The Issue The issue in this case is whether certain amendments to the City of Miami Beach Year 2000 Comprehensive Plan are "in compliance," as defined in Section 163.3184(1), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Kent Harrison Robbins, is a resident of the City of Miami Beach. Mr. Robbins owns real property located within the boundaries of the City of Miami Beach. Petitioner, Altos Del Mar Development Corporation (hereinafter referred to as the "Development Corporation"), is a corporation. The Development Corporation is owned by Mr. Robbins. Respondent, the City of Miami Beach (hereinafter referred to as the "City"), is a political subdivision of the State of Florida. The City is located in Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Standing. Mr. Robbins owns real property (hereinafter referred to as the "Robbins Property") in the City. The Robbins Property is located west of Collins Avenue between 76th Street and 77th Street. The Robbins Property is located across Collins Avenue from one of the areas which is the subject of this proceeding. The Robbins Property is also located a few blocks from other areas which are the subject of this proceeding. Mr. Robbins made oral comments before the City at public hearings on the amendments which are at issue in this proceeding. Development Corporation is owned by Mr. Robbins. Development Corporation is the contract-purchaser of the Robbins Property. Mr. Robbins and Development Corporation have standing to institute this proceeding. The Department and the City have standing to participate in this proceeding. General Description of the City and the North Shore Area of the City. The City is a group of barrier islands located along the southeast coast of Florida. The City is 99 percent developed. The City is bounded on the east by the Atlantic Ocean and on the west by Biscayne Bay. The area at issue in this proceeding is located in an area of the City generally referred to as "North Shore." North Shore is heavily urbanized, as is the City generally. Within North Shore are located North Shore Open Space Park, North Shore Park, Altos Del Mar Historic Preservation District, and the Harding Townsite/South Altos Del Mar Historic District. North Shore Open Space Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 79th Street, and south of 87th Street. North Shore Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 72nd Street and south of 73rd Street. The Altos Del Mar Historic Preservation District (hereinafter referred to as "Altos Del Mar") is an area of the City that was designated an historic district in January 1987. Altos Del Mar consists of the area bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 79th Street, and on the south by 77th Street. The Erosion Control Line is a line that runs generally north-south along the eastern boundary of the City and the Atlantic Ocean. The Erosion Control Line marks the western boundary of the area of the shoreline in which efforts to stop or slow erosion of the beaches have been directed. The Harding Townsite/South Altos Del Mar Historic District (hereinafter referred to as "Harding Townsite") was designated an historic district in October 1996. Harding Townsite is bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 77th Street, and on the south by 73rd Street. The City's Comprehensive Plan. The City adopted the City of Miami Beach Year 2000 Comprehensive Plan (hereinafter referred to as the "Plan"), on September 7, 1989. The Plan was found to be "in compliance" as defined in the Act in December 1992. Part II of the Plan establishes goals, policies, and objectives of the Future Land Use Element. Objective 1, Policy of the Future Land Use Element of the Plan establishes, in relevant part, the following land-use categories, land-use intensities, and land-use densities: Recreation and Open Space, including Waterways, or "ROS," which is described as: as: Purpose: To provide development opportunities for existing and new recreation and open space facilities, including waterways. Uses which may be Permitted: Recreation and open space facilities, including waterways. Single Family Residential, or "RS," which is described Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and new single family residential development. Uses which may be Permitted: Single family detached dwellings. Density Limits: 7 residential units per gross acre. Parking, or "P," which is described as: Purpose: To provide development opportunities for existing and new parking facilities. Uses which may be Permitted: Parking facilities and commercial uses when located on frontage opposite a land use category that permits commercial use. Public Facility, or "PF," which is described as: Purpose: To provide development opportunities for existing and new government uses including convention center facilities. Uses which may be Permitted: Government uses and convention facilities. Low Density Multi Family Residential, or "RM-1," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new low density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings and multiple family dwellings. Base Density Limits: 34 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 90 dwelling units per gross acre, inclusive of base density. Medium Density Multi Family Residential, or "RM-2," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new medium density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings, multiple family dwellings, apartment hotels and hotels. Other uses which may be permitted are adult congregate living facilities, day care facilities, nursing homes, religious institutions, private institutions, public institutions, schools, commercial parking lots and garages and non-commercial parking lots and garages. Base Density Limits: 56 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 136 dwelling units per gross acre, inclusive of base density. The Plan contains all of the elements required by the Act, including a Future Land Use Element, a Recreation and Open Space Element, and a Conservation/Coastal Zone Management Element. The Plan also contains a Future Land Use Map. Adoption and Review of the Plan Amendments. On or about January 21, 1994, the City transmitted amendments to its Plan to the Department for review. The amendments were adopted generally to "down-plan" the City and to encourage the redevelopment of the Altos Del Mar neighborhood. In an effort to "down-plan" the City, the amendments provided for a reduction of the overall amount of residential development allowed in the City pursuant to the Plan. In an effort to promote redevelopment of the Altos Del Mar neighborhood, the amendments replaced the dual single-family residential and recreation and open space land-use classifications of property in Altos Del Mar and classified the area as single-family residential; and reclassified under- utilized parking areas and medium density multi-family properties as low density multi-family. The Department designated the amendments as Amendment 94-1, reviewed the amendments, and issued its Objections, Recommendations, and Comments Report on April 1, 1994. On June 2, 1994, the City enacted Ordinance Number 94-2928 adopting the amendments (hereinafter referred to as the "Proposed Amendments"). The Proposed Amendments were submitted to the Department for review under the Act. The Department reviewed the Proposed Amendments and found that they were not "in compliance." The Department issued a Notice of Intent to find the Proposed Amendments not in compliance on July 28, 1994. The Department filed a Petition for Formal Administrative Hearing challenging the Proposed Amendments with the Division of Administrative Hearings on August 16, 1994. Following negotiations between the City and the Department, a Compliance Agreement was entered into on September 19, 1996. Pursuant to the Compliance Agreement, the City adopted remedial amendments. On December 5, 1996, the Department published a Cumulative Notice of Intent finding the amendments, as modified by the remedial amendments (hereinafter referred to as the "Adopted Amendments"), "in compliance" with the Act. Petitioners' Challenge. Petitioners filed a Petition for Administrative Hearing with the Department challenging the determination that the Adopted Amendments were "in compliance." On January 16, 1997, the Department dismissed the petition by Order Dismissing Petition with Leave to Amend. Petitioners filed an Amended Petition with the Department on February 4, 1997. The Amended Petition was filed by the Department with the Division of Administrative Hearings on February 14, 1997. On June 9, 1997, Petitioners moved to further amend the Amended Petition. Petitioners' request was granted. The Challenged Amendments. There are three changes to the Plan in the Adopted Amendments that have been challenged in these proceedings. Those changes involve modifications to the Future Land Use Map (hereinafter referred to as the "FLUM"), and textual changes pertaining to the geographic areas at issue in this proceeding. The relevant changes to the FLUM were designated FLUM Changes 14, 16a, 16b, and 16c (the areas which are the subject of changes 14, 16a, 16b, and 16c are hereinafter referred to respectively as "Area 14," "Area 16a," "Area 16b," and "Area 16c"; the areas are collectively referred to as the "Subject Areas"). Petitioners have challenged Changes 14, 16a, and 16b (hereinafter referred to as the "Challenged Amendments"). The Subject Areas are located within Altos Del Mar and/or the Harding Townsite. With regard to Change 14, Petitioners have alleged generally that the amendment is not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning future land use, conservation, coastal management, and recreation and open space elements. Petitioners have argued generally that Area 14 may only be used for recreation and open space because the area is in effect a park or open space; there is a dune located on the property; the use of the property for single-family residential will negatively impact wildlife and plant life; and the use of the property for single-family residential will negatively impact historic resources. With regard to Changes 16a and 16b, Petitioners have alleged generally that the amendments are not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning the coastal management, recreation and open space, and housing elements. Petitioners have argued generally that Changes 16a and 16b will negatively impact public access to beaches and inappropriately reduce public parking. In Petitioners' proposed recommended order, Petitioners attempted to raise issues which were not alleged in their Second Amended Petition. Petitioners contended that the Department's original notice that the Proposed Amendments were not in compliance was defective; that the Adopted Amendments were not necessary to meet projected demands for residential land uses in the City; and that the Adopted Amendments were not consistent with coastal planning objectives. These issues were not properly raised is this case. The City and Department had no opportunity to present evidence to address these issues because Petitioners had not raised the issues until they filed their proposed order. Nor, to the extent these issues may have been properly raised before this forum, did the evidence support Petitioners' allegations. Area 14 and FLUM Change 14. Area 14 is bounded on the south by 76th Street, on the north by 79th Street, on the west by Collins Avenue, and on the east by the Atlantic Ocean. The Robbins Property is located adjacent to Area 14, on the west side of Collins Avenue between 76th Street and 79th Street. Area 14 is bounded on the north by North Shore Open Space Park. Area 14 consists of Blocks 5, 6, 7, 10, 11, and 12. Area 14 is located in Altos Del Mar or Harding Townsite. There are 36 individual platted lots in Area 14. Twenty-two of the lots are currently owned by the State of Florida. The rest are in private ownership. Area 14 consists of approximately 11 total acres. Area 14's designated land-use classification on the FLUM prior to the adoption of the Challenged Amendments was "Recreation and Open Space" and "Single Family Residential." This dual land-use classification is identified on the FLUM as "ROS/RS." Pursuant to the dual land-use classification of Area 14, property located within Area 14 could be permitted for single-family dwellings or it could be used for recreation and open space. Petitioners' have alleged that FLUM Change 14 "change[s] the designation of [Area 14] from recreational open space to single family residential." This allegation is not supported by the evidence in this case. FLUM Change 14 eliminates the dual land-use classification of Area 14. Pursuant to FLUM Change 14, Area 14 is designated for use as Single Family Residential only. The dual land-use classification was eliminated to encourage reinvestment of single-family residential development in the area. I. Current Use of Area 14. Area 14 currently includes vacant lots, lots with boarded-up structures, and several single-family residences. There are more vacant and unused lots than there are lots with single-family residences. The 22 lots owned by the State are not all contiguous. The largest area of contiguous state-owned lots is located between 76th and 77th Streets. This area is located adjacent to the Robbins Property. Eleven of the twelve lots between 76th and 77th Streets are owned by the State. There is one privately-owned lot located just north of 76th Street. The State also owns two lots just north of 77th Street. The lots in Area 14 north of 77th Street are primarily owned in a checker-board fashion. Some of the lots north of 77th Street have existing single-family residences located on them. The rest of the lots are vacant or have boarded-up buildings located on them. Because of the proximity of Area 14 to the Atlantic Ocean and the accessibility of the beach from the area, the public uses the open areas of Area 14 for recreational purposes from time to time. The area is generally open, there is grass, pine trees, and sea grapes on some lots, and there is a public shower located at the east end of 77th Street. The trees and other vegetation offer shaded areas. There is public parking available in the area on side streets off of Collins Avenue and a public parking lot just to the south of 76th Street. There are several access points to the beach along Area 14, including an access point at the east end of 77th Street. There is a rock fence at the end of 77th Street. The rock fence is typical of fences that were placed at the ends of streets in the City that led to the beach. The fences were erected to prevent vehicular traffic entering the beach while allowing pedestrian access. The public has used the open areas of Area 14 for some time for picnicking, walking their pets, playing games, barbecuing, and other outside recreational activities. The evidence failed to prove the extent of this use. The evidence presented by Petitioners was not gathered in any organized fashion and was unconvincing. The 22 lots owned by the State in Area 14 were originally acquired with the intent of creating a park at some time in the future. The State had intended to acquire all of Area 14 for this purpose. The lots were acquired by the State as part of the Save Our Coast Park Expansion Program. When the State's efforts to acquire all of Area 14 failed, the State decided not to acquire any more lands. The lots the State had acquired in Area 14 were designated as "excess lands." The State intends to sell the lots it owns in Area 14. In 1994, after the State abandoned its plan to acquire all of Area 14, the City and State, through the Board of Trustees of the Internal Improvement Fund, entered into a lease (hereinafter referred to as the "Lease"). Pursuant to the Lease, the State leased North Shore Open Space Park and the publicly- owned lots in Area 14 to the City. Although the period of the Lease was twenty-five years, the Lease provided that it was entered into "upon an interim basis" while negotiations concerning transfer of fee title of the property to the City were ongoing. During this "interim" period, the Lease provides that the property is to be used exclusively for recreational purposes. The City agreed to manage the property as a public park. The City does manage North Shore Open Space Park as a public park. Despite any requirement to the contrary under the Lease, the City has not created, or operated, a park in Area 14. Neither the City or the State actually created a park out of any part of Area 14. Nor has the City or State used any part of Area 14 as a park. Area 14 has not been included by the City in its Recreational and Open Space inventory. Consequently, Area 14 and any use by the public was not considered by the Department in the determination that the City's Recreation and Open Space Element of the Plan is in compliance. Petitioners' Assertion that Area 14 Must be Used as a Park. Petitioners attempted to prove that Area 14 must be used for recreational purposes or as open space. Petitioners based this argument on their assertion that the character of Area 14 is suitable for, and has historically been used as, a park or open space; the State and City planned and managed Area 14 as a park; the data and analysis relied upon by the City in adopting FLUM Change 14 contains an alleged incorrect statement concerning the current use of the area; and there is a need in the City for additional recreation and open space property. Petitioners have proposed a relatively large number of findings of fact to support this position. While those findings of fact are generally accurate when considered standing alone, they are not relevant to the determination of whether the Challenged Amendments are in compliance and, therefore, have not been included in this Recommended Order. Petitioners failed to prove that Area 14 is used as a "park." Even if they had, nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area can be developed only in a manner that is consistent with its historical use. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in the manner in which the property was used informally by the public. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in a manner that is consistent with a use which the State or local government may have considered appropriate for the area at some time in the past. Finally, there are no provisions in the Plan, the Act, or the rules of the Department that require that a comprehensive plan be consistent with the terms of a lease agreement, especially where the lease agreement was expressly entered into on an interim basis. Alleged Error in the Data and Analysis Concerning the Use of Area 14. The data and analysis in support of the Adopted Amendments indicates that "[t]he area encompassed by Future Land Use Map 14 is NOT now used for recreational purposes and it is not counted in the recreation facility inventory in the Recreation and Open Space Element." Petitioners cited part of the foregoing sentence from the data and analysis, and argued that the statement is not accurate. The evidence failed to support Petitioners' position. Petitioners' citation of part of the sentence quoted in finding of fact 66 fails to consider all of the data and analysis considered by the City in adopting the Challenged Amendments. Petitioners' argument is also based upon the unsupported conclusion that the common use of parts of Area 14 by the public constitutes "recreational purposes" as those terms are used in the data and analysis. When read in context, it is clear that the terms are being used in a technical, land-use planning sense. In their technical, land-use planning sense, the sentence is accurate. The evidence failed to prove that the data and analysis relied upon by the City in adopting the Challenged Amendments are not professionally reliable or that the data and analysis do not support the Challenged Amendments. The Need for Additional Recreation and Open Space. Petitioners have asserted generally that the amendments relating to Area 14 are not in compliance because of the need for additional recreation and open space in the City. Petitioners failed to prove this assertion. The evidence failed to prove that the Challenged Amendments relating to Area 14 somehow will cause a deficit in the Recreation and Open Space inventory of the City or that such a deficit already exists. Further, had Petitioners been able to prove that there is a need for additional parks in the City, such proof would only support a finding that the Recreation and Open Space Element of the Plan is inadequate. It would not, however, necessarily follow that the City would be required to correct the inadequacy through the use of Area 14 as a park. Finally, Petitioners have failed to prove how FLUM Change 14, which does not authorize any use of Area 14 that is not already authorized without the change, will have the suggested effect on the City's recreation and open space inventory. The National Recreation and Park Association's minimum level of service standard for recreation and open space is ten acres per one thousand permanent and seasonal residents. The City has adopted this level of service for recreation and open space in the City. The City meets this standard without consideration of Area 14 or any part thereof. Data and analysis, unrefuted by credible evidence from Petitioners, indicates that FLUM Change 14 will not adversely effect the level of service standard for recreation facilities: [R]emoval of the ROS designation will not per se reduce the recreation level of service. The re designation [sic] of site to Single Family Residential will create a small additional residential development potential, thus putting more demand on existing recreation facilities. However, the additional demand will not result in the city failing to meet its recreation level of service since it is an inconsequential amount and since it will be more than balanced by the net reduction in permitted residential development which will result from the cumulative effect of all of the proposed Future Land Use Map changes. The recreation level of service is established by Policy 2.1 of the Recreation and Open Space Element at ten (10) acres of recreation and open space per one thousand permanent and seasonal residents with 20 percent of seasonal residents counted. The Recreation space inventory shown in Table VIII-1 of the Recreation and Open Space element will still have the 1,156 acres shown therein after the 94-1 Future Land Use Map change (including change number 14) is effectuated. The 2002 population projection reported in Tables I-2 and I-3 of this element will remain at 98,965 permanent and 70,000 seasonal because it is based on trend lines not individual development sites. The 98,965 permanent population plus 20 percent of the 70,000 seasonal population produces a population of 112,965 for purposes of the recreation level of service standard. Then, 1,156 acres of existing recreation land/(112,965 people/1,000 people) equals a level of service of 10,233 acres per 1,000 population. The evidence failed to prove that FLUM Change 14 will adversely impact the City's ability to meet its adopted recreational level of service. The City has made commitments to upgrade existing recreational facilities, including improvements to North Shore Open Space Park. Included in the City's inventory of Recreational and Open Space property is La Gorce Country Club. La Gorce Country Club makes up 144.28 acres of the total 1,156 acres of recreational property relied upon by the City to meet its level of service standard. The La Gorce Country Club's inclusion in the Recreational and Open Space inventory was reviewed and approved in 1992. It played no part in the Challenged Amendments. Petitioners attempted to prove that the La Gorce Country Club should not be included in the Recreational and Open Space inventory. The evidence in this case failed to prove Petitioners' assertion. The La Gorce Country Club is a private country club. It is, however, available to the public for some recreational activities. It is, therefore, acceptable to include it as recreational property under the Department's rules. Additionally, even if the evidence had proved that La Gorce Country Club should not be considered in determining whether the City's level of service standard has been met, there is no requirement in the Act, the Department's rules, or the Plan that Area 14 must be included to make up the resulting deficit. Even if there were such a requirement, the inclusion of the 11 acres of Area 14 in substitution for the 144.28 acres of the La Gorce Country Club would not correct the deficit. Petitioners also suggested that Area 14 is qualitatively better recreational property than La Gorce County Club. This argument, and the facts offered to support it, are not relevant. The evidence failed to prove that the City has not adopted an adequate level of service in its Recreation and Open Space Element, or that the City is not meeting its level of service. The evidence also failed to prove that FLUM Change 14 is inconsistent with City's Recreation and Open Space Element Goal: Develop and Maintain a Comprehensive System of Parks and Recreational open Spaces to Meet the Needs of the Existing and Future Population by Maximizing the Potential Benefits of Existing Facilities and Open Space While Encouraging the Preservation and Enhancement of the Natural Environment. In light of the fact that Area 14 has never been treated as a park by the City, the evidence failed to prove that the City is not meeting its Recreation and Open Space Element Goal without regard to the land-use classification of Area 14. Archaeology of Area 14. Prior to March of 1927 there was a United States Federal Life Saving Station, known as the "Biscayne House of Refuge," located somewhere in the vicinity of Area 14. The Biscayne House of Refuge was one of six similar buildings located on the east coast of Florida. The buildings were used to provide refuge for shipwrecked sailors. The original Houses of Refuge were authorized by President Ulysses S. Grant in the late 1800's. The Biscayne House of Refuge was stocked with provisions and was managed by a keeper. The keeper's duties included, among others, burying bodies that washed up along the coast. Several of the keeper's children were also buried somewhere near the Biscayne House of Refuge. The evidence failed to prove, however, where any bodies are buried. It is believed that the Biscayne House of Refuge was destroyed following damage to the structure during a hurricane in March of 1927. The exact location of the Biscayne House of Refuge has not been determined. The best information available indicates it was located east of Collins Avenue, and either between 73rd and 77th Streets, or between 72nd and 76th Streets. There is also some information to suggest that the Biscayne House of Refuge was located on a site that is already developed for the City's library. The Florida Department of State, Division of Historical Resources, reported that its Historical Preservation Review of the Adopted Amendments had determined that the 22 proposed changes to the City's FLUM "should have no adverse effects on the city's historic resources since the areas appear to contain no sites listed on the Florida Site Files or the national Register of Historic Places." The evidence concerning the location of the Biscayne House of Refuge presented by Petitioners was speculative, at best. The evidence failed to prove that the Challenged Amendments will have any impact on the Biscayne House of Refuge or any significant archaeological resources. The evidence also failed to prove that FLUM Change 14 is inconsistent with the historic designations of Altos Del Mar or Harding Townsite. Natural Dunes. In its original state, the beaches of the City may have had extensive barrier reef dune systems along the Atlantic Ocean. To the extent that such systems existed, however, they have been radically altered by development and the impact of tides and winds on the dunes. The natural dune system of the City today has essentially been destroyed or so altered as to no longer be considered a significant dune system. The protection normally afforded by a dune system is now provided, not by a natural dune system, but by the man-made dunes east of the Erosion Control Line. Petitioners attempted to prove that there is an existing dune system in Area 14. The evidence failed to support Petitioners' contention. The evidence proved that, at best, there may be remnants of dunes along the eastern boundary of Area 14. One such feature is approximately four feet to four and a half feet in height, twenty feet wide, and a hundred to one hundred fifty feet in length. The evidence failed to prove, however, whether the piles of sand that do exist along Area 14 should be considered as dunes. The character of the coastline of the City, including Area 14, has been drastically altered by hurricanes, including the 1927 hurricane that destroyed the Biscayne House of Refuge. Erosion has eliminated much of the City's shoreline, in some cases eroding the beach to bulk heads. The construction of the dunes east of the Erosion Control Line also may have impacted any existing dune system in Area 14. The construction of the dunes involved a significant amount of grading. The evidence failed to prove what impact, if any, construction of the dunes had in forming the piles of sand that now exist along Area 14. The evidence also proved that, to the extent that any remnants of natural dunes may exist near Area 14, their function as a dune system has been substantially, if not completely, replaced by the man-made dune system along the Erosion Control Line. The Erosion Control Line was established as part of a beach renourishment project of the United States Army Corps of Engineers. The project lasted from 1975 through 1981 and cost approximately $60 million. The efforts of the United State Army Corps of Engineers included the expansion of the beach and the construction of a dune system that runs the entire length of the City's Atlantic Ocean shoreline. The constructed dunes have also been vegetated through a separate grant of approximately $4.5 million. The Erosion Control Line is owned by the State of Florida, managed by Metro-Dade County, and protected by the City. The evidence also failed to prove that, if a dune system did exist along Area 14, the Challenged Amendments allow any different impact on the dunes than was already allowed under the Plan. The Challenged Amendments do not authorize the development of Area 14 in a manner that was not allowed without the Adopted Amendments. Petitioners relied upon a United States Department of Agriculture, Soil Conservation Service, Soil Survey for Dade County prepared in 1957; a 1914 historical map of the City; and aerial photographs and contour maps prepared in 1975 by the United States Army Corps of Engineers to support their argument that significant dunes exist in Area 14. They attempted to bring these documents up-to-date largely through recent visual observations of the area. This evidence was not persuasive. The evidence proved that Area 14 is typical of the City's shoreline before extensive development. The evidence also proved that the remaining piles of sand may very well be a remnant of a dune system that existed at some time in the past. What the evidence failed to prove, however, is that the piles of sand are in fact part of a dune system that once existed in the area or that, if they are in fact part of a former dune system, the piles of sand should still be considered to be functioning as a dune system. Petitioners also have argued that the City mischaracterized the type of soils in Area 14 in the data and analysis as "fill." Petitioners argue that, had the City properly characterized the soils in Area 14, the City would have known that there was a natural dune. The evidence failed to support this argument. What the City actually indicated in the data and analysis is that "[t]he entire island is essentially 'madeland' except for the sand along the ocean beach." Petitioners' argument concerning this statement is not persuasive. First, the statement relied upon by Petitioners recognizes that there are areas that are not "made-land." What the data "along the ocean beach" means could be clearer or more precise, but the statement does not support a finding that the City simply dismissed the possibility that a dune may exist along Area 14. Additionally, Petitioners have simply taken a statement intended to apply to the entire City, and attempted to apply it to an 11-acre area. Petitioners have also argued that the City mischaracterized the nature of soils by stating in the data and analysis that "[t]he entire island consists of fill (shell and muck) together with sand." Petitioners argue that this statement is incorrect and that, if the City had properly taken into account the nature of the soils in Area 14, the City would have recognized that there were dunes. Again, Petitioners have taken the statement out of context. Petitioners have only considered the use of the term "fill," ignoring the fact that the statement also specifically states that the City is an "island" and that the fill exists "together with sand." Finally, the evidence failed to prove that provisions of the Plan and the City's Land Development Regulations dealing specifically with the protection of dunes are not adequate to protect any dunes that may exist in Area 14: Objective 1, Policy 1.4 of the Future Land Use Element provides for compatibility of uses of property adjacent to dunes and provides for the conservation of beach lands designated on the FLUM and the Conservation Element; Objective 1, Policy 1.2 of the Future Land Use Element designates dune locations on the Atlantic Coast as Conservation Protected "C" and permits only open space uses of these areas. It also provides for protection of such areas from the encroachment of development; Objective 1 of the Conservation/Coastal Zone Management Element provides that there will be "zero man-made structures which adversely impact beach or dune system(s)"; Objective 1, Policy 1.2 of the Conservation/Coastal Zone Management Element requires vegetation of, and elevated footpaths over, dunes to minimize pedestrian impacts; Objective 1, Policy 1.4, and Objective 10, Policy 10.1 of the Conservation/Coastal Zone Management Element discourage non-water oriented activities and development on beach-front parks, new beach areas, and dunes by designating the beach as a Conservation Protected Area on the FLUM; Objective 3, Policy 3.4 of the Recreation and Open Space Element provides that the City will inform Metro-Dade County and the United States Army Corps of Engineers when maintenance or renourishment of the beach is necessary; and The City's Land Development Regulations provide protection through the Dune Overlay Regulations. The evidence failed to prove that the alleged dune in Area 14 has "archeological significance." Impact on Wildlife and Vegetative Communities. The evidence presented by Petitioners concerning the use of Area 14 by birds and vegetative communities was anecdotal and unpersuasive. Practically the entire length of the City's boundary with the Atlantic Ocean is used for nesting by the Atlantic Loggerhead Turtle, Leatherback Turtles, and Green Turtles. All are threatened or endangered species. Nesting of turtles in the immediate vicinity of Area 14 has been moderate to low. Greater nesting activity takes place along the more urbanized South Beach area. Coastal development has contributed to the endangered status of sea turtles. A number of factors, some related to development, may influence whether a turtle will nest in an area, including the amount of artificial light and noise, how hard the sand is, and the presence of people. These factors may cause turtles to abandon attempts to nest after coming ashore. Artificial light may also disorient hatchlings, causing them to head away from the ocean. Despite the possible impact of artificial light on turtle nesting and hatchlings, turtles continue to successfully nest in developed areas, including the highly developed South Beach area. Data and analysis relied upon by the City in support of the Challenged Amendments identified the status, habitat, and reasons for concern for turtles. Turtles usually nest within 50 feet of the ocean's edge. Therefore, the evidence failed to prove that it is likely that turtles will enter the portion of Area 14 where single- family structures may be built. Petitioners failed to prove that turtles are likely to cross over the dunes constructed east of the Erosion Control Line to reach Area 14. The City is involved in efforts to protect nesting turtles. The area which turtles use to nest in is owned by the State of Florida. Metro-Dade County manages the area for the State of Florida. Metro-Dade County maintains a staffed facility at 79th Street and Collins Avenue for the maintenance and protection of turtle nests. The City has also designated the area where turtles generally nest as a Conservation Protection Area. Protections are also provided for wildlife and vegetative communities which may exist west of the Erosion Control Line. Land Development Regulation 15, Dune Overlay Regulations, provides protection for wildlife and vegetative communities west of the Erosion Control Line and east of the edge of the pool deck, if one exists, or the old Miami Beach Bulkhead Line by limiting permanent structures other than pedestrian crossovers of dunes. The evidence in this case failed to prove that the modification of the land use classification of Area 14 will have a negative impact on wildlife, including turtles, or vegetation. First, Petitioners failed to prove that single-family use of Area 14 will in fact result in an adverse impact or that potential adverse impacts cannot be mitigated. Additionally, Petitioners failed to prove that FLUM Change 14 allows any use of Area 14 which is not already allowed. Prior to the adoption of FLUM Change 14, Area 14 could be used for recreational or open space and/or for single-family development. The evidence also failed to prove that the Plan's Conservation Element, Recreation and Open Space Element, or Coastal Management Element, are not in compliance as a result of Challenged Amendments relating to Area 14. Finally, the evidence failed to prove that the Challenged Amendments cause the City's inventory of existing coastal uses, habitat, vegetative communities, and wildlife to be inadequate. Neither the Act nor the Department's rules require a separate inventory map for each parcel of property impacted by a plan amendment. Required Use of Funds from the Sale of Lots in Area 14. Included in the data and analysis in support of the FLUM Change 14 is the following statement: "It is envisioned that proceeds from the sale of lots will be allocated to a fund for the enhancement of North Shore Open Space Park." In the Second Amended Petition, Petitioners challenged this statement as lacking commitment. Petitioners ignore the amendment to Policy 7.2 of the Conservation/Coastal Zone Management Element which provides that "the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline." This amendment imposes a mandatory requirement for the use of any funds that may be realized, and it has not been challenged by Petitioners. Whether there will in fact be any proceeds from the sale of the lots in Area 14 that are publicly owned is not relevant to the question of whether FLUM Change 14 is in compliance. There is no requirement in the Act or the rules of the Department that mandates that the proceeds from the sale of the lots be used for recreation purposes. Municipally-Owned Shoreline. Policy 7.2 of the Conservation/Coastal Zone Management Element of the Plan provides that the City will "not decrease the amount of municipally-owned shoreline available for public use" except under certain specified circumstances. Petitioners have asserted that FLUM Change 14 is inconsistent with this provision because the Area 14 property owned by the State is "essentially 'municipally owned' land." Petitioners argument is rejected. First, Petitioners failed to raise this argument in the Second Amended Petition. Secondly, even if the argument had been properly raised, the evidence failed to prove that any of Area 14 is "municipally- owned." In fact, none of the property in Area 14 is owned by the City. Finally, Policy 7.2 of the Conservation/Coastal Zone Management Element was amended to add the following exception to the prohibition against the City decreasing the amount of municipally-owned shoreline: 2) where municipal or other public acquisition is incomplete and there is not possibility for complete public acquisition of a usable portion of shoreline, or 3) in order to upgrade other public shoreline sites and facilities. Petitioners have not challenged the newly adopted exceptions to Policy 7.2's prohibition against decreasing municipally-owned shoreline. Petitioners have also failed to prove that the exceptions do not apply in this case. More precisely, Petitioners have failed to prove that, should the City acquire ownership of any of the State-owned Area 14 shoreline, that the exceptions will not apply. 7.2: The City also added the following language to Policy The development of the Altos del Mar area for single family residential use rather than for Recreation and Open Space as designated on the previous Future Land Use Map is specifically identified hereby as conforming to this policy (Policy 7.2) subject to the following conditions: the sites now owned by state agencies are sold for private single family residential development in a coordinated manner based on an overall neighborhood plan and a private development agreement that enhances the quality of life for those existing privately owned residences which are interspersed throughout the publicly owned sites; and 2) the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline. Petitioners did not challenge the provision quoted in Finding of Fact 126. Nor did Petitioners prove that the provision will not apply. Areas 16a and 16b, and the Changes Thereto. Area 16a consists of approximately 11 acres. Area 16b consists of approximately 2 acres. Areas 16a and 16b are bounded on the south by 79th Street, on the north by 87th Street, and on the east by Collins Avenue. Area 16b is located between 81st and 82nd Streets. To the east of Collins Avenue and Areas 16a and 16b is the North Shore Open Space Park. Area 16a consists of blocks 12 through 17 and 19 through 20. Area 16b consists of block 18. Areas 16a and 16b are part of Altos Del Mar. Blocks 12 and 18 are owned by the City. The remaining blocks are owned by the State. Located to the west of Areas 16a and 16b is Area 16c. Although FLUM Change 16c has not been challenged, the FLUM changes to Areas 16a, 16b, and 16c are related. The designated land use of Area 16a on the FLUM prior to the adoption of the Challenged Amendments was "Parking." This designation is identified on the FLUM as "P." The designated land use of Area 16b prior to the adoption of the Challenged Amendments was "Public Facility." This designation is referred to on the FLUM as "PF." The designated land use of Area 16c prior to the adoption of the Challenged Amendments was "Medium Density Multi Family Residential." This designation is identified on the FLUM as "RM-2." FLUM Changes 16a and 16b changes the current designations of Areas 16a and 16b to "Low Density Multi Family Residential." This designation is referred to on the FLUM as "RM-1." FLUM Change 16c changes the current designation of Area 16c to "Low Density Multi Family Residential." The modification of Area 16 to Low Density Multi Family Residential classified land is part of the City's overall plan to "Down Plan" the City. The Adopted Amendments include several FLUM changes which, when considered together, result in a net reduction in the allowable residential densities in the City. These modifications were intended to reduce the intensity of development allowed under the Plan in the City, help the City to meet its level of service standards for public facilities and services, and maintain the character of the City. FLUM Changes 16a, 16b, and 16c are part of that overall effort. Current Use of Areas 16a and 16b. Areas 16a and 16b are currently used as public parking lots. The parking lots are sparsely used, however. A fee of twenty-five cents per fifteen minutes is charged for parking in the lots. The State has declared the lots that it owns as excess lands. The lots are to be sold. The parking lots are used for access to the North Shore Open Space Park, a/k/a, the North Shore State Recreational Area (hereinafter referred to as the "Park"). The Park consists of approximately thirty-seven acres. The Park is surrounded by a fence. Access to the Park is through an entrance gate. Availability of Parking in the City and Public Beach Access. The data and analysis utilized by the City in support of the Adopted Amendments indicates that there are "numerous access points to the ocean." The City recognizes, however, that the "principal constraint [on access] is not the number of access points but the parking to serve them as well as nearby commercial and residential uses." The impact of FLUM Changes 16a and 16b will eliminate the parking lots and the parking spaces now available at those lots. This will result in a loss of approximately 270 paved and metered parking spaces, and other potential spaces that are not now used for parking on some of the lots. There will also be an increase in residential use of Area 16, which will require parking. Data and analysis in support of FLUM Changes 16a and 16b provides the following committment: These two changes contain a total of eight blocks devoted to surface parking, two owned by the City of Miami Beach and six owned by the State of Florida. The parking is sparsely used even though it is available for the general public, including visitors to North Shore Open Space Park. The Department of Environmental Protection, Division of State land has determined that the state-owned blocks should be sold to Miami Beach which will make them available for a combination of public parking and private residential development. These uses may be accommodated by placing parking at grade on some or all of the blocks and constructing residential units in air rights above or they may be accommodated by placing public parking structures on one or more of the blocks of the blocks and developing the others for residential use. To the extent necessary, the public parking will be sized to accommodate beach access via North Shore Open Space Park and/or other functions which might be appropriate. . . . Policy 3.1 of the Conservation/Coastal Zone Management Element of the Plan provides following: Those public access areas including street ends, municipal parking facilities and municipal parks along coastal waters will be maintained (See Figures VII-2 and VII-5 in the Recreation and Open Space Element) or redesigned to provide greater public access to Biscayne Bay and the Atlantic Ocean beach area regardless of the land use designation of those areas. An example of the type of redesign envisioned is that planned for the parking lost on blocks located to the west of the North Shore Open Space Park. It is envisioned that there blocks will be redeveloped with public access beach parking at grade level and residential in air rights above and/or with parking decks on one or more blocks and with residential on the other blocks. While the specific manner in which the parking spaces now available in Areas 16a and 16b will be replaced are not established, Policy 3.1 specifically requires that all municipal parking "be maintained." The Policy then provides an example of when existing parking will "be maintained" and that example is the modification of Areas 16a and 16b. This policy is sufficient to prevent the elimination of parking that Petitioners argue will occur as a result of FLUM Changes 16a and 16b. The evidence failed to prove that access to beaches or the Park will be reduced as a result of FLUM Changes 16a or 16b. The evidence also failed to prove that FLUM Changes 16a and 16b are dependent upon use of the proceeds from the sale of land in these areas to enhance the Park. See findings of fact 119 through 121.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding the Adopted Amendments in compliance and dismissing the Second Amended Petition. DONE AND ENTERED this 30th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1997. COPIES FURNISHED: Stephen T. Maher, Esquire Stephen T. Maher, P.A. 201 South Biscayne Boulevard Suite 1500 Miami, Florida 33131 Richard Grosso, Esquire Post Office Box 19630 Plantation, Florida 32318 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Max T. Holtzman, Assistant City Attorney City of Miami Beach Office of the City Attorney 1700 Convention Center Drive Fourth Floor Miami Beach, Florida 33139 Earl G. Gallop, Esquire Teresa J. Urda, Esquire Earl G. Gallop and Associates, P.A. Post Office Box 330090 Coconut Grove, Florida 33233-0090 The Honorable Seymour Gelber Mayor, City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, General Counsel Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether 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 Whether Amendment 99-1-NOI-5017-(A)-(I), Ordinance Number 509, to the Town of Juno Beach's (Town) Comprehensive Plan (Comprehensive Plan) is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and as alleged in the Petition for Formal Administrative Hearing.
Findings Of Fact Patterson, Bisbee, and McLeod Petitioners, Dr. Patricia M. Patterson and James M. Bisbee, are husband and wife and have resided at 431 Olympus Drive, Town of Juno Beach, Florida, since February, 1999. Dr. Patterson is a Professor of Public Administration at the Florida Atlantic University. Prior to occupying this residence, Dr. Patterson investigated the neighborhood and wanted to reside in an ungated, single-family neighborhood. Dr. Patterson describes her neighborhood as the Ridge Area, which has a southern border of Olympus Drive or south to a new development, a western border of U.S. Highway 1 (U.S. 1), an eastern border of Ocean Drive or A1A, and a northern boundary of the Ocean View Methodist Church (Church). The linear Ridge bisects this area, running approximately north and south. See (Town's Exhibit 1A); (Petitioners' Exhibits 9A & 9B). The top of the Ridge consists predominantly of single- family residences. There is a significant increase in elevation from the U.S. 1 corridor, east to the top of the Ridge. The Patterson/Bisbee residence is located on the top of the Ridge, toward the middle of Olympus Drive. Mr. McLeod resides in a single-family residence, east and adjacent to the Patterson/Bisbee residence. There is a rental, single-family home immediately adjacent to the west of the Patterson/Bisbee residence. The lots to the west of the rental property are vacant and include the corner property (+/-.34 acre) subject to the Plan Amendment, which is at the bottom of the hill on the U.S. 1 side. Shortly after they moved into their new residence, Dr. Patterson learned from a neighbor that a Key West-style home was proposed to be built on a portion of the vacant lot. Dr. Patterson attended the Town's Land Planning Agency (LPA) April 1999, meeting and learned that there was a proposal to change a portion of the use of the vacant lot to "commercial." She learned that an application was filed on behalf of the Town's former Mayor and a former Councilman. Dr. Patterson expressed concern that the area should remain residential and not be changed to commercial. Dr. Patterson appeared at the May 1999, Town Council meeting and objected to the proposal on behalf of herself and Mr. Bisbee. Dr. Patterson also furnished the members of the Town Council with a letter dated May 17, 1999, which set forth her objections to the proposed changes. Dr. Patterson also attended part of the November 1999 Town Council meeting. Mr. Baird appeared before the LPA and the Town Council on behalf of Mr. McLeod. Dr. Patterson objects to the proposed Plan Amendment to the Town's Comprehensive Plan based on the proposed "commercial" use of the site, rather than the architectural style of the building proposed by Celestial. The Petitioners are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes, and have standing to participate as parties in this proceeding. Celestial Celestial is a partnership, which owns property and conducts a business in the Town of Juno Beach, Florida. In or around March of 1999, Celestial, the applicant, submitted an Application for an amendment to the Town of Juno Beach Comprehensive Plan. Celestial proposed to re-designate a +/-.34 acre portion (the Property) of a +/-.57 acre parcel owned by Celestial. The entire +/-.57 acre parcel is vacant property at the northeast corner of U.S. 1 and Olympus Drive. Celestial sought to amend the Town's Future Land Use Map (FLUM) from the existing "low density residential" classification to the "commercial" classification for the western or corner portion, which is approximately +/-.34 acre. Celestial proposes to build a two (2)-story structure, with a professional office with residential units on the second level. The structure would be of an architectural style that will be compatible with surrounding, existing residential developments. Celestial has standing to participate as a party in this proceeding. Section 163.3184(1)(a), Florida Statutes. The Town The Town is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. On November 17, 1999, the Town adopted Ordinance Number 509 as an amendment to the Town's Comprehensive Plan. The Town also adopted Ordinance Number 510, which rezones the Property to "commercial office." The Department The Department is the state land planning agency, having authority to administer and enforce the Act. Among other responsibilities of the Department under the Act, the Department has the responsibility to review comprehensive plan amendments submitted by local governments and to determine if the plan amendments are in compliance with the Act. Section 163.3184(8), Florida Statutes. The Department reviewed the Plan Amendment and determined that it was "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes. The Town of Juno Beach, the Property, and the "Neighborhood" The Town is a small coastal community consisting of approximately 903 acres. The Town is located along the U.S. 1 corridor in Northern Palm Beach County, with municipalities, Jupiter and Tequesta to the north, and Palm Beach Gardens, North Palm Beach, Lake Park, and Riviera Beach to the south. The Town is bounded on the east by the Atlantic Ocean. The U.S. 1 corridor was the subject of a study, conducted by the Treasure Coast Regional Planning Council in 1999, which became known as "Seven Cities: Northern Palm Beach County US 1 Corridor Study." "[T]he 16-mile corridor is primarily a four-lane facility involving a mixed bag of landscape and lighting treatments, roadway designs, land uses, access management, and drainage infrastructure. Conditions in the corridor range from urban to rural, from healthy to blighted. Long range transportation plans have called for the corridor to be widened to six lanes over times, but the need for this widening has been called into question." "Juno Beach's segment of US 1 is a long expanse with a variety of situations, ranging from the semirural or naturalistic sea scrub landscape to suburban areas of shopping malls & hotels, to strategically located vacant parcels ideal for infill development. The planning team recommends that each of these areas have its own distinct planning approach for improvement over time." Several recommendations are made for the Town, including the provision of "[a] variety of uses" for the town center location at the intersection of Donald Ross Road and U.S. 1, north of the Property, "including adding 'in-town' residential options: apartments above shopfronts, rowhouses along intimate streets, live/work loft combinations and so on would complement Juno Beach other excellent housing offerings." The Study also generally encourages attractive building facades with doors and windows facing the street, as opposed to "[b]lank, windowless facades facing streets [which] are absolutely deadening to the scene for pedestrians and motorists alike." There seems to be some criticism of the existence of "halfhearted 'buffer' of landscaping between the highway and a 'sound wall,'" in the Town area, which does appear along U.S. 1, north and south of the Property. The lands contiguous to the +/-.34 acre Property, on the north and east, are designated "low density residential," on the Town's FLUM. The land to the immediate east of the subject property is vacant and owned by Celestial. See Finding of Fact 3. The land to the immediate north is developed with a single-family home. A four-lane divided highway (U.S. 1), with a 120-foot right-of-way, is located to the west of the vacant Property, and extends from the Town's southern boundary to its northern boundary. There are approximately 24,000 daily trips of traffic passing the Property on U.S. 1. The speed limit on U.S. 1 is fifty (50) miles-per-hour, a speed not consistent with low residential development. The southern and western borders of the Town consist of lands owned by Palm Beach County and maintained as conservation areas. The land immediately to the west of the Property from U.S. 1 is designated "commercial" on the Town's FLUM and is called Seminole Plaza (Seminole), a 65,400-square foot, fairly large-scale, shopping center with various commercial and professional tenants, located on approximately five (5) acres. The property west of U.S. 1, north and south of Seminole, is owned and maintained by Palm Beach County as conservation areas. A short distance south of Seminole are Florida Power and Light's Juno Beach Offices and West Offices, both of which are office developments approved for land totaling over sixty (60) acres. To the immediate south of the Property is Olympus Drive. The land across Olympus Drive, to the immediate south of the Property, is designated "low density residential," and is developed as a Planned Unit Development (P.U.D.) consisting of single-family homes. This is the "Seaside" area and is bounded on the north by a white picket fence, which does not provide access to "Seaside." Pedestrian and vehicle traffic enter the Seaside development from the east along Ocean Drive or A1A. The southeast corner of Olympus Drive and U.S. 1, which is directly across from the Property, is within Seaside. There is no residential development on the southeast corner. Rather, the corner is developed with a concrete cul-de-sac. This parcel is not eligible for residential development under the Town's zoning code. The Town presented a composite exhibit of photographs of various commercial and other non-residential uses which are interspersed in the vicinity of the Property. The photographs were overlaid onto an aerial photograph of the general area between Donald Ross Road to the north of the Property, and Juno Road, to the south of the Property. The Property is located approximately mid-point between these roads. This visual depiction of the area demonstrates the variety of the uses and structures, which have developed along this segment of the U.S. 1 corridor within the Town, as well as the impact of that highway upon the development in the vicinity of the Property. The developments, north and south of the Property, include office buildings, the Church, an automotive repair business (e.g. Goodyear), motels (e.g. Hampton Inn) and a golf course. For example, the two-story, 9,000 square foot Juno Beach Professional Office Building, is located four-tenths of a mile north of the Property, east and fronting U.S. 1, and between a duplex and a single-family house. (This house has a yellow retaining wall directly fronting U.S. 1.) The Church is directly east of the office building. There are several vacant lots south and east of U.S. 1, designated "low density residential," which are undeveloped. There is a vacant, two (2) acre, commercially-designated parcel, two-tenths of a mile to the south of the Property on the east side of U.S. 1. Compare with Findings of Fact 1-3. Amendment to the Town's Comprehensive Plan In April of 1999, Celestial filed a revised Application requesting an amendment to the Town's Comprehensive Plan, changing the FLUM classification of the Property from "low density residential" to "commercial." Among other things, Celestial advised that its Application was for a low-density project on the northeast corner of U.S. 1 and Olympus Drive. Celestial further stated that the proposed commercial (mix-use) land is compatible with the commercial uses adjacent to and across from U.S. 1 from the Property and that the residential component of the mixed-use proposal will be compatible with the residential uses to the north, east, and south of the Property. Celestial did not request a change to the Town's "commercial" FLUM designation. Several documents were attached to the Application including a vegetation survey with indicated that the Property had no environmental constraints which would prohibit its development. Other correspondence included with the Application indicate that all major utilities including telephone, electric, water, and sanitary sewer, would be provided. The described project also met the Traffic Performance Standards of Palm Beach County. Further, the Florida Department of Transportation concluded that the placing the drive on Olympus Drive would better serve the development for the convenience and safety of the proposed access. On April 19, 1999, the Town of Juno Beach Planning and Zoning Board considered the proposed Plan Amendment to the Town's Comprehensive Plan's FLUM. Mr. Peduto, Director of Planning and Zoning, reviewed the Application, coordinated the review by other governmental entities, prepared the staff report, and recommended approval of the Plan Amendment. The report describes the proposal and sets forth an analysis which included, in part, the following: The proposal meets the adequate facilities standards and is not in the Coastal High Hazard area, as defined by the Treasure Coast Regional Planning Council (TCRPC) and State of Florida. The proposed change is an appropriate classification for the subject property. The proposed project is an "infill" development, as opposed to "sprawl" development. Infill development is supported by the TCRPC Strategic Regional Policy Plan. Sprawl, which is typical through "Euclidean" planning, creates isolated uses through non-flexible zoning districts, and also through "single-use" structures. The opposite of this is more "neo-traditional" planning, which encourages multi-use structures and is more community oriented, creating more livable, healthy and sustainable communities and neighborhoods. This is why infill development becomes so important to revitalizing and recreating community in a town's neighborhoods. The Town of Juno Beach has expressed through historical efforts and its Comprehensive Plan (as well as its Zoning Code) that it envisions a sustainable community atmosphere. Mixed-use projects play an important role in this long term, committed effort. While remaining consistent with the Comprehensive Plan and Zoning Code, the subject property is an ideal location to further express this effort. The subject property is located along an "urban principal arterial" highway, within an older residential neighborhood. Just south of the subject property [across Olympus Drive] is an newer residential neighborhood [Seaside]. West of the subject property is a commercial plaza (Seminole Plaza) with various commercial uses, from office uses to restaurant, retail, service oriented, medical and private educational uses. Further east is a large public recreational area and the Juno Beach Town Center. In the general area there is an existing mixed use which functions as an important community/neighborhood element in this section of the town. As part of the revitalization process of this overall area of town, the proposed project and petition brings an element of balance between newer residential and older residential, introduces a mixed-use and creates an ideal "bridge" between the western commercial uses and eastern residential, community and recreational uses. The proposed project meets the standards set forth by the Goals, Objectives and Policies in the adopted Town of Juno Beach Comprehensive Development Plan. The report also indicated that "[t]he Comprehensive Plan directly encourages mixed-uses throughout the document," and cited to several Objectives and Policies. The report confirmed that utilities and service providers have sufficient capacity to serve the Property for a potential project within the proposed designation/classification; that there are no environmental concerns concerning the entire +/-.57 acre site including the Property (+/-.34 acre); that the existing level of service standards of the adjacent U.S. 1 will not be adversely impacted by the proposed change of land use; that water and wastewater facilities exist nearby the site and will be able to provide for appropriate services to the site; that solid waste removal services will also be provided; and that all specific drainage designs must be acceptable to the Town engineer upon submittal of any site plan. The report concluded that the Plan Amendment is consistent with the Town's Comprehensive Plan and, in part, that the proposed change is "an appropriate land use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " The Town's Planning and Zoning Board considered the Application. Numerous local residents, including Dr. Patterson and Attorney Thomas Baird representing Petitioner McLeod, opposed the Application. A motion to approve the Application to amend the Comprehensive Plan's FLUM failed with a 3 to 2 vote. Further, a motion to approve a request for a change in zoning from the existing designation of residential single-family to the designation of commercial office was not approved by a vote of 3 to 2. On or about May 12, 1999, Celestial submitted a "memorandum on proposed land use changes" to the Town, which provided a historical analysis of the development of the Town, including but not limited to changed circumstances around Olympus Drive and U.S. 1. The Town Council (Council) of the Town of Juno Beach met on May 26, 1999, to consider Ordinance Number 509 which provided the amendment vehicle to the Town's Comprehensive Plan requested by Celestial. This was the first reading and public hearing for this Ordinance. Several area residents and others were in attendance. The results were mixed with some residents speaking in favor and some against approval of Ordinance Number 509. After some discussion by the Council members, and responses from the Town planner and Celestial's representative, the Council approved Ordinance Number 509 on first reading by a vote of 4 to 1. The Council also discussed, on first reading and during a public hearing, Ordinance Number 510, which proposed to approve a rezoning request for the Property to "commercial office." Attorney Tom Baird, on behalf of Petitioner McLeod, opposed the rezoning request. Dr. Patterson also opposed the request. "Town Planner Peduto pointed out the property that was annexed into town with a residential zoning designation, surrounded on three sides by residential and rezoned to Commercial. This parcel is known as Dr. Hinman's Building, Juno Beach Professional Building. He also pointed out another parcel on U.S. 1 surrounded by residential that was given a commercial land use classification and commercial general zoning designation upon its recent annexation into the town." The minutes indicate that the Council was aware that the Planning and Zoning Board had recommended denial. The Council had before it the Town's Staff Report and Recommendation, which was previously presented to the Town's Planning and Zoning Board in substantially the same form. See, e.g., Finding of Fact 30. The Council unanimously approved Ordinance Number 510 on first reading. On or about August 5, 1999, the Town submitted numerous documents to the Department of Community Affairs, including but not limited to, the Town's Staff Report and Recommendation and proposed Ordinance Number 509. The Town requested no formal review. By letter dated September 3, 1999, the Florida Department of Transportation advised the Department that it did not recommend a formal review of the proposed amendment. By letter dated September 16, 1999, the Department of Environmental Protection offered no comments to the Department. The staff at the Treasure Coast Regional Planning Council (TCRPC) submitted a memorandum dated September 17, 1999, for the Council members. The TCRPC is required to review the Plan Amendment prior to formal adoption by the Town Council. The TCRPC stated, in part, in its evaluation: The Town indicates that the proposed amendment is consistent with the Town Comprehensive Plan. The proposed development represents infill. Mixed-use projects of the nature are intended to play an important role in the Town's efforts to create a sustainable community. The amendment is consistent with several objectives of the Town Comprehensive Plan and also with the SRPP which encourages infill development and multi-use structures. The Town indicates that the proposed development will bring a balance between newer and older residential areas and creates a good transition between commercial and residential uses. All urban services are available to the site, there are no level of service concerns, and an environmental survey indicates that there are no environmental concerns relating to development of the site. According to the TCRPC, the proposed Plan Amendment would not have adverse effects on significant regional resources or facilities. The TCRPC concluded that "[b]ased on the lack of extrajurisdictional impacts or effects on significant regional resources and facilities, [TCRPC] does not recommend that the amendment be formally reviewed." However, the [TCRPC] noted: According to the SRPP, a mix of uses on a single property is desirable. However, the first mixed-use development in an area which has previously been devoted entirely to residential use can create controversy and result in opposition from nearby property owners. According to the Town, this has been the case for the subject amendment. Some of this controversy can be avoided and property owner objections lessened by creating a very fine-grained plan. The Town's comprehensive plan contains only a single commercial FLUM category. Therefore, neighbors are understandably concerned about what the type of commercial use might occupy the subject property. During the preparation of its Evaluation and Appraisal Report, the Town should consider the preparation of a more fine-grained plan for those parts of town where the "richness" of the urban fabric is important to protect, preserve, and enhance. On September 17, 1999, the Department advised the Town of its determination that the proposed Plan Amendment should be formally reviewed for consistency. On October 26, 1999, the South Florida Water Management District advised the Department that the District had no water resources related comments regarding the Town's proposed Plan Amendment. No state, regional, or local governmental entity requested review of the Plan Amendment. On November 12, 1999, the Department advised the Town that the Department had no objection to the proposed Plan Amendment. This letter served as the Department's Objections, Recommendations, and Comments (ORC) report. On October 27, 1999, Celestial provided the Town with a Supplemental Memorandum regarding land use changes in the Town since 1990. On November 17, 1999, the Council met to consider Ordinance Numbers 509 and 510 for second reading and received a Staff Report and Recommendation, authored by Mr. Peduto, which contained similar data and analysis from the prior report. See, e.g., Finding of Fact 30. The Town's staff also prepared a report and recommendation regarding the rezoning request/petition, Ordinance Number 510. During the hearing held regarding Ordinance Number 509, the report and recommendation, with backup, and the file for both this hearing and from the previous approval hearing, were entered into the record. During the hearing, the Council was apprised, in part, that the Planning and Zoning Board had recommended denial, by a three-to-two vote, "based on traffic concerns." The minutes further reflect that "[t]he [t]own traffic consultant agrees to the traffic studies from the applicant and the County. He reviewed other areas in [t]own that similar re-zoning occurred located on a local collector, abutted by residential and located on a major thoroughfare." During the public hearing, attorney Baird, representing Petitioner McCloud, advised the Council that Ordinance Number 509 needed to be corrected in the second "WHEREAS" clause stating that the land planning agency had recommended that the Town not adopt the ordinance. "He said the primary reason (to not approve the ordinance) is that the land use classification was incompatible with the residential neighborhood." Several persons opposed the Ordinance, whereas others favored the Ordinance. The Council received numerous letters both for and against Ordinance Number 509. The Council also received petitions for and against the Ordinance. After discussing the issue, the Council approved Ordinance Number 509 by a vote of 4 to 1. The Council also considered Ordinance Number 510 and after considering information both for and against, the Council voted 5 to 0 to approve Ordinance Number 510. On November 23, 1999, the Town submitted the adopted Plan Amendment to the Department. On January 7, 2000, the Department completed its review of the adopted Plan Amendment, Ordinance Number 509, and "determined that it meets the requirements of Chapter 163, Part II, Florida Statutes (F.S.), for compliance, as defined in Subsection 163.3184(1)(b), F.S." Petitioners' Objections to the Plan Amendment Petitioners claim that the Plan Amendment, as applied to the Property, is inconsistent with and, therefore, does not further the "Goal," Objective 1, and Policy 1.3, of the FLUE of the Comprehensive Plan. Petitioners also claim that the Plan Amendment is inconsistent with and fails to comply with Rules 9J-5.005(2)(a) and 9J-5.006(4)(c), Florida Administrative Code, and Section 163.3177(6)(a), Florida Statutes. Petitioners' claim that the Town has approved the Plan Amendment, which approves a mixed-use, without any specific provision in the Comprehensive Plan for a mixed-use designation. Petitioners further claim that the Plan Amendment is not supported by sufficient data and analysis, nor is the analysis professionally acceptable. Petitioners' inconsistency and incompatibility arguments focus primarily on Petitioners' description of the relevant "neighborhood." Mr. James Fleischmann testified on behalf of Petitioners as to his definition of the relevant "neighborhood." Mr. Fleischmann and Dr. Patterson carved out the area east of U.S. 1 and west of A1A and bordered on the north by the Church and on the south by the Seaside area, designated "low density residential," as the appropriate "neighborhood." They opined that any non-residential development within this area was inconsistent with this "neighborhood." See also Findings of Fact 1-3. The "Goal" of the Town's Comprehensive Plan Future Land Use Element (FLUE) provides: A Town characterized by a community spirit that: recognizes its historical development patterns and styles; maintains its established neighborhoods in a safe, secure, beautified, and efficient manner by providing for both vehicular and pedestrian movement in, and around, town; which promotes future growth and development that is creative and enhances historical values and architectural styles that are indigenous to Juno Beach; which protects natural environmental features; and which reflects those development values by well defined neighborhoods and public areas that create an overall continuity to the Town while providing effective and efficient community services. There is no definition of "neighborhood" in the Town's Comprehensive Plan, Chapter 163, Florida Statues, or Rule 9J-5, Florida Administrative Code. Mr. Fleischmann provided his definition based upon his experience and expertise. Mr. Fleischmann did not rely on any specific portion of the Town's Comprehensive Plan in defining his view of the relevant "neighborhood." Mr. Fleischmann testified that all of his opinions concerning compatibility and internal Comprehensive Plan inconsistency in this case are based upon his definition of the relevant "neighborhood." U.S. 1 is a major, four-lane highway, which accommodates traffic at speeds, which are incompatible with a low-density residential neighborhood. It was not unreasonable for the Town to consider that the "neighborhood" area is not as limited or restricted as proposed by Mr. Fleischmann. In fact, Seminole, across U.S. 1 from the Property, actually serves the identified "neighborhood" east of U.S. 1. The data and analysis presented in this hearing, most of which was presented to the Town Council, demonstrates that the area in proximity to the Property has changed over the years, including but not limited to the expansion of U.S. 1 and the development of Seminole directly across from the Property. The weight of the evidence demonstrates that approval of the Plan Amendment will not cause the "neighborhood," as defined by Mr. Fleischmann, to be unsafe, insecure, or not beautified, nor will it impede vehicular and pedestrian movement in and around the Town. The data and analysis presented in this record do not support Petitioners' argument that the Plan Amendment is inconsistent with the "Goal." Also, the analysis was performed in a professional manner. Objective 1 of the FLUE of the Comprehensive Plan provides: To manage growth and development through the preparation, adoption, implementation, and enforcement of land development regulations which: coordinate future land uses with the appropriate topography, some of the conditions and the availability of the facilities and services; prevent, eliminate, or reduce uses inconsistent with the Land Use Goal, Future Plan, and Future Land Use Map; and which require redevelopment, renewal or renovation, where and when necessary through the establishment of standards or for density and intensity of land development. This Objective requires only the adoption of land development regulations to implement its provisions. The record is clear that the Plan Amendment, as a future land use amendment, is not a land development regulation. Petitioners also contend that the Plan Amendment is inconsistent with Policy 1.3 of the FLUE and Rule 9J- 5.006(3)(c)(2), Florida Administrative Code. See Conclusion of law 87. Policy 1.3 states: "Implementing ordinances, regulations and requirements regarding the development of land shall consider adjacent land uses and promote compatibility with those uses." Mr. Fleischmann claimed that he was unaware of any analysis of compatibility in the Staff Report and Recommendation presented to the Town Council in support of the Plan Amendment. However, Mr. Peduto, in the staff report, analyzed the relationship of the Plan Amendment to the surrounding properties, and stated, in part: "[T]he proposed project and petition bring an element of balance between newer residential, older residential and existing commercial, introduces a mixed- use and creates an ideal transition between the western commercial uses and eastern residential, community, and recreation uses." Mr. Peduto also considered the issue of compatibility and stated: "[The Plan Amendment] is an appropriate land-use classification for the subject property, providing for an appropriate use of the property considering existing, surrounding uses and land uses " Petitioners next contend that the Plan Amendment is not in compliance with Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(4)(c), Florida Administrative Code, because the "commercial" FLUM land-use category is not a "mixed-use" category, does not contain a percentage mix of uses, and does not contain densities and intensities of use for all identified land uses. The Town's Comprehensive Plan has numerous future land use classifications, including a classification called "commercial." This definition provides: Land Uses and activities within land areas which are predominantly related to and used for the sale, rental, and distribution of products; the provision or performance of business, personal and professional services. However, in order to allow for mixed uses, a maximum of 75 percent of the total gross floor area on the site may be used for residential development, not to exceed a density of 22 dwelling units per gross acre. The land uses allowed in the "commercial" category include mixed uses, such as residential and commercial. These general descriptions are consistent with the requirements of Section 163.3177(6), Florida Statutes, and the definitions in Rules 9J-5.003(21)("commercial uses") and 9J- 5.003(108)("residential uses"), Florida Administrative Code. The mix of uses is established within the description of the "commercial" land use category itself. A maximum of seventy-five percent (75%) of the total gross floor area on-site may be residential, with the remainder being commercial. The residential density is also established in the definition of "commercial" for a maximum of twenty-two (22) units per gross acre. Further, it appears the intensity standard for allowable commercial uses is found in FLUE Object 1, Policy 1.13 b. of the Town's Comprehensive Plan which provides: "The Building Site Area Requirements, as established in the CG-Commercial General and CO-Commercial Office zoning districts, shall provide the basis for intensity of use and be the development criteria standards for general commercial and commercial office development, respectively, in Juno Beach." The definition of "commercial" includes, and authorizes a "mixed-use" of the Town's property, including the Property, which is the subject of the Plan Amendment. Petitioners also claim that the Plan Amendment is not supported by data and analysis as required by Rule 9J- 5.005(2)(a), Florida Administrative Code. Mr. Fleischmann opined that based upon his examination of the record as it existed on November 19, 1999, the data submitted to the Town was insufficient and the analysis not professionally acceptable. Conversely, the data available to the Town and the evidence presented at the de novo hearing, is adequate to support a finding that the Town's decision to change the land use category for the Property from "low density residential" to "commercial" is at least fairly debatable. Mr. Fleischmann's disagreement with Mr. Peduto and the Town staff's analysis of the facts is not conclusive. Mr. Fleischmann offers a different opinion, which failed to overcome the data and analysis of record in this case. Petitioners also argue that the Plan Amendment could not be approved without the Town, and the Department's, requiring an analysis of a "worst case scenario." However, Mr. Wilburn's testimony in this regard is persuasive in that this analysis is normally employed in the planning field for a FLUM amendment only in terms of analyzing the five areas that a local government is required to set level of service standards, i.e., roads, water, sewer, recreation, and open space. It is not appropriate to use a "worst case scenario" when reviewing issues of compatibility. Importantly, the record indicates that there is no issue raised in this case regarding the sufficiency of the existing or proposed level of service standards. The Town Council held two public hearings regarding the Plan Amendment, heard from the public, including Petitioners, and was presented with adequate data and analysis to reasonably conclude that the Plan Amendment was consistent with its Comprehensive Plan and the relevant statutes and rules at issue in this case. In summary, the Plan Amendment's change of the FLUM land use category for the Property is fairly debatable, particularly in light of the historical development occurring within the Town, and the changing conditions affecting the U.S. 1 corridor in the vicinity of the Property. Based upon the totality of the circumstances and factors presented in this case, the Plan Amendment is consistent with the Act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Town of Juno Beach's Comprehensive Plan Amendment, Ordinance Number 509, is "in compliance" as defined in chapter 163, Part II, Florida Statutes, and rules promulgated thereunder. DONE AND ENTERED this 5th day of March, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2001. COPIES FURNISHED: Thomas J. Baird, Esquire Thomas J. Baird, P.A. 11891 U.S. Highway One Suite 105 North Palm Beach, Florida 33408-2864 Daniel K. Corbett, Esquire 300 Mercury Road Juno Beach, Florida 33408 W. Jay Hunston, Jr. Esquire Gregory S. Kino, Esquire Boose Casey Ciklin Lubitz Martens McBane & O'Connell 515 North Flagler Drive Northbridge Center-19th Floor, Suite 190 West Palm Beach, Florida 33401-4330 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
The Issue The issue in this case is whether the City of South Daytona Beach plan amendment adopted by Ordinance No. 94-05 on May 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, City of South Daytona Beach (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. Petitioner, Resolution Trust Corporation (RTC), is a federal agency now acting as the receiver for Commonwealth Federal Savings & Loan Association, a banking institution taken over by that agency and which owned the property affected by the City's plan amendment. As the owner of property within the City, RTC is an affected person within the meaning of the law and thus has standing to bring this action. The Nature of the Dispute On October 29, 1993, the City received an oral request, which was later confirmed in writing, from Thomas J. Wetherall on behalf of various residential property owners to make an amendment to the City's comprehensive plan to change certain nearby vacant land owned by RTC from a general commercial designation to residential density 1. Under the request, the City would change the use on the eastern part of RTC's 5.6 acre tract of land from commercial to single-family residential use. The specific amendment involves a change in the Future Land Use Map (FLUM). Rather than treating the change as one initiated by a property owner, the City elected to have its city manager file the application on its own behalf. Public hearings were held on the plan amendment on January 19 and February 16, 1994. A transmittal hearing was then conducted by the City on February 22, 1994, and despite objections by RTC, final adoptive action occurred on May 24, 1994, through the enactment of Ordinance No. 94-05. Thereafter, on July 1, 1994, the DCA issued a notice of intent to find the amendment in compliance. On August 5, 1994, RTC filed a petition for an administrative hearing challenging the plan amendment on the ground it was inconsistent with the law in various respects. As clarified at hearing, petitioner contends the amendment (a) violates certain provisions within Section 163.3177, Florida Statutes, (b) is inconsistent with policies 2-1, 2-4, 2-6 and 7-3 of objective 2 of the Future Land Use Element (FLUE) of the plan, and (c) is not supported by adequate data and analysis. The Plan Amendment Petitioner is the owner of a rectangular shaped tract of vacant land more commonly known as the Halifax Center. The land, which totals approximately 5.6 acres, lies between South Ridgewood Avenue (U. S. 1) to the west, Palmetto Avenue to the north, and Palmetto Circle to the east. The property being redesignated (2.6 acres) is the eastern part of the parcel and measures approximately 105 feet deep by 864 feet long. If found to be in compliance, the plan amendment would change the FLUM to redesignate the 2.6 acres of the property from general commercial to residential density 1. This means that instead of having its entire tract of property with a single designated commercial use, RTC would have a split designation, with roughly the eastern half designated as residential. Therefore, the eastern part of the tract could only be subdivided for a few substandard, medium to lower-end, single-family residential homes on lots 105 feet deep. Even then, the amendment does not give consideration to setback and buffer requirements needed between the newly created residential lots and the commercial land directly abutting their rear. Because of this, and the fact that its remaining commercial property has been reduced to a depth of 170 feet, petitioner complains that the value of its property has been substantially reduced, a concern not relevant here, and that the amendment does not conform to the requirements of the law. To the east of the subject property and across Palmetto Circle lie a string of large, single-family lots with upscale homes fronting on the Halifax River. It is this group of property owners who are responsible for the amendment. To the west of the property and across U. S. 1 is found a tract of vacant land designated for professional office land use. To the north of the property is found a combination of multi-family (8-10 units per acre) and general commercial uses. In crafting the amendment, it may be reasonably inferred that the City simply drew an arbitrary line down the middle of RTC's property, leaving what it believed to be was the bare minimum amount of commercial land necessary to comply with the plan. Although the City contended that one of the purposes of the amendment was to further its goal of increasing the amount of single-family housing in the City, it can be reasonably inferred that the true purpose of the amendment was to protect the value of homes located across Palmetto Circle by placing a buffer between their property and the commercial property to the west. Indeed, a City memorandum sent to the City's Land Development Regulation Board on January 12, 1994, stated that the purpose of the change was to "provide a buffer between (the) Ridgewood Avenue commercial zone and existing housing along Palmetto Circle." Is the Plan Amendment in Compliance? The City's comprehensive plan is broken down into elements which conform to the statutory requirements of Chapter 163, Florida Statutes. Under each element are found goals, objectives and policies. As is relevant here, the goal for the FLUE is to "(p)rovide for a well-rounded community as described in the overarching goal." Objective 2 of the FLUE is to: (l)ocate commercial and industrial land uses where transportation access is adequate and conflicts with other land uses can be minimized. Petitioner contends that the plan amendment conflicts with four of the policies which implement objective 2. These are policies 2-1, 2-4, 2-6 and 7-3, which read as follows: 2-1: Locate major commercial and industrial land uses along primary arterials. 2-4: Commercial districts along principal arterials shall be made deep enough to provide options to typical strip development. 2-6: Provide adequate commercial/industrial land for development or redevelopment which will result in a 15 percent increase in taxable value over the next ten years. 7-3: New development shall be required to be compatible with existing development by the arrangement of land use and/or the provision of adequate buffering. As noted earlier, petitioner's tract of land lies between U. S. 1 to the west and Palmetto Circle to the east. Because the western part of petitioner's property lies along Ridgewood Avenue (U.S. 1), a principal arterial road, and will continue to remain general commercial, the amendment is deemed to be consistent with policy 2-1. In other words, that portion of petitioner's property which retains a general commercial designation will be located "along primary arterials," in conformity with policy 2-1, while the remaining portion of the property which fronts on a local road (Palmetto Circle) will be designated residential. The purpose of policy 2-4 is to ensure that commercial districts along principal arterials such as U. S. 1 are deep enough to provide options to typical strip commercial development patterns. This type of development is defined as one or more buildings that are parallel to and facing the primary street with no circulation around the back. Petitioner contends that the plan amendment violates this policy since the remaining portion of its land designated general commercial will only be 170 feet deep in relation to U. S. 1, thereby severely limiting its development options. By reducing the depth of property, as will be done here by the City, the flexibility and creativity for developing petitioner's parcel will be substantially reduced. While respondents' experts opined that the site will be deep enough to accommodate some types of commercial development other than the typical strip pattern, such as freestanding buildings, a restaurant, or even two or three office buildings, the more persuasive evidence shows that anything less than 200 feet in depth eliminates virtually all meaningful development options except a strip shopping center. Since the remaining commercial land along U. S. 1 will not "be made deep enough to provide options to typical strip development," the amendment is inconsistent with policy 2-4. Under policy 2-6, the City's goal is to increase its tax base 15 percent by the year 2000. Since the overall plan went into effect in 1990, the City's tax base has increased approximately 14.5 percent. Petitioner contends that the plan amendment will substantially reduce the value of its property, and the concomitant tax base, and thus the plan amendment is inconsistent with the policy. But even if a reduction in value will occur, there is insufficient evidence to demonstrate that the City's taxable value will not increase by an additional half percent during the next five years. Accordingly, the undersigned finds the amendment to be consistent with policy 2-6. Finally, Policy 7-3 requires that new development be compatible with existing development by the arrangement of land use and/or adequate buffering. Under the proposed plan amendment, the City has created a more integrated residential neighborhood along Palmetto Circle. Also, the redesignated land will serve as a form of buffer between the residential development on the east side of Palmetto Circle and the commercial development on the west side of Palmetto Circle. Although the City asserts that the change in land use should reduce the potential amount of traffic on the local road (Palmetto Circle) that would otherwise increase through commercial development, this assertion is questionable given the fact that no access to the commercial property from Palmetto Circle now exists. Finally, if the amendment becomes operative, the property would be the only single-family residential property on the corridor east of U. S. 1 and west of Palmetto Circle. Collectively, these considerations support a finding that the plan amendment's consistency with policy 7-3 is fairly debatable. Property appraisals are not appropriate data or analysis upon which to base future land use designations. In other words, property values should not control planning decisions. If they did, future land use maps would reflect only high intensity uses, not a balanced community. Except to the limited extent it bears on policy 2-6, evidence presented by petitioner that the plan amendment would decrease the value of the Halifax Center from $610,000.00 to less than $359.000.00 has little, if any, probative value on the other relevant issues. Although petitioner raised other contentions in its initial petition, including one that the plan amendment is not supported by adequate data and analysis, these issues have been deemed to be irrelevant, abandoned, or not supported by sufficient evidence to make a finding in petitioner's favor. In determining whether a plan amendment is in compliance, the DCA looks to consistency with the plan as a whole rather than isolated parts. Therefore, an amendment may be inconsistent with the plan in certain respects, but still be in compliance as a whole unless the inconsistency is determined to be "very important." It may be reasonably inferred from the evidence that the City's policy of discouraging "typical strip development" is an important ingredient in its overall plan. To summarize, the evidence fails to show to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6 and 7-3 of objective 2 of the future land use element of the plan. As to policy 2-4, however, it is found that the City's determination of compliance is not fairly debatable, and thus the amendment is not in compliance in that respect.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of South Daytona Beach comprehensive plan amendment to be not in compliance. DONE AND ENTERED this 19th day of April, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5182GM Petitioner: Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 4. 4-6. Rejected as being a conclusion of law. 7. Partially accepted in finding of fact 9. 8. Partially accepted in finding of fact 8. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 16. 11-12. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially accepted in finding of fact 14. Partially accepted in finding of fact Rejected as being irrelevant since not Rejected as being a conclusion of law. Partially accepted in finding of fact 16. raised as an 13. issue. 19. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Rejected as being irrelevant. Partially accepted in finding of fact 17. Rejected as being irrelevant. Respondent (DCA): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in findings of fact 4, 6 and 7. 5-6. Partially accepted in finding of fact 10. 7-10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. 12-13. Partially accepted in finding of fact 13. 14. Partially accepted in finding of fact 14. 15. Partially accepted in finding of fact 15. 16. Partially accepted in finding of fact 17. Respondent (City): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5. 8. Covered in preliminary statement. 9. Partially accepted in finding of fact 12. 10-11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 15. 13-14. Rejected as being irrelevant. 15. Partially accepted in finding of fact 16. 16. Covered in preliminary statement. 17-18. Partially accepted in finding of fact 17. 19. Covered in preliminary statement. 20. Partially accepted in finding of fact 16. 21. Partially accepted in finding of fact 12. 22. Partially accepted in finding of fact 14. 23. Partially accepted in finding of fact 15. 24-26. Partially accepted in finding of fact 16. 27-28. Partially accepted in finding of fact 9. 29. Partially accepted in finding of fact 17. 30. Covered in preliminary statement. 31. Partially accepted in finding of fact 19. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 19. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Maureen A. Arago, Esquire 1411 Edgewater Drive Suite 203 Orlando, FL 32804 Karen A. Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Scott E. Simpson, Esquire 595 West Granada Boulevard Suite A Ormond Beach, FL 32174
The Issue The issue is whether Citrus County's (County's) small-scale development amendment CPA-09-16 adopted by Ordinance No. 2009- A07 on May 26, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner resides and owns property at 10662 West Halls River Road, Homasassa, Florida, in the southwestern part of the County. According to a County aerial map, the property appears to be 0.68 acres in size and is rectangular-shaped, with the eastern side fronting on the Homasassa River (River), while the western side adjoins West Halls River Road (also known as County Road 490A), a two-lane designated collector roadway for the County. See Intervenor's Exhibit 8. That road dead-ends a mile or so farther to the southwest in a subdivision known as Riverhaven. Petitioner has owned the property since April 1992. Intervenor, a limited liability corporation, acquired ownership of a 47.5-acre parcel in May 2007, which lies directly west-northwest of Petitioner's property and across West Halls River Road. In early 2009, it filed an application with the County seeking a change in the land use on 9.9 acres of the larger parcel from CL to RVP. The smaller parcel's address is 10565 West Halls River Road and is a short distance north of Petitioner's lot. The change in land use was requested because Intervenor intends to place a recreational vehicle (RV) park on the 9.9-acre parcel. On page 10-103 of the Plan's Future Land Use Element (FLUE), the CL land use is described in relevant part as follows: This land use category designates those areas having environmental characteristics that are sensitive to development and therefore should be protected. Residential development in this district is limited to a maximum of one dwelling unit per 20 acres and one unit per 40 acres in the Federal Emergency Management Agency's V-zone. On page 10-112 of the FLUE, the RVP land use is described in relevant part as follows: This category is intended to recognize existing Recreational Vehicle (RV) Parks and Campgrounds, as well as to provide for the location and development of new parks for recreational vehicles. Such parks are intended specifically to allow for temporary living accommodation for recreation, camping, or travel use. After the application was filed and reviewed by the County staff, a report was prepared by the then County Senior Planner, Dr. Pitts, on April 14, 2009, recommending that the application be approved. See Petitioner's Exhibit 5. The report noted that "this site is appropriate for some type of RV Park development subject to an appropriately designed master plan." Id. Although forty-nine RV units could potentially be placed on the parcel, the report noted that due to significant "environmental limitations of the area," the site "may not be able to be designed at maximum intensity for this land use district." Id. The "environmental limitations" are approximately 1.64 acres of wetlands that are located on four parts of the property, wetlands on neighboring properties, and "karst sensitivity." The report noted that these environmental issues would have to be addressed in a master plan to be submitted by the applicant before development. The matter was then favorably considered by the County's Planning and Development Review Board by a 4-1 vote on May 7, 2009. On May 26, 2009, the Board of County Commissioners (Board) conducted a public hearing on the application. By a 3-2 vote, the Board adopted Ordinance 2009-A07, which approved the change on the GFLUM. See Petitioner's Exhibit 2. Petitioner and Intervenor appeared at the hearing and submitted comments regarding the amendment. See County Exhibit 3. Accordingly, both are affected persons and have standing to participate in this matter. Because the size of the parcel was less than ten acres, the map change was not reviewed by the Department of Community Affairs. See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. On June 24, 2009, Petitioner filed with DOAH his Petition challenging the small-scale development amendment. As summarized in the parties' Joint Prehearing Stipulation, Petitioner contends that the map change "is not consistent with [the County's] adopted comprehensive plan because such is incompatible with the character of the properties surrounding the subject property and because such is incompatible with [the] environmentally sensitive nature of the subject property and the properties surrounding the subject property." See Joint Prehearing Stipulation, pages 1-2. More specifically, Petitioner contends the map change is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8. The Subject Property Although its precise dimensions are not of record, from around 1952 until 1985, a golf course was located on a large tract of land west of West Halls River Road, where Intervenor's larger parcel of property is located. Currently, the larger parcel is vacant and undeveloped. The subject property (as well as the entire larger parcel) is classified as CL (Low Intensity Coastal and Lakes), which allows one dwelling unit per twenty acres. Because the property is in the coastal high hazard area (CHHA), the amendment allows five RV units per acre, or a total of forty-nine. In all likelihood, however, the number would be somewhat smaller due to "severe" environmental constraints discussed above. See Finding 5, supra. The new land use also allows a small amount of retail development to serve the RV customers. The 9.9-acre parcel surrounds a one-acre parcel that adjoins West Halls River Road, also owned by Intervenor, and carries a CLC (Coastal and Lakes Commercial) land use designation. A vested eighteen-unit RV park (Sunrise RV Park) has been located on the one-acre parcel since the late 1980s. Except for the small one-acre enclave, the property is bordered on three sides by vacant, unimproved property, all designated as CL. According to Petitioner, Sunrise RV Park has a small number of "dilapidated" trailers and "a bunch of junk stored on the front lawn." This was not disputed. The vacant lot directly south of the larger parcel, comprised mainly of wetlands, is owned by Glen Black, who objects to the map change. Across the roadway, the area north and south of Petitioner's property along the River is classified as CL and is "predominately residential." Besides the residential uses on the River side of the road, Intervenor identified around six non-conforming businesses (mainly former fish camps) that were vested prior to the adoption of the current Plan and that are interspersed with the residential lots. (Under current Plan provisions, they would not be allowed.) Around one-quarter mile or so south of the subject property is the Magic Manatee Marina (Marina) located on a two-acre parcel facing the River.2 A small fish camp with six "rental cottages" lies a few lots north of the Marina. There are also four small condominium buildings with dock facilities (known as Cory's Landing) just north of the fish camp. The aerial map reflects that all other lots south of Petitioner's property are used for residential purposes. Besides the other residential lots north of Petitioner's property, there are nine rental units at a vested "fishing resort" on a parcel slightly less than two acres in size located at 10606 West Halls River Road. Around one-half mile further north at the confluence of the Halls and Homasassa Rivers is a vested restaurant, Margarita Grill. Except for these vested non-conforming uses, all other lots are used for residential purposes, and the entire strip of land adjoining the River is classified as CL. North of Intervenor's 47.5-acre parcel, but not directly adjoining it, and on the western side of West Halls River Road, is a large unevenly-shaped tract of land classified as RVP, on which the Nature's Resort RV Park is located. That facility is authorized to accommodate around three hundred RVs. The entrance to that park from West Halls River Road appears to be at least one-quarter mile or more north of the subject property. Petitioner's Objections Petitioner contends that the amendment is not in compliance because it is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8, which concern environmental and compatibility requirements. These provisions are discussed separately below. Policy 17.2.7 Policy 17.2.7 provides as follows: The County shall guide future development to the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations and the availability of necessary services. Petitioner argues that the subject property is in an extremely sensitive environmental area due to extensive wetlands and a karst sensitive landscape. (Karst is a limestone underground rock structure that is very porous and through which pollutants can easily travel.) He further points out that the property is located within the CHHA. Given these environmental constraints, and the proposed increase in density, Petitioner contends the map change will run counter to the above policy. There are no provisions within the Plan that prohibit the location of an RV park within the CHHA. Policy 17.6.12 imposes numerous requirements for RV parks, including a thirty percent open space requirement, restrictions on densities, wetland protection, upland preservation, clustering, and connection to regional central water and sewer service. These policy restrictions have been implemented by more specific land development regulations (LDRs) that limit the density and intensity of RVs and the types of RVs (e.g., park models) that can be placed in an RV park located within a CHHA. In this case, because the property is in a CHHA, the LDRs impose a five- RV per acre limitation, as opposed to the normal fourteen RVs per acre in non-CHHA areas, and for evacuation purposes, park models are prohibited. Further, the RV park must be served by regional central water and sewer services. All land in the County west of U.S. Highway 19, including the subject property, is karst sensitive. As such, any development west of U.S. Highway 19 must meet certain design standards to ensure that the water supply is not threatened. The County says that these concerns must be addressed during the site approval (development) process. The record shows that there are four jurisdictional wetland sites on the parcel totaling 1.64 acres. There are also wetlands on the surrounding property. Because of these environmental constraints, Dr. Pitts (the former County Senior Planner) stated that it is "highly unlikely" that Intervenor "can develop at 49 units." He further pointed out that while it is "certainly possible to do it at a smaller number," there would be one hundred percent wetland protection through setbacks both to wetlands on the subject parcel, as well as the surrounding area, a thirty percent open space requirement on the site, a ten percent area dedicated to recreational uses, and minimum buffers on the side of the property facing West Halls River Road. For RV parks, pertinent LDRs adopted to implement the Plan require that the developer avoid all wetlands. Policy 17.2.7 expresses a County planning decision that future development be directed to "the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations." (Emphasis added) According to Dr. Pitts, the subject property has "severe" environmental limitations, and that "it will be difficult to design the site [in a way] that meets the standards of the comprehensive plan and the land development code." Notwithstanding the other provisions within the Plan and LDRs that place limitations on RV park development in an effort to satisfy environmental constraints, see Finding 18, supra, the subject property is clearly not "the most appropriate area, as depicted on the GFLUM" for new development, nor is it an area "with minimal environmental limitations." In fact, the amendment does just the opposite -- it directs new commercial development to an area with severe environmental limitations. Therefore, the greater weight of evidence supports a finding that the map change is internally inconsistent with Policy 17.2.7. Policy 17.2.11 Petitioner next contends that the plan amendment is contrary to the Plan's basic strategy of protecting environmentally sensitive areas, as set forth in FLUE Policy 17.2.11, which reads as follows: Consistent with the Plan's basic strategy for protection of environmentally sensitive areas, the following guidelines shall apply to all development in the Coastal, Lakes, and Rivers Region: No increase in residential density should be approved except for Planned Development standards already contained in the Plan. No additional high intensity non-residential land uses shall be approved for this region. Specifically new GNC [General Commercial] and IND [Industrial] districts shall be avoided. The subject property is within the Coastal Region and therefore subject to these guidelines. See Intervenor's Exhibit 3, page 10-3. On page 10-150 of the FLUE, the narrative text states in part that "with increasing development activity and growth in the coming years, existing restrictions on the density/intensity of land use should be maintained and enhanced to provide additional protection to this sensitive region." According to the Plan, a "GNC district allows potentially high density/intensity development" and "should not be located in areas of the County deemed to be environmentally sensitive areas." See Intervenor's Exhibit 3, page 10-110. It further provides that "[n]o new GNC shall be allowed in the coastal, lakes and river region." Id. Therefore, new GNC development should not be allowed in the Coastal Region. Although an RV park is a commercial use, it is not a GNC use. Further, the five-units per acre limitation is not considered a high-intensity non-residential use. Therefore, while the policy serves a laudable purpose, it does not prohibit RVP development within the Coastal Region. Therefore, the map change is not internally inconsistent with Policy 17.2.11. Policy 17.2.8 Petitioner's final objection is that an RV park is not compatible with the surrounding area. He goes on to contend that by placing an RVP designation adjacent to a large tract of CL land, the County has contravened FLUE Policy 17.2.8. That policy reads as follows: The County shall utilize land use techniques and development standards to achieve a functional and compatible land use framework which reduces incompatible land uses. Because compatibility is not defined in the Plan, Florida Administrative Code Rule 9J-5.003(23) is helpful in resolving this issue.3 That rule defines the term "compatibility" as follows: (23) "Compatibility" means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. In its Proposed Recommended Order, Intervenor also suggests that the definition of "suitability" is relevant to this issue. That term is defined in Rule 9J-5.003(128) as follows: (128) "Suitability" means the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development. Petitioner characterized the area around his home as quiet, peaceful, and "all residential." He noted that except for a few vested, non-conforming businesses, such as the Sunrise RV Park, Marina, fish camp, and restaurant, the remainder of the area along the River, as well as Intervenor's larger parcel across the street, is either residential or vacant. Petitioner fears that an RV park will result in increased noise, park lighting during nighttime hours, trash being left by the roadside, more traffic on the two-lane road, and a decrease in the value of his property. He also believes that the developer intends to place the southern entrance to the RV park almost directly across the street from his home. The greater weight of evidence supports a finding that the proposed new land use designation is not compatible with the surrounding land. Intervenor argues that an RV park and the surrounding residential properties are compatible (and suitable) because there are already non-conforming uses along the River that have not unduly negatively impacted the area. These uses, however, number only six along that stretch of the River, and they have existed for decades due to vested rights. It is fair to infer that the insertion of an RV park in the middle of a large tract of vacant CL land would logically lead to further requests for reclassifying CL land to expand the new RV park or to allow other non-residential uses. The stated purpose of Policy 17.2.8 is to reduce "incompatible land uses." At the same time, Rule 9J-5.003(23) discourages land uses which are in relative proximity to each other and can unduly negatively impact the other uses or conditions. The commercial RV park, with a yet-to-be determined number of spaces for temporary RVs, tenants, and associated commercial development, will be in close proximity to a predominately residential neighborhood. A reasonable inference from the evidence is that these commercial uses will have a direct or indirect negative impact on the nearby residential properties and should not coexist in close proximity to one another. This is contrary to Policy 17.2.8, which encourages a reduction in "incompatible land uses," and the amendment is therefore internally inconsistent with the policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that small-scale development amendment CPA-09-16 adopted by the County by Ordinance No. 2009-A07 on May 26, 2009, is not in compliance. DONE AND ENTERED this 9th day of October, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2009.
The Issue Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey’s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban.2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its’ [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. It is undisputed that the Plan Amendment removes land from the Rural land use category. It is undisputed that the Lee County Commission did not make a finding of an “overriding public necessity” when it adopted the Plan Amendment. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an “overriding public necessity” to remove property from the Rural land use category.3/ Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of “overriding public necessity” only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an “if/then statement”: if property in the Rural land use category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of “overriding public necessity” is required. Under Mr. Dunn’s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. Intervenors’ planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates “we aren’t talking about the category per se.”4/ Under Dr. Depew’s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. Neither Mr. Dunn’s nor Dr. Depew’s opinion is persuasive.5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an “overriding public necessity” as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an “overriding public necessity.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2015.
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 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
Findings Of Fact Stipulated Facts Jim and Paulette Holzinger own Lot 17, Section B, Long Beach Estates, located on Big Pine Key in unincorporated Monroe County, Florida. The property is south of Long Beach Drive. The property is located within the Florida Keys Area of Critical State Concern. See Sections 380.05 and 380.0552, Florida Statutes. Under these statutes, Monroe County adopted a comprehensive plan and implemented it with land development regulations which are consistent with the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. The Department of Community Affairs approved the County's comprehensive plan in Rule Chapter 9J-14, Florida Administrative Code, and the Administration Commission approved the comprehensive plan in Chapter 28-29, Florida Administrative Code. The County's comprehensive plan is implemented through its land development regulations, codified as Chapter 9.5 of the Monroe County Code. Monroe County is responsible for issuing development orders for land development in unincorporated Monroe County, including these development orders (building permits). The Local Government Comprehensive Planning and Land Development Act, Chapter 380, Florida Statutes, restricts the County from permitting development which is inconsistent with the Monroe County Comprehensive Land Use Plan, Sections 163.3161(2) and 163.3194(1), Florida Statutes. No person may undertake any development within an area of Critical State Concern except in conformity with Chapter 380; Section 380.05(16), Florida Statutes. After the County issued the three related permits, the Holzingers engaged Pinewood Enterprises, Inc., as general contractor, for the construction of their single-family residence. Those permits were rendered to the Department of Community Affairs on July 21, 1992, and the Department issued its notice of appeal of those permits on September 4, 1992. No party disputes the timeliness of the appeal. The Holzingers' lot is vegetated by mangroves, transitional plant species, and beach berm plant species. The site plan, and which was part of the Holzingers' application for the permits, which Monroe County approved, includes the approval of dredging of a portion of Lot 17 and the placement of fill on site to provide driveway access to the single-family residence. The site plan locates the single-family residence in an area of Bay Cedar thicket. The mangroves are located along the north of the lot along Long Beach Drive. Facts Found Based on Evidence Adduced at the Final Hearing The Holzingers' lot is located at the southernmost area of Big Pine Key, and is separated from the rest of the key by a wetland to the north of the property. To its south is the Atlantic Ocean. The lot is approximately 100' x 230' and contains approximately 22,750 square feet from property line to property line. On the lower keys land elevations only extend from sea level to a maximum of approximately five or six feet above sea level. The soil or substrate conditions on the lot are white calcareous deposits which appear to the untrained eye to be sand. It is not quartzite, but deposits from the breakdown of marine grasses or marine algae which have the appearance of sand. There is no caprock on the property. B (1). Habitats Recognized in the Monroe County Plan The Monroe County Comprehensive Development Plan is based upon the Data and Analysis found in volume 1 of the Plan. According to that Data and Analysis, there are different types of habitat found in the Keys. These include salt marsh, salt marsh and buttonwood association, mangrove community, tropical hardwood hammock, and beach berm complex. The most significant one here is beach berm complex; it includes: "bare, sandy shoreline with a mound or ridge of unconsolidated sand that is immediately landward of and usually parallel to the shoreline and beach. The sand is calcareous material that is the remains of marine organism such as corals, algae and mollusks. The berm may include forested costal ridges and may be colonized by hammock vegetation." Section 9.5-4(B-3), Monroe County Code [the land development regulations]. In the Data and Analysis, the County records that on Long Beach Key the most landward area of the berm is tropical hardwood hammock. The low hammocks are upland hardwood forest communities containing species such as blolly, buttonwoods, darling plums, spanish stopper and wild dilly, all of which are found on the vegitation survey of the lot done by a biologist for Mother Nature's Enterprises, Linda Pierce, as part of the Holzinger building permit application. See Section 9.5-4(L-10), Monroe County Code, which defines low hammocks. Low hammocks include berm hammock, and the beach berm association described in the County comprehensive plan includes berm hammocks (Tr. 184). B (2). The Land Use Maps and their Designations The existing conditions map which is part of the Monroe County comprehensive plan designates the area of the Holzingers' property as beach berm association. That map is drawn at the sale of one inch equals 2,000 feet. Similar aerial maps at a scale an order of magnitude smaller (one inch equals 200 feet) also show the land as beach berm with fringing mangroves. These aerial photographs have been overlaid with the Comprehensive Plan's habitat designations for use in the practical application of the land development regulations by County employees. Under the land use regulations found in the Monroe County Code, the County Commission is required to follow the existing conditions map it adopted, Section 9.5-227, Monroe County Code. Under the first paragraph of Section 9.5- 345 the environmental design criteria applicable to development of a parcel of land depend upon the habitat designated for the parcel on the existing conditions map (the map drawn at the larger scale of one inch equals 2,000 feet). Ground proofing of the habitat on the lot done by the Lower Keys' biologist, Diana Stephenson, and by the Department of Community Affairs planner/biologist, Kathleen Edgerton, show that the land is actually beach berm from the ocean to the mangroves, and there is a small area of disturbed saltmarsh landward from the mangroves to the county road which runs down the center of the key. I am not persuaded by the testimony of the biologist for the Holzingers, Mr. Smith, who believes that there is a separate tropical hardwood hammock habitat on the Holzingers' lot. A full habitat analysis would have been required if there were mixed habitats on the lot (Tr. 88, 96) and the Holzingers did not submit one to the County as part of their application. Because the County biologist found no separate low hardwood hammock habitat on the lot, she believed that no habitat evaluation index was required in processing the Holzinger application, and none was done independently by the County. Mr. Smith contended at final hearing that there are several distinct habitats on the single lot. Moving south from Long Beach Drive toward the ocean he first finds a disturbed saltmarsh of approximately 4,000 square feet; then a mangrove community of about 2,500 square feet; then a saltmarsh and buttonwood association of about 2,500 square feet; next a tropical hardwood hammock of moderate quality and finally, closest to the ocean, beach berm complex. This analysis, which designates a separate saltmarsh and buttonwood association waterward of the mangrove community, and then a separate tropical hardwood hammock waterward of the saltmarsh and buttonwood association, fails to give significant weight to the fact that low hammocks are typically found within beach berm complex. While Mr. Smith testified to the square footages for each of the five habitats, he only performed rough calculations for their size, he was not working with, nor did he perform an actual survey which would define the boundaries of the various habitats he believes are present. He readily acknowledged his preliminary habitat analysis was incomplete. Moreover, accepting for the sake of argument that there is a mixed habitat on the lot under the evidence adduced by the Holzingers, a complete habitat evaluation index should have been performed by the Holzingers as a necessary part of their application, since the County biologist did not do one in the belief there was no need for one. The essential problem with the view expressed by Mr. Smith that there are five habitats on this 100-foot lot is his contention that due to the very small changes in elevation through the Keys, one must identify different habitats recognized in the Monroe County comprehensive plan and land development regulations by assessing the predominance of different types of vegitation typical of a habitat. To Mr. Smith, if the vegitation is of a type normally found in a tropical hardwood hammock, and it predominates over the other vegitation, that area must be classified as a tropical hardwood hammock. At that level of generalization, the statement is no doubt true. Neither the land development regulations or the County's Comprehensive Plan require, or even permit, a microanalysis of the vegitation for the purpose of defining multiple habitats on a lot. Taking a broad view, such as that embodied in the existing conditions map, the predominate vegetative and soil conditions on the southern part of the island where Lot 17 is located are consistent with the categorization as beach berm association. The same is true using the aerial maps on which the different habitat designations from the land development regulations have been overlaid. What Mr. Smith has done is to look for small areas within the 100' x 230' parcel to identify areas where tropical hardwood species may be said to "predominate." The obvious purpose of Mr. Smith's division of the lot into small areas is to be able to characterize these uplands species as "predominating." This is essential to justify intensive use of the property. The comprehensive plan and the land development regulations do not permit any use of areas colonized by mangroves, which are wholly protected by a 100 percent open space requirement. This means that 100 percent of the area colonized by mangroves must be maintained in its natural condition and free and open to the sky, Section 9.5-343, Monroe County Code. Open space ratio for saltmarsh and buttonwood associations is .85 but for moderate quality low hammocks is only .60. Beach berm association is highly protected, with an open space requirement of 90 percent. Only 10 percent of the land area waterward of the mangrove habitat, therefore, can be covered with the footprint of the single-family residence and any associated driveway or other access way because it is beach berm complex. Accepting the mangrove line contained in the vegitation assessment submitted by the Holzingers in their application done by Mother Nature's Enterprises, and then using a "planimeter" to measure the area from the mangrove line to the mean high water line on the lot, there is 16,594 square feet of property. Given the 90 percent open space requirement, a very small area of 1,659 square feet may be covered with the footprint of the single-family home, including its porch, eaves, and driveway. The footprint of the house, its porch, and driveway shown on the site plan approved by the County, with the addition of a five-foot clearing zone around the footprint of the house [because it is essentially impossible to clear land only to the footprint of the completed building] reveals that the County's permits would allow the clearing of 2,880 square feet. Even without the five-foot construction zone around the house, porch and driveway, the County permits allow the clearing of 2,172 square feet. It is very difficult to understand how the Monroe County official in charge of the office which issues building permits could have determined that the development proposed by the Holzingers was permittable. That official did not testify. The County biologist for the Lower Keys who did testify, Ms. Stephenson, was adamant that the project was never permittable under the Monroe County land development regulations. The only explanation by which the permit conceivably could have been granted would be to do something the land development regulations do not permit: aggregate the square footage which the code makes available for development on the landward side of the mangroves, in the area of disturbed saltmarsh between the road and the mangroves, and add the usable square footage for that habitat area to the usable square footage on the waterward side of the mangroves, in the beach berm association. But the amount of each habitat which must remain as open space is determined for each habitat type. They cannot be aggregated across habitats, to give some total usable number of square feet, to be cleared anywhere on the property. That would ignore the significance of the separate habitat designations. The 1,659 square feet available for development in the beach berm association must be used only within that habitat, and square footage available for development within the disturbed salt marsh cannot be added to it. Fill Issues The site plan approved by the County permits fill to be used to construct a driveway on the property through the mangrove area and the beach berm area. This is simply an error on the part of the County, for no party disputes that fill is forbidden in these areas. The performance standards in the land development regulations do permit certain piers, docks, utility pilings and walkways over mangrove areas, but no fill is permitted. Section 9.5- 345(m)(1), Monroe County Code (Tr. 139). The Holzingers could receive a permit to build a raised bridge over the mangroves for access to the beach berm association portion of the lot, as has been done on a nearby lot to the west of the Holzingers' lot. They cannot, however, fill the mangroves to create the driveway shown on the site plan the County approved. The building permit the County granted which purports to allow fill in mangrove areas is inconsistent with the County's own land development regulations and cannot stand. The next question is whether there is some alternate means of access to the lot which can be used instead of that permitted. At the final hearing Mr. Smith stated that on a recent visit to the Holzingers' property, he found an old road on the east side of the property which is high land which could serve as a location for a driveway or accessway to the interior of the Holzingers' property. There is, however, actually no old road anywhere on Lot 17. There was an old road on Lot 16, and a bit of the spoil from that road may be found on Lot 17, but there simply never has been a road on the Holzingers' lot which they can use for a driveway. Fill will be required to locate any driveway, and that is inconsistent with the County land development regulations. The only thing the Holzingers can do to overcome this problem would be to build a bridge over the mangrove area and completely avoid the use of any fill. Summary of Findings The scarified or a disturbed saltmarsh area from the county road to the mangrove area is too small to be useful. The Holzingers do not plan to build in that area. Whatever portion of that area which is not required to be open space cannot be "banked" to allow additional clearing in the beach berm association on the waterward side of the mangroves. For all practical purposes, that disturbed saltmarsh area adds nothing to the buildable or clearable area on Lot 17. The mangrove area has a 100 percent open space requirement. Mangroves are a highly protective habitat, which contribute nothing to the buildable area on Lot 17. The remaining portion of the Lot 17 waterward from the mangrove area to the mean high water line is too small to permit the construction and erection of the house and driveway permitted by the development orders (building permits) issued by Monroe County. The buildable area in the beach berm association is no more than a total of 1,660 square feet for the house, its porch, the driveway. The County has issued a permit to use 2,880 square feet of that habitat (including an allowance for a construction zone), or at least 2,172 square feet, assuming the location of the house, porch, and an eight-foot wide driveway and no construction clearing around the footprint around the house/porch. This fails to meet the 90 percent open space requirement found in the Monroe County Code. The building permits issued by Monroe County to the Holzingers are therefore invalid. To obtain valid permits, the Holzingers must substantially reduce the footprint of the house, including an allowance for a construction clearing zone. A house that small may be undesirable, but it could be permitted. What the County has attempted to permit, however, is invalid under its own regulations.
Recommendation It is RECOMMENDED that development approval for the subject lot be denied, unless the applicant presents, and the County and the Department approve, a revised permit and site plan which demonstrates compliance with the mandatory open space requirements for the beach berm and mangrove habitats, and which eliminates the placement of fill in the beach berm complex and the mangrove wetlands on site. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July 1993. WILLIAM R. DORSEY, JR. 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 9th day of July 1993. APPENDIX The Findings of Fact proposed by the Department have been generally adopted, although the long quotation from Volume I and II of the County Comprehensive Plan are not essential or necessary. See proposed finding 10. The Respondents submitted no proposed Findings of Fact. COPIES FURNISHED: Stephanie M. Callahan Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 David K. Coburn, Secretary Florida Land & Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301
