The Issue At issue in this case is whether Sections 403, 404, 410, 503, 506, 703, 704, 705, 706, 707, 708, 1805, 1903, 1904, 1905, 1909, 1911, and 2710 of the Bay County Land Development Regulations (the "LDRs"), as adopted by Bay County Ordinance No. 04-30 on September 21, 2004, are inconsistent with the Bay County Comprehensive Plan (the "Plan").
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: Standing Petitioners Cornelia F. Hammond and Estelle M. Hicks reside within Bay County and own residential property in unincorporated Bay County. A "substantially affected person" may challenge a land development regulation pursuant to Subsections 163.3213(2)(a) and (3), Florida Statutes. The parties have stipulated that Petitioners are substantially affected persons and have standing to bring this administrative challenge. The Challenged LDRs Section 403 Section 403, titled "Discouraged Activities," states that it is the "specific intent" of the LDRs "to promote homeowner's quiet use and enjoyment of property, and to minimize the potential for public nuisances." In furtherance of that intent, Section 403 lists activities that are "discouraged" in all new subdivisions with individual lots of less than one-half acre created after the effective date of the LDRs. The list includes: the raising or keeping of farm animals or livestock; raising, keeping, or boarding animals as a business activity; commercial activities other than those associated with home occupations; the storage or accumulation of wrecked motor vehicles, junk, derelict vessels, or debris; storage of building materials used as part of a business activity; the use of recreational vehicles for residential purposes; and any activity that would result in excessive and ongoing noise, odor, glare, fumes, dust, telecommunications interference, or other public nuisance. Petitioners allege that this LDR is inconsistent with Plan Objectives 8.5 and 8.9 and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and 1.2.1.9, because it "discourages" rather than prohibits the listed activities, and because it applies only to new subdivisions. Chapter 8 is the Housing Element of the Plan. Objective 8.5 states that it is the Plan's objective to "[p]reserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations." Policy 8.5.1 is the provision directly implemented, in part, by Section 403. Policy 8.5.1 provides: Specific criteria will be included in the Land Use Code4 for the preservation and protection of residential areas. These criteria will include, but may not be limited to: Maintaining compatibility between types of residential buildings; Ensuring that residential areas will be used primarily for residential purposes; Avoiding overcrowding of residential units; Avoiding accumulations of junk and debris; Avoiding nuisances such as excessive noise, dirt, glare, odors, noxious fumes and telecommunications interference, and; Avoiding the raising or keeping of farm animals. Petitioners criticize Section 403 as deviating from Policy 8.5.1, because Section 403 does not contain all of the criteria listed in the policy, because Section 403 uses the word "discourage" rather than the policy language of "avoiding," and because Section 403 limits its application to new subdivisions with lots of one-half acre or less created after adoption of the LDRs. The County points out that neither "discourage," nor "avoiding" constitutes language of absolute prohibition and, therefore, the LDR does not deviate from the objective or the policy. The County concedes that Section 403 applies only to subdivisions created after the effective date of Ordinance No. 04-30, but notes that the County has adopted a nuisance ordinance (Ordinance No. 04-37, as amended by Ordinance No. 05- 35) that applies to all real property. The nuisance ordinance classifies activities, such as failure to store garbage within a sealed container and exceeding certain sound levels, as public nuisances subject to citation and fines. The County reasonably decided to limit the application of Section 403 to subdivisions created after the effective date of Ordinance No. 04-30 to accommodate existing activities that would otherwise be prohibited. Petitioners point to no statute, rule, or Plan provision stating that an LDR implementing a certain policy is required to implement each and every aspect of that policy. The fact that Section 403 fails to expressly implement Policy 8.5.1.1 and 8.5.1.3 does not render it inconsistent with the Plan. Petitioners contend that, by "discouraging" rather than prohibiting the listed activities, Section 403 is inconsistent with Objective 8.9, which states that it is the Plan's objective to "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and enjoyment of their residence." Petitioners, further, contend that this failure to "fully implement" Policy 8.5.1.1 renders Section 403 inconsistent with certain provisions of Policy 1.2.1, which provides, in relevant part: Findings and Purposes: This Plan is predicated upon and intended to promote the following findings and purposes: * * * 1.2.1.2: Encourage the most appropriate use of land, water and resources consistent with the public interest. * * * : Deal effectively with future problems that may result from the use and development of land within unincorporated Bay County. : To preserve, promote, protect and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare. * * * 1.2.1.9: To recognize and respect judicially acknowledged or constitutionally protected private property rights. It is the intent of this Plan that all provisions, requirements, regulations, ordinances, or programs adopted under authority of this Plan be developed, implemented and applied with sensitivity for private property rights and not be unduly restrictive, and property owners must be free from actions by others which would harm their property. Full and just compensation or other appropriate relief must be provided to any property owner for a governmental action that is determined to be an invalid exercise of the police power which constitutes a taking, as provided by law. Any such relief shall be as provided by law. Petitioners contend that Section 403's failure to include the requirement of Policy 8.5.1.3 that overcrowding of residential units should be avoided constitutes a conflict with Policy 3.6.1.2, which requires the LDRs to ensure the compatibility of adjacent uses and provide for open space. None of Petitioner's contentions is well-founded in terms of establishing Section 403's inconsistency with the Plan. As noted above, there is no requirement that an LDR implementing a given Policy must implement each and every aspect of that Policy. Petitioner's evidence on this issue consists of resident's anecdotal complaints that adjacent seasonal/resort uses cause increased noise, traffic, and safety hazards, evidence, which did not establish inconsistency between the LDR and the Policy. Petitioners contention that Section 403 would be more effective if it prohibited rather than "discouraged" the listed activities is inarguable, but beyond the scope of this proceeding. In its Plan, the County has chosen to "avoid" the listed nuisances. For better or worse, the Plan's language is hortatory, not mandatory. Section 403 is not inconsistent with Policy 8.5.1 or with the other Plan provisions cited by Petitioners. Section 404 Section 404 delineates the allowable uses, conditional uses, and accessory uses and structures allowed in the R-1 single-family residential zoning category. The allowable uses include: single-family dwellings built to Florida Building Code Standards pursuant to Chapter 553, Florida Statutes; community facilities such as neighborhood centers, golf courses, swimming pools, and tennis courts; family day care homes; not-for-profit parks and playgrounds; and "low impact public utilities." Conditional uses are those that may be allowed in the R-1 zones subject to such conditions as are necessary to preserve the integrity of the zone. Conditional uses include: public or private schools and houses of worship, subject to buffering and traffic impact mitigation; community residential homes provided they are not located within 1,000 feet of one another and do not substantially alter the nature and character of the surrounding area; electric power substations, to be evaluated on a case-by-case basis; and "others as determined by criteria specified in Chapter 12." Chapter 12 of the LDRs sets forth the application and permitting procedures for conditional uses, which are "intended to provide additional flexibility in the zoning process where a particular use might not be specifically allowed in a particular zone, but would still be compatible with allowed uses in that zone when certain qualifying conditions are applied." Accessory uses and structures, such as unattached garages, carports, swimming pools, storage sheds and docks, are allowed only when a principal use or structure already exists. They must be located in side or rear yards, unless the lot is abutting a body of water, when they may be placed in front of the principal use or structures. Petitioners contend that Section 404 allows incompatible uses in single-family zones and is inconsistent with Objectives 3.9, 8.5, and 8.9, and Policies 3.9.1, 8.5.1, 8.9.1, 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 2.1.2.2 of the Plan. Petitioners contend that Section 404 is inconsistent with the listed Plan provisions for the following reasons: while it requires buffering for schools and churches, it does not require buffering between single-family homes and other uses that are known to create nuisances; it allows electrical power substations, which are known health risks; it creates uncertainty by authorizing unspecified conditional uses so long as they are consistent with the criteria of Chapter 12 of the LDRs; it contains no restrictions on noise that is incompatible with the quiet use and enjoyment of a homeowner's residence; and it does not allow manufactured homes. As to the first reason, Petitioners have offered insufficient support for their contention that the absence of language requiring a buffer between residences and uses that are known nuisances is inconsistent with the Plan. Petitioners offer a list of "nuisances" that includes parks, playgrounds, and community facilities, which are not commonly considered "nuisances" in residential areas. Housing Element Policy 8.5.1 of the Plan requires the LDRs to include criteria that maintain compatibility between types of residential buildings, and Policy 8.9.1 requires the County to establish zoning districts in the LDRs that promote compatibility between residential uses and reduce the potential for public nuisances. The County has elected to require buffering in the R-1 zone between residences and churches and schools, but not to require buffering between residences and parks, playgrounds, and community facilities, or between residences and "nuisances" generally. Section 404.2.f provides that "other" conditional uses are required to seek permits under Chapter 12, a process through which compatibility is addressed and buffers could be required as a condition of approving the conditional use. As to the Petitioner's claim regarding electrical power substations, Subsection 163.3208(4), Florida Statutes (2006), requires local governments to allow new electrical substations as a permitted use in all comprehensive plan categories and zoning districts, except those designated as preservation, conservation, or historic preservation. Subsection 163.3208(6), Florida Statutes, provides express conditions for the placement of electric substations in residential areas, requiring the utility to consult with local government regarding site selection and to propose at least three alternative sites, including sites within nonresidential areas. The local government has the authority to make the final decision as to substation placement. Further, electrical substations are classified as conditional uses by Section 404 and, therefore, must meet the requirements of Chapter 12 of the LDRs in order to be approved. One such requirement, in Section 1206.1, is that the conditional use must be "consistent with all applicable provisions of the Plan." Table 3A of the Future Land Use Element ("FLUE") specifically lists public utilities as an allowable use in the Residential land use category. Section 1206.2 provides that a conditional use request "shall not adversely affect adjacent properties in terms of creating a nuisance, reduction in property values, or other quantifiable measure." Section 1206.3 provides that the request must be "compatible with the existing or allowable uses of adjacent properties." Section 1206.7 provides that the request "will not adversely affect the public health, safety or welfare." Section 1205 grants the County's Planning Commission the authority to impose such conditions and safeguards on conditional uses "as deemed necessary to protect and enhance the health, safety and welfare of the surrounding area." In summary, electrical power substations are naturally and appropriately considered "public utilities" and are, therefore, specifically allowed in residential areas under the Plan. Section 404.2.e lists electrical power substations as conditional uses "to be evaluated on a case-by-case basis." As conditional uses, electrical power substations are subject to the review process of Chapter 12 of the LDRs. The health risks of the substations must be considered under Section 1206.7, which prohibits adverse effects on the public health, safety or welfare. Finally, state law in the form of Section 163.3208, Florida Statutes, has preempted any authority the County may have had to completely prohibit electrical substations in residential areas. Petitioners have, also, alleged that Section 404.2.f allows any number of unidentified potential uses that could create nuisances and destroy the character, compatibility and aesthetics of their neighborhoods, which would be inconsistent with Objective 8.5 of the Plan, and that could interfere with the quiet use and enjoyment of their property, which would be inconsistent with Objective 8.9. Petitioners have pointed to no statute, rule, or Plan provision that would require the County to list every possible conditional use for the R-1 zoning category in the LDR. Section 404.2.f simply clarifies that any conditional use not expressly named in Section 404.2 is subject to the permitting criteria of Chapter 12 of the LDRs, which themselves limit conditional uses to those compatible with existing or allowable uses of adjacent properties and that do not create nuisances. Regarding the alleged lack of noise standards, Petitioners have referenced no provision of the Plan requiring noise to be addressed in the LDR that sets forth allowable uses in the R-1 zoning category. The conditional use requirements of Chapter 12 are intended to ensure compatibility of adjacent uses and forestall the creation of nuisances. As noted above, the County, also, has a nuisance ordinance that applies to all property. Finally, Petitioners complain that manufactured homes are not listed as allowable uses in the R-1 single-family zone despite the fact that Table 3A of the FLUE portion of the Plan includes "manufactured housing" among those land uses that are allowable in residential areas. Objective 8.7 of the Plan is to provide for the location of affordable housing, including manufactured housing, in residential districts while avoiding "undue concentrations" of affordable housing in any one area. Policy 8.7.2 of the Plan provides: The Board recognizes that mobile homes and/or manufactured houses are commonly used to provide affordable housing. The Board will provide for the placement of these structures by designating certain land use districts in the Land Use Code in which mobile homes, manufactured homes, mobile home parks, and mobile home subdivisions will be allowed. These areas will be designated in such a way as to avoid undue concentrations in any one particular geographic area. Manufactured homes are listed, either specifically or by reference to another zoning category, as allowable uses in the R-2 (Duplex Dwellings and Manufactured Housing Zones) and R-3 (Duplex, Triplex, and Quadraplex Zones), but not in the R-1 (Single-Family Zones) zoning category. An exception is a manufactured home that meets the Florida Building Code Standards of Chapter 553, Florida Statutes, which is allowed in all residential zoning districts. That fact that Table 3A of the FLUE allows manufactured housing in residential areas does not mean that manufactured housing must be allowed in every zoning category included under the "residential" designation. Petitioners have failed to demonstrate that Section 404 is inconsistent with the Plan. Section 4105 Section 410, titled "Bulk Regulations," sets forth the bulk regulations for all residential zoning categories. Petitioners have alleged that this LDR is inconsistent with Objectives 3.9, 8.5 and 8.9, and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, 3.6.1, 3.9.1, 3.9.2, and 8.5.1. Section 410 includes Table 4.1, which establishes standards for each residential zoning category set forth in Chapter 4 of the LDRs. These bulk regulations include maximum densities, minimum lot frontages, yard setbacks, maximum building heights, and impervious surface ratios for each zoning category, further divided into urban, suburban, and rural community areas. Petitioners allege that the failure of the bulk regulations to mandate a minimum lot size and the allowance of 15 dwelling units per acre in the urban R-2 and R-3 zones would allow a developer to enter an existing neighborhood, buy an adjacent vacant parcel or assemble several lots and build at a higher density than the existing neighborhood. Petitioners point out that R-2 zoning covers the majority of land in Laguna Beach, and that the overall density in that area is about eight to ten units per acre. However, under Section 410, a developer could assemble an acre and build up to 15 dwelling units per acre. This density is nearly double the eight units per acre allowed in the R-1 zoning category. Petitioners contend that such increased density in existing neighborhoods has the potential to destroy the character, compatibility and aesthetics of these neighborhoods, which is inconsistent with Objective 8.5, and the potential to create nuisances with excessive noise and traffic, inconsistent with Policy 8.5.1. These impacts would have the cumulative effect of interfering with the residents' quiet use and enjoyment of their homes and would devalue their property, inconsistent with Objective 8.5. Despite the Petitioners' concerns, the Plan contains no minimum lot size requirements in the Residential FLUE category. Therefore, no minimum lot size is required for the residential zoning bulk regulations. The Residential FLUE category in Table 3A of the Plan allows a density of no more than 15 dwelling units per acre in urban/coastal areas. The provisions of Section 410 are identical to those of the Plan, limiting density to 15 dwelling units per acre in the urban areas of the R-2 and R-3 zones. While they have voiced legitimate concerns regarding the impact of increased densities imposed on existing neighborhoods, Petitioners have failed to demonstrate that Section 410 is inconsistent with the Plan. Section 503 Petitioners have alleged that Section 503, dealing with the SR-1 Seasonal/Resort Residential zoning category, is inconsistent with Objectives 8.5 and 8.9 and Policy 3.9.1, because the allowable uses under this LDR do not protect existing neighborhoods in or adjacent to the SR-1 zones, specifically the existing single-family residential neighborhoods in the Beaches Special Treatment Zone south of U.S. 98. The alleged incompatible allowable and conditional uses include motels/hotels, condominiums, beach rental vendors, and parking garages. The Seasonal/Resort FLUE category in Table 3A of the Plan states that the purpose of the category is "[t]o provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists." Listed allowable uses include condominiums, multi-family structures, motels, hotels, lodges, restaurants, convenience stores, and lounges and bars as accessory uses to multi-family structures, hotels, motels, or restaurants. Under the heading "Development Restrictions," Table 3A expressly provides that year-round, permanent residences should not be located in the seasonal/resort areas. Petitioners complain that the seasonal/resort land use category and the SR-1 and SR-2 zoning categories were assigned to many existing R-1 single-family residential structures, and that many of these homeowners have petitioned the County to change their designation from seasonal/resort back to residential. However, Petitioners have not shown that the SR-1 category described in Section 503 of the LDRs is inconsistent with the criteria of the Seasonal/Resort FLUE category set forth above. Section 503.1.a specifically recognizes that the R-1 uses in the seasonal/resort area are not nonconforming. Elliott Kampert, the County's chief planner, testified that many, if not most, of the single-family residences in this area were non- homestead properties being used as rental properties by their owners. Petitioners counter that the Plan does not distinguish between full-time, seasonal, or rental uses in applying compatibility standards or requiring protection of the character and aesthetics of residential areas and the opportunity for the quiet use and enjoyment of homes. Policy 3.9.1 of the Plan defines "compatibility" as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This is the same definition of "compatibility" found in Florida Administrative Code Rule 9J-5.003(23). Petitioners contend that Section 503 is inconsistent with Objective 3.9 generally and with Policy 3.9.1 in particular. Petitioners argue that, because SR-1 is a residential zone that has been applied to existing neighborhoods, Objectives 8.5 and 8.9 are also relevant. Objective 8.5 requires the preservation and protection of the character, compatibility and aesthetics of residential areas and neighborhoods "through the enforcement of land use regulations." Objective 8.9 requires protection of residential property values and ensures the homeowner's quiet use and enjoyment of his residence. Petitioners contend that the development allowed under Chapter 5 of the LDRs, including 60-foot high motels/hotels, 100-foot high condominiums and apartment houses, and 45-foot high parking garages, will interfere with the quiet use and enjoyment and change the character and aesthetics of the existing single- family neighborhoods. The stated purpose of the Seasonal/Resort FLUE category is to accommodate primarily seasonal or temporary visitors and tourists. Table 3A of the Plan expressly states that year-round, permanent residences should not be located in this area. Therefore, the allowable and conditional uses listed for the SR-1 category in Section 503 of the LDRs are appropriate and consistent with the relevant portion of the Plan. Petitioners' arguments, at most, demonstrated that the Seasonal/Resort criteria and standards set forth in Table 3A are inconsistent with Objectives 8.5 and 8.9 of the Plan, to the extent that the County has imposed the Seasonal/Resort designation to existing residential neighborhoods despite the express criterion that permanent residences should not be located in this area. Internal inconsistencies in the Plan are beyond the limited scope of this proceeding. Petitioners have failed to demonstrate that Section 503 is inconsistent with the Plan. Section 5066 Section 506 includes Table 5.1, which establishes standards for each seasonal/resort zoning category set forth in Chapter 5 of the LDRs. These bulk regulations include minimum lot areas, maximum densities, minimum lot frontages, minimum setbacks, maximum building heights, and impervious surface ratios for each zoning category. Petitioners contend that this LDR is inconsistent with Objectives 3.11, 8.5, and 8.9, as well as Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 3.9.1 of the Plan. Section 506 allows residential structures to be built three feet from the side-yard property line, commercial structures to be built ten feet from the side-yard property line, and contains no floor-to-area ratios. The LDR allows heights up to 60 feet for residential structures and up to 230 feet for commercial structures. Petitioners complain that Section 506 would allow construction of a 230-foot tall hotel ten feet from the property line of an existing single-family home. Petitioners contend that the setback provisions do not require sufficient side yards to preserve the integrity of the area or to protect adjacent property from the ill effects of the allowed uses. Petitioners, also, contend that Section 506 lacks objective measurements of density or intensity to control the bulk and mass of new construction. Table 5.1 includes height limits and impervious surface ratios, but does not include floor-to-area ratios, which Petitioners argue are necessary in order to have meaningful density and intensity controls. The County correctly responds that the Plan does not establish minimum setbacks or floor-to-area ratios for buildings in the Seasonal/Resort FLUE category and, therefore, neither the minimum setbacks prescribed in Table 5.1, nor the lack of floor- to-area ratios in Table 5.1 is in derogation of any provision of the Plan. Petitioners have failed to demonstrate that Section 506 is inconsistent with the Plan. Section 703 Petitioners contend that Section 703, which sets forth the allowable, conditional, and prohibited uses in the Conservation Preservation Zone, is inconsistent with the Plan, because it does not address maintaining water quality standards. Table 3A of the FLUE, in stating the purpose, uses, density and intensity allowed in the Conservation Preservation Zone, states the following "Development Restriction": "No development allowed that can be reasonably expected to degrade water quality standards." Petitioners contend that this statement should have been incorporated into the text of Section 703. Petitioners contend that Section 703 allows uses with the potential to degrade water quality, such as public utilities and infrastructure, docks, piers, seawalls, jetties, groins, boathouses, and "other similar uses."7 Petitioners contend that incorporating the specific language from Table 3A into Section 703 would enable the County to address potential development that could impair water quality. The County points out that environmental standards are set forth in a separate chapter of the LDRs, Chapter 19. Section 1904.2.e of the LDRs provides: "No new development will be permitted that would reasonably be expected to cause violation of state or federal water quality standards." Chapter 18 of the LDRs sets forth the development review process and specifically references Chapter 19 in the provisions stating the environmental information that must be included in a development application. Petitioners have failed to demonstrate that Section 703 is inconsistent with the Plan. Section 704 Petitioners contend that Section 704, which sets forth the allowable, accessory, and prohibited uses in the Conservation Recreation Zone, is inconsistent with the Plan, because it is inconsistent with the development standards set forth in Table 3A of the FLUE for the Conservation Recreation land use category. Table 3A states that the purpose of the Conservation Recreation Zone is "[t]o provide areas that are used jointly for both conservation and recreation purposes." Table 3A sets forth the allowable uses in the Conservation Recreation Zone: "Agriculture (when BMPs are used), Recreation, Public/Institutional, Residential, Commercial on upland areas when used in conjunction with the overall recreation function (e.g. ranger quarters, concessionaires, etc.), docks, piers, seawalls, groins, buoys, "eco-parks" and other similar uses, and public utilities." Table 3A sets forth the following development restriction: "Development is limited to that which supports conservation/recreation purposes." Table 3A lists density and intensity criteria as "not applicable" for the Conservation Recreation Zone. Section 704 lists all allowable and conditional uses in the Conservation Preservation Zone as allowable uses in the Conservation Recreation Zone. In addition, Section 704 lists the following as allowable uses in the Conservation Recreation Zone: Outdoor recreation uses including: parks, recreation areas, campgrounds, preserves, nature trails, historic sites, or other similar uses; hunting or gun clubs or lodges; canoe, kayak or other small boat rentals; fishing camps or lodges; horseback riding stables and trails; youth, institutional, or day camps or lodges; and, other similar outdoor recreation uses. Petitioners argue that the allowable uses listed in Table 3A, in conjunction with the lack of density and intensity criteria, establishes that only uses of limited impact are to be allowed in this area, with the standard for structural development limited to structures necessary to support the allowable recreational uses, such as ranger stations and concessionaires. "High density, high intensity" structures such as hunting, gun, fishing, youth, and recreational lodges are outside the conservation purposes of Table 3A and, are therefore, inconsistent with the Plan. Section 708 of the LDRs contains Table 7.1, the bulk regulations for all of the Conservation Zones described in Chapter 7. Table 7.1 requires a minimum lot area of 20 acres for construction in the Conservation Recreation Zone, with minimum front, rear, and side setbacks of 100 feet, maximum lot coverage of ten percent and a floor area ratio of 20 percent. A lodge constructed under these criteria would not constitute a "high density, high intensity" structure inconsistent with Table 3A of the Plan. Table 3A includes "designation criteria" for the Conservation Recreation Zone that expressly include the following: St. Andrews State Recreation Area and Aquatic Preserve, Pine Log State Forest, Econfina Creek Water Management Area, Shell Island, and Class III waters. Mr. Kampert, the County's planner, stated that the St. Andrews facility has camping sites for RVs and commercial uses such as a snorkel, dive shop, and camping shop. Pine Log State Forest includes RV camping sites with restroom facilities and showers. It is established that the state allows these types of uses in the management of its recreational areas and, therefore, that the Plan contemplates the same uses in the Conservation Recreation Zone. Petitioners, also, complain that Section 704.2.b lists "public/institutional uses" as allowed as accessory uses and structures, but does not provide examples of the type of development that would be allowed under this term. Petitioners cite no requirement that the County must publish a list of examples under each use category within the LDRs. Examples of Public/Institutional Uses are included in Table 3A of the FLUE under that land use category. In any event, such uses would be limited "to that which supports conservation/recreation purposes." Petitioners have failed to demonstrate that Section 704 is inconsistent with the Plan. Section 705 Section 705 lists the allowable and prohibited uses in the Conservation Habitation Zone. Included in the allowable uses under Section 705 are both bird sanctuaries and communications towers. Petitioners complain that communications towers present hazards to birds and that allowing such towers is inconsistent with Table 3A of the FLUE regarding Conservation areas. Petitioner's evidence regarding the dangers that cell phone towers present to migrating and local resident birds is credited, but not relevant to a determination whether the LDR is inconsistent with the Plan. Petitioners contend that communications towers constitute a commercial/industrial use and, thus, are inconsistent with Table 3A's description of the Conservation FLUE category. However, Table 3A of the FLUE lists allowable uses in the Conservation category to include "public utilities, and other similar uses." It was not unreasonable for the County to determine that communications towers are more akin to public utilities than to commercial/industrial uses, and to allow their placement in the Conservation Habitation Zone.8 Petitioners have failed to demonstrate that Section 705 is inconsistent with the Plan. Section 706 Section 706 is titled "Innovative Development Techniques." Section 706 is intended to implement Objective 6.18 of the Conservation Element of the Plan. Objective 6.18 provides that its purpose is to "[p]rovide landowners with beneficial use of their property when environmental restrictions cause the loss of full development potential through use of innovative and flexible development strategies." Policy 6.18.1 of the Plan provides that owners or developers facing development restrictions due to the presence of locally significant environmental resources on their property may use the "innovative land development techniques" of clustering and mitigation. Petitioners contend that the first sentence of Section 706 is inconsistent with the standards set forth in Table 3A for Conservation Preservation and Conservation Recreation land use categories. The first sentence of Section 706 provides: "Conservation zones are intended to accommodate limited development while, also, conserving and protecting valuable natural resources." Petitioners argue that the Conservation Preservation and Conservation Recreation categories do not allow any development at all. Petitioner's contention would be correct only if Section 706 were read to negate or override Sections 703 and 704. Sections limit development in the Conservation Preservation and Conservation Recreation Zones, respectively, through the provision of limited allowable uses and prohibited uses. Nothing in Section 706's provision for innovative development techniques trumps the limited allowable uses of the Conservation Preservation or Conservation Recreation Zones. Petitioners, also, complain that Section 706 is inconsistent with Policy 6.18.1, which states in relevant part that "owners or developers may use, or be required to use, the following innovative land development techniques." (Emphasis added.) Petitioners emphasize the underscored language to argue that the County has retained the right to impose clustering on developers, whereas Section 706 merely "encourages" clustering. On this point, there is no inconsistency between the LDR and the Plan, because the latter does not require the County to impose mandatory clustering on owners or developers. Petitioners are probably correct that Section 706 would prove more effective if it required clustering, but Policy 6.18.1 of the Plan does not mandate that outcome. Section 706 allows the use of "density transfers," defined as "[t]he transfer of all or part of the allowable density on a lot or parcel of land to another lot or parcel of land." Petitioners argue that the LDR does not provide specific and detailed criteria for the application of density transfers, which renders it inconsistent with Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and where transfers impact existing residential areas, Objectives 8.5 and 8.9. The density transfers are contemplated only for conservation zones, not existing residential areas. The lack of specific criteria to implement the concept of density transfers does not render Section 706 in conflict with the cited Plan provisions. It is noted that the Plan is silent as to density transfers, but it is, also, found that density transfers are not in conflict with the Plan.9 Finally, Petitioners allege that allowing developers to deviate from the bulk requirements for Conservation zones in Table 7.1 of the LDRs may lead to development inconsistent with the Plan. The County contends that allowing deviations from the bulk requirements is not inconsistent with the Plan, because deviations are allowed only when it can be shown that they are "necessary and desirable to avoid or preserve natural resources." Petitioners respond that the terms "necessary" and "desirable" are so vague as to be meaningless in terms of establishing an objective standard for development review. However, Section 706 expressly provides that requests for the use of innovative development techniques in Conservation zones are to be evaluated on a case-by-case basis, indicating that the County intends for the common understanding of those terms to be elucidated and amplified through the permitting process. Petitioners have failed to demonstrate that Section 706 is inconsistent with the Plan. Section 707 Section 707 contains nine special regulations that apply in the Conservation zones. Section 707.5 provides: Development will be under-taken [sic] so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities authorized by permits issued by federal or state authorities. Petitioners allege that Section 707.5 is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.1 of the Plan, because the intent of those Plan provisions is to preserve and protect wetlands. Petitioners, therefore, contend that Section 707.5 is less restrictive than the Plan, because it allows state and federal permits to trump the wetland protections set forth in the Plan. Objective 6.11 of the Plan is to "[p]rotect and conserve wetlands and the natural functions of wetlands." Policy 6.7.4 sets forth development standards applicable in designated Ecosystem Management Areas. Policy 6.7.4.5 provides that development will be undertaken "to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 707.5 of the LDRs is taken verbatim from Policy 6.7.4.5 of the Plan, except for the addition of the phrase, "except for activities authorized by permits issued by federal or state authorities." Policy 6.18.1 is the "innovative development techniques" provision discussed in Section H, supra. The County points out that Objective 6.11 states that the County will "protect and conserve" wetlands, not "preserve" them from development altogether. Petitioners contend that nothing in the Plan distinguishes between "jurisdictional wetlands," those that by definition are regulated by state and federal permitting agencies, and "isolated wetlands" unregulated by state and federal agencies. However, Policy 6.11.1 adopts by reference the definition of "wetlands" as used by the Department of Environmental Protection and set forth in Subsection 373.019(25), Florida Statutes (2006).10 Objective 6.1 of the Plan calls for the elimination of "needless duplication of government and regulatory activities relative to protection of natural resources." Policy 6.1.1 goes on to say that the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Despite Petitioner's contentions, nothing in the Plan clearly indicates11 that isolated wetlands are to be afforded the same protections as jurisdictional wetlands. The Plan defines "wetlands" by reference to the Department of Environmental Protection's definition, a clear indication that the Plan is concerned only with jurisdictional wetlands. Section 707.5 defers to the federal and state wetlands permitting authorities in the same manner as the Plan itself. Petitioners have failed to demonstrate that Section 707 is inconsistent with the Plan. Section 708 The bulk regulations for the Conservation zones are contained in Table 7.1 of Section 708 of the LDRs. A minimum lot area of 20 acres and a maximum building height of 50 feet are provided for the Conservation Recreation zone. Petitioners allege that that provision of a minimum lot area is inconsistent with the Conservation Recreation FLUE category contained in Table 3A of the Plan, because no minimum lot area is included therein. Petitioners claim that a minimum lot area precludes smaller parcels from being placed in the Conservation Recreation category, thereby decreasing opportunities for acquiring and conserving smaller areas of ecologically valuable resources. Petitioners, also, argue that allowing buildings up to 50 feet in height is inconsistent with the Conservation Recreation FLUE category, because such a building height is not necessary to accommodate the allowable uses. Contrary to Petitioner's allegation, the minimum lot area in Table 7.1 is not inconsistent with the Plan. Table 3A of the Plan does not set forth minimum lot areas as such for any land use category.12 Petitioner's policy argument regarding smaller parcels is logical, but unsupported by any specific Plan provision. Finally, the County demonstrated that a 50-foot building height is reasonable for uses such as fire towers in the Conservation Recreation zone. Petitioners failed to demonstrate that Section 708 is inconsistent with the Plan. Section 1805 Section 1805 lists all the information that must be included in a development permitting application. Section 1805.2.b sets forth the environmental information to be included in the applicant's site development information package. Petitioners allege that Section 1805.2.b is inconsistent with the Plan, because it does not require applicants to depict wetland buffers or the jurisdictional wetland line on their site plans. Policy 6.11.3.1 of the Plan provides: "Wetlands will be delineated and depicted on all site plans included in applications for development approval." The policy does not require the depiction of wetland buffers. Consistent with Policy 6.11.3.1 of the Plan, Section 1805.2.b of the LDRs requires the applicant's site plan to depict wetland areas. Petitioners failed to demonstrate that Section 1805 is inconsistent with the Plan. Section 1903 Section 1903 of the LDRs provides a list of what the County considers to be "significant natural resources." The list is identical to the list of "locally significant natural resources" contained in Policy 6.2.1 of the Plan, except that "shellfish beds" were added to the LDR list. Petitioners contend that Section 1903 should go beyond the list in Policy 6.2.1 and include all natural resources that are protected under the Plan. In particular, Petitioners claim that native aquatic flora and fauna, that help protect water quality and provide habitat, should be included in Section 1903, because their protection is a part of several Objectives in the Conservation Element of the Plan, including Objectives 6.7, 6.8, 6.9, 6.14, 6.15, 6.16, 6.17, 6.19, 6.20, 6.21, and 6.22. Petitioners argue that nothing in the statutes or rules restrict the County from adopting LDRs that go beyond the specific language of the Plan, provided the additional language is consistent with and further the objectives of the Plan. Petitioners point to the addition of the language relating to shellfish beds as an example of acceptably expanding the list of significant natural resources contained in Policy 6.2.1. Petitioners are correct in noting that the County could, further, expand the list of significant natural resources in the LDRs. This is not to say, however, that the County is required to expand the list beyond the resources listed in the Plan, and Petitioners concede that Section 1903 contains all of the resources identified in Policy 6.2.1 of the Plan. Petitioners have failed to demonstrate that Section 1903 is inconsistent with the Plan. Section 1904 Section 1904 sets forth the environmental standards with which all development must be designed and constructed to comply. The stated purpose of the standards is "to protect and conserve significant natural resources," a reference to the list of resources provided in Section 1903. Petitioners contend that the expanded list of natural resources they sought to be included in Section 1903 should, also, be added to Section 1904. For the same reasons stated in Section M, supra, there is no requirement that the LDRs go beyond the Plan regarding the list of significant natural resources identified for protection. Section 1904.4 provides setbacks for development adjacent to any water body. All principal and accessory structures must be located no closer than 30 feet from the mean high water or ordinary high water line or within 30 feet of any Department of Environmental Protection jurisdictional line, whichever is more restrictive. Natural vegetation is to be preserved within the setback area. The stated purpose of the setback is to "provide a buffer between surface waters and development, preserve quality, limit sediment discharges, erosion, and uncontrolled stormwater discharges, and provide wildlife habitat." Petitioners allege that the 30-foot setback is insufficient to accomplish the stated purpose, because subsurface impacts can extend well beyond a 30-foot setback. Dr. Bacchus testified as to the extensive scientific documentation that coastal areas are eroding. This natural erosion, coupled with the rise in sea levels caused by global warming, means that a 30-foot setback, even if it were scientifically based at the time it was adopted, would no longer have a valid basis. The situation will be exacerbated by the continued increase in Bay County's population, meaning that more and more water will be withdrawn causing the land mass to compress and collapse. The sea level encroachment will, thus, be far greater than the sea level rise alone would predict. The County notes that the setback language of Section 1904.4 is substantively identical to Policy 6.7.4.6 of the Plan, which applies to Ecosystem Management Areas, areas where "extraordinary regulatory standards may be applied to protect natural resources." Though not all surface waters are necessarily included in the Ecosystem Management Area designation, Section 1904.4 provides the same buffer they would enjoy were they so designated. Petitioners point to no specific Plan provision with which Section 1904 conflicts. Dr. Bacchus credibly testified that a larger buffer area would provide greater protection to the surface waters encroached upon by adjacent development. However, the standard in this proceeding is not whether the LDRs could be improved upon, but whether they are inconsistent with the Plan. Petitioners failed to demonstrate that Section 1904 is inconsistent with the Plan. Section 1905 Section 1905 sets forth a list of development restrictions for those areas designated Ecosystem Management Areas by Policy 6.7.3: "Undeveloped, unplatted land in the Rural or Suburban Service Areas adjacent to Class II waters and Outstanding Florida waters, tributaries and headwaters thereto." Policy 6.7.4.5 of the Plan provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 1905.4 of the LDRs provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities or permits issued by state and federal agencies." Petitioners contend that Section 1905.4 is inconsistent with Policy 6.7.4.5, because it includes the quoted phrase deferring local jurisdiction to permits issued by state and federal authorities. This is the same argument raised by Petitioners regarding Section 707. See Section I, supra. Petitioners, also, contend that Section 1905.5, providing the same 30-foot setback as discussed in relation to Section 1904, is inadequate for the same reasons discussed in Section N, supra. Petitioners' chief concern is the protection of wetlands, and they argue with some force and no little persuasiveness that state and federal agencies do not adequately enforce wetlands regulations. However, it is not within the authority of this tribunal to substitute its judgment for the County's legislative determination to defer to the permitting authority of state and federal agencies. For the same reasons given in Sections I and N of this Order, Petitioners have failed to demonstrate that Section 1905 is inconsistent with the Plan. Section 1906 Section 1906 sets forth development restrictions in the Deer Point Reservoir Protection Zone, established to protect the water quality of the Deer Point Reservoir at or above the ambient levels at the time the County adopted Ordinance 94-12, which established the boundaries of the protection zone and provided standards for land uses in order to protect the water quality of the reservoir. The Deer Point Lake Reservoir is a Class I water that was created in 1961 through the construction of a dam across the northern portion of North Bay, and is the primary source of drinking water for most of the municipalities in the County. Petitioners complain that Section 1906.5 allows on- site sewage disposal systems within the Deer Point Reservoir Protection Zone, provided that the minimum setback for septic tanks and their drainfields is 100 feet from the mean high water or ordinary high water line. Dr. Bacchus credibly testified that allowing septic tanks to proliferate in the Deer Point Lake watershed will cause the water to become extremely eutrophic, due to the leaching of nutrients through the shallow surficial aquifer. There will be problems with aggressive alien species and fish kills, causing the recreational benefits of the area to plummet.13 Again, even if Dr. Bacchus' expert testimony is fully credited, it does not resolve the question whether Section 1906 is inconsistent with the Plan. Policy 6.6.1.5 of the Plan expressly provides that septic tanks are allowed near Class I waters, provided they are no closer than 100 feet from the shoreline. Policy 6.7.4.4 of the Plan provides that, in the Ecosystem Management Areas, septic tanks must be located at least 100 feet upland of the mean high water line, ordinary high water line, or DEP wetland jurisdiction line. Petitioners have failed to demonstrate that Section 1906 is inconsistent with the Plan. Section 1909 Section 1909 sets forth restrictions, constraints and requirements on development activities in wetlands. Petitioners argue nine points of alleged inconsistency. First, Petitioners contend that Section 1909's defining "wetlands" by reference to Florida Administrative Code Rule 62-340.200(19) is inconsistent with the Plan, because the Plan covers both jurisdictional and isolated wetlands. The cited rule provides: "Wetlands," as defined in subsection 373.019(25), F.S., means those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto. The rule's definition is virtually identical to that contained in Subsection 373.019(25), Florida Statutes. See footnote 10, supra. As noted in Section I, supra, Policy 6.11.1 of the Plan adopts by reference the definition of "wetlands" set forth in Subsection 373.019(25), Florida Statutes. For the reasons set forth in Section I, supra, Petitioners have failed to demonstrate that the intent of the Plan was to include any wetlands other than the jurisdictional wetlands defined by statute and the Department of Environmental Protection's rule. Petitioner's second point is that Section 1909.2 contains the same exception to the general avoidance of development impacts on wetlands as found in Sections 707.5 and 1905.4: "except for activities authorized by permits issued by federal or state authorities." For the reasons set forth in Sections I and O, supra, this language has not been shown to be inconsistent with the Plan. Petitioner's third point is that Section 1909.3 provides the same 30-foot wetland buffer set forth in Section 1904.4. For the reasons set forth in Section N, supra, the 30- foot buffer has not been shown to be inconsistent with the Plan. Petitioner's fourth point is that the last sentence of Section 1909.3.e is inconsistent with the Plan. This sentence states: "A variance may be granted to allow an accessory use to violate the setback requirement, but by no more than twenty (20) percent."14 Petitioners allege that this language is inconsistent with Objectives 6.11 and 6.18 and their implementing Policies, as well as Policy 6.7.4, because the Plan's provisions contain no express exemption that allows accessory structures to be placed in the wetland buffer. Petitioners, further, contend that the Section 1909.3.e provides no guidelines to ensure that a requested variance is only for a use required to provide the owner with a reasonable use of the property. Petitioners note that "accessory uses" listed in the Plan and LDRs include guesthouses, swimming pools, storage sheds/greenhouses, satellite dishes, jet ski rentals, beverage or food shops, and parking garages. Objective 1.8 in the Administrative Prccedures Element of the Plan is intended to "provide avenues of hardship relief from those aspects of the Plan that have the effect of regulating the use of land, consistent with the provisions of Chapter 163, Florida Statutes." Policy 1.8.1.1 describes the County's variance process, the purpose of which is described as follows: The Plan variance process is designed to provide relief from the requirements of the Comprehensive Plan in those cases where strict application of these requirements could result in an unconstitutional taking or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this Plan. Policy 1.8.1.1 sets forth nine standards with which an applicant must demonstrate compliance. The ninth standard requires the applicant to prove that the property "cannot be put to a reasonable use which fully complies with the requirements of this Plan unless the variance is granted." This limitation obviates Petitioner's concerns about the potential for granting variances for frivolous accessory uses. The fact that a requested accesory use must go through the variance process set forth in Policy 1.8.1.1 and elaborated in Section 208 of the LDRs ensures consistency.15 Petitioner's fifth point is that Section 1909.3.g is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.2. Section 1909.3.g provides: "In situations where the width of the buffer area exceeds the width of the wetland, the buffer may be reduced to the same size as the width of the wetland. The quality of the wetland will determine this possibility." This subsection addresses situations in which the 30-foot buffer is wider than the wetland itself. Mr. Kampert testified that he was unaware that this situation had ever occurred in the County. Dr. Bacchus testified that she was unaware of any proven correlation between the width of the buffer and the width of the wetland in terms of protecting the wetland. She was unaware of any studies, research or other scientific documentation supporting the language regarding buffer reduction, and did not believe it would be possible to state a scientific basis for reducing the buffer to the width of the wetland. Policy 6.7.4.6 of the Plan states that the wetland buffer requirement, "including possible alternatives, may be further addressed in the Land Use Code."16 Allowing the width of the buffer to equal the width of the wetland when the wetland is less than 30 feet wide is an "alternative" that is not inconsistent with any specific provision of the Plan. The County is not required to demonstrate the scientific basis for the LDR. Petitioner's sixth point regards Section 1909.3.h, which provides: Alternative project design and construction may be allowed in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal to or greater than the vegetated buffer. Petitioners contend that this provision is inconsistent with Objective 6.11 and Policies 6.11.3.2 and 6.7.4.5. Both policies state that development will be undertaken so as to avoid activities that would destroy wetlands or their natural functions. The County points again to the "possible alternatives" to wetland buffers contemplated by Policy 6.7.4.6 of the Plan, and argues that alternative project design and construction within the parameters outlined in Section 1909.3.h must certainly be considered a reasonable alternative within the meaning of Policy 6.7.4.6. The County, further, notes that any impact of alternative project design would be minimal, because Section 1909 does not apply to wetlands in conservation zones or Ecosystem Management Areas, which contain most of the large wetland systems in the County. These areas have their own sections of the LDRs. See Section 707 (special regulations applicable to conservation zones) and Section 1905 (development restrictions for Ecosystem Management Areas). Petitioner's seventh objection regards Section 1909.5, which provides: In the event a lot or parcel of property is rendered totally undevelopable by avoidance of wetlands the property may be developed when: 1) disturbance of wetlands is the minimum necessary to build an allowable use, and 2) mitigation is provided consistent with applicable law. Petitioners contend that Section 1909.5 is inconsistent with Objective 6.18 and with Plan provisions calling for the protection of wetlands and their natural functions. Petitioners argue that Objective 6.18 establishes the conditions for development of property that is rendered totally undevelopable, because of environmental restrictions such as wetlands avoidance. Section 1909.5 provides for an "allowable use," seemingly a more lenient standard than the "beneficial use" standard of Objective 6.18. Petitioners note that an "allowable use" would appear to be any use listed in the zoning criteria for a particular parcel, which would likely be more intensive than a "beneficial use" under the standard provided by Objective 6.18. In response, the County simply points out that the language of Section 1909.5 is taken verbatim from Policy 6.11.3.5 of the Plan and, therefore, is not inconsistent with the Plan. Petitioner's eighth point regards Section 1909.6, which provides: In order to adequately monitor the loss of wetlands within Bay County, all fill permits granted by an agency other than Bay County shall be reported to Bay County Planning and Zoning Division. This notification is the responsibility of the applicant, and shall be concurrent with the application for development order, where applicable. Before the issuance of the Development Order, the applicant shall file a verified copy of the permit(s). Petitioners first complain that Section 1909.6 deviates from the intent of the Plan by limiting data gathering to jurisdictional wetlands, a variation of the argument already disposed of in Section I, supra. Petitioners, further, argue that Section 1909.6 is insufficient, because it leaves permit reporting to the applicant and provide no enforcement provisions. The standard in this proceeding is not whether the LDR falls short of Petitioner's desires and expectations, but whether it is inconsistent with the Plan. Petitioners have shown no inconsistency in Section 1909.6 Petitioner's ninth point regards Section 1909.7, which provides: Violations of this section, or noncompliance cases, may be required to implement appropriate corrective measures developed in consultation with the Planning Official and other appropriate agencies. In addition, triple application fees may apply, such as development order application fees, if this section is violated. Petitioners contend that this provision is inconsistent with the Plan's protection of natural resources, because the penalties are not mandatory, and in any event are not severe enough to deter intentional destruction of wetlands. However, Petitioners point to no particular Goal, Objective, or Policy of the Plan that sets forth enforcement criteria for the wetlands provisions. Again, Petitioners here urge the imposition of their policy preference on the County, rather than demonstrate that Section 1909.7 is inconsistent with the Plan. In summary, Petitioners have failed to demonstrate that Section 1909 is inconsistent with the Plan. Section 1911 Objective 6.16 of the Plan is to "[p]rotect and conserve selected trees and important vegetative communities." Policy 6.16.1 provides that the County will maintain tree protection regulations as part of the LDRs, and that these regulations will include criteria for: the type and size of protected trees; exemptions; conditions for tree removal; replacement of removed trees; protection of trees during development; and preservation of certain large trees. In furtherance of Objective 6.16, the County adopted Section 1911, which provides lengthy and detailed provisions for tree protection and allowable removal of "protected" trees, defined as any hardwood tree or coniferous tree other than pine with a diameter at breast height of 18 inches or more. Section 1911.5 establishes standards for "historic," "specimen," "champion," and "heritage" trees. Petitioners claim that Section 1911.5 is inadequate, because it fails to establish how these trees are to be identified in order to qualify for protection. Section 1911.5 in fact states that historic and specimen trees are to be designated as such by the County Commission, after a public hearing on the designation "with due notice to the owner of the tree." Thus, it appears that any member of the public, not just the landowner, may bring a tree to the County's attention. A champion tree is one that has been designated by the Florida Division of Forestry as the largest of that species in the State of Florida or by American Forests (a nonprofit conservation organization that has maintained the "National Register of Big Trees" since 1940) as being the largest of that species in the United States. Anyone is eligible to nominate a tree as a "champion" tree. A heritage tree is defined as any tree with a diameter of at least 30 inches. Section 1911.5 does not include any means for official recognition of a heritage tree, though it is noted that a heritage tree would, also, meet the definition of a "protected" tree. As noted above, Section 1805 of the LDRs sets forth the information that a developer must include with his application and site plan. Section 1805.2.b sets forth the environmental information that must be included on the site plan. Section 1805.2.b.vi requires the inclusion of the "location and size of all protected trees." The County concedes that the LDR includes no procedure for the County itself to go out into the field and identify qualifying trees. Objective 6.16 does not require the County to proactively identify qualifying trees. Petitioners have failed to demonstrate that Section 1911 is inconsistent with the Plan. Section 2710 Section 2710 regulates the location and construction of communications towers. Section 2710.3 provides the following location standards for a "communications tower," defined as a structure greater than 35 feet in height that is designed to support communications transmission or receiving equipment: Except as provided in subsection 2,17 the following standards and criteria shall apply to the location of new or expanded communications towers: Communications towers may be allowed in all land use districts or zones when all of the following standards and criteria are met. The applicant shall make every effort to locate his communications tower in a non-residential land use district or zone. No other industrial or commerically zoned property is available to the applicant for this intended use. The proposed location will minimize the impact of the antenna structure due to the height, use or appearance of the adjacent structures or surrounding area. There are no existing building structures located within the area that are available to the applicant for this intended purpose. No other existing antenna structure located within the area is available for purposes of co-location. The antenna structure and its proposed height is the minimum necessary by the applicant to satisfy the applicant's communication system needs at this location. The applicant must provide a written, notarized statement to the Planning Division demonstrating compliance with (i) through (vi). Requests to locate communications towers in residential districts or zones can only be approved by the Planning Commission at a duly noticed public hearing by comptetent substantial evidence demonstrating compliance with (a) through (h) above18 and all other applicable provisions of this Chapter [27, dealing with guidelines and standards for the design, installation, construction and maintenance of utility facilities]. Petitioners allege that allowing communications towers in all land use districts or zones is inconsistent with Objectives 3.9, 8.5 and 8.9 and Policies 3.9.1 and 8.5.1 of the Plan, because communications towers are not compatible with and should not be placed in residential areas. The Plan lists public utilities as an allowable use in all FLUE categories, including the Conservation and Residential categories. The Plan does not define "public utility." The LDRs define a "public utility" as "[a] regulated utility provider with a franchise for providing to the public a utility service deemed necessary for the public health, safety, and welfare." The LDRs define "utility, public or private" as (1) Any agency that, under public franchise or ownership, or under certificate of convenience and necessity, or by grant of authority by a governmental agency, provides the public with electricity, gas, heat, steam, communication, transportation, water, sewage collection, or other similar service; (2) a closely regulated enterprise with a franchise for providing a needed service. Based on the above definitions, which Petitioners have not challenged, the County has reasonably concluded that telecommunications providers are public utilities and that their telecommunications towers may, therefore, be placed in residential areas, subject to the conditions set forth in Section 2710.3 Section 2710.3.a.i requires the applicant to make every effort to avoid locating a comunications tower in a residential area. Section 2710.3.a.ii requires the applicant to demonstrate the unavailability of any industrial or commercially zoned property for the tower. Section 2710.3 requires the five- member Planning Commission, the appointed local planning agency for the County pursuant to Section 163.3174, Florida Statutes,19 to approve all requests to locate communications towers in residential areas at a public hearing in which the applicant demonstrates compliance with the listed criteria. These are consistent, reasonable requirements for the placement of a public utility. Petitioners have failed to demonstrate that Section 2710 is inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: The challenged land development regulations adopted by Bay County Ordinance No. 04-30 are determined to be in compliance. DONE AND ORDERED this 24th day of May, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2007.
The Issue The issue in this case was to have been whether the evidence sustains the decision of the City of Clearwater Planning and Zoning Board to deny the application of the Appellant for a conditional use permit to sell alcoholic beverages for consumption at the Gallery Restaurant on Sand Key if a outside deck is added to the facility. However, a threshold issue is whether an appointed hearing officer has jurisdiction to decide the case.
Findings Of Fact The Appellant's desire to expand its Gallery Restaurant by adding an outside deck necessitated the filing of an application for a conditional use permit. The application was filed in August, 1994. The matter was presented to the Planning and Zoning Board (the Board) for decision at its meetings on October 18, November 1, and December 13, 1994, but was continued each time. Finally, at its meeting on February 14, 1995, the Board considered and voted to deny the application. On February 23, 1995, a Notice of Appeal was filed with the City Clerk for the City of Clearwater.
The Issue Whether Centervillage Limited Partnership has demonstrated, by a preponderance of evidence, that development rights in certain real property it owns have vested against the provisions of the Tallahassee-Leon County 2010 Comprehensive Plan.
Findings Of Fact Procedure. On or about August 6, 1990, Centervillage filed an Application for Vested Rights Determination with the Tallahassee-Leon County Planning Department. (Application VR0027T) The following information concerning the development of the Centervillage property was contained on the Application: "Gerald E. Songy" is listed as the "owner/agent." Question 3 lists the name of the project as "Centervillage Limited Partnership." "Progress . . . Toward Completion" is described as:(1) planning, (2) site preparation, (3) Leon County environmental permits, (4) DER Dredge and Fill Permit, (5) DOT Drainage Connection Permit. Original P.U.D., Rezoning, Minor subdivision Approval and a stormwater agreement with Leon County, are included in Centervillage's application as forms of government approvals and as the actions of government relied on prior to committing funds toward completion of the proposed development. On September 10 and 17, 1990, hearings were held to consider the Application before the Staff Committee comprised of the City Attorney, the Director of Planning for the Tallahassee-Leon County Planning Commission and the Director of Growth Management for the City. By letter dated September 17, 1990, Mark Gumula, Director of Planning of the Tallahassee-Leon County Planning Department informed Centervillage that the Application had been denied. By letter dated September 28, 1990, to Mr. Gumula, Centervillage appealed the decision to deny the Application. By letter dated October 10, 1990, the Division of Administrative Hearings was requested to provide a Hearing Officer to review this matter. By agreement of the parties, the undersigned allowed the parties to supplement the record in this matter on November 26, 1990. The Property. Centervillage currently owns approximately 27.20 acres of property (the Property) located at the Northeast corner of Capital Circle, Northeast, and Centerville Road, Tallahassee, Florida (Application). Centervillage began assembling the Property, through various transactions, in the early 1980's. By October, 1984, Centervillage had acquired the bulk of the Property. (T-3 p. 23) Prior to Centervillage's initial acquisition of the Property, the prior owners of portions of the Property began development of the site as an industrial, mini-warehouse development. This prior development activity involved a series of violations of state and local environmental laws and regulations. (T-3 pp. 50-51, 59) As a result of improper development activities by the prior owners of the Property, fines were imposed and, at the time Centervillage made the initial purchase, the Property was subject to a Florida Department of Environmental Regulation (DER) consent order. (T-3 p. 26) Development Activity. The project that Centervillage proposes to develop is a shopping center containing 200,000 square feet of gross leasable space on approximately 18 of the total 27.20 acres. (T-3 p. 96) The balance of the property is dedicated to stormwater facilities. (T-3 pp. 96-99) During the process of acquiring the 27.20 acres it currently owns, Centervillage began preparing the Property for future development by clearing and demolishing existing structures such as mobile homes, concrete driveways, and wells. (T-1 pp. 27-28) Permits were obtained early in the process to demolish these structures and in December 1984, the front corner of the Property was selectively cleared. (T-1 p. 28) In April, 1986, Leon County (the County) began construction of a ditch on a portion of the perimeter of the Property. The purpose of this ditch was to allow stormwater discharge from a Centerville Road construction project that the County was involved in. The County had been unable to locate an alternative site to provide any catchment and holding facility to handle the stormwater run off and, as a result, had encountered problems with the Florida Department of Environmental Regulation (DER). (T-3, pp. 70-71) At the same time, Centervillage was involved in attempting to resolve problems associated with improper development activity on the Property by its previous owners. These factors led to cooperative efforts on the part of both Centervillage and the County in dealing with the DER and to conceptual agreements between the Centervillage and the County regarding aspects of future development of the Property. Centervillage granted the County a temporary easement for the purpose of constructing the drainage ditch. (T-1 p. 28, T-3 p. 52) The drainage ditch constructed on the site turned out to be a "long, skinny holding pond." (T-1 p. 29) The County constructed over 80 percent of the overall onsite perimeter ditch in mid to late 1986. (T-1 p. 29) The property subject to the temporary easement will be conveyed to the County pursuant to a formalized conceptual agreement between Centervillage and the County. (App. Ex. G, G-8) This agreement will be the subject of expanded discussion later in this Final Order. Construction of the majority of the current improvements on the Property began in June of 1989. The work consisted of: construction of a holding pond sized for commercial development; construction of some two and a half acres of wetlands; and construction of the perimeter ditch from the north end of the project to Centerville Road, then west along Centerville Road under Capital Circle. (T-1 pp. 30-31) The work also included vegetation of the perimeter ditch to create wetlands. (T-1 p. 31) This development activity also involved the placing of 50,000 to 60,000 cubic yards of fill material on the site. (T-1 p. 30) In May and June of 1989, Centervillage acquired over six acres of adjoining property in order to construct a stormwater facility which it had agreed to provide as part of its conceptual agreements with the County and in partial mitigation against prior improper development on the Property. (App. Ex. H, H-2; T-1 p. 11; T-3 pp. 125-126; T-3 pp. 26-27) The two and a half acres of new wetlands Centervillage constructed on the property was also in mitigation for prior improper development activity engaged in by previous owners of the Property. (T-1 p. 30) Further development has been permitted but not constructed. This work is to involve the construction of culverts, crossings, and onsite, upland filtration facilities. (T-1 pp. 31-32) As a result of the 1989 development activity, the northern 7.57 acres of the property has been excavated for the stormwater facility and some 18 acres of the Property have been filled from depths of two to six feet. (T-3 p. 97) Government Approvals. In July, 1984, the City approved Centervillage's request for a Planned Unit Development (P.U.D.) to allow the Property to be developed as a shopping center to be constructed in three phases. Each phase of construction was to involve 50,000 square feet of retail space. (App. Ex. G, G-1) In December, 1984, the City approved an amendment to the previously approved P.U.D., to add additional property and to expand the size of the development by the addition of approximately 20,000 square feet of retail space. (App. Ex. G, G-2) In January, 1988, Centervillage received rezoning approval from the P.U.D. to Commercial Parkway, limited use site plan (CP zoning). (App. Ex. G, G-3; T-3 pp. 25-26) The limited use site plan outlines, among other things, the limited access to the Property and the reestablishment of the canopy road on portions of Centerville Road which abut the property. (App. Ex. G, G-3) In May, 1988, the City approved Centervillage's application for minor subdivision approval. This minor subdivision approval established one parcel as the previously developed mini-warehouse site to the east of the Property and the other parcel as the Property as it currently exists except for 2.79 acres on Capital Circle which had not been acquired at that time. (App. Ex. G, G-4) In October, 1988, the City granted a separate minor subdivision approval which addressed the additional 2.79 acres. (Minor subdivision approval, dated October 26, 1988, signed by Donny Brown, Development Coordinator for the City.) The parcel containing the mini-warehouse facility was sold in 1986, and is no longer part of the Property. (T-1 pp. 37-38) On July 22, 1988, the DER issued an environmental permit to Centervillage. (App. Ex. E, E-9) This permit was a result of extensive negotiations between DER and Centervillage and also involved the County because of the County's own permitting problems with the road improvement Project. (T-1 pp. 63-65) This DER permit specifies that the "permit does not convey any vested rights." (App. Ex. E, E-9, paragraph 3) On August 17, 1988, the County issued Environmental Management Permit #88-0299 to Centervillage. This permit was for "earth work only" and specified that "stormwater runoff [would] be required upon final development plans." (App. Ex. E, E-1) On October 25, 1988, the County accepted Centervillage's hydrological analysis on the Property. (App. Ex. E, E-3) On December 5, 1988, Centervillage received notification from the County that the project site was exempt from site plan review. (App. Ex. E, E- 9) Currently, there is not a city-approved site plan for the Centervillage project. (T-3 p. 115) On May 3, 1989, the County issued Environmental Permit #89-0230. This permit reflects approval of an additional of 630,000 square feet of impervious surface to the site. Centervillage's application for this permit also lists the proposed use of the Property as "M-1 mini-warehouses and CP shopping center." (App. Ex. E, E-5) Centervillage began its construction of the majority of current site improvements in June of 1989. (T-1 p. 30) In meetings between Centervillage and the City it was never confirmed that the approval of an additional 630,000 square feet of impervious surface on the site was a valid assumption. (T-3 p. 138) The County issued two additional environmental permits in 1989, one for tree removal (App. Ex. E, E-6) and one for stormwater permit amendments. (App. Ex. E, E-7) In March, 1990, the County issued an additional environmental permit for tree removal. (App. Ex. E, E-8) In January and in June, 1990, the Florida Department of Transportation (DOT) issued two separate drainage connection permits to Centervillage. (App. Ex. E, E-10, E-11) Until October, 1990, the County performed the environmental regulatory services for both the County and the City. (T-3 p. 56) At the time the County issued the environmental permits described in this Final Order, there was no City of Tallahassee Environmental Ordinance. (T- 3 pp. 73-74) At the time the County issued the environmental permits described in this Final Order, the County Chief of Environmental Management regularly appeared before the Tallahassee City Commission as part of his duties in issuing environmental permits for property within the City. (T-3 p. 56) At the time the County environmental permits described in this Final Order were issued to Centervillage, the City would look to a County environmental permit before issuing a building permit. (T-3 p. 74) At the November 26, 1990, hearing in this case, the Chief of Environmental Management for the County testified that he knew of no specific resolution or ordinance that granted environmental permitting authority within city limits to the County. (T-3 pp. 74-75) However, the testimony at the November 26, 1990, hearing in this case establishes that the City relied on the County's environmental permitting in making its own permitting decisions. (T-3 pp. 56, 73-75) In practice and effect, the County was acting on behalf of the City in granting local environmental permits. (T-3 pp. 73-80) The County has never been delegated the authority to make land use decisions, such as subdivision approvals, for property within the City. (T-3 pp. 74-76) The rezoning of the Property from P.U.D. to CP Zoning, approved by the City in January, 1988, provided no specific approval of densities and intensities for development of the Centervillage project. (T-3 pp. 130-132) When Centervillage requested rezoning of the Property from P.U.D. in January, 1988, its managing general partner assumed that as part of the approved zoning change it received approval for the same density and intensity of development that existed under the P.U.D. (T-3 p. 125) The Conceptual Agreement. In early 1986, the County was in the process of attempting to widen and improve Centerville Road. (T-1 p. 28) During this construction by the County, the DER asserted jurisdiction over the road project and the construction was stalled because the County did not have adequate property on which to construct facilities for the storage and treatment of stormwater runoff generated by the road construction project. (T-3 pp. 70-71, 82-84) During the initial rezoning and permitting process, Centervillage was required to address the effects of prior improper development activity engaged in on a portion of the Property by previous owners. As a result of the prior improper development on the Property, Centervillage was required to mitigate against flooding problems and to facilitate revegetation of a denuded canopy road segment along Centerville Road. (T-3 p. 52) On April 11, 1986, James G. Parrish, Administrator for the County, presented Centervillage with a conceptual agreement whereby, among other things, Centervillage agreed to grant necessary easements to the County for the construction of a drainage ditch on the Property to accept and store stormwater runoff from the County's Centerville Road improvement project. (App. Ex. G, G- 6) During 1986, the County and Centervillage cooperated through a series of permitting contacts specific to the development of a shopping center, to establish a major regional water management facility, to provide water management for the Centerville Road project, and to engage in cooperative efforts to reforest the canopy road. (T-3 pp. 52-53) These cooperative permitting contacts included contacts with the DER. (T-3 p. 53) The conceptual agreement was finally formalized and adopted by the Leon County Commission on July 18, 1989. (App. Ex. G, G-8) In this agreement, Centervillage obligated itself to acquire additional property, construct a stormwater management facility and to convey the completed facility to the County. (App. Ex. G, G-8) In the formalized conceptual agreement, the County agreed to fully cooperate in the efforts of Centervillage to obtain all permits necessary to complete all improvements in accordance with the DER permit issued to Centervillage in July, 1988. (App. Ex. G, G-8) The formalized conceptual agreement further provides that the County will not require any additional stormwater retention or detention above that required by the County environmental permit issued to Centervillage previously. (App. Ex. G, G-8) The agreement also provides that the County will allow Centervillage to develop the southwest portion of the Property, fronting Capital Circle Northeast and Centerville Road," to its fullest commercial potential, subject only to existing zoning ordinances, terms and conditions of the limited use site plan, approval of subsequent short-term applications for environmental management permits, and Leon County Environmental Permit number 88-0299." This portion of the agreement also provides that the property will no longer be "protected from development." (App. Ex. G, G-8, paragraph 8) Centervillage is obligated, pursuant to the agreement, to convey in excess of 7 acres of property and the drainage ditch area for no additional consideration. (T-3 pp. 85-86) Absent the agreement of Centervillage to provide stormwater drainage and retention on the Property and to convey that portion of the Property to the County, the County could not have completed the Centerville Road improvement project. (T-3 pp. 70-71) Centervillage's agreement to donate land to the County was tied to the DER permits issued to both Centervillage and the County. (T-1 p. 41) Centervillage's agreement to provide the 7.57 acre stormwater facility to the County was a required condition in connection with the issuance of the environmental management permit issued by the County. (T-3 p. 88) The City was privy to the conceptual agreement between Centervillage and the County from the development stages through to its final, formal approval by the County Commission in July 1989. The plans for the stormwater facility were discussed with and reviewed by the City, with the understanding that the city would accept and maintain the facilities. (T-3 pp. 86-87) During these discussion with City personnel, there was no indication given that the agreement included land use decisions. (T-3 pp. 90-91) The 7.57 acre stormwater facility serves more than the development area. The facility is a major component of the total drainage system for the City of Tallahassee. (T-3 p. 88) The size of the 7.57 acre stormwater facility is not directly related to the Centervillage development proposal. (T-3 p. 90) Development Expenses. The cost of purchasing the original tract was $1,812,012.00. Centervillage has since sold a portion of the original tract for $738,282.00. Centervillage's net land costs for the Property are $1,073,730.00. (App. Ex. C, C-1) Centervillage incurred costs of $175,000.00 in purchasing land pursuant to the conceptual agreement with the County. (T-3 pp. 123-126) Other than the $175,000.00 expended pursuant to the conceptual agreement, the balance of costs of purchase of land were not incurred in reliance on any act or omission of the City. Interest and property taxes paid by Centervillage were $1,279,753.30. (App. Ex. C, C-1) No significant portion of the costs attributed to interest and property taxes were incurred in reliance on any act or omission of the City. Centervillage incurred $543,624.50 in costs associated with site work, clearing, and landscaping on the Property. Significant portions of these costs were incurred beginning in June, 1989. (T-1 pp. 30-31) These costs were substantially incurred after Centervillage had engaged in extensive negotiations with state and local government entities and after permits were issued by the state DER and DOT as well as environmental permits issued by the County. At the time the County issued these permits it was, in practice and effect, acting on behalf of the City. These negotiations, agreements, permits and approvals are outlined in the Government Approvals portion of this Final Order. Centervillage has established that it expended well in excess of $400,000.00 on testing, inspection, soil investigation, engineer and survey fees, architectural fees, legal and title fees and general development expenses associated with the development of the Property. (App. Ex. C, C-1) Centervillage has proved that a significant portion of these "soft costs" were expanded during the period it engaged in extensive negotiations with and after Centervillage obtained permits and approvals from the various state and local government entities as outlined in the Government Approvals portion of this Final Order. Centervillage would not have made the large expenditure of funds, or made the commitment to convey significant portions of the property to the County pursuant to the Conceptual Agreement if it had not obtained the zoning approvals and environmental permits that were necessary to construct a community size shopping center of approximately 200,000 square feet. (T-1 pp. 68-70; T-3 pp. 127-128) The evidence in this case establishes that Centervillage reasonably relied on the approvals and environmental permits it obtained from state and local governments, as well as on the conceptual agreement between Centervillage and the County in changing its position and in incurring substantial costs associated with the development of the Property. Current Status of the Development. Centervillage took a site that was a drainage way, added properties to it, accomplished an enormous amount of permitting and fill work to come up with a fairly level buildable site suitable for building anything allowed within the zoning and the Comprehensive Plan. (T-1 p. 18) The shopping center project has been pursued by Centervillage for the past several years. Centervillage has never proposed any alternative plans to the City or other governmental authorities in the history of its project. (T-3 pp. 57-60, 82; T-1 pp. 17-18) Environmental Management Permit #89-0230, issued on May 3, 1989, by the County, contemplated approval of the addition of 630,000 square feet of impervious surface to the Property. (App. Ex. E) Centervillage relied on this approval and incurred substantial costs in proceeding with the further development of the Property. At the hearing on November 26, 1990, Centervillage presented the testimony of Richard Moore, a licensed professional engineer. (T-3 p. 94) Mr. Moore has been involved with the Centervillage project for seven years. (T-3 p. 95) Mr. Moore testified that he prepared a layout based on several planning concepts on engineering design and determined that 630,000 square feet of impervious surface allowed 200,000 square feet of gross leasable space and allowed the development of adequate parking with good internal circulation and sufficient green areas to allow for aesthetic landscaping. (T-3 pp. 106-107) Mr. Moore further testified that this square footage ratio is on average with design standards accepted in the engineering community. (T-3 p. 107) According to Mr. Moore's testimony, if Centervillage is required to meet consistency and concurrency requirements of the 2010 Comprehensive Plan, the shopping center development could be limited or delayed because the Property is located on a constrained roadway. (T-3 pp. 103-106) The DOT and the City have scheduled widening of Capital Circle, on which the Centervillage Property fronts, for 1991. (T-3 pp. 109-110) However, based upon Mr. Moore's testimony, Centervillage has established that constrained roadway limitations could limit or delay the project under the 2010 Comprehensive Plan despite the current improvement schedule. According to Mr. Moore's testimony, under the 2010 Comprehensive Plan, the proximity of the Property to Centerville Road, a canopy road, could limit the development of a shopping center to 100,000 square feet of leasable space. (T-3 pp. 103-104) As of July 16, 1990, the date of adoption of the City of Tallahassee Vesting Ordinance, the stormwater facilities on the Property were not complete. Additional water treatment facilities must still be constructed for runoff from the site. (T-3 pp. 19-21) No roadways, water and sewer services or electrical services have been constructed on site. (T-3 p. 108)
Findings Of Fact Background The Parties Respondent, City of Hialeah (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive plans and amendments thereto. Petitioners, Edmond J. Gong and Dana L. Clay (petitioners), reside in Coconut Grove, Florida and own at least two parcels of property within the City. The parties have stipulated that petitioners are affected persons within the meaning of the law and have standing to challenge the remedial amendment in issue here. The Nature of the Dispute In 1991 and 1992, the City adopted three sets of land use amendments to its comprehensive plan known as amendments 91-1, 91-2 and 92-1. Each set of amendments generated objections by the DCA, and the matters were later sent to the Division of Administrative Hearings and were assigned Case Nos. 91-6340GM, 92-3113GM and 92-7517GM, respectively. Petitioners did not participate in any of these proceedings. To resolve the objections raised by the DCA, the City and DCA negotiated a stipulated settlement agreement in December 1993, which was executed by the City on January 28, 1994. Pursuant to that agreement, on April 21, 1994, the City adopted a remedial amendment (Ordinance 94-27) known as amendment 94R-1. After reviewing the amendment, on June 2, 1994, the DCA issued a cumulative notice of intent to find such amendment in compliance. On June 7, 1994, the South Florida Regional Planning Council also found the amendment to be in compliance. Finally, on July 11, 1994, the DCA's motion to dismiss Case Nos. 91-6340GM, 92-3113GM and 92-7517GM was granted. Petitioners, who participated in the local hearings concerning the adoption of amendment 94R-1, timely filed their petition for administrative hearing on June 23, 1994, challenging the propriety of that amendment for various reasons. The petition was assigned Case No. 94-3506GM. Although petitioners failed to plead any procedural issues in the initial petition, respondents have agreed that petitioners may raise certain procedural objections regarding amendment 94R-1 since the procedural issues were raised in their objections and comments filed with the City during the adoption process of the amendment. Procedurally, petitioners argue that the local government did not comply with all statutory requirements in noticing its proposed approval of the settlement stipulation and its later intent to adopt an ordinance. As to the DCA, petitioners argue that the state agency did not comply with the law in publishing its cumulative notice of intent on June 2, 1994, and that the notice contained erroneous rule citations and lacked a geographical map. Substantively, petitioners complain that before final approval of amendment 94R- 1 was given, the local government and DCA did not consider the enactment of Chapter 94-338, Laws of Florida, which created a multijurisdictional tourism, sports and entertainment special district known as the Blockbuster Park Special District, and they did not consider the traffic impacts of a recently opened connector to Interstate 75 and an interchange within the City that connects traffic from the connector to the Florida Turnpike. Finally, they contend that the amendment improperly redesignated more than ten acres of land from residential to commercial land use. Amendments 91-1, 91-2 and 92-1 involve ten amendments to the plan, all originally found not to be in compliance by the DCA. To cure three of those deficiencies, the City rescinded three ordinances leaving seven plan amendments to be remediated. Petitioners challenge the validity of these seven amendments but none change the use on their property. In reality, though, petitioners rely principally on their procedural objections in seeking to have a determination made that the amendment is not in compliance. Were the Notice Requirements Met? After the DCA and City reached an agreement in principle to resolve the DCA's objections to the plan amendments, a settlement agreement was prepared for execution by the City's mayor and DCA Secretary. Before the mayor could sign the agreement, however, the City Council's approval and authorization were required. Such approval and authorization to sign the agreement came in the form of a resolution adopted at a public hearing held on January 25, 1994. The agreement was later signed by the mayor and DCA Secretary on January 28 and March 3, 1994, respectively. The City had originally intended to consider the item at its January 11, 1994 meeting. Timely publication of notice was given for that meeting on December 27, 1993, in the regular edition of The Miami Herald, a newspaper of general paid circulation published daily in Dade County. At the January 11 meeting, however, the City discussed the matter but then deferred final action on the item until its next meeting on January 25, 1994. Accordingly, it republished a notice of its January 25 meeting in the Zone 4 Northwest Neighbors section of the Herald. The Zone 4 Northwest Neighbors section is an insert in the Herald each Thursday and Sunday and contains news pertaining to the northwest portion of Dade County, including the City. Because all copies of the Herald delivered and sold in northwest Dade County contain this particular Neighbors insert, the City complied with the requirement that the advertisement be published in a newspaper of general paid circulation within the jurisdiction of the City. Since petitioners reside and work outside of northwest Dade County, they say they did not receive the Neighbors insert in their paper and thus they were not aware of the January 25 hearing. There is no requirement, however, that the advertisement be published in other parts of Dade County. It is noted that even though they should have received notice of the January 11 hearing through the advertisement published in the regular edition of the Herald on December 27, 1993, they did not attend the hearing. The four-inch notice published on page 15 of the January 16, 1994 edition of the Neighbors section reads as follows: At its regular meeting of January 25, 1994, the Hialeah City Council will consider the following Resolution in addition to other business. Members of the public are invited to attend; the meeting begins at 7:00 p.m. at Hialeah City Hall, 501 Palm Avenue, Hialeah, Florida. RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, AUTHORIZING THE MAYOR TO ENTER A STIPULATED SETTLEMENT AGREEMENT IN CASE NOS. 91-6340GM, 92-3113GM AND 92-7517GM, ENTITLED "DEPARTMENT OF COMMUNITY AFFAIRS VS. CITY OF HIALEAH" NOW CONSOLIDATED BEFORE THE STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FOR TRANSMITTAL TO THE FLORIDA DEPART- MENT OF COMMUNITY AFFAIRS. Applicable state law (s. 163.3184(16), F.S.) called for the notice to be published at least ten days prior to the hearing. In addition, general provision 3 of the settlement agreement provided in part as follows: This agreement has been approved by the governing body at a public hearing advertised in an adver- tisement published at least 10 but not more than 15 days prior to the hearing in the format prescribed for advertisements in Section 163.3184(15)(c) and Section 163.3187. Assuming the day of the hearing is not counted in computing the ten days, the City would have had to publish the notice by Saturday, January 15, 1994, in order to meet the ten-day requirement. Because the Neighbors section was not published on Saturdays, but rather only on Thursdays and Sundays, the City opted to publish the notice on Sunday, January 16, 1994, or just nine days before the hearing. This was necessary since the item was deferred at the January 11 hearing, and the City presumably was unable to meet the deadline for having an ad published only two days later in the Thursday, January 13, 1994 edition of Neighbors. Even so, petitioners were unable to show any prejudice by virtue of the City failing to meet the ten-day notice requirement. The settlement agreement called for the City to adopt certain remedial amendments by ordinance. These amendments are contained in Ordinance No. 94-27. Although state law (s. 163.3184(16)(d), F. S.) requires that the City hold only one advertised public hearing on a compliance amendment at the adoption stage, in accordance with the City Charter, two hearings were scheduled for that purpose on March 22 and April 12, 1994. A single one-quarter page advertisement in the regular edition of the Herald was published on March 17, 1994, or five days before the first hearing. The law (s. 163.3184(15)(b)2., F. S.) also requires that the hearing be "approximately 5 days after the day that the second (i. e., adoption stage) advertisement is published." The advertisement referred to both hearing dates and noted that their purpose was "to receive comments from interested parties on the Stipulated Settlement Agreement between the City of Hialeah and the Florida Department of Community Affairs related to the 1990 and 1991 Cycles I and II plan amendments to Hialeah's Comprehensive Plan." The advertisement also contained a list of the ten plan amendments and a map showing the portion of the City affected by each of those amendments. Although petitioners contended that the map was illegible in some respects, they nonetheless read the notice in the newspaper and attended both hearings to voice their objections to the ordinance. Notwithstanding petitioners' objections, on April 12, 1994, the City adopted the ordinance. Contrary to petitioners' assertion, the City complied with the notice requirements for both hearings. Assuming arguendo that the statutory notice requirements were not strictly met, petitioners failed to demonstrate that they were prejudiced by such an error. After reviewing the ordinance, on June 2, 1994, the DCA published in the Neighbors section of the Herald a cumulative notice of intent to find the plan amendments and remedial plan amendment in compliance. The advertisement was one-quarter page in size, identified the plan amendments in issue, advised readers that the amendments were in compliance, gave a location where such amendments and comments could be reviewed, and offered a point of entry to affected persons. Therefore, its content was sufficient to inform the public of the action being taken. The DCA concedes that in the notice, however, it cited rule 9J-11.012(8) as the provision dealing with the contents of a petition to challenge the amendments found to be in compliance when in fact the correct citation should have been rule 9J-11.012(7). There is no section (8) in the rule. The notice also cited former rule 22I-6.010 as the rule dealing with intervention when in fact that rule has been renumbered as rule 60Q-2.010. Even so, petitioners were unable to show how they were prejudiced by these minor errors, especially since they knew the nature of the action being proposed by the DCA, and they timely filed their petition for hearing to challenge the amendment. The DCA policy is to publish its notice of intent to find an amendment in compliance in the same local newspaper as the local government uses for its publication. The DCA also pointed out that by advertising in the Neighbors section as opposed to the regular edition of the Herald, it saved several thousand dollars. Therefore, the DCA used the Neighbors section of the Herald. At the same time, the DCA has never included in its advertisement a map showing the location of the land use changes being proposed. This is because the local government advertisements have already included a map, and the DCA notice is simply for the purpose of advising the public which ordinances are in or out of compliance. In the absence of any showing of prejudice, and in view of petitioners' failure to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the law, the cited procedural errors are insufficient to support a finding that amendment 94R-1 is not in compliance. The plan amendment Since 1986, petitioners have owned two parcels of undeveloped property in the southern one-half and northwestern one-quarter of Tract 24 of Section 28, which is located in the western part of the City. The property consists of approximately six acres located at the northeastern intersection of West 76th Street and the Hialeah-Hialeah Gardens Boulevard. The property has been designated on the future land use map as low density (single-family) residential, which allows up to twelve units per acre. Petitioners have not specifically pled or shown how amendment 94R-1 adversely affects their property. Instead, they simply argue that the plan amendment is not in compliance because the City did not consider the impacts of "drastically changed circumstances" before adopting the remedial ordinance, and the City improperly reclassified a small tract of land. These claims will be considered below. Effective June 3, 1994, Chapter 94-338, Laws of Florida, became law. That law created a multijurisdictional tourism, sports and entertainment special district more commonly known as Blockbuster Park. That legislation, however, is not relevant to this proceeding for several reasons. First, there is no mechanism to consider multijurisdictional impacts in the local planning process. Second, the special act did not become law until after the amendment process here had been completed. Since the City was only required to consider the best available data present at the time the amendment was being reviewed and adopted, consideration of the special law was neither necessary or appropriate. Third, the act itself does not authorize a development. If and when a development order is approved, the City can update its plan to take into account any impacts from the project. As to the contention that the City and DCA failed to take into account the six-lane connector road completed on December 31, 1993, or two years after the plan amendments were adopted, the impact of the connector road is identified and discussed on pages 21 and 23C of the future land use element contained in the remedial amendments. At hearing, it was further explained that the connector road is a limited access regional road under the control of Dade County, and not the City. This means that there is no access to the connector from properties which front on the road, and local access will be limited to three major road intersections. No land use changes along the road have been proposed, and the City has adequately addressed the circulation map requirements in the plan and how the internal circulation routes would be compatible with the major connectors. This being so, it is found that the City and DCA gave adequate planning consideration to the connector. Finally, petitioners contended that certain land was improperly redesignated from single-family residential to multi-family and commercial use. They complain that this is inappropriate since the land is close to a school and does not lie near a major intersection. The evidence shows, however, that such redesignation was appropriate since the land is located at an intersection and lies just across the street from an existing five-acre commercial tract. Moreover, the multi-family part of the tract will serve as a buffer between the commercial use at the intersection and the existing single-family use to the south. Then, too, the proximity of a nearby school to the west will serve to reduce trip time for persons shopping in the area while dropping off or picking up children from the school. Finally, some types of commercial use in residential neighborhoods can serve valid planning purposes, and the City has already established a pattern of having some schools located near commercially designated property. The redesignation is found to be reasonable and based on appropriate planning considerations. Although no proof was submitted by petitioners regarding any other parts of the plan amendment, respondents demonstrated that all remaining parts are supported by adequate data and analysis and are in compliance. Accordingly, petitioners have failed to prove to the exclusion of fair debate that remedial amendment 94R-1 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 determining the City of Hialeah comprehensive plan amendment to be in compliance. DONE AND ENTERED this 11th day of October, 1994, 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 11th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3506GM Petitioners: 1-2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-20. Partially accepted in findings of fact 5-8. 21-24. Partially accepted in findings of fact 9. Partially accepted in findings of fact 10 and 11. Partially accepted in finding of fact 4. 27-29. Covered in preliminary statement. Rejected as irrelevant. Rejected as unnecessary. 32-35. Rejected as irrelevant. 36-38. Partially accepted in finding of fact 6. 39-41. Partially accepted in finding of fact 11. 42. Rejected as unnecessary. Respondent DCA: 1-12. Covered in preliminary statement. 13. Partially accepted in finding of fact 1. 14. Partially accepted in findings of fact 2 and 13. 15. Partially accepted in finding of fact 1. 16-19. Partially accepted in findings of fact 6-8. 20-22. Partially accepted in finding of 9. 23-25. Partially accepted in findings of fact 10 and 11. 26. Partially accepted in finding of fact 6. 27. Partially accepted in finding of fact 11. 28. Partially accepted in finding of fact 6. 29-30. Partially accepted in finding of fact 10. 31-55. Partially accepted in findings of fact 13-17. Respondent City: Because the City's proposed recommended order was not timely filed, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding of fact. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. COPIES FURNISHED: Mr. Edmond J. Gong Ms. Dana L. Clay 6161 Blue Lagoon Drive, Suite 370 Miami, FL 33126 Terrell K. Arline, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 William M. Grodnick, Esquire 501 Palm Avenue, 4th Floor Hialeah, FL 33010 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
Findings Of Fact Clearwater Beach Community Church (the Church) applied to the City of Clearwater for a conditional use permit on November 14, 1988. The conditional use requested by the Church was to establish and operate a non-profit day care center for no more than 49 children, ages 2 to 5. The proposed center would be operated on the Church property by Latchkey Services for Children, Inc., a non- profit organization which provides subsidized child care. Latchkey currently operates six preschool centers and 36 school-age centers in Pinellas County. The Church's proposed center would operate weekdays from approximately 6:30 a.m. to 6:00 p.m. and would accommodate parents who live or work on Clearwater Beach. Five staff members, or one adult per 10 children, would be employed to operate the center. No day care centers currently exist on Clearwater Beach. Minimum standards for day care centers in Pinellas County are set by the Pinellas County License Board for Children's Centers and Family Day Care Homes. The Church's proposed center meets all standards set by the licensing board. Based on the available classroom space at the Church, the largest group of children would be limited to 13. The proposed outdoor play area is 81 feet by 33 feet and would be utilized by no more than 13 children at one time. At least one adult would be present at all times to supervise the children's outdoor play periods. The play area is enclosed on the south and west sides by Church buildings and on the north side by a six (6) foot high cement block wall. A fence is to be constructed on the east side to fully enclose the play area. Outside play time would be almost continuous between the hours of 8:00 a.m. and 5:30 p.m. Parents would drop off their children between 6:30 a.m. and 8:00 a.m. in the circular drive area on the east side of the Church's property. Three areas with a total of 14 parking spaces have been designated as parking areas for day care center employees and for parents required to park their cars when dropping off or picking up their children. In addition, a city- owned public parking lot is located directly across Bay Esplanade to the south of the Church. On-street parking exists on Poinsettia Avenue on the west side of the Church. It is to be anticipated that some parents will walk or use public transportation to deliver their children to the school. Parents will pick up their children between 4:30 p.m. and 6:00 p.m. The Church property is zoned Public/Semi-Public. To the immediate south across Bay Esplanade lies city-owned property on which are located, from west to east: public tennis courts; a public metered parking lot; public basketball courts; a city youth recreation center; and a public boat ramp. To the immediate west, from south to north, are a motel, an apartment building and a public soccer field. To the north on the Poinsettia (west) side, lies, from south to north, a vacant privately-owned lot, a triplex and a 13-unit apartment building. To the north on the Cyprus Avenue (east) side, and directly behind the Church's sexton residence, is a four-unit, two-story apartment house which is partially occupied by its owner. Across Cyprus Avenue to the east of the Church property, from south to north, are a motel and several duplexes. The area surrounding the Church is a quiet area inhabited by a large proportion of permanent residents, mostly elderly retirees, and by residents of motels who choose the area because it is quiet. Some of these residents live close enough to the proposed day care center to be disturbed by the noise that would surely result, even with the proposed noise buffers, from the process of dropping off and picking up the children each day, five days a week, especially the process of dropping them off between approximately 6:30 a.m. and 8:00 a.m., and from the continuous use of the play area by 10-13 children for approximately 8 hours a day, five days a week. Because of the character of the neighborhood, the noise disturbance could reasonably be expected to have an adverse impact on property values of both the motels and residences in the immediate area.
Findings Of Fact On or about March 13, 1986, Petitioner applied to Respondent for a conditional use permit to allow the package sale of alcoholic beverages in a convenience store at 410 through 422 North Belcher Road, Clearwater, Florida. The property is located in a general commercial district. On or about April 15, 1986, the Planning and Zoning Board of the City of Clearwater denied Petitioner's application and on April 28, 1986, Petitioner timely appealed that decision. Petitioner's property is immediately adjacent to Faith Bible Church which operates Suncoast Christian School with approximately 120 students through the sixth grade, and the property is across the street from Trinity Baptist Church which operates a school with approximately 200 preschool through first grade students. The subject property is within 500 feet of the property of both of these churches, and there are two additional churches in the neighborhood. Richard Tobias, property appraiser, testified that convenience stores such as the one Petitioner proposes do not enhance the properties in their immediate vicinity, although they are generally an asset to the neighborhood as a whole due to the convenience of local shopping. Public witnesses expressed concern about the proximity of the proposed convenience store to churches and schools because of litter problems which they feel could develops as well as public drinking in the store parking lot. The use and enjoyment of such church and school properties will be adversely affected if the conditional use is approved, accordingly to the testimony and evidence presented by public witnesses. Petitioner, as property owner, plans to lease the subject property to Carlos Yepes, President of Clay Oil Enterprises, for the operation of the convenience store. Yepes operates seven other stores which sell beer and wine, and according to Denise Williams, leasing agent, there have been no neighborhood or police complaints concerning Yepes' operations.
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
