The Issue The issue in this case is whether certain amendments to the City of Miami Beach Year 2000 Comprehensive Plan are "in compliance," as defined in Section 163.3184(1), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Kent Harrison Robbins, is a resident of the City of Miami Beach. Mr. Robbins owns real property located within the boundaries of the City of Miami Beach. Petitioner, Altos Del Mar Development Corporation (hereinafter referred to as the "Development Corporation"), is a corporation. The Development Corporation is owned by Mr. Robbins. Respondent, the City of Miami Beach (hereinafter referred to as the "City"), is a political subdivision of the State of Florida. The City is located in Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Standing. Mr. Robbins owns real property (hereinafter referred to as the "Robbins Property") in the City. The Robbins Property is located west of Collins Avenue between 76th Street and 77th Street. The Robbins Property is located across Collins Avenue from one of the areas which is the subject of this proceeding. The Robbins Property is also located a few blocks from other areas which are the subject of this proceeding. Mr. Robbins made oral comments before the City at public hearings on the amendments which are at issue in this proceeding. Development Corporation is owned by Mr. Robbins. Development Corporation is the contract-purchaser of the Robbins Property. Mr. Robbins and Development Corporation have standing to institute this proceeding. The Department and the City have standing to participate in this proceeding. General Description of the City and the North Shore Area of the City. The City is a group of barrier islands located along the southeast coast of Florida. The City is 99 percent developed. The City is bounded on the east by the Atlantic Ocean and on the west by Biscayne Bay. The area at issue in this proceeding is located in an area of the City generally referred to as "North Shore." North Shore is heavily urbanized, as is the City generally. Within North Shore are located North Shore Open Space Park, North Shore Park, Altos Del Mar Historic Preservation District, and the Harding Townsite/South Altos Del Mar Historic District. North Shore Open Space Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 79th Street, and south of 87th Street. North Shore Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 72nd Street and south of 73rd Street. The Altos Del Mar Historic Preservation District (hereinafter referred to as "Altos Del Mar") is an area of the City that was designated an historic district in January 1987. Altos Del Mar consists of the area bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 79th Street, and on the south by 77th Street. The Erosion Control Line is a line that runs generally north-south along the eastern boundary of the City and the Atlantic Ocean. The Erosion Control Line marks the western boundary of the area of the shoreline in which efforts to stop or slow erosion of the beaches have been directed. The Harding Townsite/South Altos Del Mar Historic District (hereinafter referred to as "Harding Townsite") was designated an historic district in October 1996. Harding Townsite is bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 77th Street, and on the south by 73rd Street. The City's Comprehensive Plan. The City adopted the City of Miami Beach Year 2000 Comprehensive Plan (hereinafter referred to as the "Plan"), on September 7, 1989. The Plan was found to be "in compliance" as defined in the Act in December 1992. Part II of the Plan establishes goals, policies, and objectives of the Future Land Use Element. Objective 1, Policy of the Future Land Use Element of the Plan establishes, in relevant part, the following land-use categories, land-use intensities, and land-use densities: Recreation and Open Space, including Waterways, or "ROS," which is described as: as: Purpose: To provide development opportunities for existing and new recreation and open space facilities, including waterways. Uses which may be Permitted: Recreation and open space facilities, including waterways. Single Family Residential, or "RS," which is described Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and new single family residential development. Uses which may be Permitted: Single family detached dwellings. Density Limits: 7 residential units per gross acre. Parking, or "P," which is described as: Purpose: To provide development opportunities for existing and new parking facilities. Uses which may be Permitted: Parking facilities and commercial uses when located on frontage opposite a land use category that permits commercial use. Public Facility, or "PF," which is described as: Purpose: To provide development opportunities for existing and new government uses including convention center facilities. Uses which may be Permitted: Government uses and convention facilities. Low Density Multi Family Residential, or "RM-1," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new low density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings and multiple family dwellings. Base Density Limits: 34 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 90 dwelling units per gross acre, inclusive of base density. Medium Density Multi Family Residential, or "RM-2," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new medium density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings, multiple family dwellings, apartment hotels and hotels. Other uses which may be permitted are adult congregate living facilities, day care facilities, nursing homes, religious institutions, private institutions, public institutions, schools, commercial parking lots and garages and non-commercial parking lots and garages. Base Density Limits: 56 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 136 dwelling units per gross acre, inclusive of base density. The Plan contains all of the elements required by the Act, including a Future Land Use Element, a Recreation and Open Space Element, and a Conservation/Coastal Zone Management Element. The Plan also contains a Future Land Use Map. Adoption and Review of the Plan Amendments. On or about January 21, 1994, the City transmitted amendments to its Plan to the Department for review. The amendments were adopted generally to "down-plan" the City and to encourage the redevelopment of the Altos Del Mar neighborhood. In an effort to "down-plan" the City, the amendments provided for a reduction of the overall amount of residential development allowed in the City pursuant to the Plan. In an effort to promote redevelopment of the Altos Del Mar neighborhood, the amendments replaced the dual single-family residential and recreation and open space land-use classifications of property in Altos Del Mar and classified the area as single-family residential; and reclassified under- utilized parking areas and medium density multi-family properties as low density multi-family. The Department designated the amendments as Amendment 94-1, reviewed the amendments, and issued its Objections, Recommendations, and Comments Report on April 1, 1994. On June 2, 1994, the City enacted Ordinance Number 94-2928 adopting the amendments (hereinafter referred to as the "Proposed Amendments"). The Proposed Amendments were submitted to the Department for review under the Act. The Department reviewed the Proposed Amendments and found that they were not "in compliance." The Department issued a Notice of Intent to find the Proposed Amendments not in compliance on July 28, 1994. The Department filed a Petition for Formal Administrative Hearing challenging the Proposed Amendments with the Division of Administrative Hearings on August 16, 1994. Following negotiations between the City and the Department, a Compliance Agreement was entered into on September 19, 1996. Pursuant to the Compliance Agreement, the City adopted remedial amendments. On December 5, 1996, the Department published a Cumulative Notice of Intent finding the amendments, as modified by the remedial amendments (hereinafter referred to as the "Adopted Amendments"), "in compliance" with the Act. Petitioners' Challenge. Petitioners filed a Petition for Administrative Hearing with the Department challenging the determination that the Adopted Amendments were "in compliance." On January 16, 1997, the Department dismissed the petition by Order Dismissing Petition with Leave to Amend. Petitioners filed an Amended Petition with the Department on February 4, 1997. The Amended Petition was filed by the Department with the Division of Administrative Hearings on February 14, 1997. On June 9, 1997, Petitioners moved to further amend the Amended Petition. Petitioners' request was granted. The Challenged Amendments. There are three changes to the Plan in the Adopted Amendments that have been challenged in these proceedings. Those changes involve modifications to the Future Land Use Map (hereinafter referred to as the "FLUM"), and textual changes pertaining to the geographic areas at issue in this proceeding. The relevant changes to the FLUM were designated FLUM Changes 14, 16a, 16b, and 16c (the areas which are the subject of changes 14, 16a, 16b, and 16c are hereinafter referred to respectively as "Area 14," "Area 16a," "Area 16b," and "Area 16c"; the areas are collectively referred to as the "Subject Areas"). Petitioners have challenged Changes 14, 16a, and 16b (hereinafter referred to as the "Challenged Amendments"). The Subject Areas are located within Altos Del Mar and/or the Harding Townsite. With regard to Change 14, Petitioners have alleged generally that the amendment is not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning future land use, conservation, coastal management, and recreation and open space elements. Petitioners have argued generally that Area 14 may only be used for recreation and open space because the area is in effect a park or open space; there is a dune located on the property; the use of the property for single-family residential will negatively impact wildlife and plant life; and the use of the property for single-family residential will negatively impact historic resources. With regard to Changes 16a and 16b, Petitioners have alleged generally that the amendments are not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning the coastal management, recreation and open space, and housing elements. Petitioners have argued generally that Changes 16a and 16b will negatively impact public access to beaches and inappropriately reduce public parking. In Petitioners' proposed recommended order, Petitioners attempted to raise issues which were not alleged in their Second Amended Petition. Petitioners contended that the Department's original notice that the Proposed Amendments were not in compliance was defective; that the Adopted Amendments were not necessary to meet projected demands for residential land uses in the City; and that the Adopted Amendments were not consistent with coastal planning objectives. These issues were not properly raised is this case. The City and Department had no opportunity to present evidence to address these issues because Petitioners had not raised the issues until they filed their proposed order. Nor, to the extent these issues may have been properly raised before this forum, did the evidence support Petitioners' allegations. Area 14 and FLUM Change 14. Area 14 is bounded on the south by 76th Street, on the north by 79th Street, on the west by Collins Avenue, and on the east by the Atlantic Ocean. The Robbins Property is located adjacent to Area 14, on the west side of Collins Avenue between 76th Street and 79th Street. Area 14 is bounded on the north by North Shore Open Space Park. Area 14 consists of Blocks 5, 6, 7, 10, 11, and 12. Area 14 is located in Altos Del Mar or Harding Townsite. There are 36 individual platted lots in Area 14. Twenty-two of the lots are currently owned by the State of Florida. The rest are in private ownership. Area 14 consists of approximately 11 total acres. Area 14's designated land-use classification on the FLUM prior to the adoption of the Challenged Amendments was "Recreation and Open Space" and "Single Family Residential." This dual land-use classification is identified on the FLUM as "ROS/RS." Pursuant to the dual land-use classification of Area 14, property located within Area 14 could be permitted for single-family dwellings or it could be used for recreation and open space. Petitioners' have alleged that FLUM Change 14 "change[s] the designation of [Area 14] from recreational open space to single family residential." This allegation is not supported by the evidence in this case. FLUM Change 14 eliminates the dual land-use classification of Area 14. Pursuant to FLUM Change 14, Area 14 is designated for use as Single Family Residential only. The dual land-use classification was eliminated to encourage reinvestment of single-family residential development in the area. I. Current Use of Area 14. Area 14 currently includes vacant lots, lots with boarded-up structures, and several single-family residences. There are more vacant and unused lots than there are lots with single-family residences. The 22 lots owned by the State are not all contiguous. The largest area of contiguous state-owned lots is located between 76th and 77th Streets. This area is located adjacent to the Robbins Property. Eleven of the twelve lots between 76th and 77th Streets are owned by the State. There is one privately-owned lot located just north of 76th Street. The State also owns two lots just north of 77th Street. The lots in Area 14 north of 77th Street are primarily owned in a checker-board fashion. Some of the lots north of 77th Street have existing single-family residences located on them. The rest of the lots are vacant or have boarded-up buildings located on them. Because of the proximity of Area 14 to the Atlantic Ocean and the accessibility of the beach from the area, the public uses the open areas of Area 14 for recreational purposes from time to time. The area is generally open, there is grass, pine trees, and sea grapes on some lots, and there is a public shower located at the east end of 77th Street. The trees and other vegetation offer shaded areas. There is public parking available in the area on side streets off of Collins Avenue and a public parking lot just to the south of 76th Street. There are several access points to the beach along Area 14, including an access point at the east end of 77th Street. There is a rock fence at the end of 77th Street. The rock fence is typical of fences that were placed at the ends of streets in the City that led to the beach. The fences were erected to prevent vehicular traffic entering the beach while allowing pedestrian access. The public has used the open areas of Area 14 for some time for picnicking, walking their pets, playing games, barbecuing, and other outside recreational activities. The evidence failed to prove the extent of this use. The evidence presented by Petitioners was not gathered in any organized fashion and was unconvincing. The 22 lots owned by the State in Area 14 were originally acquired with the intent of creating a park at some time in the future. The State had intended to acquire all of Area 14 for this purpose. The lots were acquired by the State as part of the Save Our Coast Park Expansion Program. When the State's efforts to acquire all of Area 14 failed, the State decided not to acquire any more lands. The lots the State had acquired in Area 14 were designated as "excess lands." The State intends to sell the lots it owns in Area 14. In 1994, after the State abandoned its plan to acquire all of Area 14, the City and State, through the Board of Trustees of the Internal Improvement Fund, entered into a lease (hereinafter referred to as the "Lease"). Pursuant to the Lease, the State leased North Shore Open Space Park and the publicly- owned lots in Area 14 to the City. Although the period of the Lease was twenty-five years, the Lease provided that it was entered into "upon an interim basis" while negotiations concerning transfer of fee title of the property to the City were ongoing. During this "interim" period, the Lease provides that the property is to be used exclusively for recreational purposes. The City agreed to manage the property as a public park. The City does manage North Shore Open Space Park as a public park. Despite any requirement to the contrary under the Lease, the City has not created, or operated, a park in Area 14. Neither the City or the State actually created a park out of any part of Area 14. Nor has the City or State used any part of Area 14 as a park. Area 14 has not been included by the City in its Recreational and Open Space inventory. Consequently, Area 14 and any use by the public was not considered by the Department in the determination that the City's Recreation and Open Space Element of the Plan is in compliance. Petitioners' Assertion that Area 14 Must be Used as a Park. Petitioners attempted to prove that Area 14 must be used for recreational purposes or as open space. Petitioners based this argument on their assertion that the character of Area 14 is suitable for, and has historically been used as, a park or open space; the State and City planned and managed Area 14 as a park; the data and analysis relied upon by the City in adopting FLUM Change 14 contains an alleged incorrect statement concerning the current use of the area; and there is a need in the City for additional recreation and open space property. Petitioners have proposed a relatively large number of findings of fact to support this position. While those findings of fact are generally accurate when considered standing alone, they are not relevant to the determination of whether the Challenged Amendments are in compliance and, therefore, have not been included in this Recommended Order. Petitioners failed to prove that Area 14 is used as a "park." Even if they had, nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area can be developed only in a manner that is consistent with its historical use. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in the manner in which the property was used informally by the public. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in a manner that is consistent with a use which the State or local government may have considered appropriate for the area at some time in the past. Finally, there are no provisions in the Plan, the Act, or the rules of the Department that require that a comprehensive plan be consistent with the terms of a lease agreement, especially where the lease agreement was expressly entered into on an interim basis. Alleged Error in the Data and Analysis Concerning the Use of Area 14. The data and analysis in support of the Adopted Amendments indicates that "[t]he area encompassed by Future Land Use Map 14 is NOT now used for recreational purposes and it is not counted in the recreation facility inventory in the Recreation and Open Space Element." Petitioners cited part of the foregoing sentence from the data and analysis, and argued that the statement is not accurate. The evidence failed to support Petitioners' position. Petitioners' citation of part of the sentence quoted in finding of fact 66 fails to consider all of the data and analysis considered by the City in adopting the Challenged Amendments. Petitioners' argument is also based upon the unsupported conclusion that the common use of parts of Area 14 by the public constitutes "recreational purposes" as those terms are used in the data and analysis. When read in context, it is clear that the terms are being used in a technical, land-use planning sense. In their technical, land-use planning sense, the sentence is accurate. The evidence failed to prove that the data and analysis relied upon by the City in adopting the Challenged Amendments are not professionally reliable or that the data and analysis do not support the Challenged Amendments. The Need for Additional Recreation and Open Space. Petitioners have asserted generally that the amendments relating to Area 14 are not in compliance because of the need for additional recreation and open space in the City. Petitioners failed to prove this assertion. The evidence failed to prove that the Challenged Amendments relating to Area 14 somehow will cause a deficit in the Recreation and Open Space inventory of the City or that such a deficit already exists. Further, had Petitioners been able to prove that there is a need for additional parks in the City, such proof would only support a finding that the Recreation and Open Space Element of the Plan is inadequate. It would not, however, necessarily follow that the City would be required to correct the inadequacy through the use of Area 14 as a park. Finally, Petitioners have failed to prove how FLUM Change 14, which does not authorize any use of Area 14 that is not already authorized without the change, will have the suggested effect on the City's recreation and open space inventory. The National Recreation and Park Association's minimum level of service standard for recreation and open space is ten acres per one thousand permanent and seasonal residents. The City has adopted this level of service for recreation and open space in the City. The City meets this standard without consideration of Area 14 or any part thereof. Data and analysis, unrefuted by credible evidence from Petitioners, indicates that FLUM Change 14 will not adversely effect the level of service standard for recreation facilities: [R]emoval of the ROS designation will not per se reduce the recreation level of service. The re designation [sic] of site to Single Family Residential will create a small additional residential development potential, thus putting more demand on existing recreation facilities. However, the additional demand will not result in the city failing to meet its recreation level of service since it is an inconsequential amount and since it will be more than balanced by the net reduction in permitted residential development which will result from the cumulative effect of all of the proposed Future Land Use Map changes. The recreation level of service is established by Policy 2.1 of the Recreation and Open Space Element at ten (10) acres of recreation and open space per one thousand permanent and seasonal residents with 20 percent of seasonal residents counted. The Recreation space inventory shown in Table VIII-1 of the Recreation and Open Space element will still have the 1,156 acres shown therein after the 94-1 Future Land Use Map change (including change number 14) is effectuated. The 2002 population projection reported in Tables I-2 and I-3 of this element will remain at 98,965 permanent and 70,000 seasonal because it is based on trend lines not individual development sites. The 98,965 permanent population plus 20 percent of the 70,000 seasonal population produces a population of 112,965 for purposes of the recreation level of service standard. Then, 1,156 acres of existing recreation land/(112,965 people/1,000 people) equals a level of service of 10,233 acres per 1,000 population. The evidence failed to prove that FLUM Change 14 will adversely impact the City's ability to meet its adopted recreational level of service. The City has made commitments to upgrade existing recreational facilities, including improvements to North Shore Open Space Park. Included in the City's inventory of Recreational and Open Space property is La Gorce Country Club. La Gorce Country Club makes up 144.28 acres of the total 1,156 acres of recreational property relied upon by the City to meet its level of service standard. The La Gorce Country Club's inclusion in the Recreational and Open Space inventory was reviewed and approved in 1992. It played no part in the Challenged Amendments. Petitioners attempted to prove that the La Gorce Country Club should not be included in the Recreational and Open Space inventory. The evidence in this case failed to prove Petitioners' assertion. The La Gorce Country Club is a private country club. It is, however, available to the public for some recreational activities. It is, therefore, acceptable to include it as recreational property under the Department's rules. Additionally, even if the evidence had proved that La Gorce Country Club should not be considered in determining whether the City's level of service standard has been met, there is no requirement in the Act, the Department's rules, or the Plan that Area 14 must be included to make up the resulting deficit. Even if there were such a requirement, the inclusion of the 11 acres of Area 14 in substitution for the 144.28 acres of the La Gorce Country Club would not correct the deficit. Petitioners also suggested that Area 14 is qualitatively better recreational property than La Gorce County Club. This argument, and the facts offered to support it, are not relevant. The evidence failed to prove that the City has not adopted an adequate level of service in its Recreation and Open Space Element, or that the City is not meeting its level of service. The evidence also failed to prove that FLUM Change 14 is inconsistent with City's Recreation and Open Space Element Goal: Develop and Maintain a Comprehensive System of Parks and Recreational open Spaces to Meet the Needs of the Existing and Future Population by Maximizing the Potential Benefits of Existing Facilities and Open Space While Encouraging the Preservation and Enhancement of the Natural Environment. In light of the fact that Area 14 has never been treated as a park by the City, the evidence failed to prove that the City is not meeting its Recreation and Open Space Element Goal without regard to the land-use classification of Area 14. Archaeology of Area 14. Prior to March of 1927 there was a United States Federal Life Saving Station, known as the "Biscayne House of Refuge," located somewhere in the vicinity of Area 14. The Biscayne House of Refuge was one of six similar buildings located on the east coast of Florida. The buildings were used to provide refuge for shipwrecked sailors. The original Houses of Refuge were authorized by President Ulysses S. Grant in the late 1800's. The Biscayne House of Refuge was stocked with provisions and was managed by a keeper. The keeper's duties included, among others, burying bodies that washed up along the coast. Several of the keeper's children were also buried somewhere near the Biscayne House of Refuge. The evidence failed to prove, however, where any bodies are buried. It is believed that the Biscayne House of Refuge was destroyed following damage to the structure during a hurricane in March of 1927. The exact location of the Biscayne House of Refuge has not been determined. The best information available indicates it was located east of Collins Avenue, and either between 73rd and 77th Streets, or between 72nd and 76th Streets. There is also some information to suggest that the Biscayne House of Refuge was located on a site that is already developed for the City's library. The Florida Department of State, Division of Historical Resources, reported that its Historical Preservation Review of the Adopted Amendments had determined that the 22 proposed changes to the City's FLUM "should have no adverse effects on the city's historic resources since the areas appear to contain no sites listed on the Florida Site Files or the national Register of Historic Places." The evidence concerning the location of the Biscayne House of Refuge presented by Petitioners was speculative, at best. The evidence failed to prove that the Challenged Amendments will have any impact on the Biscayne House of Refuge or any significant archaeological resources. The evidence also failed to prove that FLUM Change 14 is inconsistent with the historic designations of Altos Del Mar or Harding Townsite. Natural Dunes. In its original state, the beaches of the City may have had extensive barrier reef dune systems along the Atlantic Ocean. To the extent that such systems existed, however, they have been radically altered by development and the impact of tides and winds on the dunes. The natural dune system of the City today has essentially been destroyed or so altered as to no longer be considered a significant dune system. The protection normally afforded by a dune system is now provided, not by a natural dune system, but by the man-made dunes east of the Erosion Control Line. Petitioners attempted to prove that there is an existing dune system in Area 14. The evidence failed to support Petitioners' contention. The evidence proved that, at best, there may be remnants of dunes along the eastern boundary of Area 14. One such feature is approximately four feet to four and a half feet in height, twenty feet wide, and a hundred to one hundred fifty feet in length. The evidence failed to prove, however, whether the piles of sand that do exist along Area 14 should be considered as dunes. The character of the coastline of the City, including Area 14, has been drastically altered by hurricanes, including the 1927 hurricane that destroyed the Biscayne House of Refuge. Erosion has eliminated much of the City's shoreline, in some cases eroding the beach to bulk heads. The construction of the dunes east of the Erosion Control Line also may have impacted any existing dune system in Area 14. The construction of the dunes involved a significant amount of grading. The evidence failed to prove what impact, if any, construction of the dunes had in forming the piles of sand that now exist along Area 14. The evidence also proved that, to the extent that any remnants of natural dunes may exist near Area 14, their function as a dune system has been substantially, if not completely, replaced by the man-made dune system along the Erosion Control Line. The Erosion Control Line was established as part of a beach renourishment project of the United States Army Corps of Engineers. The project lasted from 1975 through 1981 and cost approximately $60 million. The efforts of the United State Army Corps of Engineers included the expansion of the beach and the construction of a dune system that runs the entire length of the City's Atlantic Ocean shoreline. The constructed dunes have also been vegetated through a separate grant of approximately $4.5 million. The Erosion Control Line is owned by the State of Florida, managed by Metro-Dade County, and protected by the City. The evidence also failed to prove that, if a dune system did exist along Area 14, the Challenged Amendments allow any different impact on the dunes than was already allowed under the Plan. The Challenged Amendments do not authorize the development of Area 14 in a manner that was not allowed without the Adopted Amendments. Petitioners relied upon a United States Department of Agriculture, Soil Conservation Service, Soil Survey for Dade County prepared in 1957; a 1914 historical map of the City; and aerial photographs and contour maps prepared in 1975 by the United States Army Corps of Engineers to support their argument that significant dunes exist in Area 14. They attempted to bring these documents up-to-date largely through recent visual observations of the area. This evidence was not persuasive. The evidence proved that Area 14 is typical of the City's shoreline before extensive development. The evidence also proved that the remaining piles of sand may very well be a remnant of a dune system that existed at some time in the past. What the evidence failed to prove, however, is that the piles of sand are in fact part of a dune system that once existed in the area or that, if they are in fact part of a former dune system, the piles of sand should still be considered to be functioning as a dune system. Petitioners also have argued that the City mischaracterized the type of soils in Area 14 in the data and analysis as "fill." Petitioners argue that, had the City properly characterized the soils in Area 14, the City would have known that there was a natural dune. The evidence failed to support this argument. What the City actually indicated in the data and analysis is that "[t]he entire island is essentially 'madeland' except for the sand along the ocean beach." Petitioners' argument concerning this statement is not persuasive. First, the statement relied upon by Petitioners recognizes that there are areas that are not "made-land." What the data "along the ocean beach" means could be clearer or more precise, but the statement does not support a finding that the City simply dismissed the possibility that a dune may exist along Area 14. Additionally, Petitioners have simply taken a statement intended to apply to the entire City, and attempted to apply it to an 11-acre area. Petitioners have also argued that the City mischaracterized the nature of soils by stating in the data and analysis that "[t]he entire island consists of fill (shell and muck) together with sand." Petitioners argue that this statement is incorrect and that, if the City had properly taken into account the nature of the soils in Area 14, the City would have recognized that there were dunes. Again, Petitioners have taken the statement out of context. Petitioners have only considered the use of the term "fill," ignoring the fact that the statement also specifically states that the City is an "island" and that the fill exists "together with sand." Finally, the evidence failed to prove that provisions of the Plan and the City's Land Development Regulations dealing specifically with the protection of dunes are not adequate to protect any dunes that may exist in Area 14: Objective 1, Policy 1.4 of the Future Land Use Element provides for compatibility of uses of property adjacent to dunes and provides for the conservation of beach lands designated on the FLUM and the Conservation Element; Objective 1, Policy 1.2 of the Future Land Use Element designates dune locations on the Atlantic Coast as Conservation Protected "C" and permits only open space uses of these areas. It also provides for protection of such areas from the encroachment of development; Objective 1 of the Conservation/Coastal Zone Management Element provides that there will be "zero man-made structures which adversely impact beach or dune system(s)"; Objective 1, Policy 1.2 of the Conservation/Coastal Zone Management Element requires vegetation of, and elevated footpaths over, dunes to minimize pedestrian impacts; Objective 1, Policy 1.4, and Objective 10, Policy 10.1 of the Conservation/Coastal Zone Management Element discourage non-water oriented activities and development on beach-front parks, new beach areas, and dunes by designating the beach as a Conservation Protected Area on the FLUM; Objective 3, Policy 3.4 of the Recreation and Open Space Element provides that the City will inform Metro-Dade County and the United States Army Corps of Engineers when maintenance or renourishment of the beach is necessary; and The City's Land Development Regulations provide protection through the Dune Overlay Regulations. The evidence failed to prove that the alleged dune in Area 14 has "archeological significance." Impact on Wildlife and Vegetative Communities. The evidence presented by Petitioners concerning the use of Area 14 by birds and vegetative communities was anecdotal and unpersuasive. Practically the entire length of the City's boundary with the Atlantic Ocean is used for nesting by the Atlantic Loggerhead Turtle, Leatherback Turtles, and Green Turtles. All are threatened or endangered species. Nesting of turtles in the immediate vicinity of Area 14 has been moderate to low. Greater nesting activity takes place along the more urbanized South Beach area. Coastal development has contributed to the endangered status of sea turtles. A number of factors, some related to development, may influence whether a turtle will nest in an area, including the amount of artificial light and noise, how hard the sand is, and the presence of people. These factors may cause turtles to abandon attempts to nest after coming ashore. Artificial light may also disorient hatchlings, causing them to head away from the ocean. Despite the possible impact of artificial light on turtle nesting and hatchlings, turtles continue to successfully nest in developed areas, including the highly developed South Beach area. Data and analysis relied upon by the City in support of the Challenged Amendments identified the status, habitat, and reasons for concern for turtles. Turtles usually nest within 50 feet of the ocean's edge. Therefore, the evidence failed to prove that it is likely that turtles will enter the portion of Area 14 where single- family structures may be built. Petitioners failed to prove that turtles are likely to cross over the dunes constructed east of the Erosion Control Line to reach Area 14. The City is involved in efforts to protect nesting turtles. The area which turtles use to nest in is owned by the State of Florida. Metro-Dade County manages the area for the State of Florida. Metro-Dade County maintains a staffed facility at 79th Street and Collins Avenue for the maintenance and protection of turtle nests. The City has also designated the area where turtles generally nest as a Conservation Protection Area. Protections are also provided for wildlife and vegetative communities which may exist west of the Erosion Control Line. Land Development Regulation 15, Dune Overlay Regulations, provides protection for wildlife and vegetative communities west of the Erosion Control Line and east of the edge of the pool deck, if one exists, or the old Miami Beach Bulkhead Line by limiting permanent structures other than pedestrian crossovers of dunes. The evidence in this case failed to prove that the modification of the land use classification of Area 14 will have a negative impact on wildlife, including turtles, or vegetation. First, Petitioners failed to prove that single-family use of Area 14 will in fact result in an adverse impact or that potential adverse impacts cannot be mitigated. Additionally, Petitioners failed to prove that FLUM Change 14 allows any use of Area 14 which is not already allowed. Prior to the adoption of FLUM Change 14, Area 14 could be used for recreational or open space and/or for single-family development. The evidence also failed to prove that the Plan's Conservation Element, Recreation and Open Space Element, or Coastal Management Element, are not in compliance as a result of Challenged Amendments relating to Area 14. Finally, the evidence failed to prove that the Challenged Amendments cause the City's inventory of existing coastal uses, habitat, vegetative communities, and wildlife to be inadequate. Neither the Act nor the Department's rules require a separate inventory map for each parcel of property impacted by a plan amendment. Required Use of Funds from the Sale of Lots in Area 14. Included in the data and analysis in support of the FLUM Change 14 is the following statement: "It is envisioned that proceeds from the sale of lots will be allocated to a fund for the enhancement of North Shore Open Space Park." In the Second Amended Petition, Petitioners challenged this statement as lacking commitment. Petitioners ignore the amendment to Policy 7.2 of the Conservation/Coastal Zone Management Element which provides that "the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline." This amendment imposes a mandatory requirement for the use of any funds that may be realized, and it has not been challenged by Petitioners. Whether there will in fact be any proceeds from the sale of the lots in Area 14 that are publicly owned is not relevant to the question of whether FLUM Change 14 is in compliance. There is no requirement in the Act or the rules of the Department that mandates that the proceeds from the sale of the lots be used for recreation purposes. Municipally-Owned Shoreline. Policy 7.2 of the Conservation/Coastal Zone Management Element of the Plan provides that the City will "not decrease the amount of municipally-owned shoreline available for public use" except under certain specified circumstances. Petitioners have asserted that FLUM Change 14 is inconsistent with this provision because the Area 14 property owned by the State is "essentially 'municipally owned' land." Petitioners argument is rejected. First, Petitioners failed to raise this argument in the Second Amended Petition. Secondly, even if the argument had been properly raised, the evidence failed to prove that any of Area 14 is "municipally- owned." In fact, none of the property in Area 14 is owned by the City. Finally, Policy 7.2 of the Conservation/Coastal Zone Management Element was amended to add the following exception to the prohibition against the City decreasing the amount of municipally-owned shoreline: 2) where municipal or other public acquisition is incomplete and there is not possibility for complete public acquisition of a usable portion of shoreline, or 3) in order to upgrade other public shoreline sites and facilities. Petitioners have not challenged the newly adopted exceptions to Policy 7.2's prohibition against decreasing municipally-owned shoreline. Petitioners have also failed to prove that the exceptions do not apply in this case. More precisely, Petitioners have failed to prove that, should the City acquire ownership of any of the State-owned Area 14 shoreline, that the exceptions will not apply. 7.2: The City also added the following language to Policy The development of the Altos del Mar area for single family residential use rather than for Recreation and Open Space as designated on the previous Future Land Use Map is specifically identified hereby as conforming to this policy (Policy 7.2) subject to the following conditions: the sites now owned by state agencies are sold for private single family residential development in a coordinated manner based on an overall neighborhood plan and a private development agreement that enhances the quality of life for those existing privately owned residences which are interspersed throughout the publicly owned sites; and 2) the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline. Petitioners did not challenge the provision quoted in Finding of Fact 126. Nor did Petitioners prove that the provision will not apply. Areas 16a and 16b, and the Changes Thereto. Area 16a consists of approximately 11 acres. Area 16b consists of approximately 2 acres. Areas 16a and 16b are bounded on the south by 79th Street, on the north by 87th Street, and on the east by Collins Avenue. Area 16b is located between 81st and 82nd Streets. To the east of Collins Avenue and Areas 16a and 16b is the North Shore Open Space Park. Area 16a consists of blocks 12 through 17 and 19 through 20. Area 16b consists of block 18. Areas 16a and 16b are part of Altos Del Mar. Blocks 12 and 18 are owned by the City. The remaining blocks are owned by the State. Located to the west of Areas 16a and 16b is Area 16c. Although FLUM Change 16c has not been challenged, the FLUM changes to Areas 16a, 16b, and 16c are related. The designated land use of Area 16a on the FLUM prior to the adoption of the Challenged Amendments was "Parking." This designation is identified on the FLUM as "P." The designated land use of Area 16b prior to the adoption of the Challenged Amendments was "Public Facility." This designation is referred to on the FLUM as "PF." The designated land use of Area 16c prior to the adoption of the Challenged Amendments was "Medium Density Multi Family Residential." This designation is identified on the FLUM as "RM-2." FLUM Changes 16a and 16b changes the current designations of Areas 16a and 16b to "Low Density Multi Family Residential." This designation is referred to on the FLUM as "RM-1." FLUM Change 16c changes the current designation of Area 16c to "Low Density Multi Family Residential." The modification of Area 16 to Low Density Multi Family Residential classified land is part of the City's overall plan to "Down Plan" the City. The Adopted Amendments include several FLUM changes which, when considered together, result in a net reduction in the allowable residential densities in the City. These modifications were intended to reduce the intensity of development allowed under the Plan in the City, help the City to meet its level of service standards for public facilities and services, and maintain the character of the City. FLUM Changes 16a, 16b, and 16c are part of that overall effort. Current Use of Areas 16a and 16b. Areas 16a and 16b are currently used as public parking lots. The parking lots are sparsely used, however. A fee of twenty-five cents per fifteen minutes is charged for parking in the lots. The State has declared the lots that it owns as excess lands. The lots are to be sold. The parking lots are used for access to the North Shore Open Space Park, a/k/a, the North Shore State Recreational Area (hereinafter referred to as the "Park"). The Park consists of approximately thirty-seven acres. The Park is surrounded by a fence. Access to the Park is through an entrance gate. Availability of Parking in the City and Public Beach Access. The data and analysis utilized by the City in support of the Adopted Amendments indicates that there are "numerous access points to the ocean." The City recognizes, however, that the "principal constraint [on access] is not the number of access points but the parking to serve them as well as nearby commercial and residential uses." The impact of FLUM Changes 16a and 16b will eliminate the parking lots and the parking spaces now available at those lots. This will result in a loss of approximately 270 paved and metered parking spaces, and other potential spaces that are not now used for parking on some of the lots. There will also be an increase in residential use of Area 16, which will require parking. Data and analysis in support of FLUM Changes 16a and 16b provides the following committment: These two changes contain a total of eight blocks devoted to surface parking, two owned by the City of Miami Beach and six owned by the State of Florida. The parking is sparsely used even though it is available for the general public, including visitors to North Shore Open Space Park. The Department of Environmental Protection, Division of State land has determined that the state-owned blocks should be sold to Miami Beach which will make them available for a combination of public parking and private residential development. These uses may be accommodated by placing parking at grade on some or all of the blocks and constructing residential units in air rights above or they may be accommodated by placing public parking structures on one or more of the blocks of the blocks and developing the others for residential use. To the extent necessary, the public parking will be sized to accommodate beach access via North Shore Open Space Park and/or other functions which might be appropriate. . . . Policy 3.1 of the Conservation/Coastal Zone Management Element of the Plan provides following: Those public access areas including street ends, municipal parking facilities and municipal parks along coastal waters will be maintained (See Figures VII-2 and VII-5 in the Recreation and Open Space Element) or redesigned to provide greater public access to Biscayne Bay and the Atlantic Ocean beach area regardless of the land use designation of those areas. An example of the type of redesign envisioned is that planned for the parking lost on blocks located to the west of the North Shore Open Space Park. It is envisioned that there blocks will be redeveloped with public access beach parking at grade level and residential in air rights above and/or with parking decks on one or more blocks and with residential on the other blocks. While the specific manner in which the parking spaces now available in Areas 16a and 16b will be replaced are not established, Policy 3.1 specifically requires that all municipal parking "be maintained." The Policy then provides an example of when existing parking will "be maintained" and that example is the modification of Areas 16a and 16b. This policy is sufficient to prevent the elimination of parking that Petitioners argue will occur as a result of FLUM Changes 16a and 16b. The evidence failed to prove that access to beaches or the Park will be reduced as a result of FLUM Changes 16a or 16b. The evidence also failed to prove that FLUM Changes 16a and 16b are dependent upon use of the proceeds from the sale of land in these areas to enhance the Park. See findings of fact 119 through 121.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding the Adopted Amendments in compliance and dismissing the Second Amended Petition. DONE AND ENTERED this 30th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1997. COPIES FURNISHED: Stephen T. Maher, Esquire Stephen T. Maher, P.A. 201 South Biscayne Boulevard Suite 1500 Miami, Florida 33131 Richard Grosso, Esquire Post Office Box 19630 Plantation, Florida 32318 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Max T. Holtzman, Assistant City Attorney City of Miami Beach Office of the City Attorney 1700 Convention Center Drive Fourth Floor Miami Beach, Florida 33139 Earl G. Gallop, Esquire Teresa J. Urda, Esquire Earl G. Gallop and Associates, P.A. Post Office Box 330090 Coconut Grove, Florida 33233-0090 The Honorable Seymour Gelber Mayor, City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, General Counsel Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether amendments to the Palm Beach County (County) Comprehensive Plan (Plan) adopted by Ordinance Nos. 2004-34 through 2004-39, 2004-63 and 2004-64 (Amendments) to accommodate the County's development of a biotechnology research park on 1,900 acres known as the Mecca site are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Overview of the County's Pre-Scripps Plan The County's first Plan was adopted in 1980. Its 1989 Plan, the first adopted under the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (also known as the 1985 Growth Management Act, or GMA) built upon the strengths of the first Plan. In 1995, the County evaluated and appraised its 1989 Plan, completed an Evaluation and Appraisal Report (EAR), and subsequently adopted a substantially-amended EAR-based Plan. In 1999, the Plan again was amended by the addition of a Managed Growth Tier System (MGTS) as a new growth management tool.2 The County's Plan recognizes that development in the County has generally moved from eastern coastal areas to the west and from the southern part of the County to the north. Generally, the Plan has attempted to direct growth towards the eastern part of the County and to encourage infill and redevelopment in that part of the County. Redevelopment is underway in older areas, usually under the auspices of local governments. At the same time, the Plan now recognizes that another growth corridor is located along SR 7 and US 441. Even with the efforts to encourage infill and redevelopment in the eastern part of the County, growth pressures have led to 18,000 acres of new land use approvals in the County north of Lake Worth Boulevard in the last 10 years. The Future Land Use Element (FLUE) of the County's Plan contains County Directions, GOPs (i.e., Goals, Objectives, and Policies), the MGTS Map, and the Future Land Use Atlas. The County Directions "provide the basis for preparation of the [GOPs]." The GOPs "provide the framework for decisions that direct the location, pattern, character, interrelationships and timing of development, which ultimately affects the distribution of facilities and services to support it." The MGTS Map "defines distinct geographical areas within the County that currently either support or are anticipated to accommodate various types of development patterns and service delivery provisions that, together, allow for a diverse range of lifestyle choices, and livable, sustainable communities." The Atlas "graphically depicts the future distribution, general use and densities and intensities of [land use] within each tier." (FLUE Introduction, pp. 1-2) The County also routinely employs geographic-specific planning tools. The Plan creates at least 15 overlays to meet planning challenges for specific areas. It also recognizes 10 neighborhood plans. Optional sector planning for a large part of the Central-Western Communities of the County also is underway. The FLUE's County Directions include: Livable Communities (with "a balance of land uses and [other features]"); Growth Management (to "provide for sustainable urban, suburban, exurban and rural communities and lifestyle choices by: (a) directing . . . development that respects the characteristics of a particular geographic area; (b) ensuring smart growth . . . ; and (c) providing for facilities and services in a cost efficient timely manner"); Infill Development (to increase efficiency); Land Use Compatibility; Neighborhood Integrity; Economic Diversity and Prosperity (to promote the growth of industries that are high-wage and diversify the economic base); Housing Opportunity ("by providing an adequate distribution of very-low and low-income housing, Countywide"); Economic Activity Centers (to encourage manufacturing and other value-added activities); Level of Service Standards ("to accommodate an optimal level . . . needed as a result of growth"); Linear Open Space and Park Systems; Environmental Integrity (to "[e]ncourage restoration and protection of viable, native ecosystems and endangered and threatened wildlife by limiting the impacts of growth on those systems; direct incompatible growth away from them; encourage environmentally sound land use planning and development and recognize the carrying capacity and/or limits of stress upon these fragile areas"); Design; A Strong Sense of Community; and Externalities (placing "major negative" ones "away from neighborhoods"). (Id. at pp. 5-6) FLUE Goal 1 is to establish the MGTS. Objective 1.1 recognizes five geographic regions (tiers) of land with "distinctive physical development patterns with different needs for services to ensure a diversity of lifestyle choices": Urban/Suburban (land within the Urban Service Area (USA), generally along the east coast but also along the southeast shore of Lake Okeechobee in the extreme west of the County, having urban or suburban density and intensity and afforded urban levels of service); Exurban (land outside the USA and generally between the Urban and Rural Tiers, platted prior to the 1989 Plan and developed at densities greater than 1 dwelling unit per 5 acres (du/ac); Rural (land outside the USA and east of the Water Conservation Areas, Twenty Mile Bend, and the J.W. Corbett Wildlife Management Area (Corbet WMA), including large tracts of land, as well as lands platted prior to the 1989 Plan, that had a predominant density of 1 du/10 ac, but less than 1 du/5 ac, and afforded rural levels of service); Agricultural Reserve (primarily for agricultural use, reflecting the unique farmlands and wetlands within it, to be either preserved or developed only at low residential density); and Glades (all land west of the Water Conservation Areas, Twenty Mile Bend, and Corbett WMA, predominantly supporting large-scale agricultural operations, and afforded rural levels of service.) The five tiers are depicted graphically in Map LU 1.1, MGTS, of the Map Series. Conservation lands are also depicted on Map LU 1.1 but are not assigned to a tier. The Map also depicts the United Technologies (Pratt-Whitney) (UT) Overlay and the North County General Aviation Airport (North County Airport), neither one which appears from Map LU 1.1 to lie within a tier. The UT Overlay is in the north-central part of the County, sandwiched between Rural Tier on the north, east, and southeast and Conservation land, including Corbett WMA on the west and southwest, and roughly bisected by the Beeline Highway (Beeline), which runs diagonally through the overlay between its northwest and southeast extremes. The Airport lies farther to the southeast along the Beeline, essentially surrounded by Rural Tier land, except for relatively small pieces of Conservation land contiguous to it along its western boundary and at its southeast corner (the North County Airport Preserve.) Notwithstanding the possible appearance from the depictions on Map LU 1.1, the County has no general planning jurisdiction in any of the incorporated areas of the County.3 Map LU 2.1 depicts the three service areas to guide delivery of public services that are established under FLUE Goal 3. These are the Urban Service Area (USA), the Rural Service Area (RSA), and the Limited Urban Service Areas (LUSA). The USA essentially follows the boundaries of the Urban/Suburban Tier. The LUSA is relatively limited geographically and includes the Agricultural Reserve Tier, the UT Overlay, and the North County Airport (with contiguous Conservation lands). The rest of the County is in the RSA. The verbiage of Goal 3, its Objectives and Policies and other parts of the Plan, gives the impression that provision of services is fine-tuned to the character and needs of a particular locale. For example, Goal 3 is "to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost- effective manner, reflective of the quality of life associated with each respective Tier." But actually the Plan assigns countywide level-of-service standards (LOSS's) to seven of nine types of facilities. All urban services can be provided in all areas of the County except that County centralized water and sewer services cannot be provided in the RSA. While theoretically intended to be geographically limited, the main difference between the USA and the LUSA is that the LUSA is outside the USA. The Agricultural Reserve part of the LUSA is actually a westerly extension of the USA. The North County Airport part of the LUSA is surrounded by Rural Tier land; the UT part of the LUSA is surrounded by Rural Tier and Conservation lands, the same as the UT Overlay. The County has re-examined its policy decision not to provide centralized water and sewer services in the RSA because it has resulted in various municipalities and utilities special districts and perhaps private alternative providers extending services while the County excludes itself. The County has adopted plan amendments to change this to allow the County to provide such services and to exclude others. Those plan amendments are under administrative challenge at this time and are not yet in effect. The County has three priorities for extending services. One is to encourage development of basic industry to further the Economic Element. The County Plan's Economic Element is optional. It reflects a concerted effort to diversify the economy of the County by encouraging growth in cluster industries, including medical products. Taken together, the Plan reflects a desire to accommodate growth in the Urban/Suburban Tier, especially in the eastern part of the County. Many GOPs in the Plan promote and encourage infill and redevelopment. However, pressure to grow in other parts of the County are undeniable. It appears that, under the Plan, the County will be completely built-out within 30 years. The County's current Plan is detailed and complicated. Many other parts of it, some of which will be addressed later in this Recommended Order, also are implicated in some manner and in different degrees by the Amendments at issue. Scripps Florida In the early 1990s, a County study indicated concern about the three main elements of the local economy: tourism was low-paying; agriculture was low-paying and a declining sector; and construction and development would decline as the County built out. In 1998, a consulting firm (SRI) proposed an action plan for the County to develop economic clusters. The action plan addressed several industry clusters, including medical/pharmaceuticals. SRI recommended, among other things, attracting a biomedical park development, a satellite campus of a medical school, venture capital providers, and a medical research institute. Meanwhile, in the same general time frame, the State’s economic development arm, Enterprise Florida, Inc., targeted the biomedical industry for development in Florida. The Scripps Research Institute in La Jolla, California (Scripps), is the largest not-for-profit biotechnology research organization of its kind in the world. In 2003, Scripps decided to expand its operations. Florida Governor Bush, along with several Florida legislators, personally and through Enterprise Florida and OTTED, actively pursued Scripps to locate in Florida. During the same timeframe, the Federal Government made funds available to Florida under the Jobs and Growth Tax Relief Reconciliation Act of 2003, for the essential governmental service of improving economic opportunities available to the people of this state by attracting new or expanding businesses to, and retaining businesses in, the State. It was decided to use $310,000,000 of these funds in the pursuit of Scripps and hoped-for related economic and other benefits. By October 2003, Scripps agreed to negotiate expansion to Florida and chose Palm Beach County as its preferred location in the State. Also in October 2003, the Florida Legislature met in special session and, on November 3, 2003, enacted Chapter 2003-420, Laws of Florida, which created the Scripps Florida Funding Corporation to facilitate establishment and operation of a biomedical research institution for the purposes of enhancing education and research and promoting economic development and diversity. The Funding Corporation was required by the law to negotiate a contract with the Scripps Research Institute of La Jolla, California, for Scripps to establish a state-of-the-art biomedical research institution and campus in Florida. After disbursement of $300,000 to OTTED to cover staffing and administration expenses of the Funding Corporation, and upon execution of the contract with Scripps, the balance of the $310,000,000 was to be disbursed to the Funding Corporation subject to the terms of the contract. The Scripps Grant Agreement Scripps Florida and the County entered into a Grant Agreement on February 9, 2004, with a term of 30 years. In the Grant Agreement, the County agreed to pay for or provide: a 100-acre campus for Scripps Florida in the 1,919-acre site at Mecca Farms (Mecca), with a funding limitation of $60,000,000; the construction of initial temporary facilities for Scripps Florida at the Florida Atlantic University (FAU) campus in Jupiter, with a funding limitation of $12,000,000; the construction of permanent facilities for Scripps Florida at the Mecca site, with a funding limitation of $137,000,000; 400 adjacent acres for development of “related uses”; and applications for approvals for Scripps Florida to develop 2 million square feet at Mecca. The Grant Agreement’s definition of “related uses” was intended to be broad so that the County can open the 400 acres to computer research, telecommunications and other economic clusters if not enough pharmaceutical or life-science research firms are attracted. The Grant Agreement requires Scripps Florida to create or relocate at least 545 new jobs to the Mecca site; to strive to create 2,777 new or relocated jobs; and to work with the County to create a total 6,500 jobs. In the Grant Agreement, the County expressly reserves all legislative and quasi-judicial powers, acting only in its proprietary capacity. The County's Purchase of Mecca Site In accordance with the Grant Agreement, the County proceeded with the purchase of the Mecca site. In October 2003, the Business Development Board (BDB), a non- profit organization that is funded primarily by and reports to the County, already had obtained an option to purchase the site for $60,000,000, if certain government approvals could be obtained. In February 2004, the County acquired the option on the Mecca property from the BDB and exercised it. Including the cost of some "oral add-ons," the purchase price for Mecca was approximately $60,500,000. Characteristics of the Mecca and Surroundings The Mecca site is in the shape of a rectangle located in the north-central part of the County. It is designated in the Rural Tier. For approximately 50 years, most of the site has been used as a citrus grove with trees grown in rows 15 feet apart, 73-acres of agricultural ditches, and a 272-acre above-ground water impoundment area in the northeast quadrant of the site used for irrigation. There also is a 30-acre sand mine operation in the southwestern quadrant. At this time, the Mecca site is accessible by road only by Seminole Pratt-Whitney Road (SPW), a two-lane paved road from the south. When SPW reaches the southwest corner of Mecca, it becomes a dirt road as it continues along the west side of the property. While Mecca itself is in the Rural Tier, it is not surrounded by Rural Tier land. The land to the west is designated Conservation, and the land to the north and south is designated Exurban Tier. The land to the east is designated Rural Tier, but it actually is within the jurisdictional boundaries of the City of Palm Beach Gardens. The area around Mecca is a “mosaic” of uses, including undeveloped agricultural lands, conservation lands, and lands developed predominantly as undesirable residential sprawl with limited employment and shopping. The nearby Beeline, part of the Florida Intrastate Highway System (FIHS), is classified by the State as “urban” to the east and “transitional” to the west of SPW. Significant among the developed areas near Mecca is The Acreage, abutting Mecca to the south. The County designated The Acreage as part of the Exurban Tier. It is a large, 76 percent built-out, antiquated subdivision with a density of 1 du/1.25 ac and a population of approximately 42,000. As such, it can be characterized as either urban or suburban, but not rural. To the south and west of The Acreage are large citrus groves in the Rural Tier. Farther south and west of The Acreage is Loxahatchee Groves, another antiquated subdivision in the Exurban Tier, with a density of 1 du/5 ac that is just 18 percent built-ut with 1,216 homes built. Farther south, just south of Southern Boulevard, is the Village of Wellington, which is a municipality located within the boundaries of the Urban/Suburban Tier. South and east of The Acreage is the Village of Royal Palm Beach, also a municipality within the Urban/Suburban Tier. The 60,288-acre Corbett WMA is located immediately west of Mecca and is owned and managed by the State as a hunting preserve. It has no tier designation. Corbett has a variety of habitats for endangered or threatened species (wood storks, eagles, red-cockaded woodpeckers, gopher tortoises and indigo snakes), including wet prairie, freshwater marsh and pine flatwoods. Corbett could provide habitat for Florida panthers although there have been no confirmed panther sightings in the area in a number of years. Immediately north of Mecca is another antiquated subdivision, Unit 11 of the Indian Trail Improvement District (Unit 11). The County is buying Unit 11 for preservation as Hungryland Slough, a regional off-site mitigation area. Unit 11 is designated in the Exurban Tier. Hungryland contains habitat similar to that found in Corbett WMA. North of Hungryland, and south of the Beeline, is a small triangle of Rural Tier land, which is just south and south east of the UT Overlay, which includes the Park of Commerce (a/k/a Florida Research Park). The Rural Tier land to the northeast of Hungryland, across the Beeline, is Caloosa, a large-lot residential development with a density of 1 du/5 ac. To the northeast of Caloosa is Jupiter Farms, another large, 81 percent built-out antiquated residential subdivision with a density of 1 du/2 ac and a population of about 12,600. Jupiter Farms is designated in the Rural Tier although it also seems to fit the criteria for the Exurban Tier. The Vavrus Ranch, a 4,600-acre landholding, is located immediately east of Mecca. Approximately half of Vavrus Ranch is wetlands, and the remainder is improved pasture. The Vavrus Ranch appears to be designated in the Rural Tier, but it actually is in the City of Palm Beach Gardens. Existing urban-scale public facilities between Mecca and Southern Boulevard to serve the suburbs include five fire stations, two post offices, eight elementary schools, two middle schools and two branch libraries, with one high school and one middle school planned or under construction. Existing public facilities north of Mecca in Caloosa include one fire station and one elementary school. East of Mecca and the Vavrus Ranch is the North County General Aviation Airport. To address land use deficiencies in this area, the County has agreed with DCA to prepare a plan for a 52,000-acre sector, which originally included Mecca. Current development has committed approximately two- thirds of lands in the sector to an inefficient pattern that is not “sustainable.” This pattern increases reliance on the automobile; may not be served long-term by private wells and septic tanks; and does not pay for itself, requiring substantial taxpayer subsidies. The sector has a serious jobs/housing imbalance, resulting in more congestion and longer commutes for residents. The County’s sector planning consultants identified Mecca as an appropriate site for an intensive employment center in two out of three initial scenarios. Subsequent studies identified Mecca for other uses, and the site was deleted from the sector planning area in 2004 when the Scripps Florida opportunity arose at Mecca. Development of Regional Impact (DRI) and Plan Amendments Since the Scripps opportunity arose, the County's primary vision for Mecca has been to transform its 1,919 acres into a very special place that would be able not only to satisfy the needs of Scripps, but also would have all of the essential elements and many extra amenities so as to enable the County to compete with other areas of the country (and, indeed, the world) to attract related research and development (R&D) and, especially commercial activity in order to reap the maximum possible economic benefits of a biotechnology cluster. This vision included not only onsite opportunities for development of related biotechnology R&D and related commercial ventures, but also a university campus, a hospital/clinic, expansive green spaces and water features, onsite residential opportunities, including affordable housing, and onsite commercial and retail uses, including a town center. The County prepared plans by first reviewing and considering other R&D complexes, companies potentially interested in new locations, views of university officials, the Scripps experience at La Jolla, employees per square foot per industry type, and its own allowable floor area ratios (FARs) in order to identify the developable square footage for R&D at Mecca. As applicant for the necessary DRI approval and Plan amendments, the County’s staff and consultants initially requested approval of 10.5 million square feet for R&D use after balancing space needs, traffic impacts, environmental needs, buffering and other factors. The County’s real estate consultant concluded that a minimum of 2 to 3 million square feet of R&D space would be necessary for the venture to be successful, and that the absorption of 8 to 8.5 million square feet over a long-term build-out period of 30 years was a reasonable expectation. That view was bolstered by the potential establishment of other R&D users, if biotechnology firms do not absorb the entire capacity of the project. Ultimately, the Board of County Commissioners (BCC) approved a development of regional impact (DRI) for 8 to 8.5 million square feet of R&D, including the 2 million square feet for Scripps Florida, in order to provide economic opportunities while avoiding the need for eight-lane roads in the area. In order to accommodate this project, amendments to the County's Plan were necessary. Changes to the Plan adopted October 13, 2004, included Ordinance Nos. 2004-34 through 2004-39. Changes to the Plan adopted December 14, 2004, included Ordinance Nos. 2004-63 and 2004-64. Ordinance No. 2004-34 removes the 1,919-acre Mecca site from the Rural Tier; creates a scientific community overlay (SCO) on Mecca; establishes its allowed uses; imposes controls to balance residential and non-residential uses by phase; sets design principles; designates Mecca as a LUSA; and makes related changes to the FLUE and Economic Element and the FLUE Map Series. Ordinance No. 2004-35 modifies FLUE Policy 3.5-d to exempt the SCO from a County-imposed limitation on allowed land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. Ordinance No. 2004-36 amends the FLUE Atlas to change the land use on Mecca from Rural Residential with a density of 1 du/10 ac (RR-10) to Economic Development Center with an underlying density of 2 du/ac (EDC/2). This amendment also sets minimum and maximum amounts of each use and incorporates by reference the land use conversion matrix in the DRI development order (DO). Ordinance No. 2004-37 amends the FLUE Atlas to change the land use on a 28-acre Accessory Site obtained from Corbett WMA from Conservation to Transportation and Utilities Facilities. Ordinance No. 2004-38 amends the Transportation Element (TE) to lower the adopted LOSS on 37 road segments and 6 intersections from the generally applicable standard of “D” to “Constrained Roadway at Lower Level of Service” (CRALLS). Ordinance No. 2004-39 amends the Thoroughfare Right- of-Way (ROW) Identification Map (TIM) and the 2020 Roadway System Map to reflect certain road improvements to accommodate SCO-generated traffic. Ordinance No. 2004-63 updates Tables 1 through 16 of the 2005-2010 Capital Improvement Schedule (CIS), and includes road, water, and sewer facilities to serve the SCO. Ordinance No. 2004-64 updates Table 17 of the CIS, which addresses schools. g. The Petitioners, Their Burden, and Their Issues DCA’s notices of intent to find the Amendments in compliance were challenged by four not-for-profit organizations and one resident of Palm Beach County. All of the Petitioners timely commented, orally or in writing, to the County regarding the Amendments. Additional standing evidence was presented as to each Petitioner. Standing as an "affected person" under Section 163.3184(1)(a) was disputed as to all but one Petitioner. As to Petitioner, Maria Wise-Miller, it was undisputed that she is an "affected person" under Section 163.3184(1)(a). It was Petitioners' burden to prove beyond fair debate that the Plan Amendments were not "in compliance." See Conclusions 210-211, infra. Essentially, Petitioners are concerned that development of the SCO on Mecca's 1,919 acres is poor planning because of its present agricultural use, its location in relation to nearby natural areas and rural areas, and its distance from more urban areas and transportation facilities. More specifically, the issues raised by Petitioners as reasons why the Plan Amendments are not "in compliance" are framed in their Amended Petition.4 Implicating numerous applicable statutory and rule provisions, Petitioners' issues involve: urban sprawl; capital improvements (infrastructure); transportation concurrency; data and analysis; internal consistency; natural resources; community character and compatibility with adjacent uses; the Treasure Coast Regional Planning Council (TCRPC's) Strategic Regional Policy Plan (SRPP); and State Comprehensive Plan (SCP). No other issues have been added by further amendment, and no additional issues were heard by consent of the parties. See Conclusion 212, infra. H. Urban Sprawl Whether the Plan Amendments are consistent with relevant provisions of the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources, is determined by application of Rule 9J-5.006(5).5 Exceedingly detailed and complex, Rule 9J-5.006(5) provides in pertinent part: (d) Paragraph (5)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. * * * Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on: Extent. Location. Distribution. Density. Intensity. Compatibility. Suitability. Functional relationship. Land use combinations. Demonstrated need over the planning period. Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl: Open space requirements. Development clustering requirements. Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development. Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes. Land use locational criteria related to the existing development pattern, natural resources and facilities and services. Infrastructure extension controls, and infrastructure maximization requirements and incentives. Allocation of the costs of future development based on the benefits received. The extent to which new development pays for itself. Transfer of development rights. Purchase of development rights. Planned unit development requirements. Traditional neighborhood developments. Land use functional relationship linkages and mixed land uses. Jobs-to-housing balance requirements. Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area. Provision for new towns, rural villages or rural activity centers. Effective functional buffering requirements. Restriction on expansion of urban areas. Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands. Urban service areas. Urban growth boundaries. Access management controls. Evaluation of factors. Each of the land use types and land use combinations analyzed in paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in Rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140), F.A.C., and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans. Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions, mixed-use development and sector planning that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Of the 13 urban sprawl indicators in Rule 9J- 5.006(5)(g), Petitioners alleged the existence of only 2, 4, 6, 7, 8, 9, and 10. While there was evidence from which Petitioners reasonably could argue that the Plan Amendments promote urban sprawl, all of the Rule's indicators are at least fairly debatable. Indicator 2 As to Indicator 2, Petitioners' arguments on urban sprawl hinge in large part on characterization of Mecca as being rural land in the midst of likewise rural and conservation land far distant from any land use that could be characterized as urban or suburban. But while Mecca is distant from most of the Urban/Suburban Tier, neither the Village of Wellington nor Royal Palm Beach, both in the Urban/Suburban Tier, is very far away. The Acreage to Mecca's south, moreover, can be characterized as either urbanizing or suburban, but not rural. To the extent that Mecca is separated from other urban or suburban uses to the east by conservation lands (namely, the Loxahatchee Slough and Grassy Waters Preserve, a/k/a the West Palm Beach Water Catchment Area), no urban, suburban or even rural development of those conservation lands should be expected, making it fairly debatable whether "leaping over" those undeveloped lands should be considered an indicator of sprawl. In that sense, those conservation lands are similar to bodies of water. The “patchwork” pattern of developed, rural, and conservation uses near Mecca, including the adjacency of extensive residential development in The Acreage, also is significant. Nearby subdivisions including Jupiter Farms and Caloosa add further context for the sprawl analysis. The multi-use development at the SCO allowed by the Amendments may remediate the existing sprawl pattern near Mecca. Indicator 4 As to Indicator 4, it is at least fairly debatable whether conversion of rural land to urban uses on Mecca is premature in light of the Scripps opportunity and existing development pressures in the area. According to expert planning testimony for DCA and the County, the County is obliged to plan for growth in accordance with GMA and Rule 9J-5 up to its "sustainable carrying capacity," which has not been reached. Whether or not they believe the County has the option to plan to slow or stop growth before reaching "sustainable carrying capacity," it is clear from the evidence that the County is not doing so, but instead is planning for continued growth within the framework of its Plan until reaching what it considers to be "build-out" conditions. Given the County's basic growth policy, the County’s analysis of population projections for the next 20 years, compared to available vacant lands planned for residential use, shows the County has a “tight” plan with a restricted supply of land for development. This land use needs analysis shows that the eastern half of Palm Beach County (which includes Mecca) is experiencing intensive growth pressures due to the restricted supply of developable land, and that it will likely build out in approximately 20 years. Conservative assumptions in the County’s analysis suggest build-out in this area could occur even sooner. In its 1997 EAR, the County also concluded that eastern Palm Beach County would build out in approximately 20 years. The report noted that the approaching build-out of Dade and Broward counties to the south in the near future would further exacerbate growth pressures in Palm Beach County. Industrial lands in eastern Palm Beach County are expected to be exhausted by 2026. Because communities typically need greater locational variety for industrial uses compared to other uses, and in light of the many different activities that constitute an industrial use, the amount of land in eastern Palm Beach County designated for industrial use may be adequate but is not excessive. Besides, a numeric analysis is not necessary to justify industrial uses since they may be goal-based and aspirational. Seeking to diversify the local economy is an appropriate goal to support additional industrial land. Having a committed end-user for an industrial site is appropriate data to consider in evaluating such a land use change. Onsite residential and commercial uses will support the industrial use and better achieve a balance of uses, which will relieve the necessity to be evaluated against a numeric need test. Likelihood of Economic Benefits Petitioners argue that the proposed development at Mecca is not needed because significant economic benefits are so unlikely that the costly planned use of Mecca's 1,919 acres cannot be justified. Ordinarily, the likelihood of success of planned land uses would not be relevant to the compliance of a comprehensive plan or plan amendment. In this case, however, the County's vision for a Scripps-anchored biotechnology cluster at Mecca was the impetus for the major and important changes embodied in the Plan Amendments and is part of the demonstration of need. For that reason, consideration of the issue is appropriate in this case. The evidence is clear that the County's vision is not guaranteed success as planned and that there are significant risks involved. To maximize economic benefits, the County will have to not only attract R&D but also generate commercial spin-offs, where maximum economic benefits result. R&D requires research funding, and commercial spin-offs require venture capital. It also is essential to establish relationships with hospitals or clinics where clinical trials can take place. The predominant source of biotech research funding has been the National Institutes of Health (NIH). In the mid- 1990s, NIH funding increased dramatically, but significant increases in the coming years cannot be counted on, and other sources of research funding will have to replace the deficit. To the extent that pharmaceutical companies are resorted to for this purpose, they may require participation in any resulting commercialization, which could reduce local economic benefits if the funding source is not local. The evidence was that, over the last 30 years or so, significant economic benefits from biotechnology clusters achieving effective commercialization have been concentrated in just nine areas of the country. One is San Diego, California; none are in Florida. These nine areas also have garnered a disproportionate share of NIH research funding (although the percentage has declined a little in the last few years.) They also tend to have scientists inclined towards commercialization of the results of research and businessmen having the special abilities needed in the unique world of biotech, where years can pass before a business begins to see profits, and many start-ups fail. These nine areas also have access to venture capital, a good percentage of which has tended to be local, since many venture capitalists also want to be more active in monitoring and participating in the businesses they fund than most other investors. On the other hand, there was evidence acknowledging that at least some venture capital will seek out and follow good opportunities for profit wherever they may exist. Historically, at least through 2001, the biotech industry has become increasingly concentrated in these nine areas of the country, and they continue to have competitive advantages that the County's vision for the SCO would have to overcome. (On the other hand, several of these nine areas also have competitive disadvantage in the form of high taxes, high real estate costs, high cost-of-living, and less-than- ideal quality of life. So far, however, their advantages have surpassed their disadvantages.) There also is competition from many other cities and counties throughout the country desiring, like Florida and the County, to develop a biotechnology cluster. Recognizing the intense competition, the County's vision is to create a world-class setting for its effort at Mecca. Allowable facilities at the SCO include not just R&D space, but also a clinical hospital of up to 300 beds, a university campus of up to 2,000 college and university students, public facilities supporting environmental amenities, community facilities and retail facilities in a “town center,” and 2,000 or more housing units, including affordable housing. The SCO contemplates a mixture of uses that is hoped will lead to synergistic relationships and exchange of “tacit knowledge,” which are important to the success of a biotechnology cluster. Scripps Florida, as the anchor institution, will bring critical world renown and credibility. The principles of adjacency within the SCO are intended to promote synergy that transcends local competition and attracts regional and national users. In planning the SCO, Scripps’ experience in La Jolla and the views of Scripps officials were taken into account. Scripps’ campus at Torrey Pines Mesa has been in existence for almost 30 years, and has worked well. Scripps attempts to keep its buildings close to one another and has met with difficulty finding scientists willing to fill workspace four miles from the main Scripps campus. The FAR for the 500 acres of R&D use at the SCO is very low, at 0.39.6 By comparison, there was evidence that the FAR of the 900-acre University of Florida campus in Gainesville, Florida, is 2.00. Petitioners contend that much less than 500 acres is needed for the 8.5 million square feet of R&D provided in the SCO. However, the County found that Scripps’ buildings in California are constructed in horizontal fashion, with three, four and rarely five stories. Taller buildings have lower net-to-gross floor area, so they have significant added cost. Scripps considers close-by affordable housing desirable, especially for graduate and post-doctoral students. For other occupants of the SCO, low-rise construction makes it easier for companies to add space as they grow. High-rise construction is more expensive, harder to finance because of pre-leasing requirements, and less efficient. Based on the evidence, the FAR is fairly debatable. Venture capital from within and outside Florida is growing, as is capital interest in the Scripps initiative in Florida. Four clinical hospitals have expressed interest in participating in the SCO. In the year after announcement of Scripps Florida, the number of new life-science projects announced in Florida quadrupled in comparison to recent years. Workforce training and educational improvement are contemplated as support for and results of the SCO. The State has implemented and funded workforce programs in the life sciences, including in the County. The County has participated in the development of a consortium of Florida institutions of higher learning aimed at creating a specialized campus in the SCO. Scripps Florida is obligated to establish accredited science degree programs and internship programs for educators and secondary, post- secondary, graduate and post-doctoral students. Petitioners’ economic witness testified that the County lacks key competitive ingredients for developing a successful biotechnology cluster. Other witnesses, however, explained the level of efforts that the State, the County, and Scripps Florida are making to bring those ingredients to fruition. In addition, while Petitioners’ economic witness recited past experience of the biotechnology industry and forecast limited success for Scripps Florida primarily based on year seven, the last year of presently-committed State funding, he acknowledged that biotechnology research parks tend to experience a slow ramp-up, and the County anticipates a 30-year build-out. Of course, other sources of needed funding would have to be found after year seven. The evidence was that the chances for successful development of a biotechnology cluster at Mecca will decrease if no universities or hospitals are established onsite at Mecca and will decrease the longer it takes to establish them. If the planned biotechnology cluster does not succeed as well as planned, the SCO incorporates flexibility for absorption of R&D floor space by other types of research and development occupants. Often, when a large development project does not succeed as planned, pressures develop for investors to change the project's characteristics in an attempt to cut losses and increase profitability by selling land more quickly. In the case of the SCO, the investors are the taxpayers of Palm Beach County. It cannot be predicted what kind of pressures the County would feel, or what changes to the planned build-out would occur, if the SCO does not succeed as planned. Based on all the evidence, it is fairly debatable whether the likelihood of economic benefit is enough to justify the planned use of Mecca's 1,919 acres. Other Alternatives Petitioners also contend that the proposed development at Mecca is not needed because better alternatives exist. Specifically, they contend that the Scripps project could be sited: on the Briger site adjacent to the Florida Turnpike on its west and straddling I-95 in the City of Palm Beach Gardens; on Parcel 19 just west of I-95 and the Florida Turnpike, straddling Indiantown Road in the Town of Jupiter; or in the Park of Commerce (a/k/a Florida Research Park) in the unincorporated County near Mecca in the northeast quadrant of the intersection of the Beeline and SPW. Although the County had a contract with Scripps Florida to be located at Mecca, during the review process the BCC requested a study of possible alternative sites. The number of sites reduced rather quickly to three: Briger; Parcel 19; and the Park of Commerce. Data and analysis at the time of adoption of the Plan Amendments indicated that each of these alternative sites had flaws and risk factors, making it fairly debatable whether Scripps should be sited at any one of them instead of at Mecca. All three proposed alternatives have less acreage than Mecca and do not provide the same opportunities for affordable housing, open space, or flexibility of design, so as to be able to be developed in accordance with the vision the County has for development on its own 1,919 acres at Mecca. The Park of Commerce has limited opportunity for affordable housing, is limited in permitted uses, and is limited in flexibility by existing and platted infrastructure and industrial uses. It is now being used for industrial purposes--a railroad, a General Motors distribution facility, and a Walgreen's distribution facility--not considered to be consistent with the County's vision for a biotechnology research park. In addition, it may become necessary in the future to construct an overpass at the Beeline and SPW directly over the only suitable location for construction of the Scripps facilities at that site. Parcel 19 cannot accommodate affordable housing and would require $75 million in construction of major interchanges at I-95 and Indiantown Road, after which Indiantown Road still would be seriously over capacity, creating great traffic problems. In addition, it would be difficult to achieve the County’s targeted development program of 8 to 8.5 million square feet of R&D uses. The 682-acre Briger site favored by the Petitioners is bisected by I-95 into two triangular pieces. It would not meet the acreage requirements of the County’s contract with Scripps Florida unless the City of Palm Beach Gardens waives certain upland preservation requirements. In addition, at this time Briger remains on the County’s list of properties for acquisition for preservation (although its placement on the list may be out-of-date since Briger's hydrologic connection to the Loxahatchee River Slough has been more disrupted by development since its listing). Even if the Scripps contract requirements could be met, it would require higher vertical construction, which would be less compatible with surrounding residential uses, would provide less open space, and would have reduced flexibility. The County's complete vision for onsite incorporation of uses and amenities would not fit on Briger. For example, the university tie-in, the hospital, and residential features would have to be offsite. Briger might have a short-term marketing advantage over Mecca (in part because hospitals and FAU's Jupiter campus already exist in close enough proximity). Briger also would be closer to major transportation facilities, but that advantage would not necessarily offset Briger's deficiencies. It is fairly debatable whether long-term success would be more likely at Mecca or at Briger. All four sites–-Mecca, Briger, Parcel 19, and the Park of Commerce-–are located in the eastern half of Palm Beach County, where growth pressures are strong, the County’s Plan is "tight," and build-out is anticipated within the next 30 years, even without the SCO, based on County data compilations for land use need purposes. Natural Resources Protection and Conservation While they may not protect and conserve natural resources in an absolute sense (as is rarely if ever possible when development takes place near natural areas), it is at least fairly debatable whether measures in the Plan and Plan Amendments to protect and conserve natural resources are adequate. See Findings 146-182, infra. Indicator 6 As to Indicator 6, significant new infrastructure will have to be extended to Mecca under the Plan Amendments. Development closer to existing roads and, to a lesser extent, the existing USA and LUSA might make more use of existing facilities and services possible. But the evidence was that most of the $15 million of centralized water and sewer lines that will serve the SCO at Mecca already are planned for extension of service to the UT Overlay. Many of the road improvements planned for the SCO at Mecca also are already planned. See Findings 116-117 and 152-155, infra. In addition, it is at least fairly debatable whether and to what extent greater use could be made of existing public facilities and services by locating the Scripps elsewhere in the County, or whether location elsewhere in the County would be better or even possible, especially given the County's complete vision for development of the SCO at Mecca. See Findings 85-92, supra. Given the decision to develop at Mecca, there was no evidence that existing public facilities and services will not be used to the maximum extent possible. Indicator 7 As to Indicator 7, there is no reason to believe that the development at Mecca resulting from the Plan Amendments will not maximize the use of future public facilities and services. (The County has not planned to provide centralized water and sewer service to the Vavrus property because it does not have the legal right or ability to provide services within the boundaries of the City of Palm Beach Gardens.) Indicator 8 As to Indicator 8, a disproportionate increase in the cost in time, money, and energy may result from providing and maintaining facilities and services to the SCO. However, while this indicator may be in evidence short-term due to the cost of constructing facilities to the SCO, over time these costs would be ameliorated as more development occurs in the area. Indicator 9 As to Indicator 9, as depicted on Map H of the DRI application, which is referenced in new Policy 1.2-f as a “land use/site planning measure,” it is at least fairly debatable whether the Plan Amendments provide a clear separation between rural and urban uses. The only rural uses adjacent to Mecca are the Vavrus land to the east, and Map H depicts a 50-foot buffer there. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Indicator 10 As to Indicator 10, no language contained in the Plan Amendments discourages or inhibits infill or redevelopment, and the Plan still contains several provisions encouraging infill and redevelopment. On the other hand, development occurring at Mecca obviously will not result in infill or redevelopment. To the extent that the availability of economic incentives for infill and redevelopment is limited, the significant economic incentives committed to the Mecca project will not be available for infill and redevelopment. However, it is at least fairly debatable whether the infill and redevelopment measures in the Plan will be compromised by the Amendments in view of the increasing growth pressures in the County and the “tight” supply of land for development. The Plan Amendments include numerous anti-sprawl development controls that also are considered in the urban sprawl analysis. The principal controls are in the structure of the Plan Amendments, primarily the minimum and maximum amounts established for specific uses, a requirement for phasing, and a required balance of residential and non- residential uses for each phase. To mitigate sprawl, development controls should be meaningful and predictable, but also flexible. They need not include numeric setbacks and building spacing requirements, or a site plan. It is at least fairly debatable that the controls in the Amendments satisfy the State’s criteria. Cf. Rule 9J-5.006(5)(j). Petitioners' Evidence One planning witness for Petitioners who opined that the Amendments constitute sprawl did not consider the extent, amount or frequency of any indicator, contrary to Rule 9J-5.006(5)(d). He also opined there is no need for the Amendments. However, in analyzing this issue, he only reviewed portions of the Plan and a six-page summary of the EAR prepared by Petitioners’ counsel. He did not examine the 2003 Population Allocation Model or the County’s population projections and land use need analysis.7 Another planning witness for Petitioners rendered opinions about the interpretation of several indicators in the urban sprawl rule, but his testimony did not constitute expert opinions as to whether the Amendments constitute sprawl, or are "in compliance." A third planning witness for Petitioners, from the TCRPC, opined that the Amendments are sprawl, as is the existing development near Mecca. However, he admitted the definition of “sprawl” in the TCRPC's SRPP is not the same as the definition in Rule 9J-5. Urban Sprawl Summary Based on the foregoing, the determinations by the County and DCA in this case that the Plan Amendments are consistent with the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources are subject to fair debate. Capital Improvements In this category, Petitioners contend that the Plan Amendments are inconsistent with Section 163.3177(3)(a) and Rule 9J-5.016(2) and (3)(b). The statute provides: The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth: A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5-year period. Estimated public facility costs, including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities. Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service. Standards for the management of debt. The Rule provides: Capital Improvements Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. Current local practices that guide the timing and location of construction, extension or increases in capacity of each public facility; The general fiscal implications of the existing deficiencies and future needs for each type of public facility. This analysis shall be based on the needed improvements, as identified in the other local government comprehensive plan elements, and shall address the relative priority of need among facility types, and shall support the future land use element; The costs of needed capital improvements for mitigation of existing deficiencies, replacement and new growth needs pursuant to the future land use element and shall explain the basis of cost estimates; The impact of new or improved public educational and public health care systems and facilities on the provision of infrastructure; The use of timing and location of capital improvements to public facilities to support efficient land development and goals, objectives, and policies in the future land use element. This analysis must take into consideration plans of state agencies and water management districts that provide public facilities within the local government jurisdiction; and An assessment of the local government's ability to finance capital improvements based upon anticipated population and revenues including: Forecasting of revenues and expenditures for five years; Projections of debt service obligations for currently outstanding bond issues; Projection of ad valorem tax base, assessment ratio and millage rate; Projections of other tax bases and other revenue sources such as impact and user fees; Projection of operating cost considerations; and Projection of debt capacity. Requirements for Capital Improvements Goals, Objectives, and Policies. * * * (b) The element shall contain one or more objectives for each goal and shall address: The use of the capital improvements element as a means to meet the needs of the local government for the construction of capital facilities necessary to meet existing deficiencies, to accommodate desired future growth and to replace obsolete or worn-out facilities; The limitation of public expenditures that subsidize development in high hazard coastal areas; The coordination of land use decisions and available or projected fiscal resources with a schedule of capital improvements which maintains adopted level of service standards and meets the existing and future facility needs; The extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards; and The demonstration of the local government's ability to provide or require provision of the needed improvements identified in the other local government comprehensive plan elements and to manage the land development process so that public facility needs created by previously issued development orders or future development do not exceed the ability of the local government to fund and provide or require provision of the needed capital improvements. There was no evidence that the Plan does not contain a CIE meeting these requirements or, more germane to this case, that the Plan Amendments undo the Plan's CIE, which already has been determined to be "in compliance." Actually, while seemingly focusing here on capital improvements other than those related to traffic circulation, Petitioners attempt to use these requirements primarily as additional bases for their urban sprawl arguments, supra, and their transportation concurrency and data and analysis arguments, infra. Chapter 2003-420, Laws of Florida, provides that the County in which Scripps is located shall have the exclusive right to provide central water and sewer service to the project. The County intends to provide such service to the SCO via lines extending from Okeechobee Boulevard and SR 7 about 12.5 miles away. The County has enough plant capacity to serve the SCO through build-out. Assuming Scripps Florida is located at the SCO, it would be expected to pay guaranteed revenue fees, connection fees, and on-line rates (which could be special rates set for Scripps and Mecca.) The evidence was that the total cost of construction for the lines to serve the SCO, while substantial at approximately $15 million (some of which would be expended with or without the SCO), is a relatively small percentage (5-6 percent) of the County's overall capital improvements budget, is relatively minor in light of the County’s strong financial condition, will enhance the use of existing assets and rate stability for customers, represents a least-cost and efficient approach for the area to be served, and will not cause other water and sewer needs to go unmet. The County’s 2005-2010 Capital Improvements Schedule (CIS) is financially feasible, as are each year’s program in the CIS. The CIS is based on best available data. Capital outlays to support the SCO will not deprive the County of money for other needed projects or distort the County’s fiscal priorities. Transportation Concurrency The Petitioners' focus here is on the CRALLS designations. CRALLS designations have been assigned to 37 different road segments and 6 intersections, not only near Mecca but also as far north as Indiantown Road, as far south as Okeechobee Boulevard, and as far east as I-95. They are set at vehicle loadings that match the traffic loads expected with development of the SCO. They only apply to the SCO. Other developments cannot rely on them but must use an applicable LOSS. In part, Petitioners frame their arguments on inconsistency with statutes and rules governing interim LOSS designed to correct existing deficiencies and set priorities for addressing backlogged facilities; Transportation Concurrency Management Areas used to promote infill and redevelopment; and Transportation Concurrency Exception Areas used to reduce the adverse impact transportation concurrency may have on urban infill and redevelopment and to achieve other goals and policies of the state comprehensive plan, such as promoting the development of public transportation. See Section 163.3180(9) and Rule 9J-5.0055(4)-(6). However, DCA and the County have made no effort to defend its CRALLS under those provisions.8 Rather, their position is that a CRALLS designation is a specialized LOSS that is "in compliance" without resort to those provisions of the law. DCA and the County seemed to come close to defending the CRALLS in part on the ground that the County has absolute discretion to establish these CRALLS and that they are not even subject to review for adequacy. Such a legal position would be untenable. Cf. Conclusion 217, infra. Assessment of the adequacy of the CRALLS is required. The transportation issues associated with the SCO are unprecedented in the County because of its size, location, and 30-year build-out. To address the challenges posed by these factors, the County relied on a combination of strategies to address transportation, including road improvements, CRALLS, adopting development controls for the SCO, and requiring mitigation. The initial transportation issue for the SCO was posed by FLUE Policy 3.5-d. This policy prohibits land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. This policy is self-imposed and not required by the State. The SCO would generate trips beyond the significance thresholds in FLUE Policy 3.5-d. The County Engineer supported an exemption from this policy for the SCO because traffic considerations should not outweigh the economic and other land use goals the County is pursuing with the SCO. The first traffic analysis for the SCO was included in the DRI application, and was predicated on 10.5 million square feet of R&D. Later, in conjunction with re-zoning, the County’s consultants prepared a concurrency analysis for 8.5 million square feet of R&D, reflecting the maximum allowed by the Plan Amendments. All traffic analyses were performed as they would have been for a private developer, with methodologies approved by the County in collaboration with FDOT, TCRPC and Martin County. Assumptions were conservative, representing a worst- case scenario. SCO-related road improvements approved by the County in its five-year road program for 2005-2009 included 18 segments and three intersections at a total cost of $179.7 million. Of these, eight projects totaling $64.8 million were not new or changed in their amount of funding. The SCO-related improvements in the five-year road program were incorporated into the CIS for 2005-2010. An additional $26 million for these projects was included for 2010. Approximately 70 percent of the improvements needed for the SCO was previously identified on the 2020 Roadway System Map. In addition to these construction projects, the County also lowered the LOSS on some roads and intersections that would be impacted by the SCO over the next 30 years. In doing so, the County utilized its long-standing policy of establishing a CRALLS designation for each such road segment or intersection. The County is authorized under its charter to set LOSS's for all major roadways in unincorporated areas and municipalities except for the FIHS. The State sets the LOSS on roads in the FIHS. The County's generally applicable LOSS is LOSS “D”. Since 1989, the County has utilized the CRALLS strategy to establish an alternative LOSS on some roads due to physical or policy constraints. Examples of physical constraints include natural features, waterways, right-of-way limitations, and other roads; neighborhood opposition to a wider road would be an example of a policy constraint. CRALLS designations are not limited to the Urban/Suburban Tier; they may be adopted for land in any tier. Under TE Policy 1.2-f, CRALLS designations by the BCC must be based on data and analysis. These data and analysis must address 11 criteria in the County’s Unified Land Development Code (ULDC). CRALLS standards typically are expressed as a numeric limit on trip loadings on the road segment or intersection in question, rather than reliance upon the conventional, generalized “A”-“F” standards used by transportation engineers. Since 1993, Chapter 163 and Rule 9J-5 have granted a local government discretion to adopt LOSS for seven types of public facilities, including roads other than FIHS roads. The only State requirements are that LOSS's must be adequate, based on data and analysis, and established for each facility type. Local governments are not prohibited from adopting LOSS's for different facilities within a service type or even project-specific LOSS's that overlay the more generally applicable LOSS for a facility or facility type. Of the 37 road segments and six intersections given project-specific CRALLS designations in the Amendments, the designations on nine road segments will become ineffective when the roads are widened as planned. Another seven segments may eventually have their CRALLS designations repealed as unneeded. These segments are projected to be no more than 12 percent over generalized LOS “D”, and the County’s experience is that a detailed arterial analysis generally will show such a segment actually operating at LOS “D” when site-specific factors are considered. Seven segments and one intersection already had CRALLS designations, but the CRALLS was changed to accommodate the SCO. An additional nine segments and four intersections were expected to have a CRALLS designation even without the SCO, due to pre-existing conditions. On all but two of these, the SCO accounted for 5% or less of the trip loadings. Five segments and one intersection received a CRALLS designation solely because of the SCO. These include three segments of PGA Boulevard, two segments of SPW, and the Northlake Boulevard to Orange Boulevard intersection. In analyzing an LOSS for adequacy, a local government should consider both technical and policy issues. Technical issues for roads include the actual amount of traffic to be allowed on a road segment or intersection at the peak hour in the peak season. Policy issues involve comparing increased congestion to other planning principles, such as preventing sprawl, promoting economic development, and neighborhood opposition to wider roads. There is not a limiting list of planning principles to consider in evaluating adequacy. The County Engineer concluded that these CRALLS designations were appropriate and adequate LOSS's. He based his opinion on the amount of traffic on each segment or intersection, how the road would function, fiscal issues, his knowledge of the area, residents’ opinions, and other factors. He noted that the maximum trips in each CRALLS designation are for the peak hour in the peak season; the peak season represents a 15 percent increase over the off-peak season. The CRALLS determinations were supported by the best available data. Among other things, the data and analysis addressed the 11 criteria identified in the ULDC. As transmitted, the Amendments included a number of temporary CRALLS designations. In its Objections, Recommendations and Comments (ORC), DCA objected that temporary CRALLS designations without an accompanying long- range CIS were inconsistent with Chapter 163 and Rule 9J-5. DCA suggested the County identify improvements for those CRALLS that were indeed temporary, and assign permanent CRALLS to those segments for which no improvements were planned. Of the 43 CRALLS designations in the Amendments as adopted, all but two were permanent. The CRALLS designations on two segments of Northlake Boulevard were to be “no longer in effect” after the extension of PGA Boulevard. These CRALLS designations are supported by a fully-funded extension of PGA Boulevard from SPW to the Beeline in the CIS. Considering the road improvements in the adopted CIS and the CRALLS designations adopted in the Amendments, the County will achieve and maintain the LOSS's on roads affected by the Amendments through 2009. In addition to road improvements and adopting CRALLS, the County adopted “best planning practices” for transportation in the Amendments. These included a variety of requirements in FLUE Policy 2.8-c, 1.-3., emphasizing bicycle and pedestrian mobility, project design measures like slip roads, and mixing uses to enhance internal trip capture. Policy 2.8-c, 9., included several requirements intended to foster public transportation at the SCO. Policy 2.8-d required a balance of residential and non-residential uses in each five-year project phase. Finally, the Amendments include required mitigation measures in conjunction with the CRALLS designations, including road construction and design principles for the SCO. Petitioners’ transportation witness opined that the CRALLS designations were not adequate and, in some cases, not feasible. But for several reasons, his opinions were not beyond fair debate. First, he based his opinion on the traffic analysis of 10.5 million square feet of development in the DRI application, which was later reduced to a maximum of 8.5 million, unbeknownst to the witness. Second, his technical analysis was general and did not take into account the County’s actual experience, which is not professionally acceptable data and analysis for purposes of a plan amendment. For example, some CRALLS loadings he said were impossible to achieve are already being met or exceeded in the County on actual roads, and traffic on some roads flows at speeds equivalent to LOS “D” even though trip loadings greatly exceed the LOS "D" numbers on the generalized LOS tables. Third, his opinion did not take into account the possibility that required on-site affordable housing and CRALLS mitigation measures in the Plan Amendments might increase internal trip capture and reduce trips on the external roadway system. Fourth, he assumed that the only policies the County could consider when evaluating the adequacy of a CRALLS designation are infill, redevelopment, and promotion of “forgotten modes” of transportation like bicycles; he did not consider economic development, urban sprawl, growth pressures, and other planning principles. Data and Analysis Paragraph 75 of the Amended Petition, labeled "Data and Analysis," alleges that the Plan Amendments are: not clearly based on the relevant and appropriate and professionally-accepted data and analysis regarding: impacts to adjacent natural areas; compatibility with adjacent land uses; impacts to the Loxahatchee River and restoration thereof; the Comprehensive Everglades Restoration Plan [CERP] and components thereof; impacts to rural communities; the availability and necessity of infrastructure and the provision thereof to support the project; the necessity for and the amount of land needed to accommodate the project; the availability and suitability of alternative sites for the project; the character of the undeveloped land and the surrounding community; the economic impacts of the proposed plan amendments; [and]9 the likelihood of developing an economically significant biotech industry as [a] result of the plan amendments . . . as required by sections 163.3177(6)(a), (8) and (10)(e), Fla. Stat. and Rule 9J-5.005(2) and (5)10 and 9J-5.006(2) and 9J-5.013(1) F.A.C.11 Section 163.3177(6)(a) requires that the future land use plan be based on appropriate data and analysis. Section 163.3177(8) requires all elements of comprehensive plans to be "based upon data appropriate to the element involved." Section 163.3177(10)(e) states the Legislature's intent that goals and policies be "clearly based on appropriate data"; states that DCA "may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted"; and states that DCA "shall not evaluate whether one accepted methodology is better than another." Rule 9J-5.005(2) states in pertinent part: (a) All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based upon data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue. Rule 9J-5.006(2) describes the Land Use Analysis Requirements for the FLUE. It should be noted that new FLUE Policy 2.8-f in the Plan Amendments provides: "If the Scripps Research Institute does not move forward on the Mecca site, Staff shall bring to the BCC for initiation proposed amendments to consider removing any text and maps related to the [SCO] from the Comprehensive Plan." While Petitioners characterize this Policy as an admission that the Plan Amendments are not "in compliance," the Policy actually is prudent and would allow reconsideration of planning for Mecca and vicinity with a Scripps-anchored biotechnology cluster effort located elsewhere in the County (or even without any Scripps-anchored biotechnology cluster effort in the County, if that were to occur) as part of the EAR-based and sector planning efforts of the County. Some parts of the data and analysis would not be "professionally accepted" and, standing alone, would not be adequate to support the Plan Amendments. For example, the Washington Economic Group report is not "professionally accepted" because: it does not explain its methodology; it is based on an erroneous assumption that the plan for Scripps Florida, which is planned to be smaller than Scripps California, will generate the level of biotechnical industry found in all of San Diego, which includes not only Scripps, but also the University of California at San Diego and the Salk Institute in its cluster; it overestimates the importance of Scripps' role in the San Diego cluster; and it double- counts Scripps employment in its employment estimates. But other data and analysis corrected these errors. The amount of data and analysis supporting the Plan Amendments is voluminous. Petitioners' data and analysis arguments essentially are that the same evidence they presented as to the substantive areas of concern proves alleged failures of data and analysis to be "professionally accepted" and adequate. As indicated elsewhere in this RO, Petitioners' evidence did not prove their case as to substantive areas of concern beyond fair debate; likewise, they did not prove beyond fair debate that the totality of the data and analysis supporting the Plan Amendments were not "professionally accepted" or were inadequate. Internal Consistency The Amended Petition alleges numerous internal inconsistencies. Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent . . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan." Petitioners allege inconsistency with the following statements in section B., the Assessment and Conclusions section of the Introduction to the FLUE, that the updated 1989 Plan implements the direction provided by the BCC to: strengthen and facilitate revitalization and redevelopment and infill development programs; protect agricultural land and equestrian based industries; balance growth through the County; * * * 8. establish a timing and phasing program to provide for orderly growth; * * * coordinate growth with the provision of infrastructure; define how growth/services will be managed in rural residential areas; define service areas and the type of services to be provided within each service area; and provide criteria for expanding the Urban/Suburban Tier. Petitioners allege inconsistency with the following GOPs of the FLUE: Goal 1, to establish the Tier System. Policy 1.1-b, establishing criteria for redesignation of a Tier. Policy 1.1-d, not to modify the Tier System if redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006. Objective 1.4, for a Rural Tier to protect and maintain rural residential, equestrian, and agricultural areas. Policy 1.4-k, not to make future land use decisions that increase density and/or intensity requiring major new public investments in capital facilities and related services in the Rural Tier. Objective 2.1, to designate sufficient land area in each land use designation to manage and direct future development to appropriate locations to achieve balanced growth. Policy 2.1-f, not to exceed the natural or manmade constraints of an area considering assessment of soil types, wetlands, flood plains, wellfield zones, aquifer recharge areas, committed residential development, the transportation network, and available facilities and services; and not to underutilize existing or planned capacities of urban services. Policy 2.2-b, requiring: an adequate justification and a demonstrated need for proposed future land use; for residential density increases to demonstrate that the current land use is inappropriate; for a review and determination of compatibility with existing and planned development in the immediate vicinity; and an evaluation of impacts on the natural environment, availability of facilities and services, adjacent and surrounding development, future land use balance, prevention of urban sprawl as defined by Rule 9J- 5.006(5)(g), Community Plans and/or recognized Planning Area Special Studies, and municipalities in accordance with Intergovernmental Coordination Element Objective 1.1. Policy 2.2-d, to ensure consistency of the County's ULDC with the appropriate elements of the Plan. Objective 2.6, to establish a transfer of development rights (TDR) program. Policy 2.6-b, requiring the TDR program to be the method for increasing density within the County unless an applicant can justify and demonstrate need and that the current designation is inappropriate, or is using the Voluntary Density Bonus program, as outlined in the Housing Element and the ULDC. Policy 2.6-f, limiting potential TDR receiving areas to the Urban/Suburban Tier, Planned Development Districts and Traditional Development Districts requesting a density increase, and subdivisions requesting a bonus density above the standard density. Policy 2.6-h, prohibiting designation of receiving areas which would result in a significant negative impact upon adjacent Environmentally Sensitive Land. Policy 2.6-i, prohibiting designation of receiving areas which would be incompatible with surrounding existing and future land uses. Goal 3, to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner. Objective 3.1, to establish graduated service areas to distinguish levels and types of services needed in a Tier. Policy 3.1-a, to establish the USA, LUSA, and RSA considering: the density and intensity of land uses depicted in the FLUE Atlas; the cost and feasibility of extending services; the necessity to protect natural resources; and the objective of encouraging reinvestment in the Revitalization and Redevelopment Overlay. Objective 3.4, to require a RSA which meets the needs of rural development and use without encouraging the conversion of rural areas to more intense uses. Policy 3.4-a, for the RSA to include those areas of the County where the extension of urban LOS's is neither foreseen during the long range planning horizon nor warranted by development patterns or densities and intensities allowed. Policy 3.4-c, not to provide or subsidize centralized potable water or sanitary sewer in the RSA unless: required to correct an existing problem; required to prevent a projected public health hazard; required to prevent significant environmental degradation; or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. Objective 3.5, to require availability of services concurrent with impacts of development, to ensure consistency of decisions regarding location, extent, and intensity of future land use (particularly urban expansion), with types of land use and development established in each Tier. Objective 4.1, to develop and implement a Community Planning and Neighborhood Planning program, consider the program's plans for more livable communities with a strong sense of place and identity for the various regions in the County. Policy 4.1-c, to consider the objectives and recommendations of all Community and Neighborhood Plans, including recognized Planning Area Special Studies, prior to extending utilities or services, approving land use amendments, or issuing development orders for rezoning, conditional use, or Development Review Committee approval. Goal 5, to provide for the continual protection, preservation, and enhancement of the County's various high quality environmental communities. Petitioners allege inconsistency with the following parts of the Conservation Element (CE): Objective 2.1, to preserve and protect native communities and ecosystems to ensure that representative communities remain intact, giving priority to significant native vegetation. Policy 2.1-g, to ensure that management plans are developed for County-owned or County-managed natural areas and that uses allowed on these lands are compatible with them and preserve their natural character. Objective 2.4, to protect and preserve endangered and threatened species, species of special concern, and their associated habitats. Petitioners allege inconsistency with the following GOPs of the CIE: Objective 1.1, to maintain minimum LOSS's for various facilities, including traffic circulation, and to issue development approvals based on ability to maintain those LOSS's. Objective 1.4, to identify and fund services and capital improvements required by the Plan. Policy 1.4-a, to fund projects and programs to (not in order of importance): correct public hazards; eliminate existing deficiencies in LOS's; provide capacity for projects in the USA approved through development orders; provide for renewal and replacement of, and improvement to, existing public infrastructure and physical assets; maintain LOS's as new growth occurs; increase existing LOS's to desired LOS's; and implement the GOPs in the Plan. Policy 1.5-c, not to provide urban LOS's in the RSA except where allowed under CIE Objective 1.1, required to correct a public health hazard, or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. (Other internal consistencies mentioned in Petitioners' PRO were not alleged or heard by consent and may not be considered. See Conclusion 212, infra.) The evidence did not prove beyond fair debate that the Plan Amendments cause the elements of the Plan to be internally inconsistent, or cause the depictions of future conditions in the FLUE Atlas not to reflect the GOPs within all elements of the Plan. Natural Resources Impacts on the Mecca Site As a result of its use for citrus growing and mining, Mecca itself is devoid of significant environmental value. The South Florida Water Management District (SFWMD) has found no jurisdictional wetlands on it. There are no native plant communities; in fact, there is virtually no native vegetation anywhere on the site. Mecca is used by wildlife in limited and intermittent ways. The main wildlife use is localized foraging by species such as sandhill cranes and wood storks in the impoundment and irrigation ditches. Mecca does not provide suitable habitat for nesting or denning. A listed species survey revealed no gopher tortoises or snail kites. The surface water management system for the first 535 acres of the SCO has received a construction permit, and the system for the total site was conceptually approved based on water quantity and water quality compliance. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, DOAH Case Nos. 04-3064 and 04-3084, 2004 WL 2770101 (DOAH December 3, 2004; SFWMD Final Order December 8, 2004). No significant adverse impacts to natural resources on Mecca itself would result from development of the SCO on Mecca. Impacts of Development on Mecca on Natural Areas Surrounding Mecca The lands surrounding Mecca are more significant environmentally. They include Corbett WMA to the west, Hungryland Slough to the north and northeast, the Vavrus property to the east, and the North County Airport Preserve (Conservation lands to the west, south, and southeast of that Airport) east of the Vavrus property. Farther away to the east and northeast is the Loxahatchee Slough and the Northwest Fork of the Loxahatchee River, including its federally- designated Wild and Scenic and Outstanding Florida Water portion. Farther away to the southeast is the Grassy Waters Water Preserve Area, which is both a high quality natural wetlands area and an important source of drinking water for the City of West Palm Beach. New FLUE Policy 2.8-c requires the adoption of design standards for the SCO which, among other things, will at a minimum address: 4. Protection of conservation lands to the north and west of the SCO and include a passive recreational wetland system to enhance the quality of surrounding areas of environmentally sensitive lands. In accordance with this Policy, Map H designates a 247-acre, 500-1,000 foot wide flow-way along the entire north and west sides of Mecca. The flow-way will consist of braided channels through a freshwater marsh, as well as forested wetland and upland tree islands. These wetlands will enhance recreation and wildlife use. The mining lake and a new, separate lake on the south end of the site will have littoral shelves and plantings conducive to wildlife use. In addition to providing onsite environmental benefits, the flow-way will help protect adjacent environmental lands to the west and north from the effects of development on Mecca itself. Impacts of Road Construction on Natural Areas Surrounding Mecca SPW as currently depicted in the Plan runs directly along the western border of Mecca immediately adjacent to Corbett WMA. By virtue of the Amendments, the road alignment has been moved eastward onto Mecca, with the flow-way on its west as a buffer between the actual road and Corbett. This road alignment and buffer can be expected to have less of an impact on Corbett than would an alignment without a buffer. In addition to the impacts of development on Mecca itself, the Plan Amendments also affect road construction offsite that have environmental impacts. The extension of SPW from south of Mecca north to the Beeline through the Hungryland Slough was planned and included in the Plan's 2020 Roadway System Map before the Amendments were adopted, but was not in the County's five-year road program through 2009. The Amendments enlarged the planned roadway from four to six lanes and accelerated its construction to 2007. The extension of PGA Boulevard west from the Beeline to Mecca was not depicted in the Plan prior to the Amendments. The Plan Amendments identify a new 260-foot wide ROW on the new TIM; although the ROW could accommodate ten lanes of roadway, a six-lane road is depicted on the new 2020 Roadway System Map. The new road construction is expected to impact a number of wetlands on private property, but the exact extent of this impact is not known as its precise alignment has not been selected, and the general alignment depicted in Ordinance No. 2004-39 does not allow an exact assessment of potential environmental impacts. In order to examine potential impacts of the PGA Boulevard Extension, the County studied the “worst case scenario” for the extension if it were completed in a straight-line from the Beeline to Mecca. A road constructed on this alignment would directly impact over 45 acres of wetlands, and have an indirect impact upon another 56 acres of wetlands. SFWMD considered this “worst case scenario” as part of its review of secondary impacts for purposes of the conceptual permit it issued for the SCO, which assumed that impacts will be lessened during subsequent permitting as a result of SFWMD's avoidance, minimization, and mitigation requirements. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, supra. Habitat Fragmentation The integrity of natural areas is very important to wildlife. For one thing, the ability of wildlife to move around and mix to enlarge the gene pool increases the structural stability of wildlife populations. Loss of enough integrated habitat can be very damaging to particular species of wildlife. As habitat becomes further and further fragmented by development, the remaining connections among areas of quality habitat become increasingly important in general and especially for particular species of wildlife. Development and roads built through natural areas result in road kill and habitat fragmentation, which compromises the quality of the natural areas. Before the Plan Amendments, through at least 2009, wildlife would have had the ability to use Mecca and especially Hungryland to move between Corbett, Vavrus, the North County Airport Preserve, without having to cross any major roads until coming to the Beeline and Northlake Boulevard, which separate those areas from the Loxahatchee Slough northeast of the Beeline and north and south of existing PGA Boulevard, and from the Grassy Waters Preserve south of Northlake Boulevard. At some point between 2009 and 2020, a four-lane extension of SPW was planned to be added. As a result of the Plan Amendments, the SPW extension will be accelerated to 2007 and constructed with two additional lanes. As a result, the Plan Amendments will tend to reduce connectivity, increase fragmentation of natural habitats, and probably increase road kill of deer, alligators, various kinds of turtles, otters, and snakes. While not part of the Plan Amendments, planned protection measures include fencing to separate Corbett from the Mecca project and wildlife crossings and bridging installed along with the widening of SPW north of Mecca and the extension of PGA Boulevard to Mecca in an attempt to retain the linkage of open wetland and upland areas to the west, north and east, consistent with CE Objective 5.1. Unfortunately, even if the fencing and wildlife crossings and bridging are 100 percent effective for larger animals (which they probably will not be), it should be recognized that many smaller animals will benefit little from them if at all. In particular, increased road kills of listed indigo snakes should be expected due to their large habitat home range (200-acre home range for males). Fire Management Virtually all plant communities in the vicinity of Mecca are fire dependent--in order to be maintained in their natural state, they must be burned approximately every three years, or they will be invaded by exotic species, and their habitat values will be reduced. The inability to maintain a regular burn schedule also poses a public safety threat due to the increased risk of wildfires. Fire management is compromised near roadways and developed areas due to health concerns, reduced visibility, and increased wildfire threat. Caution is used when burning near roadways so as not to cause (traffic accidents,) or to be blamed unfairly for causing them, which can be just as bad for the public relations that have to be maintained to successfully fire-manage natural lands. If an airport, hospital, school, or community is within two miles of a burn area, it is considered a smoke-critical area. If Mecca is developed as proposed, it will be considered a smoke-critical area for many burns in Corbett, which will not be able to be burned if the wind is blowing from the west. In Corbett, which has a lot of lighter wood, fires often smolder for weeks, further constraining fire management. For these reasons, the development allowed by the Plan Amendments will negatively impact the management of Corbett. However, there are alternative fire-management techniques that can be used, if necessary, in natural areas adjacent to Mecca. In addition, with or without the SCO, the County was planning a four-lane extension of SPW along the eastern boundary of Corbett, which would be a constraint on fire management. Light Impacts The proposed development on Mecca will add light sources that will alter the nighttime sky viewable from Corbett, Hungryland, and the Loxahatchee Slough. Depending on the extent, such an alteration would reduce recreational values of Corbett. Lights also can interrupt bird migration and be harmful to migratory birds. The area surrounding Mecca is important for migratory birds because the lack of lighting provides a dark sky and safe route for migration. Special downward-directed lighting that can reduce the adverse impacts from lighting is intended to be used on the Mecca project although a clear requirement to use them is not included in the Plan Amendments. Noise, Pollution, and Mosquito Control Noise and other roadway disturbance cause behavioral problems in wildlife, disrupt bird-nesting for considerable distances, and negatively impact prey and predator by interfering with offensive and defensive mechanisms. However, it should not be anticipated that these kinds of impacts will be significant. In most cases, they probably will disturb the human recreational users of these public lands more than the wildlife. Fertilizer and pesticide use on Mecca may be harmful to wildlife on adjacent properties. But there are ways to control their ill effects through land development regulation consistent with provision in the CE of the Plan. Mosquito control is typically required in urban developments, and is accomplished through the use of pesticides that are not only targeted towards mosquitoes, which are an important part of the food chain, but also kill a wide variety of insects, spiders, and invertebrates. This reduces the populations of these species, negatively impacts species that rely on them for food, can be expected to result in less food for birds such as tree swallows, which feed heavily on mosquitoes, as well as dragonflies, and numerous species that rely on mosquito larvae in the aquatic environment. Loxahatchee River Basin Petitioners contend that it is unacceptably poor planning to develop the SCO on Mecca at this time and eliminate it as an option for use for water storage as part of efforts to restore the Loxahatchee River. The Loxahatchee River has been negatively impacted by development in its basin. Such development has resulted in several changes, including the redirection of water discharge to other basins and an unnatural increase in stormwater drainage. These changes to the drainage patterns have resulted in several problems, including excessively high flows in the river following rainfall events, and reduced base flows during the dry season. Excessive flows during the wet season have resulted in erosion of the stream bed, sedimentation blocking the channel at times, and sometimes water quality problems and fish kills. Reduced base flows during the dry season have contributed to allowing saltwater intrusion up the river channel. (Other contributing factors include straightening and stabilization of the inlet to reduce the need for maintenance dredging and the removal of a large oyster bar from the riverbed for navigation purposes.) Saltwater intrusion has altered aquatic ecosystems and caused a change in the vegetation along the riverbanks. Specifically, freshwater cypress-dominated wetlands used to occur as far seaward as 6.2 miles from the river mouth; now mangroves have replaced the cypress swamps as far inland as river mile 9.2, and the cypress wetlands to river mile 10.2 are stressed. Restoration of the Loxahatchee River is an objective of CERP, North Palm Beach County Part One. One component of North Palm Beach County Part One was for SFWMD to acquire rock mine pits for water storage from Palm Beach Aggregates near where the L-8 canal meets the C-51 canal. SFWMD plans to channel water through canals into these pits during wet season or high rainfall events, then discharge the water from the pits back through the canals during dry season. One destination for this fresh water during the dry season would be the Loxahatchee River. Until recently, prior to the Scripps opportunity, the North Palm Beach County Part One CERP team also was considering use of Mecca for water storage as a possible management measure in the overall CERP strategy for restoration of the Loxahatchee River. Mecca was considered for two main reasons. One was its location on the west leg of the C-18 canal, which receives discharges from the C-18 basin and flows into the Loxahatchee River. Water could be fairly easily stored there during the wet season and released to the river during the dry season. The other was its disturbed condition, being an orange grove and sand mine. The only other potential water storage sites near the C-18 canal without pristine wetlands that would be unsuitable and undesirable sites for a water storage facility is approximately 1,500 acres of disturbed agricultural land on Vavrus. (The other two-thirds of the Vavrus property has high-quality wetlands habitat.) However, Mecca was not specifically mentioned in any component of CERP, North Palm Beach County Part One, and consideration also was being given to restoring the Loxahatchee River without using Mecca for water storage. No decision was made to use Mecca for water storage, and no steps were taken to purchase Mecca for this purpose. When the Scripps opportunity arose, the County purchased the property for development of a biotechnology research park and applied to SRWMD for a surface water storage and management system and environmental resource permit. One issue was whether the permit would be consistent with the objectives of SFWMD, including CERP. SFWMD did a preliminary study, which included modeling, and determined that Mecca would not be needed for water storage, finding that water storage capacity available in the Palm Beach Aggregates rock mine pits was sufficient, given the pits’ location, depth, and access to nearby canals. SFWMD already had a contract for use of 48,000 acre-feet feet of storage capacity, which is more than seven times the achievable storage at Mecca. In addition, SFWMD was negotiating to acquire the right to double that storage capacity at Palm Beach Aggregates. Based on the County's plans to develop the SCO on Mecca, and the options available for restoring the Loxahatchee without water storage on Mecca, the CERP team eliminated the Mecca option. Instead, SFWMD and the County coordinated on the role the SCO might play in the recovery effort. SFWMD concluded that Mecca could be used to advantage as part of the water conveyance system between the rock mine pits and environmental areas, including the Loxahatchee River. Establishing a flow-way from the south to north of Mecca would give SFWMD another route with which to move water, would reduce dependence on Lake Okeechobee for fresh water, and would provide greater base flows to the Loxahatchee. Based on SFWMD input, the County designed for Mecca a flow-way that will allow flow up to 1,000 cubic feet of water per second (cfs) to assist recovery efforts for the Loxahatchee. Construction at Mecca is phased to assure that the existing onsite impoundment will be in place until the flow-way is functioning. This conveyance system will benefit offsite resources and improve water quality, and is consistent with and complementary to SFWMD’s CERP implementation. Petitioners' witnesses criticized the decision to proceed with development of the SCO on Mecca at this time on the ground that CERP's implementation report (a/k/a "tentatively selected plan") has yet to be approved. However, approval requires not only agreement by the State and federal agencies involved but also a vote of the United States Congress, which may not occur until 2008. It is a fairly debatable policy question whether to postpone a decision on developing the SCO at Mecca until Congress approves an ultimate CERP implementation plan. Petitioners' witnesses also criticized the modeling relied on by SFWMD to eliminate the Mecca option. They pointed out that the modeling was not peer-reviewed and that it assumed 80,000 to 100,000 acre-feet of storage at the rock mine pits. But this point, too, is fairly debatable. First, while peer-review is required in the CERP planning process, it is not required of data and analysis under the GMA. See Finding 136, supra. Second, the purpose of the modeling was to supplement modeling already done assuming 48,000 acre-feet of storage for comparison purposes. It was not intended to answer the ultimate question of CERP planning process--whether the CERP implementation plan will meet CERP objectives, including restoration of the Loxahatchee. In addition, based on the evidence, prospects for obtaining the additional storage seem reasonably good. Third, water from the rock mine pits is only one of four sources of flow needed for restoration of the Loxahatchee. The combination of sources CERP will use has not been determined yet. Preliminarily, it is estimated that base flows from the south will be required to maintain 65 cfs minimum flows at the Lainhart Dam. Based on the evidence, the prospects for being able to maintain those flows using water from the rock mine pits are reasonably good. Other necessary flow will be sought from the Palmar/Cypress Creek and Kitchen Creek areas to the north. Fourth, as for reducing high flows during the wet season, it is fairly debatable whether the plan to use the Palm Beach Aggregates rock mine pits alone for water storage will work well enough. It could be that, despite capacity limitations on storage potential in the C-18 basin, some storage there may prove beneficial, perhaps in conjunction with aquifer storage and recovery wells (ASRs), along with the rock mine pits. Even with the Plan Amendments, there remains some potential at this time that a limited portion of Mecca and disturbed portions of Vavrus could be used for this purpose if needed. Petitioners' witnesses also complained that use of the rock mine pits along with a flow-way through Mecca will require potentially costly land acquisition and permitting and modification of existing canals and construction of new canals, as well as larger pumps, and that water will be lost in transit between the rock mine pits and Mecca through evaporation. But there was no evidence that those factors will in fact harm or jeopardize restoration of the Loxahatchee River. Meanwhile, it is significant that the flow-way on Mecca will be provided by the County and will not cost SFWMD or CERP anything. Natural Resources Summary As can be seen, development of the SCO at Mecca will not be without some adverse impacts to natural resources and the environment. However, the County's determination that the benefits of the SCO outweigh the harm of those impacts, so as not to cause the Plan Amendments to be "in compliance," is a policy decision that is at least fairly debatable. Community Character and Compatibility It is obvious that the Plan Amendments will result in a complete change in the character and use of the Mecca site. Without question, development of the SCO at Mecca will impact adjacent lands and the character of the nearest communities. The question raised, however, is whether the changes at Mecca are compatible with the character and uses of the surrounding lands. New FLUE Policy 2.8-c requires, among other things: urban uses allowed by the SCO to have a defined edge; protection of conservation lands to the north and west by a passive recreational wetland system to enhance the quality of surrounding environmentally sensitive lands; and compatibility with and minimization of impacts on land uses adjacent to the SCO. Map H of the DRI application shows wetland and other buffers on the north, west, and south sides of the SCO, and a 50-foot upland buffer along the Vavrus property to the east. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Corbett WMA and the Hungryland preservation lands in Unit 11 will be buffered by passive recreational wetlands 500 to 1,000 feet wide, based on Map H. Corbett WMA will be benefited by moving Seminole Pratt-Whitney (SPW) Road to the east of the SCO westerly buffer and converting the existing roadbed to an equestrian trail.12 To the south, The Acreage is an example of urban or suburban sprawl. A residential development platted in 1.25- acre lots, it has all internal roads in place and in use. There was ample evidence that development of the SCO can be compatible with The Acreage. The southerly buffer between the nearest residence in The Acreage and development in the SCO would be about 800 feet. SPW already is in the 2020 TIM and Roadway System Map as a four-lane paved road through The Acreage and north past Mecca and the Beeline to Indiantown Road. However, SPW Road already has a 120-foot-wide ROW, which can accommodate a six- lane road, and The Acreage Neighborhood Plan calls for construction of this road from Northlake to the Beeline Highway, as well as extension of SR 7 north from Okeechobee Boulevard to Northlake. There is already heavy traffic on the few major through-roads in The Acreage, and that will increase incrementally. At the same time, some work trips from The Acreage to areas of the County farther east could be offset by employment opportunities in the SCO. The North County Airport has a five-mile runway buffer zone precluding educational uses. That buffer zone was accommodated on the SCO by the arrangement of uses on Map H. The new extension of PGA Boulevard from the SCO to the Beeline Highway will be subject to FAA setback requirements, but there are options for addressing that issue when an alignment is selected. The 28-acre Accessory Site is located on the west side of SPW Road just south of the SCO. Its use for construction of SPW Road, a connector canal, and an FPL substation is compatible with the existing FPL transmission line on the property. The substation will be sufficiently buffered by canals and SPW Road from The Acreage to its east and south. Many residents in the communities in the vicinity of Mecca desire to preserve the character of their communities or, it seems, even restore it to what it was before the growth the County has seen in this area over the last several years. Several own horses and desire to continue to ride their horses along the roads in the area. However, as indicated, with or without the Plan Amendments, growth in the area was expected, the County was planning to build roads in the area, and traffic was expected to increase. Based on the foregoing, it is fairly debatable whether the Plan Amendments are compatible with community character and surrounding land uses. Regional and State Plans Section 163.3177(10) states in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Treasure Coast Strategic Regional Policy Plan (SRPP) In the Amended Petition, the Petitioners did not allege the Amendments are inconsistent with the SRPP, as a whole. Only allegations in the Amended Petition may be considered. See Conclusion 212, infra. Notwithstanding testimony from Petitioners’ TCRPC witness that the Plan Amendments were not consistent with some provisions of the SRPP, he did not testify that they were inconsistent with the SRPP as a whole. The Amendments further some parts of the SRPP. These include SRPP Goal 3.6 and SRPP Goal 3.7 of the Economic Development element, and their supporting strategies and policies. Petitioners' TCRPC witness testified there were five inconsistencies between the Amendments and the SRPP. However, he admitted that he did not recommend that TCRPC file formal objections to the Amendments with DCA on three grounds he cited for inconsistency at hearing --proximity to the Corbett WMA and other natural resources, the CRALLS designations, and proximity to the North County Airport. In discussing some provisions, this witness failed to give the SRPP its proper context. Many goals, strategies, and policies in the SRPP use directive verbs intended to be recommendations to a local government, not requirements. As one of his five grounds of inconsistency with the SRPP, Petitioners' TCRPC witness opined that Regional Goal 4.1 and its supporting measures require the County to prepare a regional plan before urban development may be allowed at Mecca, and to ensure such development meets the SRPP’s definition of a new town, village or city. However, this goal and its key provisions use the verb “should” and therefore are not mandates. Further, a plain reading of these provisions shows no requirement for the County to complete a regional plan as a pre-requisite for urban development. Also, the TCRPC witness opined that SRRP Policies 9.1.1.1 and 7.1.3.1 prohibit CRALLS designations outside urban areas. However, a plain reading of these policies shows no basis for such an assertion, and the witness later admitted the SRPP does not prohibit CRALLS designations in rural areas. Moreover, his testimony on this point was contradicted by his testimony that the SRPP is only “advisory.” State Comprehensive Plan The State Comprehensive Plan (SCP) is a very broad, direction-setting document. The SCP provides over-arching policy guidance, and does not impose or authorize the creation of regulatory authority. The Amended Petition alleged that the Amendments are inconsistent with the goals of the SCP regarding Land Use, Water Resources, Natural Systems and Recreational Lands, Transportation, and Urban and Downtown Revitalization, as well as numerous policies under these goals. Based on these allegations, Petitioners alleged that the Amendments are inconsistent with the SCP as a whole. To the contrary, the record evidence demonstrates that all relevant issues regarding water and other natural resources, land use, and transportation were taken into account by the County and are addressed in the Amendments. Additionally, the Amendments are consistent with and further numerous goals of the SCP not mentioned in the Amended Petition. The Amendments contain a commitment that each phase of development must contain affordable housing for very low, low, and moderate income households. This commitment furthers the SCP goal to “increase the affordability and availability of housing for low-income and moderate-income persons ” § 187.201(4), Fla. Stat. The Amendments have as their principal focus the creation of quality employment opportunities with Scripps Florida as anchor tenant. This purpose is consistent with and furthers the SCP policy to “[a]ttract new job-producing industries, corporate headquarters, distribution and service centers, regional offices, and research and development facilities to provide quality employment for the residents of Florida.” § 187.201(21)(b)(1), Fla. Stat. Summary Using the statutory definition of internal consistency, it is not beyond fair debate that the Plan Amendments are inconsistent with either the TCRPC's SRRP or the SCP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2005.
The Issue Miami-Dade County's Krome Avenue is a two-lane, undivided highway. In October 2002, the Board of County Commissioners for Miami-Dade County (the Commission) passed Ordinance No. 02-198. The ordinance adopted an amendment composed of several parts to the County's Comprehensive Development Master Plan (CDMP). Among the parts of the amendment were changes and additions to the CDMP initiated by an application ("Application No. 16") that relate to Krome Avenue (the "Plan Amendment.")1 Quite detailed, the Plan Amendment, in essence, makes changes that re-designate a substantial segment of Krome Avenue from 2 lanes to 4 lanes. The Plan Amendment's additions add all of Krome Avenue as a Major Route among the CDMP's designated evacuation routes in the year 2015, create new policies related to approval of use of land in the vicinity of Krome Avenue designated as a four-lane roadway and create a new policy related to planned capacity improvement to the roadway, including widening to four lanes. The issue in this growth management case is whether the Plan Amendment is "in compliance" as defined in the Local Government Comprehensive Planning and Land Development Regulation Act. Preliminary Statement Under cover of a letter dated January 17, 2003, the Department of Community Affairs (the "Department" or "DCA") forwarded to the Division of Administrative Hearings (DOAH) a petition that requested a formal administrative hearing. The petition was "forwarded [to DOAH] for assignment of an Administrative Law Judge pursuant to Section 163.3184(9), Florida Statutes." The petition was filed by the Sierra Club and John S. Wade, Jr., against the Department and Miami-Dade County (County) after the Department had issued a notice of intent to find the Plan Amendment transmitted by the County "in compliance" with the Local Government Comprehensive Planning and Land Development Regulation Act (the "Act" or the "Growth Management Act") contained in Part II of Chapter 163, Florida Statutes. The petition alleges that the Plan Amendment is "not in compliance as defined in section 163.3184(1), Fla. Stat., because it is inconsistent with the requirements of ss. 163.3177, 163.3178, 163.3180, 163.3191, and 163.3245, the state comprehensive plan, with appropriate strategic regional policy plan, and with Chapter 9J-5, FAC." Petition for Formal Administrative Hearing, p. 4, paragraph 16. For relief, the petition requests, inter alia, that the administrative law judge enter a recommended order finding that the Plan Amendment is not in compliance. Upon receipt of the petition, DOAH assigned it Case No. 03-0150GM. Charles A. Stampelos was designated as the Administrative Law Judge to conduct the proceedings. A Notice of Hearing was issued that set the case for final hearing in March and April 2003. In February, the case was continued until September 2003 and in July 2003, the case was re-assigned to the undersigned. Prior to final hearing, two petitions to intervene were filed: the first, by Monroe County in support of Petitioners2; the second, in support by the City of Homestead in support of DCA and Miami-Dade County.3 Both were granted subject to proof of standing. Prior to hearing, a number of unopposed motions for continuances were granted. In addition, three motions were filed by the County: one for summary final order, a second to relinquish jurisdiction and issue a recommended order and the third a motion in limine. The three motions were denied. The case proceeded to final hearing in September 2005 in Miami, Florida. The evidentiary portion of the final hearing opened with the introduction and admission of most of the joint exhibits admitted over the course of the hearing. All in all, 60 joint exhibits were offered and admitted. They are marked as Joint Exhibit Nos. 1-17, 19-27, 29-31, 34-44, 46-49, 51-57, and 59-67. Petitioners commenced the presentation of their case-in- chief first. They presented the testimony of seven witnesses: Dickson Eazala, Comprehensive Planner with Miami-Dade County; Kay Bismark, an expert in the Redland area real estate market; John S. Wade, Jr., Petitioner; Rodrick Jude, Chair of the Sierra Club's Miami Group Executive Committee; Thomas Van Lent, an expert in the field of southern Everglades hydrology and restoration; Charles Pattison, Executive Director and Planner for One Thousand Friends of Florida and an expert in comprehensive planning and compliance under the Growth Management Act; and, Diane O'Quinn, Director of Miami-Dade County's Department of Planning and Zoning, an expert in the field of comprehensive planning. Petitioners offered 13 exhibits, marked as Petitioners' Exhibit Nos. 9-13, 17-19, 21-23, and 29-30. Petitioners' Nos. 18 and 23 were rejected and then proffered by petitioners. The rest of the exhibits offered by Petitioners were admitted. Intervenor Monroe County presented the testimony of Timothy McGarry, Director of Growth Management in Monroe County and an expert in land planning. Monroe County offered two exhibits, marked as Monroe County Exhibit Nos. 1 and 2; both were admitted. Miami-Dade County presented the testimony of Thomas Pelham, an expert in the fields of comprehensive planning and review of plans and plan amendments for compliance with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 9J-5; Alice Bravo, District Planning and Environmental Management Engineer for the Florida Department of Transportation (FDOT); and Jonathan Lord, Emergency Management Coordinator with Miami- Dade County's Office of Emergency Management. Miami-Dade County offered two exhibits, marked as Miami-Dade County Exhibit Nos. 1 and 2; both were admitted. The Department of Community Affairs presented the testimony of Paul Darst, Senior Planner in the Department, an expert in the fields of comprehensive planning and the review of comprehensive plan amendments with Chapter 163, Florida Statutes, and Florida Administrative Code Rule 97-5. The Department offered one exhibit, marked as DCA Exhibit No. 1. It was admitted. After a number of motions granted to extend the time for the filing of proposed orders, the parties filed timely proposed recommended orders on February 3, 2006. This Recommended Order follows.
Findings Of Fact Krome Avenue Less than a mile south of downtown Florida City, at a "fork in the road" for a driver headed north, Krome Avenue branches off of US 1 (South Dixie Highway). It heads in a northwesterly direction for a short distance, turns due north through Florida City and the City of Homestead and then bolts northward across a considerable stretch of western Miami-Dade County. With only a slight directional variation at an intersection with Kendall Drive, the road continues its due north run until its last several miles when it turns northeasterly before it merges with US 27 (Okeechobee Road) just shy of the Broward County line. Over its 37-mile span, there are a number of significant features of the two-lane undivided roadway. Known also as 177th Avenue, it serves as the main street for the City of Homestead, a municipality hard-hit by Hurricane Andrew in 1992. It treads along the edge of the Everglades Protection Area. In the south, Krome Avenue's locus varies in distances relatively close to Everglades National Park. In the case of Water Conservation Area 3 (WCA-3) to the north, the roadway abuts the Everglades sector's politically-drawn east border. For most of its length north of US 41 or the Tamiami Trail it fragments wetlands designated as "Environmental Protection" with WCA-3 to the west and an extension of the historical Everglades to the east. It also traverses the Redland, an expansive tract of prime agricultural land packed between suburbs and the fabled River of Grass. Krome Avenue's cross of the Redland renders it a route essential to agricultural interests in the area. The roadway is used to transport harvested row crops and as a means to get produce from fruit and vegetable groves to market in the face of competitive pressure from Mexico and Central America, competition generated by the North American Free Trade Agreement (NAFTA) since its adoption during the Clinton Administration. Lately, Krome Avenue has been a shipping lane for bush, flower and tree products from recently-arisen container nurseries dedicated to ornamental horticulture. The burgeoning nursery business supports the landscaping needs of the real estate and building industries in a county that has experienced explosive residential and commercial growth recently due in substantial part to stimulation from a financing environment of low interest rates that has persisted for more than half a decade. Due to Krome Avenue's proximity to the Everglades, any proposed and adopted amendments to the CDMP or local zoning action that might promote improvement of the roadway draws attention of some involved in the Comprehensive Everglades Restoration Project (the "Project" or "CERP"). The Project, called for by Congress to be completed by the U.S. Army Corps of Engineers in a joint effort with the state and the South Florida Water Management District (SFWMD) involves the expenditure of prodigious governmental funds and utilization of ground-breaking science. Of considerable interest to many communities, residential, commercial, environmental, agricultural, and scientific, to name some of the more obvious, CERP is the subject of government involvement at all levels. Of concern is anticipation that improvement to Krome Avenue supported by CDMP amendments threatens to contribute to rises in the value of property that is being sought or may be sought for governmental acquisition to further CERP at a time when there are various forces in play to reduce funding for the Project. A Significant Roadway Krome Avenue's is Miami-Dade County's westernmost roadway of statewide significance. The CDMP recognizes this status: it classifies the roadway as a state principal arterial roadway. The state likewise recognizes Krome Avenue's significance. FDOT has designated Krome Avenue a corridor in the Florida Intrastate Highway System (FIHS)4 developed to address requirements for a National Highway System imposed by the Congress' Intermodal Surface Transportation and Efficiency Act (ISTEA) of 1991. The Plan Amendment makes it is a hurricane evacuation route for residents and the transient population of south Miami-Dade County and provides an alternative evacuation route to Monroe County and the Florida Keys, an area sensitive to effects generated by residential development in south Florida. Despite its import to local, state and national transportation systems and the recognition of that import in the last several decades, the roadway has remained an undivided rural two-lane highway. Its configuration and the transportation demands that have increased in recent years have led to concerns about safety on much of Krome Avenue. Krome Avenue Safety The 33-mile segment of the corridor between Southwest 296th Street and US 27 exhibits a vehicular crash rate that is consistently higher than the statewide average for highways with the same characteristics. A significant portion of those crashes have resulted in fatalities or severe injuries. Between 1995 and 1999, there were 966 total vehicular crashes, of which 106 resulted in severe injuries and 16 resulted in fatalities. The number of crashes resulting in fatalities increased significantly after 1999. Between January 2000 and July 2002, there were an additional 26 crashes resulting in fatalities. Between 1995 and 2002, a total of 59 people died on Krome Avenue in the 42 crashes involving fatalities. Fatal crashes occurred in four segments of Krome Avenue as indicated here: Road Segment Crashes Deaths Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 16 26 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 3 4 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 16 21 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 7 8 Of the 42 fatal crashes between 1995 and 2002, 15 were the result of head-on collisions. Another 15 were the result of centerline crossovers, where a vehicle traveling in one direction crossed over the roadway centerline and struck a vehicle traveling in the opposite direction. Crossover collisions differ from head-on collisions in that the point of impact is usually at an angle. Head-on collisions and crossover collisions on Krome Avenue are due at least in part to its configuration as a two- lane, undivided road. Because crashes occurred throughout the 33-mile corridor and not just at intersections, independent transportation engineering consultants retained by FDOT to analyze conditions on Krome Avenue recommended that a safety improvement plan should be considered for the entire corridor. (See paragraphs 18. to 28., below.) Daily traffic volumes on Krome Avenue increased steadily between 1995 and 2001, growing at a rate of over 10 percent per year. In 2001, weekday traffic volumes were approximately 14,000 to 15,000 vehicles between S.W. 8th Street and S.W. 296th Street and approximately 9,000 vehicles between US 27 and Southwest 8th Street, as illustrated in the following table: Road Segment Avg. Daily Traffic 2001 Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 14,100 Long-range traffic projections indicate that by the year 2020, weekday traffic volumes will be between 18,000 and 21,000 vehicles south of S.W. 8th Street, and approximately 12,000 vehicles to the north. No projection suggests that traffic will decrease. Indeed, traffic models for Miami-Dade County have systematically underestimated actual traffic volume. Many intersections on Krome Avenue operate with unacceptable levels of delay, which affect drivers’ overall travel times. These conditions are reasonably expected to degrade over the coming decades. The increased traffic volume and attendant diminution in Level of Service mean that a large percentage of motorists on Krome Avenue are not able to travel at desired speeds. Slow- moving vehicles impede drivers’ forward progress, but because Krome Avenue is a two-lane road with a high volume of traffic traveling in both directions, drivers are not able to pass those vehicles. The result is an increase in driver frustration. The number of head-on crashes on Krome Avenue indicates that many drivers, as they get frustrated, are more willing to attempt risky passing maneuvers. Because passing generally involves higher speeds, crashes that result from risky passing maneuvers are more likely to result in fatalities or severe injuries. The problems associated with driver frustration are further exacerbated by the increasing volume of large trucks on Krome Avenue. The number of trucks as a percentage of overall traffic varies between 26 percent and 32 percent of daily traffic. Trucks contribute to delays at intersections and, thus, to overall delays in travel times. Trucks have difficulty turning off of Krome Avenue, thereby encouraging vehicles to attempt to pass them; those vehicles in turn pose a hazard to oncoming traffic, because they are obscured by the truck. Finally, the high percentage of trucks on the road contributes to an increase in the severity of crashes involving trucks. In general, because of the difference in size and speed between trucks and automobiles, the two types of vehicles should be separated as much as possible especially by a median separating lanes of traffic proceeding in opposing directions. The 1999 Krome Avenue Action Plan In 1999, FDOT produced the Krome Avenue Action Plan (the "Action Plan.") The Action Plan followed by nine years the Florida Legislature's adoption of the FIHS of which Krome Avenue is a part. FIHS standards require that FIHS roadways be designated as controlled access facilities and that they be configured with a minimum of four lanes divided by a restrictive median (the "FIHS Directive"). Attempts to bring Krome Avenue into compliance with the FIHS Directive met with difficulties described in the Executive Summary of the Action Plan: To begin the long-range planning process required to achieve this directive, the Florida Department of Transportation (FDOT) programmed various phases of improvement for Krome Avenue in their tentative work program. This work program was adopted by the Metropolitan Planning Organization (MPO) as the Miami-Dade County Transportation Improvement Plan (TIP) and provides funding for a more detailed study of the corridor. This action set off a string of controversial meetings and hearings regarding the consistency of the TIP, the Miami-Dade County Comprehensive Development Master Plan (CDMP), and local government comprehensive plans. In response to the controversy, the MPO modified their TIP to eliminate consideration of Krome Avenue as a four (4) lane divided roadway with landscaped medians throughout the facility. In February 1997, FDOT began analyzing the Krome Avenue corridor and developing the Krome Avenue Action Plan. During the public involvement process, several alternatives were developed to preserve Krome Avenue as a two (2) lane roadway. The results of sixteen (16) months of public involvement activities and engineering analysis identified the need to preserve the rural character of the corridor while providing safety and operational enhancements to the existing roadway. Joint Exhibit 19, pgs. i-ii, (emphasis supplied). In light of difficulty in reaching "consensus and public acceptance for any improvement alternative," id., p. ii, the Action Plan was conducted "as a precursor to the requisite Project Development and Environment (PD&E) Study to avoid the expenditure of the large sums of public funds in a study effort, with no resulting project." Id. The Action Plan required that Krome Avenue be maintained as a two-lane road, and it recommended improvements, such as adding additional lanes and traffic signals at intersections; implementing an access management plan to limit the number of driveways and cross-street connections to Krome Avenue and to restrict turns off of the roadway; enhancing road shoulders; providing passing zones; adding pedestrian and bicycle facilities; improving pavement markings and signs; and widening the areas from the edge of the roadway that are free of obstructions, known as clear zones, to prevent crashes that result from drivers running off of the road. The Action Plan was premised on traffic volume projections for the year 2010 that were exceeded or were nearly exceeded by the traffic actually observed in 2001, nine years before the final projection. In addition, the amount of traffic observed in 2001 was close to the amount of traffic projected for 2020: Road Segment 2010 KAAP Forecast 2020 KAAP Forecast 2001 Avg. Daily Traffic Okeechobee Rd. (US 27) to Tamiami Trail (SW 8 St.) 9,349 10,475 9,000 Tamiami Trail (SW 8 St.) to Kendall Drive (SW 88 St.) 14,713 16,486 14,800 Kendall Drive (SW 88 St.) to Eureka Drive (SW 184 St.) 14,713 16,486 14,500 Eureka Drive (SW 184 St.) to Silver Palm Drive (SW 232 St.) 12,730- 16,351 13,486- 18321 14,600 Silver Palm Drive (SW 232 St.) to Avocado Drive (SW 296 St.) 11,921- 16,917 12,629- 17,921 14,100 Furthermore, after the Action Plan, that is, after 1999, the number of fatal crashes increased significantly. The increase was noted in an "Existing Level of Service Study" prepared for District VI of FDOT by Kittelson & Associates, Inc., (the "Kittelson Report"). The Kittelson Reports In 2002, FDOT retained Kittelson & Associates (“Kittelson”), independent transportation planning and engineering consultants, to report on Krome Avenue. Kittelson produced two reports in August and October of that year (the "First Kittleson Report" and the "Second Kittleson Report"). The First Kittleson Report is entitled “SR 997/Krome Avenue Existing Level of Service Study” and the Second Kittleson Report is entitled “SR 997/Krome Avenue Future Conditions Analysis and Mitigation Measures.” See Joint Exhibits 15 and 49. The 1999 Action Plan, prepared in the wake of public controversy and concerns regarding consistency between the CDMP and the FIHS Directive, directly addressed those concerns and reached a compromise in the conflict. As stated in the last paragraph of its Executive Summary: Although the improvements in the Krome Avenue Action Plan do not result in a facility that meets all FHS standards, the Action Plan represents the best compromise among a wide range of diverse interests including hundreds of interested residents, agency staff, and elected officials. Joint Exhibit 19 (emphasis supplied). Unlike the Action Plan, however, Kittelson's focus, as stated in the opening sentence of its Executive Summary in the First Kittleson Report, was squarely on level of service and safety issues: "The purpose of this study is to perform a detailed Level of Service and safety analysis for existing conditions along the SR 997/Krome Avenue (177th Avenue) corridor." Joint Exhibit 15, pgs. II and 2. In the Second Kittleson Report, Kittleson summarizes its finding with regard to the increase in the number and severity of crashes on Krome Avenue: . . . [I]t is clear that traffic volume growth and increasing levels of congestion have contributed to driver frustration and attempts to make risky passing maneuvers on Krome Avenue. This has probably led to an increase in the number and severity of crashes in the corridor. Joint Exhibit 49, p. E-V. The Second Kittleson Report recognized that short of widening to a divided, four-lane roadway, there are a number of congestion and safety measures that could be considered to enhance mobility and safety, some of which were recommended by the 1999 Action Plan and some that were in addition to that plan. But the Second Kittleson Report argued for consideration of widening Krome Avenue to a four-lane divided roadway: . . . [T]here are four factors that, in combination, argue for the consideration of widening Krome Avenue to a four lane divided section: The fact that Krome Avenue is on the Florida Intrastate Highway System and the requirement that it be designated as controlled-access facility with a cross-section that provides for at least four lanes with a restrictive median. The likelihood that the high percentage of trucks that use the entire length of the corridor Id. contribute to an increase in crash severity when trucks are involved in crashes. The increasing levels of roadway and intersection congestion and the difficulty in mitigating these levels of congestion short of providing for additional north-south through movement capacity. The crash experience on Krome Avenue exceeds the statewide average for this type of roadway. The high number of crashes and the increase in crash severity (as demonstrated by an increase in the number of fatal crashes largely due to head-on and angle collisions) that likely would be mitigated by physically separating the directions of travel with a median. In a section of the Second Kittelson Report under the heading of "Availability of Passing" Kittelson details the problems with passing on a two-lane undivided Krome Avenue, the contribution these problems make to head-on collisions and the high speeds at which passing maneuvers occur. The report concludes that several measures should be considered to counter safety issues associated with passing maneuvers, among them, the addition of passing lanes and a median separated two-lane section. The first countermeasure recommended, however, is the creation of a four-lane section: A four-lane section eliminates the need for drivers to judge the adequacy of gaps in opposing traffic and use the opposing lane to perform the passing maneuver. The length and placement of a four-lane section can vary (for example, a four-lane section can be located between intersections or on a specific stretch of roadway). It is noted that in areas where access to roadside properties exists or is planned, a four-lane section should be median separated and that left-turn lanes need to be provided to minimize crossover crashes and rear-end crashes. A properly designed four-lane section can be expected to nearly eliminate head-on crashes (a crash type that often results in severe injuries or fatalities) and reduce the total number of roadway crashes associated with passing maneuvers. Joint Exhibit 49 (emphasis supplied). The Second Kittleson Report notes that "[w]hen considering potential countermeasures, it is important to note that one treatment does not have to be applied to the entire corridor." Joint Exhibit 49, p. 36. The reason is that there are a number of issues including safety that should be examined. The Second Kittelson Report reaches the conclusion, therefore, that "[a]n alternative analysis that considers issues such as available right-of-way, environmental impacts, safety benefits, operational benefits, and community concerns should be completed in order to decide what the preferred treatment should be." Id. In light of four factors stated above and specifically, the solution to head-on collisions offered by upgrading a two-lane undivided highway to a four-lane divided highway, Kittelson in the Second Kittleson Report recommends, "that a Project Development and Environment process be conducted to consider the range of solutions for improving the operational and safety characteristics of Krome Avenue." Joint Exhibit 49, p. E-V. The Kittleson reports, therefore, went a step beyond the 1999 Action Plan. They call for improvement of some or all of Krome Avenue to a four-lane section with a restrictive median as one of the solutions, among a range of solutions, to safety on Krome Avenue. Before such an improvement can take place, however, FDOT must conduct a Project Development and Environment Study (a "PD&E Study.") FDOT's Position FDOT is solely responsible for funding and building improvements to Krome Avenue. FDOT has neither a rule nor an un-codified policy that it will not consider funding or building an improvement to a road under its jurisdiction when improvement would be inconsistent with an applicable local comprehensive plan. Nevertheless, as made clear in the 1999 Krome Avenue Action Plan, FDOT is plainly sensitive to undertaking expensive studies necessary to roadway improvements that are inconsistent with local comprehensive plans. A PD&E Study is resource-intensive in time, money and FDOT commitment. Inconsistency with a local comprehensive plan is not a prescription for action on roadway improvement; rather it tends to produce a situation laden with complication as FDOT's District Engineer testified at hearing: (Tr. 768) Q. . . .[I]f this plan amendment which authorizes the widening, on the comprehensive plan, to four lanes, if this amendment is rejected, what happens next? A. . . . [W]e would have to stop and consider the circumstances, the situation, a lot of different factors before we decided whether or not to proceed with the ... study. FDOT has long been aware of safety problems on Krome Avenue. In the wake of the Kittelson Reports commissioned after a rapid rise in life-threatening traffic accidents on Krome suspected to be due, at least in part, to its configuration and a strong recommendation that widening and median placement be considered among a range of improvements, a PD&E Study was not commenced. As of the time of hearing a PD&E Study had still not been commenced. Evacuation Route In considering the data related to safety on Krome Avenue, including the Kittelson Report, the Commission considered Krome Avenue's status as an evacuation route. Since the early 1990s, Miami-Dade County has experienced significant population growth along its southern and western fringes, between the Broward County line and the Homestead/Florida City area. This growth is reasonably expected to continue. Because Krome Avenue is one of only three continuous north-south routes in Miami-Dade County, it is important to persons evacuating the City of Homestead and other surrounding areas in southern and western Miami-Dade County and Monroe County. Krome Avenue is an evacuation route not only for hurricanes but also for “all hazards,” such as a meltdown at the Turkey Point Nuclear Power Plan. Nonetheless, it is not designated by Monroe County as part of the official evacuation route. Krome Avenue had been used to evacuate southern Miami- Dade County during Hurricane Andrew. It had also been used to transport relief personnel, vehicles, and supplies in the aftermath of that storm. Given the growth of Miami-Dade County’s population, the other north-south routes, the Florida Turnpike and US 1, would be extremely congested if all of southern and western Miami-Dade County evacuated—much more so if Monroe County evacuated at the same time. Moreover, it is not only people who live in mandatory evacuation zones who evacuate during an emergency: an increasing number of people evacuate voluntarily. Additional capacity on Krome Avenue is necessary to accommodate both mandatory and voluntary evacuees. Miami-Dade County’s Comprehensive Emergency Management Plan, prepared by the Miami-Dade Office of Emergency Management (“OEM”) in October 2000 and adopted by the County Commission, currently designates Krome Avenue as a primary north-south evacuation route for the Florida Keys and south Miami-Dade, in the event of a hurricane or an emergency related to the Turkey Point Nuclear Power Plant. Designated evacuation routes are roads that OEM encourages people to use in an emergency, and they are selected based on recognizability, carrying capacity, and where they end. To maintain consistency between the Emergency Management Plan and the CDMP, the Plan Amendment amends the map of “Designated Evacuation Routes-2015” in the Transportation Element to add Krome Avenue as a “Major Route.” Monroe County’s Director of Growth Management, Timothy McGarry, opined that Krome Avenue was not necessary to accommodate evacuation from Monroe County, because the Florida Turnpike provided adequate capacity. But McGarry based his opinion on the amount of Monroe County’s population that has historically evacuated, which is 50 percent. McGarry would not say that the Florida Turnpike would provide adequate capacity if 100 percent of Monroe County’s population were to evacuate. Moreover, McGarry conceded that, in formulating his opinion, he had not considered what would happen if both Monroe County and southern Miami-Dade County evacuated at the same time. A four-lane Krome Avenue would increase the capacity of Miami-Dade County’s Primary Evacuation Route System and facilitate relief efforts to south Miami-Dade and Monroe County. Moreover, if residents of both Miami-Dade County and Monroe County are evacuated, the additional capacity would allow OEM to direct Miami-Dade residents to Krome Avenue, thus opening the Turnpike and US 1, which provide the only exit routes from the Florida Keys, for residents and tourists evacuating Monroe County. The CDMP and the UDB Miami-Dade County is one of the only counties in the State of Florida to have an “urban development boundary" (UDB.) In the Land Use Element of the Adopted Components of the Year 2000 and 2010 CDMP dated December, 1988, the UDB is described: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2000 from areas where it should not occur. * * * The CDMP seeks to facilitate the necessary service improvements within the UDB to accommodate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. Joint Exhibit 56-A, pgs. I-35 and I-36. Thomas Pelham, Miami- Dade County's expert in comprehensive planning, explained the difference between a UDB and an Urban Services Area: The urban service area concept is the local government's designation of the areas in which it . . . will provide urban services. The urban growth boundary is a technique by which a line is drawn beyond which urban development will not be allowed. Tr. 662-3. With regard to the UDB, the parties stipulated, The CDMP currently contains policies to discourage urban sprawl and urban development in areas outside the Urban Development Boundary (the "UDB"), particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Pre-hearing Stipulation, p. 14, para. 13. The UDB appears on the CDMP's Adopted 2005 and 2015 Land Use Plan map ("LUP map") as a broken line that on its northern end commences on the border with Broward County. It runs primarily north-to-south along the breadth of developed Miami-Dade County, within several miles of the Everglades and environmentally protected lands, and through the Redland to a point southwest of Florida City and Homestead where it turns sharply east for five to six miles and then heads in a primarily northeast direction around Homestead Regional Airport to meet the coast along Biscayne Bay near Black Point Park. Other counties have at most an “urban service area” or “urban service boundary,” which merely designates the areas in which the government will provide urban services. In contrast to the UDB, an urban service area does not prohibit urban development outside its boundary. A comprehensive plan with an urban services area typically provides only that the landowner, rather than the government, is responsible for providing urban services outside the urban services area. Miami-Dade County had the UDB before the Florida legislature adopted the laws requiring comprehensive plans, in 1985. The UDB thus predates the CDMP, which was adopted in 1988. Neither Chapter 163 nor Rule 9J-5 requires an urban development boundary. In providing a UDB in the CDMP, therefore, Miami-Dade County is making use of a technique to discourage urban sprawl that exceeds the requirements of Chapter 163 and Rule 9J-5. Miami-Dade County has rarely expanded the UDB in areas not designated as Urban Expansion Areas (“UEAs”). In the last 10 years, the UDB has only been expanded once. That amendment, for the Beacon Lakes project, approved an industrial use where rock mining and cement manufacturing had already taken place. All along its path, Krome Avenue is outside (or to the west of) the UDB. The CDMP does not specify any procedures for applications to move the UDB, beyond the requirements applicable to plan amendments generally. Instead, the procedures for moving the UDB are set forth in Section 2-116.1 of the Code of Miami-Dade County Florida (the “County Code”). That section requires an affirmative vote from two-thirds of the total membership of the County Commission. There are no restrictions on how frequently the County Code may be amended. Changes to the County Code may be accomplished by ordinance at any legislative meeting of the County Commission. The entire process can take as little as three months. Changes to the CDMP, by contrast, are subject to more rigorous procedures: applications may only be filed twice a year; they require review by the Regional Planning Council and DCA; they require two public hearings before the Planning Advisory Board; they require two public hearings before the County Commission; and the entire process takes one year. In its “Statement of Legislative Intent,” the CDMP provides: 3. The CDMP is intended to set general guidelines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. * * * 6. The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Pre-Hearing Stipulation, para. 14. The CDMP currently contains substantive policies to discourage urban sprawl and urban development in areas outside the UDB, particularly areas designated Agriculture, Open Land, or Environmental Protection. These policies recognize limited exceptions for the provision of public services and facilities in such areas when necessary to protect public health and safety and serve the localized needs of the non-urban areas. Land Use Objective 1 provides: The location and configuration of Miami-Dade County’s urban growth through the year 2015 shall emphasize concentration and intensification of development around centers of activity, development of well designated communities containing a variety of uses, housing types and public services, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Pre-Hearing Stipulation, para. 15. Land Use Element Policy 1P provides: Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. Pre-Hearing Stipulation, para. 16. Land Use Element Policy 1Q provides: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism related to the area’s agricultural and natural resource base including Everglades and Biscayne National Parks. Pre-Hearing Stipulation, para. 17. Land Use Element Policy 2B provides: Priority in the provision of services and facilities and the allocation of financial resource for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non-urban areas. Pre-Hearing Stipulation, para. 18. Land Use Element Policy 8C provides: Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to promote agriculture as a viable economic use of land in Miami-Dade County. Pre-Hearing Stipulation, para. 19. Land Use Element Policy 8F provides: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objective and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period of headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective 7, herein. Pre-Hearing Stipulation, para. 20. Land Use Element Policy 8G provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of the EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy 7F. The adequacy of non-residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. Pre-Hearing Stipulation, para. 21. Land Use Element Policy 8H provides: When considering land areas to add to the UDB, after demonstrating that a countywide need exists, The following areas shall not be considered: The Northwest Wellfield Protection Area located west of the Turnpike Extension between Okeechobee Road and NW 25 Street, and the West Wellfield Protection Area west of SW 157 Avenue between SW 8 Street and SW 42 Street; Water Conservation Areas, Biscayne Aquifer Recharge Areas, and Everglades Buffer Areas designated by the South Florida Water Management District; The Redland area south of Eureka Drive; and The following areas shall be avoided: Future Wetlands delineated in the Conservation and Land Use Element; Land designated Agriculture on the Land Use Plan map; Category 1 hurricane evacuation areas east of the Atlantic Coastal Ridge; and The following areas shall be given priority for inclusion, subject to conformance with Policy 8G and the foregoing provision of this policy: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Land contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Pre-Hearing Stipulation, para. 22. Interpretation of the LUP Map: Policy of the Land Use Element provides: Urban Development Boundary (p. I-45) The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2005 from areas where it should not occur Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process . . . . [U]rban infrastructure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be permitted only if such roadways are shown on the LUP map and in the Transportation Element. . . . Concepts and Limitations of the Land Use Plan Map: Coordinated-Managed Growth (p. I- 59) [C]ritical in achieving the desired pattern of development is the adherence to the 2005 Urban Development Boundary (UDB) and 2015 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that the actions of one single- purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. Concepts and Limitations of the Land Use Plan Map: Ultimate Development Area (p. I- 64) The 2005 and 2015 Land Use Plan map identified the areas that will be urbanized within those time frames. As indicated throughout this Plan, these are the areas of the County where financial resources should be directed from the maintenance and construction of urban infrastructure and services. Growth of Dade County, however, is not projected to cease after the year 2015. Therefore, prudent long-term planning for infrastructure may need to anticipate locations for possible future extension. For example, it may be desirable to reserve rights-of-way in certain growth corridors as well as on section, half-section, and quarter-section lines, well in advance of need so that opportunities to eventually provide necessary roadways are not irrevocably lost. It is difficult to specify where and how much of Dade County’s total area may ultimately be converted to urban development. . . . It is reasonably safe to assume, however, that the areas least suitable for urban development today will remain least suitable. Theses areas include the remaining high-quality coastal and Everglades wetland areas in the County, and the Northwest Wellfield protection area. The areas more appropriate for, and more likely to experience sustained urban pressure are the heavily impacted, partially drained wetlands in the Biscayne-Snake Creek and Bird-Trail Canal Basins, the agricultural areas of southwestern and southeast Dade, and the impacted wetlands south of Homestead and Florida City. When the need for additional urban expansion is demonstrated after the year 2015, such expansion should be carefully managed to minimize the loss of agricultural land and to maximize the economic life of that valuable industry. Accordingly, urban expansion after the year 2015 in the South Dade area should be managed to progress westerly from the Metrozoo area to Krome Avenue north of Eureka Drive, and on the west side of the US 1 corridor southerly to Homestead only when the clear need is demonstrated. . . . Pre-Hearing Stipulation, para. 23 (emphasis supplied). Of particular import to this proceeding, Policy 4C of the Traffic Circulation Subelement requires avoidance of improvements which encourage development in certain areas. With regard to development in Agriculture and Open Land areas, transportation improvements which encourage development are to be avoided but avoidance is subject to an exception, "those improvements necessary for public safety and which serve the localized needs of these non-urbanized areas." Areas designated Environmental Protection, on the other hand, are to be "particularly avoided." Policy 4C of the Traffic Circulation Subelement provides: Dade County’s priority in the construction, maintenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan map. Second priority in transportation allocations shall support the staged development of the urbanizing portions of the County within the Urban Expansion Area. Transportation improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. Areas designated Environmental Protection shall be particularly avoided. Pre-Hearing Stipulation, para. 24 (emphasis supplied). Policy 1A of the Water and Sewer Sub-element provides: The area within the Urban Development Boundary of the Land Use Plan map shall have the first priority in providing potable water supply, and sanitary sewage disposal, and for committing financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Land, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health, safety or welfare. Pre-Hearing Stipulation, para. 25. Policy 1H of the Water and Sewer Sub-element provides: New water supply or wastewater collection lines should not be extended to provide service to land within the areas designated Agriculture, Open Land or Environmental Protection on the Land Use Plan map. New water or wastewater lines to serve land within these areas should be approved or required only where the absence of the facility would result in an imminent threat to public health or safety. The use of on- site facilities should be given priority consideration. In all cases, facilities should be sized only to service the area where the imminent threat would exist, to avoid inducing additional urban development in the area. This policy will not preclude federal, State or local long-range planning or design of facilities to serve areas within the Urban Development Boundary (UDB) or Urban Expansion Area (UEA). Public health and safety determinations will be made in accordance with Chapter 24 of the Code of Miami-Dade County (Environmental Protection) and Section 2-103.20, et. seq., (Water Supply for Fire Suppression) Code of Miami-Dade County. Pre-Hearing Stipulation, para. 26. Policy 5A of the Capital Improvements Element provides: As a priority, previously approved development will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority for investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs. Pre-Hearing Stipulation, para. 27. The Plan Amendment The Plan Amendment consists of several components grouped as follows: a. changes in Plan designations in the Land Use Element on the LUP map and in the Traffic Circulation Subelement that increase the lanes on a segment of Krome Avenue from 2 lanes to 4 lanes (the "Lane Increase Changes"); b. changes in the Transportation Element's Traffic Circulation Subelement that add Krome Avenue as a Major Route in the Designated Evacuation Routes 2015 (the "Evacuation Route Change"); c. addition of new policies that require among other matters a super-majority of the County Commission for zoning action or amendment to the CDMP that would approve certain uses within one mile of Krome Avenue designated for improvement to four lanes (the "New Super-Majority Policies"); and d. addition of a new policy that requires adoption of a binding access control plan for the Krome Avenue corridor before capacity improvements to Krome Avenue outside the UDB (the "New Binding Access Control Plan Policy"). The parties stipulated to the following narrative description of the Plan Amendment: 31. As part of the October 2002 Plan Amendment, the County Commission approved Application 16. Application 16 made the following changes to the CDMP: Changed the Plan designations of Krome Avenue (SR 997/SW 177 Avenue), between US 27 and SW 296 Street, as follows: In the Land Use Element, on the Land Use Plan map change from Minor Roadway (2 lanes) to Major Roadway (3 or more lanes); and in the Transportation Element, Traffic Circulation Subelement, Figure 1, “Planned Year 2015 Roadway Network”: Change from 2 lanes to 4 lanes. In the Transportation Element, Traffic Circulation Subelement, added Krome Avenue between US 27 and US 1 to Figure 7, Designated Evacuation Routes 2015, as a Major Route. Added the following new Policy 3F to the Land Use Element: Any zoning action or amendment to the CDMP that would approve any use other than direct agricultural production and permitted residential uses of property, in an area designated as Agriculture, whether as a primary use or as an accessory or subordinate use to an agricultural use, or action that would liberalize standards or allowances governing such other uses on land that is a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. The term “direct agricultural production” includes crops, livestock, 15 nurseries, groves, packing houses, and barns but not uses such as houses of worship, schools, sale of produce and other items, and outdoor storage of vehicles. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3G to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than limestone quarrying, seasonal agriculture or permitted residential use in an area designated as Open Land on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 3H to the Land Use Element: Any zoning action, or amendment to the Land Use plan map that would approve a use of property other than seasonal agricultural use in the Dade-Broward Levee Basin or permitted residential use in an area designated as Environmental Protection, on land that is, a) outside the Urban Development Boundary (UDB), and b) within one mile of the right-of-way line of any portions of Krome Avenue designated in this Plan for improvement to 4-lanes, shall require an affirmative vote of not less than five members of the affected Community Zoning Appeals Board and two-thirds of the total membership of the Board of County Commissioners then in office, where such Community Zoning Appeals Board or Board of County Commissioners issues a decision. This policy is not intended to permit any use not otherwise permitted by the CDMP. Any modification to this section to allow additional uses within the one mile distance from Krome Avenue shall require an affirmative vote of not less than two-thirds of the Board of County Commissioners then in office. Added the following new Policy 4E to the Traffic Circulation Subelement: Notwithstanding the designation of Krome Avenue as a Major Roadway on the CDMP Land Use Plan Map or as a four-lane roadway in the Traffic Circulation Subelement, no construction associated with the four- laning, or other capacity improvement, of Krome Avenue outside the Urban Development Boundary shall occur until FDOT has prepared, and the Board of County Commissioners has adopted, a detailed binding access control plan for the Krome Avenue corridor. This plan should emphasize access to properties fronting Krome Avenue primarily through alternative street locations. Pre-hearing Stipulation, para. 28. Land Uses Near Krome Avenue North of S.W. 56th Street, the bulk of land uses around Krome Avenue are Environmental Protection and Open Land with almost all of the adjacent land north of US 41 designated Environmental Protection. South of S.W. 56th Street the land is designated as Agriculture and Environmental Protection except for near Homestead and Florida City where the land use designations are Residential Communities (of mostly low density), Business and Office and some Industrial and Office. Krome Avenue currently provides the western boundary of an Urban Expansion Area (UEA) for the year 2015 between what would be an extension of S.W. 42nd Street and an extension of S.W. 112th Street. The CDMP directs that urban infrastructure and services be planned for eventual extension into the UEA, as far west as Krome Avenue, sometime between 2005 and 2015. In addition, the area two miles east of Krome Avenue, between S.W. 12th Street and S.W. 8th Street, is designated as UEA. What the Plan Amendment Does Not Do Of particular import to this proceeding, given the case presented by Petitioners, is what the Plan Amendment does not do. The Krome Avenue Amendment does not change any land uses. It does not alter the existing Conservation Element or any other CDMP policies that protect environmental resources. It does not add Krome Avenue to the Capital Improvements Element or provide funds for or authorize construction on Krome Avenue. Furthermore, any future attempt to change land use in the vicinity of Krome Avenue, if anything, will be more difficult because of the New Supermajority Land Use Policies contained in the Plan Amendment. The New Supermajority Policies work in tandem with the substantive policies to provide the standards for land use changes within one mile of Krome Avenue designated for improvement to four lanes. For example, existing Land Use Policy 8H states that the areas surrounding Krome Avenue, particularly areas west of the road, be avoided or not be considered if Miami-Dade County proposes expanding the UDB. Because the only procedural requirements for moving the UDB are currently contained in the County Code, which may be amended from time to time, adding the Supermajority Requirement to the CDMP with its more rigorous amendment procedures, tends to make it more difficult to change the planning and zoning designations on a property. The Lane Increase Changes There are serious safety problems that rise to the level of literally "life-or-death" on the segment of Krome Avenue subject to the Lane Increase Changes. The Lane Increase Changes do not mandate that the portion of Krome Avenue that they govern be four-laned. They simply allow four-laning if a PD&E Study is conducted by FDOT that determines four-laning is the best way to address the safety issues. While the Lane Increase Changes give a designation to the Changed Segment of Krome Avenue that would allow it to be four-laned, it will not be four-laned until it is determined on the basis of further study in the future that four-laning is the best alternative for improving the Changed Segment. The Lane Increase Changes, without regard to the New Supermajority Policies, are supported by adequate data and analysis. This data and analysis consists of studies and commentaries by FDOT, including the Kittelson Reports and the 1999 Action Plan. The Lane Increase Changes do not authorize construction of improvements to the road. They do not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." (Tr. 671) It is only actual development that would cause potential urban sprawl that might threaten agriculture or pose a danger to the Everglades. Before any development could take place, additional amendments would have to be made to the CDMP. Those amendments would be subject to the same process as the Plan Amendment has undergone and is now undergoing. In other words, the potential dangers feared by Petitioners could not materialize without adoption of additional plan amendments. Furthermore, the fears held by Petitioners are mitigated by the New Supermajority Policies. DCA Review The entire package of amendments in the second round of 2002 for the CDMP, which included Application 16, is referred to by DCA as "Miami-Dade County 02-2 Proposed Comprehensive Plan Amendments." See Joint Exhibit 11. Initial staff review of Miami-Dade County 02-2 culminated in a August 5, 2002 memorandum (the "Pre-ORC Staff Analysis Memorandum") to the Chief of the Bureau of Comprehensive Planning from a Senior Planner. The staff analysis is summarized in the memorandum: Staff has identified two potential ... objections with the Krome Avenue (FIHS facility) segment[5] amendment concerning internal inconsistency with the CDMP objectives and policies, and lack of supporting data and analysis addressing public safety. Joint Exhibit 11, p. 1. With regard to the "safety" data and analysis, staff wrote, "the amendment is not supported with adequate data and analysis which demonstrates consistency with the CDMP policies which allow for capacity improvements outside the Urban Development Boundary (UDB) only upon showing the amendment is 'necessary' to address public safety." Id., p. 3. The CDMP objectives and policies were summarized as follows: The corridor runs through Agriculture and Open Land use categories. In order to promote the agricultural industry, the CDMP clearly states, under its Agriculture land use category, facilities which support or encourage urban development are not allowed in the amendment area. The subject segment of the roadway currently runs north-south through an extensive area of active farmlands, except the northern portion between US 41 (SW 8th Street) and SW 56th Street which is designated as Open Land in the CDMP's FLUM. The CDMP also states that Open Land designated land, is not simply surplus undeveloped land, but rather land that is Id. intended to serve for production of agriculture, limestone extraction, resource- based activity such as production of potable water supplies or other compatible utility and public facilities or rural residential development at no more than 1 du/5 acres. The amendment area is also a prime candidate for conservation, enhancement of environmental character, and for acquisition by federal, state, regional, county or private institutions that would manage the areas for optimal environmental functions. Beyond SW 8th Street to Okeechobee Road is the environmental and wellfield protection areas through which the upper Krome Avenue runs. One mile west of the segment is the Everglades National Park Expansion Area (Attachment 3) which is authorized by the Congress for federal acquisition. Agriculture is the existing primary use of the corridor area as shown in (Attachment 4). The concern with regard to inconsistency was expressed in this way: Id. Staff is concerned that expansion of Krome Avenue will increase market pressure in the western MSA's within the UDB, resulting in the premature extension of the UDB. Staff concurs with County staff that the widening will cause appraisals to increase property values in the corridor, causing farmers to sell agricultural lands for urbanization. It is also likely that property values will increase on environmental/open lands which should be maintained for water management, resource protection and other functions related to Everglades protection. Within two weeks of the Pre-ORC Staff Analysis Memorandum, DCA issued the ORC Report. In a cover letter, Bureau Chief Charles Gautier wrote the following synopsis of the ORC: The Department is concerned that the widening of Krome Avenue or a segment of it will undermine the County's ability to control urban sprawl and impacts to agriculture and environmental lands. While we share concerns regarding accidents and fatalities on Krome Avenue, we recommend that the County fully evaluate all possible alternatives designs, including implementation of the FDOT 1999 Krome Avenue Action Plan, before considering the four lane option to address public safety. Department staff is available to assist your staff as they formulate the County's responses to the objections and recommendations for the amendment. Joint Exhibit 20, 1st page of the cover letter dated August 16, 2002. Miami-Dade County responded to the ORC Report by clarifying its interpretations of provisions in the CDMP, particularly LUE 2B, and by providing additional data and analysis. Department staff struggled with the response, but ultimately concluded that Miami-Dade County's interpretations were defensible and recommended the Plan Amendment be found in compliance. See Joint Exhibit 16. On December 18, 2002, the Department wrote to Miami- Dade County that it had determined the Plan Amendment to be in compliance. Accordingly, a Notice of Intent to determine the Plan Amendment in compliance was published in the Miami Herald on December 20, 2002. The Petition After the issuance of the notice of intent by the state land planning agency (DCA) to find the Plan Amendment in compliance, this proceeding was initiated by the filing of a petition as allowed by Section 163.3184(9)(a), Florida Statutes. The petition was filed by Sierra Club and John S. Wade and joined by Intervenor, Monroe County. The issues presented by the petition that remain after the parties entered a preheating stipulation filed with DOAH are stated in a section of the stipulation entitled, "D. Issues of Law and Fact That Remain to Litigated." Material Issues of Ultimate Fact While not exhaustive, the parties agree that the following are the major issues of disputed fact: Whether the amendment is consistent with legal provisions concerning the discouragement of urban sprawl. Whether the amendments will have a material impact on the agricultural industry in south Miami-Dade County. Whether the amendments will have a material impact on the restoration of the Everglades. Whether the plan amendments is necessary to address public health and safety and serve localized needs. Issues of Law Whether the Plan Amendment is in compliance. Whether the Plan Amendment maintains the Plan's internal consistency and reflects the plans goals, objectives and policies, per 163.3177(2) Rule 9J-5.005(5)(a)&(b), F.A.C., specifically in regard to: Transportation Element Policy 4C. FLUE Policy 2B. FLUE Policy 8F. Transportation Element(TE) Policy 4C. FLUE Policy 3B. Whether the Plan Amendment is supported by data analysis as required by Sections 163.3177(6)(a), (8), and (10)(e), Fla. Stat. and Rules 9J-5.005(2) and (5), F.A.C. Whether the Plan Amendment is inconsistent with Fla. Admin. Code Rules 9J- 5.006(5)(g)(1)-(10) and (13), and Rules 9J- 5.006(5)(h), (i), and (j)(6), (18), and (19) because it fails to coordinate future land uses with the appropriate topography and soil conditions, and the availability of facilities and services; ensure the protection of natural resources; and discourage the proliferation of urban sprawl. Whether the Plan Amendment is inconsistent with Rule 9J-5.019(3)(d), (f), (i) and 9J-5.019(4). Whether the Plan Amendment is inconsistent with Rule 9J-5.005(6), FAC because it fails to establish meaningful and predictable standards for the use and development of land and fails to provide meaningful guidelines for the content of more detailed land development and use regulations that would prevent the urban sprawl and impacts to agricultural, rural and environmentally sensitive lands caused by the four-laning of Krome Avenue. Whether the Plan Amendment is inconsistent with Sections 163.3177(6)(a)- (g), (8) & (10(e), Fla. Stat. Whether the Plan Amendment is inconsistent with the Strategic Regional Policy Plan of the South Florida Regional Planning Council as a whole, and directly conflicts specifically with: Strategic Regional Goal 2.1 (1) Policy 2.1.4 (2) Policy 2.1.10 (3) Policy 2.1.14 Strategic Regional Policy 2.2.1 Strategic Regional Policy 3.9.1 Whether the Plan Amendment is inconsistent with the State Comprehensive Plan as a whole, including: Goal 15 (a) (LAND USE); Policy 15(b)1; Policy 15(b)6 Goal 16(a) & (b)(URBAN DOWNTOWN REVITALIZATION) Goal 17(a) (PUBLIC FACILITIES); Policy 17(b)1 Goal 19(a); Policy(b)12 Goal 22(a) & (b) (AGRICULTURE) Pre-hearing Stipulation, Section D. The Parties The Sierra Club is a national organization with close to 800,000 members. Qualified to do business in the State of Florida, 30,000 or so of the Sierra Club's members are in its Florida Chapter. About 2800 Sierra Club members live and work in Miami-Dade County where the Miami Group of the Florida Chapter of the Sierra Club holds regular meetings. The Miami Group is a "wholly owned subsidiary . . of the national organization." (Tr. 235) "[A]s opposed to some other organizations which may have separate chapters . . . separately . . . incorporated in their local jurisdictions," the Miami Group, the Florida Chapter and the national organization of the Sierra Club "speak with one voice . . . ." Id. Organized to explore, enjoy and protect particular places around the globe, to practice and promote the responsible use of the earth's ecosystem, to educate and enlist humanity to protect and restore the quality of the natural and human environment and to use all lawful means to carry out these objectives, the Sierra Club has taken numerous actions in support of restoration and preservation of the Everglades. The Sierra Club has been involved on many occasions in growth management issues in different parts of the state. It is particularly concerned about public policy issues that affect Miami-Dade County, including increased urban sprawl, the loss of agricultural lands, clean water, clean air, open space, parks and recreation and the associated loss of quality of life. A substantial number of Sierra Club members use areas surrounding Krome Avenue to recreate and regularly traverse the area on their way to the Everglades, Biscayne National Park, and Florida Keys National Marine Sanctuary as well as using the area for biking, hiking, bird watching, and picking tropical fruits and vegetables. A substantial number of members also regularly use and enjoy Everglades National Park and Florida Bay and use Krome Avenue en route to these destinations. Representation of its members' interests in administrative proceedings to enforce growth management laws is within the corporate purposes of Sierra Club. In keeping with its purposes, the Sierra Club commented to the Board of County Commissioners regarding the Plan Amendment between the time of its transmittal to DCA and its adoption. John S. Wade, Jr., operates an interior foliage or a "container" nursery business at 20925 S.W. 187th Avenue "in the center of the Redlands area," tr. 210, one mile due west of Krome Avenue. Mr. Wade has been extensively involved in county planning issues for many years. A member of the Sierra Club, he is also an individual Petitioner in this proceeding. Mr. Wade commented to the Board of County Commissioners regarding the Plan Amendment between the time of transmittal to DCA and their adoption. Mr. Wade believes that the Plan Amendment affects his interests in that it will have a negative impact on wildlife which he enjoys and on his nursery business. The parties stipulated that Mr. Wade is an "affected person" with standing to bring and maintain this action under Section 163.3184, Florida Statutes. Roads and Land Use: General Impact Chapter 163, Florida Statutes, establishes an important link between planned road infrastructure and future land use decisions. The future transportation map, furthermore, plays a critical role in the future land use pattern of a local government, particularly with regard to roadways. The impact of a road-widening amendment is relevant to land use or environmental policies. There is, moreover, no question that improved or expanded transportation infrastructure does nothing to diminish the potential for development in surrounding areas as a general matter. In general, widening a roadway promotes development in surrounding areas served by the roadway. Growth management laws, therefore, generally discourage the provision of roadway capacity in areas where a local comprehensive plan discourages development. The general principles of the effects of roadway capacity and improvements to roadway infrastructure, including road widening, are also reflected in the State Comprehensive Plan, the Regional Policy Plan, Florida Administrative Code Chapter 9J5, and the CDMP, itself. Petitioners and Monroe County emphasize this point in the following paragraphs of their proposed recommended order now found as fact in this Recommended Order: []. Goal 19(a) of the SCP requires that future transportation improvements aid in the management of growth. Fla. Stat. 187.201(19)(a). []. Policy 19(b)(12) of the SCP requires that transportation improvements in identified environmentally sensitive areas such as wetlands be avoided. Fla. Stat. 187.201 (19)(b)(12). The Regional Policy Plan states that "roadways also aid in attracting development to new areas." Jt. 7@ 36. Rule 9J5 recognizes limits on extending infrastructure as a development control that can inhibit sprawl. Conversely, making improvements or extensions to infra- structure [when considered in isolation] can encourage urban sprawl. Darst V9@ 972. The CDMP's data and analysis contains the following language: Concepts and Limitations of the Land Use Plan Map: Coordinated- Managed Growth (p. I-59) "Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard, the UDB serves as an urban services boundary in addition to a land use boundary.Consistency with the CDMP will ensure that the actions of one single-purpose agency does not foster development that could cause other agencies to subsequently respond in kind and provide facilities in unanticipated locations. Such uncoordinated single- purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives." (Pre- Trial Stip. @ 18) (emphasis added) Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 7. Miami-Dade County, the Department and the City of Homestead do not contend otherwise. In the words of Thomas Pelham, distinguished expert in comprehensive planning whose testimony was presented by Miami-Dade County, the transportation map is "always relevant" (tr. 709) to issues of encouragement and discouragement of urban development. Furthermore, as Miami-Dade County concedes and as Mr. Pelham testified, new roads and improvements in roadway infrastructure "can aid in attracting development in new areas anywhere." Tr. 713 (emphasis supplied). For that basic reason, if a local government adopts a plan amendment that increases roadway capacity and the intent is not to attract development to the area around the roadway, the local government may opt to adopt additional protective policies. For example, in such a situation, the local government could take a clarifying step toward discouragement of urban development in areas served by the roadway planned for improvement: simultaneous adoption of a policy that prohibits consideration of the additional planned capacity of a roadway in subsequent future land use map decisions. Such an additional policy was not adopted as part of the Plan Amendment. In Mr. Pelham's opinion, however, it was not necessary, because of "the strong policies that already exist in the [CDMP]." Tr. 714. These strong policies include, of course, the existence of the UDB, a planning concept associated with Miami-Dade County in a unique manner in the State of Florida due to its strength and the length of existence over time. They also include CDMP policies related to lands designated as "Agriculture" or "Environmental Protection" whose purpose is to preserve and protect. The impact of roads on land use patterns in general, moreover, does not necessarily translate into expected impact in any specific case because of facts peculiarly associated with the specific case. As Mr. Pelham testified, "[t]here is absolutely nothing inconsistent with the four-lane divided highway in rural areas and agricultural areas. We have them all over the country, and in fact, you can identify numerous ones in this state alone." Tr. 676. Three prominent examples in Florida of four-lane divided highways that have not led to development were provided at hearing: Alligator Alley (the segment of Interstate 75 known also as Everglades Parkway) that stretches nearly the width of the Florida Peninsula from Collier County not far from the City of Naples at its western terminus through Big Cypress National Preserve across the boundaries of the Miccosukee Indian Reservation and the Big Cypress Seminole Indian Reservation into Broward County on the east; the Florida Turnpike running from deep in South Florida northward and westerly to Wildwood in Sumter County; and Veteran's Parkway, US 19, from Pasco County to Crystal River "that goes through vast stretches of rural and agricultural lands . . . ." Tr. 677. The construction of these four-lane divided highways have not promoted urban development in lands immediately adjacent to significant sections of these highways. That these highways did not promote urban development flows from their purpose. Their purpose, quite simply, is other than to support urban development. Their purpose is to provide efficient commercial transportation and to be safe for the transportation of people or as expressed at hearing, "to be conduits for people to go from one [point] to another without interruption in an efficient manner." Id. Furthermore, access to these rural, divided four-lane highways is restricted or tightly managed for several reasons. One of the benefits of restricted access is that it discourages urban development. While Miami-Dade County did not adopt a policy that a widened Krome Avenue was not to be taken into consideration in subsequent decisions to amend the future land use map, as Petitioners suggest it could have, New Transportation Policy 4E was added to the Plan Amendment in order to discourage urban development. That policy requires a detailed, binding controlled access plan for the Avenue corridor to be prepared by FDOT and adopted by Miami-Dade County prior to the commencement of any construction associated with four-laning or a capacity improvement. Adoption of such an access control plan will have a deterrent effect on urban development along whatever part of Krome Avenue may at some point in the future be widened to four lanes. The effect of the adoption of a binding access control plan was explained at hearing by Mr. Pelham: It means that most of the traffic on it is not going to be entering or leaving the highway to shop at retail commercial establishments or to go into office parks to work, or to frequent any of the other kinds of urban development that could spring up along the road. It will be a deterrent to anyone who wants to seriously talk about locating a business there because they're going to realize that the public does not have readily easy access to it. [New Transportation Policy 4E] will certainly help insure that [Krome Avenue] remains a primarily rural facility rather than the typical urban highway that's lined with urban development. Tr. 679. From a planning perspective, in addition to being an impediment to urban development, the New Binding Access Control Plan Policy is also a sufficient guideline to discourage urban development. Incorporation of the professional land planning concept of access control makes the policy clear to transportation planners and FDOT and to any party or entity called on to implement the plan especially when the last sentence of the new policy is considered: "[The binding access control plan] should emphasize access to properties fronting Krome Avenue primarily through alternative street locations." This sentence indicates that while access to Krome Avenue is not prohibited, access is to be governed by "a strictly limited access plan," tr. 681, a "strong benefit [of the Plan Amendment] and a strong disincentive or deterrent to urban development." Tr. 679. Urban Sprawl Internal DCA memoranda and the ORC Report reflect a concern by Department staff that the re-designation of Krome Avenue could encourage urban sprawl with serious negative impacts to the Redland and agricultural lands and the Everglades and areas designated to be protected environmentally. The concern of staff is not to be taken lightly. Re- designation of Krome Avenue as a Major Roadway with four-lane capacity will allow parties who seek to develop along Krome Avenue in the future to point to the new "planned" capacity as a factor in support of an amendment to the CDMP that would allow such development. "That's a . . . common argument for why a plan amendment . . . increasing densities in that area . . . [would be] appropriate." Tr. 494. The planned roadway will be more than just fuel for argument. According to Charles Pattison, Petitioners' comprehensive planning expert with significant credentials and experience, the planned capacity increase is without doubt a "key factor," tr. 494-5, for consideration of decision-makers in support of future CDMP amendments that allow urban development. Still, the existing policies that protect agricultural and environmentally sensitive lands, including the UDB and related policies, will also have to be taken into consideration. So will the results of FDOT's PD&E Study and the actual improvement undertaken under the guidance of the study by FDOT, if any, and in whatever form it may take. The policies should not fail to protect agricultural and environmentally protected land merely because of this plan amendment. The policies will not cease to be operative because of the re- designation of Krome Avenue even if FDOT ultimately decides to improve Krome Avenue by widening all or part of it to four lanes. Stated alternatively, in Mr. Pelham's words, existing policies "militate strongly against any urban development ... [outside] the urban growth boundary." Tr. 675. For this reason, among others, Mr. Pelham characterized the concerns of DCA staff and the fears of Petitioners, as "sheer speculation, suspicion and mistrust of . . . government . . . [of] a county that has a strong record of not extending its urban growth boundary." Id. Furthermore, it must be kept in mind what the re- designation of Krome Avenue does and does not do. It does not constitute the ultimate decision or authorization necessary to widen or improve the capacity of Krome Avenue. It does not "even attempt to permit increased development rights or densities or intensities on any of the surrounding land." Tr. 671. It is that development which "would cause potential urban sprawl problems that might threaten agriculture, that, theoretically, might pose a danger to the Everglades." Id. Development of that property would require plan amendments, vulnerable to challenges like this one and subject to scrutiny under the Growth Management Laws, Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J5. Amendment of the CDMP, therefore, to "allow widening of an existing road to address safety or congestion or level of service or evacuation problems, in and of itself, does not pose any of those threats or harms." Tr. 672. Rule 9J5 Urban Sprawl Indicators Urban sprawl is evaluated according to 13 "primary indicators" set forth in Florida Administrative Code Rule 9J- 5.006(5)(g) (the "Primary Indicator Rule.") Applying the Primary Indicator Rule, the Department analyzes first, "within the context of features and characteristics unique to each locality" whether a plan amendment "trips" or "triggers" any of the 13: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Fla. Admin. Code R. 9J-5.006(5)(g). If a plan amendment trips or triggers one or more of the Primary Indicators, the Department then considers the extent to which the tripped indicators suggest that the amendment does not discourage the proliferation of urban sprawl, or put conversely, induces sprawl. If the Department determines from review of the tripped indicators that the amendment does not discourage urban sprawl proliferation or in induces sprawl, then it turns its attention to the development controls in the comprehensive plan or in the proposed plan amendment. Evaluation of the development controls is made to determine whether they offset the amendment's inducement of urban sprawl. If the inducement is not sufficiently offset by development controls, then, the Department determines the amendment is not: consistent with relevant provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, F.S., and the remainder of [Florida Administrative Code Chapter 9J-5] regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources. Fla. Admin. Code R. 9J-5.006(5)(a). It is possible that if only a few of the 13 Primary Indicators were clearly "tripped" then a determination could be made that a plan amendment "does not discourage the proliferation of urban sprawl." Normally, however, if few primary indicators are tripped, "it's going to be a tough argument to make that [there is] sprawl inducement." Tr. 919. The Department's Position re: Primary Indicators The Department's position is that the Plan Amendment does not trip in any way 10 of the 13 primary indicators listed in the Primary Indicator Rule. The main reason they are not tripped, in its view, is because the amendment, in and of itself, does nothing more than plan for the improvement of Krome Avenue up to a capacity of four lanes. For example, the first primary indicator is whether the plan amendment "[p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need." Fla. Admin. Code R. 9J-5.006(5)(g)1. As Mr. Darst testified, "[T]his is an amendment for the widening of the road and it's not a land use amendment." Tr. 913-4. In and of itself, the amendment does not allow or designate any development. Primary Indicator 4 is not tripped because "premature or poorly planned conversion of rural land to other uses" is not at issue in this case. An analysis of Primary Indicator 5 can only take place "within the context of features and characteristics unique" to Miami-Dade County, including the UDB and the protective policies of the CDMP and the Plan Amendment, itself. Primary Indicators 9 through 13, are not tripped. Primary Indicators 9 through 12 are not relevant to this case. Primary Indicator 13 is not tripped because although small amounts of functional open space might be taken for widening Krome Avenue, the amount would not be significant relative to the amount of functional open space adjacent to Krome Avenue. Of the other three primary indicators tripped in the Department's view by the Plan Amendment, they are tripped only minimally. Primary Indicator 6 is tripped because with Krome Avenue widened "trips shift there from another road," tr. 916, so that maximum use is not made of the other road, an existing public facility. The same is true of Primary Indicator 7, which relates to future public facilities. Primary Indicator 8 is tripped because funds will have to be expended to construct any widening and because of an increase in law enforcement expenses. The involvement of Primary Indicator 8, however, is minimal and without significant impact. Despite the Department's position, the re-designation of Krome Avenue, at a minimum, has at least the potential to "promote" development so as to trip Primary Indicators 1, 2, and As Mr. Pattison testified, the planned increased capacity of Krome Avenue is, by the very nature of increased roadway capacity, a key factor for consideration of proposed amendments that would allow increased development of lands surrounding Krome Avenue. Whether the Plan Amendment is not in compliance for failure to comply with urban sprawl requirements depends on whether the tripped Primary Indicators are offset by development controls. Development Controls Florida Administrative Code Rule 9J-5.006(5)(j, (the "Development Controls Rule") states "[d]evelopment controls in the comprehensive plan may affect the determination in (5)(g) above," that is, whether a plan amendment does or does not discourage the proliferation of urban sprawl. Determination that urban sprawl indicators have been tripped, therefore, is not, standing alone, sufficient to find that a plan amendment fails to discourage urban sprawl. The Development Controls Rule lists 22 types of development controls to be evaluated to determine how they discourage urban sprawl. The CDMP contains development controls to discourage urban sprawl and development in areas designated Agriculture, Open Land or Environmental Protection. They are the UDB, see Florida Administrative Code Rule 9J-5.006(5)(j)21., and the two policies related to it: Land Use Element Policies 8G and 8H. Evaluation of the development controls in the CDMP leads to a determination that the tripped Primary Indicators, Primary Indicators 1, 2, and 3, triggered by the Plan Amendment's potential to promote development that could lead to urban sprawl and Primary Indicators 6, 7 and 8, all "minimally" tripped, are offset by the development controls. Furthermore, the Plan Amendment, itself, contains additional policies that constitute development controls: the New Land Use Policies requiring super-majorities of the Board of County Commission for approval of re-designations near Krome Avenue and the New Binding Access Control Plan Policy. See Fla. Admin. Code R. 9J-5.006(5)(j)15. and 22. Petitioners view the New land Use Policies as inadequate development controls because they do not set forth measurable or predictable standards to govern county commission decisions. Other than to require super-majorities for re- designation of land uses near Krome Avenue ("procedural" standards), the New Land Use Policies do not contain standards that govern county commission decisions. But there are a plethora of standards elsewhere in the CDMP. These other standards have been determined to be meaningful and predictable and there is nothing in the New Land Use Polices that allows the commission to disregard them. New Policy 4E which requires an access control plan prepared by FDOT prior to construction of any capacity improvement to Krome Avenue is viewed by Petitioners as "so vague as to fail to meet the definition of an objective or policy or to provide meaningful or predictable standards." Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 18. But a reading of the policy contradicts the allegation. Meaningful and Predictable Standards Petitioners allege that the Plan Amendment is inconsistent with land use policies requiring coordination with the surrounding environment and requiring meaningful standards for more detailed regulations, and, therefore, that it is inconsistent with Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(6). The CDMP contains meaningful and predictable restrictions on land use in areas designated Agriculture, Open Land and Environmental Protection. The Plan Amendment does nothing to deter those restrictions. Furthermore, among new policies in the Plan Amendment is the addition of procedural safeguards to the substantive criteria, thereby strengthening the existing standards. The Plan Amendment, therefore, retains meaningful and predictable standards for more detailed regulation, and if anything, strengthens the chance for their application to protect lands designated Agriculture, Open Land and Environmental Protection. Increasing Land Values and Speculation Petitioners argue that widening Krome Avenue to four lanes will adversely affect farming in the Redland and the Everglades by increasing land values and speculation. These arguments do not take into account that regardless of improvements to Krome Avenue, most of the area north of 42nd Street has little appeal to developers. Its designation as Environmental Protection makes it difficult if not impossible to develop. Despite extreme development pressure elsewhere in the county, to date there has been little pressure to develop the area due to the success of the comprehensive plan, particularly its policies against development in the area. Asked at hearing about such pressure, Miami Dade County's Director of Planning and Zoning, Diane O'Quinn responded, ". . . I haven't seen it. Not at all . . . because we've got very strong environmental policies in the comp plan." Tr. 625. Furthermore, considerations of increasing values and land speculation are not compliance issues under Chapter 163, Florida Statutes, or Florida Administrative Code Chapter 9J-5. Were they compliance issues, there are other forces at work that are encouraging an increase in land values in the Redland: in particular, the economics of the agriculture industry and the increasing demand for residential housing throughout Miami-Dade County. Agricultural uses in the County have been declining since Hurricane Andrew in 1992. Up to then, the predominant forms of agriculture had been row crops (tomatoes, for example) and lime, avocado and mango groves. Andrew destroyed many groves. They were not replanted because of expense and the length of time it takes from planting for the groves to bear fruit and increasing competition from foreign producers. Within a year or two of the hurricane, the North American Free Trade Act (NAFTA) was passed and produce from Mexico and Central America was introduced in great volume into U.S. markets. The south of the border competition generated by NAFTA, especially with regard to tomatoes and limes, reduced the value of the type of produce that had been predominant in the Redland prior to Andrew. Ten years later, the University of Florida's Florida Agricultural Market Research Center in the Summary and Recommendations Section of its Miami-Dade County Agricultural Land Retention Study (the "Agricultural Land Retention Study") described the market for agricultural commodities produced in Miami-Dade County as "fiercely competitive," Joint Exhibit 55, p. xiv, because of Latin American produce and predicted, "[e]conomic globalization and trade liberalization will continue. It is unlikely that the U.S. trade policy will be altered to any appreciable degree in the foreseeable future to protect domestic fruit and vegetable industries." Id. at xiii. Testimony at hearing established that these predictions have been accurate through the time of final hearing in late 2005. The Study, completed in April 2002, also reached this conclusion: Population growth and concomitant urban development appear inevitable for Miami-Dade County. Based on the capitalization of relatively low financial returns to agriculture in recent years, especially row crops, only about twenty-five percent of the current land prices is justified by returns to land in agricultural uses. The remaining seventy-five percent represents future anticipated value in non-agricultural or I agricultural residential use. Further, as supply of developable land dwindles, prices will undoubtedly increase. These price increases, if accompanied by chronically low financial returns to agriculture, will motivate landowners to convert to agricultural land to higher-valued uses. Joint Exhibit 55. p. xiii. This observation continued to have validity more than three years later at the final hearing in this case in late 2005. Following Andrew, land prices that had been stagnant for many years at $5,000 per acre or so increased three and four fold. The increases made it relatively expensive to buy land, plant and grow. The combined effects of Andrew and NAFTA reduced row crop and grove produce profitability. The agricultural industry shifted to ornamental horiculture nurseries. At the time of hearing, land prices had risen so much that even the nurseries whose products have been in demand for residential development have begun to become economically infeasible. Soon after 1992, the SFWMD also began buying property for Everglades restoration projects west of a levee on the west side of Krome that runs parallel to the roadway. These purchases too increased land values in the area. The recent rise in prices is also due to the low interest rate environment that began to have a wide-spread effect in early 2000. The low interest rate environment spurred demand for single-family homes. Furthermore, with the stock market decline that commenced in early 2001, investors began shifting from equities to real estate and demand for second homes increased. Miami-Dade County's excellent weather attracts people from all over the world and this has fostered increased foreign investment in the local real estate market. The combination of all these events led to acquisition of land for residential development throughout Miami-Dade County by developers. The diminution in the amount of vacant residential land naturally turned the attention of developers to agricultural areas and to the Redland where density is limited to one hours per five acres. The increased demand for housing led to price escalation so that five-acre parcels in the Redland became relatively inexpensive. The confluence of these factors accelerated the subdivision of agricultural properties into five-acre residential estates in the Redland. This trend began with Krome Avenue as a two-lane road and it is reasonably expected to continue, regardless of whether Krome is improved to four lanes or not. The trend toward development of five-acre residential estates will likely stave off further urbanization of the Redland. As the area is developed at one house per five acres, it becomes difficult to reassemble acreage to create subdivisions of higher density. For properties in the Redland that do not directly abut the road, the price of land is unrelated to Krome Avenue. Rather, it is based on the increasing demand for five-acre estates. The New Land Use Policies will likely restrain speculation based on the re-designation of Krome Avenue. One of the components of value is the probability of rezoning. Often much more important to land values are other factors: the land use plan designation and the history of land use in the surrounding areas. The planning and zoning restrictions, particularly in the light of the New Land Use Policies, send a signal to the market that the area around Krome Avenue is not slated for urbanization. The restrictions thereby limit increase in value and dampen speculation based on the potential widening of Krome Avenue. The trend in converting agricultural lands to residential uses has been in the making in Miami-Dade County for at least 30 years. The interplay between the agricultural and housing markets is the result of far larger forces than whether Krome Avenue is re-designated for improvement up to a divided four-lane roadway making any such re-designation of minor impact. As Mark Quinlivan, an expert in the field of real estate valuation in particular with regard to the areas along the Krome Avenue Corridor and the Redland, summed up the situation at hearing: So the trend is and has been for the last few years . . . to convert [the Redland] to five acre estates. Once they are converted to five acre estates and the homes are actually built, there is really not much else that can be done. Now you can't tear down the house and re-subdivide it if you could rezone. . . . [W]hether you put Krome as two lanes, four lanes, six lanes this trend is way beyond this amendment . . . Tr. 264. Environmental Impacts Although whether Krome Avenue will ever be improved to four lanes north of US 41, most of which crosses lands designated Environmental Protection depends on an environmental evaluation and other factors subject to an FDOT PD&E Study, it must be assumed for purposes of this compliance determination that it is allowed to be four lanes. The same assumption must be made for all of Krome Avenue subject to the Plan Amendment. Were a new plan amendment to be applied for, however, to re- designate land adjacent to Krome Avenue, road capacity would be a "minor" consideration because development control "policies in the plan are very strong and they're much more important and that would override the fact that there happens to be road capacity available." Tr. 737. The County recognizes the importance of maintaining a buffer between urban development and the Everglades. This recognition is reflected in CDMP policies. The CDMP, moreover, attempts to prevent the loss of environmentally sensitive lands. In the 1990's Congress required the U.S. Army Corps of Engineers to develop a plan to reverse as much as possible the anthropogenic damage inflicted upon the Everglades. The result was CERP, a joint federal/state plan to restore the Everglades by completing sixty-eight individual projects by 2038 costing many billions of dollars. Adopted by an Act of Congress in 2000, CERP directs the Corps to restore the Everglades using CERP as a guideline. With the exception of 10 of the projects authorized by the act, each of the other 58 individual CERP projects must undergo a specific process of planning and then Congressional authorization and appropriation. There have been no Congressional authorizations since 2000. The 58 projects not authorized in 2000 still await final planning and design and Congressional authorization and appropriation. Because of a design of Krome Avenue improvement has not been proposed, it is not possible to determine whether the widening of Krome Avenue will physically impact CERP projects. The concern advanced by Petitioners is that improvement to Krome Avenue will not only decrease the availability of land availability to CERP but will also raise land values. The concern is appropriate because, in general, the primary strategy of CERP is the acquisition of privately-owned land to dedicate to water storage, wetland restoration, and other related uses. "Most [CERP] projects have land acquisitions as the single largest factor in their cost." Tr. 415. Escalating real estate costs is a significant issue for CERP project managers attempting to stay within budget. As land acquisition costs increase, it becomes more difficult to get adequate funding or even authorization of a project. Furthermore, the federal authorization law requires a re- authorization by Congress if projected initial costs are exceeded by more than 20 percent. One of the critical aspects of CERP is water storage for which significant amounts of land must be acquired. There are numerous water storage restoration projects planned in the vicinity of Krome Avenue dependent on land acquisition. Petitioners recognize, however, that there is a certain amount of speculation in any anticipation of a rise in land values in the area of Krome Avenue. "If widening Krome Avenue raises the value . . . of surrounding lands it will have an adverse affect on the success of the Everglades restoration project." Petitioners and Intervenor Monroe County's Proposed Recommended Order, para. 95, p. 16 (emphasis supplied). Furthermore, as found already, the rise is dependent on re- designation of lands in the area of Krome Avenue, which are subject to policies in the CDMP, such as the existing Conservation Element, that discourage re-designation in a manner that would stimulate a rise in land values. It is sufficient for the CDMP to have policies that direct development to minimize impacts to environmental resources and guide the more detailed analysis that will be performed pursuant to the PD&E Study and further regulations. As Thomas Pelham explained: The purpose of the comprehensive plan is to establish policies that will be applied to and will govern actual development proposals that come in under the plan. It's not the purpose of a comprehensive plan to do a development permit level analysis. You do that when development permits are applied for . . . until you have . . . a specific proposal for a road, actual alignment, design features, you can't really fully analyze the impacts of it, anyway. . . . [T]he comprehensive plan . . . establish[es]] in advance policies that are reviewed for adequacy for protecting natural resources, the environment, so, that when someone comes in with an actual development proposal, then, it has to be evaluated in terms of the policies in the plan, and if it's not consistent, the law requires that it be denied. Tr. 686-7. The existing Conservation Element and other CDMP policies that protect environmental resources adequately address the potential impacts of the Krome Avenue Amendment vis-à-vis the environment and environmental considerations. South Florida Regional Policy Plan Amendments must be consistent with the Strategic Regional Policy Plan (SRPP) in order to be in compliance. § 163.3184(1)(b), Fla. Stat. SRPP Goal 2.1 is to achieve long-term efficient and sustainable development patterns by guiding new development and redevelopment into area which are most intrinsically suited for development. This includes areas where negative impacts on the natural environment will be minimal and where public facilities/services already exist, are programmed, or on an aggregate basis, can be provided most economically. SRPP Policy 2.1.4 requires development to be directed away from environmentally sensitive areas. Strategic Regional Goal 2.2 is designed to revitalize deteriorating urban areas. SRPP Policy 2.2.1 requires priority for development in blighted areas characterized by underdevelopment/under- employment that are in need of re-development. SRPP Policy 3.9.1 is designed to direct development and uses of land inconsistent with restoration away from Everglades and adjacent natural resources of significance. State Comprehensive Plan Section 187.101(3), Florida Statutes, states the following with regard to the construction of the State Comprehensive Plan: The [state comprehensive] plan shall be construed and applied as a whole, and no specific goal or policy in the plan shall be construed or applied in isolation from the other goals and policies in the plan. Petitioners do not ignore this provision of the statutes, citing to it in their proposed recommended order. See Petitioners and Intervenor Monroe County's Proposed Recommended Order, p. 41. Petitioners contend that it is beyond fair debate that the Plan Amendment is inconsistent with the State Plan as a whole and that it is specifically inconsistent with the following provisions in the State Plan: LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water and other natural resources to meet demands; and the potential for flooding. URBAN AND DOWNTOWN REVITALIZATION.-- (a) Goal.--In recognition of the importance of Florida's vital urban centers and of the need to develop and redevelop downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for an finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. TRANSPORTATION.-- Goal.--Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. 12. Avoid transportation improvements which encourage or subsidize increased development in coastal high-hazard areas or in identified environmentally sensitive areas such as wetlands, floodways, or productive marine areas. AGRICULTURE.-- (a) Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Id. at pgs. 41-43.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the October 2002 Plan Amendment to the Comprehensive Development Master Plan of Miami- Dade County adopted by the Board of County Commissioners for Miami-Dade County as reflected in Ordinance No. 02-198 be determined to be "in compliance." DONE AND ENTERED this 16th day of June, 2006, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2006.
The Issue The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding. Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994. Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions. Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County. Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County. Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance. DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
The Issue The issues in this case are (1) whether the City of Panama City's (the City) Small Scale Comprehensive Plan Amendment No. 04-20S adopted by Ordinance No. 1985 (the Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and (2) whether the petition challenging the Plan Amendment should be dismissed as untimely.
Findings Of Fact The Parties Robert E. Moore owns a home and resides at 1310 Kristanna Drive, Panama City, Florida. The northwestern property line of Mr. Moore's home is adjacent to the northeastern corner of the Property. JE 7; PE 98-B at RM.2 There is an approximate 100-foot-wide Bay County maintained canal or drainage ditch (canal) that forms the northern boundary of the Property, see Endnote 1 and PE 50 at 7, which runs in an east-to-west direction at the northern portion of his home. This canal eventually leads to North Bay to the west.3 Goose Bayou is located south of the Property. Mr. Moore taught respiratory care at Gulf Coast Community College for approximately 23 years and is retired. His residence was affected by a hurricane which passed through the area in September 2004. He noticed water appearing half-way up his driveway, which is not on the canal. He is concerned with the placement of additional homes in this area in light of his experience with the water level after the recent storm event. (Generally, Mr. Moore stated that there is a two- foot difference between low and high tide in this area. T 133, 137.) Mr. Moore, as well as the other Petitioners, made oral and written comments to the City Commission during the Plan Amendment adoption hearings. See City's Unilateral Pre-Hearing Stipulation at 5, paragraph E.4.; T 213. The St. Andrews Bay Resource Management Association (RMA) was established in 1986 and is a citizen's organization devoted to the preservation of the quality of St. Andrews Bay and its surrounding ecosystems. T 194. (St. Andrews Bay is a larger body of water which includes North and West Bay and Goose Bayou. See generally JE 12, Map 1.) The RMA has approximately 100 members. The RMA uses, but does not own, an office on the Panama City Marine Institute campus located within the City. The RMA occasionally conducts seminars or conferences and offers several programs for citizens, e.g., sea turtle nest watch, a water sampling program (Baywatch), and a sea grass watch program. The RMA meets every month except during the summer. T 195-196. The RMA opposes the Plan Amendment, in part, because of concerns with the effect of development on what Ms. Shaffer characterized as the "pine islands." Linda Anne Yori owns and resides in a house at 908 Ashwood Circle, Panama City, Florida, which is "just off Kristanna" Drive and to the east. See PE 98-C at the blue X. She teaches middle school science at a local public school. She has observed the Property, and generally described the Property, and vacant property to the north, as "upland hammock with salt marsh." T 209. In general, Ms. Yori opposes the Plan Amendment because she "believe[d] the environmental impact would be too great." Mary Rose Smith owns and resides in a house on Ashwood Circle, Panama City, Florida, two houses away from Ms. Yori's residence. Ms. Smith regularly jogs throughout the neighborhood. She believed that there are approximately 400 homes in Candlewick Acres and six vacant lots remaining. T 214- 215. As a result of recent hurricanes in the area, she observed flooding approximately half-a-mile upland along Kristanna Drive from the west-end to the east (half a mile to the turn off to Ashwood). PE 98-D at the blue 1/2 designation and blue line. While she cannot say for certain where the water came from, she believed the water "came from the bay or the bayou." T 220. The Bay County Audubon Society (BCAS) conducts membership and board meetings within the City limits and also owns a piece of property in the City. BCAS has approximately 400 members. Members live within the City. BCAS is concerned with the environment and with "the density of the proposed development" and "access to the pine islands." T 409-411. The City is the local government unit responsible for approving the Plan Amendment at issue in this proceeding. § 163.3187(1)(c), Fla. Stat. The Application, Review, and Adoption of the Plan Amendment On or about May 11, 2004, James H. Slonina, P.E., the president of Panhandle Engineering, Inc., filed an application on behalf of Robert H. and Barbara B. Hansman, requesting the City to annex "approximately 9.9 acres including lots, paved roadways and bridged drives" and further requested a land use designation to allow proposed residential development." The Property, see Endnote 1, is designated on a Bay County parcel map. A flood zone map is also included, but lacks clarity. The Property is vacant. JE 13. The purpose of the annexation and request for land use designation "is to accommodate the development of a 13+/- lot single-family residential waterfront development adjacent to North Shore Subdivisions." The application also stated: To support the residential home sites, there are adequate adjacent public roadways and utilities. Due to the unique physical configuration of the property, traditional RLD lot standards may not [sic] applicable. While we would prefer to pursue an RLD-1 designation, the application is submitted contingent upon confirmation of an appropriate land use designation and an approval of the proposed project. If another course of action is available, which would allow for the development of 13+/- single-family residential lots on 9.9 acres, please advise. JE 13. (It is represented throughout this record that the land use designation is requested for approximately 6.8 acres rather that approximately 9.9 acres. See, e.g., JE 7 at 1; JE 11 at 12-13.) The application was reviewed, in part, by Mr. Thomasson. JE 7. The staff report4 dated July 30, 2004, stated that the request is to amend the City's FLUM from Conservation (as previously designated by Bay County) to RLD with a Zoning District classification of RLD-1. (The staff report referred to several permitted uses under RLD-1. JE 7 at 2. The permitted uses for RLD-1 are those contained in the City's "Comprehensive Planning and Land Development Regulation Code (LDRC)" at section 4-6.1.2.a. JE 4 at IV:8-9. However, the propriety of the RLD-1 Zoning District classification for the Property is not at issue in this proceeding. T 266.) The staff report also stated that the Property "is currently zoned conservation, abuts property to the North that is designated conservation Land Use category in the County and is just North of an existing Special Conservation Treatment Zone," which is indicated on a map on page 1 of the staff report. JE 7 at 1. The staff report stated that "[w]ater and sewer infrastructure and other urban services are available to this property." See T 286-287, 301-303, 307-308; JE 7 at 1. Under the background section, it is stated that "[t]he property has been seen as environmentally significant and has been the object of an effort to purchase for perpetual protection by a local land trust organization. It is adjacent to an existing development to the East." Id. The Plan provides that an RLD land use district "is intended to provide areas for the preservation of development of low-density neighborhoods consisting of single-family dwelling units on individual lots" with a density of "[n]o more than five dwelling units per acre." The allowed intensity is "[n]o more than 40% lot coverage as determined by dividing the impervious areas by the gross area of the site or lot." JE 3 at 1-2. The staff report contained findings of fact with citations to the Plan, including the Future Land Use Element, the Coastal Management Element, and the Conservation Element. References to the LDRC are also provided. See also T 285-311, 315-317, 320-321; JE 7 at 2-3. Thereafter, specific findings are made: Staff finds that this property, as a part of the St. Andrews estuary, serves as a breeding, nursery, feeding and refuge are for numerous marine creatures, birds and upland wildlife. The three pine and oak hammacks [sic] are a few of a rare estuarian resource. The marsh throughout the area serves as home for seagrass and other marine organisms that are integral with the biodiversity of the estuary. There also exists a [sic] archaeological sites [sic] consisting of an ancient Indian midden that has already been classified by the Director of the Florida State Division of Historical Resources as deservant [sic] of mitigation and potentially eligible for the National Historic Registry (see attached documentation). The site overall has a biotic community of nearly 90% of it [sic] total area. Staff findings are that this proposed Land Use Amendment is inconsistent with the above listed mandates of the Comp Plan. Staff also finds that the proposed Land Use is inconsistent with the LDR Code, in that it is not in harmony with the Comp Plan (Subsection 2-5.5.6.e. above), as well as the requirements of the environmental protection standards of Section 5-5. This decision hinges on the whether the City intends to enforce it's [sic] environmental protection standards of the Comp Plan and the LDR Code and if the site is seen as environmentally significant. JE 7 at 4 (italics in original). Ultimately, staff recommended approval only with the following conditions: 1.) that the fullness of the subject property be designated as a Conservation Special Treatment Zone [CSTZ][5] and that the pine and oak hammacks [sic](as referred to as "Pine Islands" in the Bay County Comp Plan) are prohibited from being developed; and 2.) that the area of the subject property that is beyond the mean high tide of the mainland portion, which specifically means the marshes/wetlands and the oak and pine hammacks [sic], shall be placed in a conservation easement and dedicated to either the City, or a third-party land trust or conservancy. JE 7 at 4. (Mr. Hammons, the City Manager, disagreed with the staff report, in part, because there was no data to support several findings. T 119-124.) On August 9, 2004, the Planning Board of Panama City met in regular session to consider the application. The request was to approve a small scale land use amendment to the FLUM of the Plan from Conservation (under the Bay County Comprehensive Plan) to RLD with a zoning classification of RLD-1 for the Property. JE 11 at 2. But see Finding of Fact 15. Mr. Fred Webb and Dr. Frasier Bingham were present on behalf of the applicant. Mr. Webb advised that the Bingham's and the Webb's owned the property which consisted of approximately 6.5 acres of uplands. But see Finding of Fact 29 regarding the ownership of the Property. In part, Mr. Webb stated that the grass beds would not be impacted and that there was no legitimate environmental complaint. Dr. Bingham stated that he is an ecologist, specializing in shallow water ecology. JE 11 at 3. He said his family had purchased the upland property in 1948 and the submerged land in the 1960s. Beginning in 1991, Dr. Bingham stated he tried to get the government to purchase the property, but to no avail. He also recounted attempts to obtain permits from DEP and the United States Army Corps of Engineers (Corps). See, e.g., PE 60, 63-64.6 He believed that the bridge problem, identified by the Corps had been solved. JE 11 at 3 and 13. (There is no persuasive evidence in this record that the Corps has approved any permits for development of the Property.) Mr. Webb stated that all maintenance to the bridges and other utilities would be the responsibility of the association (for the developed Property) and not the City and that the City would only be responsible for police and fire. Id. at 4. Mr. Thomasson addressed the Planning Board. JE 11 at The staff report previously mentioned is incorporated in the minutes. Staff felt that the CSTZ designation would be the most appropriate designation due to the environmental issues and that the RLD-1 designation would be the least intense land use available under the Plan. Board member Pritchard inquired whether the application was incomplete "as it doesn't address the environmental issues." Mr. Thomasson stated the applicant did not believe there would be any environmental impact, while staff believed the property to be environmentally significant. JE 11 at 8. Dr. Bingham again addressed the Planning Board to refute the staff's findings of fact. Dr. Bingham said that "the wetlands would not be impacted, the grass beds would not be impacted, and the stormwater runoff already goes into the grass beds, which are, in his opinion, fine grass beds" and that "that 13 houses would not have any significant impact." He indicated that soils were not at issue and that the "property is sandy, not special." Id. at 9. Mr. Webb indicated that "they had evaluated the environmental aspects and added the raised bridges, swales, etc." JE 11 at 9. Numerous individuals spoke in opposition to the request. Apparently, by a show of hands "a large majority of those present were in opposition to the request." JE 11 at 12. It appears that two persons spoke in favor of the request. Id. at 9-11. Mr. Webb confirmed that the application requested approval of the land use designation and annexation for 6.8 acres. JE 11 at 12. He also advised that a limited liability corporation owned the 6.8 acres, while there are different owners of other parcels. Mr. Webb indicated that "only the uplands on the islands were being annexed," although "he was not sure the properties were 'islands' in legal terms." Id. at 13. Mr. Webb indicated that he was willing to indemnify the City against any legal expenses arising from this request. Id. The requested land use change was approved by a vote of three to two. Id. at 14. On September 28, 2004, the City Commission considered Ordinance No. 1985 pertaining to the requested land use designation change and Ordinance No. 1995 pertaining to the annexation of the Property. These Ordinances were read by title only as a first reading. JE 10 at 293-294. During this meeting, the minutes (JE 10) reflect that Mr. Webb stated that they would only be developing the upland islands and proposed to use bridges, which he says "the environmental regulatory community has considered to have almost no environmental impact. He said that the addition of thirteen single family residential homes to an area that has seven hundred homes will not materially affect level of service." JE 10 at 289. Several of the people who appeared before the Planning Board also appeared opposing the application for annexation and land use designation change. JE 10 at 290. Mr. Martin Jacobson, Planning and Zoning Manager for Bay County filed a formal letter of objection to the annexation. Id. Mr. Fred Beauchemin opposed the annexation and responded to eleven items which were discussed by Mr. Webb and Dr. Bingham during the Planning Board meeting, including representations of impacts to grass beds, wildlife resources, and soils. JE 10 at 290-292. Mr. Webb continued to feel that there would not be any destruction of the marshes. Id. at 292. Dr. Bingham again noted that he is a shallow water marine ecologist and felt that he was informed about the environmental situation on the Property. Id. at 293. After brief discussion by some of the Commissioners, Ordinance Nos. 1985 and 1995 were approved by a vote of three to two. JE 10 at 293-294. By a letter dated November 9, 2004, Daniel Shaw, A.I.C.P., memorialized the October 5, 2004, Bay County Commission's unanimous decision to contest the potential annexation of and land use change to the Property, referring to several provisions of the Bay County Comprehensive Plan. T 228; PE 69. Mr. Shaw opined that "[c]learly, development proposed for the annexed Pine Islands violates the County's Comprehensive Plan." PE 69 at 2. He further stated: What's more the proposed annexation also violates the City's Comprehensive Plan. City Policy 5-5.2, 5-5.3 related to preservation of Environmentally Significant Resources would prohibit the proposed development. The property is a part of the St. Andrews estuary, and serves as a breeding/refuge area for numerous marine creatures, birds and wildlife. The three pine and oak hammocks are a truly rare estuarine resource for Bay County and for the State of Florida. The marshlands contain valuable sea grass beds and are home to numerous marine creatures, which are integral to the biodiversity of the estuary. Finally, the property contains valuable archeological sites, consisting of ancient Indian middens that are classified by the State Division of Historical resources, and potentially eligible for the National Historic Register. I would concur with staff's memorandum of August 9, 2004, which cites numerous other examples of where the development would violate the City's plan. PE 69 at 2 (emphasis in original). Mr. Shaw also stated that the Property is located in the coastal high hazard area, within a "V" zone for flood regulations.7 He stated that "[t]hese designations argue for prohibiting development for public safety and infrastructure investment purposes." Again, Mr. Shaw stated that Bay County opposed the potential annexation and subsequent land use reclassification. PE 69 at 3. Mr. Shaw also testified during the final hearing and reaffirmed his prior position. T 232-245. Mr. Shaw stated that the Property, prior to annexation by the City, was designated Conservation under the Bay County Comprehensive Plan, which allows for limited residential use and the preservation of pine islands (an outright prohibition).8 He was not qualified, however, to make a determination whether any portion of the Property is a pine island. T 247. Mr. Shaw thinks that Bay County allows up to 15 units per acre in the coastal high hazard area. T 254. On November 9, 2004, the City Commission met and considered a final reading of Ordinance Nos. 1985 and 1995. Several people appeared opposing both ordinances including Mr. Moore, Ms. Smith, Ms. Yori, and others. JE 8 at 3-14; JE 9 at 3-5. Mr. Webb again addressed the City Commission and stated, in part, that "nothing in the marsh would be touched." He also indicated that he would fully indemnify the City in the event of a lawsuit. JE 8 at 14-21; JE 9 at 5. Dr. Bingham also addressed the Commission. JE 8 at He stated that he has designed an environmentally friendly community of 13 home sites. He indicated that he had a Ph.D. in shallow water marine ecology and attended Florida State University and the University of Miami. He said that he was thoroughly familiar with the Panama City area and had worked with a large list of groups as an ecologist. He reiterated that the homes sites will take up 6.8 acres and will be entirely uplands and no marshes or swamps. He said that he is trying to use one fifth of the property that he owns and "there are no wetlands involved in this particular operation that will be damaged." JE 8 at 23. He also indicated that there will be raised bridges constructed on the Property, and according to him, were suggested by the Corps. Id. After brief comments by several Commissioners, the Commission approved the annexation and land use designation change by a vote of three to two. JE 8 at 26-27, 30-31. Toward the end of the November 9, 2004, hearing, the City Attorney, Rowlett Bryant, advised that the minutes of the September 28, 2004, Commission meeting would be included with the minutes of the November 9, 2004, public hearing. In other words, the November 9, 2004, Commission meeting was the public hearing held on the application for the annexation and the land use designation change. JE 8 at 27-30. Mr. Bryant also noted that the Ordinance No. 1985, related to the land use designation, would be RLD-1 and that the prior reference to Special Treatment Conservation Zone in the title of Ordinance No. 1985, considered on September 28, 2004, was a recommendation of staff and was deleted from Ordinance No. 1985, which was approved by the City Commission on November 9, 2004. JE 8 at 31-32. Ordinance No. 1985, in fact, changed the land use designation of the Property (approximately 6.8 acres) "from Conservation (a Bay County Land Use designation) to Residential- Low Density-1 as described in Small Scale Amendment 04-S20." JE 1 at 2. However, Petitioners and the City agree that "[t]he city assigned a future land use map designation to the parcel of Residential Low Density in Ordinance No. 1985." See T 11, lines 10-23; Petitioners' Prehearing Stipulation at 2, IV.2. Data and Analysis As more fully discussed in the Conclusions of Law, "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community; the capability of uses on lands adjacent to or closely approximate to military installations; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy." § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.006(2) provides for "land use analysis requirements" and requires, in part, that the future land use element "be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2) F.A.C." Subsection 9J-5.006(2)(b) requires "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: 1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b); 2. Soils; 3. Topography; 4. Natural resources; and 5. Historic resources." Further, "all goals, objectives, policies, standards, finding and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a)(emphasis added). "Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data shall be the best available existing data, unless the local government desires original data or special studies." Fla. Admin. Code R. 9J-5.005(2)(c). Petitioners question whether the record contains relevant and appropriate data, which was existing and available on or before November 9, 2004, to support the Plan Amendment. Petitioners further question whether the analysis of that data is adequate. The application, JE 13, requested approval of annexation of and a change in the land use designation for, as amended, approximately 6.8 acres. Aside from identifying the parcel in question, in relation to Goose Bayou and the subdivision to the east, the application does not contain adequate data and analysis to support the Plan Amendment. Mr. Slonina, a professional engineer and expert in civil engineering, testified during the final hearing as to the due diligence he and his firm performed in support of filing the application with the City. T 424. Mr. Slonina has been on the Property many times. T 456. As part of the due diligence, Mr. Slonina analyzed the area proposed for development on the Property, which are the upland areas, and, in part, stated that these areas are primarily free draining sands and have fairly high percolation rates. T 425, 453. He also characterized upland areas as fairly clean sands and satisfactory for development in this area based on his experience. He also examined the upland and wetland soils to determine suitability for a "post and beam timbered bridge system" that would be pile supported over the wetlands bridging upland areas. He opined that the soils on the uplands were nothing unique and were suitable for low density residential and suitable to support the bridge system he described. T 428, 442, 458-459. See also P 50, Attachment A. Regarding utilities which might be available to the Property, during the due diligence phase, he identified, from utility maps, the location of the closest water and sewer which could serve the Property, adjacent to the Property to the east. He also analyzed the ability of fire protection to be provided to the Property and concluded that it was feasible. T 428-432, 460-461. See also JE 7 at 1 regarding "utility and other urban services availability" and P 50 at 14-16 for a discussion of "utilities." Mr. Slonina also opined that a stormwater system could reasonably be designed for the Property and that it was feasible to design a stormwater system that would capture stormwater runoff before it went into the bayou. T 432-435. Mr. Slonina examined flood zone information and determined that the Property was "very typical" and that the flood zone information available would not preclude residential development on the Property. T 434-435, 450. But see Endnote 7. From a traffic concurrency standpoint, he examined traffic engineering data on trip generation for 13 single-family homes and determined that there was adequate capacity for that additional loading on "the only roadway that connects to the [P]roperty." His traffic impact analysis was limited "through the residential streets." T 435-436, 439-441. Mark O. Friedemann, is the executive vice-president at the Phoenix Environmental Group, Inc., an environmental consulting firm. T 466. Mr. Friedemann was retained on or about January 7, 2005, by the City's counsel for the purpose of "doing a basic assessment of the property and whether it was suitable for some type of development, residential in particular." T 474-475. Prior to conducting a survey of the Property, aerial photographs, data from the Florida Natural Areas Inventory, and various maps were reviewed. Id. Mr. Friedemann and an assistant conducted a field survey of the Property on January 12, 2005. They collected basic water quality data, observed wildlife, conducted several soil observations pits, looked for scat, and examined the vegetative community on the Property. T 476. For the purpose of the survey, the Property was divided into areas 1 through 4, which are labeled on CE 5, Figure 2. T 478. These upland areas were the major focus of the assessment along with the interior (wetland/marsh) areas. T 478, 565. CE 5 at 2, Figure 2. Mr. Friedemann and his assistant arrived on the Property at approximately 9:00 am on January 12, 2005, during low tide. They left the Property as the tide was starting to return. T 517, 532, 548. Area one is a rectangular portion of the Property, which runs north to south and forms most of the eastern boundary of the Property and is adjacent to Candlewick Acres. Area two is another upland area which is in the northwest portion of the Property and west of area one. Area three is in the southwest portion of the Property and southwest of area two. Area four is a small upland portion, which is almost due south of area one in the southeastern portion of the Property. CE 5 at 2, Figure 2; see also Endnote 6. Mr. Friedemann accessed area two from area one by walking along a path/spoil pile, which runs east to west and forms part of the northern boundary of the Property (the approximately 100 foot canal is north of and adjacent to the path/spoil pile). He walked to area three by stepping across a small rivulet of no more than a foot in width. He walked to area four from area three, stepping over another small tidal- influenced rivulet that passed between areas three and four. He approached area one from area four walking across "a rather high area." Mr. Friedemann "did not get the impression that area two was surrounded" by wetlands, salt marsh, or tidal mud flats. T 479-481, 500, 517, 556-557. He stated that area three would be surrounded, but was unsure about area four. T 556-559. Some of the areas photographed would be potentially inundated during high tide. T 521-525. Mr. Friedemann's report also contained, in part: water quality data taken on January 12, 2005; and a list of species seen on the same date; a recent undated aerial of the Property and surrounding area, downloaded from the DEP website, which was also magnified; and several aerials (dated 1953, 1962, 1967, 1974, 1978, and 1986) of the Property including the surrounding areas. Mr. Friedemann opined, based on his review of aerials, that there may have been a timber operation ongoing on the Property in the past although he would not hazard a guess. T 540. The report also included several photographs taken of the four areas, during the site visit on January 12, 2005. CE 5 at x-xxii. Although he did not "review any set of plans," or have any opinion regarding any specific development proposal, Mr. Friedemann opined that based on his observations in the field, "there is a viable project that could be built on this parcel."9 T 482, 501-502, 511, 520. Mr. Friedemann provided an analysis of the Property by and through his testimony regarding photographs taken of the Property during his site visit. From a biological or ecological perspective, he did not observe anything on the Property which would preclude residential development. He further opined that what he observed was not unique in the panhandle of Florida. T 501-502. Mr. Friedemann did not conduct a wetland delineation of the Property. T 556. However, the record contains an infrared Conceptual Site Plan dated October 22, 2002, indicating vacant land to the north of the Property, and residential areas to the east of the Property and east of the vacant parcels to the north. This particular site plan provided for the approximate wetland boundaries of the Property identified as south parcel (4). PE 98-D and PE 50 at Exhibit 1. Mr. Friedemann indicated that he had not observed the Property during a hurricane, during periods of high wind, or during periods of a combination of high wind and high tide. He agreed that the tides in the United States can be lower during the winter than they are during the spring and that the highest tides may be experienced during the spring called neap tides. T 532-533. Mr. Friedemann was also referred to a December 30, 2004, document apparently prepared by Panhandle Engineering, Inc., sheet number 2 of 4, CE 16, which delineated 13 lots. T 533. See Endnote 6. (City Exhibit 16 was admitted into evidence as an authentic document; however, there was no testimony regarding the preparation of this document. T 535-537.) Comparing sheet 2 of 4 with Figure two of CE 5, area two is depicted as being surrounded by rush marsh and connected to area one and area three by drawn-in bridges. Compare PE 50, Attachment E, Sheet 1 of 2, dated July 31, 1998, depicting the Property with 13 lots configured, interspersed with a "conservation area" designation and Attachment A, Figure 4., Project Base Map, depicting upland areas on the Property, interspersed with a "marsh" designation with PE 98-D south parcel (4) and "approximate wetland boundary. See also Endnote Mr. Friedemann stated that the indication of rush marsh on sheet number 2 of 4 did not comport with his observations of the Property during his site visit. He was unaware of this drawing. T 534-538. Gail Easley, A.I.C.P., an expert in urban and regional planning, opined that the Plan Amendment was consistent with various provisions of the City's Plan, the State Comprehensive Plan, and the West Florida Regional Strategic Policy Plan. She also opined the Plan Amendment was supported by data and analysis regarding the suitability of the Property for the RLD land use designation. In support, Ms. Easley stated in part: Understanding that the amendment is not really permitting the use, but understanding that the amendment establishes the uses that are allowed as I testified earlier, the suitability data that is available in addition to the data and analysis here in the Comprehensive Plan includes the information from Panhandle Engineering about, more specifically about the availability of facilities and services and the suitability of soils for use of residential low density, as well as the analysis contained in Mr. Friedemann's report regarding environmental issues and the suitability of this site for residential low density. So I found plenty of evaluation of suitability. T 586. See also T 610-611. Ms. Easley also opined that the Plan Amendment does not threaten coastal and natural resources in violation of Florida Administrative Code Rules 9J-5.006, 9J-5.012, and 9J- 5.013, and Sections 163.3177 and 163.3178, Florida Statutes, because she considered the data and analysis in the Plan, "as well as the suitability and capability [sic] analysis that were submitted by Panhandle Engineering and Mr. Friedemann demonstrated that there was not a violation of these provisions." T 617. Ms. Easley also stated that there was adequate data to support a need for residential (RLD) development on the Property. See, e.g., T 584-585, 621-622, 629-630, 632-634. See also JE 3 at Future Land Use Data, 1-1 - 1-10. During cross-examination, Ms. Easley was asked to identify the particular Panhandle Engineering report which she reviewed to support her opinion. The report is not in evidence. However, Ms. Easley stated: "It was a report that they prepared that addressed issues of suitability of the site with regard to the availability of water, the availability of sewer, the capacity for water and sewer, soil conditions on the site, and traffic situations on the site. I'm sorry, I do not recall the date of that particular suitability analysis, but it was prepared by Panhandle Engineering, and I reviewed it as a part of my analysis." T 626. Ms. Easley was also asked to provide the source of her data and analysis about environmental conditions on the site and she replied: "Two places, there is information in the City's data and analysis with regard to the vacant land analysis, as well as general environmental conditions in or around the City, I reviewed that data and analysis that I mentioned earlier. I also saw information specific to this parcel from Mr. Friedemann's report." T 627. Ms. Easley indicated that there was no specific data and analysis contained in the City's Plan about the Property, although the Plan referenced areas adjacent to the City. T 628. Ms. Easley reiterated that natural resources are considered during the plan amendment process. It also occurs during permitting. T 642. She again stated: "The suitability analysis was contained in two different reports. As I testified earlier, Mr. Slonina's report from Panhandle Engineering addressed soils and soil suitability. And Mr. Friedemann's report looked at other kinds of environmental issues. I reviewed both of those reports and determined that suitability analysis had been preformed to support the plan amendment." T 643. According to Ms. Easley, if there were environmental reasons creating an inconsistency with Rule 9J-5, then such reasons could serve as a basis for denial. T 643. (Ms. Easley also opined that a land use change to the FLUM "is an assignment of a land use category and the associated density and intensity, it is not a development activity." See T 587, 651.) Mark Llewellyn, P.E., is the president of Genesis Group. In October 2002, Genesis Group completed a planning and engineering analysis (Genesis Report)10 for Chandler and Associates, who, in turn, had a contract with the DEP to prepare an appraisal report for the Goose Bayou Marsh Property.11 The Goose Bayou Marsh Property included four parcels, including the south parcel (4), which is the Property in question, two north parcels (2 and 3), and the middle parcel (1), which is north and northeast of and adjacent (the west one- third) to the Property. All the parcels are vacant. See PE 98- D, which also appears at PE 50, Exhibit 1. Mr. Llewellyn identified three peninsular islands on the Property (south parcel 4)(PE 98-D at the blue X's), which roughly correspond with areas one and two in Mr. Friedemann's report at CE 5 at 2, Figure 2. T 160-161. See also Endnote 6. The two eastern peninsular islands (area one) are connected to the upland to the east, Candlewick Acres. The third peninsular island, located in the northwest corner of the Property, can be accessed, according to Mr. Llewellyn, by a berm or other geographical feature to the north of the Property and south of the drainage canal. Id. See also T 397. There is one larger upland island and a smaller upland island toward the southwest and southern portions of the Property, which appear to be surrounded by wetlands, waters of the state, salt marsh, or tidal mud flats. T 160-164. Each peninsular island and upland island is less than 20 acres. Mr. Llewellyn's analysis is consistent with the approximate wetland boundaries identified in the Conceptual Site Plan, PE 98-D. Mr. Llewellyn opined that the Property could be developed as a single-family development without having an impact on the Property if it is designed and maintained properly. T 157, 172. See also Endnote 6. The Genesis Report provided an analysis of the four parcels. Apparently the south parcel (4), the Property, contained approximately 16.2 acres as follows: wetlands 9.8+/- acres; upland islands 3.5+/- acres; peninsula uplands 2.9+/- acres; or 6.4+/- acres of total uplands. T 163; PE 50 at 12. Parcels 1-4 are analyzed in light of several factors, including but not limited, to the Bay County Future Land Use and Comprehensive Plan. The following is an analysis of the Bay County Future Land Use and Comprehensive Plan as applied to the north parcels (2 and 3): The Bay County Comprehensive Management Plan identifies the North Parcel's Future Land Use Designation as Conservation. The purpose of this land use is to identify public and private lands held for conservation of natural features. Allowable uses for this designation are natural resource protection, flood control, wildlife habitat protection, passive of recreation, silviculture and residential densities up to 2DU/acre. Commercial development is prohibited for properties with this land use designation. Additionally, the upland islands located on these parcels fit the definition for "Pine Islands" as defined in the Bay County Comprehensive Plan. A Pine Island is defined as a small upland area generally 20 acres or less, usually characterized by typical pine flatwood vegetation, which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. The Bay County Comprehensive Plan prohibits development on any "Pine Island". This means that it will be extremely difficult to develop the upland areas located on this parcel. PE 50 at 2. See also PE 50 at 2 (II.B.) and 13 (IV.B.) regarding the Panama City Future Land Use. (The Genesis Report was prepared approximately two years prior to the City's annexation of the Property. The City did not annex the vacant land to the north (parcels 1-3), which is part of the subject of the Genesis Report.) Regarding the analysis of parcels 1, and 4, the Property, and referring to the Bay County Future Land Use and Comprehensive Plan, it is noted that "[t]he same issues apply to this parcel." PE 50 at 7 and 13. The Genesis Report discussed wetlands on the Property: The wetlands within the property consist of estuarine salt marshes, which are connected to Goose Bayou and West Bay. According to an environmental assessment prepared by Biological Research Associates (BRA) the marshes are tidally influenced and dominated by black rush. Other species include seaside goldenrod, seashore dropseed grass, sea purslane, glasswort, salt grass, marsh hay cord grass, sea lavender, Chinese tallow, saw grass, cork wood, and saltbrush. Additionally, the salt marsh is habitat for two listed bird species; the snowy egret and the little blue heron (see Attachment A). As previously stated, a wetland delineation has been completed for this parcel and accepted by FDEP and ACOE. PE 50 at 13. The Genesis Report also provided a brief discussion of flood plain and cultural resource considerations, and also provided an analysis of site planning and engineering, including access, utilities, owner site plan/lot lay out, and probable development costs. PE 50 at 13-15. Regarding south parcel 4, the Property, the Genesis Report concluded, in part, that "[t]his parcel has limited development potential." A cost estimate is provided. It is also concluded that water and sewer could be provided without incurring significant increases in development costs. "Development of the upland islands would require bridges, which significantly increases the development cost. There is no guarantee that the development within the wetlands would be permitted at this time." PE 50 at 16. The Genesis Report also included a report prepared by Biological Research Associates, which appears as Attachment A to PE 50. Mark Andrew Barth, vice president/senior ecologist for Biological Research Associates, was one of the two signatories to a section of the Genesis Report and also testified during the final hearing. T 175; PE 50, Attachment A. He reiterated that they prepared a preliminary environmental assessment for a proposed acquisition by a State agency. T 176, 180. (While unclear, it appears that his study area included the approximate western one-third of the Property, see, e.g., T 189; PE 50, Attachment A, Figures 1, 3-4, although other portions of the Property were studied. See, e.g., Finding of Fact 93.) Referring to PE 98-C and the Property (outlined in black) and the vacant land to the north outlined in red, Mr. Barth testified that they are "mainly comprised of salt marsh and scattered pine dominated islands." According to Mr. Barth, the term "pine islands," "describes isolated upland patches within the salt marsh." T 177. The salt marshes consist of vegetation that extends beyond the water level usually in very shallow water. T 178. The Property is part of an estuary system, Goose Bayou, for example. Id. See also T 381; JE 12 at IV-14-16 and Map 1. The salt marsh is inundated by saline or marine water as opposed to fresh water. T 178. One of the most significant features of an estuary system "is providing nursery grounds and habitat for marine and estuarine fish and wildlife." T 179. Mr. Barth considered the Property, south parcel 4, PE 98-D, to be environmentally sensitive in light of the combination of estuarine and upland areas which are undisturbed. T 185-186. Mr. Barth did not have enough information to assess specific impacts to the surrounding salt marsh and water in light of a proposed development on the Property. He felt it depended on the type of development. T 182. "Middens" have been found on the south side of the Property, in and around area 3 (CE 5 at 2, Figure 2). See, e.g., T 558-559; PE 50, Genesis Report at 13 and Attachment A at 6-7 and Attachment E, Figure 4, Project Base Map and Figure 5, PBY139 Base Map. Ultimate Findings of Fact Regarding Adequacy of Data and Analysis Ultimately, whether the Plan Amendment is based upon relevant and appropriate data and analysis is a close question. This is particularly true here where critical portions of Mr. Friedemann's analysis are based on information, e.g., Mr. Friedemann's photographs, collection of water quality samples, and observations of the Property (species seen and terrain), which post-dated the City's adoption of the Plan Amendment on November 9, 2004. As a result, his analysis of this information has been disregarded, notwithstanding the lack of an objection to the admissibility of his report, CE 5. See Conclusions of Law 110-114. (Mr. Friedemann also provided several aerials of the Property and surrounding area which pre-date the date of adoption of the Plan Amendment and have been considered along with his analysis of this data.) Also, to the extent that Ms. Easley relied on Mr. Friedemann's report (CE 5) and the post- adoption information collected by Mr. Friedemann and his analysis of that information, her opinions have also been disregarded. Nevertheless, Petitioners have the burden to prove, by a preponderance of the evidence that the Plan Amendment is not based upon relevant and appropriate data and analysis, which Petitioners have not done. Accordingly, based on a review of the entire record in this proceeding, it is ultimately concluded that the Plan Amendment is based on relevant and appropriate data and analysis, except as otherwise stated herein. See § 163.3177(6)(a), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2), 9J-5.006(2), and 9J-5.012-.013. Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, the State Comprehensive Plan, and the City's Comprehensive Planning and Land Development Regulation Code Petitioners contend that the Plan Amendment is inconsistent with several provisions of the City's Plan: Future Land Use Element Policy 1.1.1.10; Coastal Management Element Goal 1, Objective 5.1, and Policies 5.1.1 and 5.1.3.3, and Goal 3; and Conservation Element Goal 1, Policies 6.6.2, 6.6.2.3, and 6.6.2.4. Petitioners contend that the Plan Amendment is inconsistent with several provisions of the LDRC: subsections 2- 5.5.6, 5-5.1, 5-5.2, 5-5.3, and 5-5.6.3.e. Petitioners also contend that the Plan Amendment is inconsistent with Section 187.201, Florida Statutes, and the West Florida Strategic Regional Policy Plan. The Plan Amendment changes the land use designation on the Property to RLD. The Plan Amendment is not a development order. See Strand v. Escambia County, Case No. 03-2980GM, 2003 WL 23012209, at *4 (DOAH Dec. 23, 2003; DCA Jan. 28, 2004), aff'd, 894 So. 2d 250 (Fla. 1st DCA 2005). It does not authorize any development to occur on the Property. Further, a special treatment zone, as used in the City's Plan, is not a FLUM land use district. Based on the plain and ordinary meaning of the various Plan provisions at issue, the Plan Amendment does not alter or interfere with the City's ability to maintain the quality of coastal resources; restrict the City's ability to maintain regulatory or management techniques intended to protect coastal wetlands, water quality, wildlife habitat, and living marine resources, for example, or prohibit the construction of docks, piers, wharves, or similar structures; interfere with the City's ability to provide for or have available adequate areas for public waterfront access or to provide the circumstances necessary for the conservation, protection, and use of natural resources; or interfere with the City's ability to enforce guidelines in its LDRCs related to, for example, the protection and conservation of the natural functions of existing soils, wetlands, marine resources, estuarine shoreline, stormwater management, wildlife habitat, or flood zones. Petitioners did not prove that the Plan Amendment is inconsistent with cited portions of the City's Plan, the State Comprehensive Plan, and the West Florida Strategic Regional Policy Plan. Further, the Plan Amendment need not be consistent with the City's LDRCs because it is not the subject of "in compliance" review.12
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 concluding that the Plan Amendment, adopted by the City of Panama City in Ordinance No. 1985, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS 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 6th day of October, 2005.
The Issue Whether Respondent Pierson should be granted variances to permit construction of a triplex on a lot 95 feet wide and 87 feet deep. To do so the three variances required are (1) of 5 feet in width, (2) of 13 feet in depth, and (3) 753 square feet in area (10,000 square feet required).
Findings Of Fact Don Curtis Pierson owns the north one-half of Lot 2 and all of Lot 3, Block 6, Revised Map of Clearwater Beach, and has owned this property for some 28 years. The property is zoned RM-20 and is high density residential developed. Pierson's lot is approximately 95 feet by 87 feet (approximately 82,500 square feet). The property is currently occupied by a duplex which was constructed according to Code, except for variances of zero setback from the coastal construction control zone and a 6 foot height variance to permit the construction of a building 31 feet in height. Appellant is the owner of a multifamily building adjacent to Pierson's property which was constructed before various code provisions became effective and was constructed to the lot lines without any setbacks. When Pierson applied for variances in 1983 to construct a triplex on his property, the Board of Adjustment Appeal granted setback variances of 10 feet in rear and front setback lines to permit the construction of a triplex on this property. Vasilaros appealed that grant, and on July 12, 1983 the undersigned heard that appeal. On August 31, 1983, an order was entered denying the setbacks, but approving the construction of a triplex on the lot less than 10,000 square feet in area. That approval was predicated upon then Section 131.020 of the Land Development Code which waived the area requirement for a lot of record. This Section was removed in the 1985 rewrite of the Land Development Code. Specific code provisions respecting the size of the lot on which a three family structure may be erected are in Section 135.044 which requires a minimum lot area of 10,000 square feet, and minimum lot width and depth of 100 feet each. The applicant's only hardship upon which the requested variance can be granted is the uniqueness of the property becoming nonconforming solely by reason of zoning changes.
The Issue The issue to be determined in this case is whether Amendment 10-01A to the Bay County Comprehensive Plan (“the Plan Amendment”), adopted by Ordinance 10-22, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties The Department is the state land planning agency and, at the time of the adoption of the Plan Amendment, was charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in section 163.3184(1)(b). Bay County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Petitioner Diane Brown resides and owns property in Bay County, but not in the Sand Hills STZ. Petitioner submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. Intervenor Cedar Creek is a Florida corporation that owns approximately 1,007 acres of land within the Sand Hills STZ. Intervenor submitted comments to Bay County during the time between the transmittal and adoption hearings for the Plan Amendment. The Sand Hills STZ The Sand Hills STZ is one of three Rural Community STZs in Bay County. The Sand Hills STZ has a number of platted and unplatted subdivisions that were created before the adoption of the Bay County Comprehensive Plan. Within the Sand Hills STZ is a police station, a fire station, and a public school for Pre- Kindergarten through 12th grade. Residences and businesses in the Sand Hills STZ are on private wells and septic tanks. The public school is on central sewer and water. Existing land uses within the Sand Hills STZ include Agriculture, Public/Institutional, Conservation/Preservation, General Commercial, and Rural Residential. Lands designated Agriculture can be developed at one dwelling unit on ten acres ("1 du/10 ac"). Lands designated Rural Residential can be developed at 1 du/3 ac on unpaved roads and 1 du/ac on paved roads. This leads to some semantic confusion. Densities of 1 du/10 ac and 1 du/3 ac are rural densities, but a density of 1 du/ac is a suburban density. That means the Rural Residential land use designation allows for densities that are suburban in character and the rural community STZs are not altogether rural. Abutting the Sand Hills STZ on the north is Washington County. To the south are areas designated Agriculture/ Timberland. The community of Southport is located about five miles to the south. West of the Sand Hills STZ is the Northwest Florida Beaches International Airport and other lands subject to the West Bay Area Sector Plan. East of the Sand Hills STZ is Deer Point Lake/Reservoir, the County’s primary source of drinking water. Also to the east are 8,500 acres of land owned by the Northwest Florida Water Management District that are designated Conservation/Recreation. The Sand Hills region is hydrogeologically sensitive because of significant recharge which occurs throughout the region via ground and surface waters to Deer Point Lake/Reservoir. The Plan Amendment The Plan Amendment creates a new Policy 3.4.10 to guide development in the Sand Hills STZ. The Policy begins: The Sand Hills Area is an established and continually evolving community with unique character and environmental assets that warrant a special planning approach to ensure the preservation and protection of its distinctive qualities. Due to its beautiful natural landscapes, picturesque areas, and its strategic location east of the West Bay Area Sector Plan (Centered around the Northwest Florida Beaches International Airport) and nearby transportation corridors--State Road 77, County Road 388, and State Road 20, development and growth will continue to occur in the Sand Hills Community. The Sand Hills Rural Community Special Treatment Zone is an overlay area that has been established to maintain the area's character while protecting its significant natural resources and advancing Bay County's Wide Open Spaces strategy (Map 3.7). The Sand Hills Rural Community Special Treatment Zone encourages efficient development and infill within an area that has the capacity to service future growth. Guiding principles for the Sand Hills STZ are set forth in new Policy 3.4.10: Protect important recharge areas from the effects of irresponsible development. Create a sense of place by implementing design and landscape standards. Promoting civic and community uses, and providing interconnection between uses, community parks, and open space that protect and enhance the character of the Sand Hills Community. Provide for sustainable development and environmentally responsible design. Maintain the character of the Sand Hills Rural Community while providing for neighborhood commercial, retail, office, and civic uses located within designated commercial area and corridors, appropriately scaled to meet the needs of the Sand Hills Community. Promote an integrated network of local streets, pedestrian paths, and bicycle and equestrian trails. Access management policies that promote development patterns which reduce automobile trip length. Provide for a range of housing types for all ages, incomes, and lifestyles. Provide centralized utilities for all new developments in a planned, coordinated and efficient manner. Policy 3.4.10.1 would allow properties designated Rural Residential to increase from 1 du/ac to 4 du/ac if central water and sewer are available and other conditions are met as set forth in Policy 3.4.10.4. Policy 3.4.10.2 has special conditions applicable to commercial development, such as a maximum floor area ratio of 30 percent. General Commercial land uses are only permitted in three designated "Commercial Nodes." Policy 3.4.10.3 creates special conditions applicable to agricultural uses in the Sand Hills STZ. Policy 3.4.10.4 establishes criteria for new development in the Sand Hills STZ, including the requirement for a site analysis by a licensed engineer or geologist. This requirement is imposed to protect karst features and aquifer recharge areas. This Policy also requires enhanced stormwater treatment and buffers around karst features, low impact design and landscaping standards, and open space requirements. Policy 3.4.10.5 requires the County to complete a plan by January 2012 for the expansion of water and sewer facilities into the Sand Hills STZ and to "retrofit" existing septic tanks by connecting properties to central sewer lines. New developments, regardless of density, are required to connect to central sewer lines if they are within 1,000 feet. Policy 3.4.10.6 addresses roadway access management to reduce reliance on State Road 77 and preserve levels of service. Internal Inconsistency Petitioner contends that the Plan Amendment is inconsistent with existing Policy 3.4.4 which states, in part, that rural community STZs are intended: to promote infill development into existing rural developed areas that will allow residents to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the designated and surrounding areas. Petitioner has a misunderstanding about Policy 3.4.4 that is the basis for several of her objections to the Plan Amendment. Petitioner focuses on the words "preserving the rural and low density land uses" and fails to see that the primary purpose of the policy is to enhance communities out in the rural areas of Bay County by encouraging the creation of a "nucleus" of mixed land uses in a compact development, while preserving the rural character of the surrounding area. Petitioner also asserts that the Plan Amendment is inconsistent with Policy 3.4.4 because the policy refers to "existing" developed areas, but the Plan Amendment allows residential density increases on some lands that are currently undeveloped. Petitioner's interpretation of the wording in the policy is not the only interpretation that can be given to the words and it is not the interpretation that Bay County gives to the words. Bay County interprets existing developed areas as a general reference to the areas that are currently recognizable as the core of village-like features, rather than a finite group of parcels. Policy 3.4.4 refers to the designation of rural community STZs "consistent with the Wide Open Spaces Strategy." A 7-page document entitled "Wide Open Spaces Strategy" was admitted into evidence as Petitioner's Exhibit 41. It is stated in the strategy that: This policy is an attempt by the Board of County Commissioners to focus its infrastructure planning and construction efforts. In no way should this policy be construed to discourage anyone choosing to live in the rural area. Rather, the Board is establishing the parameters and expectations that should be associated with that choice. The significance of the strategy to a compliance determination is not clear. It does not appear in the Comprehensive Plan and it may not have been properly adopted by reference. See § 163.3711(1)(b), Fla. Stat. Policy 3.4.4 states that a rural community STZ is to be "designated" consistent with the strategy, but this Plan Amendment does not designate the Sand Hills STZ. There are general statements in the strategy that fail to account for more specific policies of the comprehensive plan. For example, the strategy states that the County will limit residential development in rural communities to 1 du/3 ac, even though the Comprehensive Plan clearly allows 1 du/ac on Rural Residential lands if the lands are on paved roads. Statements in the policy regarding rural services do not reflect the existing public services and utility planning in the Sand Hills STZ. These disharmonies between the Wide Open Spaces Policy and the Comprehensive Plan suggest that the strategy is a collection of general statements that are not intended to have the same force and effect as the policies of the Comprehensive Plan. The record evidence is insufficient to show the intended role of the strategy in Bay County's comprehensive planning. The record evidence is insufficient to show that the Plan Amendment is inconsistent with the strategy. Petitioner contends that the Plan Amendment is inconsistent with Policy 6.10.5 of the Conservation Element, which states: "The County will maintain rural densities and intensities of development in identified high aquifer recharge areas." The existing rural densities in the Sand Hills STZ (1 du/10 ac and 1 du/3 ac) are not changed by the Plan Amendment. The existing suburban densities of 1 du/ac cannot be increased unless the parcels are connected to central water and sewer systems. Therefore, the purpose of Policy 6.10.5--to protect aquifer recharge areas--is achieved by the Plan Amendment. The stated "performance measure" for Policy 6.10.5 is the maintenance of rural designations on the FLUM. The Plan Amendment maintains rural designations on the FLUM. Petitioner contends that the Plan Amendment is inconsistent with Policy 3.2.3 because it conflicts with the intent of the policy to limit the Sand Hills STZ to rural levels of service. However, Policy 3.2.3 does not prohibit the County from providing central services in the Rural STZs. The service area map for the Sand Hills STZ shows that central water and sewer services are already planned. The County already provides central sewer and water to the public school located in the Sand Hills STZ. Petitioner claims that the Plan Amendment, for the first time, allows general commercial uses within the Sand Hills STZ, but General Commercial uses were already allowed in the Sand Hills STZ. In summary, Petitioner failed to prove facts showing that the Plan Amendment causes the Comprehensive Plan to be internally inconsistent with any goal, objective, or policy of the Comprehensive Plan. Data and Analysis Petitioner asserts that there is insufficient data and analysis to support the need for increased residential density to meet population projections for the area. A local government can accommodate more than the projected population. See § 163.3177(6)(a)4., Fla. Stat. The Plan Amendment responds to growth pressures in the Sand Hills STZ, modifies antiquated subdivisions, and furthers numerous other general and specific goals, objectives, and policies of the Comprehensive Plan to promote well-designed, environmentally-protective, infrastructure-efficient, high- quality communities. Petitioner contends that the Plan Amendment is not supported by appropriate data and analysis regarding the protection of aquifer recharge areas. However, the evidence offered by Petitioner only established that she wants the Plan Amendment to be more protective. Petitioner's expert hydrogeologist, Dr. Kincaid, admitted that the County had taken "strong" and "aggressive" measures in the Plan Amendment to protect water quality, but said he wished the County had done more to address water withdrawals. There was no evidence presented indicating that there is insufficient water available to serve the Sand Hills STZ. The Northwest Florida Water Management District has exclusive authority to regulate water withdrawals in Bay County. See § 373.217(2), Fla. Stat. The Deer Point Lake Hydrologic Analysis is the principal data and analysis that the Plan Amendment is based upon. In addition, the Plan Amendment is supported by the analysis presented at the final hearing by Dr. Kincaid and Steve Peene. Petitioner did not present data and analysis showing that the Plan Amendment would be harmful to water resources. Petitioner contends that the Plan Amendment is not supported by data and analysis regarding impacts on species and habitats. Petitioner did not explain what additional data and analysis would be required regarding species and habitat when the lands affected by the Plan Amendment are already designated for residential and commercial development. Petitioner refers to comments made by the Fish and Wildlife Conservation Commission, but those comments are also unexplained, and are hearsay. The Conservation Element of the Comprehensive Plan addresses the protection of natural resources, species, and habitat. The Plan Amendment does not remove any goal, objective, or policy of the Conservation Element. Petitioner did not show the Plan Amendment would be harmful to species and their habitat. A large area where septic tanks are used can be expected to be a source of groundwater contamination because a significant number of septic tanks will fail. The Plan Amendment includes a new map which depicts priority areas for retrofitting existing parcels that use private wells and septic tanks and connecting the parcels to central water and sewer lines. Petitioner contends that the mapping is not supported by data and analysis. The priority areas were selected based on development density and proximity to Deer Point Lake. Those data are sufficient to support the mapping of priority areas. Petitioner produced no contrary data and analysis. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not supported by relevant and appropriate data and analysis. Urban Sprawl Petitioner contends that the Plan Amendment encourages urban sprawl, but her evidence was not persuasive. According to Petitioner's theory of sprawl, every rural town and village would be an example of sprawl because they all "leap frog" from urban areas over agricultural and rural lands. Leap frogging as an indicator of sprawl usually involves a leap from an urban area to an area of undeveloped rural lands which will be transformed into urban or suburban land uses. That is not the situation here. The Plan Amendment's application of modern planning principles to enhance the quality and functionality of an existing rural community does not indicate urban sprawl. Petitioner contends that the Plan Amendment triggers most of the 13 indicators of urban sprawl that are set forth in section 163.3177(6)(a)9., but she failed to prove the existence of any indicator. The Plan Amendment does not promote the development of a single use or multiple uses that are not functionally related. It does not promote the inefficient extension of public facilities and services. It does not fail to provide a clear separation between urban and rural uses. In summary, Petitioner failed to prove facts showing that the Plan Amendment constitutes a failure of Bay County to discourage the proliferation of urban sprawl. Other Compliance Issues Petitioner contends that the Plan Amendment's provisions regarding infrastructure were not shown to be financially feasible, but the record evidence shows otherwise. Bay County has water and sewer facilities with sufficient capacity to serve the Sand Hills STZ. Furthermore, the new law eliminated the financial feasibility provisions of section 163.3177. Petitioner contends that the Plan Amendment improperly changes the FLUM, but the Plan Amendment does not change the FLUM. The rural community STZs are overlays that do not change FLUM designations. Petitioner contends that the Plan Amendment does not address hurricane evacuation times, but did not show that there is any legal requirement for Bay County to address hurricane evacuation times for amendments affecting lands outside of areas of hurricane vulnerability. Petitioner alleges that the Plan Amendment is inconsistent with the requirements of section 163.3177 related to energy conservation and efficiency, but the law cited by Petitioner was eliminated by the new law. Petitioner stated at the final hearing that her real objection is that the Plan Amendment promotes subdivisions far away from employment centers. Growth in the Sand Hills STZ is likely to be affected by and run parallel to growth in the adjacent West Bay Sector Plan because it is a developing employment center. Furthermore, the Plan Amendment is designed to make the Sand Hills STZ more self-sustaining, which would reduce vehicle miles. Petitioner contends that the Plan Amendment does not include sufficient standards and measures for the implementation of its new policies. The Plan Amendment is primarily self- implementing, in that it sets forth specific conditions for development. In addition, the Plan Amendment includes guiding principles that can be used in the application of existing land development regulations (LDRs) or the adoption of new LDRs. There also are references in the Plan Amendment to other regulatory programs that will be used to implement the policies. Petitioner claims the Plan Amendment was not coordinated with Washington County, but she did not prove the claim. In summary, Petitioner failed to prove facts showing that the Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment is in compliance. DONE AND ENTERED this 18th day of October, 2011, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2011.
The Issue The issue in this case is whether the Gilchrist County comprehensive plan and subsequent remedial amendments are "in compliance" pursuant to Chapter 163, Part II, Florida Statutes.
Findings Of Fact PARTIES Intervenors Craig Hennis, Jim Moore, and Jean Wonser own property in Gilchrist County, Florida, which is located in or near the area known as the Waccasassa Flats. Hennis, Moore, and Wonser submitted oral and written comments during the review and adoption proceedings. Hennis, Moore, and Wonser are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. Gilchrist County Gilchrist County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Florida Statutes The County is situated in North Central Florida. The County is bordered on the east by Alachua County; on the south by Levy County; on the west by Dixie and Lafayette Counties; and on the north by Suwannee and Columbia Counties. The County seat is the incorporated City of Trenton. The County contains many areas of natural resources including the Santa Fe River in the north, the Suwannee River in the west, numerous fresh water springs, and the Waccasassa Flats. Department The Department is the state land planning agency charged with the responsibility of reviewing local government comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Waccasassa Flats The Intervenors' challenge concerns the level of protection afforded the Waccasassa Flats (Flats). The Flats are approximately 56,000 acres in size in Gilchrist County and act as the source of the Waccasassa River, whose headwaters are located in Levy County. The Flats extend from northern Gilchrist County through Levy County to the Gulf of Mexico. The Flats are situated on a high limestone formation between two sand ridges. The Flats are a mosaic of uplands, wetlands, and sandhills composed primarily of commercial pine plantations, hardwood swamps, isolated strands of cypress domes, and shrubs and brush. Approximately 31,000 acres are forested uplands and forested flatwoods; 24,000 acres, forested wetlands and non-forested wetlands; and 1,000 acres, non- forested uplands. The water table in the Flats is generally near or above the surface, and is linked to a surficial aquifer, not the Floridan Aquifer, which is much deeper. The Flats act as a low to moderate water recharge area by collecting water, then slowly releasing it to surrounding areas. The Flats are not unlike many parts of North Central Florida, including northern Columbia County, eastern Alachua County, parts of Baker and Levy Counties, Nassau County, Lafayette County, eastern Hamilton County, western Madison County, Taylor County, and Dixie County. Within Gilchrist County, the Flats are privately owned and historically have been logged in large part by commercial silviculture companies. This activity continues today. A network of logging roads and fire lines have been cut through the Flats. Silviculture activities such as the clearcutting of large tracts of timber, replanting with non-native species of pine, and creating a monoculture pine forest, have degraded the ecosystem, fragmented wildlife habitat, and negatively impacted some species of wildlife and native vegetative communities in the Flats. For example, throughout most of the Flats native longleaf pine communities no longer exist. Many of the native hardwood hammocks have been cut to increase the land available for pine planting and harvesting. In addition, native cypress trees have been cut. While the Flats still function as a natural system, they are not a pristine system because of these past and current silviculture activities. The Division of Forestry in the Florida Department of Agriculture and Consumer Services recommended that 56,050 acres of the Flats be acquired by the State of Florida through the Conservation and Recreation Lands (CARL) program. The Flats have been on the CARL acquisition list since 1988: they were ranked ninth on the list in 1988 and thirty-third in 1993. WACCASASSA FLATS/DENSITY Intervenors assert that the Plan fails to adequately preserve and restore the natural resources associated with the Flats. Specifically, Intervenors claim that a density of one dwelling unit per 160 acres in the area designated Silviculture/Agriculture (S/A) on the County's FLUM does not preserve wildlife, wildlife habitat, native vegetative communities, and groundwater quality, nor restore wetlands in the Flats. Policy I.2.2 of the Plan establishes the densities in the S/A land use category at no more than one dwelling unit per 160 acres and no more than one development unit per 80 acres. The policy defines development units as: [] structures commonly associated with row crops, pasture, hunting or silviculture activities such as barns, outbuildings and sheds, vehicle storage, small mill operations, and small office structures. . . The density established under Policy I.2.2 is a low density. By requiring at least 160 acres before one residence can be built, development in the S/A category is discouraged and directed to other areas of the County where higher densities are permitted. The following uses and activities are established by Policy I.2.2 for lands classified as S/A: Lands classified in Silviculture/Agriculture shall be lands which are predominantly used for silviculture activities conducted in accordance with Policy V.2.16, limited agricultural uses as described below, dwelling units, development units, archery ranges, rifle, shotgun and pistol ranges, and hunting and fishing camps and uses customarily accessory and clearly incidental and subordinate to such uses. Policy I.2.2 describes the limited agricultural activities permitted in the S/A land use classification: Within the Silviculture/Agriculture land use classification, intensive agriculture uses shall be prohibited. Grazing of livestock on pasture lands shall be allowed and row crops planted on a rotational basis between the harvesting of timber and planting of trees as part of silviculture activities shall also be allowed. Row crop activity shall be limited to areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) and shall maintain a 50-foot natural buffer around all wetlands. The Plan conserves and protects wetlands. In addition to restricting row crops to drier soils and requiring buffers between row crops and all wetlands (as described above), Policy I.2.2 provides: [] ditching or any other activity which would modify the natural hydrology and environmental character of Silviculture/Agriculture areas shall be prohibited, provided however, that trench irrigation shall be allowed in areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) for row crops within Silviculture/Agriculture areas so long as such trench irrigation practices do not result in the conversion of wetlands to uplands. To further protect wetlands, Policy V.2.4 requires a 35-foot natural buffer around all wetlands, within which agricultural and residential uses are prohibited. Additionally, Policy V.2.8 prohibits development which alters the natural functions of wetlands where all structures can be clustered on the non- wetland portion of the site. Where that option does not exist, Policy V.2.8 permits only minimal residential development activity and establishes other limitations on development, including the requirement that walking paths and driveways to residences use permeable fill and allow the uninterrupted flow of water. Wetlands are also protected by Policy V.2.16, which requires silviculture activities to follow the best management practices established in the 1993 Florida Department of Agriculture's "Silviculture Best Management Practices." These identified policies in the Plan conserve and protect wetlands in the Flats. Intervenors assert that development at the rate of one dwelling unit per 160 acres will "fragment" wildlife habitat in the Flats and thereby negatively affect wildlife associated with the Flats. The Flats is not a particularly significant habitat for threatened or endangered species, species of special concern, or rare species. The best available existing data shows that the habitat in the Flats is not used by many, if any, of these types of species. Development at the low density allowed in the S/A land use classification will not adversely impact either the habitat or the wildlife which might use that habitat. Some species may be positively impacted by the limited development activities allowed in the Flats under the Plan. While wading birds at times forage for food in the Flats, development at the low density allowed in the S/A land use category, with the various wetlands protection policies in the Plan, will not adversely affect utilization of the Flats by these bird populations. An individual animal may be negatively impacted by limited development of one dwelling unit per 160 acres, but the wildlife population as a whole will suffer no adverse impacts. Moreover, development at this density could cause less severe fragmentation and fewer negative impacts than are caused by current silviculture practices which have been utilized in the Flats for decades. Policy V.2.8, relating to residential development in wetlands, limits clearing or removal of native vegetation and provides some protection to the Flats. Such clearing or removal may not exceed more than one-half acre per five acres. Requirements of Policy V.3.4 that the County cooperate with other governmental entities, research and interest groups to conserve and protect unique vegetative communities within the County, affords protection to wildlife, wildlife habitat, and native vegetative communities. Also, Policies V.3.4, V.4.1, and V.4.2 require the County to cooperate with the Florida Game and Freshwater Fish Commission in monitoring and inventorying wildlife and wildlife habitats, including cooperating in the application, and compliance with, all federal and state regulations pertaining to endangered and rare species. Policy V.4.3 also requires consultation with the Florida Game and Fresh Water Fish Commission prior to the issuance of a development order where there is an indication that such issuance would result in an adverse impact to any endangered or rare species. The low density permitted in the Flats, in conjunction with wetlands protection and other identified policies in the Plan, will conserve and protect wildlife, wildlife habitat, and existing native vegetative communities, and maintain the overall integrity of the natural resources in the Flats. Intervenors assert that placement of septic tanks within the Flats have the potential to contaminate the underlying groundwater. Contamination from a septic tank from a residential development at a rate of one dwelling unit per 160 acres will have no significant impact on groundwater quality. Scientific studies show that any adverse impact of effluent from a septic tank system, or even a malfunctioning septic tank, is dissipated within 50 feet. As a result, the placement of septic tanks in the Flats at the designated density required by the Plan will not adversely impact the groundwater quality. In addition to the Plan's protection of groundwater quality as a result of the maximum density in the S/A land use classification of one dwelling unit per 160 acres and one development unit per 80 acres, protection also results from the previously-identified policies relating to wetlands protection. A comprehensive approach to conserving and protecting the natural resources associated with the Flats has been established by the County through all the above-referenced policies. The Plan relies on the low density established for the S/A land use classification, as well as various planning controls. These controls limit the type and extent of uses allowed in the S/A land use classification and protect wetlands, and require cooperation with other governmental entities to ensure the conservation and protection of wildlife, wildlife habitat, native vegetative communities, and groundwater quality in the Flats. BOUNDARY DESIGNATIONS FOR SILVICULTURE/AGRICULTURE AND AGRICULTURE-5 LAND USE CLASSIFICATIONS Intervenors assert that the County's designation of the S/A and Agriculture-5 (Ag-5) land use classifications are inappropriate and do not follow the boundaries of the Flats. Although the Flats are approximately 56,000 acres in Gilchrist County, there is no definitive boundary for the Flats. Prior to the 1991 adoption of the County's comprehensive plan, the Flats were zoned Preservation-1 (P-1). The lands zoned P-1 prior to 1991 now are classified by the Plan as S/A. The size of the S/A category is slightly larger than the P-1 zone. The subject of boundaries of the Flats was addressed in Gilchrist Timber Company v. Gilchrist County, Florida, Case No. 88-156-CA (Eighth Judicial Circuit, August 21, 1989). In that case, the circuit court determined that the County did a "commendable and legally defensible task in following section lines, quarter section lines and existing uses in setting the boundaries [of the P-1 zoning category]. These lines must be somewhere and those made in this case are quite reasonable." Much of the land surrounding the Flats was zoned General Flood Plain-1 (GFP-1) or General Flood Plain-2 (GFP-2) prior to the 1991 Plan adoption; the vast majority of that land now is classified by the Plan as Ag-5. In determining the boundaries of the S/A and Ag-5 land use classifications for the FLUM in the adopted Plan, the County reviewed its zoning map, conducted site visits, and utilized updated maps and information prepared by state, federal, and regional agencies. These maps included the Federal Emergency Management Agency's Flood Insurance Rate Map (1988); the U.S. Fish and Wildlife Service's National Wetlands Reconnaissance Survey (1981); the U.S. Department of Agriculture Soil Conservation Service's Soil Associations map (1991); and the Florida Sinkhole Research Institute's Potential for Groundwater Pollution of the Floridan Aquifer (1988). This information was the best available data and analysis which existed at the time the Plan and remedial amendments were adopted. These maps depict the boundary of the resources within the Flats, but cannot be used to definitely establish the boundaries of the Flats. Policy I.2.2 establishes the density for the Ag-5 land use classification as one dwelling unit per 40 acres. This is a low density which discourages development in the Ag-5 category, and directs development to other areas of the County which have higher densities. The density in this land use classification thereby serves to limit negative impacts from development to surrounding areas, including the Flats. As a buffer between the Flats and surrounding agriculture lands, the Ag-5 areas protect natural resources in the Flats from the potential adverse impacts of agricultural activities and higher densities and intensities of development permitted outside the Flats. Buffering in this way is a professionally-accepted planning tool for protecting natural resources. The natural resources associated with the Flats will receive adequate protection through the Plan policies referenced earlier, regardless of whether they fall within the S/A or Ag-5 land use classification. The data and analysis used by the County to delineate the boundaries of the S/A and Ag-5 land use classifications was the best available existing data, was relevant and appropriate. The Plan's classification of certain lands as S/A and Ag-5 was reasonable and based on sound planning principles. NEEDS ASSESSMENT Intervenors allege that the future population projections in the Plan do not demonstrate a need for additional density in the Flats in order to meet the future residential needs of Gilchrist County. Pursuant to Plan Policy I.2.2, a density of one dwelling unit per 160 acres in the S/A land use category would allow a maximum of 232 dwelling units to be built in the Flats. Under Plan Policy I.2.2, the current density allowed in Ag-5 is one dwelling unit per 40 acres. A comparison of the adopted FLUM with the prior zoning map reveals that over 5,000 acres are designated Ag-5 which were formerly zoned GFP-2 prior to the Plan's adoption. Under the old GFP-2 zoning category, a maximum of 5,000 dwelling units could have been built. Under the current Ag-5 land use classification, no more than 160 dwelling units could be built. Through the Plan's adoption, the densities established for the combined S/A and Ag-5 land use classifications result in an overall reduction in density allowed in the Flats and surrounding areas. Moreover, the densities permitted in these areas do not result in adverse impacts to natural resources in the Flats. The County's designation of densities in the S/A and Ag-5 land use classifications is reasonable and appropriate and based on data and analysis in the Plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department of Community Affairs enter a Final Order finding the Gilchrist County Comprehensive Plan as subsequently amended to be "in compliance." DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 23rd day of May, 1995.
The Issue Whether Permit Number 9220003617 issued by Monroe County, Florida, to Jeanne and Aldo Faga is inconsistent with the Monroe County Comprehensive Plan and Monroe County Land Development Regulations. Three areas of dispute were involved in this proceeding: Whether the permitted development (as modified by stipulation) is inconsistent with provisions requiring development to be clustered on the least environmentally sensitive portion of the site; Whether the permitted development (as modified by stipulation) is inconsistent with provisions pertaining to construction in mangroves and submerged lands; and Whether the permitted development (as modified by stipulation) is inconsistent with provisions establishing setback requirements from beach berms that are known turtle nesting areas.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Jeanne Faga and the Estate of Aldo Faga, deceased, hereafter referred to collectively as the "Fagas," are the owners of approximately ten acres of real property known as Lots 23 through 32, Block 21, Coco Plum Beach subdivision, Fat Deer Key, in unincorporated Monroe County, Florida. This property, acquired by the Fagas in 1971, has been subdivided by the Fagas into four parcels. Lots 23-24 have been consolidated and will be referred to as Parcel A. The remaining lots have been divided into Parcels B, C, and D. Grill Construction, Inc., is a Florida corporation and is the general contractor for Respondent for the building permit at issue. Monroe County, Florida, is a political subdivision of the State of Florida. Monroe County did not actively participate in this proceeding. THE DEVELOPMENT ORDER AND ITS HISTORY Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Petitioner and by the Administration Commission. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). While Respondent originally applied for a development permit for one residence on each of the four parcels and for an access bridge on Parcel A, the subject of this permit appeal proceeding is the development order for Parcel A only. If the project is permitted, it is contemplated that the access bridge at issue in this proceeding will provide access to the residences the Fagas hope to build on Parcels B, C, and D. The initial permit application for a residence on each of the four (4) parcels and an access bridge on Parcel A capable of use by motor vehicles was denied by Monroe County staff. The Fagas thereafter appealed the staff denial to the Planning Commission. The Planning Commission reviewed the project and affirmed the denial by staff. The Fagas thereafter appealed the denial by the Planning Commission to the Monroe County Commission. On July 28, 1993, the Monroe County Board of County Commissioners adopted Resolution No. 299-1993, which reversed the denial of the appeal by the Planning Commission, and authorized the Fagas to go forward with the building permit applications. On September 23, 1993, Monroe County issued to the Fagas and Grill Construction Co. building permit number 9220003617, the development order that is the subject of this proceeding. This development order includes public works permit number 0764 and building permit number 9220003615, which address the proposed access bridge on the subject site. The development order approves the permit for the access bridge that was issued by the Department of Environmental Protection. This development order authorizes the construction of a 4,501 square foot single family home with 2,426 square feet of porches, a 813 square foot enclosure for parking and storage, fill for a driveway, a separate guest house and an elevated bridge approximately 12 feet wide and 160 feet long. The building permit issued by Monroe County at issue in this proceeding did not include construction on Parcels B, C and D. The Department timely filed its challenge to the subject development order pursuant to Section 380.07, Florida Statutes. STIPULATED PERMIT CONDITIONS The parties stipulated that the following modifications to the development order would be made if the project is permitted: 2/ The subject development permit conditions shall be amended to state that the subject site plan shall include no drainage swales and no concrete slabs. The subject development permit conditions shall be amended such that the site plan shall include no fill or excavation between the proposed structures and the salt water slough, for a driveway or for any other purpose, except for minimal fill necessary for the ramp at each end of the proposed bridge. No fill or excavation shall occur within the existing mangrove habitat as depicted on the site plan and as verified in the field prior to construction. The subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The subject development permit conditions shall be amended to reflect the guest suite be connected to the main structure (single family residence, or "SFR") by an enclosed interior hallway, atrium or the like, so as to form a single habitable unit. In addition, the Fagas will execute a restrictive covenant to run with the land which prohibits rental, sale or lease of the guest suite, or anything less than the entire single family residence. Each stairwell to the SFR will access a deck which provides uniform access to each room in the SFR, and the site plan shall include no additional independent access to the guest suite. Only minimal excavation will be allowed for transplantation on the beach berm, i.e., the absolute minimum amount necessary to transplant the native species identified in the County-approved transplantation plan. The transplantation shall occur in a manner which preserves the contour of the beach berm and ground cover resources on site and restores the area cleared for development to natural conditions which include native plant species transplanted on site. GENERAL DESCRIPTION OF PARCEL A Most of the land constituting the four Faga parcels was "created" in the late 1950s, by depositing seaward (south) of the then existing shoreline spoil material from offshore dredging. The original "beach" in this area of Fat Deer Key (prior to the dredge and fill activities) existed just south of Coco Plum Drive, which now serves as the northern border of the Faga parcel. As a result of this dredge and fill activity, most of the dry land that presently exists on Parcels A-D was created from lands that were submerged. Additionally, the saltwater slough that exists on Parcels A-D was created as a result of this dredge and fill activity. The subject site, Parcel A, is bordered on the north by Coco Plum Drive, on the West by a multistory condominium development, on the South by the Atlantic Ocean, and on the East by Parcel B. Parcel A is rectangular, with the East - West measurement being approximately 215 feet and the North - South measurement being approximately 375 feet. The Eastern third of the central portion of the Faga parcel contains a shallow, manmade water body (the "saltwater slough"), which is fringed with mangroves. Because the saltwater slough was created by the dredge and fill activity, it is appropriate to classify the saltwater slough as a manmade water body pursuant to Section 9.5-4 9(M-4), M.C.C., which defines the term "manmade water body" as follows: (M-4) Manmade water body means a water body that was created by excavation by mechanical means under human control and shall include a canal, cut basin or channel where its edges or margins have subsequently been modified by natural forces. All of Parcel A, meets the following definition of "disturbed land" found at Section 9.5-4(D-14), M.C.C.: (D-14) "Disturbed Land": Disturbed land means land that manifested signs of environmental disturbance which has had an observable effect on the structure and function of the natural community which existed on the site prior to the disturbance. The remainder of the property, including the sandy beach area and beach berm, will be discussed in detail below. CLUSTERING REGULATIONS Section 9.5-345(a), M.C.C., requires clustering of development as follows: "Clustering": When a parcel proposed for develop- ment contains more than one (1) habitat type, all development shall be clustered on the least sensitive portions of the parcel subject to the maximum net densities of Section 9.5-262, the open space requirements of Sections 9.5-262 and 9.5-269 and the performance standards of this section. For the purposes of this subsection, the sensitivity of habitat types shall be as listed with subsection being the most sensitive and subsection (18) being the least sensitive. The least sensitive part of the parcel shall be fully utilized prior to the distribution of density to the next least sensitive habitat type. High hammock (high-quality); Palm hammock; Cactus hammock; Beach/berm; Pinelands (high-quality); Salt marsh and buttonwood associations; High hammock (moderate-quality); Low hammock (low-quality); Low hammock (moderate-quality); Pinelands (low-quality); High hammock (low-quality); Low hammock (low-quality); Disturbed with hammock; Disturbed with salt marsh and buttonwood; Disturbed beach/berm; Disturbed with exotics; Disturbed with slash pines; Disturbed. Landowners are required to cluster development on the least sensitive portions of their property, subject to open space requirements for the respective classifications and subject to the maximum density for a parcel. An area classified as "disturbed" has a twenty percent open space requirement. Parcel A has a maximum density limit of 2.5 units per acre. HABITAT DETERMINATION -- GENERALLY To determine whether it is necessary to cluster this development, it is necessary to determine the habitat classification for Parcel A. Monroe County has adopted an existing conditions map that purports to show the existing habitat classifications on Parcel A. The existing conditions map reflects two habitat classifications for Parcel A: open water (the area of the saltwater slough) and disturbed with buttonwood and salt marsh. The area designated on the Aslan survey 3/ as the saltwater slough is properly designated as open water. The parties agree that the classification on the existing conditions map for the remainder of Parcel A as "disturbed with buttonwood and salt marsh" is incorrect. The parties disagree as to the appropriate habitat classification for the portions of Parcel A landward and seaward of the saltwater slough. Brian Winchester, on behalf of the Fagas, spent in excess of 80 hours on the four Faga parcels, conducting visual observations and taking core samples. He conducted field surveys of the four parcels during July 9-11, September 23- 24, October 20-22, and November 11-12, 1992. Staff of the Monroe County Environmental Resources Department conducted a joint site visit to the parcels with Mr. Winchester on September 23 and October 21, 1992. Mr. Winchester identified each small area of the parcel that he believed justified a distinct habitat classification and, based on a qualitative and quantitative analysis (which included counting individual stems in some areas), determined whether there was a dominate species for each area. In October and November, 1992, Mr. Winchester staked the edges of each portion of Parcel A that he believed constituted a distinct habitat. Those staked areas reflecting a plant community were then measured by Aslan, Inc. and depicted on the Aslan survey. The Aslan survey also marks the mean high water line on the property and measures the topography of all four parcels. Kathleen Edgerton and Patricia McNeese, the biologists who testified for the Petitioner, disagreed with Mr. Winchester's habitat evaluation. They conducted separate on-site inspections of the property, each with the benefit of the Aslan survey, and each determined what she considered to be the appropriate habitat classifications on Parcel A. Ms. Edgerton and Ms. McNeese were in agreement as to how the habitats of Parcel A should be classified. Petitioner's experts determined the extent of the saltwater slough and the mangrove fringe surrounding it. They determined the extent of the beach berm (which they consider to extend to the mangrove fringe on the seaward side of the slough) and determined the habitat of Parcel A seaward of the mangrove fringe. They then determined the habitat classification for the portion of Parcel A lying landward of the mangrove fringe. Based on their on-site evaluations of the property, Petitioner's experts did not believe that the portion of Parcel A lying landward or seaward of the mangrove fringe justified more than one habitat classification. In resolving the conflicting testimony between Respondents' expert and Petitioner's experts, more weight is given to the opinions expressed by Ms. Edgerton and Ms. McNeese because they have had extensive experience in conducting habitat classifications for lands in the Florida Keys as a part of their official responsibilities. While Mr. Winchester is an accomplished biologist, his experience in making habitat determinations in the Florida Keys is limited. The undersigned is persuaded by the testimony from Petitioner's experts that observations of species on site for making habitat determinations involve the subject parcel in larger perspective than that used by Mr. Winchester. HABITAT DETERMINATION -- LANDWARD OF THE SLOUGH Mr. Winchester expressed the opinion that the following habitat classifications exist on the portion of Parcel A lying landward of the mangrove fringe: a small strip of land adjacent to the road that should be classified as "disturbed"; a larger strip of land that should be classified as "disturbed with exotics"; and a third strip of land that should be classified as "disturbed with salt marsh and buttonwood". Petitioner's experts testified that the entire portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". This dispute is resolved by finding that the greater weight of the evidence establishes that the portion of Parcel A landward of the mangrove fringe should be classified as "disturbed". While exotics, including Australian Pines and Brazilian peppers, exist in different areas of this part of the property, Petitioner's experts established that other vegetation exists and that exotics do not dominate the portions of the property classified by Mr. Winchester as "disturbed with exotics". Likewise, it is concluded that the portion of the property classified by Mr. Winchester as "disturbed with salt marsh and buttonwood" should be classified as "disturbed" since there is little salt marsh and buttonwood does not dominate. Further, there exists in this area trees and vegetation that are not typically found in an area designated as "salt marsh and buttonwood". THE MANGROVE FRINGE AND THE SALTWATER SLOUGH The Department of Environmental Protection (DEP) has claimed jurisdiction of the saltwater slough, an assertion that is not challenged in this proceeding. The parties disagree as to whether the saltwater slough is tidally influenced and whether the mangrove fringe around the saltwater slough meets the definition of a "mangrove community". The salt water slough consists of shallow, landlocked water over mud, sand and marl bottoms. The water level increases with heavy rains and infrequent storm tides, and decreases during periods of drought. The slough has been observed to be dry during time of drought, negating any inference of regular tidal influence. Based primarily on Mr. Winchester's observations and quantitative measurements, it is concluded that there is no regular tidal influence on the slough. That the saltwater slough is ecologically significant and provides a valuable resource for birds, especially during storms, was not seriously disputed at the formal hearing. The birds that normally use the beach will come into the slough, where they can stay within the protection of the mangroves. They feed there, and are not subjected to wave force and wind that they would receive if they were on the outside. The salt water slough is encircled by a fringe of mangroves. Mr. Winchester classified the mangrove fringe as "disturbed with mangroves". This classification is consistent with similar classifications on Monroe County's existing conditions maps, but the classification is not separately listed in the County's land development regulations pertaining to clustering because specific regulations limit development in mangroves. 4/ Whether the areas delineated by the Aslan survey as being the mangrove fringe is classified as "mangroves" or as "disturbed with mangroves" is irrelevant for determining the issues presented by this proceeding. HABITAT DETERMINATION - WATERWARD OF THE SLOUGH Section 9.5-4(B-3), defines the term "beach berm" as follows: Beach berm means a bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. Parcel A contains a sandy beach, including a seaweed wrack and some low vegetation which is typical of beach berm vegetation as defined in the Monroe County Code. Behind the low vegetation, lies an area of Australian Pine trees that extends to the seaward extent of the mangrove fringe. Petitioner asserts that the beach berm on Parcel A extends to the mangrove fringe and that the proper classification for all of Parcel A seaward from the mangrove fringe is "disturbed beach berm". Respondents assert that seaward from the mangrove fringe on the east side of the parcel there is a small section that should be classified as disturbed with salt marsh and buttonwood, that the area with the Australian Pines should be classified as disturbed with exotics, and that the remaining portion should be classified as disturbed beach berm. The accepted characteristics of beach berm soil, as defined in the LDRs and Comprehensive plan, are "calcareous" and "unconsolidated". Reference to the soil as calcareous refers to its origin, while the consolidation of the soil refers to its compression and its cohesiveness. The soil from the mean high water line to the mangrove fringe seaward of the slough is unconsolidated, calcareous sand. The only area that appears to exhibit consolidated soils is that which has been compacted by vehicular use in the property. Vegetation typical of beach berms is scattered throughout the parcel between the mean high water mark and the mangrove fringe. The area of Parcel A that lies between the mean high water mark and the mangrove fringe seaward of the saltwater slough, is beach berm. This portion of Parcel A is properly classified as "disturbed beach berm" as opposed to "beach berm" because the entire parcel is disturbed lands and because Australian Pines have encroached on a portion of the beach berm. CLUSTERING ANALYSIS Petitioner established that development on Parcel A (with the exception of the access structure to be discussed below) should be limited to the area landward of the slough that should be classified as "disturbed". The Petitioner established that this area of Parcel A is large enough to accommodate a reconfigured version of the development. TURTLE NESTING SETBACK Section 9.5-345(3)(f), M.C.C., provides for a setback of construction from turtle nesting areas in areas designated as disturbed beach berm as follows: f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds . . . While no specific sites on Parcel A were identified as active nesting sites, the beach on which Parcel A is located is a known turtle nesting area. The expert testimony from Patrick Wells established that marine turtles most frequently nest within 50 feet of the mean high water line. The expert testimony of Mr. Metcalf established that the setback of fifty feet required in Section 9.5-345(o)(3)f, M.C.C., should be typically measured from the backslope of any beach berm crest. If there is no beach berm crest on a parcel or if the beach berm crest is more than fifty feet from the mean high water line, the setback should be measured from a line that is parallel to and fifty feet landward of the mean high water line. 5/ Mr. Winchester identified the existence of a beach berm "crest" within the area of Parcel A that is designated on the Aslan survey as disturbed beach berm. Mr. Winchester testified that he observed a three or four inch drop behind the crest and was of the opinion that the beach berm crest was formed by wind and wave action. The crest, as identified by Mr. Winchester, is marked on the Aslan survey and is just a few feet from the mean high water line. Petitioner's experts testified that there was no crest and that there was a gradual rise in the beach berm elevation from the mean high water mark to the beginning of the mangrove fringe. This conflict in the evidence is resolved by finding that there is no discernible beach berm crest until it reaches the mangrove fringe. This finding is consistent with the expert testimony presented by the Petitioner, the photographic evidence, and the topographical markings on the Aslan survey. Further, this finding is consistent with the manner in which this property was created by the depositing of fill. Based on the foregoing findings, it determined that the beginning of the setback line should be from a line parallel to and fifty feet landward of the mean high water line. The distance of the setback itself should be fifty feet as required by Section 9.5-345(o)(3)f, M.C.C. The development order at issue in this proceeding does not comply with the turtle nesting setback requirement. THE ACCESS STRUCTURE Section 9.5-345(m), M.C.C., authorizes construction of piers, docks, utility pilings and walkways on areas with mangroves and submerged lands. All structures on any submerged lands and mangroves are required to be designed, located, and constructed on pilings or other supports. DEP has issued a permit for the access structure that, if constructed, will be on pilings that are set in areas of the mangrove fringe and in areas of the slough. As permitted by DEP, the access structure would be 12 feet wide and 160 feet long. As noted above, the parties have stipulated that the subject development permit conditions shall be amended to reflect that the access bridge reflected on the site plan rendered with the building permit application shall be of a length so as to clear the mangroves and salt water slough on site such that either end of the access bridge will terminate beyond the end of the mangrove lines and the boundaries of the slough. The DEP permit contains appropriate special and general conditions to assure that the access structure will be constructed consistent with pertinent permitting criteria. The primary objection to the access structure raised by the Petitioner is to the width of the structure. Mr. Metcalf testified, without contradiction, that the acceptable standard in the planning profession for the maximum width for a walkway is six feet. Based on that testimony, it is found that the access structure should be authorized with the conditions imposed by DEP and as modified by the parties's stipulation, but with the additional condition that the width of the structure be changed from twelve feet to six feet.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order that adopts the findings of fact and conclusions of law contained herein and denies the subject development order number 9220003617. The permit can be approved if the Fagas choose to modify its application to conform to the findings and conclusions contained herein. DONE AND ENTERED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of November 1995.
The Issue The issue in this case is whether Ordinance 679-L of the City of St. Petersburg ("City"), which amended the Future Land Use Map (“FLUM”) of the City's Comprehensive Plan on certain property generally located at the northeast corner of 9th Avenue North and 66th Street North within the boundaries of the City (the "Subject Property") from Institutional to Residential Office Retail (R/O/R) land use on 2.98 acres, Residential Office General (R/OG) on 2.98 acres, and Residential Urban (RU) on 12.02 acres (the “Plan Amendment”), is "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes,i notwithstanding Petitioners' contentions that the Plan Amendment is internally inconsistent and not based on data and analysis.
Findings Of Fact Parties Each Petitioner submitted oral and/or written comments, recommendations and/or objections to the City regarding the disputed land use amendments that are the subject of this case between the day of the transmittal hearing (July 18, 2006) and the day of the adoption hearing (February 15, 2007). Each individual Petitioner owns and/or resides on property within the boundaries of the City. The Eagle Crest Civic Association, Inc., f/k/a Eagle Crest Neighborhood Association, Inc., is a Florida not-for- profit corporation conducting business within the boundaries of the City. The Eagle Crest Civic Association, Inc., collects dues from membership, conducts monthly business and informational meetings at the St. Petersburg College Gibbs Campus Library in the City, and advocates interests on behalf of its membership before the St. Petersburg Council of Neighborhood Associations and various City and County governmental boards, commissions and councils. The Department is the state land planning agency that is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality and political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Sembler is a Florida corporation headquartered and conducting business in the City; by virtue of a contract for the purchase of the property that is the subject of this dispute, Sembler is an equitable owner of the property that is affected by the challenged FLUM Amendment in this case. Background The Subject Property has been owned by the Catholic Diocese of St. Petersburg since 1952. Notre Dame High School, a Catholic girls-only high school, was constructed on the Subject Property in the early 1960’s. In 1977, Notre Dame High School merged with Bishop Barry High School (a Catholic boys-only high school to the east of the Subject Property) and the improvements on the Subject Property were used for various Catholic diocesan offices and other administrative purposes. Notre Dame High School was eventually demolished, and the only improvements remaining on the Subject Property are a former field house used for storage purposes and a former convent used for a multi-purpose building. The Subject Property is otherwise currently completely vacant. Since 1977 the Subject Property has had a FLUM designation of Institutional. In January of 2006, Sembler applied to the City for a change in the FLUM designation on the Subject Property from Institutional to Commercial General for an approximately 13.25 acre portion of the Subject Property fronting predominately along the west side 66th Street North between 9th Avenue North and 13th Avenue North. On March 7, 2006, Sembler requested a deferral of its pending application to consider a modification of the development plan to less intensive commercial uses. The deferral was granted by the City Planning Commission. On March 29, 2006, Sembler submitted a new application, abandoning the prior request to change the FLUM designation for the approximately 13.25-acre portion from Institutional to Commercial General. The new application (March 29, 2006) by Sembler requested a change to the Future Land Use designation for an approximate 6.19-acre portion of the Subject Property from its existing Institutional designation to Residential Office Retail ("R/O/R"). This new application was assigned City File Number PC-700 (“PC-700”). The intention of the PC-700 application was to develop multifamily residential units on approximately 11.8 acres of the Subject Property and to develop neighborhood commercial uses on the approximate 6.19-acre portion of the Subject Property. The PC-700 application included a Development Agreement proposed by Sembler which, among other things, limited the actual commercial development of the 6.19 acre portion to 26,000 square feet of space, and required that a quarter, or 25 percent, of that space be developed under the zoning regulations for Residential Office General ("R/OG"), instead of R/O/R. On May 2, 2006, the City’s Planning Commission (the “LPA”) conducted a public hearing to consider the PC-700 Application, and voted 6-2 to recommend approval of the PC-700 application to the St. Petersburg City Council (the “City Council”). On July 18, 2006, the City Council conducted a public hearing for the First Reading of the PC-700 application, and unanimously adopted a resolution approving the transmittal of a proposed ordinance adopting PC-700 to the Department, among others, for review and comment pursuant to Chapter 163, Florida Statutes and Chapter 9J-5, Florida Administrative Code. On September 29, 2006, the Department published its Objections, Recommendations and Comments (“ORC”) Report on the Plan Amendment contained in PC-700. The Department raised no objections to the proposed Plan Amendment. Sometime between September 29, 2006, and December 14, 2006, Sembler modified its application PC-700. The modified application was intended to address some of the concerns raised by neighborhood associations representing citizens who owned property and resided in areas adjacent to the Subject Property. The modified PC-700 application requested a FLUM amendment for 2.98 acres of the Subject Property to be changed from Institutional to R/O/R, for 2.98 acres of the Subject Property to be changed from Institutional to R/OG, and for 12.02 acres of the Subject Property to be changed from Institutional to RU (“PC-700 Modified”). The PC- 700 Modified application also included a proposed Development Agreement which, among other things, limited the actual development of the R/O/R acreage to a maximum of 13,000 square feet, and limited the total combined development of the R/O/R and ROG acreage to 26,000 square feet. On December 14, 2006, the City Council conducted its First Reading of the PC-700 Modified application, approving the application and setting the Second Hearing for the application for February 15, 2006. On February 6, 2006, the Pinellas County Commission, meeting as the County Planning Authority (the “CPA”), held a public hearing to consider the PC-700 Modified application. The CPA approved the PC-700 Modified application. On February 15, 2007, the City Council conducted its Second Reading public hearing of the PC-700 Modified application and voted to adopt Ordinance 679-L, amending the FLUM designation of the Subject Property from Institutional to R/O/R on 2.98 acres, R/OG on 2.98 acres, and RU on 12.02 acres (the “Plan Amendment”). Petitioners do not challenge the FLUM amendment for the RU portion of the Subject Property. On February 23, 2007, the City transmitted the adopted Ordinance 679-L, together with staff reports from the December 14, 2006, and February 15, 2007, public hearings and certain other pertinent information, to the Department for its review pursuant to Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. On April 16, 2007, the Department published in the St. Petersburg Times newspaper its NOI to find the City’s Plan Amendment “in compliance.” Petitioners' Challenge The Petitioners assert that the FLUM amendment adopted by the City in Ordinance 679-L is not “in compliance” pursuant to Section 163.3184(1)(b), Florida Statutes, because: (1) the FLUM amendment is not based on adequate data and analysis as required by Section 163.3177(8), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a) iii; and (2) the FLUM amendment is not internally consistent with specific objectives and policies of the City’s Plan as required by Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5)(a) and (b). The Petitioners’ challenge is centered on three specific objectives and policies contained in the Future Land Use Element ("FLUE") of the City’s Plan: Policy LU3.17, Objective LU4(2), and Objective LU18.iv The Petitioners assert that the challenged Plan Amendment is inconsistent with those objectives and policies and is not based on data and analysis. The Department and the Intervenors assert that those objectives and policies are not applicable, that the Plan Amendment is not inconsistent with those objectives and policies, and that the Plan Amendment is based on data and analysis. The Intervenors also assert that, even if the Plan Amendment were inconsistent with those objectives and policies, consistency with other goals, objectives, and policies in the plan should be "balanced" against the inconsistency and that the consistencies outweigh the inconsistencies, so that the Plan Amendment still would be "in compliance." The Petitioners and the Department do not subscribe to such a balancing of consistencies and inconsistencies, citing Dept. of Community Affairs v. Lee County and Leeward Yacht Club, LLC, AC-06-006, DOAH Case No. 06-0049GM, 2006 Fla. ENV LEXIS 158 (Admin. Comm'n Nov. 15, 2006). Pertinent City Comprehensive Plan Provisions The City's FLUE Policy LU3.17 states: The City has an adequate supply of commercial land use to meet existing and future needs. Future expansion of commercial uses shall be restricted to infilling into existing commercial areas and activity centers, except where a need can be clearly identified. The City's FLUE Objective LU4 states in pertinent part: The Future Land Use Plan and Map shall provide for the future land use needs identified in this Element: * * * Commercial – additional commercial acreage is not required to serve the future needs of St. Petersburg. An oversupply exists based upon the standard of 1 acre of commercial land for every 150 persons in the community. * * * 4. Mixed Use – developments are encouraged in appropriate locations to foster a land use pattern that results in fewer and shorter automobile trips and vibrant walkable communities. The City's FLUE Objective LU18 states: Commercial development along the City’s major corridors shall be limited to infilling and redevelopment of existing commercially designated frontages. Section 1.2.2 of the General Introduction to the City’s Plan describes the format of the elements of the Plan and includes the following pertinent sub-headings and language: 1.2.2.3 Goals, Objectives, and Policies The Goals, Objectives, and Policies have been developed in response to and in accordance with the needs and directions of growth and determined levels of service requirements as identified within the Inventory and Analysis which can be found in the accompanying 1989 Technical Support Documents [TSDs] and the 1996 Evaluation and Appraisal Report [EAR]. All objectives are designed to identify the measurable achievements necessary to support the related goal. In those cases, where the Objective is not specific and/or measurable, but rather, the actual specificity and measurability is found in the supporting policy(ies), the policy(ies) shall be used for the purposes of monitoring and evaluation. The policies are intended to act as implementation mechanisms identifying programs and procedures to be used to accomplish the related objective. This Comprehensive Plan is intended to be utilized as a document in its entirety. It shall hereby be established that no single goal, objective or policy or minor group of goals, objectives or policies, be interpreted in isolation of the entire plan. 1.2.2.5 Status and Use of the TSD and the EAR . . . . The 1989 TSD and the 1996 EAR are hereby referenced and established as the supporting data and analysis for this Comprehensive Plan. The TSD and the EAR may be used to assist in the interpretation of this comprehensive plan and to aid in the review of proposed changes to this plan. It should be updated as necessary to maintain the usability of the data and analysis as an interpretive and advisory aid. * * * 1.3.1.2 Competing Policies Where two or more policies are competing when applied to a particular set of factual circumstances, such conflict shall be resolved first by administrative interpretation of the Comprehensive plan policies. The objective of any such interpretation shall be to obtain a result which maximizes the degree of consistency between the proposed development or public sector activity and this Comprehensive Plan considered as a whole. The City’s Plan also includes the following pertinent definitions in Section 1.7: Commercial Uses - Activities within land areas which are predominately connected with the sale, rental, and distribution of products, or performance of services. * * * Mixed Use - A site that has a combination of different land uses, such as residential, office and retail. In addition, Policy LU3.1(B) of the City’s FLUE defines "Commercial and Mixed Use Categories" to include: Residential/Office General (R/OG) - allowing mixed use office, office park and medium density residential up to a floor area ratio of 0.5 and a net residential density of 15 dwelling units per acre. . . . Commercial General (CG) - allowing the full range of commercial uses including retail, office, and service uses up to a floor area ratio of 0.55. . . . Retail/Office/Residential (R/O/R) - allowing mixed use retail, office, service, and medium density residential uses generally up to a floor are ratio of 0.4 and a net residential density of 15 dwelling units per acre. . . . Finally, FLUE Policy LU3.1(D) defines "Public/Semi- Public Categories" to include: 2. Institutional (I) - Limited to designation of federal, state and local public buildings and grounds, cemeteries, hospitals, churches, and religious institutions and educational uses. Residential uses having a density not to exceed 12.5 dwelling units per acre, are also allowed. Residential equivalency uses are not to exceed 3 beds per dwelling unit. Non-residential uses permitted in the land development regulations are not to exceed a floor area ratio of 0.55. Consistency with Commercial Use Restrictions The Petitioners proved beyond fair debate that the Plan Amendment at issue increases "the supply of commercial land use to meet existing and future needs." FLUE Policy LU3.17. This is clear not only from the potential for commercial use in the mixed use R/O/R and R/OG future land use categories, but also from the City's inclusion of nine-tenths of the former's and one-tenth of the latter's acreage in the inventory of commercial land use for purposes of determining the "supply of commercial land use to meet existing and future needs" in FLUE Policy LU3.17 and the ratio described in FLUE Objective LU4.2. The question is whether the restrictions on commercial future land uses reflected in those Plan provisions apply to the mixed use categories of R/O/R and R/OG. Prior to adoption, the City's staff reports stated that the commercial restrictions do apply, and that the Plan Amendment at issue was inconsistent with those restrictions, but that the Plan Amendment was consistent with several other Plan provisions and "on balance, consistent with the goals, objectives and policies of the Comprehensive Plan." However, in this de novo proceeding, the staff reports are not controlling on the applicability of the commercial restrictions and the consistency of the FLUM amendments at issue with those restrictions. In the first place, in light of the contrary testimony of staff during the final hearing, the intent of staff in using the language in the reports is fairly debatable. Second, after the staff reports were prepared, significant testimony on need and demand for commercial land use at the particular location of the FLUM amendments at issue was presented during the final public hearing on the PC-700 Modified application on February 15, 2007, which could have changed staff's mind on at least some of the issues. Finally, the extent to which the City Council may have relied on the staff reports in determining that the Plan Amendment was "in compliance" is not clear from the evidence and is fairly debatable. The City now takes the position, along with the Department, that the restrictions on commercial future land use in FLUE Policy LU3.17 and Objective LU4.2 do not apply to R/O/R and R/OG because they are mixed use future land use categories, not commercial future land use categories. In support of this position, they point out that Objective LU4 treats "Mixed Use" and "Commercial" "future land use needs" differently and applies the restriction only to "Commercial" "future land use needs," while encouraging mixed use developments in appropriate locations. Several of the specific Plan provisions cited in the staff reports as being consistent with the Plan Amendment addressed the appropriateness of a mixed use development at the proposed location, including: FLUE Policy LU3.18, which states that "retail and office activities shall be located, designed and regulated so as to benefit from the access afforded by major streets without impairing the efficiency of operation of these streets or lowering the LOS [level of service] below adopted standards, and with proper facilities for pedestrian convenience and safety"; FLUE Policy LU3.4, which states that "[t]he Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators"; FLUE Policy LU3.6, which states that "[l]and use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated"; FLUE Policy LU3.8, which seeks to "protect existing and future residential uses from incompatible uses, noise, traffic and other intrusions that detract from the long term desirability of an area through appropriate land development regulations"; and FLUE Policy LU3.5, which states that "[t]he tax base will be maintained and improved by encouraging the appropriate use of properties based on their locational characteristics and the goals, objectives and policies within this Comprehensive Plan." There also was considerable testimony at the hearing concerning the appropriateness of a mixed use development at the proposed location.v Petitioners also contend that the Plan Amendment is inconsistent with FLUE Objective LU18 concerning commercial development along major corridors. In favor of Petitioners' position, 66th Street North, where the Subject Property is located, is a major north-south corridor in the City. However, the Department and the Intervenors argue that the objective does not apply because the policies under it only specify 4th Street and Central Avenue and do not mention 66th Street. Taking all of the evidence and the City's Plan into consideration, including Sections 1.2.2.3, 1.2.2.5, and 1.3.1.2 of the General Introduction, it is found that Petitioners did not prove beyond fair debate that FLUE Policy LU3.17, Objective LU4.2, or Objective LU18 apply to the FLUM amendments at issue; even if those Plan provisions applied, Petitioners did not prove beyond fair debate that the FLUM amendments at issue do not constitute "infilling into existing commercial areas" or "infilling . . . of existing commercially designated frontages," or that "a need can[not] be clearly identified."vi All but one witness testified that, if those Plan provisions applied, the FLUM amendments would constitute commercial infill under the pertinent Plan provisions; the lone dissenter was using what he called a "narrow definition" of infill and agreed that the FLUM amendments would constitute commercial infill using the broader definition held by the majority view. There also was ample evidence that there was a clearly identified need for the FLUM amendments at issue, especially when considered along with the unchallenged RU FLUM amendment. Based on the foregoing findings on internal consistency, which is the context of Petitioners' data and analysis argument, Petitioners also did not prove beyond fair debate that the Plan Amendment was not based on data and analysis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the City's Ordinance 679- L is "in compliance." DONE AND ENTERED this 5th day of October, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2007.
