides access to Sunset Point Road, which then runs west to U.S. Highway 19. However, the County declined to participate in that effort and thus this proposal was not considered to be feasible. The City also considered extending Chautauqua Avenue north (over City right-of-way) to Enterprise Road, a main arterial east-west roadway that also intersects with U.S. Highway 19 (and enables the driver to turn either left or right at that intersection). If the road is extended in that fashion, it would provide residents in and near the subject property with access to Enterprise Road, and also provide other area residents with access to a City park that may be built just south of Enterprise Road. As to this alternative, even though the developer's share of costs (using the City's calculations) is only 17 percent, the developer has agreed to pay one-half of the cost of the road improvements. With this improvement, both parties now agree that the traffic Consideration has been resolved. Based on the foregoing, it is found that the plan amendment is consistent with the transportation Consideration and will not adversely impact LOS standards on U.S. Highway Two of the County witnesses conceded as much at the final hearing. Section 5.3.5.6 generally provides that if the property adjoins another jurisdiction, the plan amendment must not adversely impact that jurisdiction. In determining whether the plan amendment is consistent with this Consideration (and does not impact the adjoining County land), reference to the goals and policies within the Countywide Comprehensive Plan is necessary. The Land Use Element Goal provides in part that "[t]he land uses associated with development should be compatible and reasonable in terms of both the land, surrounding uses, and the public interest." Two unnumbered Policies within the same Element further provide that "land development patterns should recognize and support coherent neighborhoods," and that "land planning should weigh heavily the established character of predominately developed areas when changes of use or intensity of development is contemplated." In this case, there are enclaves of County land lying on the northern, southern, and eastern boundaries of the Trustee's land. The County contends that the proposed change is inconsistent with the Consideration because it adversely affects the "character" of the adjoining County land in two ways: (a) by the creation of a new access road to the north through a quiet, residential neighborhood, and (b) by the construction of town homes in an area historically classified as RS, which only allows the construction of single-family homes. If the plan amendment is approved, the City has decided to extend Chautauqua Avenue to Enterprise Road, giving the new (and existing) residents an outlet to the north. This alternative was chosen since the County has declined to participate in the southern alternative. The extension will provide access to a new City park, and the developer will pay more than his fair share to aid in the construction of the road. According to the City, the extension is necessary to mitigate the increased traffic from the new project. Currently, the roads in the area around where the extension will be built can be characterized as secluded and rural, with only a small amount of traffic. Besides the automobiles of the existing residents, the only other vehicles using the roads are those being tested by the nearby Chevrolet dealership after being repaired. If the plan amendment is approved, and the town homes constructed, the project will generate hundreds of new trips per day. Understandably so, existing residents of the area (as well as the County) fear that if the road is extended, it will become a "cut-through" street for non-residents traveling north on U.S. Highway 19 to Enterprise Road and who wish to avoid that intersection. Given the current level of traffic on U.S. Highway 19 (LOS "F"), it is fair to infer that this fear is well-founded. Accordingly, by extending Chautauqua Avenue to Enterprise Road, the character of the existing neighborhood will be adversely impacted by the increased traffic generated by new residents seeking an outlet and non-residents using the street as a cut-through. It is true that some form of traffic mitigation will still be required if the plan amendment is not approved, and single-family homes are built on the Trustee's property. However, when or if the property will be developed, and the extent of such development, is not known, and there is no indication in the record that the City will still seek to mitigate this traffic by extending Chautauqua Avenue. The evidence shows that the established character of the neighborhood is quiet, secluded, and low density residential, with many of the homes having large, oversized lots. As noted earlier, a proposal is now pending before the County to develop the area directly north of the Trustee's property along the Lake with six single-family dwellings on "large estate lots behind a gated wall." By doubling the density on the Trustee's property from 2.5 to 5.0 units per acre, the character of the area would be changed, and the new density would be inconsistent with the historic land use and development pattern of the area. The evidence also shows that the residents who live immediately north of the Trustee's property purchased their land, and built their homes, with the expectation that the area would be "a detached single-family residential community within the 2.5 units per acre limitation." For more than 20 years, the County's land use decisions have been consistent with this expectation. Petitioners' witnesses contend, however, that the town homes will (a) serve as a buffer between the commercial uses which lie on the western side of Chautauqua Road and the existing single-family homes which lie on the eastern side, and (b) provide a transition or gradual stepdown in intensity from the commercial uses along U.S. Highway 19 to town homes to single-family homes, which practice is consistent with good land use planning. However, the area maps and site plan introduced into evidence clearly show that the town homes would not buffer anything except the Lake, since the town homes would run from the Lake all the way westward to the rear of the Chevrolet dealership. In other words, to provide a buffer, logically it would be necessary that the town homes be placed between the commercial areas and the single-family homes. The residential property to the north and south (which purportedly would be buffered) is already located adjacent to, and directly east of, the commercial development along U.S. Highway 19, and the town homes would simply increase the density of the property between the two residential areas by 100 percent. For the same reasons, the construction of town homes would not provide a transition or step down in the intensity of development from west to east since they would not be built between the existing homes and U.S. Highway 19. Based on the foregoing facts, it is found that the proposed amendment will adversely affect the character of the neighborhood (and impact the adjoining County land) and is therefore inconsistent with Section 5.3.5.6 of the Countywide Rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners of Pinellas County, sitting as the Countywide Planning Authority, enter a final order determining that the plan amendment is inconsistent with Section 5.3.5.6 and that the amendment should be denied. DONE AND ENTERED this 8th day of September, 2003, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2003.
The Issue The issue in this case is whether Sumter County comprehensive plan amendment 94D1 adopted on September 20, 1994, by Ordinance No. 94-6 is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, T. D. Farnsworth and James E. Boyd, own property and reside within the northern part of unincorporated Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group while Boyd serves as its treasurer. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Villages of Lake Sumter, Inc. (Villages), is a Florida corporation and the owner and developer of the Tri-County Villages development of regional impact, which is the subject property of this proceeding. Villages submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. Tri-County Villages To place this dispute in proper perspective, it is necessary to trace the history of the development which has occurred in and around the subject property. As noted earlier, intervenor is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. The Challenged Amendment On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. The Tri-County Villages DRI and ADA and plan amendment are related in that Section 380.06(6), Florida Statutes, requires that the local government's review of the DRI and corresponding comprehensive plan amendment be initiated and concluded at the same time. In the instant case, the Tri-County Villages ADA served as much of the background data and analysis for the plan amendment. The Tri-County Villages DRI also served as the sector plan for the area covered by the amendment. In addition to the voluminous data and analysis included in the Tri- County Villages ADA, the plan amendment also included detailed data and analysis. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related issues, an analysis of environmental considerations, a population and housing analysis, a concurrency analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis collectively demonstrated that the urban development proposed by the amendment was appropriate for the designated area. C. Is the Plan Amendment in Compliance? In their proposed recommended order, petitioners summarize their objections to the plan amendment as follows: (a) the amendment fails to protect agricultural lands, (b) the amendment encourages urban sprawl, (c) the future land use map is internally inconsistent, (d) there is no demonstrated need for 1,960 acres of PUD land use, (e) PUD is not a valid land use category, (f) the amendment does not ensure adequate fire and emergency medical services, (g) the County failed to coordinate with the local school board, (h) there is no reasonable protection from flooding, (i) the amendment does not provide adequate parks and recreational facilities, (j) affordable housing needs are not met, and there is no requirement that the developer install water and sewer facilities at its own expense. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 1,960 acres of agricultural land will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by FLUE objective 7.1.2 and Rule 9J- 5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insures retention of agricultural activities." If the plan amendment fails to "adequately protect adjacent agricultural areas," the cited rule considers this failure to be a prime indicator that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, FLUE objective 1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly and logical fashion based on need and suitability. The agricultural lands being converted as a result of the plan amendment are appropriate for conversion. The plans, FLUE data and analysis demonstrate that one of the best areas for urban development in the County is the northeast portion of the County which covers the agricultural lands in the plan amendment. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the urban infrastructure currently in place. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD and Tri- County Villages amended development order sector plan will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. In view of the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land. Urban sprawl In the same vein, petitioners contend that the amendment fails to discourage urban sprawl because of the conversion of 1,960 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, and which have allegedly been violated. They also point to the fact that large portions of the existing development have not been sold or built out, only 2 percent of the 1,960 acres will be devoted to commercial land use, the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references FLUE policy 1.2.5.(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural area, it must score approximately 50 points based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD failed to score 50 points, it was deemed to encourage urban sprawl and would not be approved by the County. The plan amendment scored 130 points, well in excess of the 50 point threshold. In addition to satisfying FLUE policy 1.2.5.(a), the plan amendment is consistent with FLUM maps VII-18A and VII-18C, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the FLUE data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18A demonstrates that the land included in the plan amendment has only slight limitations for urban development. Similarly, Map VII-18C indicates that the land has only slight limitations in regard to urban sprawl. In fact, portions of land covered by the plan amendment are already within an established urban expansion area which is the OBGW DRI. Finally, the PUD mixed land use category and sector plan concept adopted by the plan amendment are planning methods specifically recognized and encouraged by prior DCA policy as reflected in the DCA's Technical Memo Special Edition 4-4 and the urban sprawl provisions incorporated into Rule 9J- 5.006(5)(l), Florida Administrative Code, effective May 18, 1994, as methods of discouraging urban sprawl. Indeed, the rule provides in part that mixed use development and sector planning . . . will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Given the above, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. The consistency of the future land Petitioners next argue in general terms that the FLUM does not "reflect policies which call for maintaining agricultural lands, discouraging urban sprawl, promoting land use compatibility, protection from flooding, providing for adequate public recreation facilities, and other objectives," and thus it is internally inconsistent. The FLUM series in the plan as well as the FLUM series as amended by the plan amendment is a pictorial representation of the goals, objectives, and policies of the comprehensive plan. In the absence of any credible evidence to the contrary, it is found that petitioners have failed to show to the exclusion of fair debate that the FLUM is internally inconsistent as alleged in their petition. Demonstrated need Petitioners next allege that the plan amendment "is premature in time and fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege that the FLUM "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Chapter 163, Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. In addition, the DCA may not choose one methodology over another. At hearing, petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended that other factors such as mortality rates and resale figures should have been used in calculating the multiplier. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations and Comments report. That report recommended that the County provide an analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population during the planning time frame (the year 2014) established by the Tri-County Villages Amended Development Order sector plan. Based on historic data, the County calculated a multiplier which depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately 87 percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In actuality, a 1.87 multiplier is not really the most accurate depiction of the allocation of residential land county-wide because the population for OBGW and the other PUD in the County was not included in the calculation. In an effort to provide a more accurate multiplier, the County added to the equation the projected population for OBGW and the PUD. The resulting revised multiplier equalled 1.46. Petitioners developed a multiplier of their own of 1.88. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Moreover, petitioners' methodology was unacceptable because it did not project its population over the correct planning horizon. Petitioners failed to consider the 2014 planning horizon established by the Tri-County Villages Amended Development Order sector plan which controls the development of land covered by the plan amendment. Instead, petitioners multiplier incorrectly used the 2001 planning horizon established by the plan. In addressing the need for additional residential allocation, the amount of residential land allocated must be a reflection of the population expected through the end of the Tri-County Villages sector plan 2014 planning horizon. The type of development contemplated by the plan amendment and the additional population has not previously occurred in the County. Since development of OBGW commenced in 1992, the building permits issued in the County have increased by 94 percent. Much of this increase can be attributed to OBGW. The number of yearly certificates of occupancy for OBGW has stayed relatively constant and is expected to remain constant throughout the planning horizon. Intervenor's marketing scheme for OBGW seeks to attract retirees predominately from the northeastern part of the United States. The residents are not generally County residents prior to moving to Tri-County Villages. This same marketing scheme will be used for the future development of the Tri-County Villages. Thus, the future Tri-County Villages residents are not expected to be from the County. Tri-County Villages is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Because this new population is a reality which was not comtemplated by the plan, and the plan does not have an excess of allocated residential land, the need for the increased residential densities has been demonstrated. Petitioners have not shown to the exclusion of fair debate that the plan amendment was premature or not based on a demonstrated need. PUD as a land use category Because a planned unit development (PUD) is not "recognized" as a land use category in Rule 9J-5.006(1), Florida Administrative Code, petitioners contend that the use of that category in the plan amendment renders it not in compliance. For purposes of its compliance review, the DCA used the version of chapter 9J-5 which was in effect at the time of the submittal of the plan amendment. Then existing Rule 9J-5.006(1)(a), Florida Administrative Code, which was effective on March 23, 1994, established the generalized land uses which must be shown on the Existing Land Use Map (ELUM). Rule 9J-5.006(4)(a), Florida Administrative Code, requires that these same generalized land uses must be depicted on the FLUM as well. While it is true that PUD is not one of the generalized land uses listed in chapter 9J-5, the two rules cited above both allow a local government to depict other land use categories on the ELUM and FLUM. Because the plan references PUD as a mixed land use category, the County has properly depicted that category on both the ELUM and FLUM. Petitioners have failed to show that PUD as a mixed land use category is not recognized under the rules in existence when the plan amendment was reviewed. Compatibility with adjacent agricultural lands Petitioners have also alleged that the County has "not demonstrated compatibility with adjacent agricultural and rural residential land uses." They point to the fact that the area adjacent to and near the development is a "friendly rural community," and they allege that the development will harm this wholesome atmosphere. The plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and DRI Master Development Plan, both incorporated into the plan amendment, shows that the Tri-County Villages development will provide approximately 1,100 acres of open space. Much of this open space will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development which serves to separate the more urban development from the adjacent agricultural and rural uses. Another mechanism which ensures compatibility is the phased method of development proposed for the project. Under the phasing approach, only contiguous portions of the property will be developed at any given time during the planning period. In addition, existing agricultural uses on the property will continue until such time as the proposed development reaches that property. Given these considerations, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent land uses. Levels of service In their amended petition, petitioners assert that the plan amendment is in violation of FLUE objective 7.1.6 and FLUE policy 7.1.6.1, objective 1.1 and policy 1.1.1 of the Capital Improvements Element, Rules 9J-5.005(3), 9J- 5.011(2)2., 9J-5.015(3)(b)1., and 9J-5.016(3)(a) and (b)4., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, all pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services and flooding. Policy 1.1.1 of the Capital Improvements Element adopts a recreational facility level of service for such facilities as softball fields, baseball fields, basketball courts, boat ramps and the like. The amount of facilities required is based on population. Under the plan, the County must take the necessary steps to insure that the availability of these facilities is addressed during the concurrency review process and not at the compliance review stage. In other words, when a proposed development reaches the stage of requesting a building permit, the County may require as a condition of the issuance of that building permit that a developer provide a certain facility. In this regard, it is noted that Chapter 163, Florida Statutes, requires that any development comply with concurrency requirements while the Tri-County DRI Amended Development Order requires that the developer provide for adequate public facilities. Both the plan amendment and the development authorized therein generally address the recreational level of service. However, if no additional facilities are constructed in the future, the plan amendment does not provide adequate baseball fields, softball fields, boat ramps or handball courts consistent with policy 1.1.1. In addressing these potential deficiencies, intervenor represented to the County that as a retirement community, the development would not generate a demand for these types of facilities. That is to say, the retiree population inhabiting the development would be less likely to participate in activities such as baseball or softball. The population would, however, generate a need for other recreational facilities such as golf courses, swimming pools, shuffleboard courts and bocci ball facilities, all of which the development has a surplus. In response to this concern, the County concluded that it was not appropriate to require the construction of certain facilities when the project would not generate a need for them. The County indicated that, during the plan evaluation and appraisal stage required in 1998, an amendment to the plan would be transmitted which would revise the plan to take into account such situations. If such an amendment is not adopted, intervenor will need to provide additional facilities necessary to meet concurrency requirements. There is no established level of service in the plan for fire protection or emergency medical services. Intervenor has, however, addressed these services in the Amended Development Order for the development. As reflected in that order, intervenor donated a five-acre parcel and constructed a fire station adjacent to the development. The station may also be used to house emergency medical services, if needed, although an existing emergency medical service provider is located in close proximity. Intervenor also donated to the County $80,000 for the purchase of fire fighting equipment, and each household pays the County a $30 annual fee for fire protection. Therefore, fire protection and emergency medical services have been addressed. The plan establishes no level of service standard for schools. Because the development is a retirement community, children under age 19 are prohibited. As a consequence, it was determined that impacts to school facilities would be minimal. Intervenor contacted and advised the school board of its retirement community development plans and projected student impacts. In response, the school board concluded that minimal impact was expected as a result of the development. To the extent that the development in the future allows school age children to reside therein, the Amended Development Order specifically calls for a substantial deviation determination pursuant to Section 380.06(19), Florida Statutes, to evaluate the potential impacts to school facilities. As a result of further review, intervenor may be required to provide additional school facilities. The plan establishes a level of service for stormwater drainage in terms of quantity and quality. Based on flooding which has occurred in the existing OBGW development, petitioners suggest that flooding will occur in the development proposed in conjunction with the plan amendment. While such flooding has occurred in the OBGW development, there is no evidence that the flooding was caused by a reduction or violation of the stormwater drainage level of service. Indeed, the evidence shows that the flooding was caused by an unusually heavy period of rainfall in combination with debris clogging the inlets of the stormwater system. The actual stormwater system for OBGW, which was reviewed and approved in the OBGW DRI review process, was designed for and required to meet the plan's drainage level of service. As a concurrency matter, any system designed for the future development contemplated in the plan amendment will also be required to meet the stormwater drainage level of service. Accordingly, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment violates the plan's level of services standard for stormwater drainage. Affordable housing Petitioners further allege that the plan amendment "fails to provide for affordable housing as required by Objective 3.5 of the Housing Element of the (plan)" in violation of various rules and the state comprehensive plan. The rule alleged to have been violated requires a local government to analyze the affordable housing stock within the local government. The local government must then adopt comprehensive plan goals, objectives, and policies which establish programs to ensure an adequate supply of affordable housing for the present and future residents. Housing Element objective 3.5 and the implementing policies which follow provide one of the mechanisms, coordination with the private sector, which the County uses to address the provision of affordable housing countywide. The provisions of objective 3.5 and the implementing policies place no specific requirements on the private sector. These plan provisions only require that, in addressing the provision of affordable housing, the County work with the private sector. Contrary to petitioners' assertion, neither the plan provisions nor chapter 9J-5 require the plan amendment to address the affordable housing deficiencies countywide. As a DRI requirement, however, the plan amendment does address the provision of affordable housing. A detailed housing analysis was provided in the Tri-County Villages ADA. The analysis included a review of the affordable housing stock pursuant to the East Central Florida Regional Planning Council's housing demand, supply and need methodology. The analysis further concluded that after phase 3, additional affordable housing may be necessary. To address this deficiency, the ADA for the development requires intervenor to reanalyze the available affordable housing consistent with objective 3.5 of the Housing Element. Thus, it is found that petitioners have not shown to the exclusion of fair debate that the plan amendment fails to provide affordable housing. i. Infrastructure funding Finally, petitioners allege that the plan amendment is inconsistent with FLUE policy 1.5.4. That policy provides as follows: All PUDS shall provide for central potable water and sanitary sewer facilities at the developer's expense and provide for fire hydrants and fire flow within the development in accordance with the National Fire Protection Association Standards. Intervenor has created community development districts as a mechanism to fund the development infrastructure. Intervenor is able to raise funds by the sale of bonds through these districts. The residents of the development will ultimately repay the bonds. Even so, petitioners allege that this funding mechanism is inconsistent with the cited policy because the infrastructure is not funded "at the developer's expense." The purpose and intent of the policy was to insure that the County not be obligated to fund infrastructure related to the PUD development. The developer, and ultimately the residents, of the project will fund the infrastructure through the community development districts. The County will not be obligated. This funding mechanism is consistent with policy 1.5.4. in that the County is not responsible for the funding of the PUD-related infrastructure. Accordingly, petitioners have not shown to the exclusion of fair debate that the plan amendment is inconsistent with the cited policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Sumter County's comprehensive plan amendment 94D1 is in compliance. DONE AND ENTERED this 11th day of July, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11 day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6974GM Petitioners: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-5. Rejected as being unnecessary. 6. Partially accepted in finding of fact 40. 7. Partially accepted in finding of fact 34. 8-9. Rejected as being unnecessary. 10. Partially accepted in findings of fact 7-9. 11-14. Rejected as being unnecessary. Partially accepted in finding of fact 8. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 8. 19-21. Partially accepted in finding of fact 2. 22-23. Covered in procedural statement. 24-29. Partially accepted in findings of fact 16-20. 30-41. Partially accepted in findings of fact 21-25. 42. Rejected as being unnecessary. 43-77. Partially accepted in findings of fact 28-36. 78-85. Partially accepted in findings of fact 37-39. 86-95. Partially accepted in findings of fact 40-42. 96-148. Partially accepted in findings of fact 43-49. 149-162. Partially accepted in findings of fact 50-53. 163-166. Partially accepted in findings of fact 54-56. Respondents/Intervenor: With certain changes, the substance of proposed findings 1-53 has been generally incorporated into this recommended order. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Mr. T. D. Farnsworth 12364 County Road 223 Oxford, Florida 34484 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 David L. Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Nancy G. Linnan, Esquire Post Office Drawer 190 Tallahassee, Florida 32302-0190 R. Dewey Burnsed, Esquire Post Office Box 491357 Leesburg, Florida 34749-1357
