The Issue The issue in this case is whether the land use designation placed on the property of intervenors is consistent with the goals, policies and objectives of the City of Jacksonville comprehensive plan.
Findings Of Fact Background This controversy involves a challenge to the City of Jacksonville 2010 Comprehensive Plan (Plan) by intervenors, Sybil L. Davis, Katherine T. Dekle, and Dr. James A. Acree, all residents and property owners in Duval County, Florida. The parties agree that intervenors are affected persons and thus have standing to pursue their claims. Intervenors contend generally that the land use designation given to their respective properties is inconsistent with other parts of the Plan and should be changed. If the requested relief is granted, intervenors would be able to develop their properties in a different manner than is now permitted under the Plan. The proposed Plan was first submitted by respondent, City of Jacksonville (City), to petitioner, Department of Community Affairs (DCA), on March 19, 1990. The DCA is the state land planning agency charged with the responsibility of reviewing comprehensive plans under Chapter 163, Florida Statutes. The City is a local government required to adopt a comprehensive plan pursuant to chapter 163. The proposed plan was the City's first attempt at meeting the compliance requirements established in that chapter. Under the law, the DCA is required to review all proposed plans for compliance with applicable statutes and rules. In that vein, besides its own in-house review, the DCA received comments from the Department of Environmental Protection and the Department of Transportation (DOT), considered such comments, and where appropriate, incorporated those views into its Objection, Recommendation and Comment Report (ORC) issued on July 10, 1990. The ORC contains the DCA's objections and comments concerning the Plan as well as recommendations which address those concerns. After considering the ORC, the City adopted a revised Plan on September 11, 1990, by Ordinance No. 90-794-380, which was then transmitted to the DCA. On November 9, 1990, the DCA issued its Statement of Intent to Find Comprehensive Plan Not in Compliance. After negotiations between the two parties, the City agreed to adopt remedial amendments to its Plan. This was accomplished by Ordinance No. 92-925-1405, effective January 22, 1993. Thereafter, on February 26, 1993, the DCA issued a Cumulative Notice of Intent to Find the Plan, as amended, in compliance with the law. As a consequence of this action, the interests of the City and DCA are aligned in this proceeding. Intervenors, however, consider the Plan to be internally inconsistent as to their respective properties and thus not in compliance with the law. It should be noted that during the local hearing process before the City, intervenors' requests to have their land use designation changed were denied. The Davis-Dekle Property Both Davis and Dekle own property which fronts on Southside Boulevard, a major arterial highway that runs in a north-south direction for ten to fifteen miles between Atlantic and Beach Boulevards. It consists of two northbound lanes, a divider (grass) median, and two southbound lanes. In addition, a twenty-foot service road runs along the outside of each roadway and is separated from the main roadway by a grass median. The highway right-of-way is 200 feet wide. This right-of-way has existed since at least the 1940's while the service roads were built in the 1950's. Davis owns two parcels of property on Southside Boulevard, also known as State Road 115. The first parcel, which is located at 2351 Southside Boulevard, is a vacant lot measuring 100 feet wide by 200 feet deep. The lot was purchased in 1987 with the intention of eventually converting the property to commerical use. A year later, Davis purchased a 1,000 square foot home located at 2615 Southside Boulevard. The house sits on a lot measuring approximately 85 feet wide by 200 feet deep. Although she currently resides in the home, Davis also intends to convert this property to commercial use if her appeal is successful. Both lots sit on the east side of Southside Boulevard between Atlantic and Beach Boulevards. Dekle's property is located at 2710 Southside Boulevard and lies on the west side of the street between Atlantic and Beach Boulevards. Dekle purchased the property in 1947 and has lived there for almost thirty years. The lot measures approximately 100 feet wide by 208 feet deep. Intervenors' properties are located in what is known as Southside Estates, a subdivision developed soon after World War II. The neighborhood surrounding their property is residential. Indeed, some 115 single-family homes are located on Southside Boulevard. Thus, the area historically has been a residential area since the 1940's and the predominant land uses along both sides of Southside Boulevard are single-family residences. Under the Plan, intervenors' properties are included in an area designated as "Low Density Residential," and thus this designation would bar intervenors from converting their properties to commercial use. "Low Residential Density" is defined in the future land use element of the Plan as follows: This category permits housing developments in a gross density range of up to seven (7) dwelling units per acre when full urban services are available to the site. Generally, single family detached housing will be the predominant land use in this category, although mobile homes, patio homes and multi-family dwellings shall also be permitted in appropriate locations. Minimum lot size shall be half acre per dwelling unit when both centralized potable water as well as wastewater are not available. The lot size shall be reduced to 1/4 acre per dwelling unit if either one of these services are not available. As noted above, intervenors' properties lie on Southside Boulevard between Atlantic and Beach Boulevards. The distance between these two latter roadways is approximately two miles. There is a major node of commercial development at the intersection of Southside and Atlantic Boulevards and a smaller commercial node at the intersection of Southside and Beach Boulevards. These uses, which extend approximately one-third of the distance between Atlantic and Beach Boulevards, are predominately offices, with the exception of more intense commercial uses near the intersection with Atlantic Boulevard. The southernmost extent of the commercial uses is approximately six or seven blocks north of the Dekle property. Intervenors complain that because of heavy traffic found on Southside Boulevard during the weekdays, their property should not carry a low residential density classification. More specifically, between 2:00 p. m. and 6:00 p. m. weekday afternoons, traffic backs up for more than a mile on the southbound lanes of Southside Boulevard between Atlantic and Beach Boulevards while there is a similar traffic backup in the northbound lanes during morning rush hours. This is confirmed by the fact that the roadway is functioning at a level of service "F," which means arterial flow is at "extremely slow speeds" and "intersection congestion" is likely at critical signalized locations. The DOT considers the minimum acceptable level of service to be level of service "D." Traffic counts, measured in average daily trips, are projected to reach 40,871 by 1995 at a point on Southside Boulevard 100 feet south of Atlantic Boulevard and 51,089 by the year 2010. Intervenors agree, however, that the service roads, on which their properties front, flow smoothly and are lightly traveled. Because intervenors' homes are located at the front of their lots closest to the service roads, they experience vehicle noise which affects their ability to watch television, sleep or carry on other normal activities unless windows and doors are closed at all times. Odors and fumes generated by the nearby traffic also require that windows and doors be shut at all times. Unless they retreat to the rear of their lots while outside their homes, they cannot escape the traffic fumes. In view of the foregoing condition, intervenors contend that a change in land use designation from low density residential to commercial is appropriate. "Commercial" is described in the future land use element of the Plan as follows: This category is intended to provide for all types of sales and services activities, such as retail trade, personal and professional services and storage, offices, hotels, motels, entertainment, and amusement facilities. Commercial recreation and entertainment activities, such as amusement parks and marinas, are also allowed in this category. Multi-family uses, when developed as part of an integrated mixes use project, are also permitted consistent with the Medium Density Residential (MDR) and High Density Residential (HDR) plan category description. The Plan includes five types of commercially dominated land use categories: residential-professional-institutional, neighborhood commerical, community/general commercial, regional commercial, and central business district. The primary uses range from a small convenience store, laundry/dry cleaning shop to a large shopping center or a multi-story office building. In considering intervenors' request to change the proposed land use to commercial, the City looked at the Greater Arlington Plan (an earlier land use plan completed in 1985), the existing use of the land, and the existing zoning. It also considered the general character of the area and the fact that most homes were graded in an "A" condition and were structurally sound. It should be noted here that the DCA did not raise any concerns over the proposed land use classification in its ORC report, nor has it subsequently posed any objection. In determining the appropriate land use classification for intervenors' properties, the Plan is the primary document to be used to guide the City's future growth and development. The future land use and housing elements of the Plan contain goals, objectives and policies which bear directly on this issue. More specifically, the following goals, objectives and policies found in the future land use and housing elements of the Plan support the classification given to intervenors' properties: Future Land Use Element GOAL 1 To ensure that the character and location of land uses optimize the combined potentials for economic benefit and enjoyment and protection of natural resources, while minimizing the threat to health, safety and welfare posed by hazards, nuisances, incompatible land uses and environmental degradation. Objective 1.1 Ensure that the type, rate, and distribution of growth in the City results in compact and compatible land use pattern, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policy 1.1.1 The City shall ensure that all new development and redevelopment after the effective date of the 2010 Comprehensive Plan is consistent with the Future Land Use Map series, and textual provisions of this and other elements of the 2010 Comprehensive Plan, as provided in Chapter 163 (Part II), F.S. 1.1.8 By April 1, 1991, require that all new non-residential projects be developed either in nodal areas, in appropriate commercial infill locations, or as part of mixed or multi-use developments, as described in this element. GOAL 2 To enhance and preserve for future generations geographic areas with unique economic, social, historic or natural resource significance to the City. GOAL 3 To achieve a well balanced and organized combination of residential, non-residential, recreational and public uses served by a convenient and efficient transportation network, while protecting and preserving the fabric and character of the City's neighborhoods and enhancing the viability of non-residential areas. Issue: Residential Development Patterns The neighborhood is the functional unit of residential development. There is a need to protect existing, viable neighborhood units and the neighborhoods that will emerge in the future. However, much newer residential development occurs as enclaves, with little or no functional linkage to surrounding areas. Unplanned low density development has become a familiar land use pattern in Jacksonville as new subdivisions have been developed further and further out, away from the existing urban area. * * * Objective 3.1 Continue to maintain adequate land designated for residential uses which can accommodate the projected population and provide safe, decent, sanitary and affordable housing opportunities for the citizens. Protect single-family residential neighborhoods by requiring that any other land uses within single-family areas meet all applicable locational criteria of the 2010 Comprehensive Plan and subsequent Land Development Regulations. Policies 3.1.2 The City shall eliminate incompatible land uses or blighting influences from potentially stable, viable residential neighborhoods through active code enforcement and other regulatory measures. * * * 3.1.7 The City shall give high priority consideration to the provision of affordable housing in land development and funding decisions, especially those made relating to public/private cooperative efforts in which the City is participating. * * * Issue: Commerical and Industrial Development Patterns * * * Despite a significant increase in the number of planned centers approved in recent years, little change has occurred in the pattern of strip commerical uses lining the City's arterial and collector roadways. This development pattern is typically inefficient, unsafe, and aesthetically unattractive. It results in multiple curb cuts, sometimes up to 50 per mile, thereby reducing the traffic carrying capacity of highways while at the same time increasing the potential for accidents. With a clutter of signs of all sizes, shapes, color, and design, the appearance of these areas is not only unsightly, it is also distractive for traffic on the highway and can, therefore, be dangerous. Another problem relating to strip commercial uses has developed as the commercial market has begun to overbuild during the recent national economic expansion cycle. Commercial retail and office space has remained in an over-supply condition (indicated by vacancy rates over 15 percent) for the past several years,, and as a result, new space has come on line at square footage costs that create strong competition with existing space. This competitive market results in relocations of existing businesses to newer projects, leaving many older commercial buildings semi-vacant and with little investment benefit to the owners. Without the hope of a reasonable economic return, owners may not invest funds to maintain their structures, and inevitably, commercial blight begins to develop. For these reasons, new commercial development will be strongly encouraged to occur in nodes or clusters in the form of office parks, shopping centers and mixed use developments. Strip commercial expansion along arterial streets will be discouraged, except for commercial infill of uses such as hotels, motels, restaurants, auto sales and service, mobile home sales, convenience stores and gas stations, which shall continue to locate along highways. * * * Policies The City shall promote, through the use of development incentives and other regulatory measures, development of commercial and light/service industrial uses in the form of nodes, centers or parks, while discouraging strip commercial development patterns, in order to limit the number of curb cuts and reduce conflicts in land uses, particularly along collectors and arterials. The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. * * * The City shall permit expansion of commercial uses adjacent to residential areas only if such expansion maintains the residential character of and precludes non- residential traffic into adjacent neighborhoods. The City shall require neighborhood commercial uses to be located in nodes at the intersections of collector and arterial roads. Prohibit the location of neighborhood commercial uses interior to residential neighborhoods in a manner that will encourage the use of local streets for non-residential traffic. The City shall implement the locational criteria of this element for commercial and industrial uses consistent with the character of the areas served, availability of public facilities, and market demands. * * * Housing Element GOAL 1 The City shall develop stable and definable neighborhoods which offer sale, sound, sanitary housing that is affordable to all its present and future residents. Issue: Neighborhood Stabilization Urban housing is a function of neighborhood. Stable neighborhoods encourage residents to maintain, upgrade, build and buy housing resulting in a sound, diverse housing stock. * * * There is an inadequate number of organizations committed to the revitalization and cohesiveness of Jacksonville's neighborhoods. Preservation is relatively easy and inexpensive compared to redevelopment and will prevent widespread blight and deterioration in convenient residential locations close to transportation, schools, shopping and medical facilities. * * * Objective 1.4 Preserve, protect, and stabilize residential neighborhoods keeping the maximum number of dwelling units in the housing supply, as measured by the implementation of the following policies. * * * Policy * * * 1.4.5 Commercial and other non-residential uses lying adjacent to residential neighborhoods should not be expanded into residential neighborhoods unless: Such uses enhance or do not diminish or degrade the residential character of the neighborhood, and The expansion shall not result in a reduction of the level of service on the residential streets; * * * One of the overriding policies contained in the Plan was a desire to maintain the City's vibrant neighborhoods. The future land use element addressed those concerns by discouraging strip commercial development and promoting instead the development of commercial land uses at major intersectional nodes. Strip commercial development often has a "cancerous" effect on nearby residential land uses. Problems associated with strip commercial development include encroachment on adjacent residential neighborhoods, increased noise and traffic in residential areas, undesirable aesthetic appearances, and inefficient traffic flow along the roadways on which strip commercial development occurs. The Southside Estates subdivision is vulnerable to encroachment because of the grid pattern of streets, which increases the likelihood of non- residential traffic passing through the subdivision. If lots facing Southside Boulevard were converted to commercial land uses, traffic would likely increase on the neighborhood streets. The neighborhood is a stable neighborhood with a large inventory of homes in good condition. The current noise and traffic along Southside Boulevard has not impaired the neighborhood stability, as the character and condition of homes along Southside Boulevard is comparable with that in the interior of the neighborhood. The residential area in question constitutes an "established neighborhood" as that term is defined in the Plan. There, the term is defined as follows: A neighborhood where platted, or otherwise divided, land has been at least eighty percent developed and occupied without substantial deterioration since such development. The residential area surrounding intervenors properties provides a significant supply of affordable housing to both home buyers and renters. Preservation of that housing stock is preferable to development of additional housing elsewhere. Therefore, maintenance of this neighborhood for residential use supports the housing element of the Plan. As noted earlier, Southside Boulevard is classified as a principal arterial roadway in the Plan. It currently serves as a major north-south roadway. The State has planned and partially constructed State Road 9A, a limited access facility located to the east of Southside Boulevard. When completed, State Road 9A will be the eastern circumferential link to Interstate 95 north and south of the City. State Road 9A will accommodate some of the through traffic currently using Southside Boulevard and will reduce the volume of truck traffic on Southside Boulevard. Contrary to intevenors assertion, conversion of residential properties along this portion of Southside Boulevard would result in increased traffic along the main roadway as well as the service roads. It would also result in an increased number of vehicles entering onto Southside Boulevard. This would further exacerbate an already unacceptable level of service along that road. Southside Boulevard is not a limited access facility as defined in the future land use element of the Plan. Therefore, policy 3.1.12 within that element, which permits residential land use designations adjacent to limited access highways when the negative impact of the roadway can be mitigated, is not applicable. Policy 3.2.2 of the future land use element provides as follows: The City shall promote, through the Land Development Regulations, infill and redevelopment of existing commercial areas in lieu of permitting new areas to commercialize. "Infill development" is defined in the future land use element definitions as "development on scattered vacant sites within the urbanized/suburbanized area of the community." "Commercial infill" is defined as "commercial development of the same type and grade as adjacent commercial uses that is sited between those uses in existing strip commerical areas." Reclassification of this part of Southside Boulevard to a commercial land use would not consitute commercial infill development, as such development would not be occurring on scattered sites or vacant sites, nor are the adjacent uses commercial ones. The area in question cannot be considered a "blighted area" as that term is defined in the future land use element of the Plan. Policy 1.3.1 of the future land use element directs that the City require all non-residential development located along a designated major arterial to construct a service drive which connects to the service drive of adjacent properties, unless otherwise approved by the city traffic engineer. Such a service drive does not exist along this portion of Southside Boulevard. However, the same policy does not require that all property fronting a service drive be classified for commerical use. Further, in the event such service roads are provided in new locations, the policy does not require such roads to be constructed at City expense. Reclassification of intervenors' properties to commercial uses would constitute an expansion of commercial uses adjacent to residential areas. Policy 3.2.4 of the future land use element permits such expansion only if it maintains the residential character of and precludes non-residential traffic into adjacent neighborhoods. Establishment of commercial uses on the property would be a negative influence which would begin the erosion and decay of the surrounding neighborhood. Because of the street grid pattern, it would be difficult, if not impossible, to preclude non-residential traffic from utilizing streets in the adjacent neighborhood. Table L19 of the future land use element is a land use acreage allocation analysis. That table depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. The amount of acreage allocated to commerical land use categories is 185.90 percent of the projected need while the acreage allocated to residential land use categories is 127.99 percent of the projected need. Therefore, the land use classifications found on the map series result in a greater overutilization of commercial land use acreage than that found with respect to residential land use acreage. The City's classification of intervenors' properties is similar to that along comparable areas elsewhere in the City. For example, State Road 13 (San Jose Boulevard/Hendricks Avenue) north from Baymeadows Road is characterized by predominately single family residential land uses interrupted by several nodes of commercial development. Like Southside Boulevard, San Jose Boulevard is a four-lane roadway carrying comparable volumes of traffic. This portion of San Jose Boulevard contains a parking lane, but it does not have parallel service roads and the overall width of the right-of-way is narrower than that found on Southside Boulevard. Therefore, homes along this portion of San Jose Boulevard are generally located as close to the right-of-way as those along Southside Boulevard and are closer to the traffic lanes themselves. Traffic counts are comparable, but projections for State Road 13 are as high as 78,426 by the year 2010. Despite this traffic, this area remains a viable, stable residential area. In summary, then, intervenors' properties should be classified as low residential density. This classification is consistent with and supported by the Plan's goals, objectives and policies. Therefore, intervenors' properties should not be reclassified as commercial. The Acree Property Intervenor Acree and his brother, who are both licensed veterinarians, own approximately 460 acres in the northwest portion of the county located on Acree Road (formerly Thomas Road). Of that amount, 360 acres were purchased in 1956 when the brothers started a wholesale dairy as an investment. Three adjoining parcels totaling 116 acres were later purchased as the dairy operation expanded. In 1989, the dairy animals were sold and Acree planned to sell the farm and retire. At that time, he hired civil engineers to develop a conceptual site plan for the purpose of ascertaining the value of his land for development under existing zoning regulatioins. Since the Plan changes his classification and impacts his ability to develop the property, Acree has brought this appeal for the purpose of challenging the land use classification given to his property. The Acree property is designated "agricultural" under the Plan. The allowable densities in an agricultural land use category are contained in the plan category descriptions of the future land use element and provide as follows: One dwelling unit (D.U.) per 100 acres of land for lots of record of 640 acres (section) or more in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 40 acres of land area for lots of record of 160 acres (1/4 section) up to but not including 640 acres (section) in size at the time of adoption of the 2010 Comprehensive Plan; One dwelling unit (D.U.) per 10 acres of land area for lots of record of 40 acres and up to but not including 160 acres at the time of adoption of the 2010 Comprehensive Plan. One dwelling unit (D.U.) per 2.5 acres of land for single lots of record or the combination of contiguous lots of record under common ownership up to but not including 40 acres which were existing on September 21, 1990. In the event such land area equals 40 acres or more, the allowable number of dwelling units shall be determined according to paragraph (iii) above. Notwithstanding this requirement, one dwelling unit shall be permitted on any nonconforming lot of record which was existing on September 12, 1990. Development on such nonconforming lots of record shall be subject to all other plan provisions. By his petition, Acree seeks to have his property classified as rural residential. This classification is defined in the plan category descriptions of the future land use element as follows: This category is intended to provide rural estate residential opportunities in the suburban area of the City. Housing development at a net density range of up to two (2) dwelling units per acre will be allowed when community scale potable water and sewer facilities are available to the site, and one (1) unit per net acre when the site will be served with on-site water and wastewater facilities. Generally, single- family detached housing and mobile homes will be the predominant land uses in this category. In addition, agriculture, silviculture, and similar other uses may be permitted as secondary uses subject to the standards and criteria in the Land Development Regulations. If the petition is approved, Acree would be allowed to develop his property with a much higher density, and the value of the land would increase correspondingly. Prior to the adoption of the plan, Acree's property was zoned OR (agriculture). Under then-existing regulations, a residential density of one dwelling unit per acre of land was authorized. All other rural land in the county could be utilized for residences in one and one-half acre minimum size lots. This compares with current restrictions described in finding of fact 31. Acree's property is 3 miles by roadway (but only 2.4 linear miles) from the nearest available water and sewer utilities. The property is 1.5 miles from the nearest property classified as rural residential on the future land use maps. Presently, the farm is surrounded by timberland. In originally finding the City's Plan not in compliance, the DCA's concerns included the plan's projections of agriculture land use, its vested development rights, and urban sprawl considerations. As a consequence, in developing the Plan, one of the factors considered by the City was the discouragement of urban sprawl. That term is defined in the future land use element of the Plan as follows: A terminology commonly used to describe certain kinds of growth and development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas without provisions for utilities and services. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) strip or ribbon development; and (3) large expanses of low-density, single- dimensional developments. This corresponds to the description given the term by the DCA in a technical memorandum issued by the DCA in 1989. The future land use element of the Plan contains the following objective and policies to discourage urban sprawl: Objective 1.1 Ensure that the type, rate and distribution of growth in the City result in compact and compatible land use patterns, an increasingly efficient urban service delivery system and discourages proliferation of urban sprawl through implementation of regulatory programs, intergovernmental coordination mechanisms, and public/private coordination. Policies * * * 1.1.16 Prohibit scattered, unplanned urban sprawl development without provisions for facilities and services at levels adopted in the 2010 Comprehensive Plan in locations inconsistent with the overall concepts of the Future Land Use Element. * * * 1.1.18 Limit urban scale development to the Urban and Suburban areas of the City, as identified in the 2010 Comprehensive Plan, in order to prevent urban sprawl, protect agriculture lands, conserve natural open space, and to minimize the cost of public facilities and services, except for urban villages and other large scale mixed use developments which are designed to provide for the internal capture of daily trips for work, shopping and recreational activities. * * * 1.1.20 Future development orders, development permits and plan amendments shall maintain compact and compatible land use patterns, maintain an increasingly efficient urban service delivery system, and discourage urban sprawl. * * * In addition, leapfrog development is defined in the future land use element as follows: An urbanizing growth pattern which occurs when new land development is sited away from existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas. To discourage urban sprawl, the City has incorporated into its Plan a provision dealing with public facilities. This provision, which is found in the capital improvements element, establishes areas in which the City would provide public services during the time frame of the Plan. They include the "urban area," where urban services already exist or are programmed to be provided within a short time; the "suburban fiscal commitment area" where services such as water and sewer are in place or planned to be installed within five years; the "suburban non-fiscal commitment area," which is that portion of suburban area in which the City does not commit to providing water and sewer services witin the next five years; and the "rural area," which is predominately undeveloped and unplatted and comprises those areas not intended to be developed by the year 2010. Acree's property is located in the rural area as depicted in the capitol improvement element of the Plan. The sanitary sewer sub-element of the public utilities element of the Plan is also relevant to this issue. It provides in part as follows: Goal 1 The City shall provide for economically and environmentally sound wastewater collection and treatment systems which . . . promote beneficial land use and growth patterns and . . . discourage urban sprawl. Objective 1.1 In order to discourage urban sprawl and correct existing deficiencies, the City shall provide regional wastewater facilities in concert and conformance with the Public Facilities Map as adopted in the Capital Improvement Element. Policies * * * 1.1.5 The City shall not invest in sanitary sewer facilities in the Rural area as defined in the Future Land Use and Capital Improvements Elements, except where necessary to protect the public health and safety. The potable water sub-element of the public utilities element of the Plan contains comparable objectives and policies with regard to providing regional water facilities. The above provisions do not prevent a developer from paying the cost to extend such services to his property. Any facilities installed by the developer, however, must be maintained by the City after such facilities are turned over to the City by the developer. The plan category descriptions found in the Plan for agriculture land uses established a hierarchy based upon the size of the lot of record. The intent of the varying densities is to provide flexibility to owners of smaller lots of record while encouraging large land owners to maintain agricultural land uses, rather than converting to residential development. By law, certain development approved prior to the adoption of the Plan has vested rights. Local governments have included vesting language in their comprehensive plans. Some governments have elaborated upon vesting language to allow exceptions based upon density. The language regarding densities in agriculture land uses found in the Plan is similar to language found in other local government plans. Most plans with density exception language also contain provisions combining contiguous lots of record under common ownership. The density provisions found in the Plan do not make it inconsistent with Chapter 163, Florida Statutes, the DCA's rules, or the state comprehensive plan. At its closest point, Acree's property lies just 400 feet from the Nassau County line. He established that most of the land in Nassau County just north of the Duval County line, and just a short distance from his own, can now be developed at a residential density of one dwelling unit per acre while some can be developed at a residential density of one dwelling unit per one-half acre. He also established that all agriculture land in Nassau County can be developed with a residential density of one dwelling unit per twenty acres for tracts of 320 acres and greater regardless of the amount of land in single or contiguous ownership. However, there is nothing in chapter 163 or the agency's rules which require adjacent land uses in adjoining counties to be identical. Put another way, decisions made in Nassau County with respect to its comprehensive plan are not binding on Duval County. Therefore, the City was not required to classify Acree's property as rural residential merely because an adjoining county had classified nearby land in that manner. Redesignation of Acree's property from agriculture to rural residential would not constitute "infill" development. This is because of the property's distance from other urban development in the county and distance from existing water and sewer servcies. Given the location of Acree's property, reclassification to rural residential land would constitute leap frog development and promote urban sprawl as those terms are defined in the Plan. This is true even though nearby land in Nassau County is considered urban sprawl by City planning officials. Finally, preservation of agriculture land uses is a state concern, especially in areas not projected to be served by water and sewer services. Testimony established that there are several areas in Duval County classified as rural residential which constitute urban sprawl. With the exception of one such area, however, all areas reflect existing residential developments already in place. Table L19 of the future land use element of the Plan is a land use acreage allocation analysis which depicts the existing acreage for certain land use categories, the projected acreage needs for those categories to the year 2010, and the acreage allocated to those needs on the future land use map series. Table L19 indicates that the amount of the acreage allocated to the rural residential land use category is already 194.94 percent of the projected need. In summary, then, in order for the Plan to be internally consistent, Acree's property should be classified as agriculture. This will ensure that development occurs in a compact pattern, which is more cost efficient and compatible with the requirements of the Plan. Therefore, the property should not be reclassified as rural residential since this would be contrary to the goals, objectives and policies within the Plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a final order finding the City's Plan to be in compliance with the law. DONE AND ENTERED this 24th day of January, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7496GM Petitioners Davis and Dekle: Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. 7-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 8. 10-11. Partially accepted in finding of fact 10. 12-13. Partially accepted in finding of fact 11. Petitioner Acree: Partially accepted in finding of fact 30. Rejected as being irrelevant. 3-4. Rejected as being a conclusion of law. 5. Partially accepted in finding of fact 35. 6-7. Rejected as being irrelevant. See finding of fact 42. 8. Partially accepted in findings of fact 35 and 44. 9. Partially accepted in finding of fact 42. 10. Partially accepted in finding of fact 33. 11. Partially accepted in finding of fact 30. 12. Partially accepted in finding of fact 42. 13. Partially accepted in findings of fact 31 and 41. 14. Partially accepted in findings of fact 32 and 42. 15. Partially accepted in findings of fact 35 and 43. DCA and the City: 1-2. Partially accepted in finding of fact 1. 3-5. Partially accepted in finding of fact 2. 6-7. Partially accepted in finding of fact 3. 8-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 7. 12. Partially accepted in finding of fact 6. 13. Partially accepted in finding of fact 5. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17. Partially accepted in finding of fact 11. 18-19. Partially accepted in finding of fact 8. 20-21. Partially accepted in finding of fact 4. 22-24. Partially accepted in finding of fact 13. 25. Partially accepted in finding of fact 14. 26. Partially accepted in finding of fact 8. 27-28. Partially accepted in finding of fact 12. 29. Partially accepted in finding of fact 14. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 16. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 18. 34. Partially accepted in finding of fact 19. 35. Partially accepted in finding of fact 10. 36. Partially accepted in finding of fact 20. 37. Partially accepted in finding of fact 10. 38. Partially accepted in finding of fact 21. 39. Partially accepted in finding of fact 22. 40. Partially accepted in finding of fact 23. 41. Partially accepted in finding of fact 24. 42. Partially accepted in finding of fact 25. 43. Partially accepted in finding of fact 26. 44. Partially accepted in finding of fact 27. 45. Partially accepted in finding of fact 28. 46. Partially accepted in findings of fact 30 and 42. 47. Partially accepted in finding of fact 31. 48. Partially accepted in finding of fact 34. 49. Partially accepted in finding of fact 32. 50. Partially accepted in finding of fact 42. 51-53. Partially accepted in finding of fact 35. 54. Partially accepted in finding of fact 37. 55-56. Partially accepted in finding of fact 38. 57. Partially accepted in finding of fact 39. 58. Partially accepted in finding of fact 46. 59-60. Partially accepted in finding of fact 36. 61. Partially accepted in finding of fact 42. 62. Partially accepted in finding of fact 43. 63. Partially accepted in finding of fact 42. 64. Partially accepted in finding of fact 43. 65. Partially accepted in finding of fact 41. 66. Partially accepted in finding of fact 45. 67. Partially accepted in finding of fact 44. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, subordinate, cumulative, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Katherine A. Castor, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Michael A. Altes, Esquire 200 West Forsyth Street, Suite 1100 Jacksonville, Florida 32202-4308 James A. Acree 5031 Dianwood Drive East Jacksonville, Florida 32210 Tracey I. Arpen, Jr., Esquire 1300 City Hall 220 East Bay Street Jacksonville, Florida 32202
The Issue The issue is whether the Land Development Code (LDC) adopted by Ordinance No. 2007-12 on August 22, 2007, as amended on February 27, 2008, is inconsistent with the effective comprehensive plan for the City of Doral (City), which is the Miami-Dade Comprehensive Development Master Plan (County Plan).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Section 64 is a Florida corporation. The Grand is a Florida limited partnership. Both entities are owned by the same individual. On September 25, 2001, Section 7 acquired ownership of an approximate ten-acre tract of property in the County (now the City) located along the southern boundary of Northwest 82nd Street, between 109th and 112th Avenues. See Petitioners' Exhibit 416. On December 16, 2005, title in one- half of the property was conveyed to The Grand in order to divide the property into two different ownerships. Id. It was Petitioners' intent at that time to build two hotels on separate five-acre tracts, one owned by Section 7 and the other by The Grand. The City is located in the northwestern part of Dade County and was incorporated as a municipality in June 2003. At the time of incorporation, the County's Plan and Land Use Code were the legally effective comprehensive plan and land development regulations (LDRs), respectively. On April 26, 2006, the City adopted its first comprehensive plan. After the Department determined that the Plan was not in compliance, remedial amendments were adopted on January 10, 2007, pursuant to a Stipulated Settlement Agreement. Although the Department found the Plan, as remediated, to be in compliance, it was challenged by a third party, and the litigation is still pending. See DOAH Case No. 06-2417. Therefore, the County Plan is still the legally effective Plan. See § 163.3167(4), Fla. Stat. The Department is the state land planning agency charged with the responsibility of reviewing LDRs whenever the appeal process described in Section 163.3213, Florida Statutes, is invoked by a substantially affected person. History of the Controversy When Petitioners' property was purchased in 2001, the County zoning on the property was Light Industrial (IU-1), having been rezoned by the County to that designation on October 9, 1984. See Petitioners' Exhibit 5. One of the uses permitted under an IU-1 zoning classification is a hotel with up to 75 units per acre. See Petitioners' Exhibit 6. The land use designation on the County's LUP map for the property is Low- Density Residential (LDR), with One Density Bonus, which allows 2.5 to 6 residential units per acre with the ability for a "bump-up" in density to 5 to 13 units per acre if the development includes specific urban design characteristics according to the County urban design guide book. Language found on pages I-62 and I-63 of the Future Land Use Element (FLUE) in effect at the time of the incorporation of the City (now found on pages I-73 and I-74 of the current version of the FLUE) provides in relevant part as follows: Uses and Zoning Not Specifically Depicted on the LUP Map. Within each map category numerous land uses, zoning classifications and housing types may occur. Many existing uses and zoning classifications are not specifically depicted on the Plan map. . . . All existing lawful uses and zoning are deemed to be consistent with the [Plan] unless such a use or zoning (a) is found through a subsequent planning study, as provided in Land Use Policy 4E, to be inconsistent with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as determined by the Code of Metropolitan Dade County, Florida. As noted above, if there is a concern that zoning might be inconsistent with land use, using the criteria described in the provision, the County may initiate a planning study to analyze consistency and down-zone the property to a less intense use if an inconsistency is found. Although the County initiated a number of planning studies after it adopted its Plan in 1993, and ultimately down-zoned many properties, none was ever initiated by the County for Petitioners' property. Essentially, when existing uses and zoning are not depicted on the County LUP map, the language in the FLUE operates to deem lawfully existing zoning consistent with the land use designation on the property. In this case, the parties agree that the zoning of Petitioners' property is not depicted on the County LUP map. Therefore, absent a planning study indicating an inconsistency, the zoning is deemed to be consistent with the land use category. On August 22, 2007, the City adopted Ordinance No. 2007-12, which enacted a new LDC, effective September 1, 2007, to replace the then-controlling County Land Use Code. Although the LDC was adopted for the purpose of implementing the new City Plan, until the new Plan becomes effective, the LDC implements the County Plan. Amendments to the LDC were adopted by Ordinance No. 2008-1 on February 27, 2008. The LDC does not change the zoning on Petitioners' property. However, it contains a provision in Chapter 1, Section 5, known as the Zoning Compatibility Table (Table), which sets forth the new land use categories in the City Plan (which are generally similar but not identical to the County land use categories) and the zoning districts for each category. Pertinent to this dispute is an asterisk note to the Table which reads in relevant part as follows: Under no circumstances shall the density, intensity, or uses permitted be inconsistent with that allowed on the city's future land use plan. . . . Zoning districts that are inconsistent with the land use map and categories shall rezone prior to development. See Petitioners' Exhibit 27 at p. I-3. Under the Table, only residential zoning districts (with up to ten dwelling units per acre and no density bonus) are allowed in the City's proposed LDR land use category. Therefore, if or when the City Plan becomes effective, before Petitioners can develop their property, they must rezone it to a district that is consistent with the land use designation shown on the Table. There is no specific requirement in the LDC that the City conduct a planning study when it has a concern that the zoning is inconsistent with the relevant land use category in the new City Plan. Petitioners construed the asterisk note as being inconsistent with the text language on pages I-62 and I-63 of the County Plan. See Finding of Fact 5, supra. Accordingly, on August 21, 2008, Petitioners submitted a Petition to the City pursuant to Section 163.3213(3), Florida Statutes, alleging generally that they were substantially affected persons; that the LDC was inconsistent with the County Plan; that the LDC changes the regulations regarding character, density, and intensity of use permitted by the County Plan; and that the LDC was not compatible with the County Plan, as required by Florida Administrative Code Rule 9J-5.023.2 See Petitioners' Exhibit 103. The City issued its Response to the Petition on November 20, 2008. See Petitioners' Exhibit 104. The Response generally indicated that Petitioners did not have standing to challenge the LDC; that the Petition lacked the requisite factual specificity and reasons for the challenge; that the LDC did not change the character, density, or intensity of the permitted uses under the County Plan; and the allegation concerning compatibility lacked factual support or allegations to support that claim. On December 22, 2008, Petitioners filed a Petition with the Department pursuant to Section 163.3213(3), Florida Statutes, alleging that the LDC implements a City Plan not yet effective; that the LDC changes the uses, densities, and intensities permitted by the existing County Plan; and that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan. See Petitioners' Exhibit 105. After conducting an informal hearing on April 7, 2009, as authorized by Section 163.3213(4), Florida Statutes, on July 23, 2009, the Department issued a Determination of Consistency of a Land Development Regulation (Determination). See Petitioners' Exhibit 102. See also Section 7 Tract 64 Property, Inc., et al. v. The City of Doral, Fla., Case No. DCA09-LDR-270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In the Determination, the Department concluded that Petitioners were substantially affected persons and had standing to file their challenge; that the provision on pages I-62 and I-63 of the County FLUE did not apply to Petitioners' property because the uses and zoning of the property are specifically designated on the LUP map; that the law does not prohibit the Department from reviewing the LDC for consistency with the not yet effective City Plan; and that because the LDC will require Petitioners to rezone their property to be consistent with the City Plan, the challenge is actually a challenge to a rezoning action and not subject to review under this administrative process. See § 163.3213(2)(b), Fla. Stat. On August 13, 2009, Petitioners filed their Petition for Formal Proceedings with DOAH raising three broad grounds: that the LDC unlawfully implements a comprehensive plan not yet effective; that it changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with the County Plan; and that it changes the uses, densities, and intensities permitted by the not yet effective City Plan and is inconsistent with that Plan. See Petitioners' Exhibit 39. These issues are repeated in the parties' Stipulation. As to other issues raised by Petitioners, and evidence submitted on those matters over the objection of opposing counsel, they were tried without consent of the parties, and they are deemed to be beyond the scope of this appeal. The Objections Petitioners first contend that the LDC unlawfully implements a comprehensive plan not yet in effect, in that it was specifically intended to be compatible with, further the goals or policies of, and implement the policies and objectives of, the City Plan. See Fla. Admin. Code R. 9J-5.023. But Petitioners cited no statute or rule that prohibits a local government from adopting LDRs before a local plan is effective, or that implement another local government's plan (in this case the County Plan). While the LDC was adopted for the purpose of implementing a City Plan that the City believed would be in effect when the LDC was adopted, the City agrees that until the new City Plan becomes effective, the LDC implements the County Plan. Even though the two Plans are not identical, and may even be inconsistent with each other in certain respects, this does automatically create an inconsistency between the LDC and County Plan. Rather, it is necessary to determine consistency between those two documents, and not the City Plan. Except for testimony regarding one provision in the LDC and its alleged inconsistency with language in the County FLUE, no evidence was presented, nor was a ground raised, alleging that other inconsistencies exist. The Table note and the County Plan do not conflict. The LDC is not "inconsistent" merely because it was initially intended to implement a local plan that has not yet become effective. Petitioners next contend that the LDC changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with that Plan. Specifically, they contend that the note following the Zoning Compatibility Table in Chapter 1, Section 5 of the LDC is inconsistent with the language on pages I-62 and 63 (now renumbered as pages I-73 and I-74) of the County Plan. In other words, they assert that an inconsistency arises because the note requires them to down- zone their property before development, while the County Plan deems their zoning to be consistent with the County LUP map unless a special planning study is undertaken. The evidence establishes that if there is a conflict between zoning and land use on property within the City, it is necessary to defer to the language on pages I-62 and I-63 of the County FLUE for direction. This is because the County Plan is the effective plan for the City. Under that language, if no planning study has been conducted, the zoning would be deemed to be consistent with the land use. On the other hand, if a planning study is undertaken, and an inconsistency is found, the property can be rezoned in a manner that would make it consistent with the land use. Therefore, the LDC does not change the use, density, or intensity on Petitioners' property that is permitted under the County Plan. It is at least fairly debatable that there is no conflict between the Table note and the County Plan. Finally, Petitioners contend that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan because the current industrial zoning designation will be inconsistent with the LDR land use designation. Petitioners argue that once the new City Plan becomes effective, the LDC requires them to down-zone their property before development. However, this concern will materialize only if or when the new City Plan, as now written, becomes effective; therefore, it is premature. Further, the definition of "land development regulation" specifically excludes "an action which results in zoning or rezoning of land." See § 163.3213(2)(b), Fla. Stat. Because the challenged regulation (the note to the Table) is "an action which results in zoning or rezoning of land," the issue cannot be raised in an administrative review of land development regulations. Id. The other contentions raised by Petitioner are either new issues that go beyond the scope of the Petition filed in this case or are without merit.
The Issue Whether the Petitioner, Carla Brice, has demonstrated by a preponderance of the evidence that she is entitled to a vested rights certificate to develop certain real property located in Alachua County, Florida without complying with the Alachua County Comprehensive Plan?
Findings Of Fact The Subject Property. The property at issue in this proceeding (hereinafter referred to as "Lot 111"), consists of approximately 6 acres of real property located in Alachua County, Florida. Lot 111 is currently owned by the Petitioner, Carla Brice. Ms. Brice acquired Lot 111 through inheritance from her father, Carl L. Brice. Ms. Brice acquired the property in approximately January of 1993. Early History of the Development of Arredonda Estates. During the 1950s Mr. Brice acquired a platted subdivision in Alachua County known as Arredonda Estates Unit 1 (hereinafter referred to as "Unit 1"). Approximately 100 acres of property located adjacent to Unit 1 were also acquired by Mr. Brice. Unit 1 met the existing plat law of Alachua County. Mr. Brice proceeded with the development of Unit 1 and the sale of lots therein. Part of the 100 acres acquired by Mr. Brice was subsequently platted and developed for sale as residential lots as Arredonda Estates Unit 2A (hereinafter referred to as "Unit 2A"). Arredonda Estates Unit 2B (hereinafter referred to as "Unit 2B") was to be located to the north of Unit 2A. Because of the lack of access out of Unit 2B, the then County engineer of the Alachua County, Roy J. Miller, informed Mr. Brice that he would not allow Mr. Brice to proceed with Unit 2B until Mr. Brice completed development of approximately 33 acres of real property located to the east of Unit 1. Mr. Miller believed that there would be better access from the various phases of Arredonda Estates if the 33 acres were developed first because there would be access out of the 33 acres onto County Road 24 and onto Broken Arrow Road to the east of the 33 acres. Mr. Miller, as the County engineer, wielded a great deal of influence in the development of property in Alachua County at the time Mr. Brice developed Units 1 and 2A and at the time he was beginning development of the 33 acres. Although the evidence failed to prove that Mr. Miller could have legally required Mr. Brice to develop the 33 acres before developing Unit 2B, the uncontroverted evidence proved that it was believed that Mr. Miller's approval was necessary in order to complete a development. The 33 acres surround Lot 111 on the east, west and north. The south boundary of Lot 111 is County Road 24, Archer Road. One of the two access roads to County Road 24 from the 33 acre development was located to the immediate east of Lot 111 and the other was located to the immediate west of Lot 111. Lot 111 is bounded on the south by County Road 24. The 33 acres were to be developed as Arredonda Estates (hereinafter referred to as "Unit 4"). The Development of Unit 4. Mr. Brice informed Mr. Miller that he was concerned about developing Unit 4 before developing Unit 2B because Mr. Brice planned to develop Lot 111 as a shopping center. He did not plan to build the shopping center until all phases of Arredonda Estates were completed, including Unit 2B. In agreeing to develop Unit 4 before Unit 2B, Mr. Brice was concerned about making expenditures for larger drainage facilities and obtaining additional easements necessary for the development of Lot 111 before he planned to begin actual development of the shopping center. Mr. Brice informed Mr. Miller of these concerns. The shopping center Mr. Brice planned to develop was to consist of 296,000 square feet of paved surface and 50,000 square feet of roof area. These plans required a redesign of the drainage for Unit 4. In particular, the following modifications were necessary: In conclusion I find it necessary to change the diameter of pipe #7 from an 18 inch diameter to a 21 inch diameter, placed at a 0.15 percent slope pipe grade. Some necessary amendments are required at this point. The larger size pipe in place will cost $9.20 per linear foot. Some sixty-two feet are needed, therefore the total cost will be $570.40. Brice exhibit 9. Despite Mr. Brice's concerns, Mr. Miller continued to insist on the development of Unit 4 before Unit 2B and Mr. Brice proceeded with the development of Unit 4. Unit 4 was platted on July 19, 1970. The plat was recorded in Plat Book H, Page 30, Official Records of Alachua County. The initial design of Unit 4 provided for one point of ingress and egress on to State Road 24 from Unit 4. Mr. Miller required that two points of ingress and egress be provided and Mr. Brice agreed. The evidence failed to prove that this requirement was agreed to in exchange for any representation from Alachua County that Mr. Brice would be allowed to develop the shopping center. The final plat provided two means of ingress and egress to State Road 24 and one means of ingress and egress to County Road Number Southwest 24-C (Broken Arrow Road). Lot 111 is contained on the plat. No intended use for Lot 111 was designated on the plat of Unit 4. The plat simply identifies the lot. See Brice exhibit 5. The plat identifies the development of residential lots only. The 33 acres was initially zoned as "A" (agriculture). In order to develop Unit 4 it was necessary to obtain approval of re-zoning of the property as R1C, residential use. The re-zoning of the 33 acres was sought and approved. Lot 111 was also zoned for agricultural use when acquired. On February 11, 1969, 4.27 acres of Lot 111 were re-zoned from "A" (agriculture) to "BR" (retail sales and service). On July 1, 1969, a special use permit allowing a mobile home trailer sales agency was issued for use of 1.1 acres contiguous to the 4.27 acre parcel of Lot 111 by Alachua County. On July 7, 1975, the 1.1 acres, which the special use permit had been issued for, was zoned from "A" to "BR." Construction plans for site improvements for Unit 4 were subsequently prepared, filed with Alachua County and were approved. See Brice exhibit 10. Included on the plans is a rectangular shape identified as "Proposed Shopping Center" containing indications of measurements representing 50,000 square feet of building space. The "Proposed Shopping Center" designation is located on Lot 111. Mr. Brice was subsequently informed that the site improvements for Unit 4 were approved by Alachua County. The evidence failed to prove, however, that Alachua County specifically considered or approved the construction of a shopping center on Lot 111 in approving the site improvement plans for Unit 4. The approved site improvements for Unit 4 were ultimately made and accepted by Alachua County in September of 1970. Government Action Relied Upon. Mr. Miller intended to allow Mr. Brice to develop Lot 111 as a shopping center "as he had planned." Mr. Miller's approval was conditioned on the completion of development of Units 2B and 4 and the sale of lots thereon. The shopping center to be approved was to be limited to what Mr. Brice "had originally proposed" which was a shopping center of 50,000 square feet. Mr. Brice complied with Mr. Miller's condition that he complete development of Unit 4 before developing Unit 2B. The evidence failed to prove that it was reasonable for Mr. Brice to believe that Mr. Miller's representations concerning the approval of Mr. Brice's intended development of a shopping center on Lot 111 would last indefinitely. It was also unreasonable for Mr. Brice to believe that the representations of Mr. Miller would survive indefinitely beyond the time that Mr. Brice completed development of Arredonda Estates. In July of 1970, Alachua County Zoning Regulations contained the following site plan approval requirement for shopping centers: No permit shall be issued for construction of a shopping center until the plans and specifications, including the design of ingress and egress roads, parking facilities, and such other items as may be found of importance have been approved by the zoning commission. Based upon this provision, Mr. Miller did not have the authority to approve the construction of a shopping center on Lot 111 in July of 1970. If the representations made by Mr. Miller to Mr. Brice concerning construction of the shopping center had been made in July, 1970, it would be unreasonable for Mr. Brice to rely upon Mr. Miller's representation because of the Alachua County Zoning Regulations quoted in finding of fact 31. If the representations were made before July, 1970, it would be reasonable for Mr. Brice to rely on Mr. Miller's approval of the shopping center because the evidence failed to prove that Alachua County Zoning Regulation quoted above was in effect before July, 1970. The weight of the evidence proved that Mr. Miller's representations were made before July, 1970. Detrimental Reliance. Mr. Brice proceeded with the development of Unit 4. Roads and drainage facilities associated with Unit 4 were constructed by 1971. The cost of these improvements was approximately $68,989.54. The total cost of improvements associated with Unit 4 was $121,947.54. Mr. Brice also had to obtain a drainage easement but the evidence failed to prove the cost of doing so. The exact amount expended on Unit 4 attributable to work performed just for Lot 111 and the shopping center was not proved by Ms. Brice. One method of allocating costs associated with the development of Unit 4 to Lot 111 suggested by Ms. Brice is to determine the percentage of acreage Lot 111 represents of the whole of Unit 4: approximately 17.9 percent. Applying this percentage to the total costs equals $21,828.61. The weight of the evidence, however, failed to prove that $21,828.61 was actually incurred in association with Lot 111. The evidence failed to prove that it would be reasonable to attribute any part of the expenditures listed in paragraphs 1, 3, 6, 8, 9, 11 or 12 of Brice exhibit 30 as attributable to Lot 111. Based upon evidence presented by Alachua County, the total expenditures made by Mr. Brice associated with Lot 111 and the shopping center were approximately $1,005.50. Subsequent Events. Mr. Brice caused preliminary plans for a shopping center for Lot 111 to be developed. Brice exhibit 14. Those plans were never submitted for approval and no building permit was issued approving the construction of a shopping center for Lot 111. The preliminary plans for the shopping center indicate a substantially different configuration for the shopping center than indicated on the site improvement plans for Unit 4. Brice exhibit 14. No final development plan or plat approving a shopping center on Lot 111 was issued by Alachua County. Efforts were made during the 1970s to market Lot 111 for development as a shopping center. These efforts were not successful. As a part of this effort, Mr. Brice incurred $7,000.00 for the construction of a three dimensional model of the proposed shopping center evidenced on the preliminary plans. It has been suggested that Mr. Brice did not proceed with the development of the shopping center during the 1970's and into the 1980's for a number of reasons: A dispute between Mr. Brice and Alachua County arose in 1976 concerning the road in Unit 2A; A dispute also arose concerning the water system in the area of Arredonda Estates; The state of the economy was not conducive to development. The evidence, however, failed to prove why the shopping center was not developed. In 1973, Alachua County created a development review committee. Final site plans for commercial sites were required to be approved by the committee. Mr. Brice did not obtain approval for the proposed shopping center or seek assurances from Alachua County that Mr. Miller's representations concerning the shopping center on Lot 111 were still valid. During 1982 and 1983, Mr. Brice became aware of proposed revisions to the Alachua County Comprehensive Plan. Mr. Brice met with Alachua County officials concerning the revisions and followed the progress of the revisions. In 1984 Alachua County adopted a comprehensive plan. Under this plan commercial use of Lot 111 was not allowed except for a neighborhood convenience store with square footage of 10,000 square feet. In 1985, during a meeting with Alachua County personnel, Mr. Brice and his attorney were informed that Lot 111 could not be developed as a shopping center without a comprehensive plan amendment. No amendment was applied for. In 1989, offers to purchase Lot 111 were received. Those offers were continent upon the property being developed consistent with the BR zoning. Ms. Brice's name, then known as Carla B. Sutton, first appears in connection with Lot 111 in 1989 when offers to purchase Lot 111 were received. The evidence, however, failed to prove that she was owner of Lot 111 at that time. In 1989 or 1990, a conceptual site plan review was applied for by David Miller, Mr. Brice's representative, concerning Lot 111. Brice exhibit 21. The application was considered at an Alachua County Development Review Committee meeting on March 22, 1990. Consideration of the application was deferred for two weeks. The development Review Committee met on April 19, 1990 and considered the application for conceptual site plan review for Lot 111. The Committee was concerned about how the fact that Lot 111 had been zoned BR before the comprehensive plan had been adopted impacted the fact that development of Lot 111 as a shopping center was prohibited by the comprehensive plan. A decision was delayed for a month and staff was asked to prepare a report dealing with similarly situated parcels. By January 1991, proposed language providing for vesting of certain zoning had been drafted by Alachua County. Brice exhibit 24. By letter dated January 30, 1991, Kurt Larsen, Director of the Office of Planning and Development of Alachua County, informed all affected property owners that Alachua County was "considering" allowing a period of time during which existing zoning would be honored. Brice exhibit 25 Comments were invited. By letter dated February 15, 1991, counsel for Ms. Brice responded to Mr. Larsen's January 30, 1991 letter. Brice exhibit 26. A Transmittal Draft of the Future Land Use Element of the Alachua County Comprehensive Plan dated April 1991 was sent to the Florida Department of Community Affairs for review. See Brice exhibit 27. The Draft provided a two- year period during which undeveloped parcels zoned for a use that was otherwise inconsistent with the Comprehensive Land Use Plan would be allowed to be developed essentially in accordance with existing zoning. This policy was ultimately rejected by the Department of Community Affairs. Alachua County informed Ms. Brice of the action of the Department of Community Affairs by letter dated September 18, 1991. Brice exhibit 28. Rights That Will Be Destroyed. Alachua County adopted a Comprehensive Land Use Plan in 1991. The following policy was agreed to in a compromise between Alachua County and the Department of Community Affairs concerning commercial enclaves: Policy 3.4.3. Commercial Enclaves are designed within the Urban Cluster on the Future Land Use Map. These sites shall be subject to the following location and compatibility standards: Development of Commercial Enclaves shall be required to meet all concurrency requirements. Development shall be required to minimize access from arterials and collectors. Whenever possible, driveways shall use common access points to reduce potential turn movements. A maximum of 20,000 square feet of gross leasable area shall be permitted within each enclave. Uses may include neighborhood convenience centers consistent with Policy 3.8., offices consistent with Policy 3.9.1. and sit-down restaurants. The land development regulations for this land use category shall specify performance standards required to mitigate any adverse impact of such development on adjacent land uses and affected public facilities. Such performance standards shall include buffering and landscaping provisions, site design measures to locate such uses away from less intensive adjacent land uses, signage and parking restrictions, and intensity provisions (e.g. height and bulk restrictions). In the interim, until land development regulations consistent with these policies are adopted, the standards and criteria governing Commercial Enclaves shall be implemented through the County's Development Review Committee process. This policy shall be reviewed by 1993 to determine the effectiveness of the land use category. Mr. Brice was informed, after contacting the Alachua County Growth Management Department, that his development of Lot 111 was limited by the commercial enclave policy. Pursuant to the commercial enclave policy, development of Lot 111 is limited to a size of 20,000 square feet and the uses to which Lot 111 may be put are less than would be allowed under BR zoning. Carla Brice's Reliance and Detriment. The evidence in this case failed to prove that Ms. Brice, the current owner of Lot 111 and the applicant in this case, was aware of any representations made by Mr. Miller. More importantly, the evidence failed to prove that Ms. Brice in any way reasonably relied upon the representations made to her father. The evidence also failed to prove that Alachua County made any representations to Ms. Brice that she would be allowed to develop Lot 111 as a shopping center. In fact, Alachua County has indicated just the opposite to Ms. Brice since she became the owner of Lot 111. In light of the amount of time that passed after Mr. Miller's representations were made to Mr. Brice and the intervening events concerning development in Alachua County before Ms. Brice acquired Lot 111, any reliance by Ms. Brice on Mr. Miller's representations would not be reasonable. Finally, the evidence failed to prove that Ms. Brice detrimentally relied upon any representation of Alachua County concerning the development of Lot 111. Only Mr. Brice, Ms. Brice's father, made expenditures related to the development of Lot 111 as a shopping center. I. Procedural Requirements. On June 9, 1993 Ms. Brice filed her Application seeking an equitable vested rights certificate or a statutory vested rights certificate. On September 22, 1993 Kurt Larsen, Director, Department of Growth Management, Alachua County, informed Ms. Brice that the Application was denied. Ms. Brice appealed the decision to deny the Application by letter dated September 28, 1993. The Division of Administrative Hearings was requested by letter dated January 18, 1994, from Alachua County to assign a hearing officer to conduct a formal administrative hearing. The formal administrative hearing of this matter was conducted on March 14, 1994.
The Issue The issue in Case 08-1144GM is whether Martin County Comprehensive Growth Management Plan (CGMP or Plan) Amendment 7-20, called the "Land Protection Incentives" (LPI) Amendment (LPIA), which was adopted by Ordinance 777 on December 11, 2007, and amended by Ordinance 795 on April 29, 2008, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.1 The issue in Case 08-1465GM is whether Martin County's Comprehensive Plan Amendment 7-22, called the "Secondary Urban Service District" (SUSD) Amendment (SUSDA), which was adopted by Ordinance 781 on December 11, 2007, is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Petitioners' Standing FOF and MCCA objected to the LPIA and the SUSDA during the time period from transmittal to adoption of those amendments.3 FOF FOF is a non-profit organization incorporated in 1986, shortly after Florida’s Local Government Comprehensive Planning and Land Development Regulation (Growth Management) Act was enacted to monitor the Act's implementation. FOF engages in legislative, legal, and grassroots advocacy for sustainable comprehensive land use planning in Florida. It conducts membership meetings, sends newsletters to members and others, hosts meetings open to the general public, and initiates or participates in litigation or administrative proceedings concerning amendments to local comprehensive plans. Its main office is in Tallahassee, where several employees work. It also has a branch office in Lake Worth, Palm Beach County, where one employee works. It has no office or employees in Martin County. There was no evidence that FOF has applied for or obtained any license or permit to operate a business in Martin County; nor was there any evidence as to the requirements for obtaining such a license or permit. FOF has approximately 3,500 members; approximately 550 members live or own property in Martin County. FOF does not have a continuous presence in Martin County, other than its members who live and own property there, but it continuously monitors comprehensive planning and related growth management issues in Martin County and from time to time engages in activities in Martin County. Since 1990, FOF was involved in the Loxahatchee Greenways project, a major river corridor running through Martin County; was involved in the protection of Jonathan Dickinson State Park, which is in Martin County; undertook its Palm Beach and Martin County Green Initiative (which addressed housing, legal, transportation, and other planning issues in Martin County and resulted in the distribution of educational materials on Martin County planning issues); opposed specific local development proposals; supported a sales tax referendum to buy and preserve environmentally- sensitive lands; collaborated with the County planning department to update the housing element of the County Comprehensive Plan; assisted with a local affordable housing initiative; published a booklet on comprehensive planning in the County; and conducted a public survey of County residents assessing attitudes about planning. FOF staff members speak at and participate in annual growth management forums in Martin County, which are attended by a substantial number of its members. FOF has regularly commented in person and in writing to the Martin County Commission on proposed CGMP changes. FOF also has previously participated as a party in administrative hearings conducted in the County concerning the CGMP, during which its president has testified as an expert planner. The relief requested by FOF in this case is germane to its goals and appropriate to request on behalf of its members. MCCA MCCA is a Florida not-for-profit corporation created in 1997. It is a membership-based organization of 120 individuals and 14 other organizations. MCCA itself does not own real property in Martin County. However, at least 38 individual members reside and own real property in the County, and at least one organizational member (Audubon of Martin County) owns real property in the County. MCCA does not maintain an office or have paid employees. It operates through its members, who volunteer. MCCA's Articles of Incorporation state that it was formed "to conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, [and] to maintain and improve the quality of life for all of the residents of Martin County." It engages in various forms of lobbying and advocacy for or against amendments to Martin County's Comprehensive Plan, including initiation or participation in litigation and administrative proceedings. It conducts membership meetings in the County, sends newsletters to members and others, hosts meetings in the County that are open to the general public (including an annual growth management meeting with FOF and an annual awards luncheon with local conservation groups), and works with member organizations on issues relating to the Indian River Lagoon (IRL), including petition drives. The relief requested by MCCA in this case is germane to its goals and appropriate to request on behalf of its members. Martin County Comprehensive Growth Management Plan The CGMP establishes two "urban service districts" in the County, a Primary Urban Service District (PUSD) and a Secondary Urban Service District (SUSD). See CGMP, § 4.4.G. The PUSD has been part of the Plan since it was first adopted in 1982, while the SUSD was added during the major revision of the Plan in 1990. Approximately 65,702 acres (101 square miles) are located within the PUSD. The PUSD encompasses most of the eastern coastal area of the County surrounding four incorporated municipalities, (Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park), plus an isolated inland area known as Indiantown. Approximately 9,621 acres (14 square miles) are located within the SUSD. All land within the SUSD is immediately adjacent to land within the PUSD, but is split into several discontinuous sections so that some of the land along the western border of the PUSD abuts land outside the urban service districts. The County's purpose for having urban service districts is to "regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available at the levels of service adopted in [the Plan]." CGMP, § 4.4.G. The Plan further provides: Objective: Martin County shall concentrate higher densities and intensities of development within the strategically located [PUSDs], as delineated, including commercial or industrial uses as well as residential development exceeding a density of two units per acre . . . . * * * b. Policy: Martin County shall require that new residential development containing one-half acre or smaller lots, commercial uses, and industrial uses shall be located within the [PUSD]. * * * Objective 2. Martin County shall concentrate rural and estate densities not exceeding one unit per gross acre within the [SUSDs] where a reduced level of public facility needs are programmed to be available at the base level of service adopted in the Capital Improvements Element. a. Policy: Martin County shall designate land uses within the [SUSD] in order to provide for the use and extension of urban services in an efficient and economical manner, and consistent with the reduced intensity of urban services normally associated with densities of one unit per gross acre (Estate Density RE-1A) and one unit per two gross acres (Rural Density). . . . * * * f. Policy: In areas designated as [SUSD], where development is proposed that would contain one- half acre lots, or commercial and industrial uses, a change to a [PUSD] designation must be approved by the Board of County Commissioners as part of a land use amendment . . . . The Plan thus generally establishes residential density for land within the PUSD at 2 or more dwelling units per acre, and for land within the SUSD at 1 dwelling unit per acre to 1 dwelling unit per 2 acres. The remaining land within the County that is not within the PUSD or SUSD is generally referred to as "outside" the urban service districts. There are approximately 269,034 acres of such land. The vast majority of such land (approximately 210,379 acres) is designated in the Plan for "agricultural" use. Most of the other land outside the urban service districts is designated for either "public conservation" or "public utilities" See CGMP, § 4.4.L., § 4.4.M.1.a., i., and j. The Plan currently allows residential use of land outside the urban service boundaries that is designated for agricultural use but limits it to either 1 dwelling unit per 5 acres, known as "agricultural ranchette," or 1 dwelling unit per 20 acres. See CGMP, § 4.4.M.1.a.& c. The Plan further specifies for the latter that: Residential development in the agricultural area is restricted to one-single family residence per gross 20-acre tract. [N]o development shall be permitted which divides landholdings into lots, parcels or other units of less than 20 gross acres. Acreage may be split for bona fide agricultural uses into parcels no smaller than 20 gross acres. . . . Residential subdivisions at a density or intensity or greater than one single- family dwelling unit per 20 gross acre lot shall not be allowed. (CGMP, § 4.4.M.1.a.) Throughout the Plan, residential development on lots of 2 acres or more is consistently referred to as "rural" development (even within the SUSD), while residential development on smaller lots is consistently referred to as "urban" and must be in either the PUSD or SUSD. It was undisputed that the County's adoption of such a distinction between urban and rural residential lots was a professionally acceptable planning practice. Preservation of the County's agricultural lands is a goal of the Plan. See CGMP, § 4.4.L.1. It is also later stated in a policy related to the allocation of land: Through its planning, capital improvements, cooperative extension, regulatory and intergovernmental coordination activities, Martin County shall continue to protect agriculture as a viable economic use of land. (CGMP, § 4.4.M.1.b.) Preservation of conservation and open space areas within the County is the subject of an entire element of the Plan. See CGMP, Chap. 9.4 The County's goal is "to effectively manage, conserve, and preserve the natural resources of Martin County, giving consideration to an equitable balance of public and private property rights. These resources include air, water, soils, habitat, fisheries, and wildlife, with special emphasis on restoring the St. Lucie Estuary and the Indian River Lagoon." CGMP, § 9.4.A. Preservation of conservation and open space areas is also addressed in numerous other objectives and policies throughout the several elements of the Plan and is a predominant theme of the entire Plan. The provision of "urban public facilities and services" is expressly limited by a policy to the County's urban service districts "in order to preserve agricultural lands and provide maximum protection to the farmer from encroachment by urban uses." CGMP, § 4.4.L.1.a. The Plan defines the term "public urban facilities and services" as "regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." CGMP, § 4.1.B.4. However, the term is often used in the Plan in a rearranged or abbreviated manner, such as "urban public facilities and services" (§ 4.4.G.1.f.(7)), "public facilities and services" (§ 4.4.G and § 4.4.G.1.f.), "public services and facilities" (§ 4.4.G.1.i.), "public urban facilities" (§ 4.4.G.1.c.), "public urban facilities" (§ 4.4.G.1.i.), or merely "public facilities (§ 4.4.G.1.) or "urban services " (§ 4.4.G.2.a.). LPIA Provisions The LPIA adds a new objective and new policies under the Future Land Use Element goal addressing "natural resource protection," which provides: Martin County shall protect all the natural resource systems of the County from the adverse impacts of development, provide for continued growth in population and economy and recognize the inter-relationship between the maintenance of urban support infrastructure in waste management, air and water quality, and the coastal zone environmental quality. (CGMP, § 4.4.E.) To the existing 6 objectives under that goal, the LPIA adds a seventh which states: Martin County shall create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007. For the purposes of Section 4.4.E.7., and supporting paragraphs, the definition of open space, found in Section 9.4.A.11., CGMP, shall not include roads, highways and their median strips and berms. This objective is intended to encourage the conveyance of fee simple title of land listed for public acquisition by state, regional or local environmental or governmental agencies or land trusts. Lands listed for acquisition include, but are not be limited to [sic], land designated for public acquisition under the Save Our Rivers program, the Indian River Lagoon, North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program. The overall purpose of the LPIA is to encourage the owners of tracts of land outside the urban service districts that are at least 500 acres to choose a different pattern of development than the Plan now allows, by allowing a substantial reduction in the minimum lot size so that the development may be "clustered" on a smaller "footprint" within the overall tract of land, but only if at least 50% of the entire tract is "set aside" permanently for conservation, open space, or agricultural use and stripped of its potential for future development. This approach, it is hoped, will make it easier and cheaper for the County and other governmental entities to acquire the large tracts of land they desire to use for the CERP and other conservation projects. The LPIA does not allow for more development than is allowed under the Plan currently. It allows the same amount of development to be arranged on a tract of land in a different pattern than is currently allowed. It accomplishes this primarily through the combination of a change in the minimum lot size from "20 acres" to "over 2 acres" with a new allowance for "clustering" the smaller lots on a portion of an overall tract of land rather than having an equal number of larger lots spread throughout the entire tract of land. The LPIA adopts six policies to accomplish the new objective: Policy (7)a. provides for the protection of the land "set aside" to be conveyed or subject to an easement in favor of a combination of the County, the South Florida Water Management District, and a third entity, chosen from among the other governmental or not-for-profit conservation- oriented organizational entities listed in the policy. Policy (7)b. requires that a combination of a comprehensive plan amendment and a PUD agreement be used for the change in the development characteristics of the land. The PUD agreement would address the portion of the tract subject to development and not "set aside," while the plan amendment would address (at a minimum) the remaining portion of the tract which is permanently "set aside" for conservation, open space, or agricultural use and would no longer have any potential for residential development. Policy (7)c. provides additional specificity concerning the subject matters that would be addressed by the comprehensive plan amendment, such as any required change in land use designation for the set-aside portion of the tract of land, and if it remains designated for agricultural use, the removal of any potential for development. Policy (7)d. primarily provides additional specificity concerning the subject matters that would be addressed by the PUD agreement, setting minimum requirements to be met such as the tract having to be a minimum of 500 acres in size; the development being "fiscally neutral to existing taxpayers"; the lots having to be more than 2 acres in size; the inability to develop in environmentally sensitive areas on the tract; and the acknowledgment of a permanent restriction against any future increase of density on the tract. The policy also essentially repeats some of the requirements enunciated in the second and third policies regarding the conveyance of title or easement and the required comprehensive plan amendment, and addresses who pays the closing costs for the set-aside portion of the tract. Policy (7)e. establishes additional requirements specifically applicable to land that has been "listed for acquisition by state, regional, or local agencies as part of an established conservation program." Policy (7)f. enumerates the "site specific benefits" that the second policy states the County must consider when deciding whether to approve an application for development under the optional pattern allowed by the LPIA, such as whether more than the minimum 50% of the tract will be "set aside" permanently, whether the location fills "gaps in natural systems, wildlife corridors, greenways and trails," or whether buffers are provided along roads "to limit access and to protect vistas." The LPIA requirement for at least 50% of an entire tract being set aside for one of the three public purposes, when coupled with other requirements of the Plan such as establishment of construction setback distances, preservation of wetlands and creation of buffers around wetlands, preservation of certain uplands, would result in more than 50% of an undeveloped tract of land remaining in an undeveloped state and at least 50% of agricultural land remaining in agricultural use. Meaning and Predictability of LPIA Standards Petitioners contend that the LPIA fails to establish meaningful and predictable standards in numerous respects. No Guide to Location and Pattern of Development Petitioners contend that the LPIA fails to establish meaningful and predictable standards essentially because it does not identify the lands to be preserved and developed, leaving the results up to the choice of landowners to make proposals and Martin County's case-by-case decisions on future development proposals. See PPRO, ¶¶52-53. However, the goals of the LPIA are quite clear, and there is no basis to speculate that Martin County will make decisions contrary to those goals--for example, by approving PUDs or agricultural uses on the most environmentally-sensitive part of tract, ignoring the importance of environmentally-sensitive and agricultural lands and the impact of development patterns on them, and ignoring the impact of the pattern of development under the LPIA on rural character. Petitioners also criticize the LPIA for not being clear "whether a subject property must be in single ownership." (PPRO, ¶61.) However, it is not clear why that omission would be pertinent. Undefined Increase in Maximum Density Petitioners contend that, in four ways, the LPIA increases maximum density in the Agricultural category without defining the amount of the increase. Waiver of Density Limits Clearly, the LPIA exempts the PUD option from "the agricultural land use policies in Section 4.4.M.1.a. pertaining to the 20 acre lot size . . . ." LPIA § 4.4.E.7.d.(8). Contrary to Petitioners' contention, that does not eliminate density standards. Residential lots must be greater than two acres. See LPIA § 4.4.E.7.d.(3). Maintenance of Residential Capacity Petitioners contend the LPIA increases density because its objective is to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses while maintaining residential capacity as it existed on January 1, 2007." LPIA § 4.4.E.7. (Emphasis added.) Petitioners complain that County-wide residential capacity on that date is not identified and that the objective requires residential capacity in Agricultural lands to increase as it decreases elsewhere in the County. This interpretation is unreasonable. The County's interpretation, that residential units lost by preservation are to be maintained by clustering on the remaining Agricultural lands, is more reasonable. Transfer of Wetland Density Petitioners contend that the LPIA increases density by allowing transfer of wetland density in the Agricultural future land use category. See LPIA § 4.4E.7.d.(7). Under the Plan before the LPIA, up to half of wetland density can be transferred to uplands in a PUD. See CGMP § 9.4A7.b.(8). PUDs were not allowed in Agricultural lands before the LPIA. But Petitioners did not prove that allowing the transfer and clustering of residential units into a PUD on Agricultural lands under the LPIA would change the total number of residential units already allowed in Agricultural lands (at one unit per 20 acres). Alleged Failure to Remove Density from All Non-PUD Land Petitioners contend that the LPIA increases density by not stripping residential units from all so-called non-PUD land. Contrary to this contention, the more reasonable interpretation is that land not set aside for permanent preservation in a proposal made under the LPIA must be part of the proposed PUD. In any event, even if an LPIA proposal could include land that is neither set aside for preservation nor part of the PUD land, no residential units is such land would be transferred to the PUD, and failure to strip such land of its residential units would not affect the total number of units associated with the LPIA proposal. Petitioners also contend that the LPIA allows text amendments to increase density on land set aside for preservation under the LPIA because it specifies that such land must be changed on the FLUM and will not be eligible for "any additional [FLUM] amendment which increases residential density or intensity of use . . . ." LPIA § 4.4E.7.d.(7). The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. Even if text amendments are not prohibited, they would apply to all land in a particular land use category, not just to land set aside under the LPIA. Subsequent Plan Amendments Not Required for PUD Petitioners contend that the LPIA "is unclear as to whether a PUD can be approved without a subsequent plan amendment specifically authorizing the two-acre lot subdivision site plan." PPRO, ¶80. This contention supposedly arises from the language of LPIA § 4.4.E.7.c.: "The Comprehensive Plan amendment that is part of a joint Plan Amendment and concurrent PUD application submitted under this objective must address the land use designation on the land set aside in perpetuity as contiguous open space, environmentally sensitive land and/or agricultural land uses in the following manner: . . . ." (Emphasis added in PPRO, ¶82.) The negative implication Petitioners draw from this language is contrary to the intent of the LPIA and is not warranted. It ignores LPIA § 4.4.E.7.d.(7): "The Comprehensive Plan amendment filed concurrently with the PUD application shall allow the site-specific clustering of density in one portion of the total subject site, including the transfer of full density of any wetlands on the site, at a density that shall not exceed one unit per twenty acres for the total site prior to conveyance. . . . The Plan amendment shall further specify that neither the land conveyed nor the land controlled by the PUD agreement shall be eligible for any additional [FLUM] amendment which increases residential density or intensity of use . . . ." While LPIA § 4.4.E.7.d.(7) discusses land that is conveyed, it is reasonably clear that a Plan amendment addressing the PUD also would be required for lands that are set aside using one of the other mechanisms specified in the LPIA. Public Benefit Criteria Petitioners contend that LPIA Section 4.4.E.7.b. and f. gives the County "unfettered discretion to reject or approve a PUD 'for any reason.'" PPRO, ¶90. Those sections provide that approval of a PUD will be based on consideration of "significant site-specific public benefits," some of which are listed. While it is true that the LPIA gives the County discretion to grant or approve a PUD based on its consideration of those factors, Petitioners did not prove "unfettered discretion." First, minimum requirements under the LPIA first must be met. Second, the list of public benefits gives some guidance as to the kinds of additional public benefits that will justify approval of a PUD. Petitioners did not prove that a comprehensive plan provision allowing for PUD zoning need be any more specific to be implemented in a consistent manner. Protection of Land Set Aside Petitioners contend that the LPIA fails to protect land set aside under the LPIA because it does not identify the land most appropriate for preservation or require that it be set aside. This contention ignores the objective to encourage conveyance of "land listed for public acquisition by state, regional or local agencies as part of established conservation programs" which "include, but are not be [sic] limited to land designated for public acquisition under" several named public acquisition programs. LPIA § 4.4.E.7. It also ignores the policy: "No development in the PUD shall be allowed on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species . . . ." LPIA § 4.4.E.7.d.(4). It also ignores the policy that "PUDs that include land listed for acquisition by state, regional or local agencies as part of an established conservation program shall be subject to . . . additional requirements": including fee simple conveyance of at least half of such land; and no development in the PUD on such land "unless the land has been previously impacted by agricultural activities and the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." LPIA § 4.4.E.7.e.(1)-(2). In addition, various means of protecting such lands are several of the listed "additional significant site-specific benefits" of a PUD proposal to be considered in the approval process. See LPIA § 4.4.E.7.f. Petitioners contend that the LPIA fails to "require set-aside lands to be contiguous to other farmland, open space, or natural lands" and "contiguous, functional, and connected to adjacent and regional systems." PPRO, ¶¶102-98 [sic]. These contentions ignore the objective to "create opportunities for the permanent preservation of contiguous open space, environmentally sensitive land and agricultural land uses. . . ." LPIA § 4.4.E.7. They also ignore that land in public acquisition programs ideally is contiguous to other open space and natural lands. Petitioners did not prove their contention in PPRO ¶97 [sic] that it is necessary to specify the public acquisition programs for the LPIA to be implemented in a consistent manner. Petitioners contend that the LPIA fails to define the "perpetual easement" mechanism allowed in LPIA Section 4.E.7.a. for setting aside land in lieu of fee simple conveyance. See PPRO, ¶103. This contention ignores the policy in LPIA Section 4.E.7.d.(5) to use perpetual easements as a means of enforcing the prohibition against increasing residential density or intensity of use by FLUM amendments, as well as the policy in LPIA Section 4.E.7.d.(6) to use perpetual easements "to restrict future uses and ensure the government agencies or other entities holding fee simple title do not sell or develop the property inconsistent with this policy or the approved uses within the PUD Agreement." Petitioners did not prove their contention in PPRO ¶103 that it is necessary to further define "perpetual easement" for the LPIA to be implemented in a consistent manner. Petitioners contend in PPRO ¶¶105 and 107 that the LPIA fails to define the "agricultural uses" to be preserved in LPIA Section 4.4.E.7.c.(3) and allows the County to "specify allowed uses" without limitation and with "no certainty that farmland will be protected as farmland by easement." (Emphasis in PPRO ¶105.) Petitioners contend that everything allowed in the Agricultural category under the Plan will be allowed. See PPRO ¶107. Contrary to Petitioners' contention, it is reasonably clear that, while the language of LPIA Section 4.4.E.7.c.(3) contains a typographical error, the policy clearly is to maintain existing agricultural uses, not to allow intensification of agricultural use or expansion into "non-farm" uses that might be allowed in the Agricultural category. Alleged Threat to IRL and CERP Lands Petitioners contend that, by making development under its PUD option more marketable, the LPIA will encourage PUDs that do not protect and that fragment IRL and CERP lands. Petitioners did not prove that such a result is likely. Petitioners contend that the adverse impacts on IRL and CERP lands is more than speculation in part because of the wording of the policy in LPIA Section 4.4.E.7.c.(2), which is misstated in PPRO ¶114 and actually states: "If the land to be protected and maintained in perpetuity is land that is part of the North Palm Beach, and the Lake Okeechobee portions of the Comprehensive Everglades Restoration Plan (CERP), as well as Northern Everglades and Estuaries Protection Program, the plan amendment must include a future land use amendment to change the Future Land Use Designation to Institutional-Public Conservation." The language used in the policy is poor. But Petitioners' interpretation--that only land set aside for protection that is part of all of the described CERP projects will be protected--is absurd since no such land exists. That interpretation and Petitioners' interpretation that no IRL lands are protected under the LPIA ignore and are contrary to the language and intent of the objective stated in LPIA Section 4.4.E.7. and of the policies stated in Section 4.4.E.7.a., c.(1), and d.(5). The County's interpretation, that CERP and IRL lands are eligible for protection, is more reasonable. Definition of Critical Habitat Petitioners contend that LPIA Section 4.4.E.7.d.(4) does not provide a meaningful or predictable standard because the term "critical to the support of listed plant or animal species" is not better defined. Actually, PUD development is prohibited "on unique, threatened or rare habitat, or other environmentally sensitive lands that are critical to the support of listed plant or animal species." While the policy could have been better defined, Petitioners did not prove that a better definition is necessary for the LPIA to be implemented in a consistent manner. Petitioners contend that, regardless of the "critical habitat" definition, the policy language in LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4) by prohibiting PUD development "on land listed for acquisition . . . unless the land has been previously impacted by agricultural activities " Actually, the policy continues to state that the exception only applies if "the proposed development is determined to be inconsequential to the implementation and success of the conservation program . . . ." Petitioners' interpretation, that the policy allows PUD development on virtually all Agricultural lands, is unreasonable and contrary to the language and intent of the LPIA. The County's interpretation is more reasonable and is reasonably clear. It allows for distinctions among the various kinds of agricultural activities, which the Plan already recognizes. See, e.g., CGMP § 4.2.A.6.b.(8) ("Many low intensity agricultural uses such as range (pasture) land can be compatible with environmentally significant resource areas.") For these reasons, Petitioners did not prove that LPIA Section 4.4.E.7.e.(2) "guts" Section 4.4.E.7.d.(4), or that the LPIA cannot be implemented in a consistent manner. LPIA and Urban Sprawl In part based on unreasonable interpretations of the LPIA's objective and policy language, Petitioners contend that Martin County's Comprehensive Plan as amended by the LPIA no longer discourages urban sprawl and that the LPIA encourages urban sprawl. In part because the interpretations were unreasonable, Petitioners' urban sprawl contentions were not proven. Even if the LPIA results in a proliferation of PUDs with clusters of residences on lots slightly larger than two acres, which is the minimum lot size, it would not equate to urban (or suburban) sprawl. Assuming PUDs based on 500-acre tracts, it would result in a cluster of 25 homes within a 500-acre rural area. The LPIA does not plan for the extension of urban services to those homes and does not provide for or allow any new commercial or industrial development. Both the LPIA and the rest of the CGMP include provisions, most notably those related to the urban service districts, to reasonably ensure that urban sprawl will not result. To the extent that the LPIA triggers the first primary indicator of urban sprawl in Florida Administrative Code Rule5 9J-5.006(5)(g) ("designates for development substantial areas of the jurisdiction for low-intensity, low density or single use development or uses in excess of demonstrated need"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the second primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[p]romotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development"). The development promoted, allowed, or designated by the LPIA is not "urban" and does not "leap over undeveloped lands which are available and suitable for development." It allowed for development already promoted, allowed, and designated to arrange itself differently in a rural area. Petitioners did not prove that the LPIA triggers the third primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (designation of urban development in "radial, strip, isolated or ribbon patterns generally emanating from existing urban development"). Petitioners did not prove that the LPIA triggers the fourth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (promotes premature conversion of rural land to other uses, thereby failing to adequately protect and conserve natural resources). To the contrary, its primary purpose is to protect and conserve natural resources and rural land. Petitioners did not prove that the LPIA triggers the fifth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to adequately protect "adjacent agricultural areas" as well as "passive agricultural activities and dormant, unique and prime farmlands and soils"). Petitioners did not prove that the LPIA triggers either the sixth or seventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) (fails to maximize use of existing and future public facilities and services). Petitioners did not prove that the LPIA triggers the eighth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[a]llows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services"). Petitioners did not prove that the LPIA triggers the ninth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to provide a clear separation between rural and urban uses"). Petitioners did not prove that the LPIA triggers the tenth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[d]iscourages or inhibits infill development or redevelopment of existing neighborhoods and communities"). Although LPIA PUDs obviously would not be infill or redevelopment, it was not proven that they will discourage or inhibit infill and redevelopment. To the extent that the LPIA triggers the eleventh primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[f]ails to encourage an attractive and functional mix of uses"), the Agricultural lands designation already does. To the extent that the LPIA triggers the twelfth primary indicator of urban sprawl in Rule 9J-5.006(5)(g) ("[r]esults in poor accessibility among linked or related uses"), the Agricultural lands designation already does. Petitioners did not prove that the LPIA triggers the thirteenth primary indicator of urban sprawl in Rule 9J- 5.006(5)(g) ("[r]esults in the loss of significant amounts of functional open space"). The LPIA does not exacerbate the two already-existing indicators of urban sprawl, but Petitioners still contend that the indicators are triggered by the LPIA essentially because development will proceed more quickly under the LPIA. This contention was not proven. Even if it were, Petitioners did not prove that the LPIA encourages the proliferation of urban sprawl or that the CGMP, as amended by the LPIA, fails to discourage the proliferation of urban sprawl. LPIA Data and Analysis Petitioners contend that the LPIA is not supported by data and analysis because the County explained it as a necessary response to the proliferation of 20-acre ranchette developments whereas only 75 have been built and only 15 have certificates of occupancy. Actually, the ranchette developments were only one reason for the LPIA, and the data and analysis showed 13 approved developments as of mid-September 2007, and three more approvals plus two pending applications for approval a year later. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA implements some but not all of the recommendations in the various reports and studies cited by the County as part of the data and analysis. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA does not conform to some recommendations in the various reports and studies cited by the County as part of the data and analysis. However, Petitioners base their contentions largely on unreasonable interpretations of the language of the objective and policies of the LPIA. In addition, the data and analysis they point to essentially reflect merely that planners disagree on the best plan for the Agricultural lands. Petitioners also contend that the LPIA is not supported by data and analysis essentially because the LPIA is not identical to the Atlantic Ridge project amendment. While all agree that the Atlantic Ridge project is a resounding success story, it is unique. The obvious and understandable inability to instantaneously duplicate Atlantic Ridge to the greatest extent possible in the Agricultural lands should not prevent the County from taking any action in its direction, such as the LPIA. Taken together, the data and analysis are adequate to support the LPIA. LPIA and TCRPC Regional Policy Plan Petitioners contend that the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP). The TCRPC's SRPP was not introduced in evidence, but the TCRPC's Executive Director testified and sponsored the TCRPC's report on the LPIA and the SUSDA. The TCRPC's findings on consistency with its SRPP were not contradicted. According to the TCRPC, the LPIA is inconsistent with the TCRPC's Strategic Regional Policy Plan (SRPP) Policies 2.1.1.1 and 2.1.1.2, which are to determine areas that are environmentally significant and to map, acquire, and manage them. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Goal 1.1, which requires sustainable countryside development in urban enclaves, such as towns and villages, with mixed-use and appropriate densities between 4-10 units per acre, on strategically selected locations while preserving contiguous, targeted land identified through SRPP Policies 2.1.1.1 and 2.1.1.2. The LPIA does not do this. According to the TCRPC, the LPIA is inconsistent with the TCRPC's SRPP Policy 15.1.3.1, which is to increase the clarity of local land use plans so that preferred forms of development can be pre-approved. Instead, the LPIA uses the case-by-case PUD approval process to determine the ultimate development patterns for the Agricultural lands. The inconsistency with SRPP Policy 15.1.3.1 is the only LPIA inconsistency not already equally present in the existing CGMP. The TCRPC's concern as to the other inconsistencies is that the LPIA will make residential development in the Agricultural lands more marketable and increase the rate of residential growth in a manner inconsistent with SRPP Goal 1.1 and Policies 2.1.1.1 and 2.1.1.2. Internal Consistency of the LPIA Petitioners contend that the LPIA is inconsistent with CGMP Sections 1.6 and 1.11.A. for being inconsistent with the TCRPC's SRPP. CGMP Section 1.6 states that "elements of the [CGMP] shall be consistent and coordinated with policies of [various entities, including the TCRPC]. Petitioners did not prove that the County does not interpret that provision to require internal consistency and coordination with the other entities' policies, or that such an interpretation would be incorrect. CGMP Section 1.11.A. refers to amendment procedures. Essentially, it states that plan amendments must be "in compliance." There was no evidence that the County intended it to require strict and absolute consistency with the TCRPC's SRPP, or any evidence to prove that it would be incorrect for the County to interpret it not to. Petitioners also contend that the LPIA is inconsistent with CGMP Section 1.11.K., which also refers to amendment procedure. Petitioners did not prove that the LPIA is inconsistent with CGMP Section 1.11.K. for not having concurrently-processed land development regulations (LDRs) since concurrently-processed LDRs are only required "[t]o the extent necessary to implement a proposed amendment," and Petitioners did not prove that concurrently-processed LDRs are necessary. Petitioners also contend that the LPIA is inconsistent with numerous other provisions of the CGMP. These contentions were not proven. Most, if not all, were based on unreasonable interpretations of the LPIA. SUSDA Provisions The SUSDA amends the text of the future land use element, the sanitary sewer services element, and the potable water services element of the Plan. As amended, the Plan would allow owners of real property within the SUSD to apply for connection to regional water and sewer service rather than be limited to using individual potable water wells and individual septic tanks, provided all costs of connection to the public services would be paid by the owner. The policy of SUSDA Section 4.4.G.2.g. expressly states: The County Commission has determined that it is in the best interest of the health, safety, and welfare of the citizens of Martin County that regional water and sewer services be made available to properties within the [SUSD], in order to: (1) Protect our natural resources . . . from the negative impacts of onsite sewage disposal (septic) systems and private wells to serve individual residential units; (2) Provide fire protection; [and] (3) Provide safe drinking water. The policy of SUSDA Section 4.4.G.2.h. requires that the extension of any such services to properties within the SUSD must have Board approval, which cannot occur unless the Board finds that certain enumerated criteria have been met, including: Regional utility services may be provided to properties within the [SUSD] upon the request of the affected property owner, and upon payment of the required costs for connection to the regional system. Such services may only be provided by a regional utility, public or private, within a service area shown on Figure 11-2. Package plants for the provision of utility service are prohibited except under the provisions of the [CGMP]. The regional utility must demonstrate the treatment facility has capacity for the proposed connection and priority has been given to projects within the [PUSD]. Extension of utility services shall not be construed to imply support for any increase in the residential density of the property inside the [SUSD]. Property lying outside the Urban Service Districts . . . shall not receive utility service from a regional wastewater system. Extension of utility service outside the Urban Service Districts shall be prohibited. Development within the [SUSD] shall maintain lot sizes that exceed one-half acres. The SUSDA also contains new charts added to both the sanitary sewer services element and the potable water services element that display the numerical capacity of the regional water and sewer systems to handle additional customers upon extension of lines to the SUSD. See SUSDA Tables 10-3 through 10-6 and 11- 12 through 11-15. There was no credible evidence of any likelihood that the adoption of the SUSDA would allow the further extensions of water and sewer lines from the SUSD to properties outside the urban service districts. The testimony offered by Petitioners was speculative at best and depended upon an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting such extension of services. See SUSDA §§ 4.4.G.2.h.(6)-(7) and 4.5.H. Meaning and Predictability of SUSDA Standards Petitioners contend that the SUSDA's standards are not meaningful or predictable because of the undefined term "central water and sewer" in the policy in SUSDA Section 4.4.G.2.a. Petitioners contend that "central water and sewer" can be interpreted to mean something other than a regional utility, and that the SUSDA can be interpreted to allow regional utility, package plant, and other similar types of utility systems serving two or more houses outside the urban services districts. Petitioners' interpretations are unreasonable and contrary to the language and intent of the SUSDA. Petitioners' evidence was speculative and depended on an unproven assumption that the County would violate the explicit provisions of the SUSDA prohibiting package treatment plants in the SUSD. See SUSDA § 4.4.G.2.h.(3) and § 4.5.H. In addition, the evidence was that package treatment plants may no longer be economically feasible. The County's interpretation is more reasonable--"central water and sewer," as used in SUSDA Section 4.4.G.2.a., means the provision of regional utility services by Martin County in the SUSD, and no such facilities may be provided outside the urban service districts. SUSDA Data and Analysis Petitioners contend that the data and analysis do not support the SUSDA essentially because they do not establish "any actual health, safety, or welfare problems." PPRO, ¶208. The absence of proof of actual health, safety, or welfare problems is not fatal in view of the rest of the data and analysis supporting the SUSDA. Since the creation of the SUSD in 1992, development in the PUSD has resulted in the extension of water and sewer lines up to the border between the PUSD and the SUSD. In effect, the intended SUSD transition area has transitioned. Meanwhile, the regional water and sewer utilities serving the County now have the necessary capacity to serve the PUSD and the SUSD. Improved fire protection in the SUSD is a benefit of regional water service, allowing installation of community fire hydrants. Without it, developers in the SUSD must rely on installed sprinklers and emergency generators and water drawn from nearby lakes or installed water tanks. While regional water service can fail temporarily in major storms, and the data and analysis did not include actual instances of fire damage cause by the lack of regional water service in the SUSD, regional water service generally provides more reliable and less costly fire protection. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit potable water wells, regional water service generally is better, more reliable, and less costly. The data and analysis did include actual instances of home owners having to install expensive water treatment systems due to increasing chloride levels in their potable water wells. Connection to regional water service would eliminate those costs and concerns. While the data and analysis do not establish that developers and property owners in the SUSD have not been able to permit septic tanks systems for onsite sewage treatment (i.e., systems that meet environmental and health standards), such systems can fail if improperly installed, maintained, and repaired. If they fail, nutrients such as nitrogen and phosphorus can leach into and harm the groundwater and nearby surface waters. The North Fork of the Loxahatchee River, which is nutrient-impaired, probably would benefit from elimination of septic tanks. Regional sewer service generally is better for the environmental and public health. The data and analysis suggest that allowing regional water and sewer service in the SUSD, with the SUSDA's requirement for developers to pay the cost of installation, probably will save the County money in the long run. It will be a significant cost to the County if it has to install water and sewer lines post-development. Petitioners attack the credibility of the data and analysis supporting the SUSDA because regional water and sewer service is optional in the SUSD. But there were data and analysis that, even if regional water and sewer service in the SUSD is preferable, there are valid reasons to make it optional at this time. Alleged Environmental Impact of the SUSDA Petitioners contend that the SUSDA will have negative environmental impacts in part from a proliferation of package treatment plants in the SUSD, which is discouraged in CGMP Section 4.4. See PPRO, ¶¶221, 223. This contention is based on Petitioners' unreasonable interpretations of two sentences of the SUSDA. SUSDA Section 4.5.G. prohibits interim water systems outside the urban service districts and allows them, with conditions, in the PUSD where connection to a regional utility is not feasible. Petitioners interpret these two sentences to mean that interim water systems are allowed, without conditions, in the SUSD. The County's interpretation is more reasonable. Since the SUSDA makes connection to the regional utilities optional, there is no need for interim water systems in the SUSDA, and the SUSDA should not be construed to allow them there. Petitioners contend that the SUSDA will have negative environmental impacts in part essentially because increased development results in increased pollution. See PPRO, ¶228. To the extent true, it would be equally or more true of similar development without regional water and sewer services. SUSDA and Urban Sprawl Petitioners contend, in part due to their unreasonable interpretations of the objective in SUSDA Section 4.4.G.2.a., that Martin County's Comprehensive Plan as amended by the SUSDA, no longer discourages urban sprawl and that the SUSDA encourages urban sprawl. In part due to the unreasonableness of Petitioners' interpretation of the SUSDA, Petitioners' urban sprawl contentions were not proven. It is unlikely that the SUSDA will encourage urban sprawl. Petitioners also contend that the SUSDA will encourage urban sprawl simply by allowing denser development in the 5,000- 6,000 acres of the SUSDA not yet developed. This contention is contrary to the SUSDA policy: "Extension of utility services shall not be construed to imply support for any increase in residential density of the property inside the [SUSD]." SUSDA § 4.4.G.2.h.(5). Even if the SUSDA increased density in the SUSDA, increase in density itself does not promote urban sprawl. To the contrary, it is possible for increased density to discourage urban sprawl. Petitioners did not prove that increasing density in the SUSDA itself encourages urban sprawl or that, with the SUSDA, the CGMP will discourage urban sprawl less. Petitioners contend that the SUSDA will create pressures to develop areas that border the SUSD, leaping over areas suitable for urban development. See PPRO, ¶¶236-237. This contention actually devalues the very urban service district concept Petitioners seek to defend and can be said about any urban district boundary. Currently, there are many places where the PUSD borders the Agricultural lands. The pressures created by the SUSDA will be no greater than the pressures that have existed in those places all along. Petitioners contend that the SUSDA will increase costs to the County essentially because, notwithstanding SUSDA's requirement that developers pay the cost of connection, development will not pay for itself in the long run (taking into account costs of operations, maintenance, and repair.) To the extent true, it can be said of all development and does not prove that the SUSDA encourages urban sprawl. Petitioners did not prove that the SUSDA triggers any of the indicators of urban sprawl; did not prove that the SUSDA encourages the proliferation of urban sprawl; and did not prove that the CGMP, as amended by the SUSDA, fails to discourage the proliferation of urban sprawl. Internal Consistency of the SUSDA Petitioners contend that the SUSDA is internally inconsistent with CGMP Section 4.4.G.1.i., which gives priority in the provision and funding of water and sewer services to the PUSD, essentially because the data and analysis ensure that water demands in the PUSD can be met through 2025. The lack of data and analysis at present to ensure that water demands in the PUSD can be met beyond 2025 does not prove that priority will not be given to the needs of the PUSD.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the LPIA and the SUSDA are "in compliance." DONE AND ENTERED this 10th day of April, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2009.
The Issue The issue is whether plan amendments 00-1, 97-4, and 01-7 adopted by Ordinance No. 598 on September 25, 2001, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioners, Sally O'Connell (O'Connell), Donna Melzer (Melzer), and Martin County Conservation Alliance, Inc. (MCCA), contend that three amendments (Amendments 00-01, 01-7, and 97-4) to the Martin County Comprehensive Plan (Plan) adopted by Respondent, Martin County (County), are not in compliance. Amendment 00-01 makes certain textual changes to the Economic Element and Future Land Use Element (FLUE) of the Plan. Amendments 01-7 (also known as the Blydenstein amendment) and 97-4 (also known as the Seven J amendment) amend the Future Land Use Map (FLUM) by changing the land use designation on property owned by Intervenor, Dick Blydenstein (Blydenstein), and Seven J's Investments, Inc., from Mobile Home Residential and Medium Density Residential, respectively, to General Commercial. The parties agree that the validity of Amendments 01-7 and 97-4 is contingent on whether Amendment 00-01 is in compliance. On September 25, 2001, the County approved Ordinance No. 598, which adopted the foregoing amendments and three other FLUM amendments not relevant to this dispute. On November 16, 2001, Respondent, Department of Community Affairs (Department), the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments, issued its Notice of Intent to find the amendments in compliance. In addition, an external review of the amendments was conducted by the Department of Transportation (DOT), the Treasure Coast Regional Planning Council, the Department of State, and the Department of Environmental Protection. Except for minor objections by DOT, which were satisfactorily resolved, no objections were filed by any reviewing agency. On December 7, 2001, as later amended on December 20, 2001, Petitioners filed their Petition for Formal Administrative Hearing challenging the plan amendments. As reflected in their unilateral Pre-Hearing Statement, Petitioners contend that: The data and analysis for the amendments was not available to the public throughout the review and adoption process. The conclusions about supply and demand for commercial land uses that underlie the adoption of the amendments to the Economic and Future Land Use Elements, and the "Blydenstein" and "7J" [FLUM] Amendments are not supported by the best available and professionally acceptable data and analysis. Instead of a deficit of, and need for, land available for commercial uses, there is a surplus of land available for such uses. The "Blydenstein" and "7J" [FLUM] Amendments are not supported by data and analysis concerning the availability of infrastructure, the character of the land and the need for redevelopment. The approval of these FLUM amendments is inconsistent with several provisions of Ch. 163, Fla. Stat., Rule 9J-5, F.A.C., and the Martin County Comprehensive Plan. These allegations may be grouped into three broad categories: that the data and analysis was not available for public inspection throughout the adoption process; (2) that the plan amendments are not based on the best available, professionally acceptable data and analysis; and (3) that the Blydenstein and Seven J amendments are not supported by data and analysis as they relate to infrastructure, character of land, and need for redevelopment and thus are inconsistent with relevant statutes, Department rules, and Comprehensive Plan provisions. Although Petitioners have not addressed the first allegation in their Proposed Recommended Order, and have apparently abandoned that issue, in an abundance of caution, a brief discussion of that matter is presented below. The parties The Department is the state land planning agency responsible for reviewing and approving comprehensive plan amendments by local governments. The County is a political subdivision of the State and is the local government which enacted the three plan amendments under review. The overall size of the County is approximately 538 square miles, with agricultural uses on 72 percent of the land, residential uses on 16 percent of the land, public conservation uses on 6.5 percent of the land, and other uses (such as commercial, industrial, and institutional) on the remaining 5.5 percent of the land. The current population is around 125,300 residents. Blydenstein is the owner of the property that is the subject of Amendment 01-7. He submitted oral and written comments concerning Amendment 01-7 to the County during its adoption. Melzer is a former County Commissioner who resides and owns property within the County. She is also the chairperson and member of the board of directors for MCCA. Melzer presented comments in opposition to all three amendments during the time period beginning with the transmittal hearing for the plan amendments and ending with the adoption of those amendments. O'Connell has resided and owned property in the County since 1984. She presented comments to the County in opposition to Amendments 00-01 and 97-4 (but not to Amendment 01-07) during the time period beginning with the transmittal hearing for the plan amendments and ending with the adoption of those amendments. MCCA is a not-for-profit corporation first organized in 1965 and later incorporated in 1997 to advocate and promote the protection of the natural environment and quality of life in the County. The specific purpose of the corporation is to "conserve the natural resources of Martin County, to protect the native flora and fauna of Martin County, to maintain and improve the quality of life for all of the residents of Martin County, and to work to these ends." The corporation holds monthly meetings and annual forums to educate its members and others about issues related to the County's growth management. In prior years, it has actively participated in the development of the County's Comprehensive Plan and actively advocated for a public land acquisition program in the County. Presently, there are 104 individual members (of whom 99 reside in the County), 9 delegates at large, and 20 corporate and non-profit corporate members. The latter group includes such organizations as 1000 Friends of Florida, the Marine Resources Council, and the Citizens Stormwater Protection Group, who also have individual members residing within the County. The parties have stipulated that MCCA made comments to the County in opposition to the three amendments and that a substantial number of MCCA members own businesses within the County. The record also shows that MCCA's Board of Directors passed an appropriate resolution authorizing MCCA to file this action. Intervenor, the Economic Council of Martin County (ECMC), is a non-profit corporation whose mission is to dedicated to building a quality community which provides a healthy economy and protects the quality of life and to encourage the planned growth of the County. Like the MCCA, the ECMA has actively participated in the development of the Comprehensive Plan. Its members are individuals and businesses who reside, own property, and operate businesses within the County. The ECMC made comments to the County in support of the three amendments during the adoption of those amendments. The Amendments Amendment 00-01 represents a policy change by the County and amends the text of the Economic Element and FLUE to change the methodology for determining the need for commercial land within the County. Prior to the amendment, the County used a supply-demand equation based upon an "acreage per population" methodology to determine the amount of commercial land use necessary to serve the County. Under the old methodology, relevant portions of the FLUE, in conjunction with various provisions in the Economic Element, were used to establish a supply-demand equation that would determine whether the projected need for commercial lands by a future population of the County could be met by the current amount of designated lands. If the result of the equation was a surplus of commercial lands, that factor alone would require the denial of any request to redesignate land for commercial use, regardless of any other factor or circumstance. According to the repealed text of the Plan, this methodology produced a 1,131-acre surplus of commercial lands for the year 2010. The County proposes to use a more flexible policy and guideline type of review to make this need determination. Rather than projecting future demand for commercial land based solely on a numerical calculation, the County will make that determination based on a number of factors which must be weighed together, such as suitability, location, compatibility, community desire, and numerical need. It also proposes to change the manner in which numerical need is determined. Under the new methodology, the County will now use jobs and the amount of land needed to support those jobs. Put another way, commercial demand will be based on the projected number of jobs in the future. Using the new methodology, and after adding a 25 percent market factor, the County projects that in the year 2015 there will be a commercial land deficit of 112 acres. To accomplish this change in policy, the amendment alters the text of the Economic Element and FLUE by moving some language from the goals, objectives, or policies sections of the elements to preliminary sections that contained summaries of the data and analysis relied upon for each element. It also eliminates certain language from the goals, objectives, and policies of the elements, or from the preceding sections containing summaries of data and analysis, where such language was redundant and already appeared elsewhere in the Plan. In contrast to the former provision, the new amendment makes a finding that "the raw data appears to show that there is a significant deficit of commercial land necessary to accommodate economic needs if Martin County's ten year trend toward retail/service jobs continues." Amendment 01-07 pertains to a 27.8-acre triangular- shaped tract of land located less than a mile south of the center of the urban area of Indiantown, a small community in the southwestern part of the County. The property, which lies within the County's Primary Urban Service District, is bounded on the north by State Road 76, a major arterial roadway which connects Indiantown with Stuart, on the west by State Road 710, another major arterial roadway which connects Indiantown with Okeechobee and Palm Beach Counties, and on the east by Southwest Indiantown Avenue, which connects State Roads 76 and 710. The site is surrounded by vacant property, including Agriculture-designated land on three sides, and Estate Density Residential on the other. Immediately north of State Road 76 lies the C-44 Canal, a major waterway that connects Lake Okechobeee with the South Fork of the St. Lucie River and ultimately the Atlantic Ocean. A two-lane bridge (with no pedestrian walkway) provides automobile access from Indiantown to the Blydenstein property. The amendment changes the land use designation on the property from Mobile Home Residential (8 dwelling units per acre) to General Commercial. Even though the property is designated for use as a mobile home park, the property has been vacant and undeveloped for more than 20 years and is used principally for cattle grazing. The Seven J property consists of 2.99 acres located just west of Jensen Beach in the northern part of the County at the intersection of U.S. Highway 1 and Westmoreland Boulevard, both major arterial roadways. The property is adjacent to a partially built Development of Regional Impact (DRI) known as the West Jensen DRI and is virtually surrounded by other commercial uses. The amendment changes the land use designation on the property from Medium Density Residential (8 dwelling units per acre) to General Commercial. Presently, a nursery, older residential homes, rental property, and wetlands are found on the property; the nearby property is primarily made up of both developed and undeveloped commercial land. Availability of Data and Analysis Rule 9J-5.005(1), Florida Administrative Code, requires in part that "[a]ll background data, studies, surveys, analyses, and inventory maps not adopted as part of the comprehensive plan shall be available for public inspection while the comprehensive plan is being considered for adoption and while it is in effect." Relying upon this provision, Petitioners have contended in their Unilateral Prehearing Stipulation that the County failed to make such data and analysis "available to the public throughout the review and adoption process." At least one general source of data that was used by County experts was not physically present in the County offices for inspection by the public during the adoption process. That derivative data source was entitled "CEDDS 2000: the Complete Economic and Demographic Data Source" and was prepared by Woods and Poole Economics, a Washington, D.C. consulting firm. The data source was used by one of the County's experts (Dr. Nelson) "to generate [the] demand numbers" in his technical report. In order to inspect and review this data, Petitioners, like the County or any other interested person, would have had to purchase a copy from the authors. However, all of the data and analyses accumulated or generated by the County staff were available for public inspection during the time between the transmittal and adoption of the amendments under review. Further, Petitioners did not show how they were prejudiced by the failure of the County to maintain the Woods and Poole data in their offices. The Department does not construe the foregoing rule as narrowly as Petitioners, that is, that every piece of data relied upon by a local government must be physically present in the jurisdiction of the local government. Indeed, the Department has never found a plan amendment out of compliance solely on the basis that data was not physically located at a local government's offices. Rather, it construes the rule more broadly and considers the rule to have been satisfied so long as data and analyses are "available for public inspection," even if this means that derivative source data such as the Woods and Poole report must be purchased from out- of-state sources. Were the plan amendments based on the best available, professionally acceptable data and analysis? Petitioners contend that the plan amendments "are not supported by the best available and professionally acceptable data and analysis." As to this contention, Rule 9J-5.005(2)(a), Florida Administrative Code, sets forth a general directive that all plan provisions "be based upon relevant and appropriate data and analyses applicable to each element." In addition, the same rule requires that the data must be "collected and applied in a professionally acceptable manner." Petitioners contend that the County's collection of data to support the amendments, and its analysis of that data, was not professionally acceptable, as required by the rule. More specifically, Petitioners contend that the County undercounted the commercial land inventory used in projecting future need by omitting between 80 and 100 acres of undeveloped commercial land from the West Jensen DRI, by failing to count commercial development allowed in industrial- designated lands, and by failing to include 30 acres of land at the Witham Field airport which remains available for commercial development. They also contend that the County inadvertently failed to include more than 60 acres that were placed in the Commercial category by amendments to the FLUM in 1995 and 1996 and which remain undeveloped and available for new commercial development. In support of the amendments, the County submitted to the Department more than 1,000 pages of supporting materials and maps, including 384 pages related to the FLUM amendments, 642 pages of revised supporting data for the text amendments, and 89 pages of public comments. In choosing the sources of data to support the plan, the County used generally accepted, nationally available data as the basis for its review and revision of the Plan. After reviewing the foregoing material, the Department found such data and analysis to be relevant and appropriate. The County also generated extensive data from locally available information that is unique to the County, such as an inventory of the lands within the County that are designated for Commercial uses on the FLUM, but do not yet have any developed commercial uses on them. As to one of Petitioners' contentions, the County agrees that its staff inadvertently omitted 60.4 acres of commercial property which was changed to that designation by certain 1995-96 FLUM amendments. However, the greater weight of evidence shows that this omission was not significant in terms of the overall collection of data, and it did not render the gathering of the other data as professionally unacceptable. Petitioners go on to contend that the analysis of the data (in determining the supply inventory) was flawed for a number of reasons. First, they argue that the undeveloped portions (around 70 acres or so) of the West Jensen DRI that are commercially-designated land should have been included in the commercial land inventory. The West Jensen DRI is an approximately 180-acre residential/commercial development with a large commercial component. Even though specific site plans have not been issued for some of the undeveloped property, the County excluded all of the undeveloped acreage because the property is dedicated under a master plan of development, and therefore it would be inappropriate to include it as vacant inventory. On this issue, the more persuasive evidence shows that the treatment of undeveloped land in a DRI (subject to a master plan of development) is a "close call" in the words of witness van Vonno, and that it is just as professionally acceptable to exclude this type of undeveloped land from vacant commercial inventory as it is to include it. Therefore, by excluding the West Jensen DRI land from its inventory count, the County's analysis of the data was not flawed, as alleged by Petitioners. The Plan itself does not allow commercial uses within the Industrial land category. However, the County's Land Development Regulations (LDRs) permit certain commercial uses on Industrial lands when done pursuant to specific overlay zoning. While the County (at the urging of the Department) intends to review (and perhaps repeal) these regulations in 2003, and possibly create a new mixed-use category, there are now instances where commercial uses are located on Industrial lands by virtue of the LDRs. Because of this anomaly, Petitioners contend that the County's analysis of the data was flawed because it failed to count vacant, surplus lands in the Industrial land use category that are available for commercial development. Except for arbitrarily allocating all undeveloped industrial land to the commercial category, as Petitioners have proposed here, the evidence does not establish any reasonable basis for making an industrial/commercial division of industrial-designated lands for inventory purposes. Indeed, no witness cited to a similar allocation being made in any other local government's comprehensive plan as precedent for doing so here. In those rare instances where the Plan itself permits multiple uses in a single land category, such as Commercial Office/Residential (an office and multi-family land use designation), the County used a supply figure that was derived from estimating how much land in this category was developed commercially as opposed to residential and allocating acreage from the category based on that percentage. No party has suggested that such a methodology be used here, particularly since the mixed use categories are distinguishable from single land use categories, such as Industrial and Commercial. Moreover, the County has demonstrated a conscious effort to separate these two types of land uses (industrial and commercial) into separate and distinct categories, they are depicted separately on the County's FLUM, and the Plan has separate locational criteria for the siting of these lands. Based on the foregoing, it is found that the County's analysis of the data was not flawed (or professionally unacceptable) because it failed to include undeveloped industrial lands in the commercial inventory. Petitioners next contend that the County erred in its commercial inventory count by failing to include around 30 acres of vacant land located at Witham Field, a local airport. Under the present zoning scheme at the airport, only aviation- related commercial uses are allowed, and thus the vacant land cannot be used for any other commercial purpose. Further, the airport is designated Institutional on the land use map, rather than Industrial, and it would be inappropriate to count vacant institutional lands in the commercial land inventory. Therefore, the exclusion of the Witham Field land from the commercial inventory did not render the County's analysis of the data professionally unacceptable. Finally, the remaining contentions by Petitioners that the County understated its supply inventory for both commercial and industrial property have been considered and rejected. In summary, it is found that the amendments are based on relevant and appropriate data and analyses, and that the data was collected and applied in a professionally acceptable manner. The Blydenstein FLUM Amendment Petitioners generally contend that there is no demonstrated need for the Blydenstein parcel to be redesignated as General Commercial, that the amendment is not based upon data and analysis, that the County failed to coordinate the land use with the availability of facilities and services, that the amendment is inconsistent with redevelopment and infill policies, and that the amendment encourages urban sprawl. The Blydenstein amendment reclassifies 28 acres to commercial use and will amount to 36 percent of the existing commercial development in downtown Indiantown. In terms of need, the County projects that only 17 acres of commercial development will be needed in Indiantown through the year 2015, and there presently exist around 186 acres of undeveloped commercial acreage in that community. At the same time, Amendment 00-01 reflects a deficit of 112 acres of commercial land in the County during the same time period. Although the local and countywide demand calculations are seemingly at odds, at least in the Indiantown area, there will be a surplus of unused commercial lands through the end of the current planning horizon, and thus there from that perspective there is no need for an additional 28 acres of commercial property in that locale. Notwithstanding a lack of numerical need, that consideration is not the sole factor in determining whether the amendment should be approved. As noted earlier, in addition to need, the County considers such factors as the suitability of the property for change, locational criteria, and community desires in making this determination. Here, the subject property is suitable for commercial development because of its location on two major arterial roadways and its ready access to a railroad and major waterway. Further, the property is located within the Primary Urban Services District, which is an area specifically designated for more intense, urban development. In addition, the current land use designation allows 8 residential units per acre, which is an "urban" type of designation. Finally, because there is vacant, undeveloped property surrounding the subject property, the redesignation of the property to General Commercial will not pose a compatibility problem with any residential areas. When these considerations are weighed with the need factor, it is found that the proposed land use change is appropriate. The existing land use designation of Mobile Home Residential is a carryover land use designation which recognized the mobile home use that occurred on the property when the future land use maps were originally created. At the present time, all mobile home use has ceased and the property is vacant. The nearest residential neighborhood is located to the north across State Road 76 beyond the Canal and is at least 600 feet away. Because of the property's configuration and immediate proximity to major arterial roads, railroad tracks, and a canal, the greater weight of evidence shows that it is not suitable for residential development. These considerations support the County's determination that the property has been inappropriately designated as residential for more than a decade. Although the County did not conduct formal studies to determine whether the public facilities and services will be capable of serving the proposed change in land use, a general analysis of the availability and adequacy of public facilities was performed by its staff. That analysis reflects that the property lies within the service area of a local water and sewer utility and has access to two major roadways. Based on its proximity to major roadways and local public utilities, the County does not anticipate that the change in land use will adversely impact public facilities and services. To ensure that this does not occur, the County will require a traffic impact analysis at the time the parcel is submitted for development review. Rule 9J-5.006(3)(b)8., Florida Administrative Code, requires that a plan "[d]iscourage the proliferation of urban sprawl." Leapfrog development is a form of urban sprawl and typically means leaping over a lower density development and placing higher density development just beyond the lower density development. Given the location of the Blydenstein property within the Primary Urban Services District, and the adjacent major arterial roads, railroad, and canal, the greater weight of evidence supports a finding that the proposed land use change will not constitute leapfrog development. The change in land use will not promote, allow, or designate urban development in radial, strip, isolated, or ribbon patterns; it will not result in the premature or poorly planned conversion of rural land; it will not discourage or inhibit infill or redevelopment of existing neighborhoods; it will not result in poor accessibility among linked or related land uses; and it will not result in a loss of significant amounts of functional open space. In the absence of these indicators, it is found that the amendment will not contribute to urban sprawl. The Seven J FLUM Amendment Like the Blydenstein amendment, Petitioners likewise contend that there is a lack of demonstrated need for the Seven J amendment; that the amendment lacks data and analysis; that the County failed to coordinate with the availability of services; that the amendment will promote urban sprawl; and that the amendment is internally inconsistent. The Seven J property is surrounded by the partially built-out West Jensen DRI, is located within the County's Primary Urban Services District, and is considered to be in a "regional hub" of activity, that is, within the core of major commercial development in the northern part of the County. Further, it is located on an eight-lane road at a major intersection (U.S. Highway 1 and Westmoreland Boulevard). Therefore, the change is compatible with surrounding existing and planned commercial uses, and the County's redesignation of the property from Medium Density Residential (8 units per acre) to General Commercial is appropriate. Further, the greater weight of evidence shows that because the property is located within the Primary Urban Services District, is near existing commercial and residential development, and urban services are already provided, the Amendment will not contribute to urban sprawl. Finally, the greater weight of evidence supports a finding that the amendment is internally consistent and based on adequate data and analysis, contrary to Petitioners' assertions.
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 Martin County Plan Amendments 00-01, 01-07, and 97-4 are in compliance. DONE AND ENTERED this 16th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ 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 16th day of October, 2002. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Richard J. Grosso, Esquire Environmental and Land Use Center, Inc. 3305 College Avenue Shepard Broad Law Center Fort Lauderdale, Florida 33314-7721 Joan P. Wilcox, Esquire 2336 Southeast Ocean Boulevard, PMP 110 Stuart, Florida 34986 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 David A. Acton, Esquire Office of County Attorney 2401 Southeast Monterey Road Stuart, Florida 34996-3322 Johnathan A. Ferguson, Esquire Ruden, McClosky, Smith, Shuster & Russell, P.A. 145 Northwest Central Park Plaza, Suite 200 Port St. Lucie, Florida 34986-2482 Linda R. McCann, Esquire Royal Palm Financial Center 789 South Federal Highway, Suite 310 Stuart, Florida 34994-2962
The Issue The issue presented for decision in this proceeding is whether a future land use map (“FLUM”) amendment, adopted by Hillsborough County on October 27, 1994, as part of its Comprehensive Plan update for the planning time frame through 2015 (variously referred to as the “Comprehensive Plan” or "CPU-2015"), that changed the future land use category on a 253 acre parcel1 in Northwest Hillsborough County ("the Geraci Parcel") from Regional Commercial ("RC") to Community Mixed Use-12 ("CMU-12") complies with the requirements of Chapter 163, Part II, Florida Statutes, as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: PARTIES Petitioners Nick and Peter Geraci are the fee simple owners of a parcel of land comprising approximately 450 acres located on the northeast corner of the intersection of North Dale Mabry Highway and Van Dyke Road, two hundred fifty-three (253) acres of which are at issue in this proceeding. Advance Leasing is a Florida corporation that was a contract vendee for a portion of the Geracis’ property intended for development as a “super regional” or “regional scale” mall, and was the applicant in the amended applications for DRI approval of that mall. Hillsborough County’s motion to dismiss Advance Leasing as a party for failure to establish standing as an affected person under Section 163.3184(1)(a), Florida Statutes, was granted at the final hearing. Advance Leasing failed to establish that it was an entity that either owned or operated a business within Hillsborough County or owned property in Hillsborough County as of October 27, 1994. Respondent DCA is the state land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes, pursuant to Sections 163.3184, 163.3187 and 163.3189, Florida Statutes, and to determine compliance with the relevant provisions. Respondent Hillsborough County is a local government with responsibility to prepare and adopt a Comprehensive Plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171 and 163.3174, Florida Statutes. The Hillsborough County Board of County Commissioners makes the final, legislative decision on all Comprehensive Plan amendments in Hillsborough County. Hillsborough County Charter Section 9.09 specifies that a single local planning agency, created by special law, "shall have responsibility for Comprehensive Planning and related activities[.]" The Hillsborough County Local Government Comprehensive Planning Act, as amended by Chapter 97-351, Laws of Florida, designates the Hillsborough County City-County Planning Commission ("Planning Commission”) as Hillsborough County's local planning agency. The Planning Commission is charged with preparing Comprehensive Plans and making recommendations to the public bodies for Hillsborough County and the incorporated municipalities within Hillsborough County. The role of the Planning Commission is advisory and its recommendations are not binding upon Hillsborough County. Intervenors Sierra Club and Dr. Richard and Bonnie Hoffman have established their standing to participate in this proceeding as "affected persons" pursuant to Section 163.3184(1)(a), Florida Statutes. Sierra Club represents numerous members who reside in Hillsborough County, and also operates a business within the boundaries of Hillsborough County by way of its local affiliate. The Hoffmans own property within Hillsborough County. Both Sierra Club and the Hoffmans participated in the local government proceedings in accordance with Section 163.3184(1)(a), Florida Statutes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Administration Commission enter a final order finding the portion of CPU-2015 challenged by the Petition to be in compliance. DONE AND ENTERED this 14th day of October, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1998.
The Issue Whether the Department of Community Affairs (Department) should be precluded from prosecuting the instant challenge to the Comprehensive Development Master Plan (CDMP) of Metropolitan Dade County (Metro-Dade, Dade County or County), as amended by Ordinance No. 90-28, on the ground that it did not comply with the statutory prerequisites to instituting such a challenge? Whether the Redland Citizens Association, Inc., the Sierra Club, the League of Women Voters, Evelyn B. Sutton, Martin Motes, Frances L. Mitchell, Rod Jude, Bruce Rohde and Carol Rist (hereinafter referred to collectively as "the Objectors") are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this matter and pursue their challenge to the CDMP, as amended by Ordinance No. 90-28? Whether Carol Rist's motion to amend her petition for leave to intervene in this matter should be granted? Whether the challenged amendments made to the CDMP through the adoption of Ordinance No. 90-28, specifically those resulting from the approval of Applications 39, 40 and 47, have rendered the CDMP not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes? Whether John H. Wellenhofer is entitled to an award of fees and costs against the Department pursuant to Section 163.3184(12), Florida Statutes?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Metropolitan Dade County: A General Overview Metropolitan Dade County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered by Broward County on the north, by Monroe County on the south and southwest, by Collier County on the northwest and by the Atlantic Ocean on the east. Within the boundaries of Metropolitan Dade County are 1,413,629 acres, or approximately 2,209 square miles, of land and water. The major natural features of the County are the Florida Everglades National Park, tropical vegetation, an Atlantic Ocean coastline with several peninsulas and inlets, including Biscayne National Park at Biscayne Bay, and several barrier islands and reefs. The County contains several bodies of water, including various lakes, rivers and streams. Among the most noteworthy water bodies are the Intracoastal Waterway in the eastern part of the County and the expansive wetland systems and their accompanying wildlife habitat located primarily in the western part of the County. Among the major man-made features of the County are I Florida Turnpike, the Metrorail System, canals, causeways connecting Miami Beach and the barrier islands to the mainland, Miami International Airport, Kendall Airport, and Homestead Air Force Base. Metropolitan Dade County is Florida's most populous county with a population approaching two million people. On average, Dade County's population has grown by approximately 36,000 persons per year since the 1970's. There are 26 incorporated municipalities located in Metropolitan Dade County, including the City of Miami, whose downtown area may be viewed as the principal focal point of the entire metropolitan area. Metropolitan Dade County Home Rule Amendment, Charter and Selected Ordinances In 1956, the statewide electorate adopted Article VIII, Section 11 of the 1885 Florida Constitution granting "the electors of Dade County, Florida, . . . power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body." 4/ The following year, the electors of the County adopted such a home rule charter (Charter). Section 1.01 of the Charter provides that the "Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government." The power to "[p]repare and enforce comprehensive plans for the development of the county" is expressly mentioned in Section 1.01 as within the Board's authority. Other powers of the Board specifically enumerated in Section 1.01 include the power to provide, regulate, develop and enforce master plans for the control of traffic; to provide and regulate sewage collection and disposal, waste collection and disposal and water supply programs; to establish and administer drainage programs; to establish and administer conservation programs; and to establish and administer housing programs. Section 4.07 of the Charter establishes a Department of Planning as a unit of central metropolitan County government. This section provides as follows: The department of planning shall be headed by a planning director appointed by the County Manager. The planning director shall be qual- ified in the field of planning by special training and experience. Under the supervision of the Manager and with the advice of the Planning Advisory Board elsewhere provided for in this Charter, the planning director shall among other things: Conduct studies of county population, land use, facilities, resources, and needs and other factors which influence the county's development, and on the basis of such studies prepare such official and other maps and re- ports as, taken together, constitute a master plan for the welfare, recreational, economic, and physical development of the county. Prepare for review by the Planning Advi- sory Board, and for adoption by the Board of County Commissioners, zoning, subdivision, and related regulations for the unincorporated areas of the county and minimum standards governing zoning, subdivision, and related re- gulations for the municipalities; and prepare recommendations to effectuate the master plan and to coordinate the county's proposed capital improvements with the master plan. Review the municipal systems of planning, zoning, subdivision, and related regulations and make recommendations thereon with a view to coordinating such municipal systems with one another and with those of the county. By ordinance, codified in Section 2-106.1 of the Code of Metropolitan Dade County, the Department of Planning has been designated as the County's local planning agency "responsible for the preparation of the Comprehensive Development master plan for the county." Section 4.08(A) of the Charter directs the Board of County Commissioners to, "by ordinance create a Planning Advisory Board." The Board has done so. The Planning Advisory Board (PAB), as established by the Board, is a nine-member body. The members of the PAB are citizens appointed by the Board. Section 5.02 of the Charter describes the powers that may be exercised by the County's municipalities. It provides as follows: Each municipality shall have the authority to exercise all powers relating to local affairs not inconsistent with this Charter. Each municipality may provide for higher standards of zoning, service and regulation than those provided for by the Board of County Commis- sioners in order that its individual character and standards may be preserved for its citizens. Comprehensive Planning in the County: An Historical Perspective Metropolitan Dade County's first Comprehensive Development Master Plan was adopted by the Board in 1965. This initial version of the CDMP was based upon the unrealistic projection that the County would have two and one half million residents at the planning horizon. To accommodate this projected population, it provided for a spread pattern of low density residential growth, served by numerous expressways. Substantial changes to the CDMP were made in 1975 based upon a lower, more realistic population projection and a consideration of environmental and infrastructure constraints. The result was a plan that provided for a more compact form of urban development concentrated around nodes of activity in the eastern portions of the County. The 1975 version of the CDMP introduced the concept of an urban development boundary. The urban development boundary (UDB) was, and remains to this date, an important part of the plan's urban containment strategy. As its name suggests, the UDB is a line drawn on the plan's future land use map (FLUM) that indicates where urban development will be permitted to reach by the end of the planning period. Since 1975, the CDMP has been amended on various occasions. On eight of these occasions, including most recently in 1990, the amendments have included an expansion of the area inside the UDB. As a result of these amendments, the area inside the UDB has increased by more than 32,000 acres. Notwithstanding the various amendments that have been made to the CDMP, its overall approach, focus and direction have remained essentially the same since 1975. Since 1975, the CDMP's policies have "encourage[d] in-filling, redevelopment, and contiguous development in order to lessen urban sprawl and the associated transportation and energy costs." For years, the CDMP has required the coordination of development with services, the protection of agriculture as a viable economic use of land, the encouragement of a broad spectrum of housing allowing for choice of location, the protection of communities from encroachment by incompatible uses, and a wide variety of other goals, objectives and policies which remain the foundation of the CDMP. The 1988 CDMP In December 1988, the Board of County Commissioners adopted Ordinance No. 88-110 entitled "The Master Plan Amendatory Ordinance" (Amendatory Ordinance). The Amendatory Ordinance revised and reformatted the CDMP in an effort to comply with changes made to the state's growth management laws in 1985. The CDMP's primary planning horizon was extended by the Amendatory Ordinance to the year 2000. Like the current version, the version of the CDMP adopted in 1988 (1988 CDMP) had an statement of legislative intent and the following eleven separate elements, containing goals, objectives and policies and other textual material, as well as maps depicting future conditions, including a future land use map: land use; traffic circulation; mass transit; port and aviation; housing; conservation; water, sewer and solid waste; recreation and open space; coastal management; intergovernmental coordination; and capital improvements. Prior to the adoption of the Amendatory Ordinance, the County's Planning Department prepared a "support component," containing background data and analyses, for each of the foregoing elements. These "support components" were used in the formulation of the 1988 CDMP and they were transmitted to the Department of Community Affairs for the Department's consideration during the compliance review process. The 1988 CDMP: Land Use Element "Support Component" The "support component" for the 1988 CDMP land use element (LUSC) was a 232-page document that analyzed existing and future land uses in Dade County, including the amount of land that would be needed and available to accommodate anticipated growth, the County's projected population, the environmental characteristics of the County's undeveloped land, the availability of urban services in the County, and those areas in need of redevelopment. According to the LUSC, as of 1985, of the County's 1,413,629 acres, 86,111.5 acres (6.09%) were devoted to residential uses, 9,389.1 acres (.66%) were devoted to commercial uses, 770.3 acres (.05%) were devoted to hotels, motels and other transient uses, 15,128.9 acres (1.07%) were devoted to industrial uses, 8,967.6 acres (.63%) were devoted to institutional uses, 660,620.7 acres (46.73%) were devoted to parks and recreational open space, 5/ 69,091.3 acres (4.89%) were devoted to transportation, communications and utilities, 93,187.6 acres (6.59%) were devoted to agriculture, 18,268.9 acres (1.29%) were inland waters, 162,640.0 acres (11.51%) were coastal waters, and 289,453.2 acres (20.48%) were undeveloped or vacant. Of this undeveloped or vacant land, 149,823.5 acres (10.55%) were environmentally sensitive. The LUSC examined the pattern of growth in Dade County over the years and reported that, in the 1970's and 1980's, growth occurred primarily in the unincorporated area on the western fringe of the urbanized portion of the County. According the LUSC, this pattern of growth is anticipated to "persist throughout the remainder of this century and beyond." This projection was accompanied by the following explanation: Urban development opportunities are limited on the coastal ridge and on the barrier islands because there is little remaining developable land. It is on the western fringes that land is available. In Dade County these western growth areas extend from the Broward line to the farm lands and open areas of South Dade. With respect to what the future holds for the "urban interior," the following was stated: In the County's urban interior, its central city areas, growth will be modest or nonexis- tent. In most of these areas there is little remaining developable land and projected de- clines in average household size will offset whatever new development occurs. The Downtown area . . . is projected to show some modest gains in the 1990s and beyond, as downtown development efforts succeed in attracting more residents to the County's heart. The LUSC also contained an analysis performed by the Planning Department of the supply of vacant land available for development and the demand that would exist for such land on a countywide and sub-area basis during the planning period. 6/ In determining the supply of land available for residential development, the Planning Department considered the development potential of only vacant and agricultural land inside the UDB, as it existed prior to the adoption of the 1988 CDMP (pre-1988 UDB). Neither redevelopment opportunities, nor the residential capacity of land outside the pre-UDB, were taken into consideration. For each tract of vacant and agricultural land inside the pre- 1988 UDB, the Planning Department ascertained the number of units that would be able to be built, employing a methodology that was described as follows in the LUSC: This determination is based on the current [pre-1988] CDMP Land Use Plan density classi- fication, with numerous exceptions: In areas where no neighborhood or municipal plan has been adopted since the CDMP map classification was established for the parcel, existing zoning is used if greater than agricultural use (AU) or general use (GU). Where the existing zoning is used and land is zoned and platted for single family use, the development capacity of this land is determined by counting the vacant platted lots. In addi- tion, whenever the density of zoned land is further limited by covenants or approved site plans, those conditions are reflected. Where land is unplatted and zoned for estate den- sity residential, but is designated on the CDMP in a higher residential density category and is substantially surrounded by land that is zoned or designated for higher residential density, the land is assigned the density of the surrounding development. Similarly, small parcels zoned AU or GU are assigned a zoning classification comparable to surrounding de- velopment. AU and GU parcels 10 acres or larger are assigned the Plan density appli- cable to the area. In places where neighbor- hood or municipal plans have been adopted or completed since the CDMP classification was established for the parcel and the neighborhood or municipal plan shows a higher use or den- sity, the neighborhood or municipal plan density is used in estimating the development capacity. In instances where the existing zoning permits greater development than the neighborhood or municipal plan proposes, the zoned density is utilized. The gross supply for each area is discounted by a factor of 6 percent to reflect the finding that 6 percent of land in fully developed areas is typically vacant at any given time. The methodology employed by the Planning Department to determine the supply of land available in the County to accommodate growth is professionally accepted. To determine the demand that would exist for residential land during the planning period, the Planning Department first estimated the 1985 countywide population and then projected what the countywide population would be in the years 2000 and 2010. In so doing, it utilized a component methodology, which examined the three components of population change --births, deaths and migration. This methodology is professionally accepted. The Planning Department also made population estimates and projections for each of the minor statistical areas (MSAs) in the County. In making these estimates and projections, it used an extrapolation methodology that is professionally accepted. 7/ Pursuant to this methodology, a portion of the countywide projected population was allocated to each MSA based upon such factors as long- term subarea growth trends, estimates of current subarea population and existing subarea housing units, and subarea development capacity. The Planning Department estimated that the 1985 countywide population was 1,771,000 and it projected that the countywide population would be 2,102,000 by the year 2000 and 2,331,000 by the year 2010. Its population estimates and projections for MSA 6.1 and MSA 6.2, which collectively comprise an area of the County on the western urban fringe known as West Kendall, and MSA 7.2, which is part of the South Dade area of the County, were as follows: 1985- MSA 6.1: 76,961; MSA 6.2: 36,820; MSA 7.2: 32,791; year 2000- MSA 6.1: 135,932; MSA 6.2: 94,628; MSA 7.2: 44,127; year 2010- MSA 6.1: 162,611; MSA 6.2: 124,414; MSA 7.2: 52,518. It was noted in the LUSC that the West Kendall area was the "fastest growing part of Dade County in the 1970's and early 1980's" and that this area was "projected to account for about 38% of the County's growth" from 1985 to 1990. MSA 7.2 was described in the LUSC as among the "rapidly developing areas" of the County. The countywide and MSA population estimates and projections made by the Planning Department not only appeared in the LUSC, but they were adopted by the Board of County Commissioners and included in the future land use element of the 1988 CDMP. After making these population estimates and projections, the Planning Department sought to ascertain the future demand for new housing in the County. As it explained in the LUSC: This projection is a function of the projected population increase. The methodology assumes that the mix of housing units in that area will remain as it is currently and that house- hold sizes will decline slowly. Residential unit requirements are derived from the pro- jected increase in households with a 5 percent allowance for vacancy of dwelling units. The Planning Department projected that countywide demand would be 9,150 total units annually until 1990, 10,731 total units annually between 1990 and 1995, 10,983 total units annually between 1995 and the year 2000, 11,449 total units annually between the year 2000 and the year 2005 and 11,734 total units annually between the year 2005 and the year 2010. For MSA 6.2 and 7.2, the Planning Department's demand projections were as follows: MSA 6.2- 1,498 total units annually until 1990, 1,739 total units annually between 1990 and 1995, 1,630 total units annually between 1995 and the year 2000, 1,453 total units annually between the year 2000 and the year 2005, and 1,288 total units annually between the year 2005 and the year 2010; MSA 7.2- 269 total units annually until 1990, 309 total units annually between 1990 and 1995, 332 total units annually between 1995 and the year 2000, 360 total units annually between the year 2000 and the year 2005, and 373 total units annually between the year 2005 and the year 2010. Having projected future housing demand, the Planning Department then compared the projected demand to the supply of available residential land and concluded that, assuming no additional residential capacity was added, there was a sufficient aggregate supply of single-family and multifamily housing units inside the pre-1988 UDB to accommodate projected growth until the year 2008. 8/ With respect to MSA 6.2 and MSA 7.2, the Planning Department concluded that the former had sufficient residential capacity to last until the year 2001 and that the latter's supply of residential land would be depleted a year earlier. Notwithstanding its conclusion that there was a sufficient supply of residential land inside the pre-1988 UDB to last until the year 2008, the Planning Department recommended that the 1988 version of the CDMP provide even more residential capacity within the UDB. 9/ It explained its position on the matter as follows in the LUSC: [The urban development boundary] contains sufficient capacities to sustain single family development until 2004 and multi-family development until 2014. However, it is recognized that decisions regarding the development and purchase of residences involve complexities that trans- cend the single consideration of the presence of vacant zoned land. Market conditions, neighborhood pressure, transportation or service deficiencies, and investment deci- sions can impede development of vacant parcels. 10/ The proposed land use plan for 2000 and 2010 includes substantially more additional land than indicated above to insure that no short- ages will occur. . . . [T]he proposed LUP map for 2000 and 2010 in- cludes capacities for an additional 23,590 single family-type dwelling units in the area located between the 1990 urban development boundary of the comprehensive plan LUP map which is currently in effect, and the pro- posed year 2000 UDB of the proposed plan map. The Planning Department also inventoried the supply of land available for industrial and commercial development in the County. As reported in the LUSC, it determined that, as of 1985, the County had almost a 50-year supply of industrial land and a 16.6-year supply of commercial land. It further determined, and reported in the LUSC, that, as of 1985, MSA 6.2 had a 5.1-year supply of commercial land and a 92.5-year supply of industrial land and that MSA 7.2 had a 10.1-year supply of commercial land and a 48.7-year supply of industrial land. The 1988 CDMP: Compliance Review and Stipulated Settlement Agreement The 1988 CDMP was submitted to the Department of Community Affairs for its review. On January 30, 1989, the Department issued its statement of intent to find the 1988 CDMP not "in compliance." The Department's objection to the plan concerned the low level of service standards the plan established for certain roadways. The Department subsequently, by petition, referred the matter to the Division of Administrative Hearings. Thereafter, the Department and County entered into a stipulated settlement agreement. Pursuant to the agreement, the County was to make certain changes to the 1988 CDMP to satisfy the concerns expressed by the Department in its statement of intent. The changes involved the 1988 CDMP's capital improvements element and its traffic circulation element. The County was to amend the capital improvements element to incorporate the primary components of the County's existing concurrency management system. The traffic circulation element was to be amended to establish three geographical zones or "tiers." One of the zones, the area inside the UDB east of the Palmetto Expressway (N.W. 77th Avenue), was to be denominated the "Urban Infill Area." 11/ The level of service standards for roadways in the Urban Infill Area were to be lower than those for roadways in the other two zones. Although these level of service standards for roadways in the Urban Infill Area were extremely low, and may have been unacceptable under other circumstances, it was felt that they were necessary, at least on a temporary basis, to promote infill development and encourage the use of mass transit, including the County's rapid rail system, which is underutilized. The agreement provided that if the County made these changes, the Department would find the 1988 CDMP, as amended in accordance with the agreement, "in compliance" and would recommend to the Administration Commission that the compliance proceeding that had been initiated by the Department be dismissed without the imposition of any sanctions. The County made the changes described the settlement agreement by adopting Ordinance No. 90-37. On June 14, 1990, the Department published its notice of intent to find the 1988 CDMP, as amended by Ordinance No. 90-37, "in compliance." This finding was made notwithstanding that the LUSC indicated that there was enough land inside the pre-1988 UDB to accommodate residential development well beyond the year 2000 and there had been, as a result of the Amendatory Ordinance's westward extension of the UDB and its redesignation of certain lands inside the realigned UDB, an addition to the existing supply of land available for residential development. The 1989-1990 CDMP Amendment Application Cycle A total of 71 applications to amend the CDMP were filed during the 1989-1990 CDMP amendment application cycle (Amendment Cycle). Twenty-seven of these applications were filed by private citizens as authorized by County ordinance. The remaining applications were filed by the Planning Department. Of the 27 privately filed applications, 25 requested changes to the FLUM and two requested changes to the text of the CDMP's land use element. The Planning Director filed a like number of applications to amend the FLUM. Application 39 Among the privately filed applications was Application 39, which was submitted by John H. Wellenhofer. The subject of Application 39 was a 25-acre parcel of land owned by Wellenhofer (Wellenhofer's property). Wellenhofer's property is in Study Area G and MSA 6.2. It is bounded on the north by Southwest 116th Street, on the south by Southwest 118th Street, on the east by Southwest 142nd Avenue and on the west by Southwest 144th Avenue. The property was located near, but inside, the UDB as established by the 1988 CDMP (1988 UDB). Through Application 39, Wellenhofer requested that the land use designation of his property on the FLUM be changed from "industrial and office" to "low density residential" (up to six dwelling units per gross acre). Application 39 and the Tamiami Airport The southern boundary of Wellenhofer's property lies two blocks, or approximately 660 feet, to the north of Tamiami Airport. The Tamiami Airport, which was opened in 1967, serves as a general aviation reliever for Miami International Airport. Tamiami is 1,380 acres in size and is the busiest general aviation airport in the County. The aircraft that use Tamiami are light aircraft, principally single and twin propeller driven airplanes. Tamiami does not, and in any event is not equipped to, handle commercial aircraft. Tamiami has three runways: (1) the north runway (9L-27R), an east- west runway; (2) the south runway (9R-27L), a parallel east-west runway; and the diagonal runway (13-31), a northwest-southeast runway. The north runway, which is the runway closest to Wellenhofer's property, lacks facilities to permit navigation by instrument for flights at night or in inclement weather. The flight pattern for the north runway is an oval shape. Wellenhofer's property is not under any portion of this flight pattern, nor is it under the flight patterns for the other two runways. It lies in the center of the oval created by the flight pattern for the north runway. It should be noted, however, that there are instances where aircraft, for one reason or another, deviate from these flight patterns. Residential communities in the vicinity of Tamiami already exist. A recent proposal to lengthen the south runway was opposed by a large number of the residents of these communities. In the face of such opposition, no action was taken on the proposal. Because of the noise generated by airport operations, residential uses in the area surrounding an airport may be incompatible with those operations. 12/ The CDMP recognizes that there is the potential for such land use incompatibility. It mandates that the federal government's 65/75 LDN contour standard contained in 14 C.F.R., Part 150, be used to determine if a particular residential use in the vicinity of an airport would be incompatible with the operations at that airport. The noise contour at 65 LDN for the north runway at Tamiami does not leave the airport property and barely leaves the runway itself. That is not to say, however, that one standing on Wellenhofer's property cannot hear the sound of aircraft using the airport. Wellenhofer's property is separated from Tamiami by land that is designated on the FLUM for "industrial and office" use. An identical 660 foot, "industrial and office" buffer separates the airport from the residential lands that lie to the south of the western end of the airport. The area immediately to the north, to the south and to the east of Tamiami is denominated an "employment center" in the CDMP. Accordingly, a substantial amount of land in this area, particularly to the east of the airport, has been designated on the FLUM for "industrial and office" use. Land immediately to the west of the site of current airport operations at Tamiami is designated on the FLUM for "transportation-terminals" use. Immediately west of this land is a large expanse of land, outside the UDB, which is designated on the FLUM for "agriculture" use. The CDMP's port and aviation facilities element indicates that "future aviation facility improvements are proposed to be made on or adjacent to the sites of existing airports" in the County and that the "westward 1,900 foot extension of the southern runway at Tamiami Airport" is one such proposed improvement that will be the subject of future consideration. Application 40 Another application filed by a private applicant during the Amendment Cycle was Application 40. It was submitted by the Suchmans. The subject of Application 40 was 320 acres of land (Application 40 property) located in Study Area G and MSA 6.2 and bounded on the north by Southwest 136th Street, on the south by Southwest 152nd Street, on the east by Southwest 157th Avenue and the Black Creek Canal, and on the west by Southwest 162nd Avenue. This land was located outside, but contiguous to on the north and east, the 1988 UDB. Immediately to the north of the Application 40 property is land that is shown on the FLUM as part of the western end of the Tamiami Airport. The CSX railroad tracks run parallel to the southern perimeter of the airport and they bisect the Application 40 property. The land immediately to the east of the Application 40 property which is north of the railroad tracks is designated on the FLUM for "industrial and office" use. The land immediately to the east of the Application 40 property which is south of the railroad tracks is designated on the FLUM for "low density residential communities" use. The land immediately to the south and the west of the Application 40 property is designated on the FLUM for "agriculture" use. At the time of the filing of Application 40, the area immediately surrounding the Application 40 property was undeveloped and in agricultural use. By the time of the formal hearing in the instant case, however, residential development was underway on a portion of the land immediately to the east of the Application 40 property which is south of the railroad tracks. Further to the east is a large scale residential development known as "Country Walk." The Suchmans own 190 acres of the Application 40 property. All but 30 acres of the land they own is on the western side of the property. The Suchmans first acquired an interest in the property in 1973 or 1974. They are in the real estate business and they purchased the property for investment purposes. While the Suchmans are not involved in the agricultural business, over the years they have leased their land to tenants who have used it for agricultural purposes. Since about 1987, it has become increasingly difficult, albeit not impossible, for the Suchmans to find such tenants. At least up until the time of the formal hearing in the instant case, their property was being actively farmed. The Suchmans, through Application 40, originally sought to have the land use designation of the Application 40 property north of the railroad tracks changed from "agriculture" to "industrial and office" and to have the land use designation of the remaining 280 acres of the property changed from "agriculture" to "low density residential." 13/ Subsequently, at the final adoption hearing, they amended their application. The Suchmans' amended application sought redesignation only of that land within the boundaries of the Application 40 property that the Suchmans owned: the western 20 acres of the Application 40 property north of the railroad tracks (from "agriculture" to "industrial and office" use); and 170 acres of the remaining land (from "agriculture" to "low density residential"). Under the amended application, the 130 acres of the Application 40 property not owned by the Suchmans was to remain designated for "agriculture" use. 14/ In addition to seeking the redesignation of their land, the Suchmans' application, in both its original and amended form, requested that the 1988 UDB be extended to encompass all 320 acres of the Application 40 property. Application 47 Application 47 was also filed by a private applicant. It was submitted by Alajuela N.V. The subject of Application 47 was an 160-acre tract of land (Application 47 property) located in Study Area I and MSA 7.2 and bounded by Southwest 264th Street on the north, Southwest 272nd Street on the south, Southwest 157th Avenue on the east and Southwest 162nd Avenue on the west. This land was located outside, but contiguous to on the south and east, the 1988 UDB. Immediately to the south and to the east of the Application 47 property is land designated on the FLUM for "estate density residential communities" use (up to 2.5 dwelling units per gross acre). The land immediately to the north and to the west of the Application 47 property is designated "agriculture" on the FLUM. Through its application, Alajuela N.V. requested that the land use designation on the FLUM of the Application 47 property be changed from "agriculture" to "estate density residential" 15/ and that the 1988 UDB be extended to encompass this property. Alajuela N.V. owns the entire western half of the Application 47 property. The eastern 80 acres is divided into a number of parcels, the majority of which are under five acres, with different owners. The eastern half of the Application 47 property contains 15 acres of Dade County pine forest. The Application 47 property lies approximately three-quarters of a mile both to the west and north of the U.S. 1 corridor in South Dade, which, according to the LUSC, "[s]ince 1970 . . . [has] experienced particularly heavy development and intensification of land use." This puts it on the southern fringe of an area of South Dade known as the Redlands. While the boundaries of the Redlands are not precise, it is generally understood to range from Southwest 184th Street on the north to the urbanizing areas of the City of Homestead on the south and from U.S. 1 on the east to a meandering line on the west where predominantly mixed agricultural and residential uses end and large-scale agricultural operations generally uninterrupted by residential development begin. While there is significant agricultural activity in the Redlands, primarily involving grove and nursery operations, 16/ an increasing residential trend has been established, particularly on the urbanizing fringes of the area and on parcels less than five acres in size that, because of the grandfathering provisions of the CDMP, are not subject to the restriction imposed by the CDMP that lands designated for "agriculture" use not be used for residential development in excess of one unit per five acres. Residential developments lying south of the Application 47 property constitute the urbanizing area of the City of Homestead. Homestead is a CDMP- designated activity center and, according to the LUSC, it was the fastest growing municipality in Dade County during the period from 1970 to 1987. Homestead's northern jurisdictional limits lie approximately two miles south of the Application 47 property. A substantial portion of the land between the Application 47 property and Homestead is presently undeveloped. The Application 47 property is approximately four and one half miles, by road, from the Homestead Air Force Base, a CDMP-designated employment center. Also in proximity to the Application 47 property are the Homestead/Florida City Enterprise Zone; the Villages of Homestead, which is a 7,000 acre development of regional impact; and commercial and industrial development along the U.S. 1 corridor in South Dade. 17/ The land immediately surrounding the Application 47 property is currently being used primarily for agricultural purposes, however, there is also residential development, as well as vacant land in the area. The western half of the Application 47 property is presently in active agricultural use. The eastern half of the Application 47 property is also the site of agricultural activity. Unlike the western half of the property, however, the eastern half is not used exclusively for agricultural purposes. Residences are located in this half of the property. Other Applications of Note Application 58, which was filed by the Planning Department, sought an amendment to the text of the land use element which would allow new agricultural uses in utility easements and right-of-way areas inside the UDB. Application 62 was another application filed by the Planning Department. Through Application 62, the Planning Department sought to have the Board of County Commissioners update and revise the countywide and MSA population estimates and the MSA population projections for the years 2000 and 2010 that had been adopted as part of the CDMP's land use element in 1988. In Application 62, the Planning Department recommended that the 1985 countywide and MSA population estimates found in the CDMP be replaced by 1989 estimates, including the following: countywide- 1,894,999; MSA 6.1- 92,715; MSA 6.2- 50,841; and MSA 7.2- 33,511. With respect to the population projections adopted in 1988, the Planning Department requested that they be modified to reflect a different distribution of the projected countywide population. The proposed modifications, as they pertained to MSA 6.1, MSA 6.2 and MSA 7.2, were as follows: year 2000- MSA 6.1: 137,612; MSA 6.2: 89,404; MSA 7.2: 42,012; year 2010- MSA 6.1: 175,504; MSA 6.2: 124,380; MSA 7.2: 53,823. In making these modified projections, the Planning Department utilized the same professionally accepted methodology it had used to make the projections that had been adopted in 1988. The Planning Department did not propose in Application 62 that any material change be made to the year 2000 or the year 2010 countywide population projections. A third application filed by the Planning Department was Application This application sought to have the Board of County Commissioners amend the text of the land use element to provide for the establishment of Traditional Neighborhood Developments (TNDs) by the adoption of land use regulations. Under the proposed amendment, TNDs, designed to provide a mix of employment opportunities, to offer a full range of housing types, and to discourage internal automobile use, among other objectives, would be permitted in areas designated for residential use on the FLUM. Planning Department's Preliminary Recommendations Report On August 25, 1989, the Planning Department prepared, for the benefit of the Board of County Commissioners, and published a two-volume report (PR Report) containing its initial recommendations on the 71 applications filed during the Amendment Cycle, as well as the background information and analyses upon which those recommendations were based. In its PR Report, the Planning Department analyzed, among other things, the amount of land that was needed and available to accommodate anticipated growth. In conducting its analysis, the Planning Department employed essentially the same, professionally accepted methodology, previously described in this Recommended Order, that it had used in 1988. The population estimates and projections upon which it relied were the updated and revised estimates and projections that were the subject of Application 62. The Planning Department estimated that in 1989 the County's residential capacity was 247,438 total dwelling units (134,333 single-family units and 113,105 multifamily units). Countywide demand was projected to be 9,157 total dwelling units a year from 1989 to 1995, 10,920 total dwelling units a year from 1995 to the year 2000, 11,440 total dwelling units a year from the year 2000 to the year 2005, and 11,601 total dwelling units a year from the year 2005 to the year 2010. Under this scenario, in the year 2010, there would remain a residential capacity of 22,689 total dwelling units. According to the Planning Department's analysis, this remaining countywide residential capacity would be depleted in the year 2012 (depletion year). The Planning Department forecast an earlier depletion year, 2009, for single-family units. In addition to analyzing countywide residential capacity, the Planning Department conducted an analysis of the amount of land that was available in the County for commercial and industrial development. The Planning Department's analysis revealed that the County had sufficient commercial capacity to last until the year 2008 and that it had sufficient industrial capacity to last until the year 2041. The Planning Department analyzed residential, commercial and industrial capacity, not only on a countywide basis, but on a subarea basis as well. This subarea analysis yielded the following forecast as to Study Areas G and I and MSAs 6.2 and 7.2: Study Area G- depletion year for residential land: year 2005 (all dwelling units), year 2006 (single-family units), and year 2005 (multifamily units); depletion year for commercial land: year 2003; and depletion year for industrial land: year 2076. Study Area I- depletion year for residential land: year 2019 (all dwelling units), year 2016 (single-family units), and year 2030 (multifamily units); depletion year for commercial land: year 2015; and depletion year for industrial land: year 2091. MSA 6.2- depletion year for residential land: year 2006 (all dwelling units), year 2002 (single-family units), and year 2025 (multifamily units); 18/ depletion year for commercial land: 1995; and depletion year for industrial land: year 2075. MSA 7.2- depletion year for commercial land: year 2009; and depletion year for industrial land: year 2078. In its PR Report, the Planning Department also surveyed the environmental, physical and archaeological/historic conditions in each study area of the County, with particular emphasis on the lands that were the subject of the various applications to amend the FLUM (hereinafter referred to collectively as the "application properties"). The PR Report noted that Study Area G, "a large area (approx. 81 sq. mi.) located along the westerly fringe of southwestern Dade County," was characterized by the following environmental, physical and archaeological/historical conditions: Study Area G encompasses the western portions of the Snapper Creek (C-2), C-100 and Black Creek (C-1) canal drainage basins. Natural ground elevations range from five to six feet msl in the northwestern portion of the area to ten to fifteen feet in the part of the Study area generally south of SW 120 Street. Similarly, there is a gradient in the soil conditions from the NW to the SE. In the NW quarter of the area, generally west of 144 Avenue and north of Kendall Drive, the limerock substrate is covered with seasonally flooded Everglades peats and mucks. The southern and eastern three quarters of the study area is generally characterized by well drained rocklands interspersed with poorly drained marls in the former transverse glades. Where organic soils exist, they must be re- moved prior to filling to meet County flood criteria. Therefore as much as four feet of fill may be required to meet the County cri- teria in the northwestern part of this area. The average groundwater table elevations range from above five feet in the northwest to four feet in the southeast. Therefore, the area of Bird Drive and much of the area north of Kendall Drive west of SW 137 Avenue has tradi- tionally experienced considerable flooding and drainage problems. * * * Approximately 70 percent (5,522 acres) of the Bird Drive Basin is vegetated with native wet- land wet prairie, shrub and tree island habi- tats. However, 3,083 acres are heavily or moderately invaded by the exotic tree, Malaleuca. In 1987 the County initiated a Special Area Management Planning (SAMP) pro- cess for this area to develop a wetlands miti- gation plan and funding proposals that will facilitate development in some portions of the Bird Drive Everglades Basin. The poten- tial presence of a new 140-million gallon per day (mgd) Biscayne Aquifer water wellfield in the western part of the Bird Drive Basin has made the feasibility of on-site wetland miti- gation highly questionable for the Basin area. Therefore, the County is exploring several off-site mitigation options as part of the SAMP. Proposals to develop in this Basin are presently constrained by language in the adopted components of the CDMP which tie de- velopment orders to the conclusion of the SAMP, unless the applicants can demonstrate vested rights. * * * In the portion of the study area south of Kendall Drive, the most significant environ- mental resources are stands of native pinelands. There are several environmentally sensitive pinelands in Study Area G, however, none of the properties included in applications 34-4 contain significant natural, historical o archaeological resources. . . . Table 1G of the PR Report contained the following information regarding the specific environmental, physical and archaeological/historic characteristics of Wellenhofer's property and the Application 40 property: Wellenhofer's Property: Soils- rockdale/rockland; drainage characteristics of soils- good; elevation: eight feet; drainage basin- C-100; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The Application 40 Property: Soils- rockdale, marl; depth of organic soils (marl)- one foot; drainage characteristics: good; elevation: eight feet; drainage basin: Black Creek Canal; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The environmental, physical and archaeological/historic characteristics of Study Area I, "a large (approx. 164 sq. mi.) region of south Dade County," were described as follows in the PR Report: Study Area I includes portions of CDMP Envi- ronmental Protection Subarea A, Biscayne National Park; Subarea D, the C-111 Wetlands; Subarea E; the Southeast wetlands; and Subarea F, Coastal Wetlands and Hammocks. These areas have been so designated because they contain important, relatively unstressed high-quality wetlands, which provide important water quality and wildlife values. Study Area I also includes a large part of CDMP Open Land Subarea 5. In most of the area east of Krome Avenue and west of U.S. 1, natural ground elevations range from ten to fifteen feet msl on the ridge and from five to ten feet in the former sloughs. The area east of the Turnpike and south of Florida City is less than five feet mean sea level. The highest average groundwater levels are at or above the ground surface throughout most of the area east of the Turnpike Extension and south of Florida City. Saltwater intrusion in the Aquifer extends two to five miles inland in this low lying area. In the area west of the Turnpike and east of Levees-31N and 31W, the soils are rocklands except in the former sloughs where marls pre- dominate. East of the Turnpike and south of Florida City, marls are the dominant soil type except along the coast where peats occur. The Black Creek (C-1), C-102, Mowry (C-103), North Canal, Florida City and C-111 canal sys- tems drain much of the northern and eastern portion of this study area. The area east of the Turnpike has recurring flooding and drainage problems due to its low elevation and flat gradient. The western portions of the C-102, C-103 and much of the C-111 drainage basins have limited flood protection. There is no flood protection in the area south of the Florida City Canal east of US 1 or in most of the area west of US 1 and south of Ingraham Highway. . . . * * * This study area also includes most of the environmentally sensitive natural forest com- munities that remain in Dade County. Appli- cation 47 contains a 15-acre pineland which presently receives maximum protection because it is outside the UDB and zoned AU. At the most, 20 percent of the pineland could be re- moved under the provisions of Chapter 24-60 of the Code of Metropolitan Dade County. . . . Table 1I of the PR Report contained the following additional information regarding the specific environmental, physical and archaeological/historic characteristics of the Application 47 property: Soils- rockland; drainage characteristics of soils- good; elevation: eleven to twelve feet; drainage basin- C-103; wetlands permits required- none; native wetland communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The PR Report also provided general information regarding existing land uses within each study area and more detailed information regarding existing land uses within and adjacent to each application property. The following was said with respect to existing land use patterns within Study Areas G and I: Study Area G- About half of this study area is suburban in character while the other half is primarily agriculture or undeveloped. The study area also contains a special agricul- tural area known as "horse country" for eques- trian related activities. The urbanizing portion is primarily residential with support- ing commercial and industrial activities. Residential areas include a range of housing from detached, single dwelling units to attached, multiple dwelling units at medium density. The area also contains two major recreation facilities-- Metrozoo and a county park. The major concentration of commercial activities has occurred along major thoroughfares such as North Kendall Drive. Some industries and offices are clustered in the vicinity of Tamiami Airport, a major general aviation facility located in the study area. Study Area I- This study area includes var- ious types of agricultural activities and rural development as well as suburban develop- ment largely oriented to US 1. The suburban development is primarily residential with supporting commercial uses. Although most of the housing is detached, single dwelling units, residential areas also include attached, multiple dwelling units at medium density. There are also several districts for industries and offices, some of which are oriented to expressway and railway systems. More than half of this study area is used for agriculture or is undeveloped. Much of the area is floodplain and the eastern fringe is subject to coastal flooding. Some of these areas are used for parks, preserves and water management areas. The area also contains several wellfields for public water supply, which are located inland from the coast and a major military installation-- Homestead Air Force Base. The PR Report stated the following with respect to the existing land uses within and adjacent to Wellenhofer's property, the Application 40 property and the Application 47 property: Wellenhofer's Property: The area, which con- tains 25 acres, is being used for agricultural purposes. Land located in the vicinity to the south and west is also being used for agriculture while zoned IU-C. The land on the north side is being developed for residential purposes. Boys Town home is located immediately to the west. The site is located one quarter mile north of Tamiami Airport. . . . The Application 40 Property: The area, which contains 320 acres, is being used for agricul- tural purposes. . . . Land in the vicinity on all four sides is also being used for agriculture. Tamiami Airport is located to the northeast of this site. The Application 47 Property: Most of the land in this area is being used for agriculture. The remainder is being used for rural residences or is vacant. The vacant parcels are zoned for agriculture (AU). Land in the vicinity on all sides has the same character. It is primarily agriculture with scattered rural residences or vacant parcels. These vacant parcels are also zoned for agri- culture (AU). The PR Report examined not only existing land use patterns, but future development patterns as well. The future development pattern set forth in the 1988 CDMP for Study Areas G and I were described in the PR Report as follows: Study Area G- The future land use pattern adopted for this area provides primarily for continued residential uses at low, and low-medium densities, with industrial and office development bordering the Tamiami airport. Nodes of commercial uses are pro- vided for at certain major intersections cen- trally located to serve the resident popula- tion. The western portions of the Study Area are slated for continued agricultural produc- tion, while the extreme northwest corner of the Area is designated as Open Land to pro- tect the West Wellfield. Study Area I- The future development pattern established for this area provides for mixed residential infilling (primarily estate, low density and low-medium-density, with some medium-high density located along SW 200 Street east of US 1). Commercial infilling is provided for along both sides of US 1 and along SW 312 Street. Major industrial areas are established south of SW 312 Street and west of 142 Avenue, west of SW 177 Avenue in the Homestead-Florida City area, north and south of 248 Street west of US 1 and south of SW 184 Street between US 1 and the HEFT [Homestead Extension to the Florida Turnpike]. The areas outside of, but contiguous to, the year 2000 Urban Development Boundary (UDB) are, for the most part, designated Agriculture, with land to the south and east designated as Open Land graduating to Environmental Protec- tion designations further south. . . . The PR Report also contained an evaluation of the current and future condition of public services in each study area, including an analysis, where possible, of each application's impact on these services. The public services addressed were roadways, transit, schools, parks, water, sewer, solid waste, and fire and rescue. The projected impacts of Applications 39, 40 (in its original form) and 47 on roadways were described as follows in the PR Report: Application 39: [Application 39 will result] in reduced peak hour trips affecting the year 2010 network in this [study] area. None of the roads within the area of this application were projected to operate worse than LOS D in the year 2010. Application 40: Due to its proximity to SW 177 Avenue, the combined 1422 peak hour trips generated by this amendment primarily impact SW 177 Avenue, which is already projected to operate at LOS F. The long term adopted standard for this road is LOS C. Even without this application the road does not meet this adopted standard. Application 47: Application 47 . . . if de- veloped would generate approximately 171 residential based peak hour trips in 2010. . . . Generally, this application would have negligible impacts on the LOS traffic conditions in 2010. The projected impacts of Applications 39, 40 (in its original form) and 47 on transit were described as follows in the PR Report: Applications 39 and 40: In general, no signi- ficant amount of transit trips would be generated by the amendment applications in this Study Area [G], even though a number of the applications (i.e. . . . 39, 40, ) are located in areas projected to have service improvements by 2010. Therefore, no additional service improvements are warranted beyond those that will be required to serve the area in general for 2010. Application 47: [N]o significant amount of transit trips would be generated by Applica- tion . . . 47. The projected impacts of Applications 39, 40 (in its original form) and 47 on schools were described as follows in the PR Report: Applications 39 and 40: It is estimated that the applications [in Study Area G] would in- crease the student population by [a total of] 2,784 students. . . . Application 40 would generate 874 additional students; . . . The other applications for residential use [including Application 39] would generate less than a hundred new students each. Application 47: If Application 47 were ap- proved, it would generate an additional 239 students at all grade levels. The greatest impact would be felt at the elementary school level, where an additional 129 students would have to be accommodated. Redland Elementary, which is the elementary school that would pro- bably serve the subject Application Area, is operating at a utilization rate of 163 percent. Additional classrooms are planned for construc- tion at Redland Elementary over the next few years, raising this school's number of Exist- ing Satisfactory Student Stations (ESSS) from 523 to 901. In addition, a relief school for Redland Elementary is to be built in this area by mid-1993, providing an additional 885 SSS. The projected impacts of Applications 39, 40 (in its original form) and 47 on parks were described as follows in the PR Report: Applications 39 and 40: Study Area G cur- rently meets the park level of service stan- dard (LOS) and is expected to meet the LOS in the year 2000. . . Despite the rapid popula- tion growth in the area, the LOS has remained above standard in part because of recreational facilities and open space that are provided in the planned residential developments which characterize the Study Area. Approval of those applications requesting new residential uses in Study Area G could result in a lowering of the LOS for parks if new park land is not provided. Application 47: By the year 2000, MSA 7.2 is expected to fall below standard if no addi- tional parks are provided. * * * Application 47 lies within MSA 7.2 which is currently above the LOS standard but is expected to fall below standard if no addi- tional park land is provided. The PR Report indicated that the fire and rescue response times to Wellenhofer's property, the Application 40 property and the Application 47 property were four minutes, 13 minutes, and three to four minutes, respectively, and that roadway accessibility to all three sites was good. With respect to the Application 40 property, the PR Report further noted that it "would be serviced by the planned Richmond Station after its completion in 1992-93," which would reduce the response time to the site to no more than six minutes. Water and sewer service in Study Areas G and I was described as follows in the PR Report: Study Area G: Water and sewer service is provided to Study Area G by WASAD [Metro- politan Dade County Water and Sewer Authority Department]. The area is characterized by large residential developments which have been built over the past decade. Water and sewer service was constructed by area devel- opers in many cases, and most of the developed area is served. . . . . [T]he 'Horse Country' area west of the Turnpike is not connected to either water or sewer. Potable Water Supply Water is supplied to Study Area G by WASAD's Alexander Orr Water Treatment Facility. This facility's current design rating is 178 MGD, and the historical maximum day water demand has been 146 MGD. . . . The Orr facility currently produces water which meets all federal, state and county drinking water standards. WASAD has recently made improve- ments to the Alexander Orr facility and devel- oped a long term expansion program. By 1990, it is expected that the plant will attain a rated capacity of 220 MGD. A major improvement to the distribution system in this Study Area is the completion of the 36/48 inch main which extends along SW 137 Avenue from SW 122 Street to SW 184 Street. In conjunction with other improvements, the system in this area is being connected to the South Miami Heights and the Orr Treatment Plants, providing adequate capacity for the southern portion of Study Area G. Improvements that are scheduled for 1989-90 include the extension of the 36 inch water main along Kendall Drive to SW 157 Avenue, and continued construction of the 96 inch raw water main that will deliver water from the new West Wellfield to the Alexander Orr Treat- ment Plant. Sewer Study Area G is served by the South District Wastewater Treatment and Disposal Facility. This facility has a current design capacity of 75 MGD. Based on a 12-month running average daily flow for this plant was 75 MGD. . . . Expansions to the South District facility are programmed for completion in 1994 to increase the design capacity to 112.5 MGD. Sewage effluent produced by this plant also conforms to federal, state and county effluent standards and is disposed of via deep well injection. Study Area I: Most of Study Area I is in agri- cultural use and relies primarily on private wells and septic tanks. WASAD serves the devel- oped areas in unincorporated Dade County. Florida City provides water service within the city limits and sewer service is provided by WASAD. A portion of the study area is also served by the City of Homestead. Homestead's franchised service area extends a short dis- tance outside the City limits: it is bounded irregularly on the East, on the West by SW 192 Avenue, by the City limits on the South, and on the North by SW 296 Street. Water distri- bution and sewage collection systems are main- tained by the Air Force to serve Homestead Air Force Base. Potable Water Supply The northeast corner of the Study Area is con- nected to WASAD's regional water supply system and is served by the Alexander Orr Treatment Plant. . . . [T]he served area south of SW 248 Street is not yet connected to the regional system. This area is served by the former Rex Utility system, which is now owned by WASAD, and by the City of Homestead. The Rex system has a rated capacity of 16.2 mgd and a maximum water demand of 8.81 mgd. The Homestead plant has a rated capacity of 9.9 mgd and a maximum demand of 7.7 mgd. . . . Water produced by these treatment plants meets federal, state, and county drinking water standards. A major improvement scheduled for this area is a 48 inch main which will run south along SW 127 Avenue from 248 Street to SW 280 Street to connect the existing systems to the Alexander Orr Treatment Plant. Upon completion of this main in 1990 or 1991, the . . . treatment plants of the Rex system will be phased out. . . . Sewer Florida City and the unincorporated portion of Study Area I are served by the South District Wastewater Treatment and Disposal Facility, which has a current design capacity of 75 mgd and an average daily flow of 84.2% of rated capacity. Expansions to the South District facility, programmed for completion in 1994, will increase the design capacity to 112.5 mgd. Sewage effluent treated by this plant conforms to the federal, state and county effluent stan- dards and is disposed of via deep-well injection. . . . The only remaining sewage treatment plant in Dade County is operated by the City of Homestead. The plant is designed to treat 2.25 mgd and its capacity is in the process of being evaluated by the Florida Department of Environmental Regula- tion. The Homestead system currently operates under an agreement to divert a portion of its wastewater to WASAD for treatment and disposal. . . . The following was indicated in the PR Report concerning the water and sewer service available to Wellenhofer's property, the Application 40 property and the Application 47 Property: Wellenhofer's property: distance to nearest water main- 1320 feet; diameter of this main- 12 inches; location of this main- SW 112th Street and SW 142nd Avenue; distance to nearest sewer main- 4000 feet; location of this main- SW 112th Street and SW 137th Avenue. The Application 40 Property: distance to nearest water main- 0 feet; diameter of this main- 24 inches; location of this main; SW 152nd Street and SW 157th Avenue; distance to nearest sewer main- one mile; location of this main- SW 136th Street and SW 147th Avenue. The Application 47 Property: distance to near- est water main- 2640 feet; diameter of this main- 12 inches; location of this main- SW 157th Avenue and 280th Street; distance to nearest sewer main- 3960 feet; location of this main- SW 157th Avenue and SW 284th Street. 19/ The significance of the availability of water and sewer service to a particular application property was described as follows in the PR Report: Although specific requirements under Chapter 24 of the Code of Metropolitan Dade County vary with land use, most new development in Dade County is required to connect to the public water or sewer system, or to both. The timing of new development is heavily depen- dent on the availability of these services. Where water and sewer service does not exist and is not planned, the services may be pro- vided by the developer. When construction is completed, the facilities are donated to the utility. The proximity of an application area to exist- ing or programmed water and sewer lines is an important indicator of whether or not the area is likely to develop within the 2000 time frame of the Urban Development boundary. . . . The following observations were made in the PR report regarding solid waste services in the County: The Metro-Dade Department of Solid Waste Management provides both collection and dis- posal services for Dade County. The Department is responsible for the final dis- posal of solid waste generated anywhere in the County and for residential collection in the urbanized portions of unincorporated Dade County. Residents in sparsely developed areas of the County are responsible for delivering their waste to a proper disposal site. In general, industrial and commercial businesses often use private haulers who can provide customized service that is not available from the County. . . . Countywide, the solid waste disposal system has sufficient capacity to maintain the adopted level of service of 7 pounds per person per day through 1995. The Department's Objections, Recommendations and Comments Report (ORC) The Board of County Commissioners took preliminary action on the applications filed during the Amendment Cycle and transmitted to the Department its proposed amendment to the CDMP. Accompanying the proposed amendment was the PR Report. The Department issued its Objections, Recommendations and Comments Report (ORC) on February 2, 1990. A copy of the ORC, accompanied by a cover letter, was sent to the Mayor of Metropolitan Dade County, the Honorable Stephen P. Clark, that same day. The cover letter advised the Mayor that if he "would like the Department to participate in the public hearing for amendment adoption, such request should be received by the Department, certified mail, at least 14 days prior to the scheduled hearing date." The following were the statements made in the ORC that referenced Applications 39, 40 and 47: FUTURE LAND USE ELEMENT OBJECTIONS * * * Analysis 1. 9J-5.006(2)(b) The analysis of the character of the existing vacant or undeveloped land in order to deter- mine its suitability for use does not support the plan amendments that propose to extend the Urban Development Boundary (UDB) by 845 acres. The analysis demonstrates that the UDB as cur- rently delineated ensures an adequate supply of each land use will be available for the planning timeframe. In addition, the existing analysis identifies this region as environmen- tally sensitive and not suitable for urban uses. Recommendation Revise the plan amendments to retain the UDB as currently delineated in the adopted Metro-Dade Comprehensive Development Master Plan (CDMP) or include analysis that would justify extension of the UDB for urban uses while not causing adverse impacts to the environmentally sensitive lands in the East Everglades Area. 2. 9J-5.006(2)(c)2. The analysis of the amount of land needed to accommodate the projected population, as re- vised in Amendment 62, does not support plan amendments 18, 37, 40, 41 and 47 which propose to extend the UDB by an additional 845 acres. The analysis demonstrates that there is ade- quate amount of land uses designated within the current UDB to accommodate the projected population within the planning timeframe. Therefore, the extension of the UDB into the East Everglades area would encourage urban sprawl. Recommendation Revise the plan amendments to be consistent with the analysis. The plan amendments must justify the proposed need for additional land outside of the current UDB to accommodate the projected population. 3. 9J-5.006(2)(e) The analysis of the proposed development of flood prone areas does not support plan amend- ments 18, 37, 40, 41 and 47 which would extend the UDB by 845 acres. The new growth would be directed into the flood prone areas on the eastern edge of the Everglades. . . . Recommendation Revise the plan amendments to not extend the UDB and to either retain the existing land uses or designate land uses that are compat- ible with the environmentally sensitive nature of . . . the Everglades region. Goals, Objectives and Policies 4. 9J-5.006(3)(b)1. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 1, page I-1, which states that decisions regarding the location of future land use in Dade County will be based on the physical and financial feasibility for providing services as adopted in the CDMP. The analysis demonstrates that the County has not planned on providing services outside the existing UDB; therefore the extension of the UDB at this time would appear to be premature. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 8. 9J-5.006(3)(b)7. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 3, page I-4, which states that the urban growth shall emphasize concentration around centers of activity rather than sprawl. The analysis of the land needed to accommodate the projected population demonstrates that there will be an adequate supply of vacant land within the UDB for the duration of the planning timeframe. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 12. 9J-5.006(3)(c)3. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Policy 1B, page I-1, which states that the County will first provide services for the area within the UDB. The amendments are located outside of the existing UDB and the analysis demonstrates that there is no need to extend the UDB for residential or industrial land uses. Recommendation Retain the UDB as currently delineated. * * * Future Land Use Map(s) 14. 9J-5.006(4)(a) Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are not supported by the data and analysis. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These ex- tensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development Boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and to pro- tect the environmental integrity of the Ever- glades. * * * PORTS, AVIATION AND RELATED FACILITIES A. OBJECTIONS * * * Goals, Objectives and Policies 1. 9J-5.009(3)(c)1. Plan amendments 38 and 39, which would change industrial/office land use to low density resi- dential, are inconsistent with Policy 4C, page IV-4, which supports zoning that would protect existing and proposed aviation flight paths. These amendments would promote the encroachment of residential land uses into the Tamiami Airport area guaranteeing a future conflict of land uses. Recommendation Retain the existing land uses or propose land uses that would be compatible with the existing airport and the surrounding supporting aviation industries. * * * SANITARY SEWER, SOLID WASTE, DRAINAGE, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT A. OBJECTIONS Goals, Objectives, and Policies 1. 9J-5.011(2)(b)3. Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are inconsistent with Objective 1 and Policy 1A, page VII-1, which state that the area within the UDB shall have first priority for urban services as a measure to discourage urban sprawl. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These extensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and protect the environmental integrity of the Everglades. The ORC also addressed the proposed plan amendment's consistency with the State of Florida Comprehensive Plan (State Plan) and the Regional Plan for South Florida (Regional Plan), which was prepared and adopted by the South Florida Regional Planning Council. The following was alleged with respect to the proposed amendment's consistency with the State Plan: STATE COMPREHENSIVE PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021 The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following sub- sections of s. 187.201, F.S. (1988 Supplement), State Comprehensive Plan policies: Housing (5)(b)3., which requires the supply of safe, affordable and sanitary housing for low and moderate income persons and the elderly, because the proposed amendments would change existing residential uses, that would be feasible for affordable housing, to non-residential uses; and Water Resources (8)(b)4., which requires the protection and use of natural water systems in lieu of struc- tural alternatives and restore modified sys- tems, because the proposed amendments would create land uses which would encroach upon wellfield protection areas; and Coastal and Marine Resources (9)(b)4., which requires the protection of coastal resources, marine resources, and dune systems from the adverse effects of develop- ment, because of the proposed amendment to change definitions which would give residen- tial densities to submerged marine lands; and Natural Systems and Recreational Lands (10)(b)7., which requires the County to pro- tect and restore the ecological functions of wetland systems to ensure their long-term environmental, economic and recreational value, because the proposed amendments would expand the UDB into the East Everglades Area and potentially permit noncompatible land uses within wetland study areas and wellfield pro- tection areas; and (10)(b)8., which requires promotion of res- toration of the Everglades system and of the hydrological and ecological functions of de- graded or substantially disrupted surface waters, because of the proposed amendment which would expand the UDB into the East Everglades Area; and Land Use (16)(b)2., which requires incentives and dis- incentives which encourage a separation of urban and rural land uses, because the pro- posed amendments would expand the UDB into the East Everglades Area which would encourage urban sprawl; and Public Facilities (18)(b)1., which requires incentive for devel- oping land in a way that maximizes the uses of existing public facilities, because the pro- posed amendments would remove residential uses along arterials and reduce the effectiveness of the mass transit system. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and implementing policies, supported by adequate data and analysis, that are consistent with the above-referenced poli- cies of the State Comprehensive Plan. The following was alleged in the ORC concerning the proposed amendment's consistency with the Regional Plan: REGIONAL POLICY PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021(1) The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following subsections of the Regional Plan for South Florida: Policy 57.1.2., which requires giving priority to development in areas within which adequate services are either programmed or available, because of the proposed amendments which would expand the UDB into the East Everglades Area; and Policy 64.2.1, which requires that land use around the airport be strictly controlled to prevent unnecessary social or economic con- flicts and costs, because of the proposed amendments which would place residential uses in close proximity to Tamiami Airport; and Policy 69.1.1., which encourages appropriate activities to ensure the continued viability of agriculture, because the proposed amend- ments which would expand the UDB into the East Everglades Area. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and policies, supported by adequate data and analysis, that are consis- tent with the policies of the Regional Plan for South Florida. Under the heading of "Internal Consistency" in the ORC, the following remarks were made: INTERNAL CONSISTENCY OBJECTIONS 1. 9J-5.005(5)(b) Each map depicting future conditions in the plan (including the future land use map) must reflect goals, objectives and policies in each element, as those goals, objectives and policies exist or are modified to meet the requirements of Chapter 9J-5, F.A.C., Chapter 163, F.S., the State Comprehensive Plan (Chapter 187, F.S.) and the comprehensive regional policy plan, as recommended in this report. Recommendation Ensure that future conditions maps are modi- fied to reflect goals, objectives and policies in each element. COMMENTS See individual elements. Those objections, recommendations and comments made in the ORC that are not recited above specifically referenced applications other than Applications 39, 40 and 47. The Planning Department's Response to the ORC On March 21, 1990, the Planning Department published a written response to the ORC (Response). In its Response, the Planning Department concurred with the position that Applications 39, 40 and 47 should not be approved, but it took issue with certain statements made in the ORC relating to these applications. The Planning Department pointed out that the "East Everglades was the area located west of the L-31 Everglades containment levee and south of the Tamiami Trail," and that "[A]pplications [18, 37, 40, 41 and 47 we]re no closer than two miles [to the east] of the East Everglades" and did not extend to any areas designated "environmental protection" on the FLUM. The Planning Department further noted that the Application 40 property and the Application 47 property were not subject to recurring flooding. With respect to the lone objection in the ORC which specifically mentioned Application 39, the Planning Department observed that it "incorrectly cite[d] Policy 4C [of the Port and Aviation Facilities Element of the CDMP]; it should be Policy 4D." The Planning Department added that, although the Department had not so indicated, Application 39 was "also inconsistent with Objective 8 of the Port and Aviation Element which seeks to maximize compatibility between airports and the surrounding communities." Combined Recommendations of the Planning Department and the PAB On February 27, 1990, and February 28, 1990, respectively, following a joint public hearing held on February 23, 1990, the Planning Department, acting in its capacity as the local planning agency, and the PAB adopted resolutions containing their recommendations to the Board of County Commissioners regarding the final action to be taken on the applications filed during the Amendment Cycle. Thereafter, prior to the final adoption hearing, the Planning Department published a document entitled "Combined Recommendations of the Metropolitan Dade County Planning Department (Local Planning Agency) and the Planning Advisory Board" (CR Report), which set forth these recommendations, and summarized the rationale upon which they were based. Both the Planning Department and PAB recommended that Application 39 be denied. According to the CR Report, these recommendations were based upon the following considerations: The south boundary of this site is located only two blocks from the Kendall-Tamiami Execu- tive Airport. The application area is within the area designated on County comprehensive plans as industrial/commercial since 1965 to insure airport/community compatibility. The continued non-residential designation of this area also conforms to the standard adopted in 1989 by the State Legislature (but vetoed by the Governor because of unrelated funding pro- visions) which provided that "residential construction should not be permitted within an area contiguous to an airport measuring one-half of the length of the longest runway on either side of each runway centerline." The Aviation Department estimates that the housing proposed in the application area would be subject to more than ten times ambient noise levels which would result in many complaints from occupants. For example, virtually all of the 5,200 petitioners concerned about perceived airport noise impacts of the recently rejected runway extension lived further from the airport than would the occupants of housing proposed within the area. Approval of this application would conflict with the need for the County to protect its airport, and with the need to retain opportunity sites for employment activities in west Kendall. The Planning Department recommended that Application 40 be denied. According to the CR Report, this recommendation was based upon the following considerations: This Application is located in the Agri- cultural area west of Black Creek Canal. The Agricultural Land Use Plan adopted by the Board of County Commissioners established that Canal as the Agricultural area boundary in this area of the County, to be amended for urban development only at such time as there is a documented need. The Planning Department believes that the need does not yet exist. 20/ Approval of this Application would be premature. The CDMP currently contains within the year 2000 Urban Development Boundary (UDB), enough land countywide to sustain projected industrial needs well beyond the year 2010, and residential needs to the year 2015. Within this Study Area there is also enough industrial land to accommodate projected residential growth beyond the year 2010 and to accommodate projected residential growth until the year 2005. While current projections indicate that the single family supply west of the Turnpike between Kendall Drive and Eureka Drive does not contain much surplus beyond the year 2000, the CDMP provides alternative loca- tions, including an abundance of supply in the Turnpike corridor south of Cutler Ridge. The Planning Department will closely monitor growth trends in the various subareas of the County and will recommend adjustments when warranted in the future. The PAB recommended that Application 40 be approved. The CR Report indicated that the PAB's reasoning with respect to this matter was as follows: Because this is the area where people want to live, sprawl is justified and the urban devel- opment boundary should be expanded. In re- sponse to DCA's objections, the PAB noted that services are available adjacent to this Appli- cation. Both the Planning Department and PAB recommended the denial of Application 47. The following reasons were given in the CR Report for their recommendations: The area is currently designated Agricul- ture on the Land Use Plan map, and is used for agricultural purposes. The Agricultural Land Use Plan adopted by the Board of County Commis- sioners recommends that the area designated Agriculture should not be redesignated for urban use until there is a documented need for more urban land. Approval of this Application would be very premature. The CDMP currently contains enough land within the year 2000 Urban Development Boundary in this Study Area to accommodate projected demand well beyond the year 2010. Similarly, in the area west of US 1 there is enough land for single-family type residences to accommodate projected demand through the year 2010. There is no current need to promote urban development of this Application area. This site contains fifteen acres of Dade County pine forest listed in Dade County's forest land inventory as having high environ- mental quality. It should not be prematurely urbanized. The Final Adoption Hearing: The Department's Participation On March 12, 1990, Mayor Clark mailed, by United States Express Mail, a letter to the Department requesting that it participate in the hearing at which final action would be taken by the Board of County Commissioners on the outstanding applications filed during the Amendment Cycle. The body of the letter read as follows: The Board of County Commissioners requests that the Florida Department of Community Affairs participate in its hearing to address biennial applications requesting amendments to the 2000-2010 Comprehensive Development Master Plan (CDMP) for Metropolitan Dade County. This request is made pursuant to Section 9J-11.011(2) of the Florida Adminis- trative Code and Section 2-116.1(4) of the Code of Metropolitan Dade County. The public hearing will be held on Monday, March 26, 1990, at 9:00 AM in the Commission Chambers, 111 N.W. 1 Street, Miami. If neces- sary, this hearing will be continued on Tuesday, March 27, 1990, in the Commission Chambers. The purpose of this hearing is to afford the Board of County Commissioners an opportunity to hear the applicants explain their applica- tions and to receive public comments on the applications, on the "Objections, Recommenda- tions, and Comments" report submitted by the Florida Department of Community Affairs, and on the recommendations of the Planning Advi- sory Board and of the Local Planning Agency. At the conclusion of this hearing, the Board of County Commissioners will take final action to approve, approve with change, or deny each of the applications. Should you or your staff need any assistance or additional information regarding this hearing, please contact Mr. Robert Usherson, Chief, Metropolitan Planning Division, Metro-Dade Planning Department, at (305)375-2835, (Suncom) 445-2835. The Department, by letter, advised Mayor Clark that it would send a Department representative to "participate" in the hearing. The body of the letter read as follows: In response to your request of March 12, 1990, the Department of Community Affairs will send a representative to participate in the March 26, 1990, public hearing to adopt the proposed Metro Dade County comprehensive plan amendments. The Department's representative is authorized to restate our position as expressed in the Department's February 3, 1990 [sic] Objections, Recommendations and Comments Report, and to listen to all parties. It is the Department's position that the adoption public hearing is not the proper forum for modifying the Depart- ment's position or approving proposed revisions to the comprehensive plan. The Department's representative will be without authority to modify the Department's position or approve proposals discussed at the public hearing. The Department's representative will be authorized, however, to comment on proposals to resolve objections included in the report. Final approval of any proposal may only be granted by the Secretary of the Department of Community Affairs. The Department's role with respect to approv- ing proposed revisions will begin upon adop- tion and submittal of the comprehensive plan, pursuant to Chapter 9J-11.011, Florida Admin- istrative Code. If I may be of further assis- tance in this matter, please contact me at (904)488-9210. The Department representative selected to attend the final adoption hearing was Harry Schmertman, a Planner IV with the Department. Schmertman had not been involved in the preparation of the ORC. He reviewed the report, however, before attending the hearing. Schmertman arrived at the Commission Chambers on the morning of March 26, 1990, prior to the commencement of the hearing. Upon his arrival, he spoke with the County's Planning Director and requested that he be recognized at the outset of the hearing. The Planning Director responded that "the Mayor would take care of that." Following this conversation, Schmertman took a seat "[a]pproximately five or six rows back [from the front] in the center of the auditorium." Thereafter, the hearing formally convened. Shortly after the commencement of the hearing, before any applications were discussed, Mayor Clark introduced Schmertman and indicated that he was attending the hearing on behalf of the Department. Immediately following the Mayor's introduction of Schmertman, the Chairman of the PAB, Lester Goldstein, presented the PAB's recommendations to the Board. During his presentation, Goldstein expressed disappointment over the various factual inaccuracies in the Department's ORC. Schmertman did not respond to Goldstein's comments, nor did he at any time attempt to modify or explain any statement or position taken by the Department in the ORC. Indeed, he made no public remarks while in attendance at the hearing. While Schmertman did not address the Board of County Commissioners at the hearing, at no time during the hearing was he asked to do so. Furthermore, the members of the Board gave no indication that they did not understand, and therefore needed clarification of, the Department's position on the applications under consideration. At around 4:30 p.m., before the conclusion of the hearing on that day, Schmertman left the Commission Chambers to return to Tallahassee. Neither he, nor any other Department representative, was present for the remainder of the hearing on that day or for the continuation of the hearing on the following day, when public discussion and debate ended and a formal vote was taken on each of the pending applications. 21/ Schmertman did not tell anyone that he was leaving the Commission Chambers. He reasonably believed, however, that there was no need to announce his departure because he was "in a very obvious location . . . and was very visible leaving." No member of the Board, nor any other County representative, asked Schmertman, as he was leaving, to remain until the conclusion of the hearing. The Final Adoption Hearing: The Objectors' Participation The Redland Citizen Association, Inc. (RCA) is a nonprofit Florida corporation, which has as its stated purpose and primary activity the preservation and promotion of the agrarian character and lifestyle of the Redlands area of South Dade. The RCA engages in fundraising to obtain the financial resources necessary to accomplish this objective. The RCA has approximately 700 to 800 members, all of whom reside in or around the Redlands in Dade County. At all times material hereto, Martin Motes has been a member of the RCA, resided in a home that he owns in the Redlands, and owned and operated a wholesale orchid nursery business located on property adjacent to his residence, three quarters of a mile north of the Application 47 property. Motes appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the RCA and its members, including himself, he expressed opposition to Application 47. He argued that the change sought through this application was "premature" and constituted an "unwarranted and unwanted" extension of urban development into a viable agricultural area. Neither Motes, nor any other representative of the RCA, objected to any application other than Application 47. 22/ The Sierra Club is a nonprofit national organization organized for the following purpose: To explore, enjoy and protect the wild places of the earth, to practice and promote the re- sponsible use of the earth's ecosystems and resources, to educate and enlist humanity to protect and restore the quality of the natural and human environment, and to use all lawful means to carry out these objectives. The Sierra Club, Miami Group, is a local division of the national organization specifically chartered to include residents of both Dade and Monroe Counties. It has a Dade County address. At all times material hereto Bruce Rohde has been a member of the Sierra Club and resided in a home that he owns in Dade County. Rohde appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the Sierra Club and its members, including himself, he expressed opposition to Applications 40 and 47, among others. He contended that the extensions of the UDB requested through Applications 40 and 47 were "premature." Neither Rohde, nor any other representative of the Sierra Club, objected to Application 39. The League of Women Voters of the United States is a national organization. The League of Women Voters of Florida is a state organization. The League of Women Voters of Dade County, Inc. (League) is a nonprofit Florida corporation affiliated with the national and state organizations. The League's purpose, as stated in its Articles of Incorporation, is as follows: [T]o promote political responsibility through informed and active participation of citizens in government and to take action on govern- mental measures and policies in the public interest in conformity with the principles of The League of Women Voters of the United States and The League of Women Voters of Florida. It engages in fundraising to obtain the financial resources necessary to accomplish this objective. The League rents office space in Dade County out of which it conducts its operations. 23/ At all times material hereto, Carol Rist has been a member of the League, resided in a home that she owns in Dade County, and owned and operated a Dade County business. Rist appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the League and its members, including herself, she expressed opposition to various applications, including Applications 39, 40 and 47. With respect to Applications 40 and 47, her arguments were similar to those advanced by Rohde at the hearing. As to Application 39, she contended that Wellenhofer's property was too close to the airport to be used for residential purposes and that it was a desirable site for the location of an office complex to which residents of the West Kendall area would be able to commute. 24/ At all times material hereto, Evelyn B. Sutton has resided in a home that she owns in the eastern half of the Application 47 property. Sutton appeared before the Board of County Commissioners at the final adoption hearing. She expressed her opposition to Application 47, contending that its approval would have an adverse impact upon the unique agrarian character and lifestyle of the Redlands. She did not object to any application other than Application 47. At all times material hereto, Frances L. Mitchell has resided in a home that she owns in the eastern half of the Application 47 property. Mitchell and some of her neighbors retained an attorney, who appeared before the Board of County Commissioners at the final adoption hearing and made a presentation on their behalf. The attorney advised the Board that his clients were in opposition to Application 47 because it was "premature" and represented unneeded "leapfrog residential development in the heart of the Redlands." Neither Mitchell, her attorney, nor any other representative acting on her behalf, objected to any application other than Application 47. At all times material hereto, Rod Jude has resided in a home that he owns in Dade County and owned and operated a Dade County wholesale nursery business. Jude appeared before the Board of County Commissioners at the final adoption hearing. He expressed his opposition to Application 40, arguing that there was no demonstrated need for the conversion of the Application 40 property to non-agricultural uses. Jude also objected to Applications 37, 41 and 42. He did not address either Application 39 or Application 47. The Final Adoption Hearing: The Applicants' Participation Jeffrey E. Lehrman, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 39 on behalf of Wellenhofer. In addition to making an oral presentation, Lehrman gave the members of the Board written materials. During his presentation, Lehrman stated, among other things, the following: Application 39 represented infill, not leapfrog, development; such development would not adversely impact upon, nor would it be adversely impacted by, the Tamiami Airport; there had been significant residential development in the area around Wellenhofer's property in recent years; the approval of Application 39 would not interfere with any existing flight patterns; Wellenhofer's property was not under an existing flight path, but rather was in a "hole-in-the-doughnut" and therefore was distinguishable from properties that were the subject of other applications; Tamiami's north runway was an auxiliary runway unequipped to handle operations at night and in bad weather; the applicable 65/75 LDN noise contour did not intrude upon Wellenhofer's property; the new statute that the Planning Department had referenced in recommending denial of Application 39 had been vetoed by the Governor and therefore was really no statute at all; helicopter training took place on the south, rather than the north, side of the airport; and if Application 39 was approved, a buffer of industrial land would still exist between Wellenhofer's property and the airport. Thomas Carlos, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 40 on behalf of the Suchmans. Carlos was assisted by James Holland, a professional planner with the firm of Post, Buckley, Shuh and Jernigan (Post Buckley), Jack Schnettler, a professional traffic engineer with Post Buckley, Richard Tobin, President of Strategy Research Corporation, Inc. (SRC), a national research firm with offices in Florida, and Richard Roth, Vice- President of SRC in charge of planning research studies. During his opening remarks, Carlos advised the County Commission that the Suchmans had executed a covenant obligating themselves to developing their property in accordance with the Traditional Neighborhood Development concept. He then introduced Holland to the Commission. During his presentation, Holland did, among other things, the following: summarized the contents of Table 1G of the PR Report relating to the environmental, physical and archaeological/historic conditions that existed on the Application 40 property; contrasted the Application 40 property with the undeveloped lands in MSA 6.1 already within the UDB which, he argued, had marginal development potential because of undesirable environmental constraints; opined that, as a consequence of these impediments to development in MSA 6.1, MSA 6.2 would experience an increase in demand; showed a graphic depicting land use patterns in and around the Application 40 property, including the amount of land available for residential development in the area; displayed another graphic showing future Urban Services Areas in unincorporated Dade County, including the Tamiami area; in conjunction with the these graphics, argued that the residential development of the Application 40 property was in furtherance of the Tamiami area's designation as an employment center; quoted from a Planning Department report that suggested that development around the Tamiami Airport would reduce metropolitan transportation needs; asserted that the use of the Application 40 property for residential purposes would comply with federal guidelines as well as those found in the CDMP; in support of this assertion, presented a graphic illustrating that no part of the proposed residential portion of the Application 40 property would be included in the 65/75 LDN contours which measure the noise generated by airport operations; and described the urban services which were available or programmed to serve the Application 40 property. Jack Schnettler's presentation addressed traffic and transit issues. He presented a graphic showing the existing and programmed transportation network in the vicinity of the Application 40 property and highlighted particular improvement projects that he considered worthy of note. In describing the this transportation network, he commented that it augmented the employment center character of the area. Schnettler expressed the view that the property would be adequately served by transit and roadways. In addition, he disagreed with the Planning Department's forecast that approval of Application 40 would adversely impact upon the level of service on Southwest 177th Avenue, which, he noted, was located one and half miles to the west of the application property. Tobin and Roth briefly summarized a written report that SRC had prepared for the Suchmans and other private applicants (SRC Report). The report analyzed housing demand in the West Kendall area. The SRC Report concluded that the supply of residential land in MSA 6.2 25/ would be depleted in the year 2004 under a low case scenario, in 1998 under a medium case scenario, and in 1996 under a high case scenario, which the report opined, without explanation or reasonable justification, was "the one most likely to occur." As noted above, in its PR Report, the Planning Department had projected a depletion year of 2006, which the SRC Report criticized as being "out of touch with reality." In making its projections, SRC compared the yearly average of new housing units built and sold in MSA 6.2 from 1980 to 1984, which was a down period for the housing industry in Dade County, to the yearly average of new housing units build and sold in MSA 6.2 from 1985 to 1988, which was a boom period for the housing industry in the County. The information used by SRC regarding the number of housing units constructed and sold during these years was obtained from the Dade County Tax Assessor's office. Under the low case scenario, SRC assumed that housing demand in MSA 6.2 would remain constant at its 1985 to 1988 yearly average of 1,780 units. Under the medium case scenario, SRC assumed that the rate of housing demand would increase by about 35% over the 1985 to 1988 experience (which was 70% above the 1980 to 1984 experience). Under the high case scenario, SRC assumed that the 70% increase in housing demand between 1980 to 1984 and 1985 to 1988 would continue unabated until the supply of residential land was depleted, an assumption that is even more unrealistic than the assumptions underlying low and medium case scenarios. SRC reached these conclusions without analyzing housing demand on a countywide basis. Neither did it rely upon any population projections, notwithstanding that housing demand is driven by population growth. Furthermore, it did not take into consideration the cyclical fluctuations that characterize the housing market, nor did it account for vacant units in its projections. A professionally accepted methodology is one that is replicable, transparent, documented, free of error and inaccuracies, based upon assumptions that are clearly stated and reasonable and designed to avoid improbable and unlikely outcomes given past trends. In projecting housing demand for MSA 6.2., SRC did not utilize a methodology meeting these requirements. In addition to the oral presentations made by Carlos, Holland, Schnettler, Tobin and Roth, the Suchmans also presented to the Board of County Commissioners a written memorandum authored by Carlos and David S. Goldwich, Esquire, with attachments, including a copy of the SRC Report, copies of excerpts from Planning Department publications, and a copy of a recent article appearing in "New Miami Magazine," which reported that "Dade farmers, mostly by shifting production to new areas to the west actually increased total acres under tillage from 78,263 in 1981 to 84,534 in 1987" and that "Dade agricultural acreage [was] not expected to shrink substantially, despite encroachments by developers." The memorandum made many of the same arguments that were advanced by those who spoke on behalf of the Suchmans at the final adoption hearing. Robert Traurig, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 47 on behalf of Alajuela N.V. During his presentation, Traurig stated, among other things, the following: the Application 47 property was contiguous to the 1988 UDB; the failure to include the property within the UDB was an oversight that should be corrected; there was significant residential development surrounding the property in all directions; the area in which the property is located was an area in transition; it was changing from an agricultural area to one that was predominantly residential in character; as demonstrated by the recent development in the area, there was a demand for housing in this part of the County; most of the people who wanted to live in this area could not afford the five-acre estates allowed on property designated for "agricultural" use under the CDMP; the redesignation of the Application 47 property sought by Alajuela N.V. would not have an adverse impact on the agricultural industry in the County; such redesignation was not premature nor would it result in leapfrog development; there were no environmental impediments to the development of the Application 47 property; the elevation of the property was 11 feet above sea level and drainage was good; there were no wetlands on the site; the tree colony on the eastern half of the property would be protected by County ordinance; and there were roadways, parks, fire service and other urban services available to serve the property. The Final Adoption Hearing: The Aviation Director's Comments At the request of Commissioner Hawkins, Rick Elder, the County's Aviation Director, commented on four application properties in Study Area G that were in close proximity to the Tamiami Airport, including Wellenhofer's property. Elder stated that there were no flight patterns over Wellenhofer's property. With respect to noise, he noted that Wellenhofer's property was not within the 65/75 LDN contour. Elder did not indicate that he had any safety concerns regarding Application 39. The Final Adoption Hearing: Debate and Vote by the Board Following the conclusion of that portion of the final adoption hearing devoted to public discussion and debate on March 27, 1990, the Board of County Commissioners considered and voted on each of the pending applications. At the request of Commissioner Hawkins, the first application to be considered and voted on by the Board was the TND application, Application 71. The Board voted to approve Application 71. The remaining applications were considered and voted on in sequential order. During the Commissioners' debate on Application 39 and other applications in the vicinity of Tamiami Airport, Commissioner Gersten expressed the view that, with respect to these applications, neither noise nor safety should be a concern. Commissioner Schreiber concurred. Commissioner Valdes remarked that, although he was opposed to the other applications under consideration, he was not opposed to Application 39 because the property that was the subject of the application was not, according to Aviation Director Elder, under a flight pattern. Commissioner Dusseau indicated his opposition to Application 39. He argued that there was no need for residential development on Wellenhofer's property and that it was preferable to retain its "industrial and office" land use designation to further the creation of an activity center around the airport. Application 39 was approved by a five to three vote. When Application 40 came up for consideration, Commissioner Hawkins recommended that the application be modified. While he did not object to the extension of the UDB to include the Application 40 property, he suggested that only the application property owned by the Suchmans be redesignated for residential use. He explained that, not only would this modification eliminate concerns generated by the application regarding compatibility with airport operations, it would set the stage for the development of a TND in the West Kendall area. Commissioner Hawkins noted that the County Commission had long wanted to have a TND in this area and that the Suchmans were willing to develop their property as a TND if it was redesignated for residential use. Commissioner Dusseau responded to these comments by indicating that he favored the TND concept, but that he did not believe that the Suchmans property was where such a TND should be located. Application 40, as modified pursuant to Commissioner Hawkins' recommendation, initially failed to win approval on a tie vote. On the motion of Commissioner Winn, Application 40, as so modified, was reconsidered. On reconsideration, it was approved by a six to two vote. Application 47 was also approved by a six to two vote. Application 58, which proposed to allow new commercial agricultural uses within the UDB, and Application 62, with its revised population estimates and projections, were among the other applications that were approved by the Board of County Commissioners at the final adoption hearing. Of the applications seeking an extension of the UDB, only Applications 40 and 47 were approved. A total of 49 applications, either in their original form or as modified, were approved by the Board. The majority of these applications, like Applications 39, 40 and 47, sought to change one or more land use designations on the FLUM. Other approved applications, in addition to Applications 39, 40 and 47, that sought to have the Board of County Commissioners change a non- residential land use to a residential land use were Applications 12, 13, 14, 26, 28 and 44. 26/ Approximately 410 acres of land were redesignated on the FLUM from non-residential to residential land uses as a result of the approval of Applications 12, 13, 14, 26, 28, 39, 40, 44 and 47. Assuming that the properties that were the subject of these applications will be able to develop at the maximum residential densities indicated on the FLUM, these redesignations will have increased the supply of residential land in the County by approximately 1930 dwelling units. 208. The approval of Applications 1, 2, 3, 4, 9, 11, 14, 23, 27, 29, 45 and 46 resulted in the redesignation on the FLUM of approximately 115 acres of land from residential to non-residential land uses. Assuming that the properties that were the subject of these applications would have been able to develop at the maximum residential densities indicated on the FLUM, these redesignations may be said to have reduced the supply of residential land in the County by approximately 910 dwelling units. Applications 5, 6, 19, 22 and 24 sought to have land designated on the FLUM for "low density residential" use redesignated for "office/residential" use. Applications 8, 15 and 16 sought to have land designated on the FLUM "medium density residential" redesignated "office/residential." These eight applications were all approved. Approximately 105 acres of land were redesignated "office/residential" as a result of the approval of these eight applications. Assuming that the properties that were the subject of these applications would have been able to develop at their maximum pre-approval residential densities, as indicated on the FLUM, and further assuming that, after these redesignations, they will be developed as office sites exclusively, these redesignations may be said to have reduced the supply of residential land in the County by approximately 1960 dwelling units. If the assumption were made that these redesignated properties will experience both office and residential development 27/ and that the residential development will amount to one half the number of dwelling units that would have been constructed had the property not been redesignated, the reduction in the supply of residential land resulting from these redesignations instead would be 980 dwelling units. It is unlikely, however, that as many as 980 dwelling units will be built on these properties. There were other applications, in addition to those specifically mentioned above, that sought FLUM redesignations and were approved by the Board of County Commissioners, however, they involved a change from one non- residential land use to another non-residential land use and therefore did not have a direct impact on the supply of residential land in the County. When viewed collectively, the changes made by the Board of County Commissioners to the FLUM during the Amendment Cycle have not been shown to have resulted in any appreciable increase in the supply of residential land in the County as a whole. That is not to say, however, that the Board's actions did not serve to increase the supply of residential land in certain areas of the County. For instance, by virtue of its approval of Applications 40 and 47, the Board added to the supply of residential land on the urban fringe in Study Area G and Study Area I, respectively. Following its vote on each of the pending applications, the Board adopted Ordinance No. 90-28, which amended the CDMP in a manner consistent with Board's actions on these applications. (The CDMP, as so amended, will be referred to as the "1990 CDMP." Ordinance No. 90-28 will be referred to as the 1990 Plan Amendment.) The CDMP, as Amended by Ordinance No. 90-28: Key Provisions Statement of Legislative Intent The 1990 CDMP contains a Statement of Legislative Intent. It provides as follows: This Statement expresses the legislative in- tent of the Board of County Commissioners with regard to the Comprehensive Development Master Plan (CDMP). This statement is applicable to the CDMP in its entirety and is declared to be incorporated by reference into each element thereof. Nothing in the CDMP shall be construed or applied to constitute a temporary or permanent taking of private property or the abrogation of vested rights as determined to exist by the Code of Metropolitan Dade County, Florida. The CDMP shall not be construed to preempt considerations of fundamental fairness that may arise from a strict application of the Plan. Accordingly, the Plan shall not be deemed to require any particular action where the Plan is incomplete or internally inconsistent, or that would constitute a taking of private property without due process or fair compensa- tion, or would deny equal protection of the laws. The CDMP is intended to set general guide- lines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. The CDMP contains long-range policies for Dade County. Numerous policies contained in the CDMP must be implemented through the County's land development regulations. Neces- sary revisions will be made to the County's land development regulations by the date required by Section 163.3202, FS. Other policies of the plan propose the establishment of new administrative programs, the modifica- tion of existing programs, or other administra- tive actions. It is the intent of Dade County that these actions and programs be initiated by the date that Dade County adopts its next Evaluation and Appraisal (EAR) report, unless another date is specifically established in the Plan. The CDMP is not intended to preempt the processes whereby applications may be filed for relief from land development regulations. Rather, it is the intent of the Board of County Commissioners that such applications be filed, considered and finally determined, and that administrative remedies exhausted, where a strict application of the CDMP would contravene the legislative intent as expressed herein. The Board recognizes that a particular application may bring into conflict, and neces- sitate a choice between, different goals, prior- ities, objectives, and provisions of the CDMP. While it is the intent of the Board that the land use element be afforded a high priority, other elements must be taken into consideration in light of the Board's responsibility to pro- vide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. The term "shall" as used in the CDMP shall be construed as mandatory, subject, however, to this Statement of Legislative Intent. The term "should" shall be construed as directory. The FLUM The FLUM is an integral part of the 1990 CDMP's future land use element. It shows the proposed distribution, extent and location of permitted land uses for the entire land area of Dade County and, in so doing, reflects the CDMP's goals, policies and objectives, to the extent possible. In addition to a year 2000 UDB, the FLUM also has a year 2010 Urban Expansion Area Boundary. There are 18 land use categories represented on the FLUM: estate density residential communities; low density residential communities; low-medium density residential communities; medium density residential communities; medium-high density residential communities; high density residential communities; industrial and office; restricted industrial and office; business and office; office/residential; institutional and public facility; parks and recreation; agriculture; open lands; environmental protection; environmentally protected parks; transportation; and terminals. The FLUM also depicts activity centers, expressways, major and minor roadways, levees, canals and other bodies of water. The following advisement is set forth on the face of the FLUM: This plan map is not a zoning map! Within each map category on this plan map, numerous land uses, zoning districts and housing types may occur. This plan map may be interpreted only as provided in the plan text entitled "Inter- pretation of the Land Use Plan Map: Policy of the Land Use Element." That text provides necessary definitions and standards for allow- able land uses, densities or intensities of use for each map category and for interpretation and application of the plan as a whole. That text must be interpreted in its entirety in interpreting any one plan map category, and no provision shall be used in isolation from the remainder. The land use plan map (LUP), in conjunction with all other adopted components of the Com- prehensive Development Master Plan (CDMP), will govern all development-related actions taken or authorized by Metropolitan Dade County. The LUP Map reflects municipal land use policies adopted in municipal comprehen- sive plans. However, this plan does not supersede local land use authority of incor- porated municipal governments currently auth- orized in accordance with the Metro-Dade Charter. For further guidance on future land uses authorized within incorporated municipal- ities, consult the local comprehensive plan adopted by the pertinent municipality. The Interpretative Text That portion of the 1990 CDMP entitled "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" (Interpretive Text) provides in pertinent part as follows with respect to the residential land use categories shown on the FLUM: Residential Communities The areas designated Residential Communities on the LUP map permit housing types ranging from detached single-family to attached multi- family structures including manufactured housing and mobile home parks. The residen- tial communities designations indicate the overall residential density for the area. Also permitted in residential communities, in keeping with the Plan's objectives and poli- cies, are secondary neighborhood and community serving uses such as schools, parks, and houses of worship. Some additional uses such as day care centers, foster care and group housing facilities and similar uses, and neighborhood serving institutional and utility uses may also be permitted in residential com- munities in keeping with the circumstances and conditions outlined in this section, and with the objectives and policies of this plan. * * * The Land Use Plan Map includes six residential density categories which are depicted on the Plan map by different symbols/colors. Each category is defined in terms of its maximum allowable gross residential density. Develop- ment at lower than maximum density is allowed and may be required where conditions warrant. For example, in instances where a large portion of the "gross residential acreage" is not a part of the "net" residential building area, the necessity to limit the height and scale of the buildings to that compatible with the sur- rounding area may limit the gross density. The categories do not have a bottom limit or min- imum required density; all categories include the full range of density from one dwelling unit per five acres up to the stated maximum for the category. . . . Estate Density. This density range is typi- cally characterized by detached estates which utilize only a small portion of the total par- cel. Clustering, and a variety of housing types may, however, be authorized. The maxi- mum density allowed in this category is 2.5 dwelling units per gross acre. Low Density. A larger number of units is allowed in this category than in the Estate density. The maximum density allowed is 6 dwelling units per gross acre. This density category is generally characterized by single family type housing, e.g., single family detached, cluster, zero lot line, and town- houses. It could possibly include low-rise apartments with extensive surrounding open space providing that the maximum gross den- sity is not exceeded. Low-Medium Density. This category allows up to 13 dwelling units per gross acre. The types of housing typically found in areas designated low-medium density include single family homes, townhomes, and low-rise apart- ments. Medium Density. This Density Category allows up to 25 dwelling units per gross acre. The type of housing structures typically permitted in this category include townhouses, low-rise and medium rise apartments. Medium-High Density. This category accommo- dates apartment buildings ranging up to 60 dwelling units per gross acre. In this cate- gory, the height of buildings, and therefore, the attainment of densities approaching the maximum, depends to a great extent on the dimensions of the site, conditions such as location and availability of services, ability to provide sufficient off-street parking, and the compatibility with, and impact of the development on surrounding areas. High Density. This category permits up to 125 dwelling units per gross acre. This den- sity is only found in a few areas located within certain municipalities where land costs are very high and where services will be able to meet the demands. * * * Traditional Neighborhood Developments (TNDs). Traditional neighborhood developments which incorporate a broad mixture of uses under specific design standards may also be ap- proved in Residential Communities in the manner specifically authorized in this sub- section. The purpose of the traditional neighborhood development is to enable the creation of new communities that offer social and architectural quality, characteristic of early American town planning. Many of these early models, developed prior to 1940, offer insight into the design of coherently planned communities. The concept is patterned after those inherent in these earlier developments and provides a design clarity through a hierarchy of streets, a focus towards pedes- trian activity, low scale community buildings and open squares as the focal point of the neighborhood. The County shall adopt land use regulations that incorporate the objectives of a traditional neighborhood development concept. . . 28/ Within areas designated on the LUP map as Res- idential Communities, a mixed use Traditional Neighborhood Development permitting business, office, industrial, artisanal, home occupa- tions, and other uses authorized by this subsection may be approved providing that the following criteria are met: The minimum contiguous land area is 40 acres and is not located within the Estate density category; and The site is under single-ownership at the time the master development plan or equivalent is approved; and Residential density does not exceed the density depicted on the Land Use Plan Map, except that a maximum density of ten dwelling units per acre may be approved in the Low Density category; and Public open spaces such as squares or parks comprise a minimum of five acres or five percent of the developed area, whichever is greater; and Civic uses, such as meeting halls, schools, day care centers and cultural facilities com- prise a minimum of two percent of the developed area; and Business, office and industrial uses, that are separate from residential mixed uses do not exceed seven percent of the gross land area; and Where the TND borders or is adjacent to land that is designated Estate, Low Density or Low-Medium Residential and land so designated is used for residences or is vacant, the sep- arate business, office, and industrial uses identified in item No. 6 above, and those business, office, and industrial uses mixed with other uses shall not be permitted within 175 feet of the TND boundary and all non-residential components of such uses shall be acoustically and visually screened from said bordering or adjacent land; and when a TND borders land designated Agriculture or Open Land said business, office or industrial uses shall not be permitted within 330 feet of said TND boundary; and Residential, and residential uses mixed with shop-front, artisanal and home occupation uses comprise the remainder of the developed area; and In calculating gross residential density uses listed in item No. 6 shall be excluded, all other uses may be used to determine the maximum permitted density. The Interpretive Text provides that, with respect to the "office/residential" land use category, "[u]ses allowed in this category include both professional and clerical offices and residential uses." The following is stated in the Interpretative Text in pertinent part with respect to the "agriculture" land use category: Agriculture The area designated as "Agriculture" contains the best agricultural land remaining in Dade County. 29/ The principal uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture such as packing houses on compatible sites, and farm residences. Uses ancillary to, and necessary to support the rural residential community of the agricultural area may also be approved, including houses of worship and local schools. In order to protect the agricultural industry it is important that uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed in this area. Residential development that occurs in this area is allowed at a density of no more than one unit per five acres. 30/ Creation of new parcels smaller than five acres for residential use may be approved in the Agriculture area only if the immediate area surrounding the subject parcel on three or more sides is predominantly parcelized in a similar manner, and if a division of the sub- ject land would not precipitate additional land division in the area. No business or industrial use should be approved in the area designated Agriculture unless the use is directly supportive of local agricultural production, is located on an existing arterial roadway, and has adequate water supply and sewage disposal in accordance with Chapter 24 of the County Code, and the development order specifies the approved use(s). Other uses compatible with agriculture and with the rural residential character may be approved in the Agriculture area only if deemed to be a public necessity, or if deemed to be in the public interest and no suitable site for the use exists outside the Agriculture area. Existing quar- rying and ancillary uses in the Agriculture area may continue operation and be considered for approval of expansion. Also included in the Agriculture area are enclaves of estate density residential use approved and grandfathered by zoning, owner- ship patterns and platting activities which predate this Plan. The grandfather provisions of Sections 33-196, 33-280, and 33-280.1 of the Dade County Code shall continue to apply to this area except that lots smaller than 15,000 square feet in area are not grandfathered hereby. Moreover, all existing lawful uses and existing zoning are deemed to be consistent with this Plan unless such a use or zoning: (a) is found through a subsequent planning study, as provided in Land Use Policy 5D, to be inconsistent with the foregoing grandfather provisions or with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as deter- mined by the Code of Metropolitan Dade County, Florida. . . . Also deemed to be consistent with this Plan are uses and zoning districts which have been approved by a final judicial decree which has declared this Plan to be invalid or unconstitutional as applied to a specific piece of property. This paragraph does not, however, authorize the approval or expansion of any use inconsistent with this plan. To the contrary it is the intent of this Plan to contain and prevent the expansion of inconsistent development in the Agriculture area. Activity centers are described in the Interpretative Text as "high- intensity design unified areas which will contain a concentration of different urban functions integrated both horizontally and vertically." The Interpretative Text contains the following discussion regarding the UDB: Urban Development Boundary The Urban Development Boundary (UDB) is in- cluded on the LUP map to distinguish the area where urban development may occur through the year 2000 from the areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2000 provided that level-of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by expanding the UDB when the need for such expansion is deter- mined to be necessary through the Plan review and amendment process. The CDMP seeks to facilitate the necessary service improvements within the UDB to accom- modate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infra- structure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be per- mitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. The entire unincorporated area within the UDB is eligible to receive and utilize Severable Use Rights (SURs) in accordance with provi- sions of chapter 33-B, Code of Metropolitan Dade County. Accordingly, certain developments as specified in Chapter 33-B may be entitled to density or floor area bonuses as authorized by Chapter 33-B. No new commercial agricultural use of property may be established within the Urban Development Boundary, except on property designated Agri- culture on the LUP map or zoned AU (agricultural) or GU (interim). 31/ All property within the Urban Development Boundary not designated Agri- culture or zoned AU or GU shall not be permit- ted to be used for the establishment of any new commercial agricultural use. An additional exception is that land in utility easements or rights-of-way may be approved for new commercial agricultural uses where the use would be compat- ible with, and would have no unfavorable effect on, the surrounding area. Commercial agricultural uses include, without limitation, all uses of property associated with commercial horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; apiculture; pisciculture, when the property is used principally for the production of tropical fish; all forms of farm production; and all other such uses, except retail nurseries and retail greenhouses. Inci- dental agricultural use of property specifi- cally authorized by zoning which is otherwise consistent with the LUP map does not constitute commercial agriculture within the meaning of this provision. The Urban Expansion Area is described as follows in the Interpretative Text: The Land Use Map also contains a year 2010 Urban Expansion Area (UEA) Boundary. The UEA is comprised of that area located between the 2000 UDB and the 2010 UEA Boundary. The Urban Expansion Area is the area where cur- rent projections indicate that further urban development beyond the 2000 UDB is likely to be warranted some time between the year 2000 and 2010. Until these areas are brought within the year 2000 UDB through the Plan review and amendment process, they are allowed to be used in a manner consistent with the provisions set forth for lands designated as "Agriculture" or the applicable "Open Land" area. Urban infrastructure and services should be planned for eventual extension into the UEA, sometime between the years 2000 and 2010. However, if water or sewer lines or major roadway improvements are extended beyond the UEA in order to serve a necessary public facility that has been approved consistent with the Comprehensive Development Master Plan, these improvements should be sized or restric- ted to accommodate only the needs of the public facility. The significance of the UDB and UEA Boundary is explained in the Interpretative Text as follows: Critical in achieving the desired pattern of development is the adherence to the 2000 Urban Development Boundary (UDB) and 2010 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that actions of one single-purpose agency does not foster development that could cause other agencies to respond in kind and provide facil- ities in unanticipated locations. Such uncoor- dinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. The subject of plan amendments is also addressed in the Interpretative Text, which states the following on the subject: It is recognized that the development capacity of the area within the UDB and UEA will vary with time. Part of the supply will be util- ized and additional supply will be added from time-to-time through the approval of Plan Amendments. Some land will be built upon at densities which are higher than permitted by existing zoning because rezonings will occur in the future, and some development will occur at densities lower than that permitted by zoning. Moreover, impediments can arise to the utilization, at maximum potential densities, of all lands within the boundaries. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density or character of a particular area. Because the development capacity of the LUP map fluc- tuates with time, it will be reevaluated on a periodic basis as part of the Plan review and amendment process. The Interpretative Text enumerates the following as the "long- standing concepts embodied in Dade County's CDMP:" Control the extent and phasing of urban development in order to coordinate development with programmed provision of public services. Preserve and conserve land with valuable environmental characteristics, recreation uses, or scenic appeal. Encourage development in areas most suit- able due to soil conditions, water table level, vegetation type, and degree of flood hazard. Restrict development in particularly sensitive and unique natural areas. Maximize public ownership of beaches and shorelands within the Coastal Area to insure their preservation, conservation or public use. Minimize consumption of energy for trans- portation purposes and the amount of air pol- lution from transportation sources by encour- aging a more compact urban form. Shape the pattern of urban development to maximize the efficiency of existing public facilities and support the introduction of new public facilities or services such as improved mass transit systems. Preserve sound and stable residential neighborhoods. Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling, and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and char- acter to provide economies of scale and effi- ciencies of transportation and other services for both the public and private sectors. Redirect higher intensity development towards activity centers of areas of high countywide accessibility. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. Prohibit new residential development and other noise sensitive activities from locations near airport noise impact zones. Avoid excessive scattering of industrial or commercial employment locations. Encourage agriculture as a viable economic use of suitable lands. The Goal and Selected Objectives and Policies of the Future Land Use Element The following is the goal of the future land use element (FLUE) of the 1990 CDMP: Provide the best possible distribution of land use, by type and density, to meet the physical, social, cultural and economic needs of the present and future resident and tourist popu- lation in a manner that will maintain or improve the quality of the natural and man-made environ- ment and amenities, and ensure the timely and efficient provision of services. The following are among the objectives and policies found in the 1990 CDMP's FLUE: Objective 1 Decisions regarding the location, extent and intensity of future land use in Dade County, and urban expansion in particular, will be based upon the physical and financial feasi- bility of providing, by the year 2000, all urbanized areas with services at Levels of Service (LOS) which meet or exceed the minimum adopted in the Capital Improvements Element. Policies 1A. All development orders authorizing new, or significant expansion of existing urban lands uses, shall be contingent upon the pro- vision of services at the Levels of Service (LOS) which meet or exceed the LOS standards specified in the Capital Improvements Element (CIE). Metro required by Chapter 163.3202, Florida Statutes (F.S.), implement the requirements of Section 163.3202(2)(g), F.S. 1B. Priority in the provision of services and facilities and the allocation of financial re- sources for services and facilities in Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in allocations for services and facilities shall support the staged development of the Urban Expansion Area (UEA). * * * Objective 3 The location and configuration of Dade County's urban growth from 1989 through the year 2010 shall emphasize concentration around centers of activity, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Policies 3A. High intensity, well designed activity centers shall be facilitated by Metro-Dade County at locations having high countywide multimodal accessibility. * * * 3C. Metro-Dade shall approve infill devel- opment on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facili- ties are projected to have capacity to accom- modate additional demand. 3D. Metro-Dade shall seek to prevent discon- tinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its biennial CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. * * * 3H. Public facility and service providers shall give priority to eliminating any infra- structure deficiencies which would impede rehabilitation or renewal of blighted areas. 3I. In formulating or amending development regulations, Dade County shall avoid creating disincentives to redevelopment of blighted areas. Where redevelopment occurs within the urban area, requirements for contributions toward provision of public facilities may be moderated where underutilized facilities or surplus capacities exist, and credit toward required infrastructure contributions may be given for the increment of development replaced by redevelopment. * * * Objective 5 Dade County shall, by the year 2000, reduce the number of land uses which are inconsistent with the uses designated on the LUP map and interpretative text, or with the character of the surrounding community. Policies 5A. Uses designated on the LUP map and inter- pretative text, which generate or cause to generate significant noise, dust, odor, vibra- tion, or truck or rail traffic, shall be pro- tected from damaging encroachment by future approval of new incompatible uses such as residential uses. 5B. Residential neighborhoods shall be pro- tected from intrusion by uses that would disrupt or degrade the health, safety, tran- quility and overall welfare of the neighbor- hood by creating such impacts as excessive noise, light, glare, odor, vibration, dust, or traffic. 5C. Complementary, but potentially incompat- ible uses shall be permitted on sites with functional neighborhoods, communities or dis- tricts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Objective 6 Upon the adoption of this plan, all public and private activity regarding the use, development and redevelopment of land and the provision of urban services and infrastructure shall be consistent with the goal, objectives and poli- cies of this Element, with the adopted Population Estimates and Projections, and with the future uses provided by the adopted Land Use Plan (LUP) map and accompanying text entitled "Interpreta- tion of the Land Use Plan Map," as balanced with the Goals, Objectives and Policies of all Ele- ments of the Comprehensive Plan. Policies 6A. The textual material entitled "Interpre- tation of the Land Use Plan Map" contained in this Element establishes standards for allowable land uses, and densities or intensities of use for each land use category identified on the adopted Land Use Plan (LUP) map, and is declared to be an extension of these adopted Land Use Policies. 6B. All development orders authorizing a new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goal, objectives and poli- cies of the CDMP including the adopted LUP map and accompanying "Interpretation of the Land Use Plan Map." 6C. All planning activities pertaining to development and redevelopment in Dade County shall be consistent with the "Population Esti- mates and Projections" contained in this Element, and with the locations and extent of future land uses as identified by the LUP map and its interpretative text. 6D. The area population projections shown on the map of "Population Estimates and Projec- tions" shall be used to guide public and private entities in planning for urban devel- opment and redevelopment and to guide the location, timing, and capacity of all urban services and facilities. Objective 7 Beginning in 1989 Dade County shall maintain a process for periodic amendment to the Land Use Plan map, consistent with the adopted Goals, Objectives and Policies of this Plan, which will provide that the Land Use Plan Map accommodates urban expansion at projected countywide rates. Policies 7A. Activity centers, industrial complexes, regional shopping centers, large-scale office centers and other concentrations of signifi- cant employment shall be recognized as poten- tial structuring elements of the Metropolitan area and shall be sited on the basis of metro- politan-scale considerations at locations with good countywide multi-modal accessibility. 7B. Distribution of neighborhood or community serving retail sales uses and personal and pro- fessional offices throughout the urban area shall reflect the spatial distribution of the residential population, among other salient social, economic and physical considerations. 7C. Residential development shall occur in locations that are suitable as reflected by such factors as the following: recent trends in location and design of residential units; projected availability of service and infra- structure capacity; proximity and accessi- bility to employment, commercial and cultural centers; avoidance of natural resource degra- dation; and maintenance or creation of amenities. 7D. In conducting its planning, regulatory, and capital improvements and intergovernmental coordination activities, Dade County shall seek to facilitate planning of residential areas as neighborhoods which include recrea- tional, educational and other public facilities, houses of worship, and safe and convenient cir- culation of automotive, pedestrian and bicycle traffic. 7E. Through its planning, regulatory, capital improvements and intergovernmental coordination activities, Dade County shall continue to pro- tect agriculture as a viable economic use of land in Dade County. * * * 7G. Necessary utility facilities may be lo- cated throughout Dade County in all land use categories as provided in the "Interpretation of the Land Use Plan Map" text. 7H. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstra- ted to be viable. 7I. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Ob- jectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at adopted LOS standards. Be compatible with abutting and nearby land uses; and Enhance or degrade environmental or histor- ical resources, features or systems of County significance. Objective 8 Dade County shall continue to maintain in the Code of Metropolitan Dade County and adminis- trative regulations, and shall enhance as nec- essary, by the date required by Section 163.3203, F.S., provisions which ensure that future land use and development in Dade County is consistent with the CDMP. * * * 8D. Dade County shall continue to investigate, maintain and enhance methods, standards and reg- ulatory approaches which facilitate sound com- patible mixing of uses in projects and communi- ties. 8E. Dade County shall enhance and formalize its standards for defining and ensuring compatibility among proximate uses, and requirements for buffer- ing. Factors that will continue to be considered in determining compatibility include, but are not limited to noise, lighting, shadows, access, traffic, parking, height, bulk, landscaping, hours of operation, buffering and safety. Objective 9 Energy efficient development shall be accom- plished through metropolitan land use patterns, site planning, landscaping, building design, and development of multimodal transportation systems. Policies 9A. Dade County shall facilitate contiguous urban development, infill, redevelopment of substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed use projects to promote energy conservation. Selected Goals, Objectives and Policies of Other Elements The following is the goal of the 1990 CDMP's traffic circulation element: Develop, operate and maintain a safe, efficient and economical traffic circulation system in Metropolitan Dade County that provides ease of mobility to all people and for all goods, is consistent with desired land use patterns, conserves energy, and protects the natural environment. Policy 4C. of the traffic circulation element provides as follows: Dade County's priority in construction, main- tenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan Map. Second priority in transportation allocations shall support the staged develop- ment of the urbanizing portions of the County within the Urban Expansion Area. Transporta- tion improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. The following are among the objectives and policies of the 1990 CDMP's aviation subelement: Objective 4 Minimize air space interactions and obstruc- tions to assure the safety of aviation users and operators and residents of Dade County. Policies * * * 4D. Support zoning that would protect exis- ting and proposed aviation flight paths con- sistent with federal agency guidelines. 4E. Seek federal agency cooperation in pro- tecting future air space from development obstructions. * * * Objective 8 Maximize compatibility between airports and the surrounding communities. Policies * * * 8B. Dade County shall implement Federal Aviation Administration FAR Part 150 Noise Compatibility Studies completed for appro- priate airports through the Land Use Element of the Dade County Comprehensive Master Plan, the Dade County Zoning Ordinance, and the South Florida Building Code to provide for land use compatibility in the vicinity of these air- ports. Objective 6 and Policy 6A. of the 1990 CDMP's housing element provide as follows: Objective 6 Increase residential accessibility to public facilities, services, and employment centers throughout the County to include parks and other recreational amenities. Policies 6A. Utilize existing planning and programming mechanisms to insure that new residential devel- opment occurs only if it is coordinated with plans for the provision of an adequate level of services and facilities. Policy 6C. of the 1990 CDMP's conservation, aquifer recharge and drainage element provides as follows: Areas in Dade County having soils with good potential for agricultural use without addi- tional drainage of wetlands shall be protected from premature urban encroachment until the need for such urban conversion is demonstrated. Objective 1 and Policy 1A. of the 1990 CDMP's water, sewer and solid waste element provide as follows: Objective 1 In order to serve those areas where growth is encouraged and discourage urban sprawl, the County shall plan and provide for potable water supply, sanitary sewage disposal, and solid waste disposal services on a countywide basis in concert and in conformance with the future land use element of the comprehensive plan. Policies 1A. The area within the Urban Development Boundary of the adopted Land Use Plan Map shall have the first priority in providing potable water supply, sanitary sewage disposal, and solid waste disposal services, and for commit- ting financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Space, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health or safety. Objectives 3, 4 and 5 and Policies 3B., 4A., 4B. and 5A. of the 1990 CDMP's capital improvements element provide as follows: Objective 3 Upon adoption of this Plan land use decisions will be made in the context of available fiscal resources such that scheduling and providing capital facilities for new development will not degrade adopted service levels. Policies * * * 3B. Service and facility impacts of new de- velopment must be identified and quantified so that sufficient public facilities will be planned and programmed to be available when needed. All development orders authorizing new, or significant expansion of existing urban land uses, shall be contingent upon the provision of services at the Levels of Service (LOS) which meet or exceed the adopted LOS standards. * * * Objective 4 Levels of service standards for those services listed in the CIE will be upgraded and main- tained at adopted levels. Policies 4A. By the date set in Section 163.3202 F.S., Dade County shall formalize requirements that all new development regardless of size which benefits from the provision of public facili- ties and infrastructure will bear an equitable share of the costs of such facilities, make contribution in kind or transfer land, in amounts necessary to accommodate the impact of proposed development. 4B. Appropriate funding mechanisms will be adopted and applied by Dade County in order to assure the fiscal resources to maintain acceptable levels of service. Such funding mechanisms include special tax districts, municipal taxing service units, local option taxes, user fees, local gas taxes, general obligation bonds, impact fees, and special purpose authorities among others. * * * Objective 5 Upon the adoption of this plan development approvals will strictly adhere to all adopted growth management and land development regu- lations and will include specific reference to the means by which public facilities and infrastructure will be provided. Policies 5A. As a priority, previously approved de- velopment will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban ser- vices and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service localized needs. This element also includes a five-year schedule of capital improvements. Transmittal of Plan Amendment to the Department On or about April 3, 1990, the County Manager transmitted to the Department Ordinance No. 90-28, along with other documentation, including the written material that the Suchmans had submitted in support of their application, as well as a document prepared by the Planning Department which purported to provide "a synopsis of the information received by the Board of County Commissioners as bases for approving the applications subject to DCA objections." The Planning Department's synopsis stated the following with respect to Applications 39, 40 and 47: Application No. 39 The flight path for training flights around Tamiami-Kendall Airport circle around this application site but do not directly fly over this site. This application represents urban infill rather than leap frog development. Approval of residential use on this site will allow people to live in close proximity to the employment center around the Tamiami-Kendall Airport. Application No. 40 The site will be used for a Traditional Neighborhood Development (TND). A covenant was provided to ensure this. Services are available on sites immediately to the east. The area is not flood prone, or environmen- tally sensitive in any way. Extensive testimony and documentation was received which casts doubt on the accuracy of the Planning Department's estimates and pro- jections of growth in this area. (See enclosed exhibits). This site is nearby the industrial and office employment center which is developing around the Tamiami-Kendall Airport, therefore, urbanization of this site complements and supports the policy of promoting development around activity centers. The extension of the Coral Reef Drive corridor provides an alternative to the Kendall Drive corridor as a location for additional urban development. * * * Application 47 The site is bordered on the east and south by the year 2000 Urban Development Boundary (UDB). It is in the logical path of future urban development. To the south is the urban- izing area of Homestead. Pockets of estate residential homes and zoning exist in the area designated Agricul- ture to the north and west of this site. There are not level of service problems in the area. The area is not flood prone. The specific density of estate residences to be built on this site is not established by approving the CDMP amendment; that will be decided at a future zoning hearing. The transmittal package sent by the County Manager was received by the Department on April 6, 1990. Suchmans' Request to Receive Notice of the Department's Action By letter dated March 30, 1990, David Goldwich, Esquire, counsel for the Suchmans, requested that the Department send him a copy of the "notice of intent to find the CDMP Application No. 40 in compliance or not in compliance with Chapter 163." The Department responded to Goldwich's letter by sending him a letter, dated April 17, 1990, in which it promised to provide him with a copy of the notice of intent when it was issued. The Department's Compliance Determination: Notice and Statement of Intent In reviewing the County's 1990 Plan Amendment, the Department treated each approved application as a separate amendment to the CDMP. Following its review of these approved applications, the Department issued its notice of intent "to find the amendment(s) adopted by Ordinance 90- 28, Amendment Nos. 39, 40 and 47 NOT IN COMPLIANCE and Amendment Nos. 1 to 9, 11 to 16, 19, 22 to 24, 26 to 29, 44 to 46, 49, 51, 53 and 55 to 71 IN COMPLIANCE, pursuant to Sections 163.3184 and 163.3187, F.S." On or about May 15, 1990, the Department sent a copy of the notice of intent to the Miami Herald, along with a letter requesting that the notice be published in the May 21, 1990, edition of the Herald. Through no fault of the Department's, the notice was published in the May 24, 1990, edition of the Herald, instead of the May 21, 1990, edition as the Department had requested. The Department mailed a copy of the notice of intent to the Suchmans' counsel, 32/ although it was never received. By letter dated May 18, 1990, to Mayor Clark, the Department advised the County of its compliance determination. On May 21, 1990, the Department issued a statement of intent in which it explained the bases for its determination that "Amendment Nos. 39, 40 and 47 [were] NOT IN COMPLIANCE." In its statement of intent, the Department alleged that "Amendments 40 and 47 are not supported by an adequate suitability analysis of the vacant land to which they apply, or an adequate analysis documenting the need for the UDB expansion [in violation of] Rules 9J-5.005(2)(a), 9J- 5.006(2)(b) and 9J-5.006(2)(c), F.A.C.;" "Amendments 40 and 47 are inconsistent with other provisions in the plan (including but not limited to Objectives 1, 3 and 7, Policies 1A, 1B, 3D, and 7G and implementing procedures on p. 33 and 34 of the Future Land Use Element) concerning discouraging urban sprawl and prioritizing public facilities within the UDB [in violation of] Rules 9J- 5.005(5)(a), 9J-5.006(3)(b)7. and 9J-5.011(2)(b)3., F.A.C.;" "Amendments 40 and 47 are inconsistent with Objective 7, Policies 7E, H and I, and implementing procedures on p. 34 and 35 of the Future Land Use Element, and other provisions of the plan concerning future expansion of the UDB [in violation of] Rules 9J- 5.005(5)(a) and (b), F.A.C.;" "Amendments" 40 and 47 result in "an internal inconsistency because [they] negate the intended effect [of the settlement agreement between the Department and the County] of allowing roadway degradation in existing urban areas, which is to encourage development and redevelopment in such areas, promote public transportation and discourage urban sprawl" and, consequently, these amendments are in violation of "Rules 9J-5.006(3)(b)7. and 9J-5.011(3)(b)3., F.A.C.;" "[A]mendments 40 and 47 are not supported by data analysis which justifies changing the agricultural land use to industrial or residential land use [in violation of] Rules 9J-5.005(2)(a) and 9J-5.006(2)(c), F.A.C.;" "Amendment" 39 "inappropriately places a residential area within a proposed aviation flight path which is inconsistent with Objective 4 and Policy 4D in the Port and Aviation Element of the Dade Comprehensive Plan [in violation of] Rules 9J-5.005(5)(a) and (b), 9J-5.006(3)(b)3. and 9J- 5.006(3)(c)2., F.A.C.; "Amendments" 40 and 47 cause the CDMP to be inconsistent with Goal (16)(a) and Policies (16)(b)(2) and 18(b)(1) of the State Comprehensive Plan, as well as Policies 57.1.2 and 69.1.1 of the South Florida Regional Policy Plan; and "Amendment" 39 causes the CDMP to be inconsistent with Policy 69.1.1 of the South Florida Regional Policy Plan. Referral to the Division: The Department's Petition and Amended Petition On June 8, 1990, the Department filed a petition with the Division of Administrative Hearings. Appended to the petition were copies of the Department's notice of intent and its statement of intent. The Department alleged in the petition that the "plan amendments" made by the County through the adoption of Ordinance No. 90-28 were: not in compliance because they contain the "inconsistent provisions" described in the Statement of Intent and for the following additional reasons: Amendment 39 is inconsistent with Objec- tives 5, 6 and 7 and Policies 5B, 7C, 7D, and 7I-3 of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (6), F.A.C. Amendment 40 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objectives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D of the plan's Future Land Use Element. On June 19, 1990, the Department filed an amended petition with the Division. That portion of the original petition excerpted above was modified to read as follows in the amended petition: The plan amendments are not in compliance because they contain the "inconsistent provisions" de- scribed in the Statement of Intent and for the following additional reasons: Amendment 40 is inconsistent with Objec- tives 5 and 6, and Policies 5B, 7A, 7B, 7C, and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7C and 7D of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (b). Amendments 40 and 47 are inconsistent with the following provisions of the State Comprehensive Plan: Land Use Goal (16)(a) and Policies (16)(b)1 and 2; Downtown Revitalization Goal (17)(a) and Policy (17)(b)1; Public Facilities Goal (18)(a) and Poli- cies (18)(b)1 and 2; Economy Policies (22)(b) 3 and 12; Agriculture Goal (23)(a). The Objectors' Petition for Leave to Intervene and Rist's Amended Petition On June 26, 1990, the Objectors filed with the Division a joint petition for leave to intervene in this matter. The petition incorporated the allegations that the Department had made in the original petition it had filed with the Division, as well as the recommendations that the Dade County Planning Department had made with respect to Applications 39, 40 and 47. In addition, the Objectors alleged the following in their petition regarding these approved applications: [S]aid amendments 39, 40, and 47 are inconsis- tent with the State Comprehensive Plan, Sec- tion 187.201, F.S., specifically subsections 16a, 16b1, 16b2, 17a, 17b1, 18a, 18b1, 18b2, 20a, 22b3, 22b12, and 23a. Briefly put, the amendments fail, inter alia, to preserve natural resources; fail to maintain and expand agriculture; fail to encourage the separation of rural and urban life; provide for incompatible neighboring uses; promote urban sprawl; waste public and private assets; and fail to aid in a state transpor- tation system. * * * The amendments are not supported by data showing a need for the uses approved [and] thus violate Rule 9J-5.006(2)(c), Florida Administrative Code. On December 10, 1990, at the outset of the final hearing in the instant case, Objector Rist requested permission to file an amended petition which contained the following additional allegations not found in the Objectors' joint petition for leave to intervene: Amendments 40 and 47 do not reflect and are inconsistent with "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" pages I-35 through 39 and not pages 33 through 35 of the Future Land Use Element as erroneously cited in the original petition. It is alleged that amendment 40 and 47 do not reflect and are inconsistent with Policies 3A, 3H, 5A, and 7A of the Future Land Use Element of the Comprehensive Plan. Amendments 39, 40 and 47 do not reflect and are inconsistent with Policy 6C of the Con- servation Element of the Comprehensive Plan. Amendment 39 does not reflect and is incon- sistent with Objective 8 of the Ports and Avia- tion Element of the Comprehensive Plan. Amendments 40 and 47 are inconsistent with Policy 23(b)2 of the State Comprehensive Plan. Miscellaneous Findings: The State Comprehensive Plan The State Comprehensive Plan addresses issues of statewide importance. The following are among the more than 300 individual goals and policies which comprise the State Comprehensive Plan: LAND USE.- Goal.- In recognition of the importance of preserving the natural resources and enhanc- ing the quality of life of the state, develop- ment shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies.- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives, and disin- centives which encourages a separation or urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. * * * DOWNTOWN REVITALIZATION.- Goal.- In recognition of the importance of Florida's developing and redeveloping down- towns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient and environmentally accept- able manner, Florida shall encourage the cen- tralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. * * * PUBLIC FACILITIES.- Goal.- Florida shall protect the sub- stantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.- Provide incentives for developing land in a way that maximizes the uses of existing pub- lic facilities. Promote rehabilitation and reuse of exis- ting facilities, structures, and buildings as an alternative to new construction. * * * (20) TRANSPORTATION.- (a) Goal.- Florida shall direct future trans- portation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass tran- sit, and other transportation modes. * * * THE ECONOMY.- Goal.- Florida shall promote an economic climate which provides economic stability, max- imizes job opportunities, and increases per capita income for its residents. Policies.- * * * Maintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resour- ces. * * * 12. Encourage the development of a business climate that provides opportunities for the growth and expansion of existing state indus- tries, particularly those industries which are compatible with Florida's environment. * * * AGRICULTURE.- Goal.- Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and re- lated industries in order to be a healthy and competitive force in the national and inter- national marketplace. Policies. Ensure that goals and policies contained in state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. Encourage diversification within the agri- culture industry, especially to reduce the vulnerability of communities that are largely reliant upon agriculture for either income or employment. Miscellaneous Findings: The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Regional Plan for South Florida to guide future development in Broward, Dade and Monroe Counties. The following are among the more than 650 individual goals and policies found in the Regional Plan: Regional Goal: 57.1 New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot economic- ally be provided. Regional Policies: * * * 57.1.2 Give priority to development in areas that are in need of redevelopment and in areas within which adequate support services are either programmed or available Regional Goal: 58.1 Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of land uses on the surrounding environment. Regional Policies: * * * 58.1.7 Encourage the compatibility of adja- cent land uses. * * * Regional Policies: 64.2.1 Land use in and around air- and sea-ports must be strictly controlled to allow future increased operations, to optimize volume, and to prevent unnecessary social or economic conflicts and costs. * * * Regional Goal: The 1990-1995 rate of loss of agricul- tural land to urban uses should be reduced by 10 percent from the 1980-1985 rate. Regional Policies: Encourage activities that maintain an economic/regulatory climate to ensure the con- tinued viability of agricultural interests when those interests are balanced against other concerns. The Regional Plan contains the following "background" information regarding the goal and policies pertaining to agriculture: Agriculture is one of Florida's most important industries. Traditional agriculture (citrus, vegetables and melons, livestock, poultry, greenhouse and nursery, field and other crops) contributed 27 billion dollars to Florida's economy in 1984. The agricultural vitality of South Florida stems from its climate which allows crops to be grown throughout the year, and the production of unique crops such as mangoes. In 1980, 126,785 acres of land, 4.7 percent of the total area in South Florida, was in cropland, pasture and range land, and forest land. This represents 0.5 percent of all such land in the State. Agricultural land is rapidly being lost. . . . When compared to Broward County, Dade County generates a significantly larger share of the economic activity due to agriculture in the Region. 33/ Current 1986 figures show 85,000 acres in agriculture, producing a large variety of crops. These include: tomatoes, snap beans, Irish potatoes, squash, tropical vegetables, sweet corn and fruits such as limes, mangoes and avocados. The markets for these fruits and vegetables are mainly in New York, Philadelphia, Boston, Atlanta, and Canada. Dade County is the largest producer of toma- toes, snap beans, and squash, of any county in the State of Florida. Over 90 percent of limes and mangoes produced in the United States are grown in Dade County. Dade County has the largest ornamental nursery industry of any county in the State of Florida. The main reason for Dade's success in agriculture is South Florida's climate. Vegetables are pro- duced in mid-winter when no other areas in the U.S. are producing. These crops provide fresh produce for the country's markets. It is significant to note that Dade County ranks last in the State for average farm size (59 acres) but is fifth in the State for market value of agricultural products. Agriculture is profitable on a per acre basis because the climate allows for double cropping. . . . In 1983, the agricultural industry produced less than 1 percent of total earnings in the South Florida region. The importance of this sector cannot be measured in dollar terms alone. The general public tends to view agriculture as a transitional land use. The benefits of maintaining the agricultural economy, however, are significant. Agricultural land can provide open space between areas with urban uses, it can serve as a watershed where water is collec- ted and later used in a farm or non-farm use, it can provide a habitat for wildlife, and it can provide unique beauty. New technology and agricultural practices are also providing new opportunities for disposing of sewage sludge on agricultural lands, benefitting both the rural and urban sectors. . . . Agricultural research activities have already yielded many benefits to South Florida agri- culture. Progress has been made in developing: more efficient irrigation systems, integrated pest management, improved strains of crops in production, as well as new crops to put into production. The findings of agricultural research can continue to improve the conser- vation, production, and marketing techniques available to South Florida farmers. South Florida farmers are experiencing many of the same problems that farmers in other high growth areas are facing. 34/ Land in South Florida that is suitable for agricul- tural use is also highly suitable for urban uses. Given the geographic configuration of the Florida Peninsula agricultural areas are never far removed from urban areas. Urban growth and the pressures of suburbanization are constantly felt by the Region's farmers. 35/ Many problems arise when agricultural and urban land uses interface. Non-farm residents complain because of farm noise, smells, and such practices as fertilizer and pesticide spraying. Nuisance suits and ordinances that prohibit certain farm practices create pressures that reduce the profitability and desirability to farm. 36/ Farm land conversion to urban uses is a serious problem in our Region. 37/ Analysis of prop- erty appraiser data shows the reduction in net agricultural acreage between 1980-1985 to be 18 percent for the Region. This figure applies mainly to agricultural land in Broward County. According to the Dade County Cooperative Exten- sion Service, net agricultural acreage has re- mained stable for the past 20 years. 38/ This is because land rezoned for urban uses has been replaced by other lands converted for agricul- tural use. This represents another problem. As agricultural land is converted to urban uses, agriculture may be pushed into wetlands, wild- life habitats, and other fragile ecosystems. Miscellaneous Findings: Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" as "scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leapfrog development occurs when new develop- ment is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appro- priate for urban development. * * * Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant com- munities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the loca- tion of high amounts of commercial, retail, office and often multi-family residential de- velopment in a linear pattern along both sides of major arterial roadways. * * * Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive devel- opment pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. Indicators of sprawl mentioned in the memorandum include the following: The amount of residential land and densities depicted on the future land use map signifi- cantly exceed the projected need for residen- tial land use by type during the planning period. In discussing this indicator, the memorandum advised that "[a]ny plan in which the amount of land designated to receive development totals more than 125 percent of the amount needed to accommodate projected need will be closely scrutinized by the DCA." In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it may be necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities Density per square mile: Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the specific techniques recommended in the memorandum to curb "urban sprawl" are establishing "urban service areas and urban growth boundaries," "[p]romoting urban infill development and redevelopment," and imposing "mixed-use and clustering requirements." With respect the latter technique, the memorandum states as follows: One of the most important and critical tech- niques for discouraging sprawl is strong mixed use policies which require residential and nonresidential uses to be located in reason- ably close proximity to each other. Such policies should promote an attractive, func- tionally and physically integrated mix of commercial, office, retail, residential (including affordable housing), and recrea- tional land uses. Development designed in this manner can even occur away from existing urban areas and not represent urban sprawl if it consists of a complementary mix of residen- tial and nonresidential land uses at medium to high densities, promotes high levels of inter- nal capture, does not rely on rural arterials for local traffic movements, and encourages pedestrian and bicycle traffic. The tradi- tional neighborhood development district code is an example of how this concept can be implemented.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Administration Commission enter a final order in Case No. 90-3599GM finding that Metropolitan Dade County's 1990 Plan Amendment is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of December, 1991. 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 26th day of December, 1991.
The Issue Whether an amendment to the St. Lucie County Comprehensive Plan which was adopted by ordinance number 92-029 has rendered the St. Lucie County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, St. Lucie County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenors, Brian Charboneau and Kathy Charboneau, are the owners of a parcel of real property located in the County, which is the subject of the comprehensive plan amendment that is the subject of this proceeding. The parties stipulated that the Intervenors have standing to participate in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the east by the Atlantic Ocean, on the west by Okeechobee County, on the north by Indian River County and on the south by Martin County. Geographically, the County consists of approximately 600 square miles, or approximately 384,000 acres. Approximately 513 square miles, or approximately 328,320 acres, of the County are unincorporated and subject to land use planning by the County. The significant man-made features of the County include Interstate 95, the Florida Turnpike, State Highway 70 and the Fort Pierce International Airport. The airport is operated by the County. There are two incorporated areas within the County: Fort Pierce and Port St. Lucie. The majority of urban development within the County is located within these municipalities and consists mainly of detached, single-family residential dwellings and multifamily units. The estimated permanent population projected in the Plan for the County in 1990 was approximately 151,700. Including seasonal population, the estimated population for the County for 1990 was approximately 182,400. The majority of the County's land area is used for citrus production. The majority of the agricultural land use in the County is located within the County's unincorporated area, to the west of Interstate 95 and the Florida Turnpike, which both run generally north and south through the County. As a result of recent cold weather in areas of Florida north of the County, citrus production in the County has increased in recent years by approximately 35,500 acres between 1978 and 1992. Major natural divisions of the County are the Atlantic Coastal Ridge (including barrier islands), the Eastern Valley and the Osceola Plain. Adoption of the County's Comprehensive Plan. On January 9, 1990, the County adopted a comprehensive plan pursuant to the Act (hereinafter referred to as the "Plan"). The Plan applies to, and governs growth within, the unincorporated area of the County. The Plan excludes areas within the municipalities of Fort Pierce and Port St. Lucie. (Unless otherwise specified, any further reference to the County constitutes a reference to only the unincorporated areas of the County subject to the Plan.) The Plan was based, in part, on an earlier comprehensive plan adopted by the County in 1975 pursuant to the former Local Government Comprehensive Planning Act. The goals, objectives and policies of the Plan and the Future Land Use Map of the Plan were adopted by the County by ordinance. Data and analysis submitted by the County to the Department with the Plan was not adopted by the County by ordinance. The Department reviewed the Plan and on March 21, 1990, filed a Statement of Intent to find the Plan not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. A notice of the Department's determination was published in a local newspaper. The Department determined that the Plan was not "in compliance", in part, because of a conclusion that the Plan allocated twice as much land area to residential land use categories as data concerning the expected population of the County for the year 2015 justified. The Department, therefore, concluded that the Plan was not based on data and analysis, and did not discourage the proliferation of urban sprawl. The County and the Department entered into settlement negotiations which resulted in the execution of a Stipulated Settlement Agreement in October of 1990 disposing of the Department's objections to the Plan. Pursuant to the agreement, the Department agreed that it would find the Plan "in compliance" if the County adopted certain remedial amendments to the Future Land Use Element of the Plan. The terms of the agreement were subsequently carried out. See DCA exhibit 4. The remedial amendments were adopted in part due to the Department's concern about the the proliferation of urban sprawl. This concern was addressed through the remedial amendments by adding certain development controls and requiring clustering of residential development on lands classified agricultural. The remedial amendments also included Policy 1.1.2.4 and Policy 1.1.2.5. Policy 1.1.2.4 is quoted, infra, in finding of fact 123. Policy 1.1.2.5 provides: Provide adequate buffering and/or setbacks between agriculture and non-agricultural uses to protect such agricultural uses from adverse impacts associated with enforcement of nonagricultural development or creation of nuisances by agricultural operations. DCA exhibit 4. The remedial amendments also include Objective 1.1.5 and related policies governing development within the Urban Service Area. The Future Land Use Element of the Plan. The Future Land Use Element and the Future Land Use Map of the Plan reflect a long-term planning period of twenty-five years, ending with the year 2015. In the Introduction of the Future Land Use Element of the Plan (DCA exhibit 1 and St. Lucie County exhibit 1), there is a general description of the Future Land Use Element: The Future Land Use Element has been divided into a series of sections which analyze the existing patterns of development within the community, portray future patterns of develop- ment and recognize unique or special areas within the community that should be considered in future land use determinations. Integral to the success of the Comprehensive Plan are the Goals, Objectives, and Policies which will be used to direct the location and intensity of development for the variety of uses necessary for a healthy and diversified community. Page 1-1, St. Lucie County exhibit 1. The Future Land Use Element of the Plan includes the following "major development philosophy": Over the years, the County has been requested to approve development proposals that would permit the encroachment of urban uses in areas previously used for agricultural purposes. Many of these areas are outside of what may be considered the communities existing urban form or pattern. As discussed later in this element, the cost of providing the necessary community services to these development sites is becoming an increasing community concern. . . . Page 1-6, St. Lucie County exhibit 1. The Future Land Use Element of the Plan goes on to recognize the importance of citrus production: The major use of land within the unincorporated areas of the County is agriculture. Well over 60 percent of the County is presently used for the production of citrus, cash crops or ranching activities. These agricultural activities account for St. Lucie County being ranked among the top citrus producers in the State of Florida, contributing substantially to the local and regional economy. Page 1-11, St. Lucie County exhibit 1. Sixteen general categories of future land use are identified and defined in the Future Land Use Element of the Plan: Agriculture: 5 and 2.5. Residential: Estate, Suburban, Urban, Medium, High. Residential/Conservation. Conservation-Public. Commercial. Industrial. Public Facilities. Transportation/Utilities. Historic. Mixed Use. Special District. The density of development for the residential categories established in the Plan are 1 unit per acre for Estate, 2 units per acre for Suburban, 5 units per acre for Urban, 9 units per acre for Medium and 15 units per acre for High. The density for residential use of the agriculture categories established in the Plan are 1 unit per 2.5 acres for Agriculture-2.5 and 1 unit per 5 acres for Agriculture-5. Population estimates contained in the Future Land Use Element of the Plan are based upon estimates of population of the University of Florida Bureau of Economic and Business Research. The Plan indicates that the County has determined that the University's "high" projections appear to reflect more accurate population projections for the County. The projections concerning population contained in the Future Land Use Element and in this Recommended Order are based upon those "high" projections. Based upon the Plan's data and analysis projections, it is estimated that the permanent population of the entire County was 135,715 in 1988 and 318,650 in 2015. With the seasonal population added, based largely on agriculture related increases in population, the population was estimated at 154,141 in 1988 and 382,380 in 2015. Thus, the estimated increase in the population for the entire County from 1988 to 2015 is 182,935 permanent residents and 219,522 permanent and seasonal residents. In the County alone, the permanent population is estimated to be 54,226 in 1988. For the year 2015, the estimated permanent population is 93,045. With the seasonal population added, the population for 1988 is estimated at 65,119 and 111,654 for the year 2015. Therefore, the estimated total increase in population for the year 2015 is 38,779 permanent residents and 46,535 permanent and seasonal residents. For the year 1988, the Future Land Use Element of the Plan includes an estimate that the existing acreage being used for residential purposes was 16,900 acres. The Plan's Housing Element includes an estimate of only 12,369 acres of residential land use in 1988. To determine projected residential land use needs for the year 2015, the Future Land Use Element provides the following: For the purpose of determining the future land use needs in the community, a ratio has been established which is based upon current (1988) development conditions. This ratio was determined by dividing the seasonal population of the County in 1988 by the estimated amount of land consumed by broad land use category type. . . . Page 1-22, St. Lucie County exhibit 1. Actually, the ratio was determined by dividing the permanent population of the County in 1988, and not the seasonal population, by the estimated amount of land being used for residential purposes. The ratio of population in 1988 to residential acreage use in 1988 results in an estimate of the historical, minimum amount of residential acreage used in the County per 1,000 residents. Thus, it is concluded in the Plan that 312 acres (16,900 acres in residential use in 1988 divided by 54,226 permanent residents in 1988), or .312 acres per person have been used historically for residential purposes. Based upon the estimate of land in residential use in 1988 contained in the Housing Element of the Plan, the ratio is .228 (12,369 acres in 1988/54,226 1988 population). Applying the historical ratio of permanent residents per acre of residential acreage of .312 to the projected seasonal population in the year 2015 of 111,654, the Future Land Use Element of the Plan estimates that the total residential acreage needed by the year 2015 will be 34,836 acres: 111,654 x .312 = 34,836. The estimated total residential acreage needed in the year 2015 based upon the estimated residential acreage in 1988 contained in the Plan's Housing Element is 25,457 acres: 111,654 x .228 = 25,457. If the historical ratio of permanent residents per acre of residential acreage of .312 is applied to the projected increase in permanent population by the year 2015 of 38,779, the additional residential acreage needed by the year 2015 will only be 12,099 acres. Based upon this analysis, there will be a need for a total of 28,999 acres of residential land for permanent residents by the year 2015 (16,900 1988 acres + 12,099 projected need). Using the Plan's Housing Element ratio of .228 and the projected increase in permanent population results in a conclusion that there will be a need for an additional 8,841 acres of residential land. Based upon the projected population growth in permanent and seasonal residents for the year 2015 (46,535 increase in seasonal population) and applying the Plan's historical ratio of residential acres per 1,000 people (.312), the projected additional acreage needed for residential use by the year 2015 is 14,518 acres. Based upon this analysis, there will be a need for a total of 31,418 acres of residential land for the seasonal population by the year 2015 (16,900 1988 acres + 14,518 projected need). Applying the Plan's historical ratio of residential acres per 1,000 people to determine projected additional residential acreage need and using the projection of acreage in residential use in 1988 contained in the Housing Element, there is a need for only 26,887 total acres of residential land (12,369 1988 acres + 14,518 projected need). In the Plan, the County applied the historical residential ratio of .312, which is based upon 1988 permanent population, to the total projected 2015 permanent and seasonal population of 111,535 and concluded that there is a need for a total of 34,836 acres for residential use in 2015. This amounts to a total of 17,936 additional acres (34,836 - 16,900). Based upon the calculations contained in findings of fact 33 through 37, the Plan's projection of additional residential acreage is incorrectly high. Whether the Plan's higher estimate of need is used does not, however, appreciably affect the following determinations. Therefore, for purposes of this Recommended Order, the Plan's incorrect estimate of additional residential acreage needed will be used. The Future Land Use Map of the Plan reflects the County's conclusion that there are approximately 70,989 acres of land in the County available for residential use, not including potential residential development of land designated for agricultural use of one dwelling per 2.5 acres or per 5 acres, and excluding land involved in three amendments to the Plan, including the subject amendment. The 70,989 acres includes acreage already in residential use in 1988 (16,900 acres) and vacant acreage available for residential use through the year 2015. It is estimated in the Plan that there are 2.34 people per dwelling unit in the County. The remedial amendments to the Plan the County agreed to adopt did not remove any of the 70,989 acres of land allocated on the Future Land Use Map for residential use, modify densities, or modify the agricultural classifications of the Future Land Use Map. The Plan designates a portion of the County as an Urban Service Area. The Urban Service Area is depicted on the Future Land Use Map of the Plan. The Urban Service Area is generally described, in pertinent part, as follows: . . . . This area represents the preferred regions for development at urban intensities. The area indicated is the most likely to have centralized water and wastewater services provided by either a municipal utility or a privately operated regional enterprise. The intent of the urban service area designation is to restrict the negative impacts of a sprawling low density development pattern and the fiscal burden that pattern of development has on the ability of the community to meet its service needs. The Urban Service Area is not designed to be a permanent or static limitation on growth. Rather, it is intended to indicate the areas of the County that can reasonably be expected to be provided with necessary community services during the fiscal planning periods of this plan [to 2015]. . . . . Page 1-40, St. Lucie County exhibit 1. The western boundary of the Urban Service Area runs generally north and south along the western boundary of Fort Pierce and Port St. Lucie. The eastern boundary is the Atlantic Ocean. Future Land Use Objective 1.1.4 and Policies 1.1.4.1 through 1.1.5.9 deal with the Urban Service Area. Objective 1.1.4 of the Future Land Use Objective provides: In coordination with the other elements of this plan, future development shall be directed to areas where the provision of urban and community services/facilities can be ensured. Page 1-59, St. Lucie County exhibit 1. In pertinent part, the Policies related to Objective 1.1.4 provide the following: Policy 1.1.4.1 Encourage the location of urban land use intensities, through the development of density bonus and incentive programs in the Land Development Regulations, to those areas that lie within the defined urban service boundary before encouraging/supporting the conversion of property in the agricultural and suburban areas to higher intensity urban uses, but still keeping all development authorizations in line with the adopted levels of service within this plan. Policy 1.1.4.2 Require that new development be designed and planned in a manner which does not place an unanticipated economic burden upon the ser- vices and facilities of St. Lucie County. Policy 1.1.4.3 Encourage the use of cluster housing and planned unit development techniques to conserve open space and environmentally sensitive areas, through the incorporation of the following into the County's Land Development Regulations: The establishment of minimum acreage requirements necessary to support a viable mixed use community providing sufficient design flexibility to allow innovation and creativity in all forms of planned unit developments; The establishment of minimum open space ratios of 30 percent or greater in all planned unit developments including within the PUD documents assurances on the part of the developer that such areas will remain as open space to protect existing native habitat, to provide for minimum setback needs from adjacent uses, and to provide active and passive recreational as well as visual amenities. The establishment of minimum open space standards; The establishment of provisions ensuring the long term preservation of remaining open spaces; The establishment of a mixed use district combining residential, commercial, recreational, educational, and other income producing uses providing significant functional and physical integration among uses; The establishment of minimum standards for the provision of on-site shopping, job opportunities and internal trip capture; and, The establishment of specific requirements to provide efficient, centralized infrastructure (potable water and sanitary sewer). Include specific restrictions on the use of septic tanks, individual wells, and package plants in planned unit developments. Policy 1.1.4.4 Provide for the calculation of gross residential density on lands that lie above the mean high water elevation. Provide for the ability to transfer/cluster of residential density from wetland and other sensitive or unique environmental habitats to upland areas on contiguous property. Pages, 1-59 through 1-62, St. Lucie County exhibit 1. The Plan indicates that the Urban Service Area is likely to have centralized water and wastewater services provided. There is no firm commitment in the Plan, however, to provide central water and sewer services for development within the Urban Service Area. Policy 1.1.5.1 of the Plan provides that urban development activities are restricted to the Urban Service Area. The Policy also provides that "urban development activities" include "any residential development activity in excess of two units to the gross acre . . ." for purposes of the Policy. The densities of Policy 1.1.5.1 for residential development are more dense than what is generally considered as an "urban density". The land located outside of the Urban Service Area is classified almost exclusively as Agriculture-2.5 or Agriculture-5. There are a few areas which abut the Urban Service Area boundary line which are classified for residential use, including a few small parcels which were in existence prior to adoption of the Plan. The Plan does not indicate the current or future existence of urban development within the Urban Service Area. A wide range of development densities and intensities are provided for in the Plan for the Urban Service Area. With regard to development in the Urban Service Area, the Plan provides, in part, the following: It is the position of St. Lucie County that in order to permit the mechanics of the free market system to operate openly, there must be a choice in where to locate future development. Offering the possibility of various development areas, when located within the defined urban service area, is not supportive of a pattern of urban sprawl. Page 1-24, St. Lucie County exhibit 1. Amendments to the Plan. Since the determination that the Plan was "in compliance", the Plan has been amended three times, including the subject amendment. One amendment amended the Future Land Use Map to redesignate the future land use of approximately 2.1 acres of land from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Furlong Amendment"). Another amendment amended the Future Land Use Map to redesignate the future land use of approximately 9.57 acres of land from Residential Urban to Commercial (hereinafter referred to as the "Hayes Amendment"). Finally, the subject amendment amends the Future Land Use Map to redesignate the future land use of approximately 164 acres of land owned by the Intervenors from Agriculture-2.5 to Residential Estate (hereinafter referred to as the "Charboneau Amendment"). The Charboneau Amendment. On September 22, 1992, the Board of County Commissioners of the County adopted Ordinance No. 92-029 approving the Charboneau Amendment. The Charboneau Amendment, as adopted by the County, is effective only if it is ultimately determined that the amendment is "in compliance". After review of the Charboneau Amendment, the Department determined that it was not "in compliance". This determination was reflected in a notice which the Department caused to be published and in the Department's Statement of Intent of November 11, 1992. The Charboneau Amendment modifies the future land use classification of the Charboneau Property from Agriculture-2.5 to Residential Estate. Agriculture-2.5 allows residential use of the property of no more than one unit per 2.5 acres. Residential Estate would allow residential development of the property of one unit per acre. The Charboneau Property and the Surrounding Area. The subject parcel consists of approximately 164 acres of land (hereinafter referred to as the "Charboneau Property"). The Charboneau Property is generally rectangular shaped with several parcels of land in the southern portion of the parcel which are not included in the Charboneau Amendment. Those "out parcels" retain their future land use designation of Agriculture-2.5 in the Plan and on the Future Land Use Map. The Charboneau Property represents approximately five one-hundredths of one percent of the 328,230 acres of unincorporated land in the County. The northeastern portion of the Charboneau Property consists of cleared land used for grazing a small number of cattle. The remainder of the property is not being actively used for agriculture or other purposes and is covered by pine flatwood and palmettos. The Charboneau Property is located in approximately the geographic center of the County. It is outside, but on the fringe, of the major development areas of the County. The Charboneau Property is bounded generally on the east by Gentile Road, a two-lane dirt road running north from State Road 70. State Road 70, also known as Okeechobee Boulevard, is located to the south of the Charboneau Property. State Road 70 is a major east-west arterial road. It connects the Florida Turnpike and Interstate 95 area, which are located within the Urban Service Area to the east of the Charboneau Property, with Fort Pierce. Access to the Charboneau Property is off Gentile Road. The Charboneau Property is located to the west and outside of the Urban Service Area designated by the Plan. Prior to the adoption of the Charboneau Amendment, the parcel of property generally contiguous to the eastern boundary of the Charboneau Property was also located outside the Urban Service Area. The boundary of the Urban Service Area had been located contiguous to the eastern boundary of the adjacent parcel. The adjacent parcel and the Charboneau Property are separated by Gentile Road. In conjunction with the adoption and transmittal to the Department of the Charboneau Amendment, the Board of County Commissioners of the County initiated, directed and ratified a relocation of the Urban Service Area boundary approximately 1,000 feet to the west. This placed the Urban Service Area boundary at Gentile Road. This modification in the Urban Service Area was consistent with the Plan, which allows a modification of the boundary of the Urban Service Area of up to 1,500 feet without plan amendment. As a consequence of the modification of the Urban Service Area, most of the eastern boundary of the Charboneau Property is contiguous to, but still outside, the Urban Service Area. On the northern boundary of the Charboneau Property is a canal. The canal is approximately thirty feet wide, although the width of the water in the canal is less. The canal is approximately six feet deep. To the north and northeast of the canal are citrus groves in active agricultural production. The property (hereinafter referred to as the "Coca- Cola Property"), is owned by Coca-Cola. The Coca-Cola Property is classified as Agriculture-2.5 in the Plan. Except for certain small pockets of property which border on the Charboneau Property which are described, infra, the property to the north, northwest and west of the Charboneau Property are used predominantly for citrus. Most of this property consists of large tracts of corporate-owned land. To the north of the Coca-Cola Property are also large tracts of property owned by government agencies. To the northeast of the Coca-Cola Property is a tract owned by the University of Florida which is used for citrus research. To the northwest of the Coca-Cola Property is a tract owned by the United States Department of Agriculture. The County also operates a livestock farm in the area. To the northwest of the Charboneau Property and to the west of the portion of the Coca-Cola Property abutting the northern boundary of the Charboneau Property is a parcel of property known as Fort Pierce Gardens. Fort Pierce Gardens is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. The future land use classification of Fort Pierce Gardens is Agriculture- 2.5. The lots in Fort Pierce Gardens range in size from one acre to five acres. There are a few houses already constructed and a few more houses under construction in Fort Pierce Gardens. Development of Fort Pierce Gardens is less than half complete. Adjacent to the western boundary of the Charboneau Property is a tract known as Pine Hollow Subdivision. Pine Hollow Subdivision is a residential subdivision which apparently was not subject to the requirements of the Plan because of its existence prior to adoption of the Plan. It is approximately the same size as the Charboneau Property. The future land use classification of the parcel is Agriculture-2.5. Pine Hollow Subdivision consists of 110 platted lots that are being developed in phases. The first phase consists of thirty lots which are still under development. A County maintained road has been constructed in phase one. Development of the other phases has not begun. The remaining portion of the tract has three rough-cut dirt roads. The subdivision is less complete than Fort Pierce Gardens. Lots in Pine Hollow Subdivision are slightly larger than one acre. Homes in the subdivision will use wells and septic tanks. To the west of Pine Hollow Subdivision and Fort Pierce Gardens is a large area of land used for citrus. These lands are designated Agriculture-2.5 and Agriculture-5. To the south and southwest of the Charboneau Property is a parcel of property with an airstrip which has been used by crop-dusting airplanes. The airstrip is oriented in a southeast-to-northwest direction. The airstrip and the parcel of land to the south of the Charboneau Property and north of State Road 70 is designated Agriculture-2.5 on the future land use map. The airstrip is not currently being used for crop-dusting aircraft. Improvements have recently been made to the airstrip, however, which evidence an intent to use the airstrip in the future for crop dusting activities. Hearsay evidence corroborates this finding. The land to the south of the Charboneau Property and south of State Road 70 is in use for citrus production. The parcel between the Charboneau Property and State Road 70 is named Walsh Farms. The property to the south and southeast of State Road 70, while currently used for citrus production, is designated Residential Suburban on the Future Land Use Map, allowing development of two dwelling units per acre. This property is, however, located inside the Urban Service Area. To the east of Gentile Road is a parcel of property approximately the same size, north to south, and about half the size, east to west, as the Charboneau Property. This parcel has been developed as what was characterized as rural ranchette. There are approximately eighteen large lots of four to five acres up to ten to twenty acres. The lots in the parcel (hereinafter referred to as the "Ranchette Property"), have single-family homes constructed on them and the lots also have some citrus and horses. The evidence, however, failed to prove that the Ranchette Property was being used for commercial agricultural purposes. The parcel is designated Agriculture-2.5 on the Future Land Use Map. One parcel of approximately 2.5 acres located within the Ranchette Property was the subject of the Furlong Amendment. To the immediate east of the Ranchette Property, bounded on the south by State Road 70 and on the east, in part, by the Florida Turnpike, is an area designated as Residential Suburban on the Future Land Use Map. The area, which lies within the Urban Service Area, is largely undeveloped at this time except for a development known as Hidden Pines. Hidden Pines is a vested subdivision. Hidden Pines consists of lots of approximately one acre. The homes on these lots are served by wells and septic tanks. The subdivision is nearly completely built-out. Approximately 1.3 miles to the east of the Charboneau Property is the center of an area immediately to the north of where the Florida Turnpike and Interstate 95 cross. From this point, the Florida Turnpike travels to the northwest, and closest to the Charboneau Property, from the crossing with Interstate 95. Interstate 95 travels to the northeast, and furthermost from the Charboneau Property, from the crossing. Immediately to the north of the crossing State Road 70 intersects the Florida Turnpike and Interstate 95 in a generally east-west direction. The western boundary of this area is approximately two-thirds of a mile from the southeast corner of the Charboneau Property. There is an interchange of the Florida Turnpike immediately to the north of the crossing and just to the south of State Road 70. There is also an interchange of Interstate 95 to the north of the crossing at State Road 70. State Road 70 becomes a six-lane arterial road to the east of the Florida Turnpike. There are no level of service deficiencies on this portion of State Road 70. The area within and immediately outside the area north of the crossing, west of Interstate 95 and east of the Florida Turnpike, is designated as the Okeechobee Road/I-95 Mixed Use Activity Area. The area may be used for varied, compatible commercial uses and residential use up to fifteen dwelling units per acre. The Mixed Use Activity Area is currently being developed. There are hotels, motels, gas stations, restaurants and an outlet mall already in existence in the area. Another outlet mall is being constructed. Reynolds Industrial Park, consisting of approximately 200 acres, is being developed. To the northeast of the Charboneau Property and the Coca-Cola Property to the east of Gentile Road is an area designated Residential Estate. This area is within the Urban Service Area and currently is undeveloped. Part of the property is used for citrus production. In summary, the area to the west of the Urban Service Area, including the Charboneau Property, is designated for agricultural uses except for Fort Pierce Gardens and Pine Hollow Subdivision. Fort Pierce Gardens and Pine Hollow Subdivision are isolated islands of development within an area actively used for agriculture purposes. Insufficient Data and Analysis to Justify an Increase in Residential Acreage by the Designation of the Charboneau Property As Residential Estate. In the Department's Statement of Intent, it was concluded that the Charboneau Amendment is not "in compliance" based upon the lack of data and analysis to support the conversion of the Charboneau Property from Agriculture- 2.5 to Residential Estate with a designated density of one dwelling per acre. Currently, the Agriculture-2.5 classification of the Plan allows one dwelling unit per 2.5 acres, or a total of approximately 65 residential units on the Charboneau Property. The Plan, however, requires that any non-agricultural development of over twenty units within an Agriculture-2.5 classification must maintain open space of at least 80 percent of the project site in order to retain some viable agricultural use of the property. Residential Estate does not require clustering of units or open space. A total of approximately 163 residential units, one per acre with no open space, or a maximum of an additional 98 residential units can be constructed on the Charboneau Property if the Charboneau Amendment is approved. When the Charboneau Amendment was submitted to the Department for review, the County failed to provide any data or analysis in support of a potential increase in residential units of 98 units or the change in classification of the appropriate use of the Charboneau Property from agricultural to residential. For example, no analysis of the number of acres in the County which are available for development at one unit per acre was performed by the County. The data and analysis of the Plan and, in particular, the Future Land Use Element and the Future Land Use Map, allocate a total of 54,089 acres for new residential development in the County through the year 2015 to accommodate the need for residential property for projected increases in population (70,989 total acres available - 16,900 acres in use in 1988). If the acreage used for residential purposes in 1988 evidenced by the Housing Element is used, the Plan allocates a total of 58,620 acres for new residential development (70,989 total acres available - 12,369 acres in use in 1988). Based upon the Plan, there is a need for only 17,936 additional acres of residential property to accommodate projected population increases through the year 2015. See finding of fact 38. With 54,089 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 17,936 additional acres, there are 3.01 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan. If the Housing Element historical ratio of use is used, there are only 13,088 acres of residential property needed to accommodate projected population increases through the year 2015. With 58,620 acres available for residential development through the year 2015 pursuant to the Plan and a need for only 13,088 additional acres, there are 4.47 times the number of acres of land designated pursuant to the Plan to accommodate need projected under the Plan. Applying the historical ratio of residential use to only the projected additional permanent population indicates a need for an additional 12,099 acres for residential use by the year 2015. Finding of fact 35. This projection represents 4.47 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (54,089 projected acres/12,099 projected need). Applying the historical ratio of residential use based upon the Housing Element of the Plan to only the projected additional permanent population indicates a need for an additional 8,841 acres for residential uses by the year 2015. Finding of Fact 35. This projection represents 6.63 times the number of acres needed for projected new residential growth based upon existing ratios of residential land use (58,620 projected acres/8,841 projected need). Although approved by the Department, the evidence in this case proved that the Plan contains a designation of sufficient land in the County through the year 2015 to more than adequately meet the reasonably anticipated need for residential property. In fact, the Plan over-allocates land well in excess of any reasonable expectation of the amount of property needed to meet such needs. Even based upon the Plan's projections, the County has allocated more than 3 times the land needed to meet the County's own projections for the need for residential land for the year 2015. While the existing provisions of the Plan are not subject to review, when asked to consider an amendment providing for an increase in residential property, the existence of excessive residential property should not be ignored. In this case, to ignore the realities of the excessive allocation of land for residential purposes in the County contained in the Plan and approve the classification of additional property as residential, would simply exacerbate an already existing excessive allocation. The conclusion that there is excessive land available for residential purposes already contained in the Plan is supported by the population per unit in the County of 2.34. If it is assumed that the 54,089 acres of land available for residential development in the County are developed at a low density of one unit per acre, there will be adequate residential land available for an additional 126,568 people: 54,089 acres, or 54,089 units, x 2.34 people per unit = 126,568 people. Based upon a projected permanent and seasonal population increase by the year 2015 of 46,535 people, there is available for residential use 2.71 times the acreage available to meet future residential needs. In light of the fact that residential property may be developed at much higher densities pursuant to the Plan, assuming development of one unit per acre is conservative, and the number of people that may be accommodated is much higher than 126,568 people. Although not reflected in the Plan, there has been a removal of some property classified as residential property from residential use since the adoption of the Plan. The County has acquired 94 single-family homes on 100 acres designated for Residential Estate use. The 100 acres are located to the east of the Ft. Pierce International Airport and were acquired for noise abatement purposes. The homes on the property have been demolished. An additional 90 homes on land classified Residential Urban will also be acquired and demolished. The State of Florida, through the Conservation and Recreation Lands Program, Chapter 253, Florida Statutes, has also acquired property known as the Avalon tract. The property is located on Hutchinson Island, in the northeast corner of the County. This property had been designated Residential Urban and could have contained approximately 450 units. Even with the removal of the property near the airport and the Avalon tract from the residential property inventory, the Plan contains an excessive allocation of property for residential needs through the year 2015. Based upon the foregoing, data and analysis has not been submitted by the County to justify an increase in residential property or property which may be developed at an increased density. There is already an over-allocation of property for residential land use and, even with the reductions of property near the airport and the Avalon tract, the addition of the Charboneau Property will only result in a Plan with greater over-allocation of land for residential purposes or increased densities. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, and Rule 9J- 5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The ill effects of urban sprawl include inequitable distribution of the costs of development and of providing services, inefficient use of land, unnecessary destruction of natural resources, loss of agricultural lands and increased commuting costs and the resulting pollution. In November 1989, the Department published a Technical Memorandum which describes the Department's policy concerning the definition of "urban sprawl". The Department's policy has been further refined and is reflected in proposed amendments to Chapter 9J-5, Florida Administrative Code. In particular, proposed Rule 9J-5.003(140) and 9J-5.006(6), Florida Administrative Code, are consistent with, and represent, the Department's policy concerning urban sprawl. The Department's policy concerning the definition of "urban sprawl", as set out in the proposed rules and as contained in the November 1989 Technical Memorandum, is consistent with the definition of "urban sprawl" most commonly employed by professional planners. The Department's proposed rules concerning urban sprawl do not have the effect of law. They have not yet been finally adopted. The proposed rules have not been relied upon, however, by the Department or the undersigned as "law" in this case. The proposed rules concerning urban sprawl have only been relied on as an expression of the Department's policy. The Department's policy concerning urban sprawl, as evidenced in the November 1989 Technical Memorandum, and as modified by the Department's proposed rules, is reasonable. The Department's definition of "urban sprawl" contained in the November 1989 Technical Memorandum is: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The Department's definition of "urban sprawl" as evidenced by the proposed rules is as follows: (140) "Urban sprawl" means urban development or uses which are located in rural areas or areas of interspersed rural and generally low- intensity urban uses, and which are characterized by: The premature or poorly planned conversion of rural land to other uses; or The creation of areas of urban develop- ment or uses which are not functionally related to adjacent land uses; or The creation of areas of urban develop- ment or uses which fail to maximize the use of existing public facilities and the use of areas within which public services are being provided. Urban sprawl typically manifests itself in one or more of the following patters: (1) leapfrog or scattered development; (2) ribbon or strip commercial or other development; and (3) large expanses of predominantly low intensity and single-use development. Page 21, DCA exhibit 18. There are several indicators as to when a plan amendment does not discourage the proliferation of urban sprawl. The indicators, which are memorialized in the Department's proposed amendment to Rule 9J-5.006(6)(g), Florida Administrative Code, are whether a plan amendment: Promotes or allows substantial areas of the jurisdiction to develop as low intensity or single use developments in excess of demonstrated need. Promotes or allows significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are suitable for development but can be expected to remain undeveloped for the balance of the planing period. Promotes or allows urban development to occur in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments but which are bordered on either side by rural land uses, typically following highways or surface water shorelines such as rivers, lakes and coastal waters. Fails to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, endangered or threatened species habitat or habitat of species of special concern, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails to protect agricultural areas and activities, including silviculture. This includes active agricultural and silvicultural activities as well as passive agricultural activities and dormant unique and prime farm- lands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Increases disproportionately the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, storm- water management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation bet- ween rural and urban uses. Fails to promote and support infill development and the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in loss of significant amounts of functional open space. Pages 38-40, DCA exhibit 18 Pursuant to the settlement agreement between the County and the Department which led to the determination that the Plan was in compliance, objectives and polices were added by the County to the Plan to insure that the Plan discouraged the proliferation of urban sprawl. The Plan, by directing that development primarily take place within the Urban Service Area, evidences an intent on the part of the County to discourage urban sprawl. See page 1-40 of St. Lucie County exhibit 1 and finding of fact 43. Applying the indicators of urban sprawl to the Charboneau Amendment leads to the conclusion that the Charboneau Amendment does not discourage urban sprawl: The Charboneau Amendment allows the development of 164 acres of land as a low-density, single-use development of one dwelling unit per acre despite the lack of need for any additional residential development in the County. It allows urban development in rural areas at a significant distance from existing urban areas while leapfrogging over less dense and undeveloped land within the Urban Service Area more suitable for such development. It allows urban development in an area that is primarily used for agricultural purposes and, consequently, fails to protect agricultural areas. It fails to maximize the use of existing or future public facilities and services by allowing urban development outside of the Urban Service Area. At some time in the future, the residents of the Charboneau Property can reasonably be expected to expect public facilities and services. It will increase disproportionately the costs in time, money and energy of providing and maintaining facilities and services because the Charboneau Property is located outside the Urban Service Area. It fails to provide a clear separation between rural and urban uses. It fails to promote and support infill development and redevelopment. The Charboneau Amendment does not, by itself, create urban sprawl. No development of the Charboneau Property will occur simply because the Charboneau Amendment is found to be "in compliance" until development orders are issued by the County. These facts do not, however, support the suggestion that the Plan will not fail to discourage urban sprawl as a result of the Charboneau Amendment. The Charboneau Amendment, even though contrary to Objective 1.1.2 and the Policies thereunder which discourage urban sprawl, if found in compliance, will cause the Plan to contain provisions which not only fail to discourage urban sprawl. It will cause the Plan to include provisions which encourage urban sprawl. Inconsistency with Objective 1.1.2 of the Plan. Rule 9J-5.005(5), Florida Administrative Code, requires that comprehensive plan elements be consistent with each other and that future conditions maps reflect the goals, objectives and policies of the plan elements. The Department has alleged, and proved, that the Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 of the Future Land Use Element of the Plan and, therefore, creates an inconsistency within the Future Land Use element. Objective 1.1.2 of the Plan provides the following: Provide in the land development regulations provisions for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban service boundary and promote retention of agricultural activities, preserve natural resources and maintain native vegetative habitats. Policy 1.1.2.4 of the Plan provides the following: The County shall include in its land development regulations a site assessment process to evaluate the potential conversion of existing or designated agricultural land uses to non- agricultural land uses in a rational and orderly manner. such provision shall require as a condition to such conversion that the Board of County Commissioners affirmatively find that the proposed non-agricultural use: is compatible with adjacent land uses; maintains the viability of continued agricultural uses on adjacent lands; contains soils suitable for urban use as defined by the St. Lucie County soil survey; is suitable with existing site-specific land characteristics; is consistent with comprehensive develop- ment plans; will have available the necessary infrastructure concurrent with the anticipated demands for development; and, will avoid the extension of the urban services boundary to create any enclaves, pockets, or finger areas in serpentine patterns. Policy 1.1.2.4 was added to the Plan as part of the settlement entered into between the Department and the County during the review of the Plan. Based upon data contained in the Plan, there were approximately 211,428 acres out of a total of 330,402.7 acres in the County in 1988 devoted to agricultural use. This amounts to approximately 63.9 percent agricultural use. The area outside the Urban Service Area is: . . . recognized for first being appropriate for the production of citrus, cash crops, or ranching activities. . . . Based upon the entire area to the west of the Urban Service Area, including the Charboneau Property and the property surrounding the Charboneau Property, the conversion of the Charboneau Property from Agriculture-2.5 to Residential Estate would create an incompatible use of the Charboneau property. This conclusion is reinforced by consideration of the general impact of the conversion of agriculture lands to non-agriculture lands throughout the State of Florida. Of the State's 10.9 million acres of land, approximately 150,000 to 200,000 acres of farm land are lost to other uses yearly. Contributing to this problem is the fact that, as one parcel is converted to non-agricultural uses, the adjacent property values increase and farmers become discouraged. This impact contributes to the premature conversion of agricultural land. To reduce the impact on adjacent agricultural lands caused by the conversion of agricultural land, a clear demarcation between rural and urban land uses should be designated. The Urban Service Area of the Plan serves this purpose in the County Although the evidence failed to prove that agricultural lands adjacent to the Charboneau Property will no longer be used for agricultural purposes upon the conversion of the Charboneau Property or that such a phenomenon has occurred in the County in the past, concern over such impacts are evidenced and recognized by Objective 1.1.2 and Policy 1.1.2.4. of the Plan. The Charboneau Amendment ignores these concerns. It is, therefore, concluded that the Charboneau Amendment will detract from the continued viability of property outside the Urban Service Area for agricultural uses. Policy 1.1.2.4 requires that a development "maintain the viability of continued agricultural uses on adjacent lands." The Charboneau Amendment, even if the domino impact of the conversion of other acreage from agricultural uses may not occur, does not maintain such viability. The Charboneau Amendment is inconsistent with Objective 1.1.2 and Policy 1.1.2.4 because it allows the conversion of agricultural property in an agricultural area (with two parcels of existing, inconsistent uses), outside the Urban Service Area and at a density that is considered an urban density: The conversion of the Charboneau Property to urban uses is not compatible with adjacent land uses. The conversion of the Charboneau Property to urban uses does not maintain the viability of continued agricultural uses on adjacent lands. The Charboneau Property contains soils that are approximately equally suited for agricultural purposes or residential purposes. Wells and septic tanks are used on subdivisions in the area and similar soils exist in areas being used for the cultivation of citrus. The Charboneau Amendment is consistent with other portions of Policy 1.1.2.4. While Objective 1.1.2 and Policy 1.1.2.4 of the Plan specifically only require that the County adopt land development regulations to govern the conversion of agricultural lands, the Objective and Policy also contain substantive provisions which must be contained in those regulations. Therefore, even though the Charboneau Amendment may not specifically impact the County's compliance with the requirement that it "adopt land development regulations," the substance of the Charboneau Amendment is inconsistent with the substantive requirements of the Objective and the Policy of the Plan and would create an inconsistency in the Plan if found to be "in compliance." Inconsistency with the State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. Goal 16 of the State Comprehensive Plan and Policies 1 and 2 of Goal 16 are as follows: (16) LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. . . . . Policies.-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Section 187.201(16), Florida Statutes. Converting the Charboneau Property to a non-agricultural classification outside the Urban Service Area is inconsistent with Policy 1 of Goal 16. The existence of the inconsistent uses of Fort Pierce Gardens and Pine Hollow, which were allowed because of their existence before the effective date of the Plan, does not justify further exceptions in the area outside the Urban Service Area designated for rural land uses. The existence of a nonconforming use does not justify further nonconforming uses. Inconsistency with the Treasure Coast Regional Comprehensive Policy Plan. The Treasure Coast Regional Planning Council has adopted a Regional Comprehensive Policy Plan (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for St. Lucie, Indian River, Martin and Palm Beach Counties. In its Statement of Intent, the Department has alleged that the Charboneau Amendment is inconsistent with Regional Plan Policy 16.1.2.2. Goal 16.1.2 of the Regional Plan provides, in part, the following: Land use within the Region shall be consistent with State, regional, and local Future Land Use Maps. . . . Goal 16.1.2 of the Regional Plan goes on to provide for a Regional Future Land Use Map and defines the land use categories to be included in the regional map. Policy 16.1.2.2 of the Regional Plan provides the following policy statement concerning Goal 16.1.2: Future land use maps of government comprehen- sive plans shall be based upon surveys, and data regarding the amount of land required to accommodate anticipated growth, the projected population, the character of undeveloped land, the availability of public services, the ability of government to provide adequate levels of service, and the need for redevelopment. The provisions of Policy 16.1.2.2 are also contained in Section 163.3177(6)(a), Florida Statutes. As found in more detail, supra, the Charboneau Amendment is inconsistent with Policy 16.1.2.2 because of a lack of data necessary to support an increase in residential land or increased density in the County and because it fails to promote redevelopment by infill or revitalization within the Urban Service Area.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Franklin County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter authorizes the County, under certain conditions, to adopt what is known as a small scale development amendment to its comprehensive plan. At issue in this case is a small scale development amendment adopted by the County on October 3, 1996. Petitioner, St. George Plantation Owners Association, Inc. (petitioner), is a not-for-profit corporation organized for the protection and management of the Plantation Area of St. George Island. The island lies just south of Apalachicola, Florida in the Gulf of Mexico. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus it has standing to bring this action. Intervenors, Ben Johnson and Coastal Development Consultants, Inc., are the owners of approximately 58 acres on St. George Island known as the Resort Village Property. The property is adjacent to the St. George Island Airport. A portion of intervenors' property, 9.6 acres, is the subject of the plan amendment being challenged. The nature of the dispute Intervenors' property is subject to a 1977 Development of Regional Impact (DRI) order adopted by the County in 1977. The order has been amended from time to time. Among other things, the order provides conceptual approval for the development of "one or more high quality resort hotels or motels, together with such affiliated uses as may be appropriate or desirable, such as gift and tourist shops, restaurants, recreational activities and similar activities." Intervenors desire to develop the Resort Property Village consistent with the 1977 DRI order. The first part of the project consists of approximately 9.6 acres which they have designated as Phase I. The land is located within the Plantation Area of St. George Island and has a land use designation of residential. In June 1995, intervenors submitted detailed site plans for Phase I to the County. On August 1, 1995, the County conducted a public hearing to review the proposed site plans and specifications for Phase I. It adopted a motion which directed its staff "to review and perfect the plans presented, so that the Board can consider the final approval of the plan." It also directed its staff to provide advice concerning the procedure to be followed. After consulting with the Department of Community Affairs (DCA), which recommended that the comprehensive plan be amended to change the land use to accommodate the commercial uses, the staff recommended that the County adopt a small scale development amendment by changing the designation on its Future Land Use Map (FLUM) for 9.6 acres from residential to commercial. By a 3-2 vote, on October 3, 1996, the County adopted Ordinance No. 96- 22 which changed the designation for the 9.6 acres on the FLUM from residential to commercial. Because the amendment affected ten or fewer acres, the County opted to make the change with a small scale development amendment under Section 163.3187(1)(c), Florida Statutes. According to the site plan which accompanied a Notification of Proposed Change filed with the County on May 26, 1996, the Phase I development includes four hotels, 10,250 square feet of commercial space, 300 square feet of retail space, a beach club, a 325 seat conference center, various support and recreational facilities, and a wastewater treatment plant. The Phase I site plan, however, does not include the three subsurface absorption beds which are required to service the effluent from the wastewater treatment plant. If the absorption beds were included, they would increase the size of Phase I from 9.6 to approximately 14.6 acres. In a petition challenging the adoption of the small scale amendment, petitioner contends that, if the absorption beds are properly included in the land use amendment, the land use area would exceed ten acres and thus would require a full-scale land use amendment subject to DCA review. In response, the County and intervenors have contended that, under the current plan, there is no need to change the land use where the wastewater treatment facility will be located since such facilities are allowed in any land use category. As such, they contend there is no requirement to include such property in Ordinance 96- 22. The Wastewater Treatment Facility The proposed development will be served by a wastewater treatment facility. The Department of Environmental Protection (DEP) has issued a permit to Resort Village Utility, Inc., a utility certified by the Florida Public Service Commission to serve the entire 58-acre Resort Village property. The permit provides that the plant can accommodate up to, but not exceeding, 90,000 gallons of treated effluent per day. The facility consists of the wastewater treatment plant, lines to the plant from the development which carry the untreated wastewater to the plant, and lines from the plant to three sub-surface absorption beds where the treated effluent is disbursed. The absorption beds required for the Phase I project wastewater treatment facility will not serve any residential customers. Rather, they will only serve Phase I and any other subsequent phases of Resort Village development, which is a commercial development. Construction must begin on the wastewater treatment plant once the flow of waste effluent reaches 7,500 gallons per day, or if the wastewater from restaurants reaches 5,000 gallons per day. The Phase I project is required to use this facility once the rate of flow of waste effluent exceeds 10,000 gallons per day. Until these thresholds are met, the project will rely temporarily on aerobic systems to handle and treat waste effluent. Under the permit issued by the DEP, the wastewater treatment facility required for Phase I consists of both a wastewater treatment plant and three absorption beds. Through expert testimony of a DEP professional engineer, it was established that the absorption beds were integral to the design and successful operation of the facility. The County and intervenors acknowledge this fact. Therefore, the "use" that is the subject of the amendment is the entire wastewater treatment facility, including the absorption beds, and "involves" some 14.6 acres. Since the plan amendment does not involve "10 or fewer acres," as required by statute, the amendment cannot qualify as a small scale development amendment and is thus not in compliance. In making these findings, the undersigned has considered a contention by the County that Policy 2.3 of the comprehensive plan sanctions its action. That policy reads as follows: Public utilities needed to provide essential service to existing and future land uses in Franklin County shall be permitted in all the land use classifications established by this plan. Public utilities includes all utilities (gas, water, sewer, electrical, telephone, etc.) whether publicly or privately owned. At hearing, the County planner construed the term "public utilities" as being "minor (utility) infrastructure," including wastewater treatment plants not exceeding 100,000 gallons per day. Relying on this provision, the County reasons that the proposed facility is "minor" infrastructure, since it will only have 90,000 gallons per day capacity, and thus it can be placed in a residential land use category. They go on to argue that, since no change in land use classification is needed to permit the facility, it is unnecessary to include the facility in the plan amendment. According to the County, however, the plant (but not the beds) was included only because it was easier to draw a map for the entire 9.6 acres rather than excise that portion of the land where the plant will be located. Under the same theory, the County has placed at least two existing wastewater treatment facilities in the residential land use category. Those facilities, however, predate the adoption of the comprehensive plan in April 1991, and both serve residential, as opposed to commercial, developments. Moreover, the County admitted that it lacks any "clear" policy about the meaning of "public utilities," and it has never adopted a land development regulation to implement the interpretation given at hearing. The County's position is contrary to conventional land use planning practices which define "utilities" as infrastructure such as water or electrical lines that transport a service and would, by their very nature, be required to cross different land uses. Conversely, conventional land use planning practices define "facilities" as infrastructure that performs a service, such as power plants or pumping stations. This infrastructure does not cross different land use categories. In this case, the absorption beds perform a service by further processing and treating waste effluent from Phase I. Therefore, conventional land use planning practices would logically call for the plant and related absorption beds to be classified as "public facilities" under Policy 2.2(i) of the County's comprehensive plan. That policy defines the term as including "water and sewer facilities." The classification would also be compatible with the definition of "public facilities" found in DCA Rule 9J-5.003(105), Florida Administrative Code. Finally, the County and intervenors point out that the facility may not be constructed for many years, depending on the rate and amount of development that occurs in Phase I. Thus, they contend that there is no immediate requirement for the County to change the future land use designation of the property where the absorption beds will be located. But given the fact that the beds and plant are a single, interrelated system, the County cannot choose to change the land use designation for a portion of the facility while ignoring the remainder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a Final Order determining Ordinance No. 96-22 adopted by Franklin County on October 3, 1996, as not in compliance for failing to meet the criteria of Section 163.3187(1)(c), Florida Statutes. DONE AND ENTERED this 13th day of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Richard W. Moore, Esquire Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Alfred O. Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32320-850 L. Lee Williams, Esquire Post Office Box 1169 Tallahassee, Florida 32302-1169 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Gregory C. Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue in these cases is whether amendments to the City of Stuart's comprehensive plan, designated amendments 97-S1, 97-1, 98-R1, and 98-ER1 by the Department of Community Affairs, are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Board of County Commissioners of Martin County (hereinafter referred to as "Martin County"), is a political subdivision of the State of Florida. Petitioner, 1000 Friends of Florida, Inc. (hereinafter referred to as "1000 Friends"), is a Florida not-for-profit corporation. The corporate purpose of 1000 Friends includes monitoring and ensuring the proper implementation of the State's growth management laws. Respondent, City of Stuart (hereinafter referred to as the "City"), is a municipal corporation located within Martin County. Respondent/Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). No evidence concerning Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., was presented. Standing. Martin County owns real property located within the jurisdiction of the City. Although Martin County is also an "adjoining local government," the evidence failed to prove that the amendments at issue in these cases will produce "substantial impacts" on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within Martin County's jurisdiction. There has been a negative impact on Martin County's ad valorem tax base by the annexation of properties formerly under its jurisdiction. Those impacts, however, were caused by the annexation of the properties and not by the amendments at issue in this case. Additionally, those impacts did not cause any need for "publicly funded infrastructure." There may also be some impact as a result in the change in land use designations for some of the annexed property. Martin County's conclusion about the extent of the increase in commercial uses, however, was not supported by the evidence. The evidence also failed to prove that any of the text amendments at issue in these cases will have a negative impact on Martin County's need to provide publicly funded infrastructure. The evidence also failed to prove that the reduction of land subject to Martin County's municipal service taxing district and any resulting decrease in taxable values with the district will cause Martin County to provide additional publicly funded infrastructure. Finally, the evidence failed to prove that Martin County has designated any areas "for protection or special treatment within their jurisdiction" or that there will any "substantial impact" on such areas. Martin County made oral and written comments to the City during the adoption of the amendments at issue in these cases. 1000 Friends, since its formation, has had approximately 6,000 members in Florida. Members from Martin County and the City have totaled approximately 835 and 235 persons, respectively. Martin County and City members constitute a substantial percentage of 1000 Friends' total membership. 1000 Friends' corporate purposes include the representation of its members in legal and administrative proceedings involving the Act. 1000 Friends' litigation committee specifically authorized its participation in these proceedings. The type of relief sought by 1000 Friends in these cases is the type of relief 1000 Friends is authorized to seek on behalf of its members. 1000 Friends made written comments to the City during the adoption of certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Martin County and 1000 Friends are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. 1000 Friends' standing is limited, however, to standing to challenge certain large scale amendments to the Future Land Use Map of the City's comprehensive plan and text amendments to the City's comprehensive plan adopted as a result of the City's Evaluation and Appraisal Report. Intervenor, Hospice Foundation of Martin & St. Lucie, Inc., failed to prove its has standing to participate in this proceeding. General Information About Martin County and the City. Martin County is a relatively small county located in the central southeast portion of Florida. Martin County is abutted on the north by St. Lucie County, on the west by Lake Okeechobee and a small portion of Okeechobee and Glades Counties, on the south by Palm Beach County, and on the east by the Atlantic Ocean. Martin County has a population of approximately 118,000 permanent residents. The population increases by 32 to 34 percent during the fall and winter. Martin County has the third highest per capita income in Florida. There are four municipalities in Martin County, including the City. The City is located on the Atlantic Ocean at the mouth of the St. Lucie River, which divides the City into two land masses. Most of the City is located south and east of the St. Lucie River. A small part of the City is located just to the north of the St. Lucie River. The north and south portions of the City are connected by the Roosevelt Bridge. The City is connected to Palm City to the west by the Palm City Bridge. The City has a population of approximately 14,000. During the day the population of the City increases significantly to an estimated population of between 25,000 and 30,000. Because of the City's relatively small population and the large influx of persons traveling to the City during the day, the City has a need for a significant amount of ad valorem taxes. More than half of the City's ad valorem property taxes comes from commercial property located in the City. In November 1996 commercial land use in the City accounted for approximately 24 percent of the City's land area. The City is the only full-service incorporated municipality in Martin County. It is the county seat for Martin County and serves as the center of legal, medical, social, commercial, and governmental activities in Martin County. The City has recently characterized itself as follows: For most of its history the character of Stuart was one of low to moderate intensity development in a waterfront community, with a small town feel. A four-story height limit and 10-unit density limit for most residential building were the two main forces that continue this character. In addition, Stuart has long been a hub for Martin County, home to many public and private institutions and businesses. As a result, the percentage of commercial, institutional, and public land in the City was higher than it would be in a city that did not serve as a hub. This role was evident in 1991, and a balance between the residential needs of the citizens of Stuart and the sometimes competing, sometimes complementary needs of those hub-related land uses seemed to drive the 1991 Future Land Use Element. It was recognized at Plan adoption that Stuart was near build-out, and barring further major annexations, would have limited vacant land remaining for new development. City's Evaluation and Appraisal Report, Martin County Exhibit 11 at page 33. Prior to 1997, approximately 2,800 acres of land were located within the jurisdiction of the City. Compared to the rest of Martin County, the City is relatively modest economically. Per capita income in the City is approximately 80 percent of the Martin County-wide average per capita income. Housing in the City consists of approximately 6,300 units. Two-thirds of the City's housing stock is multi-family. Approximately 92 percent of the multi-family housing stock is valued at less than $70,000.00. Approximately 69 percent of the other third of the City's housing stock, which consists of single-family housing, is valued at less than $70,000.00. The median value of owner-occupied housing in the City has been growing at a much slower rate than Martin County, neighboring counties, and the State as a whole. Between 1980 and 1990, the median value of owner-occupied housing in the City increased 56 percent while in Martin County the median value increased 112 percent, in Indian River County 69 percent, in Palm Beach County 77 percent, in St. Lucie County 66 percent, and in the State of Florida 68 percent. Because of the relatively low value of the City's housing stock, ad valorem taxes generated from housing is relatively low. The U.S. 1 Corridor. One of the main thoroughfares in Martin County is United States Highway 1, "Southeast Federal Highway" (hereinafter referred to as "U.S. 1"). U.S. 1 runs north-south through the City. It crosses the St. Lucie River via the Roosevelt Bridge. Land located within unincorporated Martin County along U.S. 1 north of the Roosevelt Bridge almost to the St. Lucie County line is mostly developed or approved for development. Development includes major retail stores such as Target, Sports Authority, Barnes & Noble Bookstore, Office Max, Marshall's, Service Merchandise, PetSmart, Home Depot, Lowe's Home Improvement Center, and grocery stores. There are also many smaller retailers located in strip commercial shopping centers. Most of the development has been permitted during the past five to six years by Martin County. The area to the west and northwest of property annexed by the City north of the Roosevelt Bridge during 1997 and 1998 includes Treasure Coast Mall, strip shopping centers, offices, restaurants, and single-family housing at a density of four to five units per acre. The area to the east and northeast of the property annexed by the City north of the Roosevelt Bridge includes single-family housing at a density of four units per acre, multi- family housing, and commercial and industrial property. The area to the north of the property annexed by the City north of the Roosevelt Bridge includes a development of regional impact known as "West Jensen." West Jensen runs from Jensen Beach Boulevard north to the St. Lucie County line. By 2003, when the project is projected to be fully developed, West Jensen will include 260,000 square feet of limited industrial space, 729,000 square feet of general commercial space, 23,000 square feet of limited commercial space, 235,000 square feet of office space, 200 hotel rooms, 931 residential units, and four golf courses. The area to the immediate south of the City is fully developed. Along U.S. 1 there are large shopping centers, restaurants, car dealerships, strip shopping centers, single-family housing of four to five units per acre, and condominiums. The Martin County Airport abuts U.S. 1 on the east. The area to the west of the City, Palm City, is fully developed. Growth of the City Through Annexation. To the extent that the City grew during the 1970's, it did so through annexation. Subsequent to the 1970's, however, the City turned from annexation and focused on redevelopment of the City's downtown area and the eastern part of the City. Between 1988 and November 1996, the City only annexed 298 acres in 30 annexations. This amounted to an increase of only 18 percent in the geographic size of the City. Subsequent to late 1995, the City shifted its policy back to annexation as a means of growth. Of the 30 annexations the City was involved in between 1988 and November 1996, 19 took place in October 1995. In approximately 1996, the City performed an analysis of its projected revenues and expenditures through the year 2003. The City projected that its revenues would be less than its expenditures. Based upon more recent projections, which take into account recent City annexations, the City has projected that its revenues and expenditures should be about the same for the next eight to nine years. The City has projected that its revenues will increase as a result of ad valorem and sales taxes and other revenues which should be generated from the newly annexed properties. During the Spring of 1997, the City received a number of requests for voluntary annexation pursuant to Chapter 171, Florida Statutes. These requests were accepted by the City and the first 16 parcels were annexed in the Spring of 1997. During 1998, another 27 parcels were annexed through voluntary annexation. Between the spring of 1997, and the end of 1998 the City annexed a total of almost 1,200 acres, increasing the geographic area of the city by 48 percent. The City annexed 254.8 acres in 1997 and 934 acres in 1998. The first requests for voluntary annexations began shortly after Martin County determined that certain roads had no more capacity to sustain further growth. As a consequence of this determination, Martin County imposed a moratorium on new development that would impact U.S. 1 north of the Roosevelt Bridge and the area west of the City on the other side of the Palm City Bridge. Some of the parcels annexed by the City in 1997 and 1998, could not be developed because of the transportation concurrency problem Martin County determined it had. Although there was no direct testimony from owners of parcels annexed by the City during 1997 and 1998, as to the reason they sought voluntary annexation of their property by the City, it is clear that at least some of the voluntary annexations were influenced by Martin County's moratorium and the hope of property owners that the City would take sufficient actions to resolve the transportation concurrency problem on U.S. 1 to allow owners to develop their property. More significantly, the annexations were probably influenced by a perception of property owners that obtaining approval for development from Martin County was a more difficult process generally than obtaining approval through the City. During 1997, the level of service (hereinafter referred to as "LOS") standard selected by Martin County for roads under its jurisdiction was a LOS D. While the City ultimately modified its LOS for roads impacted by development of some of the parcels annexed during 1997 and 1998, the evidence failed to prove that the City's modifications were not based upon reasonable planning principles. The 1997 Small Scale Amendments. The City did not determine specifically how the 16 parcels it annexed during 1997 would impact the City of Stuart's Comprehensive Plan (hereinafter referred to as the "City's Plan") before it accepted the voluntary annexations. Pursuant to Section 171.062(2), Florida Statutes, the 16 parcels the City annexed in 1997 remained subject to the Martin County Comprehensive Plan (hereinafter referred to as the "County Plan") and Martin County's land development regulations until the City amended the City's Plan to incorporate the parcels into the City. In particular, the parcels remained subject to the County Plan until the City amended the City's Plan to assign appropriate land uses to the annexed parcels. Therefore, as the parcels were annexed, the City undertook efforts to amend the City's Plan to assign appropriate land use designations to the parcels. The first nine of the 16 parcels annexed by the City during 1997 took place on September 8, 1997. The parcels were annexed pursuant to the voluntary annexation procedure of Section 171.044, Florida Statutes. Each of the nine parcels consisted of less than ten acres of land. Simultaneously with the annexation of the parcels, the City adopted ten small scale amendments to the Future Land Use Map (hereinafter referred to as the "FLUM") of the City's Plan assigning land use designations under the City's Plan to the parcels. The small scale amendments adopted by the City on September 8, 1997 (hereinafter referred to as "1997 Small Scale Amendments"), were designated Amendments 97S-1 by the Department. The Department did not, however, review the amendments because they constituted small scale amendments exempt from review by the Department pursuant to Section 163.3187, Florida Statutes. On October 8, 1997, Martin County filed a Petition for Formal Administrative Hearing with the Division of Administrative Hearings contending that nine of the 1997 Small Scale Amendments were not "in compliance" as those terms are defined in Section 163.3184(1)(b), Florida Statutes. The Petition was designated Case No. 97-4582GM. 1000 Friends did not challenge the 1997 Small Scale Amendments or intervene in Case No. 97-4582GM. Martin County alleged that the 1997 Small Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with Sections 163.3187(c)(1)(c) [sic] and 163.3187(c)(3)(c) [sic], Florida Statutes; They are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. The land use designations assigned to the parcels to which the 1997 Small Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. In two instances, the Kornbluh and Luce properties, the City's land use designations were virtually the same as Martin County's. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Small Scale Amendments relate and the rationale for the land use designations assigned to the parcels by the City: Kornbluh property (Parcel 1) This parcel consists of 1.4 acres. In the County, approximately half of the parcel was designated commercial/residential (COR), and the other half commercial. The parcel is surrounded by commercial land use to the north, south, east and west, and a portion of the western boundary abuts existing developed low density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1482-97. There is no substantive difference between the County's land use designation for the Kornbluh property and the City's land use designation. The same types of uses are permitted in both, such as gas stations, restaurants, bars, professional offices, veterinary offices, and other retail and commercial uses. 1st Christian Church property This parcel consists of approximately 2.8 acres and has an existing church on the property. In the County, the land use designation was low density residential. The property abuts some commercial property, some vacant property that was low density residential in the County but which has been changed to neighborhood special district in the City, a mobile home park, and some vacant land designated a medium density residential. Because the land has an existing church on the property, the City determined that institutional was a more appropriate land use designation. Thus, the City adopted an ordinance giving the property a land use designation of institutional pursuant to Ordinance No. 1494-97. City Cemetery property (Parcel 7) This parcel consists of 2.06 acres. Part of the property is used as a cemetery and the other part is vacant. In the County, the land use designation was commercial general. The City has given that part of the property that is used as a cemetery a land use designation of institutional pursuant to Ordinance No. 1501.97 and the vacant part a designation of commercial pursuant to Ordinance No. 1502.97. The City Cemetery property is at the intersection of Colorado Avenue and Monterey Road which is one of the most developed intersections in all of Martin County. The property is surrounded by commercial development and also a mobile home park. Luce property (Parcel 8) This parcel consists of approximately 4 acres. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1506-97. There is no difference between the City's and County's land use designation. The City considered a commercial land use designation as appropriate for the Luce property based on the existing use of the property and the surrounding land uses. Specifically, half of the property is currently used as a produce market and the property abuts commercial land use to the north and to the west. To the east, it abuts the old City landfill which is currently closed and to the south it abuts the Martin County jail. Mush property (Parcel 9A) This parcel consists of approximately 3 acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1509-97. The City considered the commercial land use designation as appropriate for the Mush property because it is fully developed as a contractor's showcase office. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. The City's land use designation of commercial is more restrictive than the County's land use designation of industrial. The County's industrial designation allows both industrial types of uses and commercial uses, such as a gas stations, professional offices, retail buildings, etc. The City's land use designation of commercial does not allow industrial uses. Treasure Coast Auction House property (Parcel 9B) This parcel consists of approximately 5½ acres and is fully developed. In the County, the land use designation was industrial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1512-97. The City considered the commercial land use designation as appropriate for the Treasure Coast Auction House property because it is fully developed as a Scotty's store. In addition, the surrounding land uses are commercial to the north and west and industrial to the south and east. As explained above in the findings of fact regarding the Mush property (9-A), the City's land use designation of commercial is more restrictive than the County's land use designation of industrial. Hospice property (Parcel 10) This parcel consists of approximately 10 acres. In the County, the land use designation was half low density residential and half commercial. The City has given it a land use designation of institutional pursuant to Ordinance No. 1515-97. The Hospice property is developed as a hospice facility and the owners have plans to expand the facility. The property abuts Indian Street, which is an existing two-lane facility which will become a four-lane facility. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Bailey property (Parcel 11) This parcel consists of approximately 10 acres and is currently vacant. In the County, the land use designations was half low density residential and half commercial limited. The City has given it a land use designation of commercial pursuant to Ordinance No. 1519-97. The Bailey property abuts Indian Street, which is an existing two-lane road which will become a four-lane road. Indian Street is considered a major collector in the County's comprehensive plan and it links U.S. 1 and State Road 76. Since it is a commercial corridor, the City considered the commercial designation on the property to be more appropriate than low density residential. Armellini property (Parcel 12) This parcel consists of approximately 1.2 acres. In the County, the land use designation was industrial and the City has given it a land use designation of commercial pursuant to Ordinance No. 1522-97. The Armellini property is on the corner of U.S. 1 and Indian Street and is in close proximity to other commercial development. The types of uses permitted by the City's commercial category is similar to the types of uses allowed by the County's industrial category, such as gas stations, office buildings, restaurants, and bars. The 1997 Large Scale Amendments and the Future Land Use Element Amendment. On December 7, 1997, the City adopted an amendment to the text of the Future Land Use Element (hereinafter referred to as the "FLUE") of the City's Plan. This amendment added a new land use designation to the City's Plan: "Neighborhood/Special District." The amendment also added goals, objectives, and policies concerning the new land use category. The newly created Neighborhood/Special District allows mixed land uses, including neighborhood commercial, office, residential, and recreational. Mixed residential and non- residential uses either in the same building or on the same site are required for a Neighborhood/Special District. A Neighborhood/Special District must have at least 30 percent residential uses and at least ten percent non-residential (excluding recreational) uses. Parking must be clustered in separate pockets rather than located in one expanse, and pedestrian interconnections must be used. On December 8, 1997, the City annexed seven parcels of property by voluntary annexation. On the same date the City adopted nine FLUM amendments assigning land use designations to the annexed property consistent with the City's Plan. Each of the parcels to which the FLUM amendments applied consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The nine large scale amendments to the FLUM and the FLUE amendment adopted by the City in December 1997 (hereinafter referred to as "1997 Large Scale Amendments and the "FLUE Amendment," respectively), were designated Amendment 97-1 by the Department. The Department reviewed the 1997 Large Scale Amendments and the FLUE Amendment. In a Statement of Intent issued February 9, 1998, the Department found the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance." The Department's determination was based upon its conclusion that the new land use category and existing non-residential land use categories applied in the 1997 Large Scale Amendments lacked a density/intensity standard. On February 17, 1998, the Department filed a Petition of the Department of Community Affairs with the Division of Administrative Hearings. The Petition was designated Case No. 98-0794GM. Martin County was granted leave to intervene in Case No. 98-0794GM by Order Granting Intervention entered March 11, 1998. Martin County challenged the FLUE Amendment and the 1997 Large Scale Amendments. Martin County alleged that the 1997 Large Scale Amendments and the FLUE Amendment were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They can not be reasonably implemented; They cannot be accommodated by existing and planned infrastructure; They fail to establish intensities of use; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; and They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. 1000 Friends did not challenge the 1997 Large Scale Amendments or the FLUE Amendment. Nor did 1000 Friends intervene in Case No. 98-0794GM. The land use designations assigned to the parcels to which the 1997 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1997 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Hendry property (Parcel 3) This parcel consists of approximately 7½ acres. The property contains an existing fully developed office warehouse, and in the County the land use designation was commercial general. The parcel abuts commercial property to the north, south, and west, and to the east it abuts a mobile home park as well as a conservation easement within a walled, gated residential development. Because the existing use was a warehouse, the City determined that a more appropriate land use designation would be industrial and suggested this land use to the owner. The City adopted the industrial land use designation pursuant to Ordinance No. 1488-97. With regard to the Hendry property, there is no difference between the County's land use designation of commercial and the City's land use designation of industrial. The existing office warehouse on the property is permitted both in the County's commercial designation. Millenium property (Parcel 4) This parcel consists of approximately 24½ acres and is vacant. In the County, the land use designation was commercial. The City has given it a land use designation of commercial pursuant to Ordinance No. 1491-97. There is no difference between the County's commercial land use designation and the City's commercial land use designation. Wacha property (Parcel 6) This parcel consists of approximately 47 acres. In the County, the land use designation was part mobile home, part low density, part medium density, and part industrial. The owner of the property approached the City with the idea of building a mixed use village on the property. The City was supportive of this idea and worked with the Treasure Coast Regional Council to develop a new land use category, neighborhood special district, as well as refine the site plan to create the mixed use village concept. The neighborhood special district land use category was adopted pursuant to Ordinance No. 1498-97. Part of the property that was originally designated industrial in the County was designated commercial in the City pursuant to Ordinance No. 1497-97. The neighborhood special district land use category will allow the Wacha property to be developed as a traditional neighborhood development project. The proposed development will include a town square area with shops and restaurants on the ground floor, apartments on the second floor, and parking behind the buildings to create a pedestrian-friendly thoroughfare. The development also includes a home office district where people can live and work in the same building. The development also proposes a single family residential neighborhood clustered around a common green with garages to the rear, and the building set with front porches on the street. The City and County's land use designation for the Wacha property differ significantly. The City's land use designation requires a mix of uses, with not less than 30% residential and not less than 10% commercial or non-residential development within a given property. The County's land use designations are exclusive, so that each specific property can only be used for mobile home park or light industrial or medium density residential or low density residential. The County would not permit a mixed use development on this property. The Wacha property is part of the City's Community Redevelopment Area. The City determined that the neighborhood special district land use designation would further the intent and purpose behind the Community Redevelopment Area which is to encourage redevelopment of blighted areas. Dubner North property (Parcel 13), Republic Industries property (Parcel 14), Dubner South property (Parcel 15) The Dubner North parcel consists of approximately 48 acres, the Republic Industries property consists of approximately 11½ acres, and the Dubner South property consists of approximately 56 acres. In the County, the land use designation for each of the properties was industrial. The City has given the Dubner North property a land use designation of part commercial pursuant to Ordinance No. 1525-97 and part industrial pursuant to Ordinance No. 1526-97, the Republic Industries property a land use designation of commercial pursuant to Ordinance No. 1529-97, and the Dubner South property a land use designation of commercial pursuant to Ordinance No. 1532-97. The Dubner North, Republic Industries, and the Dubner South properties are bound by the railroad tracks to the east. To the north, south, and west, the properties are surrounded by either County industrial or commercial future land uses or City commercial land uses. The Remedial Amendments. Subsequent to the opening of Case No. 98-0794GM, the Department and the City entered into a Stipulated Settlement Agreement pursuant to Section 163.3184(16), Florida Statutes. Martin County declined to enter into the Stipulated Settlement Agreement. The City agreed to adopt remedial amendments which included text descriptions of various land use categories, including the Neighborhood/Special Districts category, and a table setting for residential densities and commercial intensities for land use categories created in the City's Plan. On August 24, 1998, the City adopted remedial amendments consistent with the Stipulated Settlement Agreement (hereinafter referred to as the "Remedial Amendments"). The Remedial Amendments were adopted by Ordinance No. 1646-98. The Remedial Amendments, designated Amendment 98-R1 by the Department, were determined to be "in compliance" by the Department. Upon the adoption of the Remedial Amendments and the determination that the Remedial Amendments were "in compliance," the parties in Case No. 98-0794GM were realigned as required by Section 163.3184(16)(f)1, Florida Statutes, to reflect that Martin County was challenging the Department's conclusion that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments, were "in compliance." Martin County also filed a Petition for Formal Hearing challenging the Department's determination that the 1997 Large Scale Amendments and the FLUE Amendment, as modified by the Remedial Amendments were "in compliance." That Petition was filed with the Division of Administrative Hearings on December 17, 1998. The Petition was designated Case No. 98-5501GM. 1000 Friends did not challenge the Remedial Amendments. Nor did 1000 Friends intervene in Case No. 98-5501GM. I. The 1998 Large Scale Amendments. Between April 13, 1998, and June 22, 1998, the City annexed 16 large parcels through voluntary annexation. On August 24, 1998, the City adopted 33 FLUM amendments assigning land use designations to the newly annexed parcels consistent with the City's Plan. Eleven of the FLUM amendments were small scale amendments pursuant to Section 163.3187, Florida Statutes (hereinafter referred to as the 1998 Small Scale Amendments). The 1998 Small Scale Amendments were not reviewed by the Department even though they were submitted to the Department with the other 22 FLUM amendments. The parcels to which the other 22 FLUM amendments related consisted of more than ten acres of land and, therefore, were not considered small scale amendments exempt from Department review. The 22 large scale amendments adopted on August 24, 1998 (hereinafter referred to as "1998 Large Scale Amendments), were designated Amendment 98-1 by the Department. The Department reviewed the 1998 Large Scale Amendments and found them "in compliance." Martin County and 1000 Friends filed separate Petitions for Formal Hearing with the Department challenging the determination that the 1998 Large Scale Amendments were "in compliance." The Petitions filed by Martin County and 1000 Friends were filed with the Division of Administrative Hearings on December 17, 1998. The Petitions were designated Case Nos. 98- 5503GM and 98-5510GM, respectively. Martin County alleged that the 1998 Large Scale Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent Chapter 9J-5, Florida Administrative Code. 1000 Friends alleged that the 1998 Large Scale Amendments were not "in compliance" because they were adopted without intergovernmental coordination. The land use designations assigned to the parcels to which the 1998 Large Scale Amendments apply were determined by the City based upon a consideration of the existing uses of the properties, existing and future land use designations of surrounding properties, natural resources on the properties, development trends in the area, analysis of infrastructure availability, and land use designation of Martin County for the properties. Modifications to Martin County's land use designations for the properties were based upon consideration of existing non-conforming land uses of the properties and existing patterns of development in the area. Modifications in Martin County land use designations were based upon sound planning principles. The following findings of fact (with paragraph numbers, footnotes, and citations omitted) were recommended by the City in its Proposed Order. These findings accurately describe the parcels to which the 1998 Large Scale Amendments relate and the rationale for the land use designations assigned to the properties by the City: Pulte Homes property (Parcel F3), Vista A property (Parcel F5), Gibson property (Parcel F6), and Debartolo property (Parcel F24) The Pulte Homes parcel consists of approximately 312 acres. In the County, the land use designation was low density residential and high density residential. The City has given it a combination of conservation, pursuant to Ordinance No. 1549- 97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97. The Vista A parcel consists of approximately 9 acres and is vacant. In the County, the land use designation was commercial/office/residential (COR) and high density residential. The City has given it a land use designation of commercial pursuant to Ordinance No. 1546-97. The Vista B parcel consists of approximately 44 acres and is vacant. In the County, the land use designation was low density residential and the City has given it a land use designation of low density residential pursuant to Ordinance No. 1553- 97. The Gibson parcel consists of approximately 100 acres. In the County, the land use designation was low density and commercial general. That part of the property that was designated commercial in the County was given a commercial land use designation in the city pursuant to Ordinance No. 1557-97. That part of the property that was designated low density residential in the County was given a combination of low density residential and conservation (Ordinance No. 1558-97), and multi-family residential (Ordinance No. 1559-97) pursuant to Ordinance No. 1549-97, low density residential, pursuant to Ordinance No. 1550-97, and neighborhood special district, pursuant to Ordinance No. 1551-97 in the City. The Debartolo parcel originally consisted of 205.90 acres. However, a portion of the parcel has been reannexed by the City to cure the defects found by the circuit court. The County's land use designation was a mixture of low, medium and high density residential. The City has given it a combination of part neighborhood special district pursuant to Ordinance No. 1618-97, part low density residential and conservation pursuant to Ordinance No. 1620-97, and part multi-family and conservation pursuant to Ordinance No. 1622-97. These five parcels (Pulte, Vista A, Vista B, Gibson, and Debartolo) contain a series of wetlands that form a slough that drains through Arant's swamp, or Haney Creek, and into the St. Lucie River. In terms of long- range planning, the City believed it best to implement a series of greenways and flow-ways to interconnect those wetlands and preserve areas to help clean up a non-point source pollution problem that was occurring in the St. Lucie River. Thus, recommending an appropriate land use designation for these properties, the City considered the pattern of wetlands in the area that form the slough and proposed a conservation land use designation for parts of some of the properties. In addition, the City received a grant from the Florida Communities Trust to purchase 84 acres of Arant's swamp or Haney Creek. This area is south of the five properties described above. The 84 acres form a flow- way for all of the water flow that comes from north to south and ultimately into the St. Lucie River. The City is proposing to construct a greenway which would connect the wetlands in the five properties described above so that water can flow unimpeded into Arant's swamp and ultimately into the St. Lucie River. Those connections would be accomplished at site planning and connected under roadways with staged culverts so animals can travel along the sides and water can flow through the middle. Comparing the City and County's land use designations for these five parcels, the land use designations adopted by the City are more appropriate than the County's land use designations and will result in a better use of the properties. For instance, by changing some of the land uses from low density residential in the County to conservation in the City, the environmentally sensitive areas will be preserved in perpetuity. In addition, by changing the County's high density residential use for the Pulte Homes property to neighborhood special district in the City, the development will require a mix of uses including some commercial which will be interconnected in a pedestrian fashion to the existing single family home development which lies to the east. This will lessen the need for additional vehicular trips and encourage alternative forms of transportation. Stewart property (Parcel F11), Madyda property (Parcel F12), First Eastern Residential property (Parcel F13), First Eastern property (Parcel F14), and SK Partner's I property (Parcel F15) The Stewart parcel (F11) consists of approximately 15 acres of land and is vacant. In the County, the land use designation was a mix of low and medium density residential, and commercial/office/residential (COR). The City has given it a land use designations of multi-family residential pursuant to Ordinance No. 1576-97. The Madyda parcel (F12) consists of approximately 6½ acres. The County's land use designation was a mix of medium density residential and commercial/office/residential (COR). The City has given it a land use designation of commercial pursuant to Ordinance No. 1579-97. The First Eastern Residential parcel (F13) consists of 50 acres and is a fully developed low income housing project. The County's land use designation was medium density and low density residential. The City has given it a designation of multi-family pursuant to Ordinance No. 1582-97. The First Eastern parcel (F14) consists of 32.20 acres and is vacant. The County's land use designation was a mixture of Commercial pursuant to Ordinance No. 1585-97. The SK Partners I parcel (F15) consists of 18.94 acres and is vacant. The County's land use designations was commercial general. The City has given it a land use designation of commercial pursuant to Ordinance No. 1588-97. There is no difference between the City's and the County's land use designations. Sunbelt Partners/Stetson property (Parcel F17), Sunbelt Partners property (Parcel F18), SK Partners II property (Parcel F190) The Sunbelt/Stetson parcel (F17) consists of approximately 25½ acres, the Sunbelt Partners parcel (F18) consists of approximately 2.5 acres, and the SK Partners II parcel (F19) consists of approximately 38 acres. All three parcels are vacant. The City's original annexation of the Sunbelt Partners/Stetson parcels was invalidated by the circuit court. However, a portion of the parcel has been reannexed. The County's land use designation for the three parcels was primarily commercial, with a small amount of commercial/office/ residential. The City's gave all three parcels a land use designation of commercial pursuant to Ordinance Nos. 1615-97, 1612-97, and 1609-97. There is no real difference between the County's and the City's land use designations. Dubner East property (Parcel F22), Sellian property (Parcel F22), Dubner West property (Parcel F23) The Dubner East parcel consists of approximately 11.5 acres, the Sellian parcel (F22) consists of approximately 4 acres, and the Dubner West (F23) consists of approximately 10 acres. Dubner East is vacant, the Sellian property is developed as an office building and indoor assembly, and the Dubner West property is partially developed as an office building. The County's land use designation for each of the parcels was industrial. The City has given each a land use designation of commercial pursuant to Ordinance Nos. 1600-97, 1603-97, and 1606-97. The three properties abut County industrial land uses, although for the most part, the properties are developed as commercial uses. The properties also abut City commercial land uses. The City's land use designation is more restrictive than the County's because the County industrial allows both industrial and commercial uses while the City's commercial designation allows only commercial uses. The City's Evaluation and Appraisal Report Amendments. Consistent with Section 163.3191, Florida Statutes, the City conducted an Evaluation and Appraisal Report, including suggested amendments to the City's Plan. On August 24, 1998, simultaneously with the adoption of the 1998 Large Scale Amendments and the 1998 Small Scale Amendments, the City adopted amendments to all elements of the City's Plan (hereinafter collectively referred to as the "EAR Amendments") based upon the recommendations of the Evaluation and Appraisal Report. The EAR Amendments include density and intensity standards adopted as part of the Remedial Amendments to the Future Land Use Element of the City's Plan. The EAR Amendments revise the schedule for capital improvements and establish new concurrency requirements as part of the Capital Improvements Element of the City's Plan. The EAR Amendments set out the steps the City will take to coordinate the City's Plan and its implementation with other agencies and entities as part of the Intergovernmental Coordination Element of the City's Plan. The EAR Amendments revise LOS standards for transportation in the Transportation Element of the City's Plan The EAR Amendments were reviewed by the Department simultaneously with the 1998 Large Scale Amendments and found to be "in compliance." The EAR Amendments were designated Amendment 98-ER1 by the Department. The 1998 Small Scale Amendments were also submitted to the Department with the 1998 Large Scale Amendments and the EAR Amendments but were ultimately withdrawn by the City at the request of the Department. Martin County and 1000 Friends also challenged the EAR Amendments in their Petitions challenging the 1998 Large Scale Amendments filed in Case Nos. 98-5503GM and 98-5510GM, respectively. Martin County alleged that the EAR Amendments were not "in compliance" because: They are not supported by data and analysis; They were adopted without adequate intergovernmental coordination; They are internally inconsistent with the City's Plan; They do not discourage urban sprawl; They do not adequately protect natural resources; They cannot be accommodated by existing and planned infrastructure; They are inconsistent with the State Comprehensive Plan of Chapter 187, Florida Statutes; They are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast; and They are inconsistent with Chapter 9J-5, Florida Administrative Code. Martin County did not allege which specific elements of the City's Plan amended by the EAR Amendments were being challenged in its Petition. It merely alleged that "Stuart's comprehensive plan amendments" are not in compliance. In the Joint Proposed Order filed by Martin County and 1000 Friends, specific portions of the Intergovernmental Coordination Element (Policies A1.13 through A1.23, Policy A2.4, Policy A7.3, Objective 8, and Policies A8.1 through A8.11), the FLUE (Policies B1.2 through B1.4), and the Capital Improvements Element (the selection of LOS E) are cited. The specific objective and policies cited in the Joint Order are hereby incorporated into this Recommended Order by reference. Additionally, the Future Annexation Map adopted as part of the EAR Amendments by the City is cited in the Joint Proposed Order. The Future Annexation Map includes 8,000 additional acres which are projected to be annexed into the City by the year 2015. 1000 Friends' challenge to the EAR Amendments is limited to a challenge to the City's Intergovernmental Coordination Element. Data and Analysis. At the time that all of the amendments at issue in this proceeding were adopted there was more than adequate data and analysis to support all of the amendments. The data and analysis relied upon by the City in adopting the 1997 Small and Large Scale Amendments, the FLUE Amendment, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments was professionally acceptable. The testimony of Martin County's expert planner concerning data and analysis was not persuasive. That testimony was not based upon a complete review of the data and analysis relied upon by the City and the Department. The evidence presented by Martin County concerning data and analysis focused largely on the fact that the property to which the 1997 Small and Large Scale Amendments and the 1998 Large Scale Amendments related had been annexed before the accumulation of all the data and analysis relied upon in support of the amendments. That evidence was irrelevant because the Act and the rules promulgated thereunder do not govern annexations; they govern plan amendments and require that the data and analysis be available at the time a plan amendment is adopted and not at the time of annexation. Data and analysis were required for the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments, not to support the need for the annexed property, but to support the City's choice of land use classifications assigned to the annexed property. There were ample data and analysis to support the City's choices. Once the properties at issue in this proceeding were annexed consistent with Chapter 171, Florida Statutes, the City began the process of considering the amendments to the City's Plan necessary to accommodate the annexations and bring them under the City's Plan. While the evidence did prove that the City now has approximately 33 years of commercial property to meet the needs of the City during the 20 years of the City's Plan, there is no requirement in the Act or the implementing rules that a need for annexed property be present before annexation occurs. The commercial property located in the City as a result of the 1997 Small Scale Amendments and the 1997 and 1998 Large Scale Amendments is not significantly different from the amount of commercial property which existed prior to the amendments. Most of the annexed property was designated commercial or industrial by the County Plan. Industrial uses under the County Plan include many of the same uses of commercial property under the City Plan. Under these circumstances, the City made the most reasonable planning decision by classifying the annexed property consistent with surrounding land uses and Martin County's prior land use designation of land use for the property. The City completed a needs analysis as part of its review and revision of the City's Plan through the EAR Amendments. That analysis was based upon data available at the time of the EAR Amendments. The data was also available at the time the 1997 Small Scale Amendments, the 1997 and 1998 Large Scale Amendments, the FLUE Amendment, and the Remedial Amendments were adopted. The City's needs analysis included an allocation of land uses to the land use categories designated in the City's Plan. Although the allocation of land resulted in an allocation of more commercial land than may be required during the life of the City's Plan, the evidence failed to prove that such a surplus results in any under allocation of land to other classifications. Approximately 150 acres of the property annexed by the City during 1997 and 1998 were re-designated commercial by the City. Eighteen of those acres have already been developed, leaving an additional 132 acres of commercial land in the City. The evidence failed to prove that this increase of acreage is significant. Evidence presented by Martin County as to the increase in commercial property was not persuasive. In actuality, the increase in property designated commercial as a result of City's annexations amounts to approximately 48 acres. There were a total of 35 parcels designated commercial by the City, including the 1998 Small Scale Amendments. Most of those parcels were already developed in whole or in part with commercial, commercial-like, or industrial land uses. The uses of property classified industrial are also substantially similar to the uses allowed for commercial to result in little discernable effect on the supply of commercial property in the City. The only vacant parcels assigned a land use designation of commercial by the City that were not classified commercial or industrial by Martin County were referred to at hearing as parcels 1, 11 F4, F7, F12, and F14. Parcel 1 consisted of 1.4 acres. Approximately half of parcel 1 was designated commercial and the other half was designated commercial/office/residential. At most, this amounts to an increase of .7 acres of commercial. Parcel 11 consists of ten acres, parcel F4 consists of nine acres, parcel F7 consists of 5.06 acres, parcel F12 consists of 6.67 acres, and parcel F14 consists of 32.20 acres. Half of parcel F14 was classified as commercial by Martin County. The evidence also proved that the possible intensity of use for the property annexed by the City during 1997 and 1998, when compared with the possible intensity of use under the County Plan is less under the City's land use classifications. Martin County's expert testimony concerning increases in intensity was not credible. That testimony was based upon small scale parcels 5, 10, and 11, and large scale parcels 6, F6, and F24. Parcel 5 is already developed as 1st Christian. Parcel 10 is partially developed and the testimony concerning Martin County's land use designation for the property was incorrect. For parcel 6, the Wacha property, the testimony by the Martin County expert concerning Martin County's land use designation for part of the property was incorrect. The portion of the property designated commercial by the City was classified as industrial by Martin County. For parcel F6, the Gibson property, only a fourth of the property was designated multi-family. The rest of the property was given a land use designation that is the same or less intense then that allowed by the County. For parcel F24, the Debartolo property, Martin County's land use designation was a combination of low, medium, and high density residential and not just low density residential as testified by Martin County's expert witness. Most of the property was low density residential under the County's Plan and remained low density residential under the City's Plan. The calculations concerning the increase in intensity of use made by Martin County's expert witness were flawed and not credible, as explained in findings of fact 123 through 125. Martin County's assertion that the Remedial Amendments are not supported by data and analysis because of the increase in intensity of commercial property is rejected. In addition to the question of data and analysis to support the land use classifications assigned to the annexed property by the City, Martin County has suggested that there is insufficient data and analysis concerning how public facilities will be provided to the annexed property. The evidence failed to support this assertion. At the time of the 1997 and 1998 Small and Large Scale Amendments the City did not perform a concurrency analysis. Concurrency analyses are required at the time of site plan review or other application for another development permit. Therefore, neither the Act nor the City's Plan required a concurrency analysis. A transportation analysis involves transportation planning for an extended period of time and not planning for individual parcels. Capital facilities and available capacity for a five-year period are looked at in a transportation analysis. Concurrency analyses, on the other hand, are performed on individual parcels of property at the time of proposed development of those parcels. Neither a transportation analysis nor a concurrency analysis is required when a local government designates a general land use classification for a parcel of property. Martin County has asserted that the City's decision to adopt a LOS E and to "maintain" the actual existing LOS for two segments of U.S. 1 and State Roads 707 and 714, both of which are projected to have LOS F within the next five years in light of the moratorium it has imposed on development along U.S. 1 supports its argument that the FLUM amendments are not supported by data and analysis. They assert that evidence presented by the City's expert transportation engineer cannot be considered data and analysis because it was prepared after the FLUM amendments. This assertion is rejected. While the analysis may not have been available, the data was. More importantly, the testimony of the City's expert engineer may be relied upon to refute Martin County's assertion that there existed a transportation concurrency problem at the time the FLUM amendments were adopted. Martin County based its conclusion on an outdated Florida Department of Transportation table adopted as part of the County's Plan. That table lacked a footnote that cautioned against anything other than very general reliance on the table. Martin County's assertions concerning transportation concurrency were also refuted by the more accurate analysis performed by the City's expert engineer. Based upon his analysis, which was unrefuted by credible evidence, there is in fact no LOS deficiency not addressed by the City's Plan. The difference between the LOS adopted by the City and Martin County's LOS is not significant. The reports of the City's expert transportation engineer were sufficient data and analysis to support the EAR Amendments to the Capital Improvements and Transportation Elements. The LOS selected by the City, LOS E, is the most efficient use of the City's arterial roadways under current conditions. The evidence failed to prove that there were inadequate data and analysis to support Policy A1.1 of the FLUE. The evidence failed to prove that there were inadequate data and analysis concerning the effectiveness of existing intergovernmental coordination mechanisms. Intergovernmental Coordination. In May 1997, the City notified Martin County that it was considering a series of voluntary annexation requests it had received. The City and Martin County have entered into formal and informal agreements dealing with the provision of a number of services, including water and sewer, emergency rescue, solid waste, and law enforcement. Impact fees are dealt with by interlocal agreement pursuant to which the City collects impact fees for library services, regional parks, and county roads on behalf of the Martin County. Following the City's notification to Martin County of the voluntary annexation requests it had received, City staff and the Director of Public Works for Martin County met to discuss the provision of water and sewer service to the annexed areas. An agreement was reached between the City and Martin County as to which entity would be responsible for water and sewer services to each parcel to be annexed. Discussions between City and Martin County staff concerning responsibility for maintenance of roads were also held, including discussions at meetings of the Metropolitan Planning Organization Technical Advisory Committee. The Metropolitan Technical Advisory Committee was established to provide for intergovernmental coordination in Martin County. Issues concerning road maintenance were resolved. Beginning essentially at the time of the notice to Martin County of the voluntary annexation requests the City had received, Martin County attempted to prevent the annexations. Although Martin County cooperated to resolve some of the problems that resulted from the annexations, Martin County prepared an emergency agenda item directing staff to evaluate the annexations and seek ways of preventing the annexations. Martin County staff reports concerning the proposed annexations indicated few problems that would result from the annexations. The reports were submitted to the City by Martin County. Martin County indicated, however, that it would be conducting further analysis on potential traffic impacts. Martin subsequently reported to the City that it had further concerns and would be attending a City scheduled workshop to be held in July 1997. No one from Martin County attended the workshop held in July or the workshop held by the City in September 1997. City staff reviewed all of Martin County's comments, notified the City Commission of the comments, and took the comments into consideration in making recommendations concerning the annexations and amendments to the City's Plan to the City. On September 16, 1997, the City notified Martin County of further requests for voluntary annexation. City staff thereafter attempted to schedule meetings with Martin County staff to discuss these annexations. Additional discussions were held with Martin County concerning utilities. These discussions resulted in agreements concerning the provision of utilities to the annexed parcels. Discussions concerning stormwater were also held between the City and Martin County. Transportation issues were discussed at Metropolitan Planning Organization Technical Advisory Committee meetings. Martin County wrote letters to the City and made oral comments concerning the FLUM Amendments. Martin County raised concerns over urban sprawl, concurrency, and intergovernmental coordination. Martin County also filed challenges to the City's annexations resulting in a number of civil actions between the City and Martin County. As a result of these actions and Martin County's attempts to prevent the annexations, relations between City and Martin County staff became strained. It became increasingly difficult for staff to work together to resolve common issues. In November 1997 Martin County sent a letter to the City expressing concerns over the late 1997 annexations involving urban sprawl and transportation concurrency. These comments were considered by the City. Martin County staff attended an August 1998 meeting at which the City adopted the FLUM Amendments relating to the late 1997 annexations. These comments were considered by the City. While the City and Martin County did not come to a consensus over all issues relating to the FLUM amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the diametrically opposing positions of the two governments concerning the annexations which gave rise to the amendments at issue in these cases, it is doubtful that any further coordination between the City and Martin County could have resolved the issues between the City and Martin County. Prior to adopting the EAR Amendments and the 1998 Large Scale Amendments, the City's planning consultant reviewed the FLUM amendments that had already been adopted, the EAR Amendments, and the additional FLUM amendments the City was considering. The consult obtained data from Martin County concerning population and traffic. Efforts to obtain information from Martin County, however, were by this time difficult. The City even had to result to a public records request from Martin County to obtain some information. Again, while the City and Martin County did not come to a consensus over all issues relating to the EAR Amendments and the 1998 Large Scale Amendments, it cannot be said that there was not sufficient intergovernmental coordination between them. Given the state of deterioration of the relationship between the City and Martin County by the time these amendments were considered and adopted by the City, it is doubtful that any further coordination between the City and Martin County would have resulted in any improvement in the EAR Amendments or the 1998 Large Scale Amendments. In addition to the fact that the intergovernmental coordination between the City and Martin County under the circumstances of this matter was adequate, any lack of coordination did not result in any substantial issues concerning the amendments to the City's Plan not being resolved. The evidence in these cases has not supported Martin County's or 1000 Friends' alleged deficiencies with the amendments. Evidence concerning intergovernmental coordination or the lack thereof before and during annexation of the parcels to which the FLUM amendments in these case relate was irrelevant. Nothing in the Act or the rules promulgated thereunder requires intergovernmental coordination on annexations. The City adopted an Intergovernmental Coordination Element as part of the EAR Amendments. The Element includes policies which relate to procedures for dealing with coordination concerning the development of the annexed areas. Those policies are quoted in the City's Proposed Order at finding of fact 149 and are incorporated herein by reference. The Intergovernmental Coordination Element adopted by the City does not meet the requirements of Section 163.3177(6)(h), Florida Statutes. It does, however, meet the requirements of Sections 163.3177(4)(a) and (10)(b), Florida Statutes, and Rule 9J-5.015, Florida Administrative Code. The requirements of Section 163.3177(6)(h), Florida Statutes, must be met by local governments no later than December 31, 1999. Pursuant to Section 163.3177(6)(h)4., Florida Statutes, the Department adopted Rule 9J-40, Florida Administrative Code, providing, in part, that the City submit an intergovernmental coordination element in compliance with Section 163.3177(6)(h), Florida Statutes, no later than June 1, 1997, and that the element be adopted no later than December 31, 1997. In a publication of the Department called the Summer 1998 Community Planning publication, the Department informed the City to ignore Rule 9J-40, Florida Administrative Code, and submit its intergovernmental coordination element no later than December 31, 1999. The City complied with this direction from the Department. The Department did not repeal Rule 9J-40, Florida Administrative Code. Although Section 163.3177(6)(h)4., Florida Statutes, authorizes local governments to comply with Section 163.3177(6)(h), Florida Statutes, earlier than December 31, 1999, the City has not opted to do so. Internal Inconsistency. Goal A of the FLUE provides that the City will "[m]aintain and enhance its small town waterfront character." Although the City has increased its size by 48 percent, it has not increased its "waterfront." None of the amendments to the FLUM at issue in these cases involve property located on the City's waterfront. The evidence also failed to prove that a 48 percent increase in the size of the City in and of itself is contrary to the City's small town character. Finally, the impact on the City's character is a result, not of the designation of land use categories for the annexed property, but from the annexation itself. Although annexation is the catalyst for the amendments being challenged in this proceeding, the fact of the annexation cannot be the issue. Policy A.3.2 of the FLUE provides that the City should "direct development to areas already served by adequate government utilities, services and schools . . . ." While some of the roads serving many of the annexed parcels were determined to be over-utilized, that over-utilization was based upon Martin County's LOS. Based upon the City's newly established LOS E, there are adequate road services for the annexed properties. The delivery of other utilities, services, and schools to the annexed properties has been coordinated between the City and Martin County or those services are already being provided. Objective B.3 of the FLUE provides that the City will discourage urban sprawl and continuous linear development along major roadways in order to achieve a compact urban form. While the annexed parcels are located along U.S. 1, their designated land uses pursuant to the amendments at issue are essentially consistent with their present uses or designated land uses. Little change in the form of development of the annexed parcels will occur as a result of the amendments. Therefore, the FLUM amendments do not increase linear development. Rather, they recognize it. As discussed, infra, the annexed properties do not constitute urban sprawl. As amended by the EAR Amendments, Objective B.1 of the FLUE provides that the City will "[d]iscourage urban sprawl by planning for urban infill and redevelopment of lands located within Stuart." The FLUM amendments constitute urban infill and are consistent with Objective B.1 as amended by the EAR Amendments. Objective B.3 of the FLUE requires a commitment of the City to the promotion of patterns of land use that are compatible and convenient to residents, businesses, and visitors, and the avoidance of the wasteful use of land. The evidence failed to prove that the FLUM amendments are inconsistent with this objective. Again, there is little difference in the uses of the property which is the subject of the FLUM amendments before and after their annexation. Policy A.8 of the Infrastructure Element of the City's Plan requires that the City will maximize the use of existing facilities and discourage urban sprawl through its annexation policy. Policy A.3.3, Objectives A.5, A.6, A.7, and A.9, and Policy A8.1 also provide similar guidance to the City. As discussed, infra, the FLUM amendments do not fail to discourage urban sprawl. The FLUM amendments also are not inconsistent with these provisions to the extent that they require the City to maximize the use of existing services. Policy A1.1 of the Housing Element of the City's Plan provides that the City must designate adequate residential land to accommodate projected need for housing. The most up to date analysis of existing population data suggests that there is adequate housing to meet the City's need for housing through the year 2015. The evidence failed to prove that anything about the amendments at issue in these cases are inconsistent with this policy. The evidence failed to prove that the amendments at issue in these cases are inconsistent with any provision of the City's Plan. The consistency of the foregoing goals, objectives, and policies with the City's Plan were the only ones specifically addressed in the Joint Proposed Order. The City also addressed the consistency of a number of other goals, objectives, and policies with the City's Plan. Those findings of fact (182-190, 193-195, 197, and 200-204) are hereby accepted and incorporated into this Recommended Order by reference. Urban Sprawl. The areas annexed by the City, while including some vacant land, are not located in a rural or predominately rural area. Instead, the annexed parcels are all located in an area designated in the County's Plan as the "Primary Urban Service Area." An independent evaluation of the properties confirms their urban location. The indicators of urban sprawl listed in Rule 9J- 5.006(5), Florida Administrative Code, do not apply to the annexed parcels when considered "within the context of features and characteristics unique to each locality." The testimony of Martin County's witnesses concerning the "linear pattern" of development evidenced by the annexed parcels failed to take into account the character of surrounding and abutting, unincorporated properties and the location of all the parcels within the "Primary Urban Service Area" established in the County's Plan. Testimony offered by Martin County concerning urban sprawl was also not credible because Martin County's expert witness did not complete the land use analysis of Rule 9J-5.006(5)(h) through (j), Florida Administrative Code, because she failed to evaluate local conditions and development controls. Natural Resources. The evidence did not prove that any of the amendments at issue in these case fail to adequately protect natural resources. Availability of Infrastructure. As explained, supra, the City and Martin County coordinated the continued provision of most public utilities and services to the annexed parcels. Continued water, sewer, emergency rescue, law enforcement, and solid waste disposal services for the annexed parcels were all coordinated between the City and Martin County. Water and sewer services and recreational facility needs were analyzed by the City and found to be adequate. The evidence failed to prove that any necessary infrastructure is not available or will not be provided by the City. The Future Annexation Map. The City's Evaluation and Appraisal Report included a Map of Future Annexation. The Map of Future Annexation identified a small area south of the City for future annexation over the next ten years. The areas actually annexed by the City during 1997 and 1998 involve a more extensive area than that identified on the Map of Future Annexation. The areas identified on the Map of Future Annexation were areas which the City believed it would likely desire to annex and did not take into account voluntary annexation. The Map of Future Annexation was not intended to exclude such voluntary annexations. The EAR Amendments also include a Future Annexation Area Map (hereinafter referred to as the "FAA Map"). The FAA Map identifies approximately 8,000 additional acres of land which the City may consider annexing through the year 2015. The FAA Map is not, however, intended to represent an area which the City intends to pursue for annexation. It simply identifies the maximum area within which the City intends to consider annexation. It is, in effect, intended as a limitation on annexations that the City would pursue. The evidence failed to prove that the FAA Map is not a reasonable boundary for the possible expansion of the City through the year 2015 by annexation. The State and Regional Plans. The evidence failed to prove that any of the challenged amendments are inconsistent with the State Comprehensive Plan, Chapter 187, Florida Statutes. The evidence failed to prove that any of the challenged amendments are inconsistent with the Strategic Regional Policy Plan for the Treasure Coast. The Strategic Regional Policy Plan for the Treasure Coast was not offered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order dismissing Hospice Foundation of Martin & St. Lucie, Inc., as a party. IT IS FURTHER RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the 1997 Small and Large Scale Amendments, the Remedial Amendments, the 1998 Large Scale Amendments, and the EAR Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of October, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1999. COPIES FURNISHED: Paul R. Bradshaw, Esquire Paul R. Bradshaw, P.A. 1345 Dupont Road Havana, Florida 32333 Gary K. Oldehoff, Esquire Martin County Attorney 2401 South East Monterey Road Stuart, Florida 34996 Terrell Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Post Office Box 5948 Tallahassee, Florida 32301 Robert C. Apgar, Esquire Yeline Goin, Esquire 902-A North Gadsden Street Tallahassee, Florida 32303 Carl Coffin, Esquire City of Stuart 121 South West Flagler Avenue Stuart, Florida 34994 Shaw Stiller, Assistant General Counsel Karen A. Brodeen, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Tim B. Wright, Esquire Louis E. Lozeau, Jr., Esquire Warner, Fox, Seeley, Dungey and Sweet, L.L.P. Post Office Drawer 6 Stuart, Florida 34995 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
