The Issue May this appeal be dismissed as moot due to the impossibility of the development order being granted?
Findings Of Fact This case involves Florida Rock's May 20, 1992, application for a development order to the Citrus County Department of Development Services (LDDS or Department) for a mining operation. Sometime after 1980, the real property at issue had been designated "extractive" on the Future Land Use Map (FLUM). Citrus County's 1986 Comprehensive Plan designated Florida Rock's real property as "extractive." In 1990, after the State of Florida, Department of Community Affairs challenged the "extractive" designation in the County's 1989 plan amendments, the site continued to be designated "extractive." Citrus County simultaneously enacted its Citrus County Land Development Code (LDC or Code). At all such times, zoning and all maps also embraced the same "extractive" designation. Citrus County maintains two sets of land use maps. The Comprehensive Land Use Plan (CLUP or Comprehensive Plan) has a FLUM (a generalized land use map) and the LDC has attached to it atlas maps on a smaller scale. The LDC maps are identical to the county tax assessor tax maps and show individual parcels/lots of record. Such parcels defined by the Comprehensive Plan and LDC text have a land use designation as associated with each. Mining operations are permitted on real property designated "extractive." Under the LDC, when an application is submitted, it must be reviewed for completeness and the applicant notified within three days of whether the application is deemed complete or incomplete. If the application is deemed incomplete, the applicant must be advised of how the application should be amended or supplemented in order to be deemed complete for technical review. The applicant then may amend or supplement the application. Once a determination of completeness has been made, a technical review must be completed by each member of the technical review team within ten days, and thereafter, a series of committee meetings and public hearings may follow. During this portion of the procedure, amendments to the application may be required before the development order is ultimately granted or denied. Citrus County's land use amendment process began on April 10, 1992, before Florida Rock's application was submitted to the LDDS. Florida Rock had actual notice on April 10, 1992, that a change in its property designation from "extractive" to "rural residential" was pending, but no moratorium on development orders was imposed. Thus, the "rush to the Commission" began.1 On May 20, 1992, Florida Rock's application for a development order to permit mining on its real property was submitted to the Citrus County LDDS. The Department made four sequential determinations of incompleteness. At no time did Florida Rock ever amend its application or submit any supplemental material. On December 22, 1992, Citrus County's Board of County Commissioners adopted Ordinance 92-A73, to change the designation of the subject real property on the Comprehensive Plan from "extractive" to "rural residential." The ordinance does not recite any retroactive effect. No moratorium on development orders was imposed. Mining operations are prohibited on real property designated as "rural residential." On December 28, 1992, the Department made the determination of incompleteness which gave rise to this instant proceeding. Florida Rock has not affirmatively plead and has not proven that the Department made any of its incompleteness determinations arbitrarily, capriciously, discriminatorily, in bad faith or solely for purposes of delaying the process of a technical review on the merits of the project. In the absence of any formal allegation and affirmative proof, no improper motive or improper purpose by the Department can be found.2 The December 28, 1992, determination of incompleteness noted, in the following terms, the refusal of the applicant to supply certain assurances: The applicant is exempt from Section 4344 of the LDC only in regards to the bonafide [sic] agricultural or forestry purposes. Commercial forestry involves the harvesting or marketable timber not the wholesale clearing of all vegetation. Therefore, the impact on protected trees as defined by Section 4342.A and 4344.B needs to be addressed as it regards compliance with Section 4344 of the LDC. The application needs to reflect how this will be accomplished. Contrary to your statement, this item was previously referenced as Item 11 in my letter of May 29, 1992. While vegetative removal of unprotected trees as defined in Section 4343.A.6. of the LDC is acceptable, the issue of protected trees as defined in Section 4344.B of the LDC is still unaddressed in your application submittal. The submitted site plan indicates a setback of less than the 3000 feet from residentially committed areas as required by Section 4525.A.8.1 and 4531.E.1. of the LDC regarding expansion of existing mines. Interpretation of the LDC is addressed in Section 1410 of the LDC and so the attached interpretation is not applicable. Please revise your site plan to reflect this set back or resubmit your application after vesting pursuant to Section 3160 through 3163 of the LDC has been determined. Pursuant to Section 380.06(4)(b)F.S., Citrus County believes that Florida Rock Industries operations within Hernando/Citrus Counties may exceed DRI threshold. Therefore, please provide a letter from DCA resolving this matter. In regard to your position that DCA has not formally requested a binding letter, please note that the above referenced citation specifies the state land planning agency or local government with jurisdiction over the land on which a development is proposed may require a developer to obtain a binding letter. Based on information made available to this Department, we believe a determination is called for. In regards to the requested items 23 through 34 of my letter of May 29, 1992, please be advised that Section 4659.F. of the LDC requires proof of compliance with all applicable Citrus County regulations and policies. This includes the Comprehensive Plan (C.O. 89-04) and its amendments. The information requested is to assure that the proposed development will be in compliance with the Comprehensive Plan. None of the reasons listed in the December 28, 1992, determination of incompleteness specifically stated that Florida Rock could not qualify for a development order for mining because its real property had just become designated by the December 22, 1992, ordinance as "rural residential," instead of "extractive." Indeed, the December 28, 1992, determination of incompleteness did not mention the ordinance change at all. However, its fourth paragraph concerns the requirement that an applicant establish its real property's consistency with the Comprehensive Plan. The County has taken the position that, without using the terms "extractive use" or "rural residential," paragraph four encompasses the change of ordinance as well as all matters pertaining to the Comprehensive Plan. Under the statutes in effect on December 22, 1992, Ordinance 92-A73 was not effective until filed with the Secretary of State. (See the face of the ordinance). The exact date of its filing was not stipulated, but it was agreed that filing occurred sometime in December 1992. Under Florida's growth management process, the newly adopted ordinance also was transmitted to the State of Florida, Department of Community Affairs, which would then issue a report before the new ordinance became part of the Citrus County Comprehensive Plan.3 On January 3, 1993, Florida Rock challenged, pursuant to Section 163.3184(9), Florida Statutes, the new ordinance as it progressed through the Florida Department of Community Affairs' review process. On January 19, 1993, Citrus County's LDDS sent a letter to Florida Rock, further interpreting its December 28, 1992, determination of incompleteness. That letter also made no specific mention of the ordinance amendment and did not amend the fourth paragraph of the incompleteness determination. It provided, in pertinent part: For the record, my letter of December 28, 1992, was not a "Denial" but rather a determination of incompleteness pursuant to Section 2222.B.1 of the Land Development Code. In response to your question of January 12, 1993, I was not persuaded by your argument in regards to access by way of Parcel 22100 lying in Section 36, Township 20 South, Range 19 East, but did recognize the driveway onto County Road 581. Florida Rock declined to amend its application or supply the information requested. On January 26, 1993, Florida Rock initiated the instant administrative appeal of the December 28, 1992, determination of incompleteness. However, by agreement of Florida Rock and Citrus County, the appeal was abated until January 13, 1999 (see the Preliminary Statement), when it was transferred from a local hearing officer to the Division of Administrative Hearings. Florida Rock's challenge of the ordinance before the Florida Department of Community Affairs also did not progress in a timely manner. On February 6, 1998, Florida Rock's challenge to the new ordinance was dismissed. The effect thereof is that the Florida Department of Community Affairs has found, and entered a Final Order pronouncing, Citrus County Ordinance 92-A73 to be in compliance with Chapter 163, Florida Statutes, pertaining to Florida's Local Government Comprehensive Planning and Land Development Act. That Final Order, as final agency action, was not appealed. By any interpretation, Citrus County's Comprehensive Plan, embracing the new ordinance's land use designation of Florida Rock's property as "rural residential" has been in effect since February 1998, as have been coordinated zoning, FLUM, and LDC atlas maps. Since December 22, 1992, the ordinance has designated Florida Rock's proposed site as "rural residential," which precludes the proposed mining operation. Since February 1998, the Comprehensive Plan, FLUM, and LDC atlas maps have all embraced, and currently all of them now embrace, the ordinance, and all of them prohibit mining or "extractive use" of the real property in issue.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Citrus County Department of Land Development Services enter a final order dismissing the appeal for mootness. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 4th day of June, 1999.
The Issue The issues for determination in this proceeding are whether DER properly asserts jurisdiction over the site in question, and whether Petitioner (Vatalaro) is entitled to a permit to fill that site.
Findings Of Fact Sometime in 1986, Billie Vatalaro purchased approximately eleven acres within an approximately 20-acre wetland contiguous to Lake Rouse in east Orange County, Florida. Approximately five acres of the Vatalaro parcel are in the lake itself. In June 1987, personnel from Orange County's planning department and environmental protection department visited the site in response to reports of illegal filling. Correspondence ensued, and meetings were held among Mrs. Vatalaro and her sons and the staff from Orange County. In the meantime, some activity on the site continued, including clearing of trees and vegetation and sometime in January 1988, Mrs. Vatalaro obtained from the Orange County building department building permits and septic tank permits for two houses on approximately 1/2 acre of the property. In early February 1988, the Orange County Environmental Protection Department requested the involvement of DER. Jurisdiction Pamela Thomas is an environmental specialist with DER in the Orlando office. She first visited the site on February 8, 1988, with DER's enforcement officer, a staff person from Orange County, Mrs. Vatalaro, and Mrs. Vatalaro's sons, Russ and Ron Vatalaro. She performed a jurisdictional determination on the occasion of that visit, and returned for subsequent visits on July 20, 1988 and February 22, 1989. Jurisdictional determinations were made pursuant to Rule 17-4.022 F.A.C. (Since renumbered as 17-3.022). This required locating the water body of the state, Lake Rouse, and a determination of whether there is a connection of the water body to the adjacent wetlands. The vegetation is then examined to determine whether canopy, sub-canopy or ground cover will be analyzed. Within the rule are two tests, one used when submerged species predominate, the other used when the wetland vegetation is more transitional. Ms. Thomas located Lake Rouse and found no berms or other barriers between the lake and the wetlands. She also performed transects, visually sampling segments of the area and determined there was continuity between the lake and landward to the site in question. She found a full mature canopy in the uncleared area and loblolly bay, a submerged species, dominated. This area, between the lake and cleared site met the first ("A") test in Rule 17-4.022, F.A.C. The submerged plus transitional species were greater than 50 percent of the vegetation, the submerged species was greater than 10 percent and exceeded the upland species present. Because a portion of the area had been cleared, it was necessary to attempt to reconstruct what vegetation had existed prior to clearing. The cleared area included tall spindly pine trees spaced to indicate that other trees had been growing between them. The pine trees which did not have fill next to them were sitting on hummocks, a common phenomena in wetlands. Within the disturbed area Ms. Thomas found two bore holes where previous soil borings had been done. She and the DER enforcement officer determined by examining those holes that substantial fill had been placed in the cleared area. Root mat was more than ten inches below the surface and water was standing in the bottom of the holes. In order to reconstruct what vegetation had been present in the cleared area, Ms. Thomas completed a series of three feet by ten feet visual transects fanning out into the thicket from the cleared area. The dominant species were Ioblolly bay (gordonia), sweet bay and dahoon, all submerged species. It was apparent that the predominance of trees that had been removed were submerged species, mainly Ioblolly bays. As reconstructed, the biomass in a transect would have been greater than the sum of the biomass of the pine trees. This reconstruction was further validated on subsequent visits to the site when juvenile loblolly bay trees were found seeded and thriving in the disturbed area, but no pine seedlings were found, even though there was adequate time for that to occur. DER staff also viewed aerial photographs provided by the Valataros, taken in 1984, prior to major clearing and in 1987, after the clearing. The photographs are on a scale of 1 to 300 and do not indicate a drastic change in the area that would reflect that the cleared area had been mostly pine trees. The photographs are not of such quality that a conclusive determination can be made on them alone. David Kriz is an area resource soil scientist with the U. S. Department of Agriculture Soil Conservation Service. He visited the site with representatives of DER and Mrs. Vatalaro on July 20, 1988, at the request of DER. He performed three soil borings, the first in an area of bay trees outside the area cleared for the house. This boring revealed Samsula muck, a hydric soil, indicative of being saturated or flooded. The second boring was taken within the area designated for the house pad. This yielded about fifteen inches of fill, then St. Johns soil, an organic sandy layer, which can be hydric if inundated for more than thirty days in a year. It was impossible to determine whether this specimen was hydric, because this surface had been disturbed and filled. The third boring was taken just off the pad, but still in the cleared area. It yielded about nine inches of sandy fill and Samsula muck below, similar to the first boring, and clearly a hydric soil. St. Johns fine sand also appears on the site in a USDA soil conservation map of Orange County. The map is a good guide, but cannot be relied upon without ground tests in specific sites as the scale on the map is 1 to 20,000. Although distinct soil zones are indicated, in fact there are transitional areas between soil types in the zones, which means that in a transitional zone there may be either wet or dry areas. It would be virtually impossible to determine the soil type prevalent in Mrs. Vatalaro's cleared half acre, without the borings. DER properly concluded that it has jurisdiction over the site. Petitioner's expert, William Dennis, concedes that most of the Vatalaro property is within DER's jurisdiction, including a substantial portion of the cleared area, most notably the 43 by 100 foot cleared finger extending south from the cleared area designated for the house. In performing his jurisdictional analysis, Dr. Dennis concentrated on the cleared area. He did not complete transects. He counted and measured trees, and with the aid of a compass, sited them on a chart, received in evidence as Petitioner's exhibit #13. Within the cleared area he found a predominance of pines, and upland species (71%) and some submerged and transitional species (4.8% and 24.2%, respectively). This, he concluded, failed the jurisdictional test described in paragraph 7, above. Dr. Dennis also examined the aerial photographs and determined there was a vegetation break extending approximately 30 feet into the thicket from the northwest corner of the cleared area. He counted and measured trees in that area and found 14.8% submerged species, 35.4% transitional species, and 49.8% upland species. That area failed the jurisdictional "A" test because the submerged species did not outnumber the upland species present. Extrapolating from this finding, he concluded that the upper part of the cleared area designated for placement of the house, is outside of DER's jurisdiction. This conclusion is unreliable. The aerial photographs, particularly the pre-clearance photographs from 1984, are not crisp and clear. It is also possible that in looking at an aerial photograph, the tallest trees, the pines, would overshadow the other species which are also four inches or greater in diameter breast height (DBH) and are, therefore, equally significant. Rule 17.4.022(1)(c), F.A.C. provides that belt transects be used when the line demarcating the landward extent of waters of the state cannot be determined visually or by photo interpretation. DER, but not Mr. Dennis, relied on belt transects. Rule 17.4.022(I)(d), F.A.C. provides that other methods may be used as long as the department and applicant both agree in writing, to the method used. DER did not agree with Dr. Dennis' method. Counting trees in an area that has been disturbed is not a reliable means of establishing what existed prior to clearance when substantial evidence suggests that the clearing left the pines but eliminated the predominant submerged and transitional species. Section 403.8171(5), F.S. provides a "back-stop" to the vegetative jurisdictional determination by providing that "...in no case shall [the landward extent of the waters of the state] extend above the elevation of the 1- in-10-year recurring flood event or the area of the land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward." The petition in this proceeding raised the issue of the jurisdictional backstop but the application and evidence at a hearing fails to include sufficient information to substantiate that this alternative applies. Generally, a study would be required, and the applicant has not provided such. The Merits of the Application The wetland contiguous to Lake Rouse, within which the Vatalaro property is located, comprises approximately 20 acres. It is the only mature forested wetland of its quality within a large region of east Orange County. This wetland provides a filtration function contributing to the water quality of Lake Rouse and to the waters of the region. The Lake Rouse wetland also provides flood abatement capacity via its soil and plants. The effects of the loss of this capacity in other severely impacted wetlands along the State Road 50 corridor have become evident. The altered areas are no longer able to provide water holding capacities. Wildlife which are residents of the area and which use the area as a stopover will be impacted by alteration of the habitat which they currently rely upon for food, cover, nesting and resting. Examples of those wildlife are ducks and other birds, raccoons, deer and opossums. Even though the proposed project will comprise only 1/2 to 3/4 an acre of the wetland, the impact is significant considering the unique quality of the wetland. Dr. Dennis agrees that alteration of the site would change the habitat value of the area and would impact the functions of the wetlands. He argues, however, that the effects of this project are minimal compared to the development which has already occurred in surrounding areas. Although the applicant has a building and septic tank permit and a Corps of Engineers permit, the regulations for those permits are not the same as the balancing criteria which DER must consider. The Orange County Planning and Environmental Protection Departments recommend denial of the project. No evidence was presented with regard to mitigation proposed or agreed to by the applicant.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered denying the application for fill permit. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. MARY CLARK 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 26th day of May, 1989. COPIES FURNISHED: Michael D. Jones, Esquire 996 Westwood Square Suite 4 Oviedo, Florida 32765 Vivian F. Garfein, Esquire Department of Environmental Regulation Twin Towers Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether the Tallahassee-Leon County Planning Commission (Planning Commission) should approve, approve with conditions, or deny the site plan application filed by the School of Arts and Sciences Foundation, Inc. (SAS). § 9-153, LDC.
Findings Of Fact Petitioner and Leewood Neighborhood Petitioner, Maye Walker, lives in Leewood Hills at 1305 Covington Drive. The "Leewood Neighborhood" consists of three small subdivisions: Leewood Hills; Lisa Park; and Piedmont Forest. The sole access into or out of the Leewood Neighborhood is Leewood Drive, which intersects with Thomasville Road at its eastern end. Cabot Road is a short road running from Leewood Drive to the eastern end of Covington Drive, which parallels Leewood Drive. Lisa Court is a short, dead-end street running from Covington Drive to the north in Lisa Park. Atwood Road is a somewhat longer, dead-end street running north from the western end of Leewood Drive and past the western end of Covington Drive to where it dead-ends in Piedmont Forest. School of Arts and Sciences SAS is located on a 4.03-acre campus at 3208 Thomasville Road. Thomasville Road is the eastern border of the SAS property. The Leewood Neighborhood lies to the south and west of SAS. To the north of SAS is the Piedmont Park Alliance Church. To the east, across Thomasville Road, is the Thomasville Road Baptist Church and Oven Park. SAS is a public charter school sponsored by the Leon County School District. The charter for the School was first approved by the Leon County School Board in April of 1998. By the terms of its charter, SAS may operate a K-12 school with up to 350 students. SAS actually operates as a K-8 school. When it opened, it had approximately 175 students, but enrollment has gone up since then. SAS students come from all over the Leon County School District. SAS's hours of operation are 9:30 a.m. to 3:35 p.m. with an extended day program available beginning at 7:30 a.m. and ending at 6 p.m. SAS operates on the former site of the Epiphany Lutheran Church and Day School. SAS initially leased the site in 1998 with an option to purchase. One of the conditions of purchase was obtaining necessary authorizations from the City for use of the site as a charter school. The City issued a land use compliance certificate (LUCC) on January 5, 1999, which confirmed the ability of SAS to use the Epiphany Lutheran Church and Day School site "for a K-12 Public Charter School." The LUCC also put SAS on notice that its school would be subject to the Education Element of the Comprehensive Plan and that a Type B site plan review would be the process required for adding buildings to the SAS site. (Normally, the type of addition requested by SAS would go through Type A site plan review, but exercising the discretion granted by the City Code, the City's Growth Management Department required a Type B site plan review, which adds a requirement for public notice to the review process.) All buildings currently in use by SAS existed on the site when SAS occupied it. Likewise, the playground on the southern side of the property and the asphalt, outdoor basketball court on the western side of the property were constructed by the Epiphany Lutheran Church and in existence when SAS occupied the site. When the Epiphany Lutheran Church occupied the site, school traffic entered the site from Leewood Drive and Cabot Road, exiting onto Thomasville Road. That traffic circulation pattern caused traffic to back up along Cabot Road and obstruct driveways when parents dropped off and picked up their children, which generated complaints from residents of the Leewood Neighborhood. In response to those complaints, SAS changed the traffic circulation pattern when it occupied the site and began operating. On Monday through Friday, 7:30 a.m. to 6:30 p.m., SAS used a one-way traffic flow through the SAS property, with vehicles entering from Thomasville Road and exiting the school south along Cabot Road to Leewood Drive then left to the intersection with Thomasville Road. A speed bump and stop sign exist at the exit from the SAS property onto Cabot. This change eliminated the traffic backups on Cabot Drive, shifting them to the interior of the SAS property. The traffic circulation pattern used by SAS has been posted on signs at the entrance to and exit from SAS. SAS also has made on an on-going effort to educate its parents as to proper traffic circulation, the need to observe stop signs and no parking signs, and the need to give neighborhood traffic the right-of-way. Unfortunately, not all parents have been compliant, and SAS's efforts have not been able to eliminate problems between parents of school children and residents of the Leewood Neighborhood. On weekends, the site is used by the Thomasville Road Baptist Church for overflow parking, and SAS's auditorium is used on some evenings for performances or other gatherings. For Sunday and evening use, traffic enters and exits onto Thomasville Road. This use of the SAS site does not cause traffic problems for the Leewood Neighborhood. SAS's charter requires it to offer bus service to the students of the school. Bus service is provided by the Leon County Public School District, and the bus number and schedule are determined by the school district based on a number of logistical factors. Currently, eight buses serve the school in the morning and six serve it in the afternoon. SAS's First Addition Proposal On January 6, 2001, SAS obtained another LUCC, which identified the site as "potentially eligible for a 16,559 square foot addition to the existing 15,077 square foot Arts & Sciences Charter School" and identified the applicable review process. It is not clear from the evidence whether SAS ever intended to add 16,559 square feet of building space to its existing campus, as opposed to adding a net of 1,482 square feet for a total of 16,559. In any event, no application was filed to add 16,559 square feet. Instead, a site plan application was filed to add approximately 2,000 square feet of space for a media center and additional classroom. The site plan was designed to accommodate a total of 225 students.4 It is not clear from the evidence what student enrollment at SAS was at the time of this application. However, the evidence was that student enrollment was 211 in February 2002. Although the evidence was that student enrollment can vary during a school year, it probably was approximately 211 during the 2001/2002 school year. During the process of the Type B site plan review of this application, it came to the attention of the City that SAS was not in compliance with vegetation buffers imposed by a Leon County environmental permit issued to the Epiphany Lutheran Church prior to October 1, 1990. SAS was not aware of the requirement before the City required compliance in the spring of 2002. In response, SAS spent approximately $16,000 replacing vegetation buffer along the western boundary of its property and along the southern boundary extending to the east as far as the driveway access to Cabot Road. SAS also added an eight-foot high wood fence along the western boundary line and replaced a low, chain-link fence along the southern boundary, to the east of the driveway access to Cabot Road, adjacent to a residential lot fronting on the east side of Cabot Road, and separating the lot from a kindergarten playground, with an eight-foot high wood fence. It is not clear from the evidence whether an eight-foot high wood fence also was placed along the southern boundary of SAS's property, just north of Covington Drive, west of the driveway access to Cabot Road. There was testimony suggesting that this was done, but the revised site plan under review does not show it.5 In April 2002, the DRC denied SAS's site plan application. Although other grounds for denial were cited as well, one ground for denial was that comprehensive plan and land development regulation provisions for school siting were applicable and precluded site plan approval. When SAS learned it was being denied on that ground, it consulted Dr. Jim Croteau, now Acting Assistant Superintendent for Business Services and Executive Director for Planning and Policy at the Leon County School District. Dr. Croteau was the School Board’s lead on the Education Element of the comprehensive plan, and was the primary drafter of the Education Element. He explained to the City's Planning Department staff that the Education Element applied only to new facilities. Based on these discussions, the City's Planning Department staff reexamined the issue and agreed with Dr. Croteau. SAS was informed of the re-evaluation of the application of the Education Element but was told it had to reapply for site plan approval. SAS's Second Addition Proposal (at Issue) At this juncture in the application process, SAS attempted to further alleviate traffic impacts to the Leewood Neighborhood by proposing a new traffic circulation pattern that would not use Cabot Drive at all. But while SAS thought it possible to have passenger cars enter and exit the site via the Thomasville Road driveway access, it was impossible to devise a way for school buses to also use such a traffic circulation pattern. Then, the City and SAS approached the Piedmont Alliance Church to the north in an attempt to share driveways with SAS, but those efforts ultimately were rejected by the Church. As a result, SAS redesigned its project to turn cars around on the site so that they would enter and exit at Thomasville Road, but with bus traffic routing remaining unchanged. On August 9, 2002, SAS filed a new application with the City for approval of the new site plan. Similar if not identical to the previously denied application, the site plan proposed to add an approximately 1,043 square-foot building for a media center and additional classroom at its campus. (The building being added had two floors, so the additional floor area was twice the square-footage of the building, actually 2,238 square feet.) However, the new traffic circle was proposed as part of this application. It is not clear from the evidence what student enrollment at SAS was at the time of this new application. However, the evidence was that student enrollment was 226 at the end of the 2002/2003 school year. Although the evidence was that student enrollment can vary during a school year, it probably was approximately 225 during the 2002/2003 school year. City staff had numerous concerns with the new site plan, including the potential for dangerous conflict between pedestrians and car and bus traffic. In addition, the redesigned project would require changes to the driveway that would impact stormwater treatment and require the placement of stormwater facilities within the 25-year floodplain. On January 27, 2003, the City's (DRC) denied the applications, as submitted. After further discussion with the City's staff, SAS submitted a revised site plan application on March 8, 2004, which reverted to the one-way, flow-through traffic circulation that has been in effect since SAS has been in operation on the site (and eliminated the need to impact stormwater treatment or require the placement of stormwater facilities within the 25-year floodplain). On March 23, 2004, the DRC approved the revised site plan, with conditions, including a 225 cap on student enrollment. While SAS's site plan application is to add a two-story building addition to provide an additional classroom, as well as a media center, SAS intends to utilize the new classroom instead of an existing undersized classroom, which will become a conference room, so that the number of classrooms will not increase. SAS's representatives testified that the purpose of the addition was not to increase the student population, and SAS agreed to the 225-student cap as a condition of site plan approval, even though current enrollment is approximately 230. School Siting Provisions Inapplicable The evidence was clear that, while some City officials have suggested at earlier points in the site plan review process that compliance with comprehensive plan and land development regulation provisions for school siting were applicable and precluded site plan approval, those provisions actually do not apply to site plans for additions to existing schools. As stated in the City's Planning Department staff report dated March 17, 2004: "The proposed development is not inconsistent with the goals, objectives, and policies of the Education Element of the Tallahassee-Leon County Comprehensive Plan. The provisions of this element include requirements for determining the appropriate locations for new educational facilities but do not address the expansion or modification of existing, established educational facilities." The wording of the Education Element, Objectives 1.2, Policies 1.2.1, 1.2.5, 1.2.7 and 1.3.1 illustrate the intent to apply only to new facilities. If the Education Element applied to existing facilities, many capital improvements, including some planned with sales tax money, would not be able to proceed on many existing schools. As many as half of the District's existing school sites would not be in compliance with the Education Element of the Comprehensive Plan. SAS's property is categorized as Residential Preservation land use on the Comprehensive Plan Land Use Map and is located in a Residential Preservation 1 zoning district. Schools are an allowable use in these comprehensive plan and zoning categories. The Comprehensive Plan and the LDC contain similar identical matrices which prohibit connection of a community service facility to a local road and require planned unit development (PUD) review. But the evidence was clear that those provisions apply only new land uses, not to evaluation of an existing use. Traffic and Noise Impacts of Proposal at Issue The evidence was that, in order of preference, the Piedmont Park Alliance Church driveway was the best for sight distance, with Leewood Drive being almost as good. From a traffic safety standpoint, exiting cars back onto Thomasville Road at the existing SAS driveway was the worst option for two reasons: it had the poorest sight distance of the alternatives; and the median opening on Thomasville Road allowed for the interaction of vehicles from two opposing driveways (SAS's and Thomasville Road Baptist Church's). The evidence suggested that, in May 2004, SAS was adding approximately 300 car and bus trips a day to other neighborhood traffic traveling south on Cabot Drive and east on Leewood Drive to Thomasville Road. Even so, the one-way SAS traffic flowing through the campus and exiting at Cabot Drive tends to be fairly-well spread out. Students beginning to arrive from 7:30 a.m. for the extended day program up through the beginning of the official school day at 9:30 a.m., spaced at an average of 2- to 5-minute intervals, but with a more concentrated peak traffic between 8:45 and 9:30 a.m. In the afternoon and evening, students seemed to be picked up between 3:30 and 6 p.m., with two separate peaks, one between 3:30 and 4 p.m. and another between 5:30 and 6 p.m., but otherwise sporadically. A certain amount of noise generated by SAS's operations impacts at least parts of the neighborhood. There was some evidence to suggest that the proposed two-story addition would add to noise impacts of the basketball court and play area on the western end of the campus by adding to the echo chamber effect of existing building being added to (identified as the former parsonage of the Epiphany Lutheran Church). But at the hearing, SAS committed to construction in accordance with plan elevations placed in evidence as SAS Exhibit j, so that the proposed two- story addition would be attached to the east side of the existing building with a roofline that matches the roofline of the existing building to the west. As a result, while the significant noise impacts to the residents in the home to the immediate west of SAS are not to be taken lightly, the second story of SAS's proposed addition would not add to noise impacts. Because the proposed addition is not anticipated to increase the student population, the addition itself is not expected to increase traffic impacts--either through additional traffic or a different traffic pattern. For the same reason, the addition itself is not expected to increase noise impacts or other disturbances to the Leewood Neighborhood. However, it should be recognized that the purpose of the addition is to enable SAS to better accommodate an increase in student population from 175 when it first opened to 225 under the cap, which was allowed under the LUCC issued in January 1999. For this reason, for the protection of the Leewood Neighborhood, it is imperative that the 225 cap be strictly enforced. The evidence suggested that one way to do this would be to require SAS to report to the appropriate City enforcement officials if enrollment ever exceeds the 225 cap. Visual Impacts and Buffers As for alleged visual impacts from the addition on the residents in the home to the immediate west of SAS (especially from their second story), if constructed in accordance with SAS Exhibit j, not only would the second story of SAS's proposed addition not add to noise impacts, it would not be visible at all from the west. From the south (from sightlines along Covington Drive), even if no eight-foot wooden fence has been erected in that location, the existing vegetation buffer would remain and provide some visual buffer--approximately the same visual buffer that the vegetation was providing for the existing building (the old parsonage). To the extent that Petitioner raised a question as to efficacy of the vegetation buffer in that location, there was no persuasive evidence that the vegetation buffer was inadequate for the addition. From sightline through SAS's driveway access at Cabot Drive, the addition would be visible, but the existing building (the old parsonage) also is visible along those sightlines. A question also was raised as to the SAS's compliance with the vegetation buffer requirements--specifically, that some of the buffer has been removed improperly. Vegetation was removed in the area of the kindergarten playground, but that vegetation buffer was replaced by a privacy fence acceptable to the adjacent resident and by additional vegetation buffer farther to the east. Some vegetation also was removed incidental to installation of a privacy fence in the vicinity of the basketball court.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission approve SAS's site plan application, with the conditions recommended by the DRC, together with additional conditions: to report to the appropriate City code enforcement officials if SAS's student enrollment ever exceeds 225; and to limit the height of the proposed addition to the roofline of the existing building, as depicted in SAS Exhibit j. DONE AND ENTERED this 21st day of October, 2004, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2004.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
The Issue This proceeding concerns Lakepointe project, a development of regional impact (DRI) which was approved, with conditions, by Orange County. The developer contests certain of the conditions imposed by the County in its approvals of the DRI and the related rezoning. More specifically, the Petitioner has alleged that the County acted in an arbitrary and capricious manner, and contrary to the essential requirements of law by: eliminating free-standing commercial uses from the project and requiring that all commercial activities be internalized within office buildings and included within the office square footage; imposing a 10,000 square feet per acre limitation on all office development and reducing the total square footage from 805,000 to 756,000 square feet; limiting structures to 35 feet in height; requiring that all office buildings within the project be designed with "residential scale and character"; reducing the residential density and limiting the residential development to single family detached units on the north portion of the project in lieu of the multi-family, attached units proposed by Petitioner; and imposing uplands buffer requirements that reduce the amount of acreage available for development. Petitioner seeks to have the Florida Land and Water Adjudicatory Commission enter a modified development order eliminating these conditions. Orange County and the City of Maitland contend that the challenged conditions are reasonable, given the facts and circumstances surrounding the project, and that they are consistent with the requirements of law. Certain ancillary issues raised by the parties were eliminated through rulings of the hearing officer during the proceeding. Petitioner sought to present extensive evidence that the process by which the County arrived at its conditions of approval was improper as it relied unduly on the demands of the City of Maitland whose jurisdictional boundaries abut the project. Petitioner claims that the City and County reached an agreement on the project which was illegal as it did not comply with the provisions of section 163.3171, F.S. Although some evidence was permitted, and the issue is addressed in this recommended order, the issue is deemed irrelevant. As more fully explained in the conclusions of law, the de novo nature of this proceeding cures the procedural defects claimed by Petitioner. For a similar reason, the hearing officer denied a joint motion in limine by Orange County and the City of Maitland that would have precluded Petitioner from presenting any evidence related to conditions to which it did not expressly object at the December 14, 1987, public hearing conducted by the County.
Findings Of Fact The Parties Battaglia Properties, Ltd. (BPL) is a Florida limited partnership whose mailing address is Post Office Box 770398, Winter Garden, Florida 32787. BPL is owner and developer of the property that is the subject of this proceeding. As such, BPL has standing to initiate this appeal pursuant to section 380.07, F.S. (APS, statement of admitted facts, paragraph 3). Orange County (County) is a charter county and political subdivision of the State of Florida, authorized to issue "development orders", as that term is defined in section 380.031(3), F.S. and section 163.3164(6), F.S. (APS, statement of admitted facts, paragraph 4). The City of Maitland, Florida (City, or Maitland) is a municipal corporation which has properly intervened in this proceeding. (APS, statement of admitted facts, paragraph 5.) The Site and its Environs The property that is the subject of this appeal comprises 120.6 acres located north and south of Maitland Boulevard in unincorporated Orange County. The south portion consists of 33.3 gross acres and the north portion is 87.3 gross acres. The City of Maitland surrounds the property on three sides: east, south and west. An adjacent parcel owned by Petitioner, east of the property, lies within the incorporated city limits of Maitland. Together, the parcels constitute a development of regional impact (DRI) located within more than one local government jurisdiction, referred to as the "Lakepointe Project" or "Lakepointe DRI/PD". This appeal, and thus this order, address only that portion of the project located in unincorporated Orange County. Maitland Boulevard is currently constructed as a four-lane divided, limited access, principal arterial with interchanges at Interstate 4 on the west, and US 17-92 (Maitland Avenue) on the east. The Battaglia family has owned the property for approximately thirty- five years and has used it for citrus groves. At the time that the property was purchased by the Battaglias, the area was largely rural. Maitland Avenue (US 17-92) was a two-lane road, and Maitland Boulevard was a dirt road. I-4, approximately 1/4 mile to the west was constructed in the 1960's. Subdivisions and a school were constructed south of Sandspur Road, the southern boundary of the property, in the 1960's and 1970's. Around that time other residences were constructed north of the lakes on the northern boundary of the property. In the early 1970's, an office building was built to the east of the property, on the southside of Maitland Boulevard; and Lake Faith Villas, a multi-family residential development, was built on the northside of Maitland Boulevard. A large Jewish Community Center was developed across from Lake Faith Villas, on the south of Maitland Boulevard. West of the Battaglia parcel, and north of Maitland Boulevard, the property is vacant and has been the subject of various development proposals. West of the Battaglia property, but south of Maitland Boulevard, is a large church complex, Orangewood Presbyterian. On the westside of I-4, north and south of Maitland Boulevard is a 230 acre office development, Maitland Center, zoned in the 1970's and developed in the 1980's. When Orange County first adopted zoning, in 1957, the Battaglia parcel was zoned R-1AA, allowing single-family detached units, not to exceed 4.4 units per acre (du/acre). When the County adopted its comprehensive plan in 1980, the parcel north of Maitland Boulevard was designated for low-medium density residential use (4.4 to 7.5 du/acre). The south parcel was designated for low density residential use (1.01-4.4 du/acre). These designations are reflected on Orange County's 1986 Future Land Use Policy Guide Map, included in the County's comprehensive plan, the 1986 Growth Management Policy (GMP). The City of Maitland Comprehensive Development Plan (CDP) also addresses the property for planning and informational purposes. Figure 7-1 of the Land Use District Map of the 1986 CDP designates the area as an "undeveloped district" (UD), with the north parcel designated UD 2, permitting single family residential, multi-family, and limited non-residential uses. The south parcel is within a UD 1 district, permitting single family residential and related uses. (Joint Exhibit #10, pp 7-26 to 7-30) When the Florida Department of Transportation acquired the right of way for Maitland Boulevard, it acquired all access rights, except at specific limited locations where shared access between adjoining properties is necessary. The right of way includes anticipated expansion of Maitland Boulevard to six lanes. Access points to the north parcel of the Battaglia property are at both ends, east and west. Access to the south parcel is at the west only, with a "stubbed-out" road that dead-ends before reaching Sandspur Road, on the southern boundary of the south parcel. Construction of I-4, Maitland Boulevard, and Maitland Avenue (US 17- 92) has substantially changed the area from its rural character to one of mixed uses. Although the areas north and south of the property are well-established residential neighborhoods with homes selling between $100,000 and $200,000, the corridor along Maitland Boulevard is not residential in character. No single- family residential subdivision has direct access to Maitland Boulevard. The subdivisions south of the property access Sandspur Road; and those to the north, on the north side of Lakes Faith, Hope and Charity, access small neighborhood streets. Other events occurred which directly impacted the Battaglia family's use of its property. During the decade of the 1980's, five major freezes occurred: January 1981, January 1982, December 1983, January 1985, and December 1989. A substantial portion of the grove, particularly on the south parcel, was destroyed or severely damaged. Some of the trees also passed the upper limits of their twelve to thirty year productive life span. The Development Plan In the mid-1980's the owners came to believe that citrus was probably not the best investment they could make on this property any longer, given the grove damage and the development that was occurring in the area. A planning firm was consulted, and a master development plan was created for the property north and south of Maitland Boulevard. [See Appendix B, attached] The mixed use development, called Lakepointe, was divided into six parcels, as follows, with parcels one and two to be developed in the relatively narrow portion south of Maitland Boulevard, and four through six on the deeper and larger northern portion: Parcel Land Use Acreage Units 1 office 28.3 240,000 (gsf) gross square feet 2 multi-family 5.0 50 du (10 du/a) 3 office/ 3.3 35.000 gsf commercial 6.000 gsf 4 commercial 4.0 12,000 gsf 5 office 35.0 530.000 gsf 6 multi-family 12.0 100 du (8.3 du/a) greenbelt 2.8 entrance road 1.1 lakes 29.1 120.6 ac 805.000 gsf office 18,000 gsf commercial 150 du Under the plan, commercial use in parcel 3 was limited to financial institutions, and in parcel 4 was proposed to be a "quality restaurant". (Joint Exhibit #7; Battaglia Exhibit #2 (a), p. 12-2; APS, p. 6.) The narrative description accompanying the master development plan proposed a height limitation of 35 feet for those structures to be located south of Maitland Boulevard and for the structures to be located on parcel 6. A 55- foot height limitation was proposed by Petitioner for the office and commercial structures on parcels 3, 4, and 5, north of Maitland Boulevard. The Petitioner also proposed a 50-foot wide uplands greenbelt buffer, located landward of Lake Hope and its adjoining conservation areas, along the northern boundary of parcel 5, to provide additional open space and buffering for the 55-foot buildings that were proposed (APS, pp. 6-7). The offices to be located on parcel 1 were proposed to be of "residential scale", due to the limited depth of the parcel and to minimize detrimental impacts on nearby residential uses. (Battaglia Exhibit #2 (a) p. 12-6) A 25-foot buffer was proposed around the multi-family residential use proposed for parcel 6. (transcript, pp. 1173-4) Parcel 6, located in the far northwest portion of the property, is also called "Pine Island" for its unique vegetation. Its approximate 12 acres have never been cultivated in groves, but rather have been allowed to flourish in dense pine and oak trees. It protrudes, like the thumb of a mitten, into the area between Lakes Hope and Charity, and is separated from the subdivision to the north by a drainage divide densely vegetated with grasses, reeds and other plants associated with the presence of a high water table. (transcript, p. 1173) Petitioner's plan for parcel 6 considered the unique character of this portion of the property and proposed attached, multi-family units which would allow maximum flexibility in designing roads and parking and in preserving open space. The Application Process Due to the more extensive grove damage on the south property, Petitioner initially elected to proceed with development there first, and to continue cultivating its citrus on the north. Over the objection of the residential neighbors across Sandspur Road, on October 28, 1985, the Orange County Board of County Commissioners approved Battaglia's request to rezone the south parcel from R-1AA to Planned Development (PD) with office buildings and some multi-family units. The office park was permitted access limited to Maitland Boulevard, and the residential parcel was permitted access to Sandspur Road, with no access between the two parcels. The project was called Sandspur Grove PD. The City of Maitland area homeowners challenged the rezoning and prevailed in Circuit Court. However, the rezoning was reinstated when the Circuit Court was reversed on appeal. See Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988). In the meantime, the owners determined to pursue the entire development, and in April 1986, filed an application to rezone the north parcel from R-1AA to PD, and an application for Development Approval/Development of Regional Impact (ADA/DRI). On June 11, 1987, Petitioner filed its application to amend the Future Land Use Policy Guide Map contained in Orange County's comprehensive plan to a classification appropriate for the land uses proposed in the Lakepointe DRI/PD, as shown on the Master Development Plan (APS, p. 5). A detailed traffic study in support of the proposed Lakepointe Master Plan was included in the DRI application. Orange County and Maitland reviewed and approved in advance the methodologies and assumptions used in the traffic study. The study included traffic growth applicable to all vacant properties in the traffic impact area, including projected trips from 65,000 square feet of commercial retail. On March 29, 1987, the East Central Florida Regional Planning Council (ECFRPC) issued its final recommendation on the Lakepointe DRI. It recommended approval with conditions, eight of which address traffic, including the recommendation that phase III not proceed until Maitland Boulevard is six-laned, unless monitoring concludes the improvement is not necessary. (Joint Exhibit #8) The ECFRPC also noted in "issues of local concern" that the project is virtually surrounded by the City of Maitland and would have a significant impact on the City and its citizens, and that the project appears to be inconsistent with the Maitland Comprehensive Plan. The ECFRPC recommended that full review of the project be made at a joint public hearing conducted by the City and County. (Joint Exhibit #8, pp. 47-48) The Petitioner did not request such a joint hearing on its application, as provided in Section 380.06, F.S. On April 9, 1987, the Orange County Development Review Committee (DRC) conducted a technical review of the proposed development. Representatives of the Lakepointe project were present and participated. The DRC is comprised of Orange County staff who review a project for compliance with Orange County regulations and make recommendations to the County's Planning and Zoning Commission. On the basis of the staff's technical review, such recommendations will ameliorate the impacts of the proposed development. (APS, p. 8) The approved Minutes of the April 9, 1987, DRC meeting reflect a staff recommendation of approval of the Lakepointe project with the following recommended modifications: Extending the 50-foot wide greenbelt area around the entire northerly perimeter of the PD and ending at the Department of Transportation drainage easement (Parcels 5 and 6). Prohibiting free-standing commercial uses on Parcels 3 and 4, and requiring the commercial uses to be located internally within office buildings. Limiting building height in Parcels 3, 4, and 6 to three stories (forty feet). Limiting building height on Parcel 5 within 100 feet of adjacent property zoned residential to one story and a maximum of 35 feet, while recommending a 4-story, 50-foot maximum height on the balance of Parcel 5. The approved DRC Minutes of April 9, 1987 recommended approval of 805,000 square feet of office uses, plus an additional 18,000 square feet of commercial uses (internalized within offices), and 150 multi-family dwelling units at the densities requested by Battaglia (10 du/a on Parcel 2 and 8.3 du/a on Parcel 6. (APS, pp. 8-9). On August 10, 1987, a joint work session was conducted between the Orange County Board of County Commissioners and the Maitland City Council. Representatives from the Petitioner and other citizens were present, but their participation was limited to occasional unsolicited comments. The purpose of the work session was to consider proposals for a joint agreement that would allow municipal jurisdiction over adjacent unincorporated areas for planning purposes pursuant to section 163.3171, F.S. As reflected in the litigation with regard to the Battaglia property, relations between the local governments were strained. The Lakepointe project was specifically discussed, and the group of council and board members appeared to reach some consensus on certain restrictions on the development: that any development on the property could not exceed 35 feet in height. that the attached multi-family units in parcel 6 be replaced with single family detached units at a density of 7.5 units per acre; and that all residential uses be deleted from the south parcel and replaced with residential scale offices. (Joint Exhibit #17, pp. 17, 23, 27, 28-30, 34-35). Even though votes were taken at the work session, the outcome was not binding on the board. Resolution of the various issues amounted to policy determinations which provide guidance to the staff. Nonetheless, the session concluded with some self-congratulation that the two bodies had been able to sit down amicably and work out tough problems. (Joint Exhibit #17, pp. 62-63). Edward Williams, Orange County's Planning Director and a member of the DRC, sent a memo to the DRC on November 11, 1987 outlining the conditions agreed at the August 10, 1987 work session and stating that certain conditions approved by the DRC should be modified and other conditions added. These included: No free standing commercial and the internal commercial use limited to 18,000 sq. ft. would not exceed 50% of any building. Maximum heights would be 35 feet. The residential uses north of Maitland Boulevard would be single family detached, at 7.5 du/a. Multi-family residential uses south of Maitland Boulevard would be eliminated and redesignated as offices. Building coverage would be no more than 10,000 sq. ft. per acre. The 33.3 acre office tract south of Maitland Boulevard would be limited to 333,000 sq. ft. and the 42.3 acre office tract on the north would be limited to 423,000 square feet. (Battaglia Exhibit #9) The DRC adopted Williams' changes. The Orange County Planning and Zoning Commission (P&ZC), an advisory body to the Board and appointed by the Board, considered the Lakepointe comprehensive plan land use map amendment and the DRI/PD application at two consecutive public hearings on November 19, 1987. The P&ZC accepted the 7.5 du/a single family residence restriction for Parcel 6, but recommended deleting the "detached" requirement, in favor of giving the developer additional flexibility. It also recommended computing the 10,000 square feet per acre office use on a gross basis both on the north and south parcels, rather than on a gross basis on the south and net on the north as the county staff had done. The change in computation resulted in an additional 39,000 square feet for offices on the north parcel when the 2.8 acre green belt and 1.1 acre entrance road are included. Other than these, the conditions urged by Edward Williams from the joint work session were adopted. (Joint Exhibit #18, pp. 106-109; Joint Exhibit #19) The Orange County Board of County Commissioners considered the Lakepointe comprehensive plan amendment, DRI application and PD zoning application at duly noticed and advertised public hearings on December 14, 1987. Representatives of the Petitioner and members of the public were present and participated. (Joint Exhibits #22 and 23; APS, p.4) Accepting the staff recommendations, but deleting the P&ZC recommended changes, the Board adopted an ordinance amending the Orange County Comprehensive Plan to accommodate the land uses associated with the Lakepointe project. It also approved the project as a DRI, and approved rezoning the north portion of the property from R-1AA to PD. (Joint Exhibits #2, 22 and 23) On February 22, 1988, Orange County issued a Development Order, pursuant to Section 380.06(14), F.S. memorializing the conditions of development approved by the Orange County Board of County Commissioners on December 14, 1987, for the Lakepointe DRI/PD. (Joint Exhibit #3) On June 12, 1989, the City of Maitland issued a Development Order pursuant to Section 380.06(14), F.S. for that portion of the Lakepointe project located entirely within the City of Maitland. This order relates only to the access road at the northeast of the project. (Joint Exhibit #4) The Orange County Board of County Commissioners and the Maitland City Council formally adopted an interlocal agreement at a duly noticed and advertised joint public hearing held on July 10, 1989. (APS, p. 10) The Development Order The Development Order for Lakepointe DRI consists of approximately 16 pages, plus the legal descriptions of the tracts. Although the order references a 120.3 acre project, the parties have stipulated, and the evidence reflects, that the project is 120.6 acres. (APS, p. 5) The preamble to the conditions of approval includes this language, which the County argues controls the ultimate disposition of this appeal: * * * * NOW, THEREFORE, BE IT HEREBY ORDERED by the County Commission of Orange County, Florida, that, subject to each of the following terms and conditions <<(each of which the County Commission found was necessary for inclusion for the County Commission to approve the Lakepointe DRI/PD project, and none of which could have been omitted or modified if the Developer expected the County Commission to approve the Lakepointe DRI/PD project),>> the Lakepointe Development of Regional Impact is APPROVED pursuant to Section 380.06, Florida Statutes (Supp. 1986), and the Land Use Plan for the zoning change on the northern portion of the Property from R-1AA to PD is approved: * * * (Joint Exhibit #3, p.3, emphasis added) * Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The order adopts the conditions of approval recommended by the ECFRPC, including the conditions regarding traffic impacts and monitoring/modeling. (Joint Exhibit #3, pp. 9-11) The order requires development in accordance with the DRI/ADA, and supplemental information, except as modified by the specific conditions of approval. (Joint Exhibit #3, p. 7) The relevant specific conditions (those contested in this proceeding) provide as follows: * * * II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION (A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. * * * * 2. The greenbelt (minimum 50-feet wide) shall be continued around the northerly perimeter of the PD, <<particularly along the northwestern boundary of Parcel 6 extending to Lake Charity and ending at the Department of Transportation ("D.O.T.") drainage right-of-way area.>> The greenbelt shall be located outside of designated conservation areas. A minimum 25-foot wide landscape buffer shall be provided around the balance of the perimeter of the PD (<<i.e.>> southerly perimeter of the PD situated immediately north of Maitland Boulevard). A reduction in the 25-foot buffer along Maitland Boulevard may be considered by Orange County staff at the development plan submittal stage (<<e.g.>>, reduced buffer width with wall screening). Specific landscape material for the entire buffer area shall be provided on the development plan submittal for County approval. 3. <<Free-standing commercial structure(s) shall be prohibited.>> The accessory or support commercial shall be located within the office buildings(s). The commercial uses are intended to serve the employees of the office development. The total professional office square footage shall include the square footage for any commercial uses, and the commercial use shall not exceed 18,000 square feet and no more than fifty percent (50%) for two (2)-story structures. * * * 7. <<Maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include the appropriate landscaping elements.>> Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum). * * * 14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. <<This residential development shall be low-medium density with a cap of 7.5 single family detached units per acre.>> (Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.) * * * <<Building coverage for office on the northern portion of the Property shall not be more than 10,000 square feet per net acre. The 33.3 acre office tract located south of Maitland Boulevard shall be limited to 275,000 square feet, while the 42.3 acre tract located north of Maitland Boulevard shall be limited to 481,000 square feet, for an aggregate total of 756,000 square feet.>> * * * (Joint Exhibit #3, pp. 3-7, emphasis added.) Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. The Conditions in Controversy Buffering the Northern Perimeter In its application Petitioner proposes a height of 55 feet for office buildings on the north parcel and a 50 foot uplands buffer landward of all conservation areas adjoining the offices on the northern boundary of parcel 5. The DRC reduced the height to 50 feet, for parcel 5, except within 100 feet of property zoned residential. Along the northern perimeter of parcel 6 (the residential use) Petitioner proposed a 25-foot natural buffer. The DRC originally had no problem with the residential density, but recommended extending the 50-foot upland buffer proposed for Parcel 5 around the northern perimeter of parcel 6. Petitioner contends that the 50 foot buffer is unnecessary if the office height and residential density are reduced. Buffers are required on any developer's land. In both Orange County and the City of Maitland, buffers are negotiated in PD's, based on existing factors and circumstances. The lakes along the northern perimeter of the property are between 1,000 to 2,000 feet across and are not effective light or noise buffers. The residential parcel (parcel 6) is separated from the existing subdivision by only a drainage canal and low vegetation. The 50-foot buffer between parcel 6 and Druid Hills (the existing subdivision) is not unusual. Buffer widths in PD's in the county range between 5 and 100 feet. In another case, the County required Buckingham at Lakeville to include a 50-foot wide buffer between residential uses of differing densities. In a case cited by Petitioner, Fairbanks Office Building, on Fairbanks Avenue in unincorporated Orange County, the developer, was required to provide only a 10-foot landscape buffer with a 6-foot wall, separating 46 foot high offices from an existing residential development. The wall, however, and the fact that the office park developer negotiated with the adjacent property owner to provide water and sewer service made that case unique and distinguishable from Lakepointe. (Transcript, p. 1132) No 50-foot buffer is required by the county for the southern boundary of the south parcel as the office uses on that parcel are separated from the single family residences by Sandspur Road and by Petitioner's proposed wall, berming and landscaping. Different requirements for the north and south perimeter are justified and appropriate. Prohibition of Free-Standing Commercial Structures Although there are well-established single family neighborhoods north and south of Maitland Boulevard between I-4 and Maitland Avenue (U.S. 17-92), those neighborhoods are separated from the Maitland Boulevard corridor by the lakes on the north and Sandspur Road on the south. The corridor itself is not residential in character. No single family residential subdivisions directly access Maitland Boulevard. From the beginning of the County's review of the project, however, the free-standing commercial uses proposed by the developer have been eliminated as inconsistent with the character of the portion of Maitland Boulevard east of I-4 and west of Maitland Avenue. The planning and zoning staff have sought to prevent strip commercial development of the type that has proliferated along other principal arterial roads, notably State Road 436, U.S. 17-92 and State Road 434. Free-standing commercial on parcels 3 and 4 would be the only uses of that type in this area of the Maitland Boulevard corridor, setting a precedent for other similar uses on adjacent properties, a trend vigorously opposed by the residential groups and by the City and County officials and their staff. Appropriate locations for free-standing commercial in the vicinity would be at U.S. 17-92, in downtown Maitland or west of I-4 (designated as one of the county's five "activity centers" in the GMP to concentrate high intensity uses and avoid encroachment into residential areas). Relevant policies from Orange County's GMP provide, as follows: COMMERCIAL POLICIES (Policies outlined in Sections 1.0 through 4.0 are applicable to all types of commercial activities within Orange County) GENERAL The County will encourage the concentration of expanded commercial facilities in centers suitably located to provide their market areas with accessibility and to discourage inappropriate roadway strip commercial uses. Uses generally considered as a suitable replacement for strip commercial activities include all types of residential uses, institutional development, or recreation areas and green belts. * * * 11.0 OFFICES AND PROFESSIONAL COMMERCIAL POLICIES Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks. * * * 11.1.3 Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses. * * * (Joint Exhibit #9, pp VI-21, VI-30) Prohibiting free-standing commercial, but permitting commercial corollary uses as described above, within the office buildings, appropriately effectuates those policies. The County has required other mixed-use PD's besides Lakepointe to incorporate commercial within office buildings. For example, since the early 1960's and '70s, planning studies for the area around the University of Central Florida have discouraged free-standing commercial uses to maintain a campus-like atmosphere and to avoid adverse impacts on the University. Some unspecified commercial use has been permitted in recent years. (Transcript, pp 397-398) Where free-standing commercial developments are permitted in DRI/PDs, the projects are generally much larger than Lakepointe (for example, Southchase with 3,000 acres and Lake Nona with approximately 7,000 acres), or are in an activity center (for example, Maitland Summit). (Transcript, pp. 1188, 1191) In approving or rejecting free-standing commercial uses the County considers each location as it relates to the road network, the relationship to other uses, compatibility with surrounding land uses in the area and the character of the area. (Transcript, p. 398) Maximum Height & "Residential Scale and Character" A 35-foot height limit for office buildings is mandated by the County's "straight" Professional-Office (P-O) zoning district requirement. (Joint Exhibit #11, Article XXXI, Section 6, paragraph 7) A special exception is permitted to increase the height, after consideration of the character of the neighborhood, the effect of the proposed use on the value of surrounding lands, and the area of the site. (Id., Section 5) The project in issue is a Planned Development (PD), however, allowing mixed uses and a greater degree of flexibility than available under straight zoning. The developer is required to submit a plan for approval, which plan identifies, among other details, the proposed building heights. (Joint Exhibit #11, Article XXXIX, Sections 1 and 6) For guidance, the County and developer look to performance standards in the straight zoning, although these are clearly not binding in PD zoning. The Petitioner voluntarily committed to a 35-foot height restriction on the south portion of the property. It also committed to a "residential scale and character" office development on the 28.3 acres that comprise Parcel 1 on the south. As part of the rezoning process the Petitioner showed photographs of residential scale office developments. In making those commitments, Petitioner considered the narrow depth of the south parcel and its proximity to residential uses (across Sandspur Road). It proposed 55-foot heights and a "campus-style" development for the offices on the larger northern parcels, to allow more open space, more landscaping and an opportunity for flexible design. Orange County's codes do not define the term "residential scale and character" and no guidelines or standards have been adopted to apply meaning to the term. Nor does the County have an architectural review board charged with making design decisions on development proposals. It is plain that both parties have some notion of what it means, as both have used the term throughout the plan approval process. For example, Orange County's Planning Director, Edward Williams, when asked by the Board for a definition at its final public hearing, suggested that "residential scale" projects include a roof type and architectural features compatible with what is found in a "typical residential area". Size, for example, a limitation of 5,000 square feet per building, is not necessarily appropriate in all residential scale projects. (Joint Exhibit #22, p. 75) "Residential scale and character" could include one to five very large buildings on the north parcel rather than multiple small buildings as envisioned on the south, according to Mr. Williams. (Transcript, p. 475) As recognized by the Petitioner, "residential scale and character" buildings are appropriate adjacent to existing residential areas. Petitioner also acknowledges that a 35-foot height requirement is appropriate on parcels abutting or close to existing residential areas. Parcel 5, however, is different. Its 35 acres is the largest, and by far, the deepest parcel in the plan. It is buffered from existing residential areas by the greenbelt, by the lakes, and by the proposed residential use on parcel 6, "Pine Island". The height restriction of 35 feet does not make sense in that parcel, and inhibits the creative use of open or green space and landscaping. In his presentation to the local government officials at the August 10, 1987 work session, Mr. Williams articulated County planning policy in the past as trying to "...go up with developments rather than covering the entire site with impervious surfaces. We prefer to have more open space." (Joint exhibit #17, p. 10) Petitioner seeks to target a different market for the offices on the south parcel than for those on Parcel 5 on the north. On the south, there are proposed approximately 18 office buildings averaging 15,000 square feet in size. On the north parcel, the proposal suggests larger buildings, with more open space. If the height is unreasonably limited, the open space is sacrificed. "Residential Scale and Character" is not limited to single-family residential scale, but can also be multifamily. A large building can be made to look residential. Several large office buildings on the north parcel can be designed to have a "campus" feel with a quadrangle or semi-circle configuration. Size alone does not create or negate "residential scale and character". 7.5 Single Family Detached Units Per Acre Petitioner has proposed attached, multi-family units at a density of 8.3 du/acre for the unique, heavily wooded parcel 6. This density is at the lower end of the "medium density" range, "over 7.5 to, and including 14.9 Du/acre" described in the County's GMP. (Joint Exhibit #9, p. VI-8.) The GMP promotes the use of this density to buffer low and low-medium density development from more intensive uses. The plan also encourages medium density residential subdivisions to "provide recreation and open space areas through the clustering of dwelling units". (Joint Exhibit #9, p. VI-11) The housing element of the GMP states these relevant goals: Socio-Economic Encourage development patterns which do not physically isolate low and moderate income and special needs groups from other sectors of society, especially in low density areas of the County. Recognize the need for and encourage the development of affordable housing for service employees working in Orange County. Examine the feasibility of creating new financial incentives for the development of low cost, affordable housing in Orange County. (Joint Exhibit #9, p. V-3) Petitioner's proposal is consistent with these policies. It seeks to buffer the low-density existing residential areas from the more intensive office uses in Lakepointe. It also seeks to preserve as much of the vegetation as possible, yet derive a benefit from the use of this parcel. It recognizes that residences accessible only through an office park may have a limited market. Its proposal is consistent with the County's goal of providing "affordable housing", and provides a convenient residential choice for persons who may be employed in the office park. The residential neighbors and City of Maitland sought the lower density and detached single family units precisely to avoid lower-income residents and more affordable units. (transcript, pp. 955, 958-59, 1003-04, 1046-47) In order to justify its accommodation of the interests of the local citizens, the County argues that a residential project, perhaps a condominium, could be designed with detached units, clustered together, or with zero lot lines. Visually, there is little difference between the attached units proposed by Petitioner and the County's suggestions for creative design. The latter suggestions do not satisfy the neighbors' desire to have units which are similar to their own, but they impose an unreasonable restriction on the Petitioner's flexibility. The Petitioner's proposal is consistent with Lake Faith Villas, an attached multifamily residential project to the immediate east of Petitioner's property on Maitland Boulevard, within the City of Maitland. Lake Faith Villas has a density of 10 du/acre. Office use limited to 10,000 square feet per acre Although the County's PD regulations do not specifically establish a 10,000 square foot per acre limit for offices, they allow the County to set reasonable, maximum amounts for different projects. The 10,000 square foot per acre limitation was derived from what Edward Williams claims is an average figure for professional office parcels in the county, and is more than the density sought and obtained by Petitioner for the south parcel when Sandspur Grove PD was approved. Other evidence suggests that the average square foot density for PO developments and PD developments in Orange County is closer to 12,000 (Transcript, p. 681-682), but the restriction is not so far off as to be patently unreasonable, considering Petitioner's plans for "residential scale and character" and "campus-style" projects. Computation of the total square feet for office uses was derived on a gross acreage basis on the south and a net basis on the north, ostensibly because the County was unable to ascertain from the development plan how much of the greenbelt and road should be allocated to parcel 6. (Transcript, pp. 436- 438) It is possible to compute gross acreage on the north property, using the parcels identified on Petitioner's master development plan (Joint Exhibit #7) [Appendix B] provided that the acreage allocated to parcel 6 is limited to twelve acres. It is obvious that this is what the developer intended when it derived 100 dwelling units at 8.3 du/acre, and 12 acres. (8.3 x 12 = 99.6) It is thus possible to be consistent and compute the office density allowance for both the north and south property at a gross density, just as the P&ZC did at its November 19, 1987, meeting. This results in a total of 795,000 square feet of offices, not 756,000, as reflected in the development order. As the Petitioner has agreed to limit the south property to 275,000 square feet, this leaves a total of 520,000 square feet for the north property. The County concedes that paragraph 19 of the Development Order, limiting building coverage for offices to 10,000 square feet per acre, does not preclude larger than 10,000 square foot buildings. (Proposed Finding of Fact, paragraph 115) That requirement should be amended in the interest of clarity, so long as the totals permitted for the north and south parcels are included in the order. This sentence, as it now reads, makes the condition internally inconsistent, as the second sentence permits 481,000 square feet on the 42.3 acre tract located north of Maitland Boulevard, more than 10,000 square feet per acre. (See Finding #41, paragraph 19, p. 21, of this recommended order) The Balancing Act: Weighing the Policies The process of review and approval of the Lakepointe project was one of compromise and accommodation. The Board and its staff considered comments from the applicant, the applicant's consultants, the City, the Regional Planning Council, homeowner's groups from both the County and City, and the City of Altamonte Springs. The County did not have a joint agreement with the City of Maitland, and its agreements with regard to conditions for the project were informal and non- binding. Nonetheless, the County considered the level of participation a necessary and appropriate exercise of intergovernmental coordination, as indeed it was. The applicant also exhibited willingness to accede to compromises throughout the process but never abandoned its original plan as it relates to the issues raised in this proceeding. It steadfastly defended the uses and densities it proposed, and in the end, agreed only to the deletion of multifamily units on the south parcel and transfer of that acreage to office use. This was a small DRI project, but a significant one to the owners and to the neighbors. It lacks the vast array of issues usually present in DRI's. There is little or no environmental impact and any traffic issues were resolved substantially though the ECFRPC review, even as to the proposed free-standing commercial uses and the densities originally proposed by the applicant. The single overriding issue here is land use. According to Planning Director, Edward Williams, the Orange County GMP includes some 900 separate policies to guide its decisions. These sometimes divergent policies must be balanced and weighed. (Transcript, p. 382) In this regard, the ultimate decision by the County was skewed. Some of the conditions it imposed, in the legitimate interest of preserving the character of surrounding neighborhoods, unduly ignored other equally valid policy considerations. The Developmental Framework Section of the County's Growth Management Plan lists this as its first goal: 1. To promote the orderly economic development of Orange County. Orderly economic development may be defined as maximizing the use of public dollar investments in facilities and services, such as water and wastewater systems, roads, schools, transit, law enforcement, fire protection, and parks. * * * (Joint Exhibit #9, p. II-13) As noted by James A. Sellen, one of Petitioner's two expert witnesses on the topics of comprehensive planning and zoning, the development proposed is appropriate because of the substantial public investment in the controlled access road and over-sized water and sewer infrastructure. Maintenance of land use as low density single family is contrary to that investment. (Transcript, p. 233-34) Commercial Policy 1.0.11 of the Future Land Use Element provides, in pertinent part: 1.0.11 The future conversion of existing residential land uses to non-residential may be permitted under the following conditions: When the general land use character of an area has undergone significant change and will lend itself to more intensive uses; Adequate access to major streets and highways network is provided, whenever possible common access drive shall be used; The carrying capacity on the abutting road segment exceeds 8,000 average daily trips (ADT); The proposed site for conversion has close proximity to a street intersection; All other applicable policies detailed for commercial or office land use in the Future Land Use Element of the Growth Management Policy are met; and, When sufficient area is available to accommodate the conversion, together with the needed improvements including parking, stormwater retention and vehicular turnaround movements. (Joint Exhibit #9, p. VI-22) The changes in the area along Maitland Boulevard support the change in land use from the currently designated 4.4 residential du/acre to the mixed use proposed by Petitioner. The Future Land Use Element's Commercial Policy 11.0, provides: OFFICES AND PROFESSIONAL COMMERCIAL POLICIES Offices and professional commercial developments are those which provide office space for the furnishing of professional services. Such uses may be located individually or in planned centers, such as office parks. Location and Compatibility Large office uses should generally locate adjacent to arterial thoroughfares that connect to an interstate or expressway in order to lend accessibility to a wider market area. Smaller office uses should generally utilize principal or minor arterials for site access and location. Office parks should be encouraged to include corollary uses such as office supply stores, banks, restaurants, conference centers and other compatible business and commercial uses. Office uses are compatible with adjacent community and regional commercial shopping areas and may provide a buffer between these shopping areas and nearby residential areas. Professional service office parks should locate on major collectors and minor arterials. (Joint Exhibit #9, p. VI-30) As cited in Orange County Ordinance No. 88-3, amending the Future Land Use Map relating to the Lakepointe DRI, the proposed new uses are consistent with these policies of the Growth Management Plan. (Joint Exhibit #2) Concern for the existing residential uses is supported by the following residential policies within the Future Land Use Element: LOCATION AND COMPATIBILITY General Residential areas shall be buffered from major transportation arteries, and from commercial and industrial land uses which are not compatible with residential development. New commercial development will be discouraged where there would be a detrimental impact on existing residential properties due to excessive noise, pollution, traffic congestion, unsafe highway conditions or where an unacceptable physical intrusion into residential neighborhoods would be created. * * * 3.1.3 Land development controls should ensure that future development which may allow a greater intensity of use is compatible with existing development. (Joint Exhibit #9, p. VI-9) In summary, the project, as proposed by Petitioner is substantially consistent with the County's Growth Management Plan, but requires some of the modifications imposed by the County as conditions of approval. Those modifications include the deletion of free-standing commercial uses; the enhanced buffer zone along the north parcels; reduction in height of all but the offices to be located on the large parcel 5, north of Maitland Boulevard; and offices that are designed "residential in scale and character". Other conditions imposed by the County, but contested by Petitioner, i.e., restrictions on the residential development on Pine Island and the height limitations for offices on Parcel 5, violate significant policies cited above without reasonably advancing the goal of protecting the existing character of the surrounding neighborhoods, and should be deleted. The computation of office use density should be amended to provide for gross densities for the entire property.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, granting Petitioner's appeal, in part, by amending the Development Order for Lakepointe DRI, as follows: [Deleted text of the order is struck through, and new language is underlined.] * * * * 7. The proposed development of the Lakepointe DRI/PD consists of the following: Total Acreage: Approximately [[120.3]] <<120.6>> Acres * * * 12. This Development Order also constitutes the development order approving the use of the Property pursuant to the Land Use Plan for PD for [[Low Medium]] <<Medium>> Density Residential, and Office/Commercial, as more particularly detailed in paragraph 7 of Part I of this Development Order. * * * II. CONDITIONS OF APPROVAL FOR THE REZONING TO PLANNED DEVELOPMENT, AND FOR THE DEVELOPMENT OF REGIONAL IMPACT, AS ADOPTED BY THE COUNTY COMMISSION [WITH MODIFICATIONS BY THE FLORIDA LAND AND WATER ADJUDICATORY COMMISSION.] (A) CONDITIONS OF APPROVAL AS RECOMMENDED BY THE ORANGE COUNTY DEVELOPMENT REVIEW COMMITTEE AND THE ORANGE COUNTY PLANNING AND ZONING COMMISSION, AS AMENDED. [Bracketed portion denotes new language, as the original is underlined.] 1. Development shall conform to each of the Orange County Commission conditions of approval, and to the Land Use Plan dated "Received April 3, 1986, Public Works and Development." Development based upon this approval shall comply with all other applicable federal, state, and county laws, ordinances and regulations which are incorporated herein by reference, except to the extent they are expressly waived or modified by these conditions or by formal action of Orange County. 7. <<Except for office buildings in Parcel 6>>, maximum height of the office buildings for the project shall be thirty-five (35) feet. Design of the office buildings shall be of a residential scale and character, and include the appropriate landscaping elements. <<Maximum height of the office buildings in Parcel 5 shall be fifty (50) feet, and their design shall be residential in character.>> Development within one hundred (100) feet of adjacent property zoned residential shall be limited to one story in height (and [35] feet maximum). * * * 14. Residential construction shall be started prior to completion of twenty-five (25%) of the office space. The residential development shall be completed before fifty percent (50%) of the office completion. These square footages relate to the portion of the PD located north of Maitland Boulevard. This residential development shall be [[low medium]] <<Medium>> density with a cap of [[7.5 single family detached]] <<8.3>> units per acre. [[(Development of the portion of Lakepointe south of Maitland Boulevard is controlled by the Sandspur Office Park PD litigation.)]] * * * 19. Building coverage for office[s] [[on the northern portion of the Property]] shall not be more than 10,000 square feet per [[net]] <<gross>> acre. The 33.3 acre office tract located south of Maitland Boulevard shall be limited to 275,000 square feet, while the [[42.3 acre]] tract located north of Maitland Boulevard shall be limited to [[481,000]] <<520,000>> square feet, for an aggregate total of [[756,000]] <<795,000>> square feet. Note: In the above quotation, language added to the statute is within the <<>>; deleted language is within the [[]]. Ordinance No. 88-3, amending the Future Land Use Policy Guide Map related to the Lakepoint DRI, should be amended to reflect the above. DONE AND RECOMMENDED this 28th day of March, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 March, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact Adopted in paragraphs 1 and 4. and 3. Adopted in paragraph 8. Rejected as unnecessary. Adopted in paragraphs 7 and 11. Adopted in paragraph 10. Adopted in paragraph 7. Adopted in paragraph 11. Rejected as unnecessary. Adopted in paragraphs 4 and 16. Rejected as unnecessary. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 21. Adopted in paragraph 14, otherwise rejected as unnecessary. and 17. Adopted in paragraph 14. Rejected as contrary to the weight of evidence, as to "best use", except in a very general sense; otherwise rejected as unnecessary. Adopted in paragraph 22. Rejected as unnecessary. Adopted in paragraph 22. Rejected as unnecessary. Adopted in paragraph 23. and 25. Rejected as unnecessary. Adopted in paragraph 24. Adopted in paragraph 26. Adopted in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 27. and 32. Adopted in paragraph 30. 33. and 34. Adopted in summary in paragraph 33. Rejected as contrary to the evidence and unnecessary. Rejected as unnecessary. Rejected as unnecessary and unsupported by competent credible evidence (as to how limited access points would prevent strip commercial development. Such development could be supported by internal service roads.) - 45. Rejected as unnecessary. Traffic was not the reason the commercial use was deleted. 46. - 49. Adopted in summary in paragraph 65. 50. and 51. Rejected as unnecessary. Adopted in paragraph 55. Adopted in paragraph 54. Adopted by implication in paragraph 57. Rejected as unnecessary and contrary to the weight of evidence, which evidence was that "residential in scale and character" does not preclude large buildings. and 57. Rejected as unnecessary. Rejected as contrary to the evidence, which established that "campus style" office buildings are not inconsistent with "residential scale and character". Adopted in paragraph 53. Rejected as unnecessary. Adopted in paragraph 44. and 63. Adopted in paragraph 57. Adopted in paragraph 60. Adopted in paragraph 42. Rejected as cumulative and unnecessary. Adopted in paragraph 62. Rejected as cumulative and unnecessary. and 70. Adopted in paragraph 61. Rejected as contrary to the weight of evidence (as to the appropriateness of the 25-foot buffer). Rejected as unnecessary. Respondent and Intervenor's Proposed Findings 1. and 2. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraphs 4 and 6. - 10. Adopted in paragraph 4. 11. and 12. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 12. Adopted in paragraph 7. and 17. Adopted in paragraph 10. Adopted in paragraph 7. - 21. Adopted in summary in paragraph 11. 22. - 29. Rejected as unnecessary. Rejected as contrary to the weight of evidence. - 32. Rejected as unnecessary. Adopted in paragraph 13. and 35. Adopted in paragraph 19. Adopted in paragraph 20. Adopted in paragraph 54. Rejected as unnecessary. 39. Adopted in paragraph 54. 40. - 43. Rejected as unnecessary. 44. Adopted in paragraph 14. 45. Rejected as unnecessary. 46. and 47. Adopted in paragraph 15. 48. Adopted in paragraph 23. 49. Adopted in paragraph 24. 50. and 51. Adopted in paragraph 25. 52. and 53. Adopted in paragraph 26. 54. Rejected as unnecessary. 55. Adopted in paragraph 27. 56. Rejected as unnecessary. Adopted in paragraph 29. - 60. Adopted in paragraph 27. Adopted in paragraph 30. Rejected as unnecessary. Rejected as unnecessary. Adopted in paragraph 30. - 68. Adopted in paragraph 31. Adopted in substance in paragraph 30. - 72. Rejected as unnecessary or immaterial. 73. and 74. Adopted in paragraph 32, in part, otherwise rejected as unnecessary or immaterial. 75. and 76. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 37. Adopted in paragraph 35. Adopted in paragraph 24. - 83. Adopted in paragraph 41. Adopted in paragraph 43. Adopted in paragraph 43. Adopted in paragraph 44. Adopted in paragraph 45. and 89. Rejected as unnecessary. Adopted in paragraph 41. Adopted in substance in paragraph 47. - 94. Rejected as unnecessary substance or immaterial. Adopted in paragraph 47. Rejected as unnecessary. Adopted in paragraph 48. Adopted in paragraph 51. Rejected as immaterial. Adopted in paragraph 47. Adopted in paragraph 41. Adopted in paragraph 52. Adopted in paragraph 53. - 106. Rejected as unnecessary or immaterial. Adopted in paragraph 41. Rejected as contrary to the evidence (as to the similarly situated nature of the 2 parcels). Adopted in paragraph 55. Adopted in paragraph 54. Adopted in paragraph 53. Adopted in substance in paragraph 54. Adopted in paragraph 55. Adopted in paragraph 59. 115. Adopted in paragraph 67. 116. - 122. Rejected as unnecessary or immaterial. 123. Adopted in paragraph 41. 124. Rejected as unnecessary. 125. Adopted in paragraph 65. 126. - 128. Rejected as unnecessary. 129. and 130. Adopted in paragraph 66. 131. Adopted in paragraph 41. 132. Adopted in paragraph 16. 133. Rejected as contrary to the weight of evidence (as to being a "reasonable transition"). 134. and 135. Rejected as unnecessary. Adopted in substance in paragraph 63. and 138. Adopted in substance in paragraph 61. The higher density will even better promote the affordable and housing policy. 139. Rejected as immaterial. 140. Adopted in paragraph 68. 141. - 150. Rejected as immaterial or unnecessary. COPIES FURNISHED: Miranda F. Fitzgerald, Esquire Karen M. Chastain, Esquire Maguire, Voorhis & Wells, P.A. 2 South Orange Avenue Post Office Box 633 Orlando, FL 32802 Herbert A. Langston, Jr., Esquire 111 South Maitland Avenue Suite 200 Maitland, FL 32751 Joel Prinsell, Esquire Assistant County Attorney Orange County Legal Department Post Office Box 1393 Orlando, FL 32802-1392 Douglas M. Cook, Director Land and Water Adjudicatory Commission Planning & Budgeting Exec. Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001
The Issue The issue in this case is whether City of Tarpon Springs Ordinance 94-29 is consistent with the City's comprehensive plan.
Findings Of Fact The City of Tarpon Springs Comprehensive Plan (the City's Plan) was adopted by City Ordinance 89-35. The Coastal Zone and Conservation Element of the Plan provides in pertinent part: IT IS THE GOAL OF THE CITY OF TARPON SPRINGS TO: Preserve, protect and enhance the natural and functional characteristics of the Coastal Management Zone; and to protect human life and limit public expenditures in areas subject to destruction by natural disasters; . . .. * * * IT IS THE OBJECTIVE OF THE CITY OF TARPON SPRINGS TO: 9J-5.012(3)(b) - Protect, conserve, or enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat: 1. Protect the natural resources of the Coastal Management Zone as identified by Schedule A of this Element; (Goal 1) . . .. * * * IT IS THE POLICY OF THE CITY OF TARPON SPRINGS TO: 9J-5.012(3)(c)1 - Limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems: Place all wetland areas in the preservation designation as shown on Schedule A, and ensure that no additional loss of wetland vegetation occurs; (Objectives 1, 2 and 11). 6/ Require a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area; (Objectives 1 and 11 7/ Require a minimum 15 foot buffer zone adjoining all wetlands; (Objectives 1 and 11 8/ ) . . .. Swimming pools and their screened enclosures are "non-water dependent uses" for purposes of Coastal Zone and Conservation Element Policy 2 (Coastal Zone Policy 2). Data and analysis adopted along with the City's Plan noted that the City would retain its ordinance providing for a 30 foot setback for aquatic lands and wetlands subject to the possibility of a variance under certain conditions on a case-by-case basis. Data and analysis also stated that areas designated for preservation would be preserved in their natural state through use of transfer of density/intensity rights and vegetative buffers and setbacks. City of Tarpon Springs Ordinance 94-29, adopted on September 20, 1994, revised Section 55.01 of the Land Development Code in pertinent part as follows: Wetland and Shoreline Buffers The following buffers shall be provided: A shoreline buffer of thirty (30) feet along the Gulf of Mexico, Anclote River, and tributary bayou shorelines. The buffer shall be measured from the mean high tide. * * * (E) Pools and their pool screened enclosures shall comply with the buffers listed above except where adequate seawalls or rip-rap stabilization exist, the setback requirement shall be 15 feet from the seawall or the landward limit of rip-rap stabilization. Pools and pool screened enclosures may be constructed within the required buffer provided a minimum setback of 8 feet is maintained from the seawall and provided that certification from an engineer registered in the State of Florida is submitted prior to issuance of a permit stating that the proposed structure will not effect [sic] the integrity or functioning of the seawall or its deadmen. The "shoreline . . . along the Gulf of Mexico, Anclote River, and tributary bayou shorelines" described in Ordinance 94-29 is included in the Schedule A "natural resources" identified in Coastal Zone Objective 1 and in the "shoreline" identified in Coastal Zone Policy 2. The bayous constitute wetlands required to be preserved under Coastal Zone Policy 1. At the same time, it is clear that the natural and functional characteristics, marine and other natural resources, and wildlife habitat of City shoreline that has been seawalled or stabilized by rip-rap have been compromised, in many cases severely. Approximately 15 percent of the City's approximately 45 miles of shoreline has been seawalled (approximately nine miles); approximately 5 percent (approximately three miles) has been stabilized by rip-rap. Much of the shoreline seawall within the City has been in place since 1924. In some cases, seawall has deteriorated to one degree or another, allowing some natural vegetation to begin to reestablish itself. In some cases, natural vegetation (e.g., mangrove) has reestablished itself along entire lot lines. Although no evidence was presented as to rip-rap, it is logical to infer that rip-rap stabilization also may be found in a similar range of conditions. The more that seawall and rip-rap has deteriorated and that natural vegetation has been reestablished, the more natural and functional characteristics, marine and other natural resources, and wildlife habitat can be expected to be restored. At some point (not specified by the evidence) in the process of the deterioration of seawall and rip-rap and the reestablishment of natural vegetation , the regulatory agencies with jurisdiction will not allow the repair and reconstruction of seawall or rip-rap. Similarly, some natural and functional characteristics, marine and other natural resources, and wildlife habitat might be expected to remain in areas of isolated segments of seawall or rip-rap stabilization. Swimming pools and their screened enclosures constructed under Ordinance 94-29 behind an area of competent seawall or rip-rap stabilization in accordance with would not be expected to have an adverse impact on water quantity or water quality. As to water quantity, water retention capacity of the pool would approximately compensate for additional run-off from loss of pervious surface. (To the extent that pool construction replaces an impervious surface, a net reduction of run-off would be expected.) Besides, construction of a swimming pool on a residential lot is exempt from surface water management regulations because of the relative insignificance of the impact on run-off. As to water quality, generally the pollutant loading of water running off a residential lot with a swimming pool probably is less than, or at least the same as and not significantly more than, the pollutant loading of water running off the same lot without a swimming pool. Generally, pool chemicals are retained in the pool whereas lawn fertilizer, pesticides and insecticides often used on residential lawns would be more likely to run off into adjacent water bodies. 9/ According to the evidence presented at final hearing, it is at least fairly debatable that the construction allowed by Ordinance 94-29 would improve the housing stock in the City, increase property values, increase the tax base, and increase and improve the mix of adequate housing. One of the goals of the housing element of the City's Plan is to provide a mix of adequate housing. 10/ The City also presented evidence that one purpose of Ordinance 94-29 was to bring the City's land development regulations (LDR's) into conformity with the LDR's of Pinellas County, which surrounds the City and even has jurisdiction over enclaves within the perimeter of the City's boundaries. However, the DCA presented evidence that the City narrowly focused on the County's zoning regulations and overlooked the County's environmental regulations. The County's environmental regulations require a 50-foot upland buffer from all wetlands other than isolated wetlands, waterways not designated for preservation, and certain County-approved retention ponds. Jeff and Laura Johnson and Lisa Mack live on lots abutting City shoreline. The Johnsons own their home; Mack does not own her residence. The Johnsons' next door neighbors are building a swimming pool and screened pool enclosure in their back yard under the authority of Ordinance 94-29. At the time of the final hearing, a building permit had been obtained, and the construction of the pool had been virtually completed; only the screen enclosure remained to be built. In addition to their general interest in Ordinance 94-29 and its impact throughout the City, the Johnsons also have more immediate and direct concerns. They are concerned first and foremost that their next door neighbors' screened pool enclosure, which will be very close to the shoreline, will block their view of Minetta Bayou, especially since the residential lots where they live are very narrow. They also are concerned about loss of privacy due to use of the swimming pool. (The pool is elevated above ground level and quite close to the Johnsons' lot and house, which itself is situated practically on the side lot line.) In addition, they are concerned that noise from the pool pump, as well as from pool users, will disturb their peace and tranquility. Finally, the grading of the ground around the pool may direct more surface water onto the Johnsons' property. 11/ Unlike the Johnsons, no pool is being built next door to Mack's residence at this time. Her concern that one might be built there under the authority of Ordinance 94-29 is more remote. She also shares with the Johnsons concern over what would happen to the City, including its shorelines, aquatic lands and water bodies if full advantage is taken of Ordinance 94-29. Much of the City's seawalled and rip-rap stabilized shoreline is in residential areas, and Ordinance 94-29 conceivably could be utilized to build swimming pools and screened enclosures within the 30 foot setback specified in Coastal Zone Policy 2 on between 500 and 1000 residential lots.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: The City of Islandia: General Description and Location The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park. Biscayne National Park Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat. The City's Privately Held Land The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead. Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly. Comprehensive Plan Preparation and Adoption The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body, the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law. Format of the City's Adopted Plan The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however: Only the following segments of this document were adopted by the City Council: Goals, Objectives and Policies Capital Improvements Element Implementation section Future Land Use map Monitoring, Updating and Evaluation Procedures Future Land Use Element The future land use element of the City's adopted plan sets forth the following goals, objectives and policies: Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands. Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions. Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through the development code; special care is needed due to limited wellfield and soil absorption areas. Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code. Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development: -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners 4/ -Circulation: pedestrian and golf cart paths -Open space: public and private of 175 acres per permanent resident Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology. Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands. Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code. Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development. Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation. Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format. -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map. -Recreation and Open Space: This category includes primarily the National Park. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element: Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this would suggest a build-out of 5,000 housing units. * * * Needs Assessment: Not Applicable and Other Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units. Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring 78 acres. * * * Future Land Use Plan: Land Use Category- As indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population. * * * Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres. * * * Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units. These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map. Transportation Element The transportation element of the City's adopted plan contains the following goals, objectives and policies: Goal 1- To meet the unique circulation needs of Islandia. Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles. Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities. Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities. Housing Element The following goals, objectives and policies are set forth in the housing element of the City's adopted plan: Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia. Objective 1.1- Achieve and maintain quality housing with supporting infrastructure. Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure. Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition. Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review. Infrastructure Element As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds: Goal 1- To provide adequate private infrastructure to serve the projected limited recreational residential development. Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code. Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by 30 percent). Policy 1.1.2- Require all development to meet the following level of service standards: -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners. Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code. Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/ Policy 1,3- Protect wellfield aquifer recharge areas from development. Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems. Objective 1.4- Each developer shall provide a mechanism for water conservation. Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption. Coastal Management Element The City's adopted plan contains the following goals, objectives and policies relating to coastal management: Goal 1- To conserve, manage and sensitively use the environmental assets of Islandia's coastal zone location. Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat. Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code. Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources. Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality. Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary. Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff. This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine. Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent. Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent. Objective 1.4- Protect the current natural beach and dune configuration. Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio. Goal 2- To minimize hurricane damage both to property and people. Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires. Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems. Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location. Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/ Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants. Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability. Objective 2.4- By 1993, prepare an emergency redevelopment plan. Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop." Objective 2.5- Preserve both resident and general public access to the beach. Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/ Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development. Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service: -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/ -Water: wells providing 300 gallons per residential unit per day. -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically). -Solid Waste: off-island disposal by individual homeowners or other property owners. Conservation Element The following goals, objectives and policies are found in the conservation element of the City's adopted plan: Goal 1- To preserve and enhance the significant natural features of Islandia. Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability. Policy 1.1.1- Continue to prohibit automobiles in the City. Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay. Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention. Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities. Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves. Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils. Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats. Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat. Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands. Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems. Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control. Policy 1.5.2- When the first phase residential development permits are issued, develop an emergency water conservation program. This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities. Recreation and Open Space Element The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies: Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents. Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean. Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs. Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park. Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park. Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/ Objective 1.4- Ensure the preservation of public and private open space. Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development. Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource. Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park. Intergovernmental Element The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination: Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan. Objective 1.1- By 1994, at least three of the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated. Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element. Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms. Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus on a mutually agreeable land use designation for the private islands. Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example. Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination. Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan. Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas. Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries. Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste. Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered: To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated: Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development. Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area. Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division." Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City." As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system." Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed." With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan: Coastal construction should be compatible with the Bay's natural features. . . * * * 8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality. * * * The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/ Capital Improvements Element The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies: Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices. Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council. Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary. This element shall be reviewed annually. Policy 1.1.2- Overall priority for fiscal planning shall be those projects that enhance residential development and the environment, as per Land Use Plan. Policy 1.1.3- In setting priorities, the following kinds of criteria will be used: -Public Safety implications: a project to address a threat to public safety will receive first priority. -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service. -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections? -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life. -Priority will be given to projects on islands experiencing development. Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan. Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service. Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private: -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid Waste: off-island disposal by individual homeowners or other property owners -Public open space: 57 acres per permanent resident Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate. Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures acceptable to regional environmental agencies plus private water and sewer systems. Policy 1.3.2- The development code preparation shall include the consideration of impact fees. Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development. Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner. Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows: Five-Year Schedule of Capital Improvements Not applicable; no deficiencies and no projects planned for 1990-1994 period. Programs For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows: Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment. Data and Analysis If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan: the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area; the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/ whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/ the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/ whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and the need for boat docking and other water-dependent facilities. The City's adopted plan therefore is not supported by appropriate data and analysis. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance. Goal 51.1 of the Regional Plan provides as follows: By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so. Goal 57.1 of the Regional Plan states as follows: New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture. Goal 58.1 of the Regional Plan imposes the following requirement: Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Dade County Dade County is a political subdivision of the State of Florida. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment. Tropical Audobon Society The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. STUART M. LERNER 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 27th day of March, 1990.
The Issue The issue is whether the City of Winter Springs' (City's) plan amendment adopted by Ordinance No. 2005-29 on June 12, 2006, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City was incorporated in 1959 and is located just inside Seminole County in a highly developed area surrounded by the City of Oviedo to its east, the City of Casselberry to the south, the City of Longwood to the west, Lake Jesup to the north, and the City of Orlando a few miles to the southwest. The City adopted the amendment in question. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the City. Keewin is a Florida corporation and has a contract to purchase the property that is the subject of the challenged plan amendment. It offered comments in support of the plan amendment during the adoption process. The Association is a Florida Homeowners Association operating as a not-for-profit corporation under Section 720.301, Florida Statutes. It currently comprises approximately 1,378 residential units on 550 acres within the City, including single-family attached and detached dwellings, apartments, and condominiums. The Association is made up of nineteen separate subassociations of residents; however, the Association serves as the "master association." One of the subassociations (Greens Point) lies "a stone's throw" to the east from the subject property, while the others lie further east, separated from the subject property by another residential subdivision known as Wildwood (which is not a part of the Association). Wildwood has a MDR land use category, which is the same land use being sought for the Keewin property. Besides five miles of nature trails, the Association also owns and maintains five parks, a tennis facility, a pool, and a clubhouse. A representative of the Association offered comments, recommendations, or objections to the City during the adoption of the amendment. As a property owner within the City who submitted objections to the plan amendment during its adoption process, the Association meets the definition of an affected person under Section 163.3184(1)(a), Florida Statutes, and accordingly has standing. As discussed below, however, the City and Intervenor (but not the Department) argue that the Association still lacks standing because its Board of Directors never authorized the filing of the initial Petition in this matter. Background In 2005 the City began consideration of an application by Keewin (on behalf of the current owner, Dittmer Properties, Inc.) to change the land use on the 47.7-acre tract of property. The land use change was also accompanied by a proposed change in the zoning of the property; however, that matter is not of concern here. The amendment was initially considered and approved by the City Commission at a meeting conducted on February 13, 2006. An amendment transmittal package was then sent to the Department for its review. After the Department issued an Objections, Recommendations, and Comments Report (ORC Report) on April 20, 2006, which noted four specific objections to the map change, the City provided further information to the Department to resolve these concerns. On June 12, 2006, the City voted to adopt Ordinance No. 2005-29, which approved the map change in issue. On August 4, 2006, the Department published in the Seminole County Edition of the Orlando Sentinel its Notice of Intent to Find the City of Winter Springs Comprehensive Plan Amendment in Compliance. Sometime in September 2006, the Association filed its initial Petition for a hearing to contest the plan amendment. The Petition was apparently dismissed without prejudice by the Department, with leave to file an amended petition. On September 25, 2006, the Association filed its Amended Petition raising the following objections: the new land use would be incompatible with the surrounding land uses; the land use change "further erodes" the City's ability to meet the requirements in its Plan for industrial uses; the amendment will have a "negative overcrowding impact on schools, particularly Highlands Elementary"; the amendment will cause overcrowding of the nearby roadways; the amendment will negatively impact the City's level of service standards for recreational facilities; and the amendment conflicts with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Section 163.3177, Florida Statutes. Authorization by the Board of Directors Citing various provisions within the Articles of Incorporation and the By-Laws, and the sometimes conflicting testimony of two members of the Association's Board of Directors, the City and Intervenor have argued extensively in their Joint Proposed Recommended Order that the Association's Board of Directors did not formally authorize its outside counsel to file the initial Petition in this matter. They point out that under the By-Laws, in order for the Board of Directors to initiate a legal action, as it did here, prior to the filing of a petition, it must have either had a vote of the majority of the Directors at a meeting at which a quorum was present or consent in writing by all members of the Board of Directors. See Art. VI, §§ 6.5 and 6.8, By-Laws. They further contend that the president of the Board of Directors, Paige N. Hinton, had no authority, as she assumed she did here, to advise another member of the Board of Directors, Helga R. Schwarz, that Ms. Schwarz could authorize outside counsel to file a petition with the Department. The affairs of the Association are managed by a Board of Directors made up of seven members. See Art. V, § 5.1, By- Laws. When this matter arose, Ms. Hinton served as president of the Board of Directors while Ms. Schwarz served as its secretary and a member. Both testified at the final hearing. When the plan amendment was first being processed and considered by the City in its early stages, a number of Association residents approached members of the Board of Directors and voiced their concerns with the proposal. Based upon those concerns, the Board of Directors held a special meeting on January 13, 2006, to discuss the issue. All seven directors were present at the meeting. A copy of the minutes of that meeting has been received in evidence as Respondents' Exhibit 3. The minutes are normally prepared by Bonnie J. Whidden, a full-time employee who serves as property manager, and "are not required to be detailed." After preparation by Ms. Whidden, the minutes are then reviewed at the following month's meeting and approved for form. There is no indication in the record that the Board of Director's outside counsel attended the meeting in question. The minutes reflect that the following action was taken at that meeting: The Board discussed the implications facing The Highlands if the Dittmer parcel were to be rezoned from light industrial to medium density residential as proposed by Keewin Real Property. Discussion ensued on impacts to The Highlands' recreational amenities, neighborhood roads, school capacities, and other concerns. The Board agreed that the proposed change in zoning was not in the best interest of The Highlands. The Board agreed to hold a community town hall meeting on the Keewin Large Scale Plan Amendment for The Highlands' residents in order to provide residents with information and to seek their input and feedback prior to the public hearing. The Board discussed committing funds for Clayton & McCulloh's legal services to represent The Highlands' interests on this issue. A motion was made to empower Ms. Schwarz to work with Clayton & McCulloh on this matter and to represent the Association at any city meeting related to the Dittmer rezoning. The motion was seconded and passed unanimously. Discussion ensued regarding having Clayton & McCulloh represent the Association at the city's public hearing on February 13, 2006. Ms. Schwarz would discuss the matter with counsel and apprise Ms. Hinton. Although the minutes refer primarily to the Association's opposition to the rezoning of the property, it is fair to infer that the Board of Directors was opposed to both the rezoning of the property and a change in the land use on the FLUM. According to Ms. Hinton, the Association intended that Ms. Schwarz act as the Board of Director's "primary point of contact with Clayton & McCulloh [its outside counsel] should [the Association] need to petition the [S]tate, and also to speak on behalf of the Association at City [C]ommission meetings for the City of Winter Springs." However, authorization to file a petition with the Department was not discussed at the meeting nor voted on. This is because it would have been premature to do so at that point as the amendment had not yet even been formally considered or adopted by the City. As the minutes disclose, the Board of Directors directed that Ms. Schwarz, a long-time resident and its secretary, represent the Association "at all city meetings" and to liason with its outside counsel. Acting on those instructions, she attended the February 13, 2006, meeting of the City Commission, when the Commission voted to transmit the amendment package to the Department for its preliminary review, and the meeting on June 12, 2006, when the map change was finally approved. (She also attended several meetings of the City Planning and Zoning Board, which presumably considered the zoning change.) At least twice, Ms. Schwarz presented oral objections on behalf of the Association at City Commission meetings. On an undisclosed date before the Association's initial petition was filed, Ms. Hinton spoke with Ms. Schwarz by telephone and advised Ms. Schwarz that pursuant to the Board's decision on January 13, 2006, Ms. Schwarz should instruct its outside counsel to file a petition challenging the new amendment. This information was given to outside counsel, who presumably filed the initial Petition, which was later amended on September 25, 2006. After the January 13 meeting, the Board of Directors was given a number of "updates" concerning the status of the plan amendment throughout the adoption and Department review process, including advice that a petition had been filed by outside counsel with the Department. However, no other formal action was taken by the Board concerning this matter before the initial petition was filed in September 2006. On advice of outside counsel, on November 16, 2006, a special closed meeting of the Board of Directors was called by Ms. Hinton to discuss "pending legal matters," including ratification of the Petition that had previously been filed. One reason for calling this meeting was the fact that the issue of whether the Board of Directors had authorized the petition to be filed had just arisen during the course of discovery for the hearing. A copy of those minutes is not of record since they were not reviewed and approved until the Board of Directors held its December 2006 meeting. Although the record is somewhat confusing (due to conflicting testimony) as to what action was taken at the meeting, it is clear that the Board of Directors (of whom six were present) orally ratified the filing of the Petition by "unanimous consensus." The Amendment The amendment consists only of a change in the FLUM on the subject property from Industrial to MDR. There are no accompanying changes to the text of the Plan. The property is currently vacant, but carries an Industrial land use and PUD zoning. The land uses surrounding the subject property are industrial to the north (across Shepard Road), medium density residential (including multi-family units) to the east, industrial and low density residential to the south, and predominately industrial and commercial to the west. There are "public lands" on the southeast side of the property. Less than one thousand feet west of the subject property and running in a north-south direction is U.S. Highway 17-92, a major arterial roadway maintained by the State. (Just across that road is the City of Longwood.) Shepard Road, a two- lane collector road which runs in an east-west direction, adjoins the northern boundary of the subject property and part of the Association and eventually exits to the west into U.S. Highway 17-92 at a major intersection with a traffic signal. Petitioner's Objections Petitioner has challenged the amendment based on compatibility, need, schools, roads, recreational facilities, and alleged violations of various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Part II, Florida Statutes. There are no challenges to the amendments based upon internal inconsistency with the City's plan, inconsistency with the East Central Florida Planning Council's Strategic Regional Policy Plan, or inconsistency with the State Comprehensive Plan. Compatibility. The Amended Petition contains allegations that the MDR designation is incompatible with surrounding land uses, and, in particular, with the Association property that is located to the east of the subject property that is designated as MDR on the FLUM. The ORC Report raised an objection regarding land use compatibility of the amendment with the industrial land use designation to the west. The concern was that the amendment was not supported by data and analysis demonstrating that the amendment was compatible with the industrial use. In response to the objection, the City set forth Plan provisions that require buffering and also provided a Development Agreement in which the developer agreed to build a buffer between the amendment site and the industrial properties to the west. By doing so, the City adequately responded to the objection by indicating that the subject property would contain a buffer to address the potential compatibility concerns with the adjoining industrial property. The MDR designation on the subject property provides a transition from the commercial and industrial uses fronting U.S. Highway 17-92 and is compatible with the MDR to the east. Thus, the MDR use on the subject property is appropriate as a transitional use between the residential to the east and the industrial and commercial properties to the west that front U.S. Highway 17-92. Based on the evidence, it is fairly debatable that the MDR land use is compatible with the industrial use to the west and the MDR to the east. Need for Industrial Lands The Amended Petition alleges that the change from Industrial to MDR "further erodes" the ability of the City to meet requirements in its plan for industrial uses. There is no Plan policy that calls for a certain number of acres of industrial property. Rather, the Plan contains an analysis of the existing industrial acreage and a projection for future acres. Looking only at the industrial land use category, the City has 170 acres, and the plan amendment reduces that number by 47 acres or approximately twenty-eight percent. However, industrial is allowed in other future land use categories besides the industrial category. Moreover, the industrial land use designation has been on the property since at least 1991, but has remained vacant. Thus, the appropriateness of the industrial designation at this location did not come to fruition. By contrast, the City's analysis indicated a need for approximately 328 additional acres of MDR land. The FLUM change on the Keewin property furthers the need for that land use. Also, as found above, the subject property is an appropriate location for the MDR because it serves as a transition, and the property had remained vacant under the industrial future land use designation since 1991. Coordination With Schools The Association has also contended that the amendment "will have a negative overcrowding impact on schools, particularly Highlands Elementary," which lies just north of Shepard Road and serves the Association residents. Unless elected by local option, local governments are not required to have a school facilities element in their comprehensive plans at this time, are not required to have a level of service (LOS) standard in their plan for school facilities, and are not required to implement school concurrency. The City has not elected the local option of school concurrency. At this time, the Department requires only coordination of the plan amendment with the Seminole County School Board (School Board) so that the School Board and the City have a general understanding of the potential implications of the plan amendment. The ORC Report contained an objection regarding coordination of the amendment with the School Board. In response to the objection, the City indicated that it provided notice of the amendment to the School Board and an additional opportunity for School Board comment. The City also provided an analysis from the School Board indicating that the amendment would generate only 76 students. Additionally, in the Development Agreement between the City and the Developer, the Developer agreed to pay $1,235.00 for each residential unit to the School Board in addition to the school impact fees required for each residential unit. The Agreement for this mitigation represents an additional step toward helping to address what is the understanding of the impact on schools and is a further indication of coordination between the land use and school planning. The Department does not currently have a standard to use to measure the adequacy of the dollar amount since school concurrency is not required at this time. Therefore, the City has not established LOS standards. Given these considerations, it is fairly debatable that the City has demonstrated adequate coordination with the School Board regarding school facilities. Impact on Transportation The Association further contends that the LOS on public streets serving the Association's members and serving property owned by the Association will deteriorate. It also contends that traffic flowing from the subject property will overcrowd and/or negatively impact the Association. In support of these contentions, the Association presented the testimony of Harry A. Burns, Jr., a professional engineer, regarding potential traffic impacts based upon his review of the Plan and transportation element. According to the Plan, the segment of U.S. Highway 17-92 north of Shepard Road is currently operating at LOS F, which is below the adopted LOS standard. As noted earlier, U.S. Highway 17-92 is a major arterial very close to the subject property. Although the Plan indicates that U.S. Highway 17-92 is slated for a six-lane project by 2010, the Plan also indicates that it is anticipated the LOS will still remain at F. Mr. Burns opined that Shepard Road and Sheoah Boulevard, a minor two-lane collector road which winds through the Association in a north-south direction, will be "impacted" by the MDR land use designation. He concluded that a traffic study should be done for Sheoah Boulevard because it is a collector road and is in the amendment's impact area. Although he testified that Shepard road would be impacted, he had no information indicating that Shepard Road would be negatively impacted. Also, he did not know whether the plan amendment would result in a reduction in the operating LOS for Shepard Road and Sheoah Boulevard. Petitioner's expert also opined that traffic generated by a change in the land use would have a different trip distribution than traffic generated by industrial. He testified that, from a traffic circulation standpoint, it was likely that residential traffic would be more willing to travel east through the Association than would industrial traffic because the industrial traffic would prefer to access the nearby U.S. Highway 17-92 to the immediate west. He further opined that there were not "attractors" for industrial traffic to travel east through the Association. He admitted, however, that the City's Town Center as well as the Greenway toll road (State Road 417) were located to the east of the subject property. Although the expert believed that the trip generation characteristics of an industrial land use would be different than those for a residential land use, he agreed that he would need to model the trip distribution to accurately determine where the traffic would go. The witness had not done that prior to the hearing. Data and analysis relative to traffic impacts were submitted to the Department by the City and the Florida Department of Transportation (FDOT). Based upon its review of the plan amendment, on March 22, 2006, FDOT provided a letter to the Department in which it determined that an Industrial land use would generate 7,176 average daily trips (ADT) and 1,308 PM (afternoon) peak hour trips. On the other hand, a MDR designation would generate only 3,936 ADT and 394 PM peak hour trips, resulting in a decrease of 3,240 average daily trips. This is a substantial reduction. All experts in this case agreed with the FDOT's assessment. FDOT further concluded that because the "amendment would result in a decrease in daily trips . . . FDOT has no comments on this amendment." The letter did not raise any concerns regarding impacts to U.S. Highway 17-92, a state road under its jurisdiction. The City Engineer and the City's expert planner established that a further traffic study or analysis at this stage was unnecessary because the land use change resulted in a substantial decrease in trips. In addition, the Department's planner opined that reducing the trip generation potential from the amendment parcel is a strategy to reduce the potential traffic on the road network that, in combination with other actions, can have a significant effect on helping improve the coordination between land use and transportation relative to the operating LOS on the roadways. Due to the specific nature and context of this particular amendment, he also agreed that no further general planning or transportation analysis was warranted at this stage. In fact, the reduction helps the Plan better coordinate land use and transportation in terms of the potential trips that might occur on the road system. Coordination of land use and transportation facilities was appropriately addressed at the plan amendment stage through the significant reduction in trip generation potential on the property. Finally, although Petitioner's expert pointed out that the City's Plan indicates that even with scheduled improvements the segment of U.S. Highway 17-92 north of Shepard Road will have deficiencies by the year 2010, he could not say that the amendment would cause LOS deficiencies on that road or indicate with any degree of precision the effect the amendment would have on the LOS. As noted above, he did not perform a traffic analysis of the amendment. Given these considerations, it is found that Petitioner did not demonstrate beyond fair debate that the amendment will result in LOS deficiencies on U.S. Highway 17-92, Shepard Road, or Sheoah Boulevard. Further, it failed to prove beyond fair debate that the amendment is not in compliance with respect to transportation issues. Open Space and Recreational Land and Facilities Contrary to the Association's assertion, the plan amendment will not impact or adversely affect the City's LOS standards for recreational facilities. There have been increased recreational facilities in the City since the Plan was written, which has increased the LOS that is available, and there is no LOS deficiency for parks through the year 2010. Indeed, the LOS will be met even if park lands are not built on the subject property. The Development Agreement between Keewin and the City requires Keewin to include park lands on the subject property. The Agreement specifically provides a paragraph on "Parks and Recreation" which includes the following language in paragraph 4: In accordance with Winter Springs Code Section 20-354 and other applicable provisions of the City’s Comprehensive Plan and Code, the Developer agrees to dedicate an appropriate amount of land as a park for the residents of the Project. Such park shall have recreational facilities built in accordance with the standards of the National Recreational Association. In addition, such park shall be protected through deed restrictions . . . which shall ensure the preservation of its intended use, the payment of future taxes, and the maintenance of the park and facilities for a safe, healthy and attractive living environment. The park shall be included in the phasing plan, if any, and shall be constructed and fully improved by Developer at an equivalent or greater rate than the construction of the residential structures for which it serves. Therefore, the subject property will provide its own park and recreation area on-site. There is sufficient land on the site to accommodate on-site park facilities based on the residential densities that might be allowed on the subject property. The Department established that the land use is being adequately coordinated with recreational facilities. There is appropriate coordination between the land use and recreational facilities, and the residents of the subject property would not have to make use of any other city park facilities. Petitioner acknowledges that the Developer's Agreement indicates that the Developer will provide for a park; however, Petitioner still complains that there is not enough detail about the parks to be provided on-site. However, there is no requirement at this stage of the process that such a degree of specificity for parks be provided. The evidence supports a finding that a change to MDR is compatible with adjacent land uses and will have no impact on private parks and recreation areas on adjacent lands. There is insufficient evidence to support a finding that the plan amendment will impact the Association. Indeed, the subject property will have two City parks that service the area and a 315-acre county-owned community park facility less than a mile from the subject property. Consistency With Rule and Statutory Provisions The Amended Petition alleges that the amendment is inconsistent with various provisions of Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. However, Petitioner did not present any testimony addressing any of the rule or statutory provisions. Conversely, the evidence presented by Respondents and Intervenor demonstrates that the amendment is consistent with these provisions. Accordingly, it is found that the amendment is not inconsistent with Florida Administrative Code Rules 9J-5.006(3)(b)1., 9J-5.006(2)(a), 9J- 5.006(3)(c)2. and 3., 9J-5.016(1)(a) and (b), 9J-5.016(2)(b), 9J-5.016(3)(b)1. and 5., 9J-5.016(3)(c)5., 9J-5.0055(2)(a), and 9J-5.0055(3)(b) and (d), and Section 163.3177(3), (6)(a) and (e), Florida Statutes, as alleged in the Amended Petition. Trespass and Vandalism Concerns Finally, Petitioner has alleged that residential development of the subject property will increase the unauthorized use of its private recreational facilities and amenities, as well as increase vandalism to its personal property by non-residents. However, allegations regarding potential trespass and unauthorized use of recreational facilities on nearby lands is not a compliance issue under Chapter 163, Florida Statutes. Issues Under Section 120.595(1), Florida Statutes In its Amended Petition filed on September 25, 2006, the Association raised five grounds for determining the plan amendment to be not in compliance: increased traffic that would impact the Association's members; school overcrowding, and particularly the elementary school just north of Shepard Road; inadequate open space and recreation land and facilities, including unauthorized use of Association facilities, as a result of the new development's residents and children; reduced industrial zoning; and inconsistencies with various provisions within Florida Administrative Code Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is no evidence that the Association has ever participated in a prior proceeding involving the City or Keewin and the same project. The Association representative, Ms. Schwarz, acknowledged that before the Amended Petition was filed, the Association did not consult with any experts regarding the issues raised in that filing. According to Ms. Schwarz, the allegations represented concerns expressed by various members of the Association to the Board of Directors. Most of these concerns are specifically reflected in the minutes of the meeting held on January 13, 2006. However, the Association did consult with outside counsel in drafting the issues in the Petition. This is evidenced by the fact that at least three of the concerns in the Amended Petition (traffic, school overcrowding, and inadequate open space and recreational facilities) were previously discussed in detail in a letter from outside counsel to the City on February 7, 2006, or just before the City Commission initially met to consider the amendment. Although the case was originally scheduled to be heard in February 2007, on October 31, 2006, Intervenor filed its demand for an expeditious hearing under Section 163.3189(3), Florida Statutes. Accordingly, by Order dated November 1, 2006, this case was rescheduled to be heard on November 29, 2006, under the mandatory fast track timelines in that statute. Because of this short timeframe, Association counsel represented during a status conference on November 10, 2006, that he was experiencing difficulty in interviewing and hiring outside experts on such short notice, particularly with the intervening Thanksgiving holidays. This was confirmed by Ms. Hinton at final hearing, who represented that if the hearing had been held in February 2007, the Association had planned on hiring a number of experts. Even so, on short notice, the Association was able to engage the services of a professional engineer who offered expert testimony on the traffic issue. The remainder of its evidence was presented through lay witnesses, by cross- examination of the other parties' experts, and by documentation. No direct evidence was affirmatively presented on the issue of whether the plan amendment was in conflict with various provisions of Department rules or Florida Statutes. As to all other issues, even though the Association did not prevail on any of its claims, it did present some evidence, albeit minimal in some respects, in support of its position. There is no evidence, direct or circumstantial, to support a finding that the Association's primary motive in filing its Petition was to simply harass the City or developer, delay the project (which will be built on the property after the land use change is approved and building permits obtained), or needlessly increase the cost of litigation for those parties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2005-29 is in compliance. Jurisdiction is retained to consider the City's Motion for Sanctions Against Petitioner and Intervenor's Motion for Sanctions, Fees and Costs filed under Sections 120.569(2) and 163.3184(12), Florida Statutes, if renewed within 30 days after issuance of the final order. DONE AND ENTERED this 3rd day of January, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd of January, 2007.
Findings Of Fact Maurice Fox ("Developer" or "Respondent" hereafter) filed his original application for approval of a development of regional impact with the Palm Beach County Board of County Commissioners in April, 1974. An extensive application was filed. Personnel from the staff of the County's Planning, Building, and Zoning Department discussed the application with the Respondent and his representatives, and the staff's recommendations were presented to the Planning Commission and to the Board of County Commissioners. The Respondent made presentations to the South Florida Regional Planing Council, and to the Board of County Commissioners. The Board received input from the Respondent, from the South Florida Regional Planning Council, from its own staff, from the Florida Game and Fresh Water Fish Commission, and from the Flood Control District, which is now the South Florida Water Management District. Palm Beach County was, at that time, a member of the South Florida Regional Planning Council. The Council recommended that the Board of County Commissioners deny the application for development order, maintaining that the proposed development conflicted with the county land use plan, would stimulate excessive migration into the region, would cause an excessive burden upon transportation facilities, did not adequately provide for solid waste disposal, could have an adverse impact upon water quality in the region, and would eliminate a significant habitat for wildlife including several threatened or endangered species. The Game and Fresh Water Fish Commission opposed the proposed project because of its potentially adverse impact upon the wildlife habitat. The Flood Control District considered that the lake system proposed to be operated in conjunction with the development could be maintained in such a way as to negate adverse impacts upon water quality of the region, and did not oppose the project. The County's Planning, Building, and Zoning Department recommended that the development order be issued, and the County Planning Commission concurred. By resolution number R74-700, the County Commission approved the application for development order subject to three conditions on September 3, 1974. This proceeding ensued. During the pendency of this proceeding, Palm Beach County withdrew from membership in the South Florida Regional Planning Council. The County joined the Treasure Coast Regional Planning Council (TCRPC). Since it was granted status as an intervenor, TCRPC has been functioning as the appellant. The South Florida Council has withdrawn from the proceeding. TCRPC has contended that the Board of County Commissioners did not adequately consider the environmental consequences of the proposed development. This contention is not supported by the evidence. The Board of County Commissioners did not have before it all of the evidence that is now before the Florida Land and Water Adjudicatory Commission, but it did have adequate information from which it could assess the environmental impacts of the proposed development, and weigh these impacts against potential advantages and disadvantages of the development. Whether the County Commission made a correct assessment of the ecological consequences of the proposed development is an issue for this appeal. The thought processes by which members of the Commission made the determination are not issues in this proceeding. Maurice Fox acquired the property which is the subject of this proceeding, and which has come to be known as the Fox Property, in 1954. The Fox Property lies in Palm Beach County, and is bordered on the east by State Road 7 as it is presently constructed and as it is proposed for extension. The property will run three lineal miles along State Road 7 when State Road 7 is completed. Okeechobee Road runs through the southern section of the property. The property has roughly a rectangular configuration, and consists of 1705 net acres apart from the rights of way of Okeechobee Road and State Road 7. The proposed development is a retirement community. It would contain 10,004 living units with a population cap of 18,416 persons. Dwelling units would be dispersed in forty five residential pods, some bordering on a lake, others on a golf course. There would be single and mixed story clusters. The maximum rise would be four stories. Two golf courses are proposed for construction, along with a 406-acre lake for sailing, boating, and fishing. A fourteen mile bicycle path that would not cross any roads is proposed for construction around the lake. There would be tennis courts, and at least one swimming pool for each building pod. The main social club would be located on the lake. Each golf course would have a club house. There would be a total of 1028 acres of open space, with approximately fourteen acres preserved in a natural condition. Three church sites have been set aside, along with a four and one half acre civic center, which would include a fire station, security facility, and municipal services. A commercial facility on a twenty five and one half acre tract is planned, with smaller convenience centers located at each of the golf club houses. The most significant feature of the development is a proposed center for geriatric medicine, which would be located on the southeast corner of the property. The center would be owned by a non profit corporation, and would be operated for the public benefit. The Respondent proposes to donate the land for the center. The center would have the following facilities: (a) A medical clinic with group practices of physicians; (b) Emergency facilities and rehabilitation services as a part of the clinic; (c) A retirement hotel for physically or mentally disabled persons who do not require complete nursing care; (d) A nursing home, and facilities that would provide in home services designed to keep older persons in their homes; (e) A nursing school, or continuing education facility that would provide training for staff for the center, and for other facilities. The center would have a significant research function, allowing a group of older persons to be studied over a period of years. The development would be constructed in four essentially, equal phases. Phases for construction of the geriatrics center have not yet been detailed. Local and state licensing would be required in order to operate many of the proposed functions of the center, and planning for construction of the center would need to be coordinated on an on going basis with the development of the retirement community. No evidence was offered that would specifically compare the proposed retirement community with other such communities. It is apparent, however, that the proposed community would provide a desirable place to live. All residences would border either a lake or golf course, and good recreational facilities would be immediately accessible to all residents. The project has been designed in order to maintain open spaces, with as much as seventy five, percent of the area remaining open. The primary benefit that the development would offer is the proposed center for geriatric medicine. The center is a primary altruistic goal of the Developer. The Developer has consulted eminent experts about the proposed center, and the center could provide a means for conducting significant research into illnesses of the elderly, and as a facility for training persons to treat illnesses of the elderly. Florida has a particular need for such an institute, and none of the medical schools in the state presently provide it. Although much is known about the needs for medical care of the elderly, a broader treatment concept has not been adequately developed. Old people are constantly fearful of becoming dependent, and they dread loneliness and bereavement. They have anxiety about spending their last days in a nursing home. The proposed center would address these problems by recruiting sensitive health care personnel, and providing a total care program for residents of the proposed community. Elderly persons require a continuum of care. Institutionalization of older people should be deferred as long as possible. There is a need to develop health services that can be delivered directly to the home. When it becomes necessary to institutionalize older persons, the proposed geriatrics center would accomplish it in a facility near to where they have lived, and to where their friends continue to live. Persons too fragile to stay in their own homes could live in the proposed hotel, and maintain personal relationships and community activities. Such a center as is being proposed would not have to be constructed in connection with a housing project, but it would be helpful to do so. Study would be facilitated due to the ready availability of a group of appropriate persons. The research that could be conducted could provide vital information about diseases of the aged. Some evidence was offered that tends to show that the Respondent may have some difficulty in obtaining all of the pertinent licenses that he will require in order to operate all facets of the proposed center. The evidence does not establish that the center is an impractical goal, but that ongoing planning that accounts for needs of the entire region is necessary. The Developer's motivations are clearly good. He is in part motivated by his own experience in dealing with an aged mother. He is not interested in developing the retirement community unless the center for geriatric medicine can also be developed. With appropriate planning the facility can become a reality, and would be a significant benefit to Palm Beach County, the region, the State of Florida, and indeed to society as a whole. The Fox Property is presently undeveloped. Human activities have had an effect on the property, but the property remains in an essentially natural condition. The property has been diked on all four sides by persons other than the Respondent. These dikes effect the flow of water across the property. While the evidence does not conclusively reveal whether the property has become drier or wetter as a result of human activity surrounding it, the present state of the property leads to a finding that its condition has not changed drastically in many years. The property may now be wetter than it was at some given instant in the past, or it may be drier. What is apparent is that the property has consistently maintained a degree of wetness that would support submerged or emergent vegetation, and that it has provided habitat for wildlife that thrive in transitional areas. Expert witnesses, who testified at the hearing, agreed as to the present characteristics of the property, but their testimony conflicted sharply in characterizing the condition as wet or dry, or as high quality or low quality wildlife habitat. Ecologists have reached no unanimous consensus in defining the term "wetland". The most generally accepted definition has been proposed by the United States Fish and Wildlife Service of the United States Department of the Interior in a "Draft of Interim Classification of Wetlands and Aquatic Habitats in the United States." The definition is as follows: Wetland is land where an excess of water is the dominant factor determining the nature of soil development and the types of plant and animal communities living at the soil surface,. It spans a continuum of environ- ments where terrestrial and aquatic systems intergrade. For the purpose of this classification system, wetland is defined more specifically as land where the water table is at, near, or above the land surface long enough each year to promote the formation of hydric soils and to support the growth of hydrophytes, as long as other environmental conditions are favorable. Permanent flooded lands lying beyond the deep water boundary of wetlands are referred to as aquatic habitats. The definition is compatible with the definition developed by other entities including the United States Corps of Engineers. The definition is also compatible with the Florida Department of Environmental Regulation system of classifying areas as submerged, transitional, and upland. Transitional areas within the Department of Environmental Regulation criteria would be classified as wetlands under the Fish and Wildlife Service definition. Wetlands have commonly recognized ecological values. These values are applicable to all wetlands, varying in quantitative and qualitative degree. In order of importance these values are as follows: First, wetlands provide habitat for an enormous array of plant and animal species, which cannot survive without such a habitat. Many endangered and threatened species require wetland habitats. They have become endangered or threatened because their realm has been diminished. Second, wetlands serve to remove and store excesses of certain elements from the environment. As a result of agricultural activities and as a result of large scale usage of fossil fuels, nitrogen and sulfates have become generally excessive in the environment. Wetlands serve a filtering and storage function for these potential pollutants. Third, wetlands serve an important water quality function. In periods of heavy rainfall wetlands serve to store and slowly release waters. Wetland vegetation serves to filter excess nutrients, from rainfall and from runoff, especially phosphorus and nitrogen. Fourth, wetlands are extremely productive in biological terms. Wetland vegetation takes in nutrients, and causes a net production of oxygen in the process of respiration. On a global, and even on a local scale, wetlands can thus be very important to air quality. Fifth, wetlands have an important impact upon the climate. Stored water in wetland areas maintains a warmer climate in areas surrounding the wetland. Wetlands also serve to fuel rainfall in an area. These wetland attributes apply to all wetlands in varying degrees, and do not apply as profoundly to other ecosystems. In addition to these values, wetlands serve an important food producing function since they serve as breeding grounds for fish, have important esthetic and recreational value, and have research and educational importance. Preservation of wetland areas has become an important environmental concern because there has been a very large loss of wetland areas to development. It has been estimated that more than one third of all wetlands in the United States, and more than half of the wetlands in Florida have been drained. Utilizing the Fish and Wildlife Service definition, from 900 to 1400 acres of the 1705 acre Fox Property can be classified as wetland. Only approximately 60 acres of the tract is aquatic, in other words wet at all times. Other areas are, however, sufficiently dominated by an excess of water to fall within the Fish and Wildlife definition. The Fox Property is not without human influence. The dikes which surround the property have effected the flow of water. "All terrain vehicles" have crossed the area and left their tracks. In some locations this vehicle use has been sufficiently significant that trails have been identified. There has been considerable hunting in the area. Some trash has been dumped, particularly in the areas adjacent to Okeechobee Boulevard. Trees have been removed, and potholes left in their place. In the area south of Okeechobee Boulevard it is apparent that there was considerable agricultural usage in the past which has affected the land. It is also apparent that there has been burning, although not to the extent that the ecological viability of the area has been violated. Exotic pest plants have infiltrated portions of the property. Melaleuca is the most dramatic of these. In small areas of the property melaleuca has become the dominant vegetation. Over a period of time melaleuca will tend to dry out a wetland, but the process is a lengthy one, which may take centuries to complete. Large airplanes fly low over the property disturbing the area with loud noises. Despite these intrusions, the Fox Property is dominated primarily by natural as opposed to human caused conditions. Nine hundred to fourteen hundred acres of the Fox Property display high or moderate wetland values. The remainder of the property displays low wetland values. Some parts of the property display outstanding wetland values. The most significant wetland attribute displayed by the Fox Property is the wildlife habitat that it provides. The habitat on the property is quite varied, and that contributes to its importance for wildlife. Several species on the Florida Game and Fresh Water Fish Commission "Threatened Species List" were actually observed on the property. These are the American alligator, the Florida great white heron, the osprey, the southeastern kestrel, the audubon's caracara, and the Florida sandhill crane. Several species on the Florida Game and Fresh Water Fish Commission "Species of Special Concern List" were also observed. Wildlife on this list are considered to be not as threatened with extinction as those on the "Threatened Species List", but nonetheless of concern. Observed were the little blue heron, the great egret, the snowy egret, the white ibis, the Cooper's Hawk, and the roundtail muskrat. Several other species on these lists thrive in such habitats as the Fox Property, and potentially could be there. The Florida Endangered Species List promulgated by the Game and Fresh Water Fish Commission constitutes species, that are in eminent danger of becoming extinct. None of these species were actually observed on the Fox Property, but the Fox Property provides viable habitat for the wood stork, the Florida Everglade kite, the red cockaded woodpecker, the, Florida grasshopper sparrow, and, the Florida panther. The Everglade kite, the red cockaded woodpecker, and the Florida panther are also on the Federal Endangered Species List. It is because of loss of habitat that these species are of concern, or are threatened, or are endangered. The Fox Property lies adjacent to a wetland area known as the Loxahatchee Slough. This is a major north south surface water drainage basin in eastern Palm Beach, County. Surface water moves across the Slough to the north, feeding the Loxahatchee River, or to the south into what is known as Conservation Area One within the Loxahatchee Preserve. The Fox property is in effect the western boundary of the Slough. The Loxahatchee Slough is a wetlands ecosystem. The Slough, and the National Wildlife Refuge, which surrounds and encompasses it, amount to 145,635 acres. This is primarily wetland. There are other viable wetland areas in the vicinity of the Fox Property which encompass as much as 850,000 acres. The fact that extensive wetlands are near to the Fox Property does not, however, lessen the wetland values of the Fox Property. In fact, the adjoining wetlands augment the wetland values that can be ascribed to the Fox Property, especially in terms of the property's importance to endangered wildlife. The proposed development would include a lake with an area of more than 490 acres. The lake system would provide viable habitat for the Florida alligator, but not for the other species discussed above, except perhaps as an occasional feeding area. These species are becoming scarce because their available habitat is shrinking. They are reclusive, and do not flourish in human residential areas. If the proposed development is approved, the Fox Property will effectively be obliterated as a viable wildlife habitat for many species, including some whose existence is threatened. The proposed lake system would also not perform other important wetland functions to the extent that the Fox Property now does so. The TCRPC has contended that the proposed development would have an adverse impact upon water quality in the region. This contention has not been supported by the evidence. It is apparent that the lake system will not serve the water purifying function that the Fox Property as a viable wet land presently serves. It does appear from the evidence, however, that the lake system can be maintained in such a manner as to not cause an adverse impact upon water quality. One witness testified that the lake is likely to suffer from algal blooms in part because it would be overloaded with phosphorus. This testimony did not, however, consider the effect that the swale system proposed by the Developer will have in filtering phosphorus from runoff which will enter the lake system. The testimony reveals that artificial lakes in the South Florida area have frequently been plagued with poor water quality. It is apparent that if the proposed lake were not properly maintained, its water quality could seriously deteriorate. With proper management, however, good water quality could be maintained. The evidence presented respecting the impact of the proposed development in environmental terms related solely to the proposed development. Whether less ambitious developments could be undertaken on the property without damaging the wildlife habitat or the wetland values was not addressed, and would not have been relevant.
