The Issue Whether small-scale amendments to the City of Fernandina Beach Comprehensive Plan, adopted by Ordinances 2017-13 and 2017-15 on June 6, 2017 (the “FLUM Amendments”), are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2016).1/
Findings Of Fact The Parties and Standing Petitioner, Ronald Ross, resides and owns property within the City. Mr. Ross submitted written comments concerning the FLUM Amendments to the City during the period of time beginning with the transmittal hearing for the FLUM Amendments and ending with the adoption of same. Respondent is a Florida municipal corporation with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167, Florida Statutes (2017). The Subject Properties Together the FLUM Amendments affect eight contiguous parcels located at the corner of North 2nd Street and Broome Street, which runs perpendicular to, and dead ends at, North Front Street, the City’s historic waterfront. The subject properties are located two blocks east of North Front Street. The structure at 211 Broome Street is an existing single-family home built circa 1900. The structure at 205 Broome Street is a vacant single- family home built circa 1900. The parcel at 224 North 2nd Street contains a multi- family structure. The remaining parcels are vacant and undeveloped. The Amendments are owner-initiated. Existing Conditions Residential uses are not allowed in the IND land use category. As such, the residential uses on the subject parcels are non-conforming to the regulations for that category. The residential uses at 211 Broome Street and 224 North 2nd Street are “grandfathered” from the prohibition on residential uses, and are allowed to continue as non-conforming uses until such time as any one of a number of criteria are met. Significant redevelopment of the structure would trigger the requirement to conform to allowable uses. The residential structure at 205 Broome Street is vacant, in disrepair, and cannot be redeveloped for a residential use in the IND category. The FLUM Amendments The FLUM Amendments change the FLUM category for each of the eight parcels from IND to CBD. The purpose of the IND land use category is to “recognize the existing industrial development, appropriate open air recreation activities, and the animal shelter, and to ensure the availability of land for industrial and airport purposes.” Industrial uses include “airport dependent uses, manufacturing, assembling and distribution activities; warehousing and storage activities; green technologies, general commercial activities; integral airport related support services such as rental car facilities, parking facilities; and other similar land uses.” The CBD category is designed to “accommodate single- family or duplex residential uses, either ‘stand alone’ or in a mixed residential and business structures; offices; commercial retail; personal service establishments; restaurants; transient accommodations; commercial parking facilities; civic uses; and cultural uses.” The CBD allows other uses, such as indoor recreation, multi-family, marinas, daycare centers, and educational facilities, subject to certain conditions. The maximum density of residential uses in CBD is 34 units per acre (34/acre). The maximum intensity of non-residential uses in both IND and CBD is a floor area ratio (”FAR”) of 2.0. The Community Redevelopment Area All of the subject properties are located within the City’s Waterfront Area Community Redevelopment Area (“Waterfront Area CRA”). Section 163.360, Florida Statutes, authorizes local governments to undertake community redevelopment projects in areas designated as slum or blighted, or areas with a shortage of affordable housing. The local government must first adopt, by resolution, findings that slum, blight, or inadequate housing exists. See § 163.355, Fla. Stat. Following adoption of this “Finding of Necessity,” the local government, or community redevelopment agency, may adopt a community redevelopment plan for the area, following review and comment by the local planning agency, and an advertised public hearing. Once a community redevelopment area (“CRA”) is designated, the local government may issue redevelopment revenue bonds; approve investments, acquisitions, demolition, removal, or disposal of property in the area; approve community policing innovations; and exercise the power of eminent domain. The statute provides a financial benefit for CRAs known as tax increment financing, or “TIF.” The incremental increase in ad valorem value of properties within the CRA, derived from investment in the CRA, must be deposited in a trust fund established by the local government. TIF revenues may only be utilized for redevelopment projects within the CRA boundary. The City adopted a “Finding of Necessity” to establish a CRA in 2004. The City found the following statutorily- enumerated blighted conditions in its waterfront district: inadequate street layout and parking facilities; unsanitary or unsafe conditions; deterioration of site and other improvements; and inadequate and outdated building density patterns. In June 2004, the City established the Waterfront Area CRA including the marina, shrimping and seafood processing area, and adjacent residential areas, including the subject properties. The total acreage of the Waterfront Area CRA is 37.364 acres. In its 2005 resolution approving the Waterfront Area CRA Redevelopment Plan (Redevelopment Plan), the City found, “The Plan will afford maximum opportunity, consistent with the sound needs of the municipality as a whole, for the rehabilitation or redevelopment of the Area by private enterprise.” Challenges to the Plan Amendments Internal Inconsistency Petitioner first challenges the FLUM Amendments as inconsistent with Housing Element Policy 3.01.01, which reads as follows: The City shall perform a housing needs assessment by December 2013. Information contained in the assessment should include, but not be limited to, information regarding housing trends; the number, type and condition of existing housing units; identification of substandard housing units; the number and types of housing units needed in the future for all income ranges based on growth projections; and shortages and/or deficiencies in the existing housing stock. The housing needs assessment should be updated a minimum of every five (5) years. It is an undisputed fact that the City has not conducted the housing needs assessment mandated by the subject policy. Petitioner maintains that the FLUM Amendments, which allow the subject properties to be developed (or, redeveloped, as the case may be) for residential densities as high as 34/acre, conflict with the policy. Petitioner’s argument on this point is essentially that the FLUM Amendments are not supported by relevant data and analysis in the form of the assessment called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendments create an internal inconsistency with the policy. The cited policy does not prohibit the City from adopting any plan amendment until the assessment is completed. Petitioner presented no expert witness testimony regarding internal inconsistency between the FLUM Amendments and the cited policy. The record does not support a finding that the FLUM Amendments are inconsistent with Housing Element Policy 3.01.01. Petitioner next contends the FLUM Amendments are inconsistent with Housing Element Policy 3.02.08, which reads as follows: The City shall establish a City-wide neighborhood planning program to encourage the stabilization and preservation of residential areas throughout the City and strengthen linkages between neighborhoods and City government. The parties stipulated that the City has not implemented the neighborhood planning program called for in the policy. Petitioner’s argument on this point is that without the neighborhood planning program, the City cannot assess the impact of the FLUM Amendments on the medium density residential neighborhood to the east of the subject properties.3/ The policy in question does not prohibit the City from adopting plan amendments until the neighborhood planning program is implemented. Petitioner introduced no expert witness testimony regarding internal inconsistency between the FLUM Amendments and the cited policy. The evidence does not support a finding that the FLUM Amendments are inconsistent with Housing Element Policy 3.02.08. Data and Analysis Petitioner’s last argument is the FLUM Amendments are inconsistent with section 163.3177(1)(f), which requires as follows: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. The City’s Senior Planner, Kelly Gibson, testified in deposition that the FLUM Amendments are supported by the Findings of Necessity supporting creation of the Waterfront Area CRA, the Redevelopment Plan, and the historic development patterns of the Waterfront Area CRA. One of the City’s stated purposes of creating the Waterfront Area CRA is to “afford maximum opportunity, consistent with the sound needs of the municipality as a whole, for the rehabilitation or redevelopment of the Area by private enterprise.” Applicants for the change in land use designation of 205 and 211 Broome Street seek to redevelop the deteriorated residential structure at 211 Broome Street. The applicants will not invest in redevelopment of the property under the IND designation because that designation prohibits residential uses. The FLUM Amendments will encourage redevelopment by allowing the applicants to invest in the dilapidated structure. Further, the FLUM Amendments afford the applicants more flexibility in development of the vacant lots because, while the IND land use category is limited to the uses described in paragraph 14, above, the CBD category allows single-family and duplex residential uses, offices, commercial retail, personal service establishments, restaurants, transient accommodations, commercial parking facilities, civic uses, and cultural uses. The applicants for change in the land use designation of properties located at 224 North 2nd Street, and the adjoining vacant lots, seek to reinvest in the existing non-conforming multi-family residential structure. The FLUM Amendments encouragement redevelopment by allowing the reinvestment sought by the applicants. Likewise, the FLUM Amendments provide flexibility for infill development of the adjoining vacant lots. The Redevelopment Plan includes initiatives and programs for the Waterfront and “Transitional Areas.” The subject properties are located within a Transitional Area of the Waterfront Area CRA. One of the purposes of the Redevelopment Plan is to “encourage opportunities for new development by allowing a broader mix of uses in the . . . transitional areas[.]” Further, the Plan states, “It is critical that the strategies are prioritized to initiate growth of tax increment revenues to the Agency – a primary or seed funding source for many of the redevelopment efforts identified in this Plan.” Objective 2 of the Redevelopment Plan is to promote a mix of uses within the CRA. This section states, “The existing Future Land Use and Zoning designations along the waterfront and adjacent areas limit the type of allowable uses to industrial uses. Such limitations may be a primary impediment to redevelopment of the CRA.” The Redevelopment Plan further states, “[T]he City should take a proactive position in accommodating a broader mix of uses with design controls.” The CBD category allows a broader mix of uses than the IND category. See paragraphs 14 and 15, above. Further, the FLUM Amendments remove the impediment to redevelopment of the subject properties created by the prohibition on residential uses in the IND category. Petitioner elicited testimony from the City’s experts that there are minimal differences between the uses allowed within the existing zoning category of the subject properties and the zoning category sought under the applicant’s concurrent rezoning request. Petitioner proved that the uses allowed within the CBD zoning category, which are not allowed in the existing I-1 (Light Industrial), are residential, daycare centers, group homes, and bed and breakfast inns. The issue in this case is not the breadth of the zoning category, but that of the FLUM category.4/ The FLUM Amendments are supported by both the Findings of Necessity establishing, and the Redevelopment Plan for, the Waterfront Area CRA.5/ Finally, Petitioner points to Future Land Use (FLU) Policy 1.07.10 to support his argument that the FLUM Amendments are not supported by data and analysis. FLU Policy 1.07.10 reads, in pertinent part, as follows: A proposed amendment to the FLUM to increase the land area within the Central Business District land use category shall demonstrate the suitability of the proposed site based on: The need for additional land area within the Central Business District land use category; Consistency of the land area with the characteristics of the Central Business District; and Consistency of the land area with the characteristics of the downtown. Petitioner presented the lay testimony of former City Mayor and Councilman Greg Roland, distinguishing the location and characteristics of the downtown and the CBD from those of the subject properties. In the same vein, Petitioner grilled both Ms. Gibson and Mr. McCrary in deposition regarding what data and analysis support a need for additional land in the CBD. The testimony and other evidence regarding this policy was largely irrelevant because Petitioner did not allege, in either his Petition or the pre-hearing stipulation, that the FLUM Amendments were internally inconsistent with FLU Policy 1.07.10. The testimony regarding compliance with FLU Policy 1.07.10 was relevant to Petitioner’s contention that the FLUM Amendments are not based on relevant and appropriate data. However, as explained below, the issue is whether the FLUM Amendments are supported by data available at the time the amendments were adopted, not whether non-existent data may be contrary to the amendments. Petitioner did not prove beyond fair debate that the FLUM Amendments are not based upon relevant and appropriate data and analysis in violation of section 163.3177(1)(f).
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 City of Fernandina Beach Comprehensive Plan Amendments adopted by Ordinances 2017-13 and 2017-15 on June 6, 2017, are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2017). DONE AND ENTERED this 9th day of November, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2017.
The Issue As stated by the Administrative Law Judge in her Recommended Order, the issue presented is: "should certain outdoor advertising signs owned by Respondent, Universal Outdoor Atlantic Coast (Universal) be removed as a result of notices of violations brought by Petitioner, Department of Transportation (the Department) against Universal?"
Findings Of Fact After review of the record in its entirety, it is determined that the Administrative Law Judge's Findings of Fact contained in paragraphs 1-3, 5-17, and 19-20 of the Recommended Order are supported by the record and are accepted and incorporated as if fully set forth herein. Finding of Fact No. 4 is modified and references therein to the lack of competent evidence regarding Volusia County's land use regulations are rejected and deleted as such findings are not supported by the competent substantial evidence in the record and are not in accordance with applicable law. Finding of Fact No. 4 as herein modified is accepted and incorporated as if fully set forth herein. Finding of Fact No. 18 as corrected hereinabove is supported by the record and is accepted as corrected and incorporated as if fully set forth herein.
Conclusions This proceeding was initiated by Requests for Formal Administrative Hearing filed by Respondent, UNIVERSAL OUTDOOR ATLANTIC COAST (hereinafter UNIVERSAL), on January 14, 1999. The requests for an administrative hearing were filed in response to Notices of Violation issued by Petitioner, DEPARTMENT OF TRANSPORTATION (hereinafter DEPARTMENT), on January 7, 1999, for UNIVERSAL'S sign structures located adjacent to US 1 and Interstate 95, in Volusia County, Florida. The Notices were issued because UNIVERSAL unlawfully reerected its nonconforming outdoor advertising signs which were destroyed by fire. The matter was referred to the Division of Administrative Hearings (hereinafter "DOAH"), and DOAH issued its Initial Orders assigning the cases to Suzanne F. Hood, a duly appointed Administrative Law Judge, and setting forth the responsibilities of the parties. On March 4, 1999, the Administrative Law Judge issued an order consolidating the cases. The hearing was conducted in Daytona Beach, Florida, on August 19, 1999, before Suzanne F. Hood, Administrative Law Judge. Appearances on behalf of the parties were as follows: For Petitioner: Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 For Respondent: Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 At the hearing, UNIVERSAL introduced and had accepted into evidence UNIVERSAL'S Exhibit 1, and presented the testimony of one witness. The Administrative Law Judge reserved ruling on the admissibility of UNIVERSAL'S Exhibit 2, which was later accepted in the Administrative Law Judge's Recommended Order. The DEPARTMENT introduced the DEPARTMENT'S Exhibits 1 through 4; Exhibits 1 through 3 were admitted into evidence and Exhibit 4 was denied as irrelevant and inadmissible hearsay. The DEPARTMENT also introduced the trial testimony and portions of the deposition testimony of Michael Kuypers presented in cases consolidated under DOAH Case No. 99-0486T, as the DEPARTMENT'S Exhibit 5. The testimony of two additional witnesses was presented by the DEPARTMENT. A transcript was prepared and filed subsequent to the hearing. On October 27, 1999, the Administrative Law Judge issued her Recommended Order. Exceptions to the Recommended Order were filed by UNIVERSAL on November 10, 1999, and the DEPARTMENT filed its response to UNIVERSAL'S exceptions on November 18, 1999. The DEPARTMENT filed exceptions to the Recommended Order on November 4, 1999, and UNIVERSAL filed its response to the DEPARTMENT'S exceptions on November 15, 1999.
Appeal For This Case THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY ANY PARTY PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND RULES 9.110 AND 9.190, FLORIDA RULES OF APPELLATE PROCEDURE, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULED OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL, ACCOMPANIED BY THE APPROPRIATE FILING FEE, AND WITH THE DEPARTMENT'S CLERK OF AGENCY PROCEEDINGS, HAYDON BURNS BUILDING, 605 SUWANNEE STREET, M.S. 58, TALLAHASSEE, FLORIDA 323990458, WITHIN THIRTY (30) DAYS OF RENDITION OF THIS ORDER. Copies furnished to: Robert M. Burdick, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Peter Wright District Five ODA Administrator 719 South Woodland Boulevard DeLand, Florida 32721-0057 Juanice Hagan Assistant State Right of Way Manager for Operations Department of Transportation Haydon Bums Building 605 Suwannee Street, MS 22 Tallahassee, Florida 32399-0450 Aileen M. Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802-2151 Suzanne F. Hood Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060
The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-93-12, adopted by Ordinance 93-42, renders the Broward County Comprehensive Plan not "in compliance" within the meaning of Section 163.3184(1)(b), Florida Statutes (1993)
Findings Of Fact The Parties. Petitioner, Francis C. Nipe, is an individual who resides and owns real property located in Broward County, Florida. Ms. Nipe presented oral and written comments to Broward County concerning the plan amendment which is the subject of this proceeding. Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is a local government charged with responsibility by Part II of Chapter 163, Florida Statutes, the "Local Government Comprehensive Planning and Land Development Regulation Act" (hereinafter referred to as the "Act"), and the Broward County Charter for developing a comprehensive plan for future development in the unincorporated areas of the County. The County is also responsible for amendments to the comprehensive plan. Respondent, Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged by the Act with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. Intervenor, Michael Swerdlow Companies, Inc., is a corporation with its principal place of business located in the County. Intervenor, Michael Swerdlow, Trustee, also has his principal place of business located in the County and is the contract purchaser of the property which is the subject of the amendment at issue. Michael Swerdlow Companies, Inc., submitted oral and written comments to the County concerning the subject amendment during the amendment process. (Michael Swerdlow Companies, Inc., and Michael Swerdlow, Trustee, will hereinafter be jointly referred to as "Swerdlow"). Intervenor, VST/VMIF Oakridge Partnership (hereinafter referred to as "VST"), owns the real property which is the subject of the amendment at issue in this proceeding. VST submitted written comments during the amendment process. Michael Swerdlow Companies, Inc., as agent for Michael Swerdlow, Trustee, and VST, was the applicant for the amendment at issue in this proceeding. General Description of the County. The County is generally a rectangular-shaped geographic area located in southeastern Florida. The County is bounded on the east by the Atlantic Ocean, on the south by Dade County, on the west by Collier and Hendry Counties and on the north by Palm Beach County. The County's Comprehensive Plan. The County adopted a comprehensive plan in compliance with the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan consists of the Broward County Land Use Plan (hereinafter referred to as the "Land Use Plan"). The Land Use Plan applies throughout the County. Broward County composite exhibit 1. Volume 2 of the County Plan contains the other elements required by the Act. Some of the elements of Volume 2 apply throughout the County and some apply only to unincorporated areas or areas in which the County provides services. Volume 3 of the County Plan consists of supporting documents for the Land Use Plan. Broward County composite exhibit 1. The County Plan includes a 1989 Future Broward County Land Use Plan Map Series (hereinafter referred to as the "FLUM"), which is a part of the Land Use Plan. Broward County exhibit 6. The Land Use Plan establishes several categories of land uses. The future land use categories established are: Residential: A number of uses are allowed within areas designated "residential." The following subcategories, based upon dwelling densities, are established: Estate (1) Residential. Low (2) Residential. Low (3) Residential. Low (5) Residential. Low-Medium (10) Residential. Medium (16) Residential. Medium-High (25) Residential. High (50) Residential. Other subcategories of residential property include: Rural Estates. Rural Rances. Commercial. Office Park. Commercial Recreation. Industrial. Employment Center. Recreation and Open Space. Conservation. Agricultural. Community Facilities. Transportation. Utilities. Regional Activity Centers. Mining. The FLUM depicts the proposed distribution, extent and location of land use designations for the County. The County Plan creates the Broward County Planning Council (hereinafter referred to as the "Planning Council"), as an advisory body to the County Commission. Initial Consideration of the Subject Amendment. The County received a request to amend the County Plan by changing the land use designation of approximately 143 acres of real property from Low-Medium (10), Commercial Recreation and Irregular (6) Residential to primarily Low (5) Residential. In June of 1993 the area included in the application was reduced from 143 acres to 109 acres. The 109 acres are classified as Commercial Recreation. On July 7, 1993, it was requested that the land use designation of the 109 acres being sought by the applicant be reduced to Low (3) Residential. The County approved the request to change the land use designation of the 109 acres of Commercial Recreation to Low (3) Residential (hereinafter referred to as the "Amendment"), and transmitted the Amendment to the Department for review. The Department's Initial Review of the Subject Amendment. The Department reviewed the Amendment and prepared its Objections, Recommendations and Comments report (hereinafter referred to as the "ORC"), dated September 24, 1993. Comments of various entities were considered by the Department during its review. The Department raised two objections to the Amendment in the ORC. One objection was that the County had not provided peak hour analysis of traffic conditions impacted by the Amendment both before and after the Amendment. The Department's objection concerning traffic conditions was based upon comments from the Florida Department of Transportation (hereinafter referred to as "DOT"). DOT had requested that a P.M. peak-hour traffic analysis be provided for roads serving the property which is the subject of the Amendment. The Department also objected to the Amendment because the County had failed to provide adequate data and analysis demonstrating a need for increased residential density to accommodate the projected population. The County's Response to the ORC and Approval of the Amendment. On October 28, 1993, the Planning Council recommended approval and adoption of the Amendment, as modified. On November 10, 1993, the Board of County Commissioners of the County adopted Ordinance 93-42. Included in Ordinance 93-42 were a number of amendments to the County Plan, including the Amendment, PC-93-12. Pursuant to the Amendment, the land use designation of approximately 109 acres of real property, was amended from Commercial Recreation to Low (3) Residential. In response to the ORC, the County informed the Department that a P.M. peak-hour traffic analysis was not required for the Amendment because the Traffic Circulation Element of the County Plan is based upon an analysis of average daily trips. The method utilized in the County Plan utilizes average daily traffic in the calculation of levels of service for affected roadways. In response to the Department's objection concerning the need for additional residential property, the County reported that the Amendment property is located in the southeast sector of the County and that the southeast sector is generally built out. The Department was also informed that facilities and services in the Southeast sector are in place. The County also took the position that the Amendment constitutes "infill" development. Finally, the County pointed out to the Department that the number of dwelling units permitted by the Land Use Plan for the southeast sector have been reduced by over 2,124 units through amendments to the County Plan. The County also informed the Department that revised population figures suggest an additional increase in population for the southeast sector of 1, 327. Therefore, there will be no increase in total projected residential units in the southeast sector as a result of the Amendment. Final Department Review. The Department discussed the County's response concerning traffic projections with DOT. DOT withdrew its objection and the Department accepted the County's explanation. The Department considered and accepted the County's response to the objections contained in the ORC concerning the adequacy of data and analysis to support an increase in residential property. The Department determined that the additional data and analysis were adequate. The suggestion that the Amendment constitutes "in fill" was not part of the reason the Department accepted the County's explanation for why an increase in residential property was being approved. On January 4, 1994 the Department entered a Notice of Intent to find the Amendment in compliance. Ms. Nipe's Challenge to the Amendment. On or about March 11, 1994, Ms. Nipe filed a Petition for Formal Administrative Hearing of Frances Nipe with the Department challenging the Amendment. In the petition, Ms. Nipe alleged that the Amendment is not "in compliance" for essentially the following reasons: The "residential density has not sufficiently been supported by data and analysis that the increase in residential density is necessary to accommodate the projected population." In support of this argument, Ms. Nipe cited Rules 9J-5.006(2)(a) and (c), Florida Administrative Code, and Rules 9J- 11.006(1)(b)4. and (3) [incorrectly cited as 9J-11.00.006(1)(b)4. and (3)], Florida Administrative Code. The Amendment is inconsistent with Broward County Land Use Plan - Chapter 5, Section B, Commercial Recreation Use, 2., . . ." and will have a detrimental impact upon tourism development in the County. The Amendment will further degrade the level of educational services. The Amendment will "place additional trips on existing over capacity roads." The rationale of the applicant for the Amendment is inadequate in that the subject property "contains sufficient acreage that a redesigned golf course would meet USGA Standards as well as accommodate some residential development" and "[n]eighbors and Patrons are not Golf Professionals and don't care if the course meets USGA Standards to the Letter." The Amendment is "highly insensitive to the natural oak hammock areas on the subject property " The Amendment is inconsistent with Objective 02.03.00, Goal 03.00.00, Objective 03.03.00 and Policy 03.03.00 "in that it contradicts the Tourism development policies and undermines the Commercial Recreation Land Use designation." Ms. Nipe also suggested in her petition that the Amendment is inconsistent with the City of Hollywood Comprehensive Plan. I. The Subject Property. The property which is the subject of the Amendment (hereinafter referred to as the "Property"), consists of 109 acres of real property located in the City of Hollywood, a city located in the County. The Property is located in the southeast section of the County. The Property is located east of Southwest 35th Terrace, south of Griffin Road, west of Southwest 31st Avenue and north of Stirling Road. The Property, and the property of which it is a part, is currently being used as a golf course. The golf course is named Oakridge Golf Course. Oakridge Golf Course is an eighteen hole course. Most, but not all, of the eighteen holes are located on the Property. The land use designation of twenty-nine acres of the parcel of property of which the Property is a part has been changed from Commercial Recreation to Commercial. The amendment changing the designation was adopted September 14, 1992 and has become final. The twenty-nine acres of commercial property include portions of four of the holes of Oakridge Golf Course. Oakridge Golf Course is the closest golf course to downtown Fort Lauderdale, a city located in the County; the Fort Lauderdale/Hollywood International Airport; the Broward County Convention Center; Port Everglades, a port used by cruise ships; and several large hotels located in the eastern part of the County. Compliance with the City of Hollywood Comprehensive Plan. The City of Hollywood approved a Land Use Plan Amendment for the Property changing the land use designation of the Property to Low (3) Residential. The City's amendment has become final. The evidence failed to prove that the Amendment is inconsistent with the City of Hollywood Comprehensive Plan. Data and Analysis to Support an Increase in Residential Property. The Land Use Plan includes the following Goal and Objective concerning residential use of property in the County: GOAL 01.00.00 PROVIDE RESIDENTIAL AREAS WITH A VARIETY OF HOUSING TYPES AND DENSITIES OFFERING CONVENIENT AND AFFORDABLE HOUSING OPPORTUNITIES TO ALL SEGMENTS OF BROWARD COUNTY'S POPULATION WHILE MAINTAINING A DESIRED QUALITY OF LIFE AND ADEQUATE PUBLIC SERVICES AND FACILITIES. OBJECTIVE 01.01.00 RESIDENTIAL DENSITIES AND PERMITTED USES IN RESIDENTIAL AREAS. Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. The Low (3) Residential land use designation is defined by the County Plan as permitting "up to three (3) dwelling units per gross acre." Page IV-23, Volume one, BC exhibit 1. There has been a decrease of 2,214 dwelling units in the southeast sector of the County while the County's projected population increase has been increased by 1,327 people. The evidence failed to prove that consideration of population needs of the southeast sector of the County is unreasonable or inappropriate. The evidence also failed to prove that consideration of the need for residential property by sectors is inconsistent with the County Plan or otherwise is unreasonable. The City of Hollywood currently has sufficient land for approximately six thousand housing units. The evidence, however, failed to prove that all of the land can be utilized to meet future housing needs. As stated by Robert L. Davis, the Director of Community Planning and Development of the City of Hollywood, "[i]t really to be perfectly understood you need to explore the locational aspects of where that area is, how large an area it is and what inducement it would have to really encourage the kind of investment we think is necessary." Pages 276-277 of the transcript of the final hearing. Ms. Nipe failed to present evidence to prove that the information submitted to the Department in response to the ORC as Attachment 8 to the Staff Report was inadequate to support the County's suggestion that the increase in residential property is necessary to accommodate projected population for the County. Ms. Nipe also failed to present evidence to refute the methodologies used by the County and accepted by the Department. Commercial Recreation Requirements of the Plan. The "Plan Implementation Requirements" of the Land Use Plan provides the following concerning the Commercial Recreation land use designation: Commercial Recreation areas are designated on the Future Broward County Land Plan Map (Series), consistent with Objective 02.03.00, to accommodate major public and private commercial recreation facilities which offer recreational opportunities to the residents and tourists of Broward County. Although some of these facilities operate as an adjunct to or an integral part of other types of development, most of these facilities were conceived as profit-making enterprises. Commercial recreation ventures in Broward County can be divided into two categories; golf courses and commercial recreation associated with structures and/or indoor facilities. Those uses permitted in areas designated commercial recreation are as follows: Outdoor and indoor recreation facilities such as active recreation complexes, marinas, stadiums, jai-alai frontons, bowling alleys, golf courses, and dog and horse racing facilities. Accessory facilities, including outdoor and indoor recreation facilities, that are determined by the local government entity to be an integral part of and supportive to the primary recreation facility (excluding residential uses). Hotels, motels and similar lodging ancillary to the primary commercial recreation use. Other active and passive recreation uses. Recreational vehicle sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the local land development regulations, or twenty (20) sites per gross acre if such location is prohibited by the local land development regulations; subject to the allocation by the local government entity of available flexibility or reserve units. The following Objective and Policy relating to the Commercial Recreation land use designation is provided in the Land Use Plan: OBJECTIVE 02.03.00 COMMERCIAL RECREATION USE CATEGORY Establish within the Future Broward County Land Use Plan Map (Series) a commercial recreation category which would encompass those public and private recreational facilities necessary within a resort area such as Broward County. POLICY 02.03.01 Permit those uses within designated commercial recreation areas which are identified in the Commercial Recreation Permitted Uses subsection of the Plan Implementation Requirements section of the Broward County Land Use Plan. Objective 02.03.00 merely requires the establishment of a "commercial recreation" category in the County Plan. It does not require that any specific amount of land be designated as commercial recreation or that, once so designated, the designation of a parcel of real property as commercial recreation should not be changed. Policy 02.03.01 merely requires that any parcel of real property classified as commercial recreation may be utilized for the purposes identified in the Commercial Recreation Permitted Uses subsection of the Plan Implementation Requirements section of the County Plan. This policy does not require that any specific amount of land be designated as commercial recreation or that, once so designated, the designation of a parcel of real property as commercial recreation should not be changed. The "Plan Implementation Requirements" of the Land Use Plan concerning the Commercial Recreation land use designation merely explain the purpose of the designation and identify the permitted uses within areas designated commercial recreation. There is no requirement contained in the Plan Implementation Requirements that a certain amount of land be designated commercial recreation or that, once so-designated, real property cannot be placed in a different category. The evidence failed to prove that the County Plan prohibits the reclassification of real property from commercial recreation to other categories. No provision of the County Plan has been referred to that establishes a minimum requirement for commercial recreation. The Property is not considered part of the parks and recreation property on the County. Therefore, the Amendment will not result in a decrease in the level of parks and recreation services available. Ms. Nipe failed to prove that the Amendment is inconsistent with the County Plan as alleged in her petition. Degradation of School Services. The County Plan does not establish "levels of service" for schools or a methodology for determining schools that are "affected" by an amendment. Although the County has adopted goals, objectives and policies pertaining to educational facilities, those goals, objective and policies were not in effect at the time the Amendment was adopted. The evidence failed to prove that any school services will be degraded as a result of the Amendment or that the impact of the Amendment on school services was not considered by the County in adopting the Amendment. Ms. Nipe failed to prove that the Amendment is inconsistent with any portion of the County Plan dealing with school services. Degradation of Roads. There are a number of goals, objectives and policies contained in the County Plan which address the issue of traffic facilities and circulation. Ms. Nipe has failed to cite any of those provisions in support of her argument that the Amendment "would place additional trips on existing over capacity roads. The County and Swerdlow have cited a number of provisions of the County Plan that deal with transportation. Those findings (County 37 and 38) are hereby incorporated into this Recommended Order. An analysis of the traffic impact of the Amendment was prepared by the Planning Council and presented to the County for consideration. That analysis addressed: the net difference between vehicular trips from the golf course and those expected from the new classification of the Property; the distribution of the projected increase in traffic to affected roads (Griffin Road in the north and Stirling Road in the south); the average daily traffic on affected roads after the increase in traffic; and the anticipated level of service of the affected roads in the years 1997 and 2010. The County's analysis indicated that the Amendment would not cause the affected roads to exceed the level of service contained in the County Plan in the short-term or long-term. The method used in the County Plan and utilized in conjunction with the Amendment is consistent with plan amendment data and analysis requirements of Rule 9J-5 and Rule 9J-11, Florida Administrative Code. The only evidence offered by Ms. Nipe in support of her challenge concerning traffic impact is a memorandum from "Roy Groves" of the County Office of Planning. Mr. Groves did not testify in this proceeding. The comments made by Mr. Groves, therefore, cannot be relied upon to support Ms. Nipe's contention. Additionally, Mr. Groves' comments deal with a "compact deferral area" resulting from an over-capacity road segment of State Road 7 and U.S. 441. The evidence failed to prove that the roads impacted by the Amendment are part of a compact deferral area or that State Road 7 and/or U.S. 441 will be impacted. Ms. Nipe failed to prove that the impact on traffic of the Amendment is inconsistent with the Act, Chapter 9J-5, Florida Administrative Code or the County Plan. The Applicant's Rationale for the Amendment. The Planning Council informed the County of the reasons advanced by the applicant for the Amendment. It was suggested that the proposed classification of the Property is consistent with the surrounding area and that the continued operation of the golf course is not longer financially feasible. The evidence failed to prove that the Act and the rules promulgated thereunder, state and regional plans, or the County Plan require that applicants for County Plan amendments include a rationale or justification for the requested amendment. The evidence also failed to prove that the applicant's rationale provided formed the basis for the County's decision to adopt the Amendment. The Impact on Oak Hammocks. The Property does not include any oak hammocks. The evidence failed to prove that there will be any impact on oak hammocks as a result of approval of the Amendment. Enhancement to the County's Tourist Industry. The County Plan contains the following Goal, Objective and Policy relating to the tourist industry in the County: GOAL 03.00.00 ACHIEVE A MORE DIVERSIFIED LOCAL ECONOMY BY PROMOTING TOURISM AND INDUSTRIAL GROWTH AND PROVIDING OPTIMUM PROTECTION OF THE COUNTY'S ENVIRONMENT AND MAINTAINING A DESIRED QUALITY OF LIFE. . . . . OBJECTIVE 03.03.00 ENHANCE BROWARD COUNTY'S TOURIST INDUSTRY Increase Broward County's attractiveness to tourists through the establishment of a land use pattern and development regulations aimed at enhancing the area's natural and man-made environments such as beaches, shorelines and marine facilities. . . . . POLICY 03.03.03 Activities intended to diversify Broward County's economy should not adversely impact the quality of life of the County's permanent, seasonal, or tourist populations. The evidence failed to prove that the Amendment is inconsistent with the requirements of the Goal, Objective or Policy quoted in finding of fact 78. There will still be three golf courses owned by the City of Hollywood and three privately owned golf courses open to the public in the City of Hollywood after the closure of Oakridge Golf Course. Although there was testimony concerning the proximity of the Property to various areas of the County, the evidence failed to prove that tourist are attracted to the Property or that the loss of the golf course on the Property will adversely impact the tourist industry in Broward County. There was also evidence that there are a limited number of commercial recreation uses of property such as golf courses in the County and that the establishment of additional commercial recreation golf courses is unlikely in urban areas. That evidence, however, failed to prove that the limited number of such uses is inadequate or that there is a need for additional golf courses.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding that the Broward County Comprehensive Plan, as amended by Ordinance 93- 42, is "in compliance" within the meaning of Section 163.3184(1)(b), Florida Administrative Code (1993). DONE AND ENTERED this 28th day of July, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1994. APPENDIX Case Number 94-1610GM The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Nipe's Proposed Findings of Fact Accepted in 35 and 36. Statement of law. 3 Accepted in 10, 20, 27 and 41-42. 4 Accepted in 20 and 27. 5-6 Accepted in 56. 7-9 Accepted in 55. 10-11 Accepted in 43. 12-13 Although true, Ms. Nipe failed to explain the relevancy of these findings. See 57-60. 14-18 Accepted in 45. Although true, Ms. Nipe failed to explain the relevancy of these findings. See 57-60. Not supported by the weight of the evidence. 21-23 Accepted in 78. 24 Not relevant. 25-26 Not relevant. These proposed findings pertain to arguments not raised in Ms. Nipe's petition. 27 Accepted in 27. 28-29 Not relevant. 30-31 Accepted in 82. 32 Not relevant. These proposed findings pertain to arguments not raised in Ms. Nipe's petition. 33-34 Hereby accepted. See 52. Not supported by the weight of the evidence. The County's Proposed Findings of Fact Accepted in 1. Accepted in 4. Accepted in 3. Accepted in 5 and 7. Accepted in 6. Accepted in 10. Accepted in 11-12. Accepted in 13. Accepted in 17. Accepted in 14. Accepted in 15. Accepted in 26. Accepted in 20 and 27. Accepted in 41-42. Not relevant. Accepted in 18. Accepted in 19. 18-19 Accepted in 20. 20 Accepted in 25. 21-22 Hereby accepted. Accepted in 26. Accepted in 34. Accepted in 78. Hereby accepted. Accepted in 79. Accepted in 55. Accepted in 56. Accepted in 55. 31-32 Not relevant. Accepted in 49. Hereby accepted. Accepted in 49. Not relevant. Accepted in 67. To the extent relevant, accepted in 67. Not relevant. See 64. Accepted in 63. 41-45 Not relevant. The issue that these proposed findings relate to was not sufficiently raised in Ms. Nipe's petition. 46 Accepted in 57-60. 47-48 See 65. 49 Not relevant. 50 See 65. 51 Not relevant. See 64. 52 Accepted in 76. 53-54 Not relevant. 55 Hereby accepted and see 36. 56-61 Not relevant. 62-63 Accepted in 74. 64 Accepted in 73. 65-66 Accepted in 21. Accepted in 24 and hereby accepted. Hereby accepted. Accepted in 29 and 51. Accepted in 31. Accepted in 33. Accepted in 53-54. Accepted in 36. Accepted in 23 and hereby accepted. Accepted in 28. Accepted in 23. Accepted in 32. Accepted in 68. 79-84 Hereby Accepted. Accepted in 68. Accepted in 70. Accepted in 71. 88-91 Hereby accepted. 92 Accepted in 72. 93-94 Not relevant. The Department's Proposed Findings of Fact 1 Accepted in 1-2. 2 Accepted in 4. 3 Accepted in 3. 4 Accepted in 5. 4 Accepted in 6. 5 Accepted in 8. 6 Accepted in 9. 7 Accepted in 10. 8 Accepted in 11. 9-10 Volume 2 was not offered into evidence. 11-12 Accepted in 15. 13-14 Accepted in 56 and 78. Accepted in 57-58 and 79 Accepted in 26. Accepted in 35-36. Accepted in 20 and 27. Accepted in 38 and 40-41. The Property is not, however, in the unincorporated area. Accepted in 21-22. Accepted in 23-24. Accepted in 23. Accepted in 29 and 31. Accepted in 28, 70 and 72. Accepted in 33. Accepted in 32. Hereby accepted. Accepted in 53-54. The last sentence is not supported by the weight of the evidence. Accepted in 65-66. Swerdlow's Proposed Findings of Fact Accepted in 1. Accepted in 2. Accepted in 4. Accepted in 3. Accepted in 5 and 7. Accepted in 6. Accepted in 8. Accepted in 9. Accepted in 10. Accepted in 11-12. Accepted in 13. Accepted in 17. Accepted in 14. Accepted in 16. Accepted in 55. See 15. Accepted in 15 and 49. Accepted in 48. Accepted in 26. Accepted in 35-36. Accepted in 20 and 27. Accepted in 38-40. Accepted in 41. Accepted in 43. Accepted in 46. Accepted in 18. Accepted in 19. Accepted in 20. Accepted in 20. 30-32 Hereby accepted. Accepted in 26. Accepted in 21 Accepted in 21 and 23. Accepted in 23. Accepted in 228 and 32. Accepted in 32. Accepted in 24. Accepted in 29 and 31. Accepted in 33. Accepted in 33 and hereby accepted. Accepted in 34. Accepted in 53. Accepted in 50. Accepted in 51. Accepted in 36. Accepted in 36 and 55. 49-50 Accepted in 57-60. 51-56 Not relevant. Accepted in 36. Accepted in 63. See 64. Accepted in 65. See 65. Not relevant. Accepted in 65. Not relevant. Accepted in 36. 66-67 Accepted in 71 68-69 Hereby accepted. 70 Accepted in 68. 71-73 Hereby accepted. Accepted in 67. Hereby accepted. Accepted in 68-69. Hereby accepted. Accepted in 68. Hereby accepted. 80-81 Hereby accepted. Accepted in 68-69. Accepted in 67. 84-85 Hereby accepted. Accepted in 23. Accepted in 32. Accepted in 36. 89-90 Accepted in 74. Accepted in 36. Accepted in 76-77. Accepted in 79. Accepted in 81. Accepted in 80. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Chris Mancino, Esquire 1215 Southeast Second Avenue, Suite 102 Fort Lauderdale, Florida 33316 Brigette A. Ffolkes Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Tracy H. Lautenschlager Assistant County Attorney 115 South Andrews Avenue Room 423 Ft. Lauderdale, Florida 33301 Barbara A. Hall, Esquire 515 East Las Olas Boulevard Suite 1500 Ft. Lauderdale, Florida 33301 William S. Spencer, Esquire Post Office Box 6 Hollywood, Florida 33022 Edwin J. Stacker, Esquire Post Office Box 1900 Ft. Lauderdale, Florida 33302 John H. Pelzer, Esquire Post Office Box 1900 Ft. Lauderdale, Florida 33302
The Issue The issues in this case are whether two City of Palm Bay Comprehensive Plan Amendments, one of which was "small scale development amendment" under Section 163.3187(1)(c), Florida Statutes, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Brevard County (County) is a political subdivision of the State of Florida. See Section 7.05, Florida Statutes. The County is bordered on the north by Volusia County, on the west by Volusia, Orange, and Osceola Counties, on the south by Indian River County, and on the east by the Atlantic Ocean. The City of Palm Bay (City) is a municipality in southeast Brevard County, just to the southwest of the City of Melbourne. In its extreme northeast, the City borders on the Intracoastal Waterway. From there, it fans out to the southeast, surrounded on all sides by the County. The Department of Community Affairs (DCA) is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The Small-Scale Amendment: Review and Adoption On June 3, 1999, William Wilson submitted an application to amend the City's Future Land Use Map (FLUM) for a 1.1558-acre (small-scale) parcel of land in the unincorporated County at the southeast corner of the intersection of Valkaria Road (an east/west thoroughfare) and Babcock Street (a north/south thoroughfare), in anticipation of annexation by the City. In this vicinity, the unincorporated County lay to the east, across Babcock Street, between the City and the Intracoastal Waterway. The unincorporated County land to the north, east, and south of the parcel had a future land use designation of "Residential" on the County's FLUM; the City land to the west had a residential future land use designation on the City's FLUM. The requested amendment was from the existing County "Residential" designation to City "Commercial." A zoning change also was requested from County AU (Agricultural Residential) to City CC (Community Commercial). The parcel subject to the small-scale amendment request has a single-family home and free-standing residential garage located onsite. Projected impacts from commercial development on the parcel met all relevant City level of service (LOS) standards. (The County has not put environmental suitability at issue with respect to the parcel.) The City planning staff recommended approval of the requested plan amendment; staff recommended approval of the zoning change but to City NC (Neighborhood Commerical). These requests were heard by the City Planning and Zoning Board, sitting as the local planning agency (LPA), on October 20, 1999. The LPA voted to recommend to the City Council that the plan amendment be approved and that the zoning change to City NC also be approved. By Ordinance 2000-08, adopted on March 2, 2000, the City annexed the small-scale parcel, effective immediately upon enactment of the Ordinance. By Ordinance No. 2000-09, also adopted on March 2, 2000, the City Council granted the request to change the future land use designation of the parcel on the City's FLUM to City "Commercial." By Ordinance No. 2000-10, zoning on the parcel was changed to City NC. The Large-Scale Amendment: Review and Adoption On July 6, 1999, Brian West submitted an application to amend the City's FLUM for a 19.57-acre parcel on the northeast corner of the intersection of Valkaria Road and Babcock Street (immediately north of the small-scale parcel, across Valkaria), in anticipation of annexation by the City. The requested amendment was from the existing Brevard County "Residential" designation to City "Commercial" future land use. A zoning change from County AU (Agricultural Residential) to City CC (Community Commercial) also was requested. This 19.57-acre (large-scale) parcel is vacant. The County has not put environmental suitability at issue with respect to the large-scale parcel. The City's planning staff recommended approval of the requested plan amendment, which was heard by the City's Planning and Zoning Board, sitting as the LPA, on October 20, 1999, along with the small-scale request. The LPA voted to recommend to the City Council that the large-scale amendment be denied. On February 15, 2000, the City Council conducted a special meeting to consider the requested large-scale annexation, plan amendment, and zoning change and voted to approve the requests. However, at the time, the City also was in the process of developing plan amendments in response to its Evaluation and Appraisal Report (EAR); as a result, transmittal to DCA was deferred until transmittal of the EAR-based amendments. On January 18, 2001, the City Council met in regular session and voted to transmit the requested large-scale amendment to DCA, along with the other EAR-based amendments. On May 17, 2001, DCA issued its Objections, Recommendations, and Comments (ORC) Report regarding the transmitted comprehensive plan amendments. DCA raised several objections and made comments regarding the amendment. The ORC Report was received by the City on May 21, 2001. (The greater weight of the evidence was contrary to testimony of the City's Planning Manager that the ORC Report received on that date was incomplete.) On October 2, 2001, the City Council adopted Ordinance No. 2001-65, which adopted the requested amendment for the large-scale parcel from County Residential to City Commercial future land use. The EAR-based amendments also were adopted on the same date by Ordinance 2001-66. By Ordinance 2001-86 adopted on November 1, 2001, the City annexed the large-scale parcel, effective immediately. Re-Adoption of Plan Amendments at Issue At some unspecified time after October 2, 2001, the City became aware of concerns voiced by DCA regarding the sequence and timing of the large-scale annexation and FLUM amendment. To address these concerns, the City adopted Ordinance No. 2001-105 on December 20, 2001. This Ordinance repealed and re-adopted Ordinance No. 2000-65. At some unspecified time after March 2, 2000, the City became aware of concerns raised by DCA that adoption of the small- scale FLUM amendment took place before the City adopted plan amendments to comply with new school siting requirements, contrary to a statutory prohibition. In order to address these concerns, the City adopted Ordinance No. 2000-79 on January 4, 2001, to repeal and re-adopt Ordinance No. 2000-09, re-designating the small-scale parcel for "Commercial" future land use. DCA Notice of Intent and City's EAR-Based Amendments On January 21, 2002, DCA published a Notice of Intent to find the readopted large-scale amendment "in compliance." DCA subsequently caused to be published a Notice of Intent to find this readopted amendment "in compliance." The EAR-based amendments adopted on October 2, 2001, included certain text amendments, but these amendments had no direct bearing on the plan amendments at issue in this case. All plan text provisions relating to the plan amendments at issue in this case remained "substantially the same" after the EAR-based amendments. Need for Additional Commercial Future Land Use and Internal Consistency The County contends that analysis of the data in existence at the time of adoption of the plan amendments at issue in this case does not support a need to change the future land use on these parcels from County Agricultural Residential to City Commercial. But the following Findings are based on these data and analysis. City data and analysis dated January 2001 indicated in pertinent part: In 2011 the City will need 719 acres of commercial land and at buildout, will need approximately 1,725 acres. The Future Land Use Map currently allocated approximately 1,612 acres for commercial and office development. This is slightly below the needs identified over the long term time periods. The expansion of existing Activity Centers and the development of new Activity Centers should easily accommodate this minor increase. Between now and the next required Plan update in 2007, the City should analyze the available commercial land to determine if existing designated lands are appropriately located or whether new areas should be established and existing designations converted to other land use types. Of particular interest in that regard would be the large amount of neighborhood commercial presently designated but which is primarily vacant. It was not clear from the evidence how the acreage figures in the data and analysis were calculated. It does not appear from the evidence that the figure for commercial acreage "needed" included any "cushion" or "margin of error." If the City has more land allocated for commercial future land use than is expected to be "needed" within the planning horizon of its Comprehensive Plan (the year 2011), it may be the result of pre-platting of the City by General Development Corporation. If so, the City also has an even greater excess of acreage allocated for residential future land use since approximately 90 percent of the City was pre-platted for small, quarter-acre residential lots. As a result of pre-platting, it now appears that, at build-out (expected in about 20-30 years), the City will have an excess of allocated for residential land use and a shortage of acreage allocated for commercial land use (among other non-residential uses.) As a result, there is a current need to begin to reduce the amount of acreage allocated for residential future land use and add commercial acreage (as well as other non-residential uses.) A disproportion of City land allocated to commercial future land use is in the northern part of the City, between Malabar Road and Palm Bay Road, a considerable distance from the intersection of Babcock Street and Valkaria Road. Before the plan amendments at issue in this case, there was hardly any commercial future land use in the City in the vicinity of the Babcock/Valkaria intersection. Almost all of what little commercial future land use could be found in the vicinity was in small parcels--the single exception being a 15-acre parcel at the intersection of Eldron and Grant approximately two miles to the south. There also was very little land allocated to commercial future land uses in the unincorporated County anywhere near the Babcock/Valkaria intersection. Almost all of the unincorporated County in the vicinity had Rural Residential future land use. There was some County Neighborhood Commercial across Babcock from the 15- acre parcel of City Commercial two miles to the south of the intersection. There also was some County Neighborhood Commercial and a small amount of County Community Commercial future land use east of Babcock about a mile to the north of the intersection. A 40-acre parcel approximately 650 feet to the east of the intersection was changed from County rural residential to general commercial zoning in 1988. But at around the time the City began to process the plan amendments at issue in this case, the County purchased the land and re-designated it for Public future land use and GML (Government-Managed Land) zoning. Most of the City's population growth in the last 20 years has been in the southern and western part of the City, to the west of the Babcock/Valkaria intersection. Between 1986 and 1999, residential development within 2-3 miles of the amendment sites increased approximately 160 percent. As a result, whereas 17 years ago most of the City's population was east of Interstate 95, now approximately half the population resides west of Interstate 95 (although 60 percent still resides north of Malabar Road.) Due to the sparse commercial use in the vicinity, either in the City or the unincorporated County, there is a need for more land designated for commercial future land uses in the southern part of the City to serve the rapidly growing population in that area. The applicant for the large-scale amendment submitted a letter projecting a need for 1.5 million square feet of retail space in the City based on a comparison of "current space" with average retail space per capita in Florida. The County criticized the professional acceptability of this submission as data and analysis to demonstrate need for additional commercial acreage in the City. Standing alone, the submission may be fairly subject to the County's criticism; but considered along with the other data and analysis, the submission adds to the demonstration of need for the plan amendments. It was estimated that commercial uses at the intersection of Babcock and Valkaria will generate an additional 12,000 vehicle trips on Babcock in the vicinity of its intersection with Valkaria. This estimate further demonstrates a need for additional commercial future land use in the vicinity. At least some of the vehicle trips expected to be generated in the vicinity of the Babcock/Valkaria intersection as a result of adding commercial future land use there would correspond to a reduction in vehicular traffic from the southern part of the City to and from commercial areas in the northern part of the City. For that reason, by helping balance the amount of commercial land use available in the northern and southern parts of the City, adding commercial future land use in the southern part of the City could be reasonably expected to reduce traffic overall. Commercial land uses generally generate higher tax revenue and demand fewer government services than residential land uses. Meanwhile, the City provides most of the government services in the Babcock/Valkaria vicinity and has a backlog of infrastructure projects. For that reason, an economic benefit reasonably is expected to accrue to the City from adding commercial in the southern part of the City.2 Future Land Use Element FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon area need. . . ." FLU Policy 3.1A states: "The acreage of commercial land permitted by the Future Land Use Map shall not exceed projected needs." The County did not prove that the proposed FLUM amendments are inconsistent with either this Objective or this Policy. The plan amendments at issue are based upon area need and do not exceed projected needs, as reflected in the data and analysis. Compatibility and Internal Consistency The County contended that City Commercial future land use for the amendment parcels is incompatible with surrounding land uses and internally inconsistent with provisions the City's FLU Objective 2.3, to: "Prevent incompatible land uses from locating in residential areas in order to promote neighborhood stability and prevent deterioration." In the unincorporated County to the east of Babcock Street, there are primarily large-lot, rural residential land uses with some agricultural uses such as horses and tree-farming. But, as indicated, there are platted residential lots in the City to the west of Babcock Street that are urban (or suburban) in character. During the course of these proceedings, the County abandoned its contentions as to incompatibility of the small-scale amendment except for the existence of a residential structure on the property. In arguing that the existence of the residential structure on the property makes commercial future land use incompatible, the County relied on the City's zoning LDRs. But zoning and consistency of zoning with the requirements of zoning LDRs are not at issue in this comprehensive plan amendment case. See Conclusion 52, infra. Even if zoning and consistency with zoning LDRs were at issue, the applicant's residential structure would not defeat the applicant's proposed future land use change; rather, granting the application would mean that use of the residential structure would have to be discontinued after the future land use change. As to the large-scale amendment, the County also relies in part on alleged inconsistency with an LDR--in this instance, the City's LDR for Community Commercial zoning that these areas are "to be primarily located in or near the intersection of arterial roadways." But, again, zoning and consistency of zoning with the requirements of zoning LDRs are not issues for determination in this comprehensive plan amendment case. Id. Even if zoning and consistency of zoning with the requirements of zoning LDRs were at issue, consistency and compatibility still would be fairly debatable. The evidence was that Valkaria was designated as a collector road at the time of adoption of the proposed large-scale amendment and that Babcock was designated as an arterial roadway to the north of Valkaria and as a collector to the south of Valkaria. The City characterized Babcock as a minor arterial. By its terms, the LDR in question does not prohibit Community Commercial zoning except in or near the intersection of arterial roadways; it only provides that these areas are to be located primarily in or near these intersections. Even if City Community Commercial zoning were clearly inconsistent with the City's LDR for Community Commercial zoning, City Neighborhood Commercial zoning has no similar provision for location vis-a-vis arterial roads. Since the City only has one commercial future land use category, City Commercial would be the appropriate City future land use designation for City Neighborhood Commercial zoning. The County's contentions as to the large-scale amendment also are seriously undermined by the existence of both County Community Commercial and County Neighborhood Commercial future land use east of Babcock. In addition, a County-sponsored Small Area Study (SAS) of approximately 11,500 acres of land east of the intersection along Valkaria Road recommended County Neighborhood Commercial future land use for the northeast and southeast corners of the intersection of Babcock and Valkaria (as well as County Restricted Neighborhood Commercial zoning). As indicated, the City's Comprehensive Plan does not distinguish between the two categories of commercial future land use and, if any commercial future land use is compatible with surrounding land uses, City Commercial future land use is appropriate. Contrary to the County's argument, it makes no difference to the appropriateness of City Commercial future land use that County Neighborhood Commercial future land is more limited than City Commercial future land use (or that County Restricted Neighborhood Commercial zoning is more limited than City Community Commercial zoning). The County argued that the large-scale future land use amendment was inconsistent with City FLUE Policy 2.3A, which states that LDRs must "continue to contain provisions to ensure that land uses surrounded by and/or abutting residential areas are not in conflict with the scale, intensity, density and character of the residential area." There is nothing about the proposed FLUM changes that is inconsistent with this Policy. Consistency of LDRs with this Policy is not at issue in this proceeding. See Conclusion 53, infra. The County also questioned the adequacy of buffer between commercial uses on the large-scale parcel and nearby residential uses. Precise questions as to the adequacy of buffer are decided under the LDRs, during site development review and permitting. However, it is noted that there is a 50-foot wide "paper street" (i.e., a platted right-of-way that never was developed as a street) to the west of the large-scale parcel. In addition, zoning as City Community Commercial was conditioned upon additional buffer to the east (25 feet wide) and to the north (50 feet wide). Consideration also is being given to a Habitat Conservation Plan of an undetermined size in the northern portion of the site for use as a "fly-over" for scrub jays. In addition, actual use of the residential land in the unincorporated County to the north of the large-scale parcel includes a car repair business with garage and approximately 15 cars in various states of disrepair.3 For all of the foregoing reasons, the evidence did not establish either internal inconsistency or incompatibility of commercial uses on the large-scale parcel with existing residential uses. Infrastructure and Internal Consistency At the time of adoption of the plan amendments at issue, central water and sewer services had not yet been extended to the two parcels. However, it was clear from the evidence that adequate central water and sewer capacity existed to accommodate commercial development on these parcels and that central water and sewer was being extended to the parcels. The Capital Improvements Element of the City's Comprehensive Plan listed $1.7 million being budgeted for water and sewer improvements in fiscal year 2001/2002, and in excess of $15.3 million budgeted in fiscal year 2002/2003. FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon . . . the availability of supporting infrastructure." The County did not prove that the proposed plan amendments are inconsistent with this Objective. Urban Sprawl and Internal Consistency The County maintains that the proposed plan amendments exacerbate urban sprawl. But the County provided no detailed analysis of the indicators of urban sprawl in Rule 9J-5, Florida Administrative Code, to support its contention. In arguing urban sprawl, the County relied on its contentions that there was no demonstrated need to convert County rural residential land use to City commercial land use. This argument has been rejected. See Findings 20-31, supra. The County's urban sprawl argument also focused on uses in the unincorporated County east of Babcock and characterizes the plan amendments as placing commercial land use in a rural area. This focus and characterization ignores the existence of urban residential uses in the City west of Babcock. Seen in proper perspective, the proposed plan amendments allow commercial land use that would tend to mitigate and discourage the kind of urban sprawl promoted by the pre-platting of the City. Instead of having to travel to access commercial uses in distant parts of the City, City residents in the vicinity would have a much closer option under the proposed amendments (as would County residents in the vicinity). FLU Objective 1.4 in the City's Comprehensive Plan is to: "Establish a Growth Management Area to control urban sprawl." FLU Policy 1.4B states: "City funds shall not be utilized to expand public facilities and services for future growth outside of the established Growth Management Area." The small-scale parcel was outside the established Growth Management Area (GMA) at the time of adoption of the small-scale amendment. But it does not follow that the small-scale amendment constitutes urban sprawl. Nor does it follow that the small-scale amendment is inconsistent with either the Objective or the Policy. The small-scale amendment can be made a GMA before any City funds are used to expand public facilities and services for future commercial use of the small-scale parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding both the small-scale amendment and the large- scale amendment of the City of Palm Bay (adopted by Ordinance 2000- 79 and by Ordinance 2001-105, respectively) "in compliance." DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2002.
The Issue Whether the Petitioner's applications for two outdoor advertising permits, dated June 1, 1999, and received by the Respondent on June 10, 1999, should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for, among other things, issuing permits and regulating outdoor advertising structures and signs along the state highway system, the interstate system, and the federal-aid primary system. Section 479.02, Florida Statutes (1999). In the applications received by the Department on June 10, 1999, AK Media sought permits for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 7/U.S. 441, 2.4 miles north of Atlantic Avenue in Palm Beach County, Florida, and approximately 57 feet from the State Road 7 right-of-way. AK Media has leased the proposed site from its owner. As a required part of the applications, AK Media submitted two Florida Department of Transportation forms executed on April 12, 1999, by Jon Mac Gillis, Principal Site Planner for Palm Beach County. The current zoning of the proposed site was identified on the form as "CG Commercial General," and the designation of the proposed site on the future land use map was identified as "SA", that is, "Special Agriculture." It was further indicated on the form executed by Mr. Gillis that, within the "SA" designation, commercial and industrial uses were the "predominate uses allowed within 660' of the highway adjacent to the proposed site." On May 26, 1999, Palm Beach County issued a Special Permit allowing AK Media to register the proposed billboard. In its Notice of Denial of Application, the Department identified one basis for denying AK Media's applications as follows: Site is in un-permittable land use designation. Pursuant to Section 479.111, Florida Statutes, outdoor advertising signs must be located in commercial or industrial zoned or unzoned areas. Section 479.01(3) defines "commercial or industrial zone" as an area "designated predominately for commercial or industrial use under the future land use map of the comprehensive plan adopted pursuant to Chapter 163." The land use designation for the subject site is SA. The Palm Beach County, Florida, Official Zoning District Map in effect at the time of the hearing identified the zoning of the proposed site of the outdoor advertising signs as "CG" (Commercial General). The Future Land Use Atlas of Palm Beach County in effect at the time of hearing designated the proposed site of the outdoor advertising signs as "SA" (Special Agriculture). Palm Beach County's 1989 Comprehensive Plan, as revised December 13, 1999, was in effect at the time of the hearing. "Special Agriculture Uses" are defined therein in pertinent part: The following land uses and intensities are allowed in areas designated Special Agriculture where permitted by the terms of the Unified Land Development Code: Fruit and vegetable markets and terminals for farm products; Agricultural production uses including, but not limited to, produce packing plants, poultry and egg production, nurseries, growing, livestock, kennels, training centers and potting soil manufacturing; Agriculturally related services such as feed and grain stores and farm implement sales and service and fueling areas restricted solely to agricultural activities; Mining, subject to the limitations; Uses and structures accessory to a permitted use; and Limited residential uses as described below, farm labor quarters and camps; caretaker's quarters, such as for pump houses; dwelling quarters and farm residences for bona fide farm operations; or dwelling units allowed as alternative use. The Palm Beach County Comprehensive Plan defines "Commercial Agricultural Development" as follows: "Agriculture conducted for commercial purposes within the Agricultural Production Plan Category North of L-8 Canal and East of the North Tieback Canal, the AG Reserve Plan Category, and those activities classified as special agriculture." In concluding that AK Media's applications should be denied, the Department's field inspector confirmed the "SA" designation on the Palm Beach County future land use map but disregarded the certification of the Principal Site Planner for Palm Beach County that the proposed site was zoned "GC" and that predominately commercial uses were allowed within areas designated "SA" in the future land use map. The proposed site of the outdoor advertising signs is designated for commercial use in Palm Beach County's future land use map, albeit commercial use related to agriculture, and the site is zoned General Commercial, as shown on Palm Beach County's current zoning map. The proposed site is, therefore, located within a commercial zone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order granting the applications of AK Media, Inc., for permits to erect outdoor advertising signs on the site identified in the applications. DONE AND ENTERED this 8th day of June, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 2000.
The Issue The issue to be determined in this proceeding is whether a small scale development amendment to the future land use map of the City of Jacksonville's 2030 Comprehensive Plan, adopted by Ordinance No. 2019-750-E on February 25, 2020 (the Ordinance), is "in compliance," as that term is defined in section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. The Parties and Standing Petitioner Livingston is a Florida resident, who lives at 1507 Alexandria Place North, Jacksonville, Florida 32207. Livingston appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Livingston is an affected person under section 163.3184(1)(a). Petitioner Gopal is a Florida resident, who lives at 1535 Alexandria Place North, Jacksonville, Florida 32207. Gopal appeared at the adoption hearings for the Ordinance, and submitted comments and objections on the record. Gopal is an affected person under section 163.3184(1)(a). Right Size is a Florida not-for-profit corporation that conducts business in the City, and its corporate address is 1507 Alexandria Place North, Jacksonville, Florida 32207. The specific purpose of Right Size, as stated in its Articles of Incorporation filed February 11, 2020, is to support, protect and preserve the historic character and beauty of San Marco, a historic residential neighborhood south of downtown Jacksonville and the St. Johns River. Officers of Right Size appeared at the adoption hearings for the Ordinance and submitted comments and objections on the record. Right Size is an affected person under section 163.3184(1)(a). Respondent City is a municipal corporation of the state of Florida and is responsible for enacting and amending its comprehensive plan in accordance with Florida law. The City provided timely notice to the parties and the process followed the provisions of the City's Ordinance Code and part II of chapter 163. The Ordinance relates to 2.87 acres of property located at 2137 Hendricks Avenue and 2139 Thacker Avenue (Property). The Property is located within the City's jurisdiction. Intervenor Harbert is an Alabama limited liability company, registered to do business in Florida. Harbert is an applicant of record for the small scale development amendment and currently has the Property under a purchase contract pending the effective adoption of the Ordinance. Harbert is an affected person and intervenor under section 163.3187(5)(a). Intervenor South Jax is a Florida not-for-profit corporation and is the owner of record of the Property that is the subject of the Ordinance. South Jax is also an applicant of record for the small scale development amendment. South Jax is an affected person under section 163.3184(1)(a). The Property and Surrounding Parcels The Property occupies the majority of one block in the San Marco neighborhood of the City. It is bounded on the north by Alford Place, on the east by Mango Place, on the south by Mitchell Avenue, and on the west by Hendricks Avenue (State Road 13). Hendricks Avenue is classified as an arterial road. The Property is currently home to The South Jacksonville Presbyterian Church. The southern portion of the Property, comprising 1.89 acres, is currently designated Residential Professional Institutional (RPI) on the City's Future Land Use Map series (FLUM) of the Future Land Use Element (FLUE) in the 2030 Comprehensive Plan (Comp Plan). The northern portion of the Property, comprising 0.98 acres, is currently designated Community/General Commercial (CGC) on the FLUM. The southern portion of the Property is currently zoned Commercial Residential Office (CRO) on the City's zoning map. The northern portion of the Property is zoned Commercial Community/General-1 (CCG-1) on the City's zoning map. The FLUM shows that the Property is currently in the City's Urban Development Area (UDA), and abuts the boundary line of the City's Urban Priority Development Area (UPDA) to the north. The parcel to the north of the Property was the subject of a small scale FLUM amendment in 2014 (Ordinance 2014-130-E). It is known as East San Marco, currently has a Comp Plan FLUM designation of CGC, and is in the UPDA that permits development of up to 60 residential units per acre (ru/acre). Ordinance 2014-130-E for East San Marco included a FLUE text change, i.e., a site specific policy/text change under section 163.3187(1)(b). FLUE Policy 3.1.26 exempts East San Marco from specified UPDA characteristics. The East San Marco property was recently rezoned from Planned Unit Development (PUD) to PUD (Ordinance 2019-799-E) for a mixed-use project known as the East San Marco development. The PUD provides that the maximum height for commercial buildings is 50 feet not including non- habitable space, and 48 feet for multifamily units. Located south of the Property across Mitchell Avenue are parcels developed for single family residential use and currently designated as Low Density Residential (LDR) on the FLUM. These properties are zoned Residential Low Density-60 (RLD-60) on the City's zoning map. Located east of the Property across Mango Place are parcels developed with a mix of single family residential and office uses and designated as a mix of CGC and RPI on the FLUM. These properties have a mix of zoning including CCG-1, Residential Medium Density-A (RMD-A), and Commercial Office (CO). Located west of the Property at Hendricks Avenue/San Marco Boulevard are parcels developed with multifamily, restaurant and retail commercial uses and designated as a mix of Medium Density Residential (MDR) and CGC on the FLUM. These properties are zoned RMD-D and CCG-1. Intervenors intend to develop the Property with a mixed-use project that will include 133 multifamily residential units and a parking garage. The existing church sanctuary will remain in use at the northeast corner of Hendricks Avenue and Mitchell Avenue. The Ordinance On August 27, 2019, Intervenors applied for a small scale development amendment proposing to change the Property from RPI and CGC to CGC, and to extend the UPDA to include the Property. On the same date, Intervenors also filed a companion rezoning application seeking to change the zoning on the Property from CRO and CCG-1 to PUD. The rezoning application was processed concurrent with the small scale development amendment application. The City's professional planning staff collected and reviewed data and information related to the small scale development amendment application, the Property, and the surrounding areas. The staff also conducted a site visit. The staff further sought review by, and received input from, a number of different City and state agencies and organizations regarding the proposed Ordinance. On October 28, 2019, the City held a citizens' information meeting to discuss the proposed Ordinance. The meeting was attended by approximately nine residents. After reviewing and analyzing the data and information gathered, City professional planning staff determined that the Ordinance was consistent with the Comp Plan and furthers the goals, policies, and objectives of the Comp Plan. The determination was memorialized in a staff report recommending approval of the Ordinance. The staff report was prepared for consideration by the City's Planning Commission prior to its regular meeting on January 23, 2020. At its January 23, 2020, meeting, the Planning Commission held an approximately two and one-half hour hearing on both the Ordinance and the PUD. At the conclusion of the hearing, the Planning Commission recommended approval of the Ordinance by a unanimous vote. The staff report and the Planning Commission's recommendation were forwarded to the City Council's Land Use and Zoning (LUZ) Committee. The LUZ Committee held public hearings addressing the Ordinance on December 3, 2019; January 22, 2020; February 4, 2020; and February 19, 2020. Certain concerns were raised by citizens at public hearings both before and during the February 19, 2020, LUZ Committee meeting. In response, the LUZ Committee requested that Mr. Killingsworth draft a site specific policy/text amendment to adopt limitations on the number of residential units, the non-residential floor area permitted on the Property, and the maximum height of structures on the Property, with measurable criteria for determining the height of structures within the proposed use on the Property. During the February 19, 2020, public hearing, the LUZ Committee recommended addition of FLUE Policy 4.4.16, a site specific policy/text amendment, which states: Multi-family residential uses shall be limited to 133 units. Non-residential floor area shall be limited to 96,000 square feet (garage, all floors) and 25,000 +/- square feet (existing church, all floors). To ensure compatibility with adjacent uses and to protect neighborhood scale and character through transition zones, bulk, massing, and height restrictions, new building height shall be limited to the calculated weighted average, not to exceed 35 feet, across the length of the development from Alford Place to Mitchell Avenue as follows: A sum of the height to the predominant roof line (ridge or parapet wall) of that portion of a building multiplied by the length of that portion of a building divided by the overall length of that portion of a building divided by the overall length of permissible building within the minimum setback. After approximately six hours of testimony and discussion, the LUZ Committee unanimously recommended approval of the Ordinance with the site specific policy/text amendment. The City Council held public hearings to address the Ordinance on November 26, 2019; December 10, 2019; January 28, 2020; February 11, 2020; and February 25, 2020. After approximately five and a half hours of testimony and discussion, the City Council adopted the Ordinance on February 25, 2020, by a vote of 17 to one. There was significant citizen input regarding the Ordinance throughout the hearing process. This included emails and letters to City staff, to Planning Commissioners and City Council members, and submittal of verbal and written comments at the hearings. Petitioners' and Right Size's Objections Following their filing of the Petition and other stipulations mentioned above, Petitioners and Right Size jointly presented their case during the final hearing. They argued that the Ordinance was not "in compliance" because: (i) it created internal inconsistencies based upon Comp Plan Policies 1.1.20A, 1.1.20B, 1.1.21 and 1.1.22; (ii) it was not based on relevant and appropriate data and an analysis by the City; (iii) it did not react to data in an appropriate way and to the extent necessary indicated by the data available at the time of the adoption of the Ordinance; and (iv) subsection (c) of FLUE Policy 4.4.16 related to height failed to establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and land use regulations. Each argument is generally addressed below. However, the primary underlying premise of Petitioners' and Right Size's challenge was that the Ordinance would allow a density in excess of 40 ru/acre and permit a height in excess of 35 feet. Internal Consistency In the Amended Joint Pre-hearing Stipulation, as modified by the Notice of Narrowing Issues for Hearing, Petitioners and Right Size identified specific policies in the Comp Plan, which they assert rendered the Ordinance inconsistent with the Comp Plan. FLUE Policy 1.1.20A states that "[e]xtensions of the Development Areas will be noted in each land use amendment where an extension is needed or requested concurrent with a Future Land Use Map Amendment. In addition, plan amendments shall meet the requirements as set forth in Policy 1.1.21 and 1.1.22." The definitional section of the FLUE explains that the City is divided into five tiers of Development Areas which include the UPDA and the UDA. These areas are depicted on the City's FLUM series and control "the density, development characteristics, and other variables within plan categories." The first sentence of Policy 1.1.20A affords applicants the ability to request an extension of a development area concurrent with a land use amendment application. Consistent with the policy, the small scale development amendment application included a request for an extension of the UPDA. The request was submitted concurrent with the request to designate the Property as CGC on the FLUM. The adopted Ordinance makes note of the extension of the UPDA as required by Policy 1.1.20A. The second sentence of Policy 1.1.20A requires that when an amendment application includes a request to extend a development area, the City must ensure consistency with Policies 1.1.21 and 1.1.22. The City's analysis is reflected in the staff report, which finds that the amendment application meets Policies 1.1.20, 1.1.20A, and 1.1.20B. Petitioners and Right Size did not offer any testimony regarding consistency with Policy 1.1.20A. Their expert, Mr. Atkins, testified that he was familiar with Policy 1.1.20A, but did not explain how or why the Ordinance was internally inconsistent with Policy 1.1.20A. Instead, Mr. Atkins testified about data and analysis regarding Policy 1.1.21. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was inconsistent with Policy 1.1.20A. FLUE Policy 1.1.20B states: Expansion of the Development Areas shall result in development that would be compatible with its surroundings. When considering land areas to add to the Development Areas, after demonstrating that a need exists in accordance with Policy 1.1.21, inclusion of the following areas is discouraged; Preservation Project Lands Conservation Lands Agricultural Lands, except when development proposals include Master Planned Communities or developments within the Multi-Use Future Land Use Category, as defined in this element. The following areas are deemed generally appropriate for inclusion in Development Areas subject to conformance with Policy 1.1.21: Land contiguous with the Development Area and which would be a logical extension of an existing urban scale and/or has a functional relationship to development within the Development Area. Locations within one mile of a planned node with urban development characteristics. Locations within one-half mile of the existing or planned JTA RTS. Locations having projected surplus service capacity where necessary facilities and services can be readily extended. Public water and sewer service exists within one-half mile of the site. Large Scale Multi-Use developments and Master Planned Communities which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. Low density residential development at locations up to three miles from the inward boundary of the preservation project lands. Inward is measured from that part of the preservation project lands closest to the existing Suburban Area such that the preservation lands serves to separate suburban from rural. The development shall be a logical extension of residential growth, which furthers the intent of the Preservation Project to provide passive recreation and low intensity land use buffers around protected areas. Such sites should be located within one- half mile of existing water and sewer, or within JEA plans for expansion. After the City makes a determination that there is a need for the expansion of a Development Area pursuant to Policy 1.1.21, the City next looks to see if the property is discouraged under Policy 1.1.20B. The subject Property does not fall into one of the discouraged lands. The City's expert, Ms. Reed, explained that if the questions of need and discouraged lands are satisfactorily answered, the Policy then describes lands that are generally deemed appropriate for inclusion in a particular Development Area. The first question is whether the Property is contiguous to the UPDA and whether the extension is logical. The staff report notes that the Property is immediately adjacent to the UPDA to the north and that an extension of the boundary is logical because it permits an infill project. Ms. Reed and Ms. Haga testified that the proposed extension of the UPDA to include the Property is also logical because there is a functional relationship to the proposed mixed-use development to the north. The next question is whether the Property is within one mile of a planned node with urban development characteristics. Petitioners and Right Size stipulated that the Property is within a node which was confirmed by Mr. Atkins. The next criterion under Policy 1.1.20B is whether there are mass transit services available near the Property. The staff report notes that mass transit Routes 8 and 25 are available at the Property and this fact was confirmed by Ms. Reed. The fourth and fifth criteria under Policy 1.1.20B address whether there is sufficient water, sewer and other services available to serve the Property. The City requested information from various agencies and utilized the responses to analyze the impact of the Ordinance. The City sought confirmation from the Jacksonville Electric Authority, Transportation Planning, the Duval County School Board, Florida Department of Transportation, and the Concurrency and Mobility Management System Office to determine whether the systems serving the Property, i.e. water, sewer, schools, and roads, had available capacity to serve the site if the UPDA was expanded to include the Property. All the agencies consulted responded that there was sufficient capacity available. In addition, Ms. Reed testified that the Ordinance met Policy 1.1.20B because there is capacity for water and sewer, there is transit available, the area is very walkable, and there is access to a lot of neighborhood services nearby. Ms. Reed and Ms. Haga persuasively testified that the Ordinance met the criteria for land deemed appropriate for inclusion in the UPDA as set forth in Policy 1.1.20B. Petitioners and Right Size did not offer any evidence regarding the consistency of the Ordinance with Policy 1.1.20B and their expert did not offer any opinions or otherwise discuss consistency of the Ordinance with Policy 1.1.20B. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.20B. FLUE Policy 1.1.21 requires the City to analyze need for all land use map amendments. The Policy states: Future amendments to the Future Land Use Map series (FLUMs) shall include consideration of their potential to further the goal of meeting or exceeding the amount of land required to accommodate anticipated growth and the projected population of the area and to allow for the operation of real estate markets to provide adequate choices for permanent and seasonal residents and business consistent with FLUE Policy 1.1.5. The projected growth needs and population projections must be based on relevant and appropriate data which is collected pursuant to a professionally acceptable methodology. In considering the growth needs and the allocation of land, the City shall also evaluate land use need based on the characteristics and land development pattern of localized areas. Land use need identifiers include but may not be limited to, proximity to compatible uses, development scale, site limitations, and the likelihood of furthering growth management and mobility goals. Petitioners and Right Size stipulated that they did not object to a density on the Property of 40 ru/acre or 114 total units, but object to the additional 19 units permitted by the Ordinance. Petitioners' and Right Size's expert, Mr. Atkins, testified that need to expand the UPDA to encompass the Property was not demonstrated, and that need for the "additional number of units" was not demonstrated. The City's experts, Ms. Reed and Mr. Killingsworth explained that Table L-20 of the FLUE identifies land use categories and their projected need at the end of the 2030 planning horizon. Mr. Killingsworth testified that Table L-20 demonstrates that at the end of the planning horizon the RPI land use will be at 119 percent of need, while the CGC land use will be at 84 percent of need. This indicates a need for additional CGC designated lands by 2030, as well as an over-abundance of RPI-designated lands. Since the Ordinance includes a request to change existing RPI-designated lands to CGC, it addresses both the need to increase CGC-designated lands and to decrease RPI-designated lands. Mr. Killingsworth testified that Table L-20 was prepared by the City to comply with section 163.3177(6), which requires all local governments to project need and to assure that there is market availability to respond to such need. The Table, along with the underlying data and analysis used to support it, was reviewed by the Florida Department of Community Affairs (n/k/a the Department of Economic Opportunity) and found to comply with state law. Mr. Killingsworth also testified that the City considered testimony by the San Marco Merchants Association, local residents, and the applicant presented during the hearings. The testimony demonstrates that the Ordinance would address current economic and housing needs in the area. Mr. Killingsworth opined that the testimony and Table L-20 demonstrate a need for the Ordinance to accommodate anticipated growth and the projected population of the area. With regard to the land use need identifiers of proximity, compatibility, and scale, Mr. Killingsworth testified that "compatibility" as defined in the FLUE "doesn't mean you have to have the same uses adjacent to each other, it doesn’t mean that you have to have the same density adjacent to each other." Instead it means that "those uses have to operate in conjunction with each other and there has to be [ ] some sense to the scale, the mass, and bulk of the structure." See Tr. at pg. 203, lines 11-17. Mr. Killingsworth also testified that although the City's analysis was that the Ordinance met the land use need identifiers, the limitations included in the site specific policy/text amendment were an additional way to ensure compatibility with adjacent uses with regard to use, scale, and height. The CGC portion of the Property is currently permitted to be developed up to 40 ru/acre. The site specific policy/text amendment limits the Property to a total of 133 residential units (or approximately 46 ru/acre), which the City Council determined is compatible, particularly given the fact that the East San Marco property directly north of the Property can be developed with up to 60 ru/acre. The Comp Plan FLUE does not establish height limitations for any of the land use categories, including CGC and RPI. Mr. Killingsworth testified that the s ite specific policy/text amendment provides for standards related to height that are otherwise not in the FLUE. The East San Marco project to the north has a height limit of 50 feet, and the low density residential neighborhood to the south has a height limit of 35 feet. Mr. Killingsworth opined that the limitation in the site specific policy/text amendment, restricting the height on the Property to an average of 35 feet, allows for an appropriate transition between the uses to the north and the uses to the south, thus ensuring compatibility. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.21. FLUE Policy 1.1.22 states: "Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system and discourage urban sprawl as described in the Development Areas and the Plan Category Descriptions of the Operative Provisions." Petitioners' and Right Size's expert Mr. Atkins testified that he did not review Policy 1.1.22. However, in an abundance of caution, the City and Intervenors presented evidence to establish that the Ordinance was consistent with Policy 1.1.22. Mr. Killingsworth pointed to the definition of compact development from the FLUE, which includes the efficient use of land primarily by increasing intensity, density, and reducing surface parking. He testified that the Ordinance accomplished these criteria. Mr. Killingsworth testified that the height averaging in the site specific policy/text amendment assisted with ensuring compatibility, and that the proposed development's mix of commercial, residential, and institutional uses on a small site met the definition of compact development. Ms. Reed testified that the Property is in an area with full urban services, has access to transit, and fronts on an arterial roadway. Furthermore, it promotes a compact and compatible land use pattern through redevelopment and infill. Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not consistent with FLUE Policy 1.1.22. Data and Analysis The parties agreed in the Amended Joint Pre-Hearing Stipulation that the facts remaining for adjudication with regard to "data and analysis" were exclusively related to subsection (c) of Policy 4.4.16, the site specific policy/text amendment that addressed only building height. However, Petitioners' and Right Size's expert Mr. Atkins did not discuss data and analysis specifically related to subsection (c) of Policy 4.4.16. Mr. Atkins testified about data and analysis related to the Ordinance generally. The City addressed the data and analysis supporting the Ordinance, and the City's response to that data and analysis. The City considered data from professionally accepted sources and applied an analysis based on established procedures set forth in the Comp Plan. The process of data collection began with the submittal of the application, which included a survey, a legal description and an owner's affidavit. Mr. Killingsworth testified that chapter 640 of the City's Ordinance Code sets out the process by which FLUM amendment applications are processed and reviewed by the planning staff. Section 650.404(b) requires that the City hold a Citizens Information Meeting that allows receipt of additional data from the affected community. Ms. Reed explained that all amendments are evaluated based upon standards and methodologies established in the FLUE for the assessment of data and analysis, which includes public facilities, school impacts, population, and development impacts. The City planning staff collected background data for the initial analysis of the Ordinance. The background section of the staff report goes through an analysis of the characteristics of the site, including the location, acreage, and surrounding uses; describes the site in general; identifies the Council district; identifies the Planning District; and notes if there are any applicable vision plans. The City planning staff also did research on applications and amendments that have occurred in proximity to the Property. The background information is part of the data and analysis that the City used to determine whether the Ordinance Amendment was consistent with the City's policies. In addition, FLUE Policy 1.2.16 requires the City to assume maximum development potential when analyzing the impacts of amendments to the FLUM unless there is a site-specific policy limiting density or intensity. In this instance, the staff report was completed prior to the addition of the site specific policy/text amendment to the Ordinance, which specifically limits the density and intensity permitted on the Property. The City's staff followed the guidelines of Policy 1.2.16 and utilized the maximum development potential for the Property in reviewing the application, i.e., 2.87 acres of CGC designated property in the UPDA. Ms. Reed testified that the site specific policy/text amendment "added parameters and limitations that were not there before, so it really lessened the impact based on what we analyzed versus what was ultimately approved." See Tr. at pg. 291, lines 8-17. Under Policy 1.2.16, the City developed a table entitled "Development Standards for Impact Assessment," which is used to collect and analyze specific impact data. The data gathered by the City for the table included the analyses provided by various advising agencies and entities. The data and analyses provided by the other agencies and entities are summarized in the table in the staff report. The table also includes a section where the City staff identifies and reviews other appropriate plans and studies. These plans and studies have not been adopted into the City's Comp Plan, but they are utilized as data and analysis when the planning staff reviews a FLUM amendment. The staff report identifies three plans applicable to the site, the Southeast Jacksonville Vision Plan, the North San Marco Action Plan, and the Strategic Regional Policy Plan. Ms. Reed explained that the Ordinance was consistent with the Southeast Jacksonville Vision Plan which provides for new development along Hendricks Avenue compatible with existing neighborhoods. The staff report notes that design details can be addressed in the companion PUD rezoning application. Likewise, the staff report concludes that the Ordinance is generally consistent with the features of the North San Marco Action Plan and that design details would be handled through the PUD review and implementation. Finally, Ms. Reed explained that the City found that the Ordinance would achieve the Strategic Regional Policy Plan's goals of improving quality-of-life with appropriate infill and redevelopment and by providing diverse housing options. Additional evidence and testimony offered by the applicant and the citizens during the Planning Commission, LUZ Committee, and City Council hearings was collected and analyzed by the City prior to final action on the amendment application. The additional data and information gathered during the many different hearings on the Ordinance resulted in the recommendation of the LUZ Committee to add the site specific policy/text amendment to the Ordinance. The site specific policy/text amendment limits the development potential on the Property. Mr. Killingsworth testified that the site specific policy/text amendment was a direct result of the City's analysis of input from the public related to intensity, density, and compatibility. Ms. Reed testified that "all of these things were considered together as a whole in order to come up with a recommendation, both in the staff report and final approval by Council as amended." Petitioners and Right Size did not prove beyond fair debate that the Ordinance was not supported by data and analysis, and that the City's response to that data and analysis was not appropriate. Meaningful and Predictable Standards Section 163.3177(1) requires that a Comp Plan "establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations." Petitioners' and Right Size's expert, Mr. Atkins, opined that subsection (c) of the site specific policy/text amendment is "vague in its application and certainty in its outcome," in that "[t]here is no defined limit of what the height might be in violation of the requirements of section 163.3177(1)." Mr. Atkins acknowledged that the Comp Plan FLUE does not otherwise address height and that "[i]t all seems to be handled at the PUD or LDR level." This fact was confirmed by the City's expert, Mr. Killingsworth. Mr. Killingsworth explained that the objective of the site specific policy/text amendment, as a whole, is to establish a maximum development potential or otherwise restrict development on the Property consistent with Objective 4.4 of the FLUE. The density limitations, combined with the height limitation, restrict the development potential on the Property. Mr. Killingsworth testified that subsection (c) represents a policy statement by the City Council that height should be no more than an average of 35 feet, and it provides guidance as to how the height is to be calculated, which will ultimately be implemented in the LDRs and the PUD. Subsection (c) provides more specificity regarding height than would otherwise be achieved through a Comp Plan land use category without a site specific policy/text amendment. Mr. Killingsworth also testified that although the height limitation in subsection (c) may not dictate that the higher heights should be on the northern portion of the Property and transition to the lower heights on the southern portion of the Property, the PUD and the development of the Property will need to comply with other parts of the Comp Plan that require a transition between uses. Petitioners and Right Size did not prove beyond fair debate that the Ordinance does not guide future development decisions in a consistent manner, and does not establish meaningful and predictable standards for the use and development of land. Ultimate Findings Petitioners and Right Size did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order finding Ordinance No. 2019-750-E "in compliance," as defined by section 163.3184(1)(b). DONE AND ENTERED this 10th day of August, 2020, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES 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 10th day of August, 2020. COPIES FURNISHED: Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-3007 (eServed) Frank D. Upchurch, Esquire Upchurch, Bailey and Upchurch, P.A. Post Office Drawer 3007 St. Augustine, Florida 32085-9066 (eServed) Emily Gardinier Pierce, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Courtney P. Gaver, Esquire Rogers Towers, P.A. 100 Whetstone Place, Suite 200 St. Augustine, Florida 32086 (eServed) T.R. Hainline Jr., Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 (eServed) Jason R. Teal, Esquire Office of General Counsel City of Jacksonville 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Paul M. Harden, Esquire The Law Firm of Paul M. Harden, Esquire 501 Riverside Avenue, Suite 901 Jacksonville, Florida 32202 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Mohammad O. Jazil, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Craig D. Feiser, Esquire City of Jacksonville Office of General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 (eServed) Trisha Bowles, Esquire City of Jacksonville Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202-5721 (eServed) Ken Lawson, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue in these cases is whether amendments to the City of Stuart's comprehensive plan, designated amendments 97-S1, 97-1, 98-R1, and 98-ER1 by the Department of Community Affairs, are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Board of County Commissioners of Martin County (hereinafter referred to as "Martin County"), is a political subdivision of the State of Florida. Petitioner, 1000 Friends of Florida, Inc. (hereinafter referred to as "1000 Friends"), is a Florida not-for-profit corporation. The corporate purpose of 1000 Friends includes monitoring and ensuring the proper implementation of the State's growth management laws. Respondent, City of Stuart (hereinafter referred to as the "City"), is a municipal corporation located within Martin County. Respondent/Intervenor, 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"). No evidence concerning Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., was presented. Standing. Martin County owns real property located within the jurisdiction of the City. Although Martin County is also an "adjoining local government," the evidence failed to prove that the amendments at issue in these cases will produce "substantial impacts" on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within Martin County's jurisdiction. There has been a negative impact on Martin County's ad valorem tax base by the annexation of properties formerly under its jurisdiction. Those impacts, however, were caused by the annexation of the properties and not by the amendments at issue in this case. Additionally, those impacts did not cause any need for "publicly funded infrastructure." There may also be some impact as a result in the change in land use designations for some of the annexed property. Martin County's conclusion about the extent of the increase in commercial uses, however, was not supported by the evidence. The evidence also failed to prove that any of the text amendments at issue in these cases will have a negative impact on Martin County's need to provide publicly funded infrastructure. The evidence also failed to prove that the reduction of land subject to Martin County's municipal service taxing district and any resulting decrease in taxable values with the district will cause Martin County to provide additional publicly funded infrastructure. Finally, the evidence failed to prove that Martin County has designated any areas "for protection or special treatment within their jurisdiction" or that there will any "substantial impact" on such areas. Martin County made oral and written comments to the City during the adoption of the amendments at issue in these cases. 1000 Friends, since its formation, has had approximately 6,000 members in Florida. Members from Martin County and the City have totaled approximately 835 and 235 persons, respectively. Martin County and City members constitute a substantial percentage of 1000 Friends' total membership. 1000 Friends' corporate purposes include the representation of its members in legal and administrative proceedings involving the Act. 1000 Friends' litigation committee specifically authorized its participation in these proceedings. The type of relief sought by 1000 Friends in these cases is the type of relief 1000 Friends is authorized to seek on behalf of its members. 1000 Friends made written comments to the City during the adoption of certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Martin County and 1000 Friends are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. 1000 Friends' standing is limited, however, to standing to challenge certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and text amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., failed to prove its has standing to participate in this proceeding. General Information About Martin County and the City. Martin County is a relatively small county located in the central southeast portion of Florida. Martin County is abutted on the north by St. Lucie County, on the west by Lake Okeechobee and a small portion of Okeechobee and Glades Counties, on the south by Palm Beach County, and on the east by the Atlantic Ocean. Martin County has a population of approximately 118,000 permanent residents. The population increases by 32 to 34 percent during the fall and winter. Martin County has the third highest per capita income in Florida. There are four municipalities in Martin County, including the City. The City is located on the Atlantic Ocean at the mouth of the St. Lucie River, which divides the City into two land masses. Most of the City is located south and east of the St. Lucie River. A small part of the City is located just to the north of the St. Lucie River. The north and south portions of the City are connected by the Roosevelt Bridge. The City is connected to Palm City to the west by the Palm City Bridge. The City has a population of approximately 14,000. During the day the population of the City increases significantly to an estimated population of between 25,000 and 30,000. Because of the City's relatively small population and the large influx of persons traveling to the City during the day, the City has a need for a significant amount of ad valorem taxes. More than half of the City's ad valorem property taxes comes from commercial property located in the City. In November 1996 commercial land use in the City accounted for approximately 24 percent of the City's land area. The City is the only full-service incorporated municipality in Martin County. It is the county seat for Martin County and serves as the center of legal, medical, social, commercial, and governmental activities in Martin County. The City has recently characterized itself as follows: For most of its history the character of Stuart was one of low to moderate intensity development in a waterfront community, with a small town feel. A four-story height limit and 10-unit density limit for most residential building were the two main forces that continue this character. In addition, Stuart has long been a hub for Martin County, home to many public and private institutions and businesses. As a result, the percentage of commercial, institutional, and public land in the City was higher than it would be in a city that did not serve as a hub. This role was evident in 1991, and a balance between the residential needs of the citizens of Stuart and the sometimes competing, sometimes complementary needs of those hub-related land uses seemed to drive the 1991 Future Land Use Element. It was recognized at Plan adoption that Stuart was near build-out, and barring further major annexations, would have limited vacant land remaining for new development. City's Evaluation and Appraisal Report, Martin County Exhibit 11 at page 33. Prior to 1997, approximately 2,800 acres of land were located within the jurisdiction of the City. Compared to the rest of Martin County, the City is relatively modest economically. Per capita income in the City is approximately 80 percent of the Martin County-wide average per capita income. Housing in the City consists of approximately 6,300 units. Two-thirds of the City's housing stock is multi-family. Approximately 92 percent of the multi-family housing stock is valued at less than $70,000.00. Approximately 69 percent of the other third of the City's housing stock, which consists of single-family housing, is valued at less than $70,000.00. The median value of owner-occupied housing in the City has been growing at a much slower rate than Martin County, neighboring counties, and the State as a whole. Between 1980 and 1990, the median value of owner-occupied housing in the City increased 56 percent while in Martin County the median value increased 112 percent, in Indian River County 69 percent, in Palm Beach County 77 percent, in St. Lucie County 66 percent, and in the State of Florida 68 percent. Because of the relatively low value of the City's housing stock, ad valorem taxes generated from housing is relatively low. The U.S. 1 Corridor. One of the main thoroughfares in Martin County is United States Highway 1, "Southeast Federal Highway" (hereinafter referred to as "U.S. 1"). U.S. 1 runs north-south through the City. It crosses the St. Lucie River via the Roosevelt Bridge. Land located within unincorporated Martin County along U.S. 1 north of the Roosevelt Bridge almost to the St. Lucie County line is mostly developed or approved for development. Development includes major retail stores such as Target, Sports Authority, Barnes & Noble Bookstore, Office Max, Marshall's, Service Merchandise, PetSmart, Home Depot, Lowe's Home Improvement Center, and grocery stores. There are also many smaller retailers located in strip commercial shopping centers. Most of the development has been permitted during the past five to six years by Martin County. The area to the west and northwest of property annexed by the City north of the Roosevelt Bridge during 1997 and 1998 includes Treasure Coast Mall, strip shopping centers, offices, restaurants, and single-family housing at a density of four to five units per acre. The area to the east and northeast of the property annexed by the City north of the Roosevelt Bridge includes single-family housing at a density of four units per acre, multi- family housing, and commercial and industrial property. The area to the north of the property annexed by the City north of the Roosevelt Bridge includes a development of regional impact known as "West Jensen." West Jensen runs from Jensen Beach Boulevard north to the St. Lucie County line. By 2003, when the project is projected to be fully developed, West Jensen will include 260,000 square feet of limited industrial space, 729,000 square feet of general commercial space, 23,000 square feet of limited commercial space, 235,000 square feet of office space, 200 hotel rooms, 931 residential units, and four golf courses. The area to the immediate south of the City is fully developed. Along U.S. 1 there are large shopping centers, restaurants, car dealerships, strip shopping centers, single-family housing of four to five units per acre, and condominiums. The Martin County Airport abuts U.S. 1 on the east. The area to the west of the City, Palm City, is fully developed. Growth of the City Through Annexation. To the extent that the City grew during the 1970's, it did so through annexation. Subsequent to the 1970's, however, the City turned from annexation and focused on redevelopment of the City's downtown area and the eastern part of the City. Between 1988 and November 1996, the City only annexed 298 acres in 30 annexations. This amounted to an increase of only 18 percent in the geographic size of the City. Subsequent to late 1995, the City shifted its policy back to annexation as a means of growth. Of the 30 annexations the City was involved in between 1988 and November 1996, 19 took place in October 1995. In approximately 1996, the City performed an analysis of its projected revenues and expenditures through the year 2003. The City projected that its revenues would be less than its expenditures. Based upon more recent projections, which take into account recent City annexations, the City has projected that its revenues and expenditures should be about the same for the next eight to nine years. The City has projected that its revenues will increase as a result of ad valorem and sales taxes and other revenues which should be generated from the newly annexed properties. During the Spring of 1997, the City received a number of requests for voluntary annexation pursuant to Chapter 171, Florida Statutes. These requests were accepted by the City and the first 16 parcels were annexed in the Spring of 1997. During 1998, another 27 parcels were annexed through voluntary annexation. Between the spring of 1997, and the end of 1998 the City annexed a total of almost 1,200 acres, increasing the geographic area of the city by 48 percent. The City annexed 254.8 acres in 1997 and 934 acres in 1998. The first requests for voluntary annexations began shortly after Martin County determined that certain roads had no more capacity to sustain further growth. As a consequence of this determination, Martin County imposed a moratorium on new development that would impact U.S. 1 north of the Roosevelt Bridge and the area west of the City on the other side of the Palm City Bridge. Some of the parcels annexed by the City in 1997 and 1998, could not be developed because of the transportation concurrency problem Martin County determined it had. Although there was no direct testimony from owners of parcels annexed by the City during 1997 and 1998, as to the reason they sought voluntary annexation of their property by the City, it is clear that at least some of the voluntary annexations were influenced by Martin County's moratorium and the hope of property owners that the City would take sufficient actions to resolve the transportation concurrency problem on U.S. 1 to allow owners to develop their property. More significantly, the annexations were probably influenced by a perception of property owners that obtaining approval for development from Martin County was a more difficult process generally than obtaining approval through the City. During 1997, the level of service (hereinafter referred to as "LOS") standard selected by Martin County for roads under its jurisdiction was a LOS D. While the City ultimately modified its LOS for roads impacted by development of some of the parcels annexed during 1997 and 1998, the evidence failed to prove that the City's modifications were not based upon reasonable planning principles. The 1997 Small Scale Amendments. The City did not determine specifically how the 16 parcels it annexed during 1997 would impact the City of Stuart's Comprehensive Plan (hereinafter referred to as the "City's Plan") before it accepted the voluntary annexations. Pursuant to Section 171.062(2), Florida Statutes, the 16 parcels the City annexed in 1997 remained subject to the Martin County Comprehensive Plan (hereinafter referred to as the "County Plan") and Martin County's land development regulations until the City amended the City's Plan to incorporate the parcels into the City. In particular, the parcels remained subject to the County Plan until the City amended the City's Plan to assign appropriate land uses to the annexed parcels. Therefore, as the parcels were annexed, the City undertook efforts to amend the City's Plan to assign appropriate land use designations to the parcels. The first nine of the 16 parcels annexed by the City during 1997 took place on September 8, 1997. The parcels were annexed pursuant to the voluntary annexation procedure of Section 171.044, Florida Statutes. Each of the nine parcels consisted of less than ten acres of land. Simultaneously with the annexation of the parcels, the City adopted ten small scale amendments to the Future Land Use Map (hereinafter referred to as the "FLUM") of the City's Plan assigning land use designations under the City's Plan to the parcels. The small scale amendments adopted by the City on September 8, 1997 (hereinafter referred to as "1997 Small Scale Amendments"), were designated Amendments 97S-1 by the Department. The Department did not, however, review the amendments because they constituted small scale amendments exempt from review by the Department pursuant to Section 163.3187, Florida Statutes. On October 8, 1997, Martin County filed a Petition for Formal Administrative Hearing with the Division of Administrative Hearings contending that nine of the 1997 Small Scale Amendments were not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. The Petition was designated Case No. 97-4582GM. 1000 Friends did not challenge the 1997 Small Scale Amendments or intervene in Case No. 97-4582GM. Martin County alleged that the 1997 Small Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with Sections 163.3187(c)(1)(c) [sic] and 163.3187(c)(3)(c) [sic], Florida Statutes; They are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. The land use designations assigned to the parcels to which the 1997 Small Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. In two instances, the Kornbluh and Luce properties, the City's land use designations were virtually the same as Martin County's. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Small Scale Amendments relate and the rationale for the land use designations assigned to the parcels by the City: Kornbluh property (Parcel 1) This parcel consists of 1.4 acres. In the County, approximately half of the parcel was designated commercial/residential (COR), and the other half commercial. The parcel is surrounded by commercial land use to the north, south, east and west, and a portion of the western boundary abuts existing developed low density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1482-97. There is no substantive difference between the County's land use designation for the Kornbluh property and the City's land use designation. The same types of uses are permitted in both, such as gas stations, restaurants, bars, professional offices, veterinary offices, and other retail and commercial uses. 1st Christian Church property This parcel consists of approximately 2.8 acres and has an existing church on the property. In the County, the land use designation was low density residential. The property abuts some commercial property, some vacant property that was low density residential in the County but which has been changed to neighborhood special district in the City, a mobile home park, and some vacant land designated a medium density residential. Because the land has an existing church on the property, the City determined that institutional was a more appropriate land use designation. Thus, the City adopted an ordinance giving the property a land use designation of institutional pursuant to Ordinance No. 1494-97. City Cemetery property (Parcel 7) This parcel consists of 2.06 acres. Part of the property is used as a cemetery and the other part is vacant. In the County, the land use designation was commercial general. The City has given that part of the property that is used as a cemetery a land use designation of institutional pursuant to Ordinance No. 1501.97 and the vacant part a designation of commercial pursuant to Ordinance No. 1502.97. The City Cemetery property is at the intersection of Colorado Avenue and Monterey Road which is one of the most developed intersections in all of Martin County. The property is surrounded by commercial development and also a mobile home park. Luce property (Parcel 8) This parcel consists of approximately 4 acres. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1506-97. There is no difference between the City's and County's land use designation. The City considered a commercial land use designation as appropriate for the Luce property based on the existing use of the property and the surrounding land uses. Specifically, half of the property is currently used as a produce market and the property abuts commercial land use to the north and to the west. To the east, it abuts the old City landfill which is currently closed and to the south it abuts the Martin County jail. Mush property (Parcel 9A) This parcel consists of approximately 3 acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1509-97. The City considered the commercial land use designation as appropriate for the Mush property because it is fully developed as a contractor's showcase office. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. The City's land use designation of commercial is more restrictive than the County's land use designation of industrial. The County's industrial designation allows both industrial types of uses and commercial uses, such as a gas stations, professional offices, retail buildings, etc. The City's land use designation of commercial does not allow industrial uses. Treasure Coast Auction House property (Parcel 9B) This parcel consists of approximately 5½ acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1512-97. The City considered the commercial land use designation as appropriate for the Treasure Coast Auction House property because it is fully developed as a Scotty's store. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. As explained above in the findings of fact regarding the Mush property (9-A), the City's land use designation of commercial is more restrictive than the County's land use designation of industrial. Hospice property (Parcel 10) This parcel consists of approximately 10 acres. In the County, the land use designation was half low density residential and half commercial. The City has given it a land use designation of institutional pursuant to Ordinance No. 1515-97. The Hospice property is developed as a hospice facility and the owners have plans to expand the facility. The property abuts Indian Street, which is an existing two-lane facility which will become a four-lane facility. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Bailey property (Parcel 11) This parcel consists of approximately 10 acres and is currently vacant. In the County, the land use designations was half low density residential and half commercial limited. The City has given it a land use designation of commercial pursuant to Ordinance No. 1519-97. The Bailey property abuts Indian Street, which is an existing two-lane road which will become a four-lane road. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Since it is a commercial corridor, the City considered the commercial designation on the property to be more appropriate than low density residential. Armellini property (Parcel 12) This parcel consists of approximately 1.2 acres. In the County, the land use designation was industrial and the City has given it a land use designation of commercial pursuant to Ordinance No. 1522-97. The Armellini property is on the corner of U.S. 1 and Indian Street and is in close proximity to other commercial development. The types of uses permitted by the City's commercial category is similar to the types of uses allowed by the County's industrial category, such as gas stations, office buildings, restaurants, and bars. The 1997 Large Scale Amendments and the Future Land Use Element Amendment. On December 7, 1997, the City adopted an amendment to the text of the Future Land Use Element (hereinafter referred to as the "FLUE") of the City's Plan. This amendment added a new land use designation to the City's Plan: "Neighborhood/Special District." The amendment also added goals, objectives, and policies concerning the new land use category. The newly created Neighborhood/Special District allows mixed land uses, including neighborhood commercial, office, residential, and recreational. Mixed residential and non- residential uses either in the same building or on the same site are required for a Neighborhood/Special District. A Neighborhood/Special District must have at least 30 percent residential uses and at least ten percent non-residential (excluding recreational) uses. Parking must be clustered in separate pockets rather than located in one expanse, and pedestrian interconnections must be used. On December 8, 1997, the City annexed seven parcels of property by voluntary annexation. On the same date the City adopted nine FLUM amendments assigning land use designations to the annexed property consistent with the City's Plan. Each of the parcels to which the FLUM amendments applied consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The nine large scale amendments to the FLUM and the FLUE amendment adopted by the City in December 1997 (hereinafter referred to as "1997 Large Scale Amendments and the "FLUE Amendment," respectively), were designated Amendment 97-1 by the Department. The Department reviewed the 1997 Large Scale Amendments and the FLUE Amendment. In a Statement of Intent issued February 9, 1998, the Department found the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance." The Department's determination was based upon its conclusion that the new land use category and existing non-residential land use categories applied in the 1997 Large Scale Amendments lacked a density/intensity standard. On February 17, 1998, the Department filed a Petition of the Department of Community Affairs with the Division of Administrative Hearings. The Petition was designated Case No. 98-0794GM. Martin County was granted leave to intervene in Case No. 98-0794GM by Order Granting Intervention entered March 11, 1998. Martin County challenged the FLUE Amendment and the 1997 Large Scale Amendments. Martin County alleged that the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They can not be reasonably implemented; They cannot be accommodated by existing and planned infrastructure; They fail to establish intensities of use; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; and They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. 1000 Friends did not challenge the 1997 Large Scale Amendments or the FLUE Amendment. Nor did 1000 Friends intervene in Case No. 98-0794GM. The land use designations assigned to the parcels to which the 1997 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Hendry property (Parcel 3) This parcel consists of approximately 7½ acres. The property contains an existing fully developed office warehouse, and in the County the land use designation was commercial general. The parcel abuts commercial property to the north, south, and west, and to the east it abuts a mobile home park as well as a conservation easement within a walled, gated residential development. Because the existing use was a warehouse, the City determined that a more appropriate land use designation would be industrial and suggested this land use to the owner. The City adopted the industrial land use designation pursuant to Ordinance No. 1488-97. With regard to the Hendry property, there is no difference between the County's land use designation of commercial and the City's land use designation of industrial. The existing office warehouse on the property is permitted both in the County's commercial designation. Millenium property (Parcel 4) This parcel consists of approximately 24½ acres and is vacant. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1491-97. There is no difference between the County's commercial land use designation and the City's commercial land use designation. Wacha property (Parcel 6) This parcel consists of approximately 47 acres. In the County, the land use designation was part mobile home, part low density, part medium density, and part industrial. The owner of the property approached the City with the idea of building a mixed use village on the property. The City was supportive of this idea and worked with the Treasure Coast Regional Council to develop a new land use category, neighborhood special district, as well as refine the site plan to create the mixed use village concept. The neighborhood special district land use category was adopted pursuant to Ordinance No. 1498-97. Part of the property that was originally designated industrial in the County was designated commercial in the City pursuant to Ordinance No. 1497-97. The neighborhood special district land use category will allow the Wacha property to be developed as a traditional neighborhood development project. The proposed development will include a town square area with shops and restaurants on the ground floor, apartments on the second floor, and parking behind the buildings to create a pedestrian-friendly thoroughfare. The development also includes a home office district where people can live and work in the same building. The development also proposes a single family residential neighborhood clustered around a common green with garages to the rear, and the building set with front porches on the street. The City and County's land use designation for the Wacha property differ significantly. The City's land use designation requires a mix of uses, with not less than 30% residential and not less than 10% commercial or non-residential development within a given property. The County's land use designations are exclusive, so that each specific property can only be used for mobile home park or light industrial or medium density residential or low density residential. The County would not permit a mixed use development on this property. The Wacha property is part of the City's Community Redevelopment Area. The City determined that the neighborhood special district land use designation would further the intent and purpose behind the Community Redevelopment Area which is to encourage redevelopment of blighted areas. Dubner North property (Parcel 13), Republic Industries property (Parcel 14), Dubner South property (Parcel 15) The Dubner North parcel consists of approximately 48 acres, the Republic Industries property consists of approximately 11½ acres, and the Dubner South property consists of approximately 56 acres. In the County, the land use designation for each of the properties was industrial. The City has given the Dubner North property a land use designation of part commercial pursuant to Ordinance No. 1525-97 and part industrial pursuant to Ordinance No. 1526-97, the Republic Industries property a land use designation of commercial pursuant to Ordinance No. 1529-97, and the Dubner South property a land use designation of commercial pursuant to Ordinance No. 1532-97. The Dubner North, Republic Industries, and the Dubner South properties are bound by the railroad tracks to the east. To the north, south, and west, the properties are surrounded by either County industrial or commercial future land uses or City commercial land uses. The Remedial Amendments. Subsequent to the opening of Case No. 98-0794GM, the Department and the City entered into a Stipulated Settlement Agreement pursuant to Section 163.3184(16), Florida Statutes. Martin County declined to enter into the Stipulated Settlement Agreement. The City agreed to adopt remedial amendments which included text descriptions of various land use categories, including the Neighborhood/Special Districts category, and a table setting for residential densities and commercial intensities for land use categories created in the City's Plan. On August 24, 1998, the City adopted remedial amendments consistent with the Stipulated Settlement Agreement (hereinafter referred to as the "Remedial Amendments"). The Remedial Amendments were adopted by Ordinance No. 1646-98. The Remedial Amendments, designated Amendment 98-R1 by the Department, were determined to be "in compliance" by the Department. Upon the adoption of the Remedial Amendments and the determination that the Remedial Amendments were "in compliance," the parties in Case No. 98-0794GM were realigned as required by Section 163.3184(16)(f)1, Florida Statutes, to reflect that Martin County was challenging the Department's conclusion that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments, were "in compliance." Martin County also filed a Petition for Formal Hearing challenging the Department's determination that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments were "in compliance." That Petition was filed with the Division of Administrative Hearings on December 17, 1998. The Petition was designated Case No. 98-5501GM. 1000 Friends did not challenge the Remedial Amendments. Nor did 1000 Friends intervene in Case No. 98-5501GM. I. The 1998 Large Scale Amendments. Between April 13, 1998, and June 22, 1998, the City annexed 16 large parcels through voluntary annexation. On August 24, 1998, the City adopted 33 FLUM amendments assigning land use designations to the newly annexed parcels consistent with the City's Plan. Eleven of the FLUM amendments were small scale amendments pursuant to Section 163.3187, Florida Statutes (hereinafter referred to as the 1998 Small Scale Amendments). The 1998 Small Scale Amendments were not reviewed by the Department even though they were submitted to the Department with the other 22 FLUM amendments. The parcels to which the other 22 FLUM amendments related consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The 22 large scale amendments adopted on August 24, 1998 (hereinafter referred to as "1998 Large Scale Amendments), were designated Amendment 98-1 by the Department. The Department reviewed the 1998 Large Scale Amendments and found them "in compliance." Martin County and 1000 Friends filed separate Petitions for Formal Hearing with the Department challenging the determination that the 1998 Large Scale Amendments were "in compliance." The Petitions filed by Martin County and 1000 Friends were filed with the Division of Administrative Hearings on December 17, 1998. The Petitions were designated Case Nos. 98- 5503GM and 98-5510GM, respectively. Martin County alleged that the 1998 Large Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. 1000 Friends alleged that the 1998 Large Scale Amendments were not "in compliance" because they were adopted without intergovernmental coordination. The land use designations assigned to the parcels to which the 1998 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1998 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Pulte Homes property (Parcel F3), Vista A property (Parcel F5), Gibson property (Parcel F6), and Debartolo property (Parcel F24) The Pulte Homes parcel consists of approximately 312 acres. In the County, the land use designation was low density residential and high density residential. The City has given it a combination of conservation, pursuant to Ordinance No. 1549- 97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97. The Vista A parcel consists of approximately 9 acres and is vacant. In the County, the land use designation was commercial/office/residential (COR) and high density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1546-97. The Vista B parcel consists of approximately 44 acres and is vacant. In the County, the land use designation was low density residential and the City has given it a land use designation of low density residential pursuant to Ordinance No. 1553- 97. The Gibson parcel consists of approximately 100 acres. In the County, the land use designation was low density and commercial general. That part of the property that was designated commercial in the County was given a commercial land use designation in the city pursuant to Ordinance No. 1557-97. That part of the property that was designated low density residential in the County was given a combination of low density residential and conservation (Ordinance No. 1558-97), and multi-family residential (Ordinance No. 1559-97) pursuant to Ordinance No. 1549-97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97 in the City. The Debartolo parcel originally consisted of 205.90 acres. However, a portion of the parcel has been reannexed by the City to cure the defects found by the circuit court. The County's land use designation was a mixture of low, medium and high density residential. The City has given it a combination of part neighborhood special district pursuant to Ordinance No. 1618-97, part low density residential and conservation pursuant to Ordinance No. 1620-97, and part multi-family and conservation pursuant to Ordinance No. 1622-97. These five parcels (Pulte, Vista A, Vista B, Gibson, and Debartolo) contain a series of wetlands that form a slough that drains through Arant's swamp, or Haney Creek, and into the St. Lucie River. In terms of long- range planning, the City believed it best to implement a series of greenways and flow-ways to interconnect those wetlands and preserve areas to help clean up a non-point source pollution problem that was occurring in the St. Lucie River. Thus, recommending an appropriate land use designation for these properties, the City considered the pattern of wetlands in the area that form the slough and proposed a conservation land use designation for parts of some of the properties. In addition, the City received a grant from the Florida Communities Trust to purchase 84 acres of Arant's swamp or Haney Creek. This area is south of the five properties described above. The 84 acres form a flow- way for all of the water flow that comes from north to south and ultimately into the St. Lucie River. The City is proposing to construct a greenway which would connect the wetlands in the five properties described above so that water can flow unimpeded into Arant's swamp and ultimately into the St. Lucie River. Those connections would be accomplished at site planning and connected under roadways with staged culverts so animals can travel along the sides and water can flow through the middle. Comparing the City and County's land use designations for these five parcels, the land use designations adopted by the City are more appropriate than the County's land use designations and will result in a better use of the properties. For instance, by changing some of the land uses from low density residential in the County to conservation in the City, the environmentally sensitive areas will be preserved in perpetuity. In addition, by changing the County's high density residential use for the Pulte Homes property to neighborhood special district in the City, the development will require a mix of uses including some commercial which will be interconnected in a pedestrian fashion to the existing single family home development which lies to the east. This will lessen the need for additional vehicular trips and encourage alternative forms of transportation. Stewart property (Parcel F11), Madyda property (Parcel F12), First Eastern Residential property (Parcel F13), First Eastern property (Parcel F14), and SK Partner's I property (Parcel F15) The Stewart parcel (F11) consists of approximately 15 acres of land and is vacant. In the County, the land use designation was a mix of low and medium density residential, and commercial/office/residential (COR). The City has given it a land use designations of multi-family residential pursuant to Ordinance No. 1576-97. The Madyda parcel (F12) consists of approximately 6½ acres. The County's land use designation was a mix of medium density residential and commercial/office/residential (COR). The City has given it a land use designation of commercial pursuant to Ordinance No. 1579-97. The First Eastern Residential parcel (F13) consists of 50 acres and is a fully developed low income housing project. The County's land use designation was medium density and low density residential. The City has given it a designation of multi-family pursuant to Ordinance No. 1582-97. The First Eastern parcel (F14) consists of 32.20 acres and is vacant. The County's land use designation was a mixture of Commercial pursuant to Ordinance No. 1585-97. The SK Partners I parcel (F15) consists of 18.94 acres and is vacant. The County's land use designations was commercial general. The City has given it a land use designation of commercial pursuant to Ordinance No. 1588-97. There is no difference between the City's and the County's land use designations. Sunbelt Partners/Stetson property (Parcel F17), Sunbelt Partners property (Parcel F18), SK Partners II property (Parcel F190) The Sunbelt/Stetson parcel (F17) consists of approximately 25½ acres, the Sunbelt Partners parcel (F18) consists of approximately 2.5 acres, and the SK Partners II parcel (F19) consists of approximately 38 acres. All three parcels are vacant. The City's original annexation of the Sunbelt Partners/Stetson parcels was invalidated by the circuit court. However, a portion of the parcel has been reannexed. The County's land use designation for the three parcels was primarily commercial, with a small amount of commercial/office/ residential. The City's gave all three parcels a land use designation of commercial pursuant to Ordinance Nos. 1615-97, 1612-97, and 1609-97. There is no real difference between the County's and the City's land use designations. Dubner East property (Parcel F22), Sellian property (Parcel F22), Dubner West property (Parcel F23) The Dubner East parcel consists of approximately 11.5 acres, the Sellian parcel (F22) consists of approximately 4 acres, and the Dubner West (F23) consists of approximately 10 acres. Dubner East is vacant, the Sellian property is developed as an office building and indoor assembly, and the Dubner West property is partially developed as an office building. The County's land use designation for each of the parcels was industrial. The City has given each a land use designation of commercial pursuant to Ordinance Nos. 1600-97, 1603-97, and 1606-97. The three properties abut County industrial land uses, although for the most part, the properties are developed as commercial uses. The properties also abut City commercial land uses. The City's land use designation is more restrictive than the County's because the County industrial allows both industrial and commercial uses while the City's commercial designation allows only commercial uses. The City's Evaluation and Appraisal Report Amendments. Consistent with Section 163.3191, Florida Statutes, the City conducted an Evaluation and Appraisal Report, including suggested amendments to the City's Plan. On August 24, 1998, simultaneously with the adoption of the 1998 Large Scale Amendments and the 1998 Small Scale Amendments, the City adopted amendments to all elements of the City's Plan (hereinafter collectively referred to as the "EAR Amendments") based upon the recommendations of the Evaluation and Appraisal Report. The EAR Amendments include density and intensity standards adopted as part of the Remedial Amendments to the Future Land Use Element of the City's Plan. The EAR Amendments revise the schedule for capital improvements and establish new concurrency requirements as part of the Capital Improvements Element of the City's Plan. The EAR Amendments set out the steps the City will take to coordinate the City's Plan and its implementation with other agencies and entities as part of the Intergovernmental Coordination Element of the City's Plan. The EAR Amendments revise LOS standards for transportation in the Transportation Element of the City's Plan The EAR Amendments were reviewed by the Department simultaneously with the 1998 Large Scale Amendments and found to be "in compliance." The EAR Amendments were designated Amendment 98-ER1 by the Department. The 1998 Small Scale Amendments were also submitted to the Department with the 1998 Large Scale Amendments and the EAR Amendments but were ultimately withdrawn by the City at the request of the Department. Martin County and 1000 Friends also challenged the EAR Amendments in their Petitions challenging the 1998 Large Scale Amendments filed in Case Nos. 98-5503GM and 98-5510GM, respectively. Martin County alleged that the EAR Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent with Chapter 9J-5, Florida Administrative Code. Martin County did not allege which specific elements of the City's Plan amended by the EAR Amendments were being challenged in its Petition. It merely alleged that "Stuart's comprehensive plan amendments" are not in compliance. In the Joint Proposed Order filed by Martin County and 1000 Friends, specific portions of the Intergovernmental Coordination Element (Policies A1.13 through A1.23, Policy A2.4, Policy A7.3, Objective 8, and Policies A8.1 through A8.11), the FLUE (Policies B1.2 through B1.4), and the Capital Improvements Element (the selection of LOS E) are cited. The specific objective and policies cited in the Joint Order are hereby incorporated into this Recommended Order by reference. Additionally, the Future Annexation Map adopted as part of the EAR Amendments by the City is cited in the Joint Proposed Order. The Future Annexation Map includes 8,000 additional acres which are projected to be annexed into the City by the year 2015. 1000 Friends' challenge to the EAR Amendments is limited to a challenge to the City's Intergovernmental Coordination Element. Data and Analysis. At the time that all of the amendments at issue in this proceeding were adopted there was more than adequate data and analysis to support all of the amendments. The data and analysis relied upon by the City in adopting the 1997 Small and Large Scale Amendments, the FLUE Amendment, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments was professionally acceptable. The testimony of Martin County's expert planner concerning data and analysis was not persuasive. That testimony was not based upon a complete review of the data and analysis relied upon by the City and the Department. The evidence presented by Martin County concerning data and analysis focused largely on the fact that the property to which the 1997 Small and Large Scale Amendments and the 1998 Large Scale Amendments related had been annexed before the accumulation of all the data and analysis relied upon in support of the amendments. That evidence was irrelevant because the Act and the rules promulgated thereunder do not govern annexations; they govern plan amendments and require that the data and analysis be available at the time a plan amendment is adopted and not at the time of annexation. Data and analysis were required for the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments, not to support the need for the annexed property, but to support the City's choice of land use classifications assigned to the annexed property. There were ample data and analysis to support the City's choices. Once the properties at issue in this proceeding were annexed consistent with Chapter 171, Florida Statutes, the City began the process of considering the amendments to the City's Plan necessary to accommodate the annexations and bring them under the City's Plan. While the evidence did prove that the City now has approximately 33 years of commercial property to meet the needs of the City during the 20 years of the City's Plan, there is no requirement in the Act or the implementing rules that a need for annexed property be present before annexation occurs. The commercial property located in the City as a result of the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments is not significantly different from the amount of commercial property which existed prior to the amendments. Most of the annexed property was designated commercial or industrial by the County Plan. Industrial uses under the County Plan include many of the same uses of commercial property under the City Plan. Under these circumstances, the City made the most reasonable planning decision by classifying the annexed property consistent with surrounding land uses and Martin County's prior land use designation of land use for the property. The City completed a needs analysis as part of its review and revision of the City's Plan through the EAR Amendments. That analysis was based upon data available at the time of the EAR Amendments. The data was also available at the time the 1997 Small Scale Amendments, the 1997 and 1998 Large Scale Amendments, the FLUE Amendment, and the Remedial Amendments were adopted. The City's needs analysis included an allocation of land uses to the land use categories designated in the City's Plan. Although the allocation of land resulted in an allocation of more commercial land than may be required during the life of the City's Plan, the evidence failed to prove that such a surplus results in any under allocation of land to other classifications. Approximately 150 acres of the property annexed by the City during 1997 and 1998 were re-designated commercial by the City. Eighteen of those acres have already been developed, leaving an additional 132 acres of commercial land in the City. The evidence failed to prove that this increase of acreage is significant. Evidence presented by Martin County as to the increase in commercial property was not persuasive. In actuality, the increase in property designated commercial as a result of City's annexations amounts to approximately 48 acres. There were a total of 35 parcels designated commercial by the City, including the 1998 Small Scale Amendments. Most of those parcels were already developed in whole or in part with commercial, commercial-like, or industrial land uses. The uses of property classified industrial are also substantially similar to the uses allowed for commercial to result in little discernable effect on the supply of commercial property in the City. The only vacant parcels assigned a land use designation of commercial by the City that were not classified commercial or industrial by Martin County were referred to at hearing as parcels 1, 11 F4, F7, F12, and F14. Parcel 1 consisted of 1.4 acres. Approximately half of parcel 1 was designated commercial and the other half was designated commercial/office/residential. At most, this amounts to an increase of .7 acres of commercial. Parcel 11 consists of ten acres, parcel F4 consists of nine acres, parcel F7 consists of 5.06 acres, parcel F12 consists of 6.67 acres, and parcel F14 consists of 32.20 acres. Half of parcel F14 was classified as commercial by Martin County. The evidence also proved that the possible intensity of use for the property annexed by the City during 1997 and 1998, when compared with the possible intensity of use under the County Plan is less under the City's land use classifications. Martin County's expert testimony concerning increases in intensity was not credible. That testimony was based upon small scale parcels 5, 10, and 11, and large scale parcels 6, F6, and F24. Parcel 5 is already developed as 1st Christian. Parcel 10 is partially developed and the testimony concerning Martin County's land use designation for the property was incorrect. For parcel 6, the Wacha property, the testimony by the Martin County expert concerning Martin County's land use designation for part of the property was incorrect. The portion of the property designated commercial by the City was classified as industrial by Martin County. For parcel F6, the Gibson property, only a fourth of the property was designated multi-family. The rest of the property was given a land use designation that is the same or less intense then that allowed by the County. For parcel F24, the Debartolo property, Martin County's land use designation was a combination of low, medium, and high density residential and not just low density residential as testified by Martin County's expert witness. Most of the property was low density residential under the County's Plan and remained low density residential under the City's Plan. The calculations concerning the increase in intensity of use made by Martin County's expert witness were flawed and not credible, as explained in findings of fact 123 through 125. Martin County's assertion that the Remedial Amendments are not supported by data and analysis because of the increase in intensity of commercial property is rejected. In addition to the question of data and analysis to support the land use classifications assigned to the annexed property by the City, Martin County has suggested that there is insufficient data and analysis concerning how public facilities will be provided to the annexed property. The evidence failed to support this assertion. At the time of the 1997 and 1998 Small and Large Scale Amendments the City did not perform a concurrency analysis. Concurrency analyses are required at the time of site plan review or other application for another development permit. Therefore, neither the Act nor the City's Plan required a concurrency analysis. A transportation analysis involves transportation planning for an extended period of time and not planning for individual parcels. Capital facilities and available capacity for a five-year period are looked at in a transportation analysis. Concurrency analyses, on the other hand, are performed on individual parcels of property at the time of proposed development of those parcels. Neither a transportation analysis nor a concurrency analysis is required when a local government designates a general land use classification for a parcel of property. Martin County has asserted that the City's decision to adopt a LOS E and to "maintain" the actual existing LOS for two segments of U.S. 1 and State Roads 707 and 714, both of which are projected to have LOS F within the next five years in light of the moratorium it has imposed on development along U.S. 1 supports its argument that the FLUM amendments are not supported by data and analysis. They assert that evidence presented by the City's expert transportation engineer cannot be considered data and analysis because it was prepared after the FLUM amendments. This assertion is rejected. While the analysis may not have been available, the data was. More importantly, the testimony of the City's expert engineer may be relied upon to refute Martin County's assertion that there existed a transportation concurrency problem at the time the FLUM amendments were adopted. Martin County based its conclusion on an outdated Florida Department of Transportation table adopted as part of the County's Plan. That table lacked a footnote that cautioned against anything other than very general reliance on the table. Martin County's assertions concerning transportation concurrency were also refuted by the more accurate analysis performed by the City's expert engineer. Based upon his analysis, which was unrefuted by credible evidence, there is in fact no LOS deficiency not addressed by the City's Plan. The difference between the LOS adopted by the City and Martin County's LOS is not significant. The reports of the City's expert transportation engineer were sufficient data and analysis to support the EAR Amendments to the Capital Improvements and Transportation Elements. The LOS selected by the City, LOS E, is the most efficient use of the City's arterial roadways under current conditions. The evidence failed to prove that there were inadequate data and analysis to support Policy A1.1 of the FLUE. The evidence failed to prove that there were inadequate data and analysis concerning the effectiveness of existing intergovernmental coordination mechanisms. Intergovernmental Coordination. In May 1997, the City notified Martin County that it was considering a series of voluntary annexation requests it had received. The City and Martin County have entered into formal and informal agreements dealing with the provision of a number of services, including water and sewer, emergency rescue, solid waste, and law enforcement. Impact fees are dealt with by interlocal agreement pursuant to which the City collects impact fees for library services, regional parks, and county roads on behalf of the Martin County. Following the City's notification to Martin County of the voluntary annexation requests it had received, City staff and the Director of Public Works for Martin County met to discuss the provision of water and sewer service to the annexed areas. An agreement was reached between the City and Martin County as to which entity would be responsible for water and sewer services to each parcel to be annexed. Discussions between City and Martin County staff concerning responsibility for maintenance of roads were also held, including discussions at meetings of the Metropolitan Planning Organization Technical Advisory Committee. The Metropolitan Technical Advisory Committee was established to provide for intergovernmental coordination in Martin County. Issues concerning road maintenance were resolved. Beginning essentially at the time of the notice to Martin County of the voluntary annexation requests the City had received, Martin County attempted to prevent the annexations. Although Martin County cooperated to resolve some of the problems that resulted from the annexations, Martin County prepared an emergency agenda item directing staff to evaluate the annexations and seek ways of preventing the annexations. Martin County staff reports concerning the proposed annexations indicated few problems that would result from the annexations. The reports were submitted to the City by Martin County. Martin County indicated, however, that it would be conducting further analysis on potential traffic impacts. Martin subsequently reported to the City that it had further concerns and would be attending a City scheduled workshop to be held in July 1997. No one from Martin County attended the workshop held in July or the workshop held by the City in September 1997. City staff reviewed all of Martin County's comments, notified the City Commission of the comments, and took the comments into consideration in making recommendations concerning the annexations and amendments to the City's Plan to the City. On September 16, 1997, the City notified Martin County of further requests for voluntary annexation. City staff thereafter attempted to schedule meetings with Martin County staff to discuss these annexations. Additional discussions were held with Martin County concerning utilities. These discussions resulted in agreements concerning the provision of utilities to the annexed parcels. Discussions concerning stormwater were also held between the City and Martin County. Transportation issues were discussed at Metropolitan Planning Organization Technical Advisory Committee meetings. Martin County wrote letters to the City and made oral comments concerning the FLUM Amendments. Martin County raised concerns over urban sprawl, concurrency, and intergovernmental coordination. Martin County also filed challenges to the City's annexations resulting in a number of civil actions between the City and Martin County. As a result of these actions and Martin County's attempts to prevent the annexations, relations between City and Martin County staff became strained. It became increasingly difficult for staff to work together to resolve common issues. In November 1997 Martin County sent a letter to the City expressing concerns over the late 1997 annexations involving urban sprawl and transportation concurrency. These comments were considered by the City. Martin County staff attended an August 1998 meeting at which the City adopted the FLUM Amendments relating to the late 1997 annexations. These comments were considered by the City. While the City and Martin County did not come to a consensus over all issues relating to the FLUM amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the diametrically opposing positions of the two governments concerning the annexations which gave rise to the amendments at issue in these cases, it is doubtful that any further coordination between the City and Martin County could have resolved the issues between the City and Martin County. Prior to adopting the EAR Amendments and the 1998 Large Scale Amendments, the City's planning consultant reviewed the FLUM amendments that had already been adopted, the EAR Amendments, and the additional FLUM amendments the City was considering. The consult obtained data from Martin County concerning population and traffic. Efforts to obtain information from Martin County, however, were by this time difficult. The City even had to result to a public records request from Martin County to obtain some information. Again, while the City and Martin County did not come to a consensus over all issues relating to the EAR Amendments and the 1998 Large Scale Amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the state of deterioration of the relationship between the City and Martin County by the time these amendments were considered and adopted by the City, it is doubtful that any further coordination between the City and Martin County would have resulted in any improvement in the EAR Amendments or the 1998 Large Scale Amendments. In addition to the fact that the intergovernmental coordination between the City and Martin County under the circumstances of this matter was adequate, any lack of coordination did not result in any substantial issues concerning the amendments to the City's Plan not being resolved. The evidence in these cases has not supported Martin County's or 1000 Friends' alleged deficiencies with the amendments. Evidence concerning intergovernmental coordination or the lack thereof before and during annexation of the parcels to which the FLUM amendments in these case relate was irrelevant. Nothing in the Act or the rules promulgated thereunder requires intergovernmental coordination on annexations. The City adopted an Intergovernmental Coordination Element as part of the EAR Amendments. The Element includes policies which relate to procedures for dealing with coordination concerning the development of the annexed areas. Those policies are quoted in the City's Proposed Order at finding of fact 149 and are incorporated herein by reference. The Intergovernmental Coordination Element adopted by the City does not meet the requirements of Section 163.3177(6)(h), Florida Statutes. It does, however, meet the requirements of Sections 163.3177(4)(a) and (10)(b), Florida Statutes, and Rule 9J-5.015, Florida Administrative Code. The requirements of Section 163.3177(6)(h), Florida Statutes, must be met by local governments no later than December 31, 1999. Pursuant to Section 163.3177(6)(h)4., Florida Statutes, the Department adopted Rule 9J-40, Florida Administrative Code, providing, in part, that the City submit an intergovernmental coordination element in compliance with Section 163.3177(6)(h), Florida Statutes, no later than June 1, 1997, and that the element be adopted no later than December 31, 1997. In a publication of the Department called the Summer 1998 Community Planning publication, the Department informed the City to ignore Rule 9J-40, Florida Administrative Code, and submit its intergovernmental coordination element no later than December 31, 1999. The City complied with this direction from the Department. The Department did not repeal Rule 9J-40, Florida Administrative Code. Although Section 163.3177(6)(h)4., Florida Statutes, authorizes local governments to comply with Section 163.3177(6)(h), Florida Statutes, earlier than December 31, 1999, the City has not opted to do so. Internal Inconsistency. Goal A of the FLUE provides that the City will "[m]aintain and enhance its small town waterfront character." Although the City has increased its size by 48 percent, it has not increased its "waterfront." None of the amendments to the FLUM at issue in these cases involve property located on the City's waterfront. The evidence also failed to prove that a 48 percent increase in the size of the City in and of itself is contrary to the City's small town character. Finally, the impact on the City's character is a result, not of the designation of land use categories for the annexed property, but from the annexation itself. Although annexation is the catalyst for the amendments being challenged in this proceeding, the fact of the annexation cannot be the issue. Policy A.3.2 of the FLUE provides that the City should "direct development to areas already served by adequate government utilities, services and schools . . . ." While some of the roads serving many of the annexed parcels were determined to be over-utilized, that over-utilization was based upon Martin County's LOS. Based upon the City's newly established LOS E, there are adequate road services for the annexed properties. The delivery of other utilities, services, and schools to the annexed properties has been coordinated between the City and Martin County or those services are already being provided. Objective B.3 of the FLUE provides that the City will discourage urban sprawl and continuous linear development along major roadways in order to achieve a compact urban form. While the annexed parcels are located along U.S. 1, their designated land uses pursuant to the amendments at issue are essentially consistent with their present uses or designated land uses. Little change in the form of development of the annexed parcels will occur as a result of the amendments. Therefore, the FLUM amendments do not increase linear development. Rather, they recognize it. As discussed, infra, the annexed properties do not constitute urban sprawl. As amended by the EAR Amendments, Objective B.1 of the FLUE provides that the City will "[d]iscourage urban sprawl by planning for urban infill and redevelopment of lands located within Stuart." The FLUM amendments constitute urban infill and are consistent with Objective B.1 as amended by the EAR Amendments. Objective B.3 of the FLUE requires a commitment of the City to the promotion of patterns of land use that are compatible and convenient to residents, businesses, and visitors, and the avoidance of the wasteful use of land. The evidence failed to prove that the FLUM amendments are inconsistent with this objective. Again, there is little difference in the uses of the property which is the subject of the FLUM amendments before and after their annexation. Policy A.8 of the Infrastructure Element of the City's Plan requires that the City will maximize the use of existing facilities and discourage urban sprawl through its annexation policy. Policy A.3.3, Objectives A.5, A.6, A.7, and A.9, and Policy A8.1 also provide similar guidance to the City. As discussed, infra, the FLUM amendments do not fail to discourage urban sprawl. The FLUM amendments also are not inconsistent with these provisions to the extent that they require the City to maximize the use of existing services. Policy A1.1 of the Housing Element of the City's Plan provides that the City must designate adequate residential land to accommodate projected need for housing. The most up to date analysis of existing population data suggests that there is adequate housing to meet the City's need for housing through the year 2015. The evidence failed to prove that anything about the amendments at issue in these cases are inconsistent with this policy. The evidence failed to prove that the amendments at issue in these cases are inconsistent with any provision of the City's Plan. The consistency of the foregoing goals, objectives, and policies with the City's Plan were the only ones specifically addressed in the Joint Proposed Order. The City also addressed the consistency of a number of other goals, objectives, and policies with the City's Plan. Those findings of fact (182-190, 193-195, 197, and 200-204) are hereby accepted and incorporated into this Recommended Order by reference. Urban Sprawl. The areas annexed by the City, while including some vacant land, are not located in a rural or predominately rural area. Instead, the annexed parcels are all located in an area designated in the County's Plan as the "Primary Urban Service Area." An independent evaluation of the properties confirms their urban location. The indicators of urban sprawl listed in Rule 9J- 5.006(5), Florida Administrative Code, do not apply to the annexed parcels when considered "within the context of features and characteristics unique to each locality." The testimony of Martin County's witnesses concerning the "linear pattern" of development evidenced by the annexed parcels failed to take into account the character of surrounding and abutting, unincorporated properties and the location of all the parcels within the "Primary Urban Service Area" established in the County's Plan. Testimony offered by Martin County concerning urban sprawl was also not credible because Martin County's expert witness did not complete the land use analysis of Rule 9J-5.006(5)(h) through (j), Florida Administrative Code, because she failed to evaluate local conditions and development controls. Natural Resources. The evidence did not prove that any of the amendments at issue in these case fail to adequately protect natural resources. Availability of Infrastructure. As explained, supra, the City and Martin County coordinated the continued provision of most public utilities and services to the annexed parcels. Continued water, sewer, emergency rescue, law enforcement, and solid waste disposal services for the annexed parcels were all coordinated between the City and Martin County. Water and sewer services and recreational facility needs were analyzed by the City and found to be adequate. The evidence failed to prove that any necessary infrastructure is not available or will not be provided by the City. The Future Annexation Map. The City's Evaluation and Appraisal Report included a Map of Future Annexation. The Map of Future Annexation identified a small area south of the City for future annexation over the next ten years. The areas actually annexed by the City during 1997 and 1998 involve a more extensive area than that identified on the Map of Future Annexation. The areas identified on the Map of Future Annexation were areas which the City believed it would likely desire to annex and did not take into account voluntary annexation. The Map of Future Annexation was not intended to exclude such voluntary annexations. The EAR Amendments also include a Future Annexation Area Map (hereinafter referred to as the "FAA Map"). The FAA Map identifies approximately 8,000 additional acres of land which the City may consider annexing through the year 2015. The FAA Map is not, however, intended to represent an area which the City intends to pursue for annexation. It simply identifies the maximum area within which the City intends to consider annexation. It is, in effect, intended as a limitation on annexations that the City would pursue. The evidence failed to prove that the FAA Map is not a reasonable boundary for the possible expansion of the City through the year 2015 by annexation. The State and Regional Plans. The evidence failed to prove that any of the challenged amendments are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes. The evidence failed to prove that any of the challenged amendments are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. The Strategic Regional Policy Plan for the Treasure Coast was not offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order dismissing Hospice Foundation of Martin & St. Lucie, Inc., as a party. IT IS FURTHER RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the 1997 Small and Large Scale Amendments, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of October, 1999, 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 (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 1st day of October, 1999. COPIES FURNISHED: Paul R. Bradshaw, Esquire Paul R. Bradshaw, P.A. 1345 Dupont Road Havana, Florida 32333 Gary K. Oldehoff, Esquire Martin County Attorney 2401 South East Monterey Road Stuart, Florida 34996 Terrell Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Post Office Box 5948 Tallahassee, Florida 32301 Robert C. Apgar, Esquire Yeline Goin, Esquire 902-A North Gadsden Street Tallahassee, Florida 32303 Carl Coffin, Esquire City of Stuart 121 South West Flagler Avenue Stuart, Florida 34994 Shaw Stiller, Assistant General Counsel Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Tim B. Wright, Esquire Louis E. Lozeau, Jr., Esquire Warner, Fox, Seeley, Dungey and Sweet, L.L.P. Post Office Drawer 6 Stuart, Florida 34995 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the comprehensive plan amendment adopted by the City of St. Augustine Beach on April 3, 1995, through enactment of Ordinance Number 95-5 is in compliance pursuant to Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact On April 3, 1995, the City adopted the amendment by Ordinance Number 95-5, and submitted it to the Department for review pursuant to Section 163.3184(7), Florida Statutes. On July 15, 1995, the Department issued a notice of intent to find the amendment in compliance. By August 7, 1995, all Petitioners had timely filed their challenges to the amendment's adoption by the City. On October 3, 1995, Intervenor was granted leave to intervene and its motion to expedite these proceedings was granted. The Department is the state land planning agency charged with responsibility for review of comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Petitioners reside in the City of St. Augustine Beach, St. Johns County, Florida. All Petitioners own property adjacent to or within close proximity to the parcel which is the subject of the amendment. The parties stipulate that each Petitioner is an "affected person" as defined by Section 163.3184(1)(a), Florida Statutes, and that each Petitioner presented oral and written objections and comments at the public hearings held on the amendment. The City is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Florida Statutes. The amendment to the City's Future Land Use Map (FLUM) which is the subject of this proceeding involves a parcel of land approximately .11 of an acre in size. Located on the north side of "A" Street which runs between Highway AIA (Beach Boulevard) and the Atlantic Ocean, the parcel adjoins the western boundary of an existing parking lot for a restaurant called the Beachcomber. In the short distance between Highway AIA and the the restaurant are duplexes and apartments, inclusive of a parking lot. There is a residence on the subject parcel at present. The Beachcomber was built before the comprehensive plan's adoption by the City and was designated on the FLUM as commercial in 1993. The amendment would change the designation of the parcel on which the residence is located from Medium Density Residential to Commercial Use, subject to conditions. The purpose for the designation change is to permit Intervenor, owner of the Beachcomber and purchaser of the parcel, to demolish the residence and use the parcel for an additional eight spaces of restaurant parking. The amendment is a small scale amendment pursuant to Section 163.3187, Florida Statutes. It is the position of Petitioners that the amendment is inconsistent with a policy on buffers contained at L.1.3.3, page AB-4 of the City's Comprehensive Plan (Plan). The policy states the following: For future development the City shall include in the land development regulations the require- ment for a 15 foot vegetative buffer between noncompatible uses such as between commercial and residential land uses. The amendment is silent with regard to buffers. The intervenor is required by the amendment to comply with all applicable land development regulations. A proposed site plan of Intervenor reveals buffers of 10 instead of 15 feet, but the Intervenor has not yet sought site plan approval. Petitioners also maintain that the amendment's change in designation of the parcel from medium density residential to commercial property subject to restrictions constitutes an inconsistency with the Plan. Policy L.1.3.5., states "[c]ommercial development shall not be allowed in areas designated as residential on the Future Land Use Map." As established by testimony of the Department's planning expert, Carol Collins, the amendment is a small expansion of "the existing commercial use." The expansion was viewed by Collins as intended to replace a parking area in front of the Beachcomber that was lost through erosion. She opined that "you can make a reasonable case for finding this amendment in compliance." While the amendment may be considered inconsistent with one policy (Policy L.1.3.5.) of the Plan, in the opinion of Collins, the amendment is in compliance with the Plan as a whole. Craig Thompson, certified planner and architect with an established expertise in comprehensive planning, opined at the final hearing that certain aspects of the Plan are furthered by the amendment. Specifically, the amendment supports the goal of encouraging tourism and addressing commercial needs beneficial to residents and tourists alike by providing parking for automobiles of Beachcomber patrons otherwise parked on the street. Further, although the Beachcomber is a grandfathered commercial use in a residential area, the enhanced parking will not be so great as to enlarge the commercial activity at the restaurant. The Plan sets forth a growth management strategy on page L15 which recognizes the potential for future rezoning of parcels from residential to commercial and notes that such rezonings "should be restricted, consolidating areas where possible." As noted by Thompson's testimony, the use of property immediately behind the Beachcomber site for parking is consistent with the Plan's intent that commercial rezonings should be consolidated. The amendment specifically states that the use of the parcel is restricted solely to parking of vehicles "or, if approved by Conditional Use Permit, residential purposes." Although designated as commercial by the amendment, expanded commercial development on the parcel, i.e., an expansion of the restaurant itself, is not authorized or contemplated. Petitioners provided no independent testimony that fears of property devaluation of their nearby residences will be realized as a result of parking activity on the parcel. Other Petitioner concerns of after hours activity in the parking lot should be alleviated by the plans of Intervenor to strictly police the parking area and enforce its use for patron parking only, including closure of the lot when the Beachcomber is not open. Petitioners' claim that the necessity for redesignation of the parcel is mooted in view of the future renourishment of the beach, as contemplated by the U.S. Army Corps of Engineers and documented by a letter dated after adoption of the amendment. However, the contemplation of such future beach renourishment fails to establish that Beachcomber Restaurant parking would be permitted on the renourished beachfront. The Plan, as amended, is in compliance with the regional plan and the state comprehensive 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 determining the amendment to be in compliance. DONE and ENTERED in Tallahassee, Florida, this 14th day of December, 1995. 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 this 14th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3885GM, 95-3886GM & 95-4027GM. In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioners' Proposed Findings (Petitioners' proposed findings were numbered 13-69.) 13.-14. Accepted. Rejected, unnecessary. Incorporated by reference. Accepted with the addition of "subject to conditions" following the word "commercial" at the end of the 2nd sentence. 18.-21. Rejected as redundant, cumulative and subordinate to HO findings. 22.-23. Incorporated by reference. 24.-29. Rejected, subordinate to HO findings. 30.-33. Incorporated by reference. Rejected, conclusionary, subject to reasonable debate. Rejected, subordinate. Rejected, unnecessary. Incorporated by reference. 38.-39. Rejected, out of context quotation, argumentative, subordinate to HO findings. 40.-42. Rejected, subordinate to HO findings. 43. Adopted. 44.-46. Rejected, not materially dispositive. Rejected, materially, occurred after amendment adoption. Rejected, speculative. Rejected, unnecessary. Rejected, subordinate to HO findings. Incorporated by reference. Rejected, unnecessary. Rejected, credibility. 54.-55. Rejected, relevancy. 56. Incorporated by reference. 57.-58. Rejected, relevancy, subordinate to HO findings. 59. Rejected, conclusion of law. 60.-63. Rejected, relevancy, subordinate to HO findings. 64.-65. Adopted, not verbatim. 66.-67. Rejected, unnecessary. 68.-69. Rejected, argument, subordinate to HO findings. Respondent Department's Proposed Findings (Respondent Department's proposed findings were numbered 5-21.) 5.-12. Adopted, not verbatim. 13.-14. Rejected, relevancy, legal conclusion. 15.-18. Adopted, not verbatim. 19. Rejected, argument, no record citation. 20.-21. Incorporated by reference. Intervenor's Proposed Findings 1.-4. Adopted, not verbatim. 5.-15. Incorporated by reference. Rejected, conclusion. Adopted, not verbatim. Rejected, conclusion. Adopted, not verbatim. Incorporated by reference. 21.-23. Rejected, argument. 24. Adopted, not verbatim. 25.-26. Incorporated by reference. 27.-29. Incorporated by reference. COPIES FURNISHED: Terrell K. Arline, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Geoffrey B. Dobson, Esquire 66 Cuna Street, Suite B St. Augustine Beach, FL 32084 Mr. and Mrs. Joseph F. Peacock 6 "A" Street St. Augustine Beach, FL 32084 Mr. and Mrs. Matthew Braly Three First Lane St. Augustine Beach, FL 32084 Mr. and Mrs. Ralph Morris One First Lane St. Augustine Beach, FL 32084 George M. McClure, Esquire O. Box 3504 St. Augustine, FL 32085-3504 James F. Murley, Secretary Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan Stengle, General Counsel Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue At issue in this case is whether Sections 403, 404, 410, 503, 506, 703, 704, 705, 706, 707, 708, 1805, 1903, 1904, 1905, 1909, 1911, and 2710 of the Bay County Land Development Regulations (the "LDRs"), as adopted by Bay County Ordinance No. 04-30 on September 21, 2004, are inconsistent with the Bay County Comprehensive Plan (the "Plan").
Findings Of Fact Based upon the evidence presented at the final hearing, the following relevant findings of fact are made: Standing Petitioners Cornelia F. Hammond and Estelle M. Hicks reside within Bay County and own residential property in unincorporated Bay County. A "substantially affected person" may challenge a land development regulation pursuant to Subsections 163.3213(2)(a) and (3), Florida Statutes. The parties have stipulated that Petitioners are substantially affected persons and have standing to bring this administrative challenge. The Challenged LDRs Section 403 Section 403, titled "Discouraged Activities," states that it is the "specific intent" of the LDRs "to promote homeowner's quiet use and enjoyment of property, and to minimize the potential for public nuisances." In furtherance of that intent, Section 403 lists activities that are "discouraged" in all new subdivisions with individual lots of less than one-half acre created after the effective date of the LDRs. The list includes: the raising or keeping of farm animals or livestock; raising, keeping, or boarding animals as a business activity; commercial activities other than those associated with home occupations; the storage or accumulation of wrecked motor vehicles, junk, derelict vessels, or debris; storage of building materials used as part of a business activity; the use of recreational vehicles for residential purposes; and any activity that would result in excessive and ongoing noise, odor, glare, fumes, dust, telecommunications interference, or other public nuisance. Petitioners allege that this LDR is inconsistent with Plan Objectives 8.5 and 8.9 and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and 1.2.1.9, because it "discourages" rather than prohibits the listed activities, and because it applies only to new subdivisions. Chapter 8 is the Housing Element of the Plan. Objective 8.5 states that it is the Plan's objective to "[p]reserve and protect the character, compatibility, and aesthetics of residential areas and neighborhoods through the enforcement of land use regulations." Policy 8.5.1 is the provision directly implemented, in part, by Section 403. Policy 8.5.1 provides: Specific criteria will be included in the Land Use Code4 for the preservation and protection of residential areas. These criteria will include, but may not be limited to: Maintaining compatibility between types of residential buildings; Ensuring that residential areas will be used primarily for residential purposes; Avoiding overcrowding of residential units; Avoiding accumulations of junk and debris; Avoiding nuisances such as excessive noise, dirt, glare, odors, noxious fumes and telecommunications interference, and; Avoiding the raising or keeping of farm animals. Petitioners criticize Section 403 as deviating from Policy 8.5.1, because Section 403 does not contain all of the criteria listed in the policy, because Section 403 uses the word "discourage" rather than the policy language of "avoiding," and because Section 403 limits its application to new subdivisions with lots of one-half acre or less created after adoption of the LDRs. The County points out that neither "discourage," nor "avoiding" constitutes language of absolute prohibition and, therefore, the LDR does not deviate from the objective or the policy. The County concedes that Section 403 applies only to subdivisions created after the effective date of Ordinance No. 04-30, but notes that the County has adopted a nuisance ordinance (Ordinance No. 04-37, as amended by Ordinance No. 05- 35) that applies to all real property. The nuisance ordinance classifies activities, such as failure to store garbage within a sealed container and exceeding certain sound levels, as public nuisances subject to citation and fines. The County reasonably decided to limit the application of Section 403 to subdivisions created after the effective date of Ordinance No. 04-30 to accommodate existing activities that would otherwise be prohibited. Petitioners point to no statute, rule, or Plan provision stating that an LDR implementing a certain policy is required to implement each and every aspect of that policy. The fact that Section 403 fails to expressly implement Policy 8.5.1.1 and 8.5.1.3 does not render it inconsistent with the Plan. Petitioners contend that, by "discouraging" rather than prohibiting the listed activities, Section 403 is inconsistent with Objective 8.9, which states that it is the Plan's objective to "[p]rotect residential property values and ensure that each homeowner has the opportunity for quiet use and enjoyment of their residence." Petitioners, further, contend that this failure to "fully implement" Policy 8.5.1.1 renders Section 403 inconsistent with certain provisions of Policy 1.2.1, which provides, in relevant part: Findings and Purposes: This Plan is predicated upon and intended to promote the following findings and purposes: * * * 1.2.1.2: Encourage the most appropriate use of land, water and resources consistent with the public interest. * * * : Deal effectively with future problems that may result from the use and development of land within unincorporated Bay County. : To preserve, promote, protect and improve the public health, safety, comfort, good order, appearance, convenience, law enforcement and fire prevention, and general welfare. * * * 1.2.1.9: To recognize and respect judicially acknowledged or constitutionally protected private property rights. It is the intent of this Plan that all provisions, requirements, regulations, ordinances, or programs adopted under authority of this Plan be developed, implemented and applied with sensitivity for private property rights and not be unduly restrictive, and property owners must be free from actions by others which would harm their property. Full and just compensation or other appropriate relief must be provided to any property owner for a governmental action that is determined to be an invalid exercise of the police power which constitutes a taking, as provided by law. Any such relief shall be as provided by law. Petitioners contend that Section 403's failure to include the requirement of Policy 8.5.1.3 that overcrowding of residential units should be avoided constitutes a conflict with Policy 3.6.1.2, which requires the LDRs to ensure the compatibility of adjacent uses and provide for open space. None of Petitioner's contentions is well-founded in terms of establishing Section 403's inconsistency with the Plan. As noted above, there is no requirement that an LDR implementing a given Policy must implement each and every aspect of that Policy. Petitioner's evidence on this issue consists of resident's anecdotal complaints that adjacent seasonal/resort uses cause increased noise, traffic, and safety hazards, evidence, which did not establish inconsistency between the LDR and the Policy. Petitioners contention that Section 403 would be more effective if it prohibited rather than "discouraged" the listed activities is inarguable, but beyond the scope of this proceeding. In its Plan, the County has chosen to "avoid" the listed nuisances. For better or worse, the Plan's language is hortatory, not mandatory. Section 403 is not inconsistent with Policy 8.5.1 or with the other Plan provisions cited by Petitioners. Section 404 Section 404 delineates the allowable uses, conditional uses, and accessory uses and structures allowed in the R-1 single-family residential zoning category. The allowable uses include: single-family dwellings built to Florida Building Code Standards pursuant to Chapter 553, Florida Statutes; community facilities such as neighborhood centers, golf courses, swimming pools, and tennis courts; family day care homes; not-for-profit parks and playgrounds; and "low impact public utilities." Conditional uses are those that may be allowed in the R-1 zones subject to such conditions as are necessary to preserve the integrity of the zone. Conditional uses include: public or private schools and houses of worship, subject to buffering and traffic impact mitigation; community residential homes provided they are not located within 1,000 feet of one another and do not substantially alter the nature and character of the surrounding area; electric power substations, to be evaluated on a case-by-case basis; and "others as determined by criteria specified in Chapter 12." Chapter 12 of the LDRs sets forth the application and permitting procedures for conditional uses, which are "intended to provide additional flexibility in the zoning process where a particular use might not be specifically allowed in a particular zone, but would still be compatible with allowed uses in that zone when certain qualifying conditions are applied." Accessory uses and structures, such as unattached garages, carports, swimming pools, storage sheds and docks, are allowed only when a principal use or structure already exists. They must be located in side or rear yards, unless the lot is abutting a body of water, when they may be placed in front of the principal use or structures. Petitioners contend that Section 404 allows incompatible uses in single-family zones and is inconsistent with Objectives 3.9, 8.5, and 8.9, and Policies 3.9.1, 8.5.1, 8.9.1, 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 2.1.2.2 of the Plan. Petitioners contend that Section 404 is inconsistent with the listed Plan provisions for the following reasons: while it requires buffering for schools and churches, it does not require buffering between single-family homes and other uses that are known to create nuisances; it allows electrical power substations, which are known health risks; it creates uncertainty by authorizing unspecified conditional uses so long as they are consistent with the criteria of Chapter 12 of the LDRs; it contains no restrictions on noise that is incompatible with the quiet use and enjoyment of a homeowner's residence; and it does not allow manufactured homes. As to the first reason, Petitioners have offered insufficient support for their contention that the absence of language requiring a buffer between residences and uses that are known nuisances is inconsistent with the Plan. Petitioners offer a list of "nuisances" that includes parks, playgrounds, and community facilities, which are not commonly considered "nuisances" in residential areas. Housing Element Policy 8.5.1 of the Plan requires the LDRs to include criteria that maintain compatibility between types of residential buildings, and Policy 8.9.1 requires the County to establish zoning districts in the LDRs that promote compatibility between residential uses and reduce the potential for public nuisances. The County has elected to require buffering in the R-1 zone between residences and churches and schools, but not to require buffering between residences and parks, playgrounds, and community facilities, or between residences and "nuisances" generally. Section 404.2.f provides that "other" conditional uses are required to seek permits under Chapter 12, a process through which compatibility is addressed and buffers could be required as a condition of approving the conditional use. As to the Petitioner's claim regarding electrical power substations, Subsection 163.3208(4), Florida Statutes (2006), requires local governments to allow new electrical substations as a permitted use in all comprehensive plan categories and zoning districts, except those designated as preservation, conservation, or historic preservation. Subsection 163.3208(6), Florida Statutes, provides express conditions for the placement of electric substations in residential areas, requiring the utility to consult with local government regarding site selection and to propose at least three alternative sites, including sites within nonresidential areas. The local government has the authority to make the final decision as to substation placement. Further, electrical substations are classified as conditional uses by Section 404 and, therefore, must meet the requirements of Chapter 12 of the LDRs in order to be approved. One such requirement, in Section 1206.1, is that the conditional use must be "consistent with all applicable provisions of the Plan." Table 3A of the Future Land Use Element ("FLUE") specifically lists public utilities as an allowable use in the Residential land use category. Section 1206.2 provides that a conditional use request "shall not adversely affect adjacent properties in terms of creating a nuisance, reduction in property values, or other quantifiable measure." Section 1206.3 provides that the request must be "compatible with the existing or allowable uses of adjacent properties." Section 1206.7 provides that the request "will not adversely affect the public health, safety or welfare." Section 1205 grants the County's Planning Commission the authority to impose such conditions and safeguards on conditional uses "as deemed necessary to protect and enhance the health, safety and welfare of the surrounding area." In summary, electrical power substations are naturally and appropriately considered "public utilities" and are, therefore, specifically allowed in residential areas under the Plan. Section 404.2.e lists electrical power substations as conditional uses "to be evaluated on a case-by-case basis." As conditional uses, electrical power substations are subject to the review process of Chapter 12 of the LDRs. The health risks of the substations must be considered under Section 1206.7, which prohibits adverse effects on the public health, safety or welfare. Finally, state law in the form of Section 163.3208, Florida Statutes, has preempted any authority the County may have had to completely prohibit electrical substations in residential areas. Petitioners have, also, alleged that Section 404.2.f allows any number of unidentified potential uses that could create nuisances and destroy the character, compatibility and aesthetics of their neighborhoods, which would be inconsistent with Objective 8.5 of the Plan, and that could interfere with the quiet use and enjoyment of their property, which would be inconsistent with Objective 8.9. Petitioners have pointed to no statute, rule, or Plan provision that would require the County to list every possible conditional use for the R-1 zoning category in the LDR. Section 404.2.f simply clarifies that any conditional use not expressly named in Section 404.2 is subject to the permitting criteria of Chapter 12 of the LDRs, which themselves limit conditional uses to those compatible with existing or allowable uses of adjacent properties and that do not create nuisances. Regarding the alleged lack of noise standards, Petitioners have referenced no provision of the Plan requiring noise to be addressed in the LDR that sets forth allowable uses in the R-1 zoning category. The conditional use requirements of Chapter 12 are intended to ensure compatibility of adjacent uses and forestall the creation of nuisances. As noted above, the County, also, has a nuisance ordinance that applies to all property. Finally, Petitioners complain that manufactured homes are not listed as allowable uses in the R-1 single-family zone despite the fact that Table 3A of the FLUE portion of the Plan includes "manufactured housing" among those land uses that are allowable in residential areas. Objective 8.7 of the Plan is to provide for the location of affordable housing, including manufactured housing, in residential districts while avoiding "undue concentrations" of affordable housing in any one area. Policy 8.7.2 of the Plan provides: The Board recognizes that mobile homes and/or manufactured houses are commonly used to provide affordable housing. The Board will provide for the placement of these structures by designating certain land use districts in the Land Use Code in which mobile homes, manufactured homes, mobile home parks, and mobile home subdivisions will be allowed. These areas will be designated in such a way as to avoid undue concentrations in any one particular geographic area. Manufactured homes are listed, either specifically or by reference to another zoning category, as allowable uses in the R-2 (Duplex Dwellings and Manufactured Housing Zones) and R-3 (Duplex, Triplex, and Quadraplex Zones), but not in the R-1 (Single-Family Zones) zoning category. An exception is a manufactured home that meets the Florida Building Code Standards of Chapter 553, Florida Statutes, which is allowed in all residential zoning districts. That fact that Table 3A of the FLUE allows manufactured housing in residential areas does not mean that manufactured housing must be allowed in every zoning category included under the "residential" designation. Petitioners have failed to demonstrate that Section 404 is inconsistent with the Plan. Section 4105 Section 410, titled "Bulk Regulations," sets forth the bulk regulations for all residential zoning categories. Petitioners have alleged that this LDR is inconsistent with Objectives 3.9, 8.5 and 8.9, and Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, 3.6.1, 3.9.1, 3.9.2, and 8.5.1. Section 410 includes Table 4.1, which establishes standards for each residential zoning category set forth in Chapter 4 of the LDRs. These bulk regulations include maximum densities, minimum lot frontages, yard setbacks, maximum building heights, and impervious surface ratios for each zoning category, further divided into urban, suburban, and rural community areas. Petitioners allege that the failure of the bulk regulations to mandate a minimum lot size and the allowance of 15 dwelling units per acre in the urban R-2 and R-3 zones would allow a developer to enter an existing neighborhood, buy an adjacent vacant parcel or assemble several lots and build at a higher density than the existing neighborhood. Petitioners point out that R-2 zoning covers the majority of land in Laguna Beach, and that the overall density in that area is about eight to ten units per acre. However, under Section 410, a developer could assemble an acre and build up to 15 dwelling units per acre. This density is nearly double the eight units per acre allowed in the R-1 zoning category. Petitioners contend that such increased density in existing neighborhoods has the potential to destroy the character, compatibility and aesthetics of these neighborhoods, which is inconsistent with Objective 8.5, and the potential to create nuisances with excessive noise and traffic, inconsistent with Policy 8.5.1. These impacts would have the cumulative effect of interfering with the residents' quiet use and enjoyment of their homes and would devalue their property, inconsistent with Objective 8.5. Despite the Petitioners' concerns, the Plan contains no minimum lot size requirements in the Residential FLUE category. Therefore, no minimum lot size is required for the residential zoning bulk regulations. The Residential FLUE category in Table 3A of the Plan allows a density of no more than 15 dwelling units per acre in urban/coastal areas. The provisions of Section 410 are identical to those of the Plan, limiting density to 15 dwelling units per acre in the urban areas of the R-2 and R-3 zones. While they have voiced legitimate concerns regarding the impact of increased densities imposed on existing neighborhoods, Petitioners have failed to demonstrate that Section 410 is inconsistent with the Plan. Section 503 Petitioners have alleged that Section 503, dealing with the SR-1 Seasonal/Resort Residential zoning category, is inconsistent with Objectives 8.5 and 8.9 and Policy 3.9.1, because the allowable uses under this LDR do not protect existing neighborhoods in or adjacent to the SR-1 zones, specifically the existing single-family residential neighborhoods in the Beaches Special Treatment Zone south of U.S. 98. The alleged incompatible allowable and conditional uses include motels/hotels, condominiums, beach rental vendors, and parking garages. The Seasonal/Resort FLUE category in Table 3A of the Plan states that the purpose of the category is "[t]o provide areas for a functional mix of compatible seasonal/resort land uses where the clientele are predominantly seasonal or temporary visitors and tourists." Listed allowable uses include condominiums, multi-family structures, motels, hotels, lodges, restaurants, convenience stores, and lounges and bars as accessory uses to multi-family structures, hotels, motels, or restaurants. Under the heading "Development Restrictions," Table 3A expressly provides that year-round, permanent residences should not be located in the seasonal/resort areas. Petitioners complain that the seasonal/resort land use category and the SR-1 and SR-2 zoning categories were assigned to many existing R-1 single-family residential structures, and that many of these homeowners have petitioned the County to change their designation from seasonal/resort back to residential. However, Petitioners have not shown that the SR-1 category described in Section 503 of the LDRs is inconsistent with the criteria of the Seasonal/Resort FLUE category set forth above. Section 503.1.a specifically recognizes that the R-1 uses in the seasonal/resort area are not nonconforming. Elliott Kampert, the County's chief planner, testified that many, if not most, of the single-family residences in this area were non- homestead properties being used as rental properties by their owners. Petitioners counter that the Plan does not distinguish between full-time, seasonal, or rental uses in applying compatibility standards or requiring protection of the character and aesthetics of residential areas and the opportunity for the quiet use and enjoyment of homes. Policy 3.9.1 of the Plan defines "compatibility" as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This is the same definition of "compatibility" found in Florida Administrative Code Rule 9J-5.003(23). Petitioners contend that Section 503 is inconsistent with Objective 3.9 generally and with Policy 3.9.1 in particular. Petitioners argue that, because SR-1 is a residential zone that has been applied to existing neighborhoods, Objectives 8.5 and 8.9 are also relevant. Objective 8.5 requires the preservation and protection of the character, compatibility and aesthetics of residential areas and neighborhoods "through the enforcement of land use regulations." Objective 8.9 requires protection of residential property values and ensures the homeowner's quiet use and enjoyment of his residence. Petitioners contend that the development allowed under Chapter 5 of the LDRs, including 60-foot high motels/hotels, 100-foot high condominiums and apartment houses, and 45-foot high parking garages, will interfere with the quiet use and enjoyment and change the character and aesthetics of the existing single- family neighborhoods. The stated purpose of the Seasonal/Resort FLUE category is to accommodate primarily seasonal or temporary visitors and tourists. Table 3A of the Plan expressly states that year-round, permanent residences should not be located in this area. Therefore, the allowable and conditional uses listed for the SR-1 category in Section 503 of the LDRs are appropriate and consistent with the relevant portion of the Plan. Petitioners' arguments, at most, demonstrated that the Seasonal/Resort criteria and standards set forth in Table 3A are inconsistent with Objectives 8.5 and 8.9 of the Plan, to the extent that the County has imposed the Seasonal/Resort designation to existing residential neighborhoods despite the express criterion that permanent residences should not be located in this area. Internal inconsistencies in the Plan are beyond the limited scope of this proceeding. Petitioners have failed to demonstrate that Section 503 is inconsistent with the Plan. Section 5066 Section 506 includes Table 5.1, which establishes standards for each seasonal/resort zoning category set forth in Chapter 5 of the LDRs. These bulk regulations include minimum lot areas, maximum densities, minimum lot frontages, minimum setbacks, maximum building heights, and impervious surface ratios for each zoning category. Petitioners contend that this LDR is inconsistent with Objectives 3.11, 8.5, and 8.9, as well as Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, 1.2.1.9, and 3.9.1 of the Plan. Section 506 allows residential structures to be built three feet from the side-yard property line, commercial structures to be built ten feet from the side-yard property line, and contains no floor-to-area ratios. The LDR allows heights up to 60 feet for residential structures and up to 230 feet for commercial structures. Petitioners complain that Section 506 would allow construction of a 230-foot tall hotel ten feet from the property line of an existing single-family home. Petitioners contend that the setback provisions do not require sufficient side yards to preserve the integrity of the area or to protect adjacent property from the ill effects of the allowed uses. Petitioners, also, contend that Section 506 lacks objective measurements of density or intensity to control the bulk and mass of new construction. Table 5.1 includes height limits and impervious surface ratios, but does not include floor-to-area ratios, which Petitioners argue are necessary in order to have meaningful density and intensity controls. The County correctly responds that the Plan does not establish minimum setbacks or floor-to-area ratios for buildings in the Seasonal/Resort FLUE category and, therefore, neither the minimum setbacks prescribed in Table 5.1, nor the lack of floor- to-area ratios in Table 5.1 is in derogation of any provision of the Plan. Petitioners have failed to demonstrate that Section 506 is inconsistent with the Plan. Section 703 Petitioners contend that Section 703, which sets forth the allowable, conditional, and prohibited uses in the Conservation Preservation Zone, is inconsistent with the Plan, because it does not address maintaining water quality standards. Table 3A of the FLUE, in stating the purpose, uses, density and intensity allowed in the Conservation Preservation Zone, states the following "Development Restriction": "No development allowed that can be reasonably expected to degrade water quality standards." Petitioners contend that this statement should have been incorporated into the text of Section 703. Petitioners contend that Section 703 allows uses with the potential to degrade water quality, such as public utilities and infrastructure, docks, piers, seawalls, jetties, groins, boathouses, and "other similar uses."7 Petitioners contend that incorporating the specific language from Table 3A into Section 703 would enable the County to address potential development that could impair water quality. The County points out that environmental standards are set forth in a separate chapter of the LDRs, Chapter 19. Section 1904.2.e of the LDRs provides: "No new development will be permitted that would reasonably be expected to cause violation of state or federal water quality standards." Chapter 18 of the LDRs sets forth the development review process and specifically references Chapter 19 in the provisions stating the environmental information that must be included in a development application. Petitioners have failed to demonstrate that Section 703 is inconsistent with the Plan. Section 704 Petitioners contend that Section 704, which sets forth the allowable, accessory, and prohibited uses in the Conservation Recreation Zone, is inconsistent with the Plan, because it is inconsistent with the development standards set forth in Table 3A of the FLUE for the Conservation Recreation land use category. Table 3A states that the purpose of the Conservation Recreation Zone is "[t]o provide areas that are used jointly for both conservation and recreation purposes." Table 3A sets forth the allowable uses in the Conservation Recreation Zone: "Agriculture (when BMPs are used), Recreation, Public/Institutional, Residential, Commercial on upland areas when used in conjunction with the overall recreation function (e.g. ranger quarters, concessionaires, etc.), docks, piers, seawalls, groins, buoys, "eco-parks" and other similar uses, and public utilities." Table 3A sets forth the following development restriction: "Development is limited to that which supports conservation/recreation purposes." Table 3A lists density and intensity criteria as "not applicable" for the Conservation Recreation Zone. Section 704 lists all allowable and conditional uses in the Conservation Preservation Zone as allowable uses in the Conservation Recreation Zone. In addition, Section 704 lists the following as allowable uses in the Conservation Recreation Zone: Outdoor recreation uses including: parks, recreation areas, campgrounds, preserves, nature trails, historic sites, or other similar uses; hunting or gun clubs or lodges; canoe, kayak or other small boat rentals; fishing camps or lodges; horseback riding stables and trails; youth, institutional, or day camps or lodges; and, other similar outdoor recreation uses. Petitioners argue that the allowable uses listed in Table 3A, in conjunction with the lack of density and intensity criteria, establishes that only uses of limited impact are to be allowed in this area, with the standard for structural development limited to structures necessary to support the allowable recreational uses, such as ranger stations and concessionaires. "High density, high intensity" structures such as hunting, gun, fishing, youth, and recreational lodges are outside the conservation purposes of Table 3A and, are therefore, inconsistent with the Plan. Section 708 of the LDRs contains Table 7.1, the bulk regulations for all of the Conservation Zones described in Chapter 7. Table 7.1 requires a minimum lot area of 20 acres for construction in the Conservation Recreation Zone, with minimum front, rear, and side setbacks of 100 feet, maximum lot coverage of ten percent and a floor area ratio of 20 percent. A lodge constructed under these criteria would not constitute a "high density, high intensity" structure inconsistent with Table 3A of the Plan. Table 3A includes "designation criteria" for the Conservation Recreation Zone that expressly include the following: St. Andrews State Recreation Area and Aquatic Preserve, Pine Log State Forest, Econfina Creek Water Management Area, Shell Island, and Class III waters. Mr. Kampert, the County's planner, stated that the St. Andrews facility has camping sites for RVs and commercial uses such as a snorkel, dive shop, and camping shop. Pine Log State Forest includes RV camping sites with restroom facilities and showers. It is established that the state allows these types of uses in the management of its recreational areas and, therefore, that the Plan contemplates the same uses in the Conservation Recreation Zone. Petitioners, also, complain that Section 704.2.b lists "public/institutional uses" as allowed as accessory uses and structures, but does not provide examples of the type of development that would be allowed under this term. Petitioners cite no requirement that the County must publish a list of examples under each use category within the LDRs. Examples of Public/Institutional Uses are included in Table 3A of the FLUE under that land use category. In any event, such uses would be limited "to that which supports conservation/recreation purposes." Petitioners have failed to demonstrate that Section 704 is inconsistent with the Plan. Section 705 Section 705 lists the allowable and prohibited uses in the Conservation Habitation Zone. Included in the allowable uses under Section 705 are both bird sanctuaries and communications towers. Petitioners complain that communications towers present hazards to birds and that allowing such towers is inconsistent with Table 3A of the FLUE regarding Conservation areas. Petitioner's evidence regarding the dangers that cell phone towers present to migrating and local resident birds is credited, but not relevant to a determination whether the LDR is inconsistent with the Plan. Petitioners contend that communications towers constitute a commercial/industrial use and, thus, are inconsistent with Table 3A's description of the Conservation FLUE category. However, Table 3A of the FLUE lists allowable uses in the Conservation category to include "public utilities, and other similar uses." It was not unreasonable for the County to determine that communications towers are more akin to public utilities than to commercial/industrial uses, and to allow their placement in the Conservation Habitation Zone.8 Petitioners have failed to demonstrate that Section 705 is inconsistent with the Plan. Section 706 Section 706 is titled "Innovative Development Techniques." Section 706 is intended to implement Objective 6.18 of the Conservation Element of the Plan. Objective 6.18 provides that its purpose is to "[p]rovide landowners with beneficial use of their property when environmental restrictions cause the loss of full development potential through use of innovative and flexible development strategies." Policy 6.18.1 of the Plan provides that owners or developers facing development restrictions due to the presence of locally significant environmental resources on their property may use the "innovative land development techniques" of clustering and mitigation. Petitioners contend that the first sentence of Section 706 is inconsistent with the standards set forth in Table 3A for Conservation Preservation and Conservation Recreation land use categories. The first sentence of Section 706 provides: "Conservation zones are intended to accommodate limited development while, also, conserving and protecting valuable natural resources." Petitioners argue that the Conservation Preservation and Conservation Recreation categories do not allow any development at all. Petitioner's contention would be correct only if Section 706 were read to negate or override Sections 703 and 704. Sections limit development in the Conservation Preservation and Conservation Recreation Zones, respectively, through the provision of limited allowable uses and prohibited uses. Nothing in Section 706's provision for innovative development techniques trumps the limited allowable uses of the Conservation Preservation or Conservation Recreation Zones. Petitioners, also, complain that Section 706 is inconsistent with Policy 6.18.1, which states in relevant part that "owners or developers may use, or be required to use, the following innovative land development techniques." (Emphasis added.) Petitioners emphasize the underscored language to argue that the County has retained the right to impose clustering on developers, whereas Section 706 merely "encourages" clustering. On this point, there is no inconsistency between the LDR and the Plan, because the latter does not require the County to impose mandatory clustering on owners or developers. Petitioners are probably correct that Section 706 would prove more effective if it required clustering, but Policy 6.18.1 of the Plan does not mandate that outcome. Section 706 allows the use of "density transfers," defined as "[t]he transfer of all or part of the allowable density on a lot or parcel of land to another lot or parcel of land." Petitioners argue that the LDR does not provide specific and detailed criteria for the application of density transfers, which renders it inconsistent with Policies 1.2.1.2, 1.2.1.4, 1.2.1.5, and where transfers impact existing residential areas, Objectives 8.5 and 8.9. The density transfers are contemplated only for conservation zones, not existing residential areas. The lack of specific criteria to implement the concept of density transfers does not render Section 706 in conflict with the cited Plan provisions. It is noted that the Plan is silent as to density transfers, but it is, also, found that density transfers are not in conflict with the Plan.9 Finally, Petitioners allege that allowing developers to deviate from the bulk requirements for Conservation zones in Table 7.1 of the LDRs may lead to development inconsistent with the Plan. The County contends that allowing deviations from the bulk requirements is not inconsistent with the Plan, because deviations are allowed only when it can be shown that they are "necessary and desirable to avoid or preserve natural resources." Petitioners respond that the terms "necessary" and "desirable" are so vague as to be meaningless in terms of establishing an objective standard for development review. However, Section 706 expressly provides that requests for the use of innovative development techniques in Conservation zones are to be evaluated on a case-by-case basis, indicating that the County intends for the common understanding of those terms to be elucidated and amplified through the permitting process. Petitioners have failed to demonstrate that Section 706 is inconsistent with the Plan. Section 707 Section 707 contains nine special regulations that apply in the Conservation zones. Section 707.5 provides: Development will be under-taken [sic] so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities authorized by permits issued by federal or state authorities. Petitioners allege that Section 707.5 is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.1 of the Plan, because the intent of those Plan provisions is to preserve and protect wetlands. Petitioners, therefore, contend that Section 707.5 is less restrictive than the Plan, because it allows state and federal permits to trump the wetland protections set forth in the Plan. Objective 6.11 of the Plan is to "[p]rotect and conserve wetlands and the natural functions of wetlands." Policy 6.7.4 sets forth development standards applicable in designated Ecosystem Management Areas. Policy 6.7.4.5 provides that development will be undertaken "to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 707.5 of the LDRs is taken verbatim from Policy 6.7.4.5 of the Plan, except for the addition of the phrase, "except for activities authorized by permits issued by federal or state authorities." Policy 6.18.1 is the "innovative development techniques" provision discussed in Section H, supra. The County points out that Objective 6.11 states that the County will "protect and conserve" wetlands, not "preserve" them from development altogether. Petitioners contend that nothing in the Plan distinguishes between "jurisdictional wetlands," those that by definition are regulated by state and federal permitting agencies, and "isolated wetlands" unregulated by state and federal agencies. However, Policy 6.11.1 adopts by reference the definition of "wetlands" as used by the Department of Environmental Protection and set forth in Subsection 373.019(25), Florida Statutes (2006).10 Objective 6.1 of the Plan calls for the elimination of "needless duplication of government and regulatory activities relative to protection of natural resources." Policy 6.1.1 goes on to say that the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Despite Petitioner's contentions, nothing in the Plan clearly indicates11 that isolated wetlands are to be afforded the same protections as jurisdictional wetlands. The Plan defines "wetlands" by reference to the Department of Environmental Protection's definition, a clear indication that the Plan is concerned only with jurisdictional wetlands. Section 707.5 defers to the federal and state wetlands permitting authorities in the same manner as the Plan itself. Petitioners have failed to demonstrate that Section 707 is inconsistent with the Plan. Section 708 The bulk regulations for the Conservation zones are contained in Table 7.1 of Section 708 of the LDRs. A minimum lot area of 20 acres and a maximum building height of 50 feet are provided for the Conservation Recreation zone. Petitioners allege that that provision of a minimum lot area is inconsistent with the Conservation Recreation FLUE category contained in Table 3A of the Plan, because no minimum lot area is included therein. Petitioners claim that a minimum lot area precludes smaller parcels from being placed in the Conservation Recreation category, thereby decreasing opportunities for acquiring and conserving smaller areas of ecologically valuable resources. Petitioners, also, argue that allowing buildings up to 50 feet in height is inconsistent with the Conservation Recreation FLUE category, because such a building height is not necessary to accommodate the allowable uses. Contrary to Petitioner's allegation, the minimum lot area in Table 7.1 is not inconsistent with the Plan. Table 3A of the Plan does not set forth minimum lot areas as such for any land use category.12 Petitioner's policy argument regarding smaller parcels is logical, but unsupported by any specific Plan provision. Finally, the County demonstrated that a 50-foot building height is reasonable for uses such as fire towers in the Conservation Recreation zone. Petitioners failed to demonstrate that Section 708 is inconsistent with the Plan. Section 1805 Section 1805 lists all the information that must be included in a development permitting application. Section 1805.2.b sets forth the environmental information to be included in the applicant's site development information package. Petitioners allege that Section 1805.2.b is inconsistent with the Plan, because it does not require applicants to depict wetland buffers or the jurisdictional wetland line on their site plans. Policy 6.11.3.1 of the Plan provides: "Wetlands will be delineated and depicted on all site plans included in applications for development approval." The policy does not require the depiction of wetland buffers. Consistent with Policy 6.11.3.1 of the Plan, Section 1805.2.b of the LDRs requires the applicant's site plan to depict wetland areas. Petitioners failed to demonstrate that Section 1805 is inconsistent with the Plan. Section 1903 Section 1903 of the LDRs provides a list of what the County considers to be "significant natural resources." The list is identical to the list of "locally significant natural resources" contained in Policy 6.2.1 of the Plan, except that "shellfish beds" were added to the LDR list. Petitioners contend that Section 1903 should go beyond the list in Policy 6.2.1 and include all natural resources that are protected under the Plan. In particular, Petitioners claim that native aquatic flora and fauna, that help protect water quality and provide habitat, should be included in Section 1903, because their protection is a part of several Objectives in the Conservation Element of the Plan, including Objectives 6.7, 6.8, 6.9, 6.14, 6.15, 6.16, 6.17, 6.19, 6.20, 6.21, and 6.22. Petitioners argue that nothing in the statutes or rules restrict the County from adopting LDRs that go beyond the specific language of the Plan, provided the additional language is consistent with and further the objectives of the Plan. Petitioners point to the addition of the language relating to shellfish beds as an example of acceptably expanding the list of significant natural resources contained in Policy 6.2.1. Petitioners are correct in noting that the County could, further, expand the list of significant natural resources in the LDRs. This is not to say, however, that the County is required to expand the list beyond the resources listed in the Plan, and Petitioners concede that Section 1903 contains all of the resources identified in Policy 6.2.1 of the Plan. Petitioners have failed to demonstrate that Section 1903 is inconsistent with the Plan. Section 1904 Section 1904 sets forth the environmental standards with which all development must be designed and constructed to comply. The stated purpose of the standards is "to protect and conserve significant natural resources," a reference to the list of resources provided in Section 1903. Petitioners contend that the expanded list of natural resources they sought to be included in Section 1903 should, also, be added to Section 1904. For the same reasons stated in Section M, supra, there is no requirement that the LDRs go beyond the Plan regarding the list of significant natural resources identified for protection. Section 1904.4 provides setbacks for development adjacent to any water body. All principal and accessory structures must be located no closer than 30 feet from the mean high water or ordinary high water line or within 30 feet of any Department of Environmental Protection jurisdictional line, whichever is more restrictive. Natural vegetation is to be preserved within the setback area. The stated purpose of the setback is to "provide a buffer between surface waters and development, preserve quality, limit sediment discharges, erosion, and uncontrolled stormwater discharges, and provide wildlife habitat." Petitioners allege that the 30-foot setback is insufficient to accomplish the stated purpose, because subsurface impacts can extend well beyond a 30-foot setback. Dr. Bacchus testified as to the extensive scientific documentation that coastal areas are eroding. This natural erosion, coupled with the rise in sea levels caused by global warming, means that a 30-foot setback, even if it were scientifically based at the time it was adopted, would no longer have a valid basis. The situation will be exacerbated by the continued increase in Bay County's population, meaning that more and more water will be withdrawn causing the land mass to compress and collapse. The sea level encroachment will, thus, be far greater than the sea level rise alone would predict. The County notes that the setback language of Section 1904.4 is substantively identical to Policy 6.7.4.6 of the Plan, which applies to Ecosystem Management Areas, areas where "extraordinary regulatory standards may be applied to protect natural resources." Though not all surface waters are necessarily included in the Ecosystem Management Area designation, Section 1904.4 provides the same buffer they would enjoy were they so designated. Petitioners point to no specific Plan provision with which Section 1904 conflicts. Dr. Bacchus credibly testified that a larger buffer area would provide greater protection to the surface waters encroached upon by adjacent development. However, the standard in this proceeding is not whether the LDRs could be improved upon, but whether they are inconsistent with the Plan. Petitioners failed to demonstrate that Section 1904 is inconsistent with the Plan. Section 1905 Section 1905 sets forth a list of development restrictions for those areas designated Ecosystem Management Areas by Policy 6.7.3: "Undeveloped, unplatted land in the Rural or Suburban Service Areas adjacent to Class II waters and Outstanding Florida waters, tributaries and headwaters thereto." Policy 6.7.4.5 of the Plan provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands." Section 1905.4 of the LDRs provides: "Development will be undertaken so as to avoid activities that would destroy wetlands or the natural functions of wetlands except for activities or permits issued by state and federal agencies." Petitioners contend that Section 1905.4 is inconsistent with Policy 6.7.4.5, because it includes the quoted phrase deferring local jurisdiction to permits issued by state and federal authorities. This is the same argument raised by Petitioners regarding Section 707. See Section I, supra. Petitioners, also, contend that Section 1905.5, providing the same 30-foot setback as discussed in relation to Section 1904, is inadequate for the same reasons discussed in Section N, supra. Petitioners' chief concern is the protection of wetlands, and they argue with some force and no little persuasiveness that state and federal agencies do not adequately enforce wetlands regulations. However, it is not within the authority of this tribunal to substitute its judgment for the County's legislative determination to defer to the permitting authority of state and federal agencies. For the same reasons given in Sections I and N of this Order, Petitioners have failed to demonstrate that Section 1905 is inconsistent with the Plan. Section 1906 Section 1906 sets forth development restrictions in the Deer Point Reservoir Protection Zone, established to protect the water quality of the Deer Point Reservoir at or above the ambient levels at the time the County adopted Ordinance 94-12, which established the boundaries of the protection zone and provided standards for land uses in order to protect the water quality of the reservoir. The Deer Point Lake Reservoir is a Class I water that was created in 1961 through the construction of a dam across the northern portion of North Bay, and is the primary source of drinking water for most of the municipalities in the County. Petitioners complain that Section 1906.5 allows on- site sewage disposal systems within the Deer Point Reservoir Protection Zone, provided that the minimum setback for septic tanks and their drainfields is 100 feet from the mean high water or ordinary high water line. Dr. Bacchus credibly testified that allowing septic tanks to proliferate in the Deer Point Lake watershed will cause the water to become extremely eutrophic, due to the leaching of nutrients through the shallow surficial aquifer. There will be problems with aggressive alien species and fish kills, causing the recreational benefits of the area to plummet.13 Again, even if Dr. Bacchus' expert testimony is fully credited, it does not resolve the question whether Section 1906 is inconsistent with the Plan. Policy 6.6.1.5 of the Plan expressly provides that septic tanks are allowed near Class I waters, provided they are no closer than 100 feet from the shoreline. Policy 6.7.4.4 of the Plan provides that, in the Ecosystem Management Areas, septic tanks must be located at least 100 feet upland of the mean high water line, ordinary high water line, or DEP wetland jurisdiction line. Petitioners have failed to demonstrate that Section 1906 is inconsistent with the Plan. Section 1909 Section 1909 sets forth restrictions, constraints and requirements on development activities in wetlands. Petitioners argue nine points of alleged inconsistency. First, Petitioners contend that Section 1909's defining "wetlands" by reference to Florida Administrative Code Rule 62-340.200(19) is inconsistent with the Plan, because the Plan covers both jurisdictional and isolated wetlands. The cited rule provides: "Wetlands," as defined in subsection 373.019(25), F.S., means those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto. The rule's definition is virtually identical to that contained in Subsection 373.019(25), Florida Statutes. See footnote 10, supra. As noted in Section I, supra, Policy 6.11.1 of the Plan adopts by reference the definition of "wetlands" set forth in Subsection 373.019(25), Florida Statutes. For the reasons set forth in Section I, supra, Petitioners have failed to demonstrate that the intent of the Plan was to include any wetlands other than the jurisdictional wetlands defined by statute and the Department of Environmental Protection's rule. Petitioner's second point is that Section 1909.2 contains the same exception to the general avoidance of development impacts on wetlands as found in Sections 707.5 and 1905.4: "except for activities authorized by permits issued by federal or state authorities." For the reasons set forth in Sections I and O, supra, this language has not been shown to be inconsistent with the Plan. Petitioner's third point is that Section 1909.3 provides the same 30-foot wetland buffer set forth in Section 1904.4. For the reasons set forth in Section N, supra, the 30- foot buffer has not been shown to be inconsistent with the Plan. Petitioner's fourth point is that the last sentence of Section 1909.3.e is inconsistent with the Plan. This sentence states: "A variance may be granted to allow an accessory use to violate the setback requirement, but by no more than twenty (20) percent."14 Petitioners allege that this language is inconsistent with Objectives 6.11 and 6.18 and their implementing Policies, as well as Policy 6.7.4, because the Plan's provisions contain no express exemption that allows accessory structures to be placed in the wetland buffer. Petitioners, further, contend that the Section 1909.3.e provides no guidelines to ensure that a requested variance is only for a use required to provide the owner with a reasonable use of the property. Petitioners note that "accessory uses" listed in the Plan and LDRs include guesthouses, swimming pools, storage sheds/greenhouses, satellite dishes, jet ski rentals, beverage or food shops, and parking garages. Objective 1.8 in the Administrative Prccedures Element of the Plan is intended to "provide avenues of hardship relief from those aspects of the Plan that have the effect of regulating the use of land, consistent with the provisions of Chapter 163, Florida Statutes." Policy 1.8.1.1 describes the County's variance process, the purpose of which is described as follows: The Plan variance process is designed to provide relief from the requirements of the Comprehensive Plan in those cases where strict application of these requirements could result in an unconstitutional taking or unnecessary hardship prohibiting the use of land in a manner otherwise allowed under this Plan. Policy 1.8.1.1 sets forth nine standards with which an applicant must demonstrate compliance. The ninth standard requires the applicant to prove that the property "cannot be put to a reasonable use which fully complies with the requirements of this Plan unless the variance is granted." This limitation obviates Petitioner's concerns about the potential for granting variances for frivolous accessory uses. The fact that a requested accesory use must go through the variance process set forth in Policy 1.8.1.1 and elaborated in Section 208 of the LDRs ensures consistency.15 Petitioner's fifth point is that Section 1909.3.g is inconsistent with Objective 6.11 and Policies 6.7.4 and 6.18.2. Section 1909.3.g provides: "In situations where the width of the buffer area exceeds the width of the wetland, the buffer may be reduced to the same size as the width of the wetland. The quality of the wetland will determine this possibility." This subsection addresses situations in which the 30-foot buffer is wider than the wetland itself. Mr. Kampert testified that he was unaware that this situation had ever occurred in the County. Dr. Bacchus testified that she was unaware of any proven correlation between the width of the buffer and the width of the wetland in terms of protecting the wetland. She was unaware of any studies, research or other scientific documentation supporting the language regarding buffer reduction, and did not believe it would be possible to state a scientific basis for reducing the buffer to the width of the wetland. Policy 6.7.4.6 of the Plan states that the wetland buffer requirement, "including possible alternatives, may be further addressed in the Land Use Code."16 Allowing the width of the buffer to equal the width of the wetland when the wetland is less than 30 feet wide is an "alternative" that is not inconsistent with any specific provision of the Plan. The County is not required to demonstrate the scientific basis for the LDR. Petitioner's sixth point regards Section 1909.3.h, which provides: Alternative project design and construction may be allowed in lieu of the required buffer when it can be demonstrated that such alternative method provides protection to the wetland or its habitat value that is equal to or greater than the vegetated buffer. Petitioners contend that this provision is inconsistent with Objective 6.11 and Policies 6.11.3.2 and 6.7.4.5. Both policies state that development will be undertaken so as to avoid activities that would destroy wetlands or their natural functions. The County points again to the "possible alternatives" to wetland buffers contemplated by Policy 6.7.4.6 of the Plan, and argues that alternative project design and construction within the parameters outlined in Section 1909.3.h must certainly be considered a reasonable alternative within the meaning of Policy 6.7.4.6. The County, further, notes that any impact of alternative project design would be minimal, because Section 1909 does not apply to wetlands in conservation zones or Ecosystem Management Areas, which contain most of the large wetland systems in the County. These areas have their own sections of the LDRs. See Section 707 (special regulations applicable to conservation zones) and Section 1905 (development restrictions for Ecosystem Management Areas). Petitioner's seventh objection regards Section 1909.5, which provides: In the event a lot or parcel of property is rendered totally undevelopable by avoidance of wetlands the property may be developed when: 1) disturbance of wetlands is the minimum necessary to build an allowable use, and 2) mitigation is provided consistent with applicable law. Petitioners contend that Section 1909.5 is inconsistent with Objective 6.18 and with Plan provisions calling for the protection of wetlands and their natural functions. Petitioners argue that Objective 6.18 establishes the conditions for development of property that is rendered totally undevelopable, because of environmental restrictions such as wetlands avoidance. Section 1909.5 provides for an "allowable use," seemingly a more lenient standard than the "beneficial use" standard of Objective 6.18. Petitioners note that an "allowable use" would appear to be any use listed in the zoning criteria for a particular parcel, which would likely be more intensive than a "beneficial use" under the standard provided by Objective 6.18. In response, the County simply points out that the language of Section 1909.5 is taken verbatim from Policy 6.11.3.5 of the Plan and, therefore, is not inconsistent with the Plan. Petitioner's eighth point regards Section 1909.6, which provides: In order to adequately monitor the loss of wetlands within Bay County, all fill permits granted by an agency other than Bay County shall be reported to Bay County Planning and Zoning Division. This notification is the responsibility of the applicant, and shall be concurrent with the application for development order, where applicable. Before the issuance of the Development Order, the applicant shall file a verified copy of the permit(s). Petitioners first complain that Section 1909.6 deviates from the intent of the Plan by limiting data gathering to jurisdictional wetlands, a variation of the argument already disposed of in Section I, supra. Petitioners, further, argue that Section 1909.6 is insufficient, because it leaves permit reporting to the applicant and provide no enforcement provisions. The standard in this proceeding is not whether the LDR falls short of Petitioner's desires and expectations, but whether it is inconsistent with the Plan. Petitioners have shown no inconsistency in Section 1909.6 Petitioner's ninth point regards Section 1909.7, which provides: Violations of this section, or noncompliance cases, may be required to implement appropriate corrective measures developed in consultation with the Planning Official and other appropriate agencies. In addition, triple application fees may apply, such as development order application fees, if this section is violated. Petitioners contend that this provision is inconsistent with the Plan's protection of natural resources, because the penalties are not mandatory, and in any event are not severe enough to deter intentional destruction of wetlands. However, Petitioners point to no particular Goal, Objective, or Policy of the Plan that sets forth enforcement criteria for the wetlands provisions. Again, Petitioners here urge the imposition of their policy preference on the County, rather than demonstrate that Section 1909.7 is inconsistent with the Plan. In summary, Petitioners have failed to demonstrate that Section 1909 is inconsistent with the Plan. Section 1911 Objective 6.16 of the Plan is to "[p]rotect and conserve selected trees and important vegetative communities." Policy 6.16.1 provides that the County will maintain tree protection regulations as part of the LDRs, and that these regulations will include criteria for: the type and size of protected trees; exemptions; conditions for tree removal; replacement of removed trees; protection of trees during development; and preservation of certain large trees. In furtherance of Objective 6.16, the County adopted Section 1911, which provides lengthy and detailed provisions for tree protection and allowable removal of "protected" trees, defined as any hardwood tree or coniferous tree other than pine with a diameter at breast height of 18 inches or more. Section 1911.5 establishes standards for "historic," "specimen," "champion," and "heritage" trees. Petitioners claim that Section 1911.5 is inadequate, because it fails to establish how these trees are to be identified in order to qualify for protection. Section 1911.5 in fact states that historic and specimen trees are to be designated as such by the County Commission, after a public hearing on the designation "with due notice to the owner of the tree." Thus, it appears that any member of the public, not just the landowner, may bring a tree to the County's attention. A champion tree is one that has been designated by the Florida Division of Forestry as the largest of that species in the State of Florida or by American Forests (a nonprofit conservation organization that has maintained the "National Register of Big Trees" since 1940) as being the largest of that species in the United States. Anyone is eligible to nominate a tree as a "champion" tree. A heritage tree is defined as any tree with a diameter of at least 30 inches. Section 1911.5 does not include any means for official recognition of a heritage tree, though it is noted that a heritage tree would, also, meet the definition of a "protected" tree. As noted above, Section 1805 of the LDRs sets forth the information that a developer must include with his application and site plan. Section 1805.2.b sets forth the environmental information that must be included on the site plan. Section 1805.2.b.vi requires the inclusion of the "location and size of all protected trees." The County concedes that the LDR includes no procedure for the County itself to go out into the field and identify qualifying trees. Objective 6.16 does not require the County to proactively identify qualifying trees. Petitioners have failed to demonstrate that Section 1911 is inconsistent with the Plan. Section 2710 Section 2710 regulates the location and construction of communications towers. Section 2710.3 provides the following location standards for a "communications tower," defined as a structure greater than 35 feet in height that is designed to support communications transmission or receiving equipment: Except as provided in subsection 2,17 the following standards and criteria shall apply to the location of new or expanded communications towers: Communications towers may be allowed in all land use districts or zones when all of the following standards and criteria are met. The applicant shall make every effort to locate his communications tower in a non-residential land use district or zone. No other industrial or commerically zoned property is available to the applicant for this intended use. The proposed location will minimize the impact of the antenna structure due to the height, use or appearance of the adjacent structures or surrounding area. There are no existing building structures located within the area that are available to the applicant for this intended purpose. No other existing antenna structure located within the area is available for purposes of co-location. The antenna structure and its proposed height is the minimum necessary by the applicant to satisfy the applicant's communication system needs at this location. The applicant must provide a written, notarized statement to the Planning Division demonstrating compliance with (i) through (vi). Requests to locate communications towers in residential districts or zones can only be approved by the Planning Commission at a duly noticed public hearing by comptetent substantial evidence demonstrating compliance with (a) through (h) above18 and all other applicable provisions of this Chapter [27, dealing with guidelines and standards for the design, installation, construction and maintenance of utility facilities]. Petitioners allege that allowing communications towers in all land use districts or zones is inconsistent with Objectives 3.9, 8.5 and 8.9 and Policies 3.9.1 and 8.5.1 of the Plan, because communications towers are not compatible with and should not be placed in residential areas. The Plan lists public utilities as an allowable use in all FLUE categories, including the Conservation and Residential categories. The Plan does not define "public utility." The LDRs define a "public utility" as "[a] regulated utility provider with a franchise for providing to the public a utility service deemed necessary for the public health, safety, and welfare." The LDRs define "utility, public or private" as (1) Any agency that, under public franchise or ownership, or under certificate of convenience and necessity, or by grant of authority by a governmental agency, provides the public with electricity, gas, heat, steam, communication, transportation, water, sewage collection, or other similar service; (2) a closely regulated enterprise with a franchise for providing a needed service. Based on the above definitions, which Petitioners have not challenged, the County has reasonably concluded that telecommunications providers are public utilities and that their telecommunications towers may, therefore, be placed in residential areas, subject to the conditions set forth in Section 2710.3 Section 2710.3.a.i requires the applicant to make every effort to avoid locating a comunications tower in a residential area. Section 2710.3.a.ii requires the applicant to demonstrate the unavailability of any industrial or commercially zoned property for the tower. Section 2710.3 requires the five- member Planning Commission, the appointed local planning agency for the County pursuant to Section 163.3174, Florida Statutes,19 to approve all requests to locate communications towers in residential areas at a public hearing in which the applicant demonstrates compliance with the listed criteria. These are consistent, reasonable requirements for the placement of a public utility. Petitioners have failed to demonstrate that Section 2710 is inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that: The challenged land development regulations adopted by Bay County Ordinance No. 04-30 are determined to be in compliance. DONE AND ORDERED this 24th day of May, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2007.
