The Issue The ultimate issue is whether Sarasota County's comprehensive plan amendments adopted by Ordinance No. 2007-64 (Plan Amendments), as amended by remedial plan amendments adopted by Ordinance No. 2008-33 (Remedial Plan Amendments), are in compliance, as provided by Section 163.3184(1)(b), Florida Statutes, with respect to: 1) whether the county's designation of several segments of University Parkway as Level of Service (LOS) D for concurrency review, on the basis of a claim that the road is "constrained," is supported by data and analysis; 2) whether the supporting traffic analysis was conducted in a professionally acceptable manner; and 3) whether the identified transportation facilities are financially feasible.
Findings Of Fact Background Petitioner owns the Westfield Sarasota Square Mall in Sarasota County. The mall is located at U.S. Route 41 and Beneva Road. Petitioner timely submitted written and oral comments to the Plan Amendments and Remedial Plan Amendments. Having purchased the property in July 2002, Intervenors are the developers of Sarasota Interstate Park of Commerce (SIPOC) in Sarasota County. The development is located at the southwest quadrant of the interchange of I-75 and University Parkway. The boundary between Sarasota and Manatee counties is somewhere within the right-of-way of University Parkway between I-75 on the east (or a point just east of I-75) and U.S. Route 301 on the west. University Parkway is an east-west arterial, multilane road that extends to the east of I-75 past a large multiuse development in Manatee County known as Lakewood Ranches. To the west, University Parkway extends past the Sarasota airport to its terminus at U.S. Route 41 in the vicinity of New College. Honore Avenue is a north-south road (at least it is in the vicinity of University Parkway) and is the first road west of SIPOC. The first road south of SIPOC, DeSoto Road is an east-west road terminating just west of I-75 on the east and a short distance west of Honore Avenue on the west. Cattlemen Road is a major north-south road that runs just west of I-75 and crosses two roads with I-75 interchanges to the south of the University Parkway interchange: Fruitville Road and Bee Ridge Road. Until SIPOC, the northern end of Cattlemen Road was south of University Parkway. However, Intervenors are constructing North Cattlemen Road from University Parkway to the north (directly across from the point at which Cooper Creek Boulevard terminates at University Parkway), past DeSoto Road, to Richardson Road, which is the northern terminus of Cattlemen Road at present. Richardson Road is just north of Fruitville Road. On July 27, 1993, Sarasota County issued a development order (DO) for a development of regional impact for SIPOC. Pursuant to the DO, the approved use for SIPOC Phase I was 633,888 square feet of retail, and the approved uses for SIPOC Phase II were 215,210 square feet of retail, 547,488 square feet of light industrial, 240,982 square feet of office, 500 hotel rooms, and 750 multifamily dwelling units. Phase I of SIPOC is substantially complete and has resulted in the construction of a SuperTarget at the site. This case involves the development that will constitute Phase II of the SIPOC. On July 10, 2007, at the request of Intervenors, Sarasota County adopted two ordinances concerning SIPOC: Ordinance No. 2006[sic]-80 and Ordinance No. 2007-64. Ordinance No. 2006-80 amends the SIPOC DO to approve the following uses: 1,680,000 square feet of retail, 220,000 square feet of office, 500 hotel rooms, and 1750 multifamily dwelling units (Amended DO). The Amended DO, which was never challenged, is effective on the date that the Plan Amendments described in Ordinance No. 2007-64 are found in compliance. The buildout date of the Amended DO is December 31, 2009. For Phase II, the traffic impact intensities may not exceed 6405 gross p.m. peak hour trip ends or 3795 net new p.m. peak hour trip ends. Amended DO, p. B-6. The Master Development Plan depicts the proposed development, which fronts onto University Parkway, as divided into eastern and western sections by proposed North Cattlemen Road (and a 330-wide FPL transmission easement alongside the east side of North Cattlemen Road). From north to south, on the west side of the road and transmission line are commercial/office, commercial/residential, residential, and a conservation easement in the back of the parcel. On the east side of the road and transmission line are commercial/residential/office, residential, and a large stormwater management easement in the back of the parcel. Amended DO Condition H addresses transportation. Condition H.1 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase I or II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.1 states: No Construction Plan approval shall be issued for any SIPOC Phase I or II development until such time as contracts for construction of the following improvements have been executed, and no Certificate of Occupancy nor temporary Certificate of Occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at North Cattlemen Road intersection, including the following turn lane additions: One eastbound right turn lane for a total of one; One westbound left turn lane for a total of two; Two northbound left turn lanes for a total of two; Two northbound through lanes for a total of two; and Two northbound right turn lanes for a total of two. Construction of a northbound right turn lane at the Honore Avenue/DeSoto Road intersection. Construction of DeSoto Road as a divided two lane arterial from Honore Avenue to North Cattlemen Road. Construction of North Cattlemen Road as a divided four lane roadway from University Parkway to DeSoto Road. These improvements have been identified as being required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements, except the County shall assist in the acquisition of required right-of-way not under the ownership or control of the Applicant, provided that the Applicant shall be responsible for the expense thereof (except as otherwise set forth in agreements between the County and the Applicant). Amended DO, p. B-19. Amended DO Condition H.2 identifies the transportation improvements that must be accepted by Sarasota County prior to the approval of Phase II construction plans or the issuance of a certificate of occupancy. Amended DO Condition H.2 states: Construction Plan approvals shall not be issued for any SIPOC Phase II development until such time as contracts for the construction of the following improvements have been executed, and no certificate of occupancy nor temporary certificate of occupancy shall be issued until such time as these improvements have been accepted by Sarasota County. Construction of the University Parkway at Honore Avenue intersection including the following turn additions: one northbound left turn lane for a total of two; one westbound left turn lane for a total of two; one northbound through lane for a total of two; and one northbound right turn lane for a total of one, prior to 40 percent of the DRI buildout (1518 net new p.m. peak hour trips). Construction of the University Parkway at Cooper Creek Boulevard/North Cattlemen Road intersection including the following lane additions and/or modifications: reconfiguration of the inside northbound through lane to a left turn lane for a total of three; one southbound through lane for a total of one; one southbound right turn lane for a total of one prior to 60 percent of the DRI buildout (2277 net new p.m. peak hour trips). Construction of a northbound left turn lane at the University Parkway at I-75 East Ramps intersection for a total of three prior to 50 percent of the DRI buildout or 1898 net new p.m. peak hour trips. Signalization of Honore Avenue at DeSoto Road intersection when signal warrants are met. Construction of a roundabout at the North Cattlemen Road at DeSoto Road intersection. Construction of North Cattlemen Road as a divided four lane roadway from DeSoto Road to Richardson Road. Construction of Fruitville Road at Cattlemen Road intersection including the following lane additions: one northbound through lane for a total of two; one northbound left turn lane for a total of two; one southbound through lane for a total of two; one eastbound left turn lane for a total of two; one eastbound through lane for a total of four; and one westbound left lane for a total of two. Construction of Cattlemen Road at the North Access Driveway intersection including the following traffic control type and lane additions: Signalization of the intersection; One northbound left turn lane for a total of one; Two northbound through lanes for a total of two; One northbound through/right turn lane for a total of one; Two southbound left turn lanes for a total of two; Two southbound through lanes for a total of two; One southbound right turn lane for a total of one; Two eastbound left turn lane [sic] for a total of two; One eastbound through/right lane for a total of one; Two westbound left turn lane [sic] for a total of two; One westbound through lane for a total of one and; Two westbound right turn lanes for a total of two. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. Construction of a roundabout at the intersection of North Cattlemen Road and the Access Driveway approximately 0.36 miles south of University Parkway. These improvements have been identified as required in order to provide adequate traffic circulation. Nothing herein shall be interpreted in such a way as to require that Sarasota County construct these road improvements. Amended DO, pp. B-19 to B-21. Amended DO Condition H.4 states: Sarasota County acknowledges that with the construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new pm, peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless Funding Commitments for the improvement(s) required to maintain the adopted [LOS] have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOS]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Sarasota County acknowledges that with construction of the improvements listed in Transportation Conditions H.1 and H.2, a sufficient amount of road facility capacity is projected to be available to accommodate development at or above the adopted [LOS] for the transportation facilities needed to accommodate SIPOC Phase II development as follows development generating up to 3795 net new pm peak hour trips ends through 2009. Therefore, Sarasota County shall reserve for SIPOC that amount of p.m. peak- hour road capacity necessary to accommodate the equivalent of 6405 p.m. peak-hour external vehicle trips, of which 3795 represent net new p.m. peak-hour external vehicle trips, through expiration of the Facility Reservation Period, provided that: If a planned programmed road or intersection improvement is not constructed in accordance with the time frame such construction was assumed to occur in the [Intervenors'] traffic impact analysis, the extent of such capacity reservation shall be reassessed and revised, as necessary, as part of the next annual monitoring report (required pursuant to Condition H.5); If the findings of the annual monitoring program indicate that the [LOS] on any road, intersection, or intersection approach in the traffic impact area falls below or is projected to fall below the adopted [LOS] for that facility, no further construction plan approval shall be issued unless the Funding Commitments for the improvement(s) required to maintain the adopted [LOS](s) have been provided by the [Intervenors], another private person, or a responsible entity. In the event the annual monitoring report indicates that any road facility will fall below the adequate [LOS] for that facility, SIPOC development will be permitted to develop up to but not beyond that point where the road facility is projected to fall below the adopted [LOS] for the facility. If the findings of the annual monitoring program indicate that road and intersection capacity is available (consistent with adopted [LOSs]) in excess of that reserved for SIPOC development, Sarasota County may issue Final Development Orders for other development but only to the extent of the excess capacity. Amended DO, pp. B-22 to B-23. Amended DO Condition H.4.c identifies 21 intersections and one road segment (I-75 southbound from University Parkway to Fruitville Road) that shall be monitored during the capacity reservation period. Condition H.4.c provides: If in the Annual Traffic Monitoring Report, the [LOS] on any of the intersections or intersection approaches fall [sic] below the adopted [LOS], no further site and development plan approval shall be issued unless the required improvement(s) are made by the [Intervenors], or Funding Commitments for the improvement(s) have been provided by the [Intervenors], another private person, or a responsible entity. . . . Amended DO Condition H.4.c identifies, by road segment, the number of equivalent p.m. peak hour trips to be reserved during that period. The Amended DO defines the capacity reservation period as the period commencing with the effective date of the Amended DO and ending with the earlier of December 31, 2009, or the point at which cumulative SIPOC development, for which development orders have been issued, generates more than 6405 gross p.m. peak hour trip ends or more than 3795 net new p.m. peak hour trip ends. Amended DO Condition H.5 requires Intervenors to establish an annual traffic monitoring program, which is "to monitor the cumulative impacts of the development on the roadways, intersections, and intersection approaches in the traffic impact area." This report is also used for traffic impact and concurrency evaluation purposes for any SIPOC development submitted to Sarasota County after the expiration of the Facility Reservation Period. Amended DO, p. B-26. Amended DO Condition H.6 provides: Development Order applications, including Final Development Order applications, for any portion of the development submitted during the annual concurrency evaluation period in effect for a given monitoring report, shall not be approved if the annual concurrency evaluation contained in that report indicates that traffic resulting from the approval of said Development Order will impact any road, intersection, or intersection approach in the traffic impact area that is operating (or projected to operate) below the adopted [LOS] for that facility. Notwithstanding the above, a Development Order application may be approved if one of the following mitigative actions, or both in combination, are committed to by the [Intervenors] (as a condition of approval for that Development Order), or, by another responsible entity: Other traffic impact reduction measures are implemented, including but not limited to transportation system management (TSM) strategies, intended to eliminate the impact of the SIPOC development traffic on the deficiently operating facility(ies) . . . [or] Funding Commitments, as defined in Conditions A.11.a.i-iii, are provided for the improvement(s) necessary to eliminate the [LOS] deficiency on the road(s) and/or intersection(s) by the SIPOC DRI development. Amended DO, p. B-27. Amended DO Condition A.11 defines "Funding Commitments" as follows: "Funding Commitments" shall mean the fulfillment of an action necessary to ensure the completion of any road or intersection improvement required by this [Amended DO] or identified in any subsequent Annual Traffic Monitoring Report prior to the time the impacts from the development occur. These actions include one or any combination of the following: The provision of a binding commitment by a private person or responsible entity . . . for the design, engineering, and actual construction of the improvement to be completed when the improvement is identified as being necessary in the approved Annual Traffic Monitoring Report as required in this [Amended DO]; or A commitment for actual construction and completion of the improvement pursuant to an approved Developer Agreement; or For the purpose of reviewing a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement in the current i.e., first year of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or The placement of the construction phase for an improvement in the current i.e., first year of Manatee County's adopted Capital Improvement Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of Manatee County; or The placement of the construction phase for an improvement in the current i.e., first year of the [DOT]'s adopted 5-Year Work Program, and, where construction of the improvement is subject of a binding executed contract for roads and intersections under the jurisdiction of [DOT]. Amended DO, p. B-3. Funding Amended DO Condition A.11.IV.iv adds: For the purposes of reviewing a development order that is not a "Final Development Order," as that term is defined in Sarasota County's Concurrency Management Regulations . . .: The placement of the construction phase for an improvement within the first five years of Sarasota County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Sarasota County; or, The placement of the construction phase for an improvement within the first five years of Manatee County's adopted Capital Improvement Program for roads and intersections under the jurisdiction of Manatee County; or, The placement of the construction phase for an improvement within the first five years of the Florida Department of Transportation's . . . adopted 5-Year Work Program for roads and intersections under the jurisdiction of [the Florida Department of Transportation]. Amended DO, pp. B-3 to B-4. By Ordinance No. 2007-64, Sarasota County adopted the Plan Amendments changing the FLUM designations on SIPOC. After DCA found the Plan Amendments not in compliance, by Ordinance No. 2008-33, Sarasota County adopted the Remedial Plan Amendments. The procedural history of the Plan Amendments and Remedial Plan Amendments is set forth in the Preliminary Statement and incorporated by reference. It is important to note that the Cumulative Plan Amendments apply exclusively to SIPOC. The Remedial Plan Amendments add a new paragraph to the Transportation chapter of the Sarasota County comprehensive plan. With the existing, unchanged language in the first paragraph and the new language in the second paragraph, this part of the Transportation chapter now reads: Although the [LOS] standard . . . provides an overall goal toward which the County can strive, the adoption of a[n LOS] as high as "C" peak hour, based on a 100th highest hour design criteria, for constrained and backlogged roadways would not be environmentally or financially feasible. Constrained County roadways are defined as exhibiting a[n LOS] lower than the adopted standard and not being able to attain the adopted standard because prohibitive costs or environmental limitations prevent the construction of at least two additional through lanes. Backlogged County roadways are defined as roadways operating below the adopted standard which do not have prohibitive financial or environmental constraints but are not scheduled for major capacity improvement in the County's Five Year Schedule of Capital Improvements. Thus, the LOS for constrained roadways, i.e. prohibited due to physical or other policy limitations or backlogged roadways, i.e. currently un-funded in the 5-Year Schedule of Capital Improvements, is to maintain the current [LOS] with minimum degradation. Between U.S. 301 and I-75, University Parkway lies along the Manatee/Sarasota County line. The generalized [LOS] data of Table 6-2 shows University Parkway between U.S. 301 and I-75 to have been operating at . . . LOS D in 2003. University Parkway has been constructed as a six-lane divided arterial roadway and is not planned to be widened to include additional general purpose lanes. Also, University Parkway has an adopted LOS "D" for purpose of evaluating transportation concurrency in Manatee County and absent any indication to the contrary would have an adopted LOS "C" for Sarasota County concurrency purposes. To resolve this discrepancy, to acknowledge current operating conditions, and based on the interlocal agreement with Manatee County regarding access control and maintenance responsibilities for University Parkway, Sarasota County considers the adopted LOS on University Parkway to be "D" for evaluating transportation concurrency. Therefore, University Parkway has been included in "Table 6-5: Designated Backlogged and Constrained Roadways in Sarasota County" as constrained at LOS D. Ordinance No. 2008-33, Section 2. Presumably, the "current conditions" on University Parkway to which the above-cited language refers is to 2008 because, as noted in the following section, the 2006 directional peak hour volumes of the University Parkway segments west of I-75 were all LOS B, except for five such segments at LOS C. In any event, the Remedial Plan Amendments add seven segments of University Parkway from I-75 to a point west of the SIPOC, but east of U.S. Route 301, as "constrained" with an LOS D. Ordinance No. 2008-33, Section 3. The Remedial Plan Amendments provide that the SIPOC is in Special Planning Area #1--a new FLUM designation. They add: The [SIPOC DRI] Substantial Deviation Application for Development Approval (ADA) serves as supporting data and analysis for the area identified on the . . . FLUM as the SIPOC DRI--Special Planning Area 1. As required, the SIPOC DRI ADA is a comprehensive analysis of the suitability of the area for the development as well as the proposed impacts of the project. This DRI analysis can be used by Sarasota County to guide the timing, location, type and amount of future development. Thus, the Application for Development Approval, sufficiency responses and [Amended DO] provide supporting data and analysis for the land use designation on the FLUM. Ordinance No. 2008-33, Section 4. The Remedial Plan Amendments amend the future land use element of the Sarasota County comprehensive plan to incorporate the above-described density and intensity limits, as well as hotel rooms and dwelling units, identified above in the Amended DO. Ordinance No. 2008-33, Section 6. The Remedial Plan Amendments identify a new Five-Year Schedule of Capital Improvements, Table 10-3, which is obviously limited to SIPOC. For traffic circulation, the new capital improvement schedule provides (all costs are in millions'): Project Pre-2008 2008 2009 2010 2011 Future Total Add DeSoto Rd. 2.27 2.5 0.27 0.27 0.15 0 5.5 Add N. Cattle man Rd.- 5.0 Richardson Rd. 0 5.0 21.0 6.3 2.5 39.0 Add University Pkwy./Honore 0 0 0 0 0 0 0 Ave. Inter- section Add University Pkwy. Northbound 0 0 0 0 0 0 0 Off-ramp [to I-75] Ordinance No. 2008-33, Section 9. The Remedial Plan Amendments further identify Special Planning Area 1 as follows: Special Planning Area 1 is the . . . SIPOC DRI. The Substantial Deviation Application for Development Approval (ADA) provides data and analysis regarding its significant and adverse impacts to local and regional roadways. [Intervenors], in coordination with Sarasota County, ha[ve] committed to provide funding and right-of-way as needed from the DRI property to mitigate for the improvements required to maintain the adopted [LOS] on area roadways . . . resulting from the impacts of the SIPOC DRI. The required improvements to the roadway system . . . are provided in the [Amended DO] and summarized as follows: Improvements to the roadway included in the County's Five-Year Capital Improvements Program (CIP) are as follows: North Cattlemen Road from Richardson Road to University Parkway. This project has been programmed in the CIP in the amount of $39,907,103 . . .. DeSoto Road from Harold Avenue to North Cattlemen Road. This project has been programmed in the CIP in the amount of $5,462,227 . . .. Improvements to the intersection of University Parkway and Honore Avenue. This project will be funded by [Intervenors]. The current construction estimate is $2,250,000 . . .. Improvements to the northbound exit ramp of I-75. This project will be funded by [Intervenors]. The current construction estimate is $2,000,000 . . .. A public transit transfer facility station will be designed, permitted and constructed by [Intervenors] and will be designed to accommodate a minimum of four buses and will be constructed at such time as Sarasota County Area Transit establishes service to the development. The estimated cost is $300,000 . . .. Ordinance No. 2008-33, Section 10. The Remedial Plan Amendments become effective when DCA enters a final order finding them to be in compliance. Ordinance No. 2008-33, Section 14. Whether Adoption of LOS D for University Parkway Is Supported by Data and Analysis The present record is devoid of evidence that any of these segments of University Parkway are constrained. Nothing in the record suggests that the constraints of prohibitive costs or significant natural resources preclude the widening of University Parkway. By definition, these segments of University Parkway were backlogged, prior to the reduction in their LOS standard to D, as they were operating below their adopted LOS standard of C and were omitted from the five-year capital improvement schedule for capacity enhancement sufficient to restore a C LOS standard. Backlogged segments remain deficient and are to be maintained so as to minimize further degradation. Of course, by reducing the LOS standard to the actual LOS--D--Sarasota County relieves these University Parkway segments of their backlogged status. Instead, the clear intent of the county was to reduce the LOS standard of these segments, not to treat them and their failure to attain LOS C as special cases. The second of the cited paragraphs above essentially designates these segments of University Parkway as LOS D, not because they are constrained or were (prior to the new designation) backlogged, but because: 1) Manatee County designates the same segments as LOS D, 2) the segments are operating at LOS D, and 3) Manatee County is unlikely to share the cost of enhancing the capacity of these segments when they are operating at their (Manatee-County) adopted LOS standard. Sarasota County's proposed recommended order, at paragraph 19, candidly concedes these points. Without regard to Sarasota County's confusing attempt to designate the University Parkway segments as constrained or backlogged, the three cited reasons for lowering the LOS standard to D for these segments of University Parkway are data and analysis supporting the action taken by Sarasota County. Petitioner has failed to prove to the exclusion of fair debate that the designation of the affected University Parkway segments as LOS D is not consistent with the criterion of supporting data and analysis. Whether Supporting Traffic Data Are Appropriate and Traffic Data Were Collected and Applied in a Professionally Acceptable Manner Kimley-Horn and Associates, Inc., (KH) performed the traffic analysis in connection with the Amended DO and Cumulative Plan Amendments. In November 2005, KH prepared a Transportation Methodology Statement (TMS) for use in conjunction with the SIPOC Phase II DRI Substantial Deviation (from the DO). The TMS briefly describes Phase II of the SIPOC development. The TMS slightly overstates, by percentage, retail uses by 120,000 square feet (using 1,800,000 square feet, rather than 1,680,000 square feet) and substantially understates, by percentage, office uses by 120,000 square feet (using 100,000 square feet, rather than 220,000 square feet), but, obviously, the total of the two uses is the same as the total stated in the Amended DO. The TMS states that KH will use the trip generation rates published by the Institute of Transportation Engineers, Trip Generation, 7th Edition, 2003. The TMS notes that hotel trips require a different source due to their exclusion from Trip Generation. The TMS states that KH will determine trip "general trip distribution of project traffic" by "application of the Florida Standard Urban Transportation Model Structure" (FSUTMS), which is a transportation planning model. The TMS states that KH will use FSUTMS for "project distribution" and "general assignment of project traffic to the roadway network." Trips are first distributed between attractor land uses and producer land uses and then are assigned to specific facilities. Thus, it is necessary to distribute trips between SIPOC and various offsite locations and, using this information, to assign traffic to the roadway network in the vicinity of the attractors. The TMS adds: In addition to [FSUTMS], existing traffic patterns adjacent to the project site, including the location of production- and attraction-based land uses, will be used as supplement data to estimate project traffic assignment. A copy of the distribution and electronic files of the input files to be used in this model will be provided in the analysis report to the appropriate review agencies. The TMS states that, in distributing project traffic, KH will use the existing roadway network plus committed improvements in the first three years of Manatee County's current capital improvement program, Sarasota County's current capital improvement program, and Florida Department of Transportation's (DOT's) Work Program. The TMS states that KH will obtain the necessary socio-economic projections for the buildout year of 2009 from the Sarasota/Manatee Area Transportation Study and will supplement these data to include certain other approved DRIs, which are listed. The TMS states that the analysis report will summarize the socio-economic adjustments. The TMS states that KH will estimate internal capture and pass-by capture of project traffic based on the review of FSUTMS in Trip Generation, 2nd Edition, June 2004--as well as other ITE-related documents and engineering judgment applied to the characteristics of SIPOC, Phase II. Internal capture is a function of mixed-use developments, such as SIPOC, in which persons using the retail, office, or residential components of the single development remain within the development, rather than enter the roadways surrounding the development. Pass-by capture describes the function of a development interrupting a trip on the surrounding roadway system and later releasing the trip back onto the surrounding roadway system. The TMS adds that the total pass-by capture trips will be estimated for the retail part of SIPOC, Phase II, and will be limited to 10 percent of the future background traffic estimates adjacent to the project site. The TMS adds that KH will document all assumptions and applied procedures in the analysis report. The resulting reduction in internal capture and pass-by capture trips will, according to the TMS, produce net, new trips, which KH will use to identify the transportation impact study area. The TMS states that KH will review the impacts of project traffic on the adjacent roadway network following the requirements of Section 380.06, Florida Statutes, and Florida Administrative Code Rule 9J-2.045, which are consistent with the rules of DCA. Relying on the procedures used in the Phase I transportation analysis, which had been recently approved, KH will then identify the study area as "all roadway segments for which SIPOC net, new project traffic will consume 5.0 percent or greater of the . . . LOS C directional, peak-hour service volume of each affected roadway link located within Sarasota County, including University Parkway and I-75." For roadways in Manatee County, excluding I-75, the LOS will be D. The TMS states that peak-hour service volumes will be estimated based on the most recent information available from DOT and the Transportation Research Board, Highway Capacity Manual, 2000 Edition. In particular, the TMS notes that KH will use four- lane, divided capacity for North Cattlemen Road from University Parkway to DeSoto Road and two-lane, divided capacity for North Cattlemen Road from DeSoto Road to Richardson Road and DeSoto Road from Honore Avenue to North Cattlemen Road. The TMS adds that KH will use six-lane, divided capacity for University Parkway from I-75 to Lakewood Ranch Boulevard to the east and the proposed ramp improvements to the University Parkway/I-75 interchange. The TMS identifies the LOS standards of various road segments surrounding SIPOC, including LOS D for University Parkway from U.S. Route 301 to Lakewood Ranch Boulevard. (University Parkway east of I-75 is entirely in Manatee County.) The TMS identifies the analysis period as the p.m., peak season, peak hour for both existing and future conditions. For the existing condition, Intervenors shall obtain recent traffic count data. The TMS notes that KH will forecast future nondevelopment (background) traffic for the buildout year of 2009, using the results of the FSUTMS model, forecasted traffic projections from public agencies, and actual historical traffic counts from the study area. Comparing the FSUTMS outputs for 2005 and 2009, KH will determine the appropriate growth rates for specific roadways within the study area. By applying those growth rates to the existing traffic data, KH will determine future background traffic volumes. The TMS states that the analysis report will contain complete documentation of all assumptions and applied procedures. The TMS states that KH will perform roadway link capacity analysis for all regionally significant roadways and any subregional roadways in the study network that provide primary access to SIPOC. The TMS identifies the sources of procedures for this analysis and assures that the analysis report will contain electronic files with the results of the roadway link capacity analysis. The TMS states that KH will assess project traffic for potential improvements where it contributes at least five percent of the appropriate LOS peak hour directional service volume of a regional roadway in the transportation impact study area. KH will identify improvements only when the roadway is expected to operate below its adopted LOS peak hour service volume. The analysis report will identify improvements attributed to SIPOC only if project traffic consumes at least five percent of the adopted LOS peak hour service volume or the "critical movements of the intersections located at the endpoints of an impacted roadway segment." The TMS states that KH will perform similar analyses of intersections in terms of their LOSs and need for improvements when operating below their adopted LOS standards. KH circulated the TMS among various agencies, including Sarasota County, DOT, and the Southwest Florida Regional Planning Council (RPC). None of these agencies offered any criticism of the proposed methodology. As part of their application for development approval that led to the Amended DO, Intervenors filed a Substantial Deviation from the SIPOC DRI. Part V of this document is Public Facilities, and Section A of Part V is Transportation. This Transportation Substantial Deviation document shall be referred to as the "TSD." At the time of the preparation of the TSD, Phase I of SIPOC was under construction, so KH combined the land uses and their associated traffic for both phases for the analysis contained in the TSD. KH based its analysis on 2009 projections because that is the year of buildout of Phase II. The TSD states that KH used current policies of Sarasota County and RPC to identify the transportation study area, which comprises the regionally significant roadway links, intersections, and interchanges on which Phases I and II project trips associated with SIPOC consume at least five percent of the adopted LOS. The TSD identifies the adopted LOS as C for each affected roadway link in Sarasota County, including University Parkway west of I-75 and I-75 in Sarasota and Manatee counties, and D for roadways in Manatee County. Evidently, at the time of the preparation of this part of the TSD, Sarasota County had not yet identified the need to lower the LOS for University Parkway to D. However, TSD Table 5.A.2 reports that the University Parkway segments west of I-75 have an adopted LOS D. University Parkway would obviously be in the transportation study area regardless whether KH has used a LOS standard of C or D for its segments west of I-75. The TSD states that KH used the existing roadways plus roadway improvements funded for construction for the first three years in the capital improvement programs of Sarasota and Manatee counties and the DOT Work Program, except that KH used five years of the DOT Work Program for construction of I-75 improvements. The TSD states that KH used ITE's, Trip Generation, 7th Edition (2003) to determine that SIPOC, through Phase II, would generate 68,894 daily trip ends and 6405 trip ends in the p.m., peak hour, consisting of 3148 inbound and 3257 outbound, as well as 2158 trip ends in the a.m. peak hour, consisting of 1143 inbound and 1015 outbound. The TSD states that KH used an internal capture rate of 33 percent and a pass-by capture rate of less than 10 percent of future background traffic. Subtracting the internal capture and pass-by capture rates from the total gross trips, TSD Table 5.A.5 reports that the total, net, new external project trips is 38,120 daily, including 1708 in and 1817 out during p.m. peak hour and 713 in and 585 out during a.m. peak hour. The TSD describes the process by which KH calculated 2009 total traffic, which consists of SIPOC traffic plus background (i.e., nonSIPOC) traffic. KH inputted into FSUTMS socioeconomic data provided by the Sarasota/Manatee County Metropolitan Planning Organization (MPO), supplemented by data from other approved DRIs in the area. The TSD details the process by which KH isolated the effects of SIPOC in projecting background traffic. For project traffic, the TSD states that KH used FSUTMS output to distribute trips and, with "minor refinements based upon existing and proposed attractive-type land uses near the project site," to develop roadway assignment percentages. TSD, p. 12. TSD Table 5.A.1 reports the LOS service volumes for road segments in the vicinity of SIPOC, the projected traffic assignment (expressed as a percentage of the LOS service volume) assigned to each road segment, and an indication whether the five-percent threshold has been met, so as to require the inclusion of the road segment in the transportation study area. The TSD states that KH also applied the percentages to the trip generation estimates, with an adjustment for background traffic, to determine projected traffic volumes through Phase II. A revised version of this table is in the Third Sufficiency Response. TSD Table 5.A.2 shows service volumes for existing roadways based on their adopted LOSs. For instance, all depicted University Parkway segments west of I-75 bear an LOS D, which produces a service volume of 2790. The service volume of 2790 is for peak hour conditions. Using p.m. peak hour traffic counts conducted by KH, Table 5.A.3 indicates the actual p.m. peak hour roadway volumes for 2006, divided by direction. For the University Parkway segments west of I-75, the existing volumes are all at least 400 trips below 2790, so as to earn LOS Bs for all segments, except five, which are at LOS C. In general, Table 5.A.3 reports that all road segments in the study area were within their adopted LOS standards for 2006, and Table 5.A.4 reports that all intersections in the study area were within their adopted LOS standards for 2006, as well. In projecting 2009 traffic volumes, the TSD describes the process undertaken by KH to determine the volume of Honore Avenue traffic that would be diverted to North Cattlemen Road, once the latter facility is constructed. KH also assigned a minimal amount of traffic to DeSoto Road between Honore Avenue and North Cattlemen Road to account for the use of this new facility by background traffic. For project traffic, KH made "minor adjustments," of the type noted above, in assigning traffic to road segments in the study area. Projecting 2009 conditions, TSD Table 5.A.6 shows the directional p.m. peak hour traffic volumes for the project, background, and total. For instance, eastbound and westbound, the University Parkway segment from North Cattlemen Road/Copper Creek Boulevard west to Honore Avenue will have project volumes of 436 and 463 trips, background volumes of 2725 and 2672 trips, and total volumes of 3161 and 3135 trips, which would exceed the LOS D volume of 2790 trips reported above in TSD Table 5.A.2. TSD Table 5.A.7 reports, by road segment, the ratio of project traffic to total traffic. On the segment discussed immediately above, the project will constitute about 14 percent of peak hour total traffic in both directions. On other segments, such as the North Cattlemen Road and DeSoto Road segments that will primarily serve SIPOC, peak hour project traffic will be about 80-90 percent of peak hour total traffic. The TSD states that KH identified a road segment as critical and in need of further analysis if the 2009 projections revealed that it was operating below its adopted LOS standard and project traffic consumed at least five percent of its adopted peak-hour directional LOS volume TSD Table 5.A.8 reports the result of the roadway analysis, which, with "detailed arterial analysis," finds all segments, including the above-mentioned Honore/Cooper Creek segment of University Parkway, to be operating in 2009 at their adopted LOS or better. However, despite the application of "detailed arterial analysis," Table 5.A.8 designates five of the University Parkway segments, including the Honore/Cooper Creek segment, and three segments of Honore Avenue as critical links. Each of these eight segments was designated a critical link in both directions. TSD Table 5.A.9 identifies the intersections in the study area and projects that five of them will, by 2009, fall below their adopted LOS standard. Table 5.A.9 includes recommended improvements to restore LOSs to adopted levels or better. For the intersections at Honore Avenue and DeSoto Road and North Cattlemen Road and DeSoto Road, the improvement is to add signals. For the intersections at University Parkway and Honore Avenue and University Parkway and North Cattlemen/Cooper Creek, the improvements are to add two new turn lanes at each intersection. For the intersection at University Parkway and the I-75 east ramps, the improvement is to construct a new turn or ramp lane. In connection with the DRI-approval process, Sarasota County and DOT issued comments and questions, which prompted Intervenors' engineering firm to file at least three sufficiency reports. In the First Sufficiency Report, the RPC noted that a four-year planning horizon (2005-09) was a relatively short timeframe for using FSUTMS, so KH needed to check outputs for "reasonableness." In the Second Sufficiency Report, KH had to justify to Sarasota County KH's detailed assumptions and conclusions, such as its internal capture rate of 33 percent for am peak hour and its refusal to use an annual growth rate in traffic on University Parkway east of I-75 of 15 percent (as suggested by the FSUTMS output). KH also had to respond to DOT comments by adding to a map trip distribution percentages to certain road segments and correcting some LOS levels used in certain of the TSD tables. In the Third Sufficiency Response Table 1, KH identified the recommended transportation improvements to be funded by Intervenors as follows: Roadway Improvement Timeframe Honore Ave. & Construct north- Phase I DeSoto Rd. bound (NB) right- turn lane. University Pkwy. Construct EB right- Phase I & W. Project Drive turn lane. University Pkwy. Construct 2 NB left- Phase I & N. Cattlemen Rd. turn lanes, 2 NB through lanes, 2 NB right-turn lanes, 1 EB right-turn lane, and 2 WB left-turn lanes. N. Cattlemen Rd. Construct 4-lane Phase I divided road from University Pkwy to DeSoto Rd. DeSoto Rd. Construct 2-lane Phase I divided road from Honore Ave. to N. Cattlemen Rd. University Pkwy. Construct 2nd NB left- Phase II & Honore Ave. turn lane and 2nd WB left-turn lane. Con- vert NB right-turn lane to through lane and construct new NB right-turn lane. University Pkwy. & Convert SB right-turn Phase II Cooper Creek Blvd./ lane to through lane N. Cattlemen Rd. and construct new SB right-turn lane. University Pkwy. Construct 3rd NB Phase II & I-75 E ramps left-turn lane. Honore Ave. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Signalize when Phase II & DeSoto Rd. warranted. N. Cattlemen Rd. Construct 2-lane Phase II divided or possibly 4-lane divided from DeSoto Rd. to Richardson Rd. The reviewing agencies ultimately approved the KH transportation analysis, but Petitioner claims that the transportation analysis was not professionally acceptable. Even Petitioner's witnesses offered no objection to the capture rates and traffic volumes used by KH. The thrust of Petitioner's objections to the traffic analysis is not to the inputs or model, but to the manual adjustments that KH made to the model outputs when assigning traffic to specific road segments. Some of these adjustments resulted in the removal of certain road segments from the transportation study area and thus from further analysis of the adverse impacts from SIPOC. The KH employee responsible for this project, Robert Agrusa, has 23 years' experience performing traffic studies and 20 years' experience using FSUTMS. Mr. Agrusa has worked in the Sarasota area nearly exclusively for over 15 years and has worked on the traffic impacts of DRIs. FSUTMS is a model whose original purpose was to assist long-range transportation planning, thus the comment by the RPC reviewer for the need to use care in using FSUTMS for the relatively short timeframe involved in this exercise. The model's sensitivity is limited as to attractive land uses near the subject project. For instance, the model fails to differentiate between a convenience store and a regional shopping mall; both are simply retail land uses. The engineer using FSUTMS for the purpose for which it was used in this planning exercise must examine the outputs carefully, compare them to existing and future land uses, and adjust the model- generated trip assignments based on his or her professional judgment. According to a Sarasota County transportation engineer, adjustments to FSUTMS output are more common in the I-75 corridor where the model's traffic analysis zones are less precise. Other authorities likewise support manual adjustments to model outputs. Among the manual adjustments described by Mr. Agrusa was an increase in the number of trips absorbed by large residential areas west of SIPOC, both north and south of University Parkway. These areas include 3000-4000 dwelling units that, in his professional judgment, were inadequately weighed by FSUTMS in distributing trips. For similar reasons, Mr. Agrusa made a similar adjustment in assignments in the area south of University Parkway and north of Fruitville Road, where even more dwelling units are located. Another manual adjustment described by Mr. Agrusa illustrates well the issue raised by Petitioner. Mr. Agrusa increased the trips on I-75, north and south of University Parkway, to reflect the regional draw of SIPOC, especially its retail uses. No transportation engineer in this case disagrees that SIPOC is a regional draw. An increase in I-75 trips means a corresponding decrease of trips on University Parkway, Honore Avenue, and North Cattlemen Road. However, the magnitude of such changes was typically limited to 2-3 percentage points, and each percentage point of net new trips is only 40 two-way trips or 80 one-way trips. As Petitioner contends, small changes can result in large effects. Mr. Agrusa raised the percentage of project trips on I-75 south of University Parkway from nine percent to 12 percent. As already noted, this would lighten the projected traffic on other segments, especially North Cattlemen Road and Honore Avenue. By raising the percentage only to 12, though, Mr. Agrusa did not cause the burdened interstate segment to have to be included in the study area because, at 12 percent, the project contributed 4.99 percent of this segment's volume. Had Mr. Agrusa raised the percentage to 12.5 percent, the five percent threshold would have been met, and this segment of I-75 would have had to have been included in the study area. But Mr. Agrusa testified that he did not restrict this increase to lower the volumes on road segments already in the study area and raise it as far as possible without adding the increasingly burdened segment to the study area; absent evidence of some impropriety in this adjustment, it is impossible to find that it was not professionally acceptable, especially in the absence of objection from DOT as to exclusion of I-75 from the study area. All transportation engineers, including Petitioner's witness, agreed that a manual adjustment was indicated to increase the assignment of trips to I-75; they disagreed only as to the extent of the increase. Projecting traffic volumes even for just four years is necessarily a rough-hewn process, which, in this case, did not even assign an input to the cost of fuel and its effect on traffic volumes. The magnitude of the changes for which Petitioner contends would introduce into this process more precision than the process can support. The projection is for only four years, so, with or without manual adjustments to model outputs, the potential for error is reduced when compared to longer planning horizons. Given the detailed methodology and analytic exercise described above, the multiple-agency review, and the absence of affirmative evidence of bad faith, KH collected appropriate data in a professionally acceptable manner and applied the data, in a professionally acceptable manner, to identify the study area, the impacted road segments and intersections, and the improvements necessary to maintain adopted LOS standards on these segments and intersections. Petitioner has failed to prove to the exclusion of fair debate that the data and analysis regarding the Cumulative Amendments are inconsistent with the criteria that the date be appropriate to the plan provisions and that the data be collected and applied in a professionally acceptable manner. Whether the Identified Transportation Facilities Are Financially Feasible and Properly Scheduled in the Capital Improvement Program As of the date of the final hearing, Intervenors had already constructed all of the Phase I transportation improvements (Amended DO Conditions H.1.a-d) and the following Phase II transportation improvements: the roundabout at North Cattlemen Road and DeSoto Road (Amended DO Condition H.2.e), the roundabout at North Cattlemen Road and northern Access Drive (Amended DO Condition H.2.i), and the roundabout at North Cattlemen Road and the southern Access Drive (Amended DO Condition H.2.j). As of the date of the final hearing, Intervenors had almost completed construction of the signalization of Honore Avenue and DeSoto Road (Amended DO Condition H.2.d). As of the date of the final hearing, a third party had completed construction of intersection improvements at Fruitville Road and Cattlemen Road (Amended DO Condition H.2.g). As of the date of the final hearing, Intervenors had delivered to Sarasota County a letter of credit or performance bond of $33 million--sufficient to pay for the construction of North Cattlemen Road from DeSoto Road to Richardson (Amended DO Condition H.2.f) and the North Access Drive (Amended DO Condition H.2.h), for which the combined cost is estimated to be $29,517,244, and the construction of the intersection improvements at University Parkway at Cooper Creek/North Cattlemen (Amended DO Condition H.2.b), for which the cost is estimated to be $3,100,000. This leaves only two transportation projects from the Amended DO Condition H for Intervenors to complete: construction of the intersection improvements at University Parkway and Honore Avenue (Amended DO Condition H.2.a), for which the cost is estimated to be $2,250,000, and construction of the east ramp improvements at I-75 and University Parkway (Amended DO Condition H.2.c), for which the cost is estimated to be $2,000,000. Intervenors secured its undertaking to pay for these remaining transportation improvements by providing Sarasota County with financial assurance--in the form of new capital contribution agreements--adequate for these two improvements plus the construction of the transit station, but Intervenors entered into these agreements after the adoption of the Cumulative Plan Amendments. Based on the KH traffic analysis, which has not been shown to have been unreliable or unprofessional, these transportation improvements will offset the impacts of SIPOC, Phases I and II, sufficient to avoid a violation of any adopted LOS standard for any road segment or intersection. If, for some reason, the improvements were not to be adequate, the monitoring program in the Amended DO will ensure that development orders will be suspended, pursuant to the conditions contained in the Amended DO, the reference in the Remedial Plan Amendments to Intervenors' financial undertakings in the Amended DO (thus incorporating them into the comprehensive plan), and concurrency provisions in the Sarasota County comprehensive plan, unless and until these traffic impacts are offset by transportation improvements sufficient to restore service volumes to the adopted LOS standards. Additionally, the Remedial Plan Amendments contain a five-year schedule of capital improvements that adequately describes the relevant transportation improvements and the years of funding. The KH traffic analysis drives the finding that the transportation improvements already completed and to be undertaken by Intervenors will prevent any road segment or intersection from falling below the adopted LOS standard due to impacts from SIPOC traffic. As a backup, the Amended DO provides for monitoring of traffic volumes and suspends development if and when SIPOC traffic causes any road segment or intersection to fall below its adopted LOS standard. In turn, these findings inform findings as to the consistency of the undertaken capital improvements with the criteria of financial feasibility and scheduling capital improvements. Petitioner has failed to prove to the exclusion of fair debate that the Cumulative Plan Amendments are not consistent with the criteria of financial feasibility and scheduling capital improvements.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order finding the Cumulative Plan Amendments to be in compliance. DONE AND ENTERED this 8th day of August, 2008, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2008. COPIES FURNISHED: Lynette Norr Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Christopher Torres Greenberg Traurig, PA 625 East Twiggs Street, Suite 100 Tampa, Florida 33602 Stephen E. Demarsh Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236-6808 Alan W. Roddy Office of the County Attorney 1660 Ringling Boulevard, Second Floor Sarasota, Florida 34236 Martha Harrell Chumbler Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 Shaw Stiller, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2160 Thomas Pelham, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Findings Of Fact Respondent, Alonzo P. Baggett, owns a residential parcel of property at the corner of State Road 35 (Bartow Highway) and Hollingsworth Road in Lakeland. Respondent's property has his residence on it which was purchased in 1961. When purchased, the property was originally a duplex with a driveway serving each unit. Respondent enclosed the carport on the easterly side of the house for use in an upholstery business. When he did so, the driveway at the easterly end of the house remained in place. The house is presently used as a single family residence and the entrance to what was originally the right hand, or eastern unit, is permanently enclosed with concrete block construction. Respondent resides in the western side of the duplex and parks in the driveway which serves that side. The driveway on the right hand side of his property is approximately the length of one vehicle. The intersection of State Road 35 and Hollingsworth Road is a busy signalized intersection. On an average day, upwards of 8500 vehicles pass through the intersection. State Road 35 is a four lane facility in the vicinity of Respondent's home. Both State Road 35 and Hollingsworth Road have dedicated right and left turn lanes at the intersection. The easterly connection which Petitioner is seeking to close is within the radius of the turn at the southwest corner of State Road 35 and Hollingsworth Road and the access is located in front of a stop bar on State Road 35. To use the subject driveway, a driver must back into the flow of traffic at the intersection to exit the driveway. The connection also allows a driver to make a series of conflicting movements in relation to the traffic in the intersection. As it presently exists, there are no signal heads facing the driveway and a driver cannot see the traffic signals at the intersection. Both conditions create a safety problem because a driver, without seeing the signal head, cannot tell who has the right-of-way. Respondent's State Road 35 connection provides uncontrolled access into a controlled intersection and could present an unexpected traffic movement to drivers entering the intersection from either State Road 35 or Hollingsworth Road. Additionally, the backing motion could conflict directly with the pedestrian crosswalk at that corner. Also, there are two public schools, Lime Street Elementary and Lakeland High School, served by the intersection of State Road 35 and Hollingsworth Road. The driveway in question creates a conflict with school children who cross the road at the intersection. Petitioner has engaged in an extensive review project of resurfacing, signalization, and road upgrades to new standards and has received a number of requests to change sidewalk and curb ramps to comply with ADA standards. The upgrades also included relocating some signal loops and Respondent's driveway came within the loop and upgrading review process. Petitioner has no authority to change the zoning of Respondent's property such that he can resell it to a commercial purchaser as Respondent has requested. Closing the subject driveway is necessary to alleviate the safety problems referenced herein. Although the effect of this intended closure will prevent Respondent's access to his driveway on State Road 35, based on the limited usefulness and the access that he has to his property (the Hollingsworth Road connection), the closure is not arbitrary or unreasonable as Respondent contends. In this regard, Respondent still has access from Hollingsworth Road. That access is safer to use and the signalization from that road can be seen and the traffic flow isn't as heavy as State Road 35.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner, the Department of Transportation, enter a final order closing Respondent's connection to State Road 35 and that such closure be completed by Petitioner at its own cost. DONE AND ENTERED this 19th day of July, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 19th day of July, 1994. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Alonzo T. Baggett 605 Hollingsworth Road Lakeland, Florida 33801 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Attn: Eleanor F. Turner Haydon Burns Building Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0450
Findings Of Fact At the times pertinent to this proceeding, the Dade County School Board (School Board) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida. By Memorandum dated August 27, 1976, the attorney for the School Board recommended that it approve a list of individuals to serve as "hearing examiners" in certain hearings pertaining to personnel matters as required by different collective bargaining contracts and as to student expulsion cases. The Memorandum thereafter listed the individuals who were recommended by the School Board attorney to serve as hearing examiners. On September 8, 1976, the School Board adopted the recommendation of its attorney. The minutes of the September 8, 1976, meeting of the School Board, reflect, in pertinent part, the following pertaining to this action: A memorandum was received from the Legal Department, advising that the collective bargaining agreements between the School Board and the unions provide that in various circumstances, including suspension, dismissal and reduction in grade, the employee has the right to a review of the action. Also, the Florida Administrative Procedure Act was amended to provide for informal hearings con- ducted by impartial hearing examiners in student expulsion cases. With a view toward obtaining unbiased hearing examiners who can expedite cases at a minimal cost to the Board, the Office of the School Board Attorney and the Division of Employee Relations have solicited the services of various members of the Florida Bar and persons with experience in labor arbitration. It is believed that the following list of examiners will meet the needs of the Board in this area. These individuals have agreed to serve at the rate of $40.00 per hour. The minutes of the September 8, 1976, meeting of the School Board reflect the names of seventeen individuals who were recommended to serve as impartial hearing examiners. The minutes of the September 8, 1976, meeting of the School Board reflect that the following motion was adopted: That the school Board approve the list of persons named above to act as impartial hearing examiners in appropriate proceedings involving personnel and pupils, the hearing examiners to be reimbursed at the rate of $40.00 per hour for their time and to be designated as needed by the Superintendent or his designee. That the Superintendent or his designee be authorized to strike from the list the name of any hearing examiner who does not submit his or her recommended order within the time prescribed. The list of individuals to serve as impartial hearing examiners (who were sometimes referred to as hearing officers) was revised by the School Board on June 27, 1990, and on September 20, 1995. Petitioner's daughter is a student at one of the schools under the authority of the School Board who receives services as a gifted student under the School Board's Exceptional Education Program. Local hearing officers do not conduct proceedings pertaining to students in the Exceptional Education Program. Petitioner has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and he is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner's daughter has never requested a hearing before a hearing examiner (or hearing officer) appointed by the School Board pursuant to the School Board's action of September 8, 1976, or as subsequently revised, and she is not involved in any pending or threatened administrative proceeding that would require the appointment of a local hearing officer by the School Board. Petitioner has never applied for appointment as a local hearing officer. He is not a member of the Florida Bar and there was no evidence that he is experienced in labor arbitration. Petitioner is not employed by the School Board. Petitioner is not affected by who has or has not been approved by the School Board to serve as a local hearing officer.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint. him. If so, what disciplinary action should be taken against
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since December 7, 1990, certified by the Commission as a law enforcement officer. He holds law enforcement certificate number 86138. At the time of the incidents alleged in the Administrative Complaint, Respondent was employed as a trooper with the Florida Highway Patrol (FHP), a position he held from 1990 until his dismissal on January 31, 1997. In September of 1994, Respondent's law enforcement career was temporarily interrupted when he was shot in the face and seriously injured while responding to another law enforcement officer's call for assistance. Respondent was off-duty at the time of the incident. After a lengthy hospital stay and recovery period, Respondent returned to duty, rather than seek disability compensation. For the duration of his employment as a trooper with the FHP, Respondent was assigned to Troop L and headquartered in Pahokee, Florida. From November of 1993 until his termination in 1997, Respondent was a member of Sergeant Steven Veltry's squad and under Sergeant Veltry's immediate supervision. Respondent and Sergeant Veltry's relationship was a contentious one. Respondent frequently complained to Sergeant Veltry's superiors that Sergeant Veltry was treating him unfairly. Respondent's complaints, however, were not resolved to his satisfaction. In fact, it seemed to him that his complaints made his situation even worse. As a trooper, Respondent was authorized, pursuant to the written policies and procedures of the FHP, to issue citations, as well as written warnings and faulty equipment notices. He also gave verbal warnings to motorists. (The FHP's written policies and procedures do not specifically address the issuance of verbal warnings.) The issuance of a citation has the potential of adversely impacting the cited motorist. A motorist suffers no adverse consequences, however, as a result of receiving a verbal or written warning or a faulty equipment notice. Unlike traffic citations, written warnings and faulty equipment notices are not required to be signed by the motorists to whom they are issued. Like traffic citations, written warnings and faulty equipment notices are issued in triplicate. One copy (the white copy) is given to the motorist, another (the yellow copy) is retained by the trooper, and the remaining copy (the pink copy) is turned in to the trooper's supervisor along with the trooper's Weekly Report. The Weekly Report prepared and submitted by the trooper is a report of the trooper's enforcement activities for the week. Included in the report is the number of written warnings and faulty equipment notices issued by the trooper. After they are received by the trooper's supervisor, the trooper's Weekly Report and attachments (including the pink copies of the written warnings and faulty equipment notices the trooper issued during the week) are transmitted to the district office, where the report is reviewed for accuracy by, among other things, comparing the number of written warnings and faulty equipment notices reported by the trooper in the report against the number of pink written warnings and faulty equipment notices accompanying the report. Following the completion of such a review, the trooper's Weekly Report (without the pink written warnings and faulty equipment notices, which are kept by the district office for approximately six months and then destroyed) is sent to headquarters in Tallahassee, where it is used for statistical purposes. The FHP makes decisions regarding the utilization of its resources based, at least in part, upon the information contained in the Weekly Reports submitted by its troopers. There is no minimum number of written warnings and faulty equipment notices a trooper must issue each month. Furthermore, the compensation a trooper receives is not based upon the number of such warnings and notices he or she issues. That is not to say, however, that a trooper, particularly one who is constantly at odds with his immediate supervisor concerning his work performance, would have no reason or motive under any circumstances to overstate, in the trooper's Weekly Report, the number of these warnings and notices that were issued during the reporting period and to thereby lead those in the chain of command to believe that he was more productive, in terms of his enforcement activities, than he actually was during the reporting period. With the intent to deceive his supervisors regarding the extent of his enforcement activities and to obtain the benefit of having his supervisors believe that he had engaged in such activities to a greater extent than he actually had, Respondent submitted to Sergeant Veltry four written warnings and faulty equipment notices that he prepared, but which he never gave to the motorists named in these warnings and notices: Robert Cummings, Paul Decker, Sharon Ciriago, and Armando Valverde. All four of these motorists were stopped by Respondent and issued traffic citations, but, contrary to what the paperwork Respondent submitted to Sergeant Veltry reflected, they never received any written warning or faulty equipment notice from Respondent in addition to the citations that they were given. Robert Cummings was stopped by Respondent on April 24, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (for "no stop lights") he purportedly gave Cummings during this April 24, 1996, stop. In fact, Respondent never gave Cummings such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Cummings the subjects referenced in the warning and notice. Paul Decker was stopped by Respondent on June 8, 1996, at 6:23 p.m. Decker had been exceeding the posted speed limit. Respondent verbally warned Decker to slow down, but did not issue him a citation for speeding. He did issue Decker a citation for a safety belt violation. In addition to a copy of this citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "exceed[ing] speed") and faulty equipment notice (for "headlights") he purportedly gave Decker during this June 8, 1996, stop. In fact, Respondent never gave Decker such a written warning; nor did he, at any time during the stop, give Decker a faulty equipment notice or even mention that there was anything wrong with the headlights on the vehicle Decker was driving. Sharon Ciriago was stopped by Respondent on June 16, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "following too closely") and faulty equipment notice (concerning Ciriago's driver's license) he purportedly gave Ciriago during this June 16, 1996, stop. In fact, Respondent never gave Ciriago such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Ciriago the subjects referenced in the warning and notice. Armando Valverde was stopped by Respondent on July 5, 1996, and issued a traffic citation for speeding. In addition to a copy of the citation, Respondent, along with his Weekly Report, submitted to Sergeant Veltry a copy of a written warning (for "violation of right of way") and faulty equipment notice (concerning Valverde's driver's license) he purportedly gave Valverde during this July 5, 1996, stop. In fact, Respondent never gave Valverde such a written warning and faulty equipment notice and, at no time during the stop, even discussed with Valverde the subjects referenced in the warning and notice. Following an internal investigation that had been initiated at the request of Lieutenant Roy Rogers, one of Sergeant's Veltry's superiors, the FHP's Bureau of Investigations concluded that Respondent, "between April 1996 and July 1996, falsified Warning notices and Faulty Equipment notices." Respondent was dismissed from his position as a trooper based upon the findings of the internal investigation. Since March of 1997, Respondent has been employed as a patrolman by the Palm Beach Sheriff's Office. According to person who hired him, Deputy Sheriff Arthur Owens, the Palm Beach Sheriff's Office's Assistant Director of Law Enforcement, Respondent has been "an exemplary employee."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding the evidence sufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, and (2) revoking his certification as a law enforcement officer as punishment therefor. DONE AND ENTERED this 10th day of July, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 10th day of July, 1998.
The Issue The issue in this case is whether the application filed by the Florida Department of Environmental Protection (DEP) for abandonment of a segment of Mission Road, from the Ocala Drive intersection to a point east of Yonview Drive, should be granted; and, if so, what conditions should be placed on the abandonment.
Findings Of Fact Proposed Abandonment and Vicinity The eastern terminus of Mission Road is at Ocala Road. At one time, Mission Road intersected Ocala Road and extended farther east along the alignment of Tennessee Street. However, when Tennessee Street was extended farther west, the intersection of Tennessee Street and Ocala Road was moved slightly south of the juncture of Ocala Road and Mission Road. Now at the junction of those roads, Mission Road is designed to have only a right turn in from Ocala Road southbound, and a right turn out from Mission Road onto Ocala Road, headed south. Mission San Luis (Mission) is bisected by Mission Road near its eastern terminus at Ocala Road. While the Mission is accessible from Mission Road, its main entrance is on Tennessee Street just west of Ocala Road. The Mission has administrative offices and an archeological laboratory on the south side of Mission Road, while the re-created Mission and Apalachee Village, along with most of the archeological remains, and visitor parking, are on the north side of Mission Road. Yonview Drive joins Mission Road from the south. The juncture of those two roads marks the western terminus of the part of Mission Road that is the subject of the application for abandonment; Ocala Road marks the eastern terminus of the proposed abandonment. All of the land on either side of this part of Mission Road is owned by the State and is part of the Mission. Proceeding west from Yonview, the Mission is on the northeast side of Mission Road, which provides access to the current parking lot for the Mission and the current visitor center, which is an adaptive use of a house built in 1938. Along that stretch of Mission Road, The Timbers condominium development is on the southwest side of Mission Road. Just west of the Mission property, San Luis Road intersects Mission Road. To the north of Mission Road, San Luis is a public road that proceeds north, past Leon County's San Luis Park (which is on the east side of the road), and residential neighborhoods to the west side, to where San Luis Road intersects Tharpe Street. To the south of Mission Road, aligned with San Luis Road, is an entrance to The Timbers. Sometimes referred to as an extension of San Luis Road, the roadway within The Timbers actually is private and serves as access to The Timbers condominium units; it continues through The Timbers and continues between other properties to the development's other entrance on White Drive. As Mission Road proceeds west from San Luis Road, the rest of The Timbers is on its south side; on its north side, Solana Drive joins it from the residential neighborhood to the north. Solana Drive is a short street between San Luis Road and Mission Road. The northern terminus of Solana Drive is near the southern end of the County Park. Petitioners and Their Interests Petitioners are The Timbers Homeowners’ Association, Inc. ("HOA"), and Brian Moran and Christy Baldwin, individually. The individual Petitioners each own one or more units within The Timbers. Ms. Baldwin has resided there for nearly ten years. The HOA is charged with representing the interests of the owners and residents of The Timbers. It owns and has responsibility for the repair, maintenance, and improvement of the common areas within the development. Mr. Moran and Ms. Baldwin are officers of the HOA. The Timbers is a 223-unit condominium community that fronts, along its entire length, the south side of Mission Road between White Drive and Yonview Drive. A portion of this frontage is located directly across Mission Road from what is now Mission San Luis. The private road within The Timbers between Mission Road and White Drive is how The Timbers connects to the public road system. As it fronts Mission Road, The Timbers is a pleasant, wooded community of multiple condominium structures, each of which fronts on a side street connected to its private "San Luis Road." The Timbers is conveniently located for easy access to Florida State University, Florida A&M University, and other points to the south or east of The Timbers (including downtown Tallahassee). A significant number of residents of The Timbers use Mission Road by turning right onto Mission Road, which takes them to a right turn onto Ocala Road, with no stop sign, stop light, or significant intersection in between. From there, they can go straight south on Ocala Road or turn east or west on Tennessee Street. If the abandonment application is granted, that route would be eliminated, and there would be two remaining ways to leave The Timbers--via the White Drive exit, or by making two left turns, one onto Mission Road and the second, after a stop sign, onto White Drive. Meanwhile, drivers traveling east (toward town) on Mission Road from virtually all points west of The Timbers (and thus west of White Drive) on Mission Road, would take a right curve onto White Drive from Mission Road but they would do so with the right-of-way or, if signalized, a traffic light timed to give them a “longer green” preference. Those Timbers residents, owners, and visitors exiting at White Drive would have to negotiate their left turn without the right-of-way and against whatever increased traffic might be introduced onto White Drive if Mission Road were closed. From there, depending on the ultimate destination, traffic could either go straight on White Drive towards Pensacola Street or turn left onto Tennessee Street to reach the Tennessee Street/Ocala Road intersection. The intersection at White Drive and Tennessee Street is signalized but is not consistent with current design standards in that it has an offset center line. According to the planned unit development documents for The Timbers, the White Drive entrance was supposed to be the main entrance to the development. However, the Mission Road entrance has come to function more like the actual “main” and is more attractive aesthetically. Petitioners have spent significant effort and money in beautifying and otherwise maintaining its private extension of San Luis Road through curbing, landscaping, signage, etc. The part of the road that joins The Timbers to White Drive is not as well constructed and is not bounded by The Timbers but rather by other properties. It also is where the garbage dumpsters for the development are located. (On the other hand, the mailboxes for the development also are located off that part of the private road.) The closure of Mission Road probably will shift some internal Timbers traffic from the Mission Road entrance to the White Drive entrance. It also is possible that some external traffic coming south on San Luis Road might use the private extension of the road within The Timbers as a "short-cut" to White Drive. However, the road through the Timbers may not prove to be a desirable "short-cut" because it is a lower-quality road, has potholes, and is not designed for through-traffic but rather as a feeder road for the parking areas of the development. There are three stop signs; the turns are tight; and cars sometimes are parked along the side of the road. As a result, "friction" would slow through-traffic and discourage use of the road as a cut- through. The design of San Luis Road also makes it less likely that The Timbers would be used as a short-cut to White Drive. There is a hard right turn in the road signed for 15 miles per hour that people tend to avoid by turning onto right onto Solana Drive. Many residents walk within The Timbers, including to the mailboxes, to the tennis courts, and to the dumpsters, or to walk their dogs (perhaps in the green space created by an abandoned railroad right-of-way in the vicinity) on the western side of The Timbers. If traffic increases on that side of the private extension of San Luis Road, both the safety and the subjective experience of those pedestrians would be adversely affected to some extent. However, those effects are speculative. A resident-controlled gate system for the Mission Road entrance to prevent cut-through traffic likely would cost The Timbers HOA in the neighborhood of $15,000. Associated costs for telephone connections to each of the units, electrical service, and maintenance would likely range from $75 to $80 per residential unit per year. But such a gate is not desired by Petitioners as it would constitute a significant inconvenience for Petitioners and others who reside in or visit The Timbers. Should the Timbers elect to install sidewalks along its San Luis Road to accommodate increased or shifted traffic within The Timbers, the costs associated with that could reasonably exceed $110,000, including engineering, permitting, utilities, and remediation. The owners of units within The Timbers would ultimately bear the costs of any needed improvements or additional maintenance that would result from a closure of Mission Road. However, it is speculative whether such measures will be needed or actually undertaken. It is possible that the owners of units in The Timbers might suffer some diminution in property value as a result of the proposed abandonment. According to a property appraiser, Richard Boutin, there will be diminution in value of approximately one percent of the value of units, which ranges between $120,000 and $150,000, that would materialize over time, taking two-to-five years to occur. Whether such a diminution in value actually will occur is uncertain. As described above, due to the location of The Timbers, the proposed abandonment will adversely affect Petitioners more than it will adversely affect most of the rest of the general public. Most of the greater adverse effects on Petitioners will be similar in kind to the adverse effects on most of the general public. At least one of the greater effects on Petitioners also is different in kind -- namely, some drivers probably will use Petitioners' private road as a cut-through. See Findings 9-10, supra. Standards for Abandonment Applications A guiding principle for all City Commission action is to act in the public interest. The City Commission must act in the public interest, whether stated in a regulation or not, including when acting on an application for abandonment of right- of-way. City Commission Policy 410 has been used as a guide for reviewing abandonment applications. Policy 410 provides: The City of Tallahassee will not consider any application for right-of-way abandonment, if the subject right-of-way is currently being used by the City, or if the City has any plans to use the right-of-way at some point in the future. Abandonment of a right-of-way must be demonstrated to be in the best interest of the general public. Neither abandonment of a right-of-way solely for the purpose of placing it on the tax rolls in its current state, nor abandonment of a right-of-way solely to benefit an abutting property owner, is considered to be sufficient to meet the test of "in the public’s best interest". Abandonment of right-of-way automatically reverts only to abutting property owners with one-half of the right-of-way going to each owner by operation of law upon adoption of a City ordinance. Provide applicant with a Quit [sic] Deed for recording, if the right-of-way is abandoned. Unlike ordinances, policies can be waived. Notwithstanding paragraph 1 of the Policy, the evidence was clear that the City abandons right-of-way that is in use, either explicitly or implicitly waiving paragraph 1. Over 90 percent of the abandonment applications processed by the City have been for rights-of-way that are currently being used, including some that were being used heavily. The actual standards for determining whether to abandon a road have been found in the other parts of Policy 410, especially in paragraph 2. Although Policy 410 had a sunset date of March 25, 1997, it has not been replaced, and the Planning Department continued to use it as a guide for review of abandonment applications. On February 23, 2005, the City Commission reviewed proposals from the Planning Department for modifications to the City’s abandonment policies, procedures, and fee requirements. The proposed modifications included revised procedures, added definitions, and added the following specific review criteria: The approval of the application shall not create any safety or public health hazard, including any environmental health hazard; The approval of the application shall not result in the preclusion of right-of-way or fee simple access to any existing parcel/lot of record; The approval of the application shall not result in the preclusion of access to any publicly-maintained facility or infrastructure; The approval of the application shall not create any condition inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long Range Transportation Plan included therein; The approval of the application would not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain; The approval should not adversely affect service access required for any official public safety, utility service, waste collection service provider; the United States Postal Service; Leon County Schools (school buses); or TalTran. On February 23, 2005, the City Commission approved the modifications and approved the Planning Department's recommendation to repeal Policy 410 since the modification would be more definitive. The City Commission approved the Planning Department’s recommendations, and directed staff to draft an ordinance incorporating the proposed modifications to the abandonment policies, procedures, and fee requirements and to bring the ordinance back before the Commission for adoption. As of this date, due to staffing constraints, the Planning Department has not taken an ordinance back to the City Commission for review and action. Conditions of Abandonment The City's Planning Department has placed several conditions on the proposed abandonment to address issues raised by the reviewing departments during the processing of abandonment applications. Placing conditions on abandonment of right-of-way is authorized and common. A standard condition for abandonment is that easements be retained by the City for any utilities. It also is standard to require the maintenance of adequate emergency access for the fire and police departments. Also standard, a vehicular turn- around will have to be constructed at the new eastern terminus of Mission Road. To connect with other bicycle-pedestrian trails in the area and enhance these modes of transportation and the City's Bicycle-Pedestrian Master Plan, the Planning Department recommends that a bicycle/pedestrian easement around the perimeter of the Mission be dedicated to the public as a condition of the abandonment. Finally, the Planning Department recommends that the proposed abandonment be conditioned on payment by the State for signalization at the Mission Road and White Drive intersection if, within 12 months of the abandonment, traffic increases to a point where signalization there is warranted. In testimony, the Executive Director of the Mission, Dr. Bonnie McEwan, supported the idea of a bicycle/pedestrian easement for the City, and DEP did not oppose either the standard or recommended conditions of abandonment. Effects of New Mission Visitor Center on Pedestrian Safety The building that currently functions as a Visitor Center for the Mission is an adaptive use of a 1938 house. Limited restrooms are in a separate building next to the house. Currently, due to the lack of accommodations, frequent requests to hold major events, weddings, receptions, and special functions must be denied. Currently, Mission staff must cross Mission Road between their offices and the public northern section. Staff crossings are a cause for concern because of the limited sight- line distance around the curve in Mission Road to the west. They are warned regularly to use caution, but no other measures to protect staff have been implemented or requested to date. Currently, visitors to the Mission drive to the public parking area on the northern portion of the site. Visitors then remain on the north side of Mission Road until they return to their vehicles to leave. In 2006, the Florida legislature appropriated funds to build a new Visitor Center at the Mission. This Center will be in excess of 20,000 square feet and will include public classrooms, a place to show orientation films, exhibits, 20 public toilets, and a meeting room accommodating 250 people. The new Visitor Center will be a vast improvement over the current facility. The evidence was that the best location for the new Visitor Center is on the western portion of the Mission property south of Mission Road. The site was selected because it is relatively flat and because the relatively few archaeological remains there have been mitigated. The plans are to have people enter the Mission using the driveway entrance on Tennessee Street, park around the new Visitor Center, proceed through the Visitor Center for their orientation, and then walk to the main area of the park, where the re-created Fort, Mission, Apalachee Village, and rich archeological sites are located. If Mission Road is not abandoned, the visitors would be crossing just east and quite close to a sharp curve in the relatively narrow, canopy-like road, which has deep-cut banks. Petitioners suggest that the new Visitor Center could be put on the northern part of the site. Indeed, before the State acquired the land on the south side of Mission Road where it now intends to build the new Visitor Center, the State was planning to build it on the north side of the road. However, the evidence was that the recently acquired site on the south side of the road is better suited and would be a much greater benefit to the general public. In any event, the evidence was that the State is going forward with its plans for the new Visitor Center and already has proceeded with obtaining environmental and building permits for construction on the preferred site. A conservative count of on-site visitation at the Mission last year was 30,239. There are activities year-round, including costume interpretation, a living history program, special events, and camps, including every teacher planning day and break. Most of the Mission programming is geared towards children, and approximately ninety percent of the visitors are children. The State hopes and expects that visitors to the Mission will increase dramatically with construction of the new Visitor Center. The State continues to expect that a high percentage of these visitors will be children. The application for abandonment is based on the reasonable prospect of increased future use of the facility. The application for abandonment seeks to protect the expected increased number of visitors, including many groups of children, and staff from the danger of having to cross back and forth across Mission Road. Pedestrian safety in connection with the use of the planned Mission facilities is a clear benefit to the general public. The abandonment application also would enable the State to optimize the functioning of the Mission, which also benefits the general public. Negative Effects of Abandonment At the same time, granting the application for abandonment would cost the general public in other ways, which the Petitioners point out. The segment of Mission Road proposed to be abandoned has a "canopy-road-like feel" (although it is not officially designated as a canopy road). The public no longer would be able to experience driving on it. A traffic study done by Wilson Miller on behalf of the State confirmed that traffic on the segment of Mission Road in question is relatively light. Traffic count data from 2008 showed that the annual average daily traffic ("AADT") was 1,500 vehicles a day, including both directions. Approximately 57 percent of the 1,500 cars move in an easterly direction. By comparison, the AADT for other area roads in the vicinity is significantly higher: 9,000 vehicles for White Drive; 34,000 for Ocala Road; and 42,500 for Tennessee Street. Mission Road is classified as a minor collector road. The capacity of a minor collector is between 13,000 and 14,000 AADT. The AADT established by the Wilson Miller study is only about 10% of the road's capacity, which is very light for a minor collector road. If the application for abandonment is granted, traffic will shift to other roads. However, the Wilson Miller study was not an origin and destination study and was not sufficient to determine with any precision how the traffic would shift. For that reason, Petitioners' attempt to use the traffic study to identify and quantify the costs associated with such travel shifts was not convincing. Some increase in traffic on other area roads will occur, but it is speculative based on this record where the increases might occur, how large they will be, and whether they will result in the need for taxpayer-funded road and traffic construction. Petitioners contend that the proposed abandonment will shift some eastbound traffic on Mission Road to White Drive. If it does, White Drive is a major collector with recent improvements and excess capacity. Any additional traffic on White Drive would not be significant from a traffic planning standpoint. It might make the road network more efficient overall (even though certain trips may become less efficient). It is possible that the re-routing of traffic from the Mission Road and Ocala Road intersection may be significant enough to warrant a traffic signal at White Drive and Mission Road. For this reason, the City staff recommends, as a condition for abandonment, that the State pay for signalization at that intersection if the need arises within a 12-month period after the abandonment. Based on the evidence, it should not be anticipated that other road and traffic improvements will be necessary as a result of the abandonment, except perhaps reversal of the stop condition at Mission Road and San Luis Road and possibly a turn lane on Solana Drive at its Mission Road junction. Petitioners also contend that the value of the 1.34 acres of road right-of-way to be abandoned is a cost to the general public that should be considered. The appraised value of the 1.34 acres was $240,000, using an "across the fence" appraisal methodology and assuming high-density residential property "across the fence" even though the property on either side of the proposed abandonment would be park land, and the transfer of use from road to park would be from one public purpose to another public purpose. In any event, the City cannot legally "charge" for abandoning right-of-way, and the value of abandoned right-of-way is never a consideration in the City's review of an abandonment application. See Conclusion 77, infra. Petitioners also contend that the proposed abandonment will have the negative effect of hampering emergency response in the area. Any road closure could result in a longer emergency response time by a matter of minutes in a particular circumstance and, depending on the emergency, it is possible that a delay of mere minutes could be significant and even mean the difference between life and death. But the evidence was clear that, from any reasonable planning perspective, the proposed abandonment would not present significant difficulties to fire, hazardous material, or police responders, assuming that maintaining adequate emergency access into the Mission itself is made a condition of the abandonment. Geographic areas are assigned to Fire Department stations for primary response. The response routes of drivers are not assigned, but are instead discretionary on the part of the driver based on the time of day, traffic patterns, nature of the road, and possible school zones. The primary station is called as the First Due, with the secondary being Second Due, and so forth. Station 4, located at the corner of Pensacola Street and Appleyard Drive, is the First Due Station, or engine company, for the area of the proposed abandonment, including The Timbers. The typical route for Station 4 would be to travel from its location at Appleyard Drive and proceed to Tennessee Street, turn right and proceed east to White Drive, then turn left and proceed north to Mission Road. This route would not be affected by the proposed abandonment. The Second Due Station for this area is the Main Fire Station located at 327 North Adams Street. The probable emergency response route for a fire truck coming from this Station would be to travel west on Tennessee Street, go through the Ocala Road intersection with Tennessee Street, turn right and proceed north on White Drive, and turn right and proceed east on Mission Road. The alterative route of proceeding north on Ocala Road at the Tennessee Street intersection and turning left onto Mission Road would be extremely difficult to navigate for a large fire truck, particularly in light of traffic, and typically would not be the preferred route. The typical route from the Second Due station is not affected by the proposed abandonment. The Third Due station for this area is Station 8, which is located on Hartsfield Road. This Station is situated to the west of the Timbers and the Mission. A typical route from this Station to the Timbers would be to drive east on Hartsfield Drive and take one of several southerly connections to Mission Road, and then drive east on Mission Road to access The Timbers or the Mission. Another consideration for Fire Department emergency access is the specialized functions of certain stations in two areas--Urban Search and Rescue, and the Hazardous Material Response. The Urban Search and Rescue team provides specialized services including searching through collapsed buildings and piles of debris. The primary station response for Urban Search and Rescue is Station 4, and its access is unaffected by the abandonment. The primary Hazardous Material Response team is Station 2, located on Sharer Road. There is a secondary specialized station for hazardous materials response, Station 3, which is located on South Monroe Street at Paul Russell Road. In addition, all of the stations have some ability to provide hazardous materials response. Currently, a possible route from Station 2 to the Timbers eventually would take Ocala Road to Mission Road. However, this route is only available for single engine fire trucks. Due to the nature of the equipment it uses, the hazardous materials team may instead proceed along Interstate 10 to Capital Circle and head back east to the area. During a response to an incident, this specialized team would be driving en route, meaning with traffic and not in emergency mode, and the First Due station would already have sent a truck to the site along a route unaffected by the proposed abandonment. As for the Police Department, the main type of call from The Timbers has been for public disturbances, which are frequently related to parties and generally not emergencies. In the three years of calls, only one call received could be considered an emergency response, which was for a young lady who had erratic breathing after passing out from drinking too much alcohol. In contrast to the Fire Department, police patrol cars have no fixed locations but rather are constantly on patrol. Dispatch for police prioritizes current needs and locations of vehicles. The Police Department has a number of methods it can use to access an area in case of an emergency. In addition to the standard method of reaching an area by car, potential options to reach an area include by foot, bike, and helicopter. Even deployment of an armored car/tank type vehicle would be possible if the situation warranted it. If the abandonment occurs, there will be three main routes to access the area, including San Luis Road, White Drive, and Mission Road from the west. With the two entrances to The Timbers, these routes provide at least five different ways to access The Timbers. Some locations in the City, such as cul-de- sacs, have only one access route. The various approaches to the area in question provide more than sufficient access. The proposed abandonment would result in the elimination of a less-than-ideal intersection at Mission Road and Ocala Road. Resulting from the extension of Tennessee Street to the west of Ocala Road, the intersection at Mission Road and Ocala Road does not meet current design standards because it is too close to Tennessee Street. It is not unusual for cars turning right from Mission Road onto Ocala Road to cross two or three lanes within a very short distance in order to turn left onto Tennessee Street. This maneuver is dangerous and illegal. Of six accidents at the intersection over four years, five involved oncoming traffic striking a vehicle turning onto Ocala Road from Mission Road. In a three-month period in 2006 alone, there were three such collisions. One reason there are not more similar accidents appears to be that the danger is so obvious that most drivers--both those attempting the maneuver and those driving south on Ocala Road--use caution. In addition, many of the local residents have become quite skilled at negotiating the intersection. Another illegal maneuver at this less-than-ideal intersection is sometimes used by cars heading north on Ocala Road and crossing Tennessee Street. Since it is not possible to make a legal turn left onto Mission Road, some turn left into a business parking lot on the northwest corner of Tennessee Street and Ocala Road, drive through the business parking lot, and then turn left onto Mission Road. Petitioners contend that the proposed abandonment will shift traffic from the Mission Road/Ocala Road intersection to the White Drive/Tennessee Street intersection, which also is inconsistent with design standards due the centerline offset, making the left turn onto Tennessee Street from White Drive potentially dangerous. However, whether and how much traffic would be shifted to that intersection was not proven. In addition, most of the traffic experts who testified were more concerned about the dangers inherent in the Mission Road/Ocala Road intersection and thought elimination of the Mission Road/Ocala Road intersection would make the Ocala Road/Tennessee Street intersection more efficient. Comprehensive Plan The evidence was that, with the conditions recommended by the City's Planning Department, the proposed abandonment does not create any condition that is inconsistent with the Tallahassee-Leon County Comprehensive Plan, including the Long- Range Transportation Plan. Goal 2 of the Historic Preservation Element of the Comprehensive Plan is to “[e]nsure that all municipal and county actions encourage and promote the preservation of this community’s historic resources.” Closing the proposed portion of Mission Road will serve Goal 2 by supporting and satisfying Policy 2.1.3 (mitigate the impact of development on historic resources), Policy 2.1.5 (property listed in the Florida Master Site File), and Objective 2.4 (develop a land conservation program to protect historic resources). The proposed abandonment also is consistent with other parts of Goal 2, namely: Objective 2.5 (establish a program to protect significant archaeological resources); Policy 2.5.1 (mitigation of adverse impacts to significant sites); Policy 2.5.2 (archaeological sites to be filed with Florida Master Site File and Archaeological Sensitivity Zone Maps of Leon County); Objective 3.2 (provide for the interpretation of local government-owned historic resources in parks and other public lands); Policy 3.2.1 (support and encourage local projects involving walking, bicycling and driving tours through historic areas); and Policy 3.2.2 (include the existence of historic resources as a criterion in the acquisition of public parks). The recommended bicycle/pedestrian path easement condition is consistent with Goal 6 of the Conservation Element of the Comprehensive Plan, which encourages the City/County to "implement a county-wide greenways network . . . to provide for . . . educational and historical interpretive opportunities and increased opportunities for alternative modes of transportation." Goal 6 of the Conservation Element of the Plan and supporting Policies 6.1.1 through 6.1.4 were the origin of the Tallahassee-Leon County Greenways Master Plan. The intent was to link historic and natural resources throughout the community, linking them to residential, work, and business areas. The bicycle/pedestrian easement link San Luis City Park trails with an existing trail at the intersection of Tennessee and Ocala. The proposed abandonment is consistent with the Parks and Recreation Element of the Comprehensive Plan in that state facilities may be included to meet state-required levels of service. Parks are essential to a sustainable community. The Land Use Element of the Comprehensive Plan has the general goal of protecting natural and aesthetic environments and residential areas. One way to protect residential areas is not to route collector roadways through them. Everything adjoining the western boundary of the Mission is classified as Residential Preservation. Closing Mission Road will force traffic away from this area and protect 18 homes on San Luis Road from cut-through traffic. The Planning Department would downgrade area street classifications to "local streets" to reflect their true use and provide better neighborhood protection. Studies performed by the Planning Department resulted in a multi-modal transportation district and a greenways master plan. The City operates under the Tallahassee/Leon County Multimodal Transportation District Plan. That Plan focuses on bike paths, mass transit, and sidewalks to facilitate greater mobility with fewer roads. Service levels for bicycle paths in the San Luis area are close to critical. The bicycle/pedestrian easement will provide greater connectivity, thereby improving service levels. Many students reside in the vicinity of the proposed road closure and provision of a bike path connecting the areas north of Mission Road with the Ocala Trail south of Tennessee Street would attract more bicycle traffic in the hopes of changing the mode of transportation for college students. The City has a Tallahassee-Leon County Greenways Master Plan (Greenways Plan). The abandonment application provides an opportunity under the Greenways Plan. The bicycle/pedestrian easement will connect an existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park. This is consistent with the Greenways Plan. The City has adopted the Bicycle and Pedestrian Master Plan (Bike/ped Plan). The purpose of the Bike/ped Plan is to facilitate greater awareness of bike and pedestrian facilities and to promote construction of new facilities. The bicycle/pedestrian easement would provide greater accessibility to existing amenities and infrastructure and meet the intent of the Bike/ped Plan. Petitioners argued that there already exists a better connection between the existing trail at the intersection of Tennessee Street and Ocala Road to San Luis City Park via Ocala Road and Continental Avenue. However, the evidence did not prove that the existing route would be safer or better than the connection that would become available as a result of the bicycle/pedestrian easement condition on the proposed abandonment. Even if it would be, an additional route and connection still would serve a public benefit. Petitioners also pointed out that State could dedicate an easement through its property for purposes of a bicycle/pedestrian connection without applying for abandonment of right-of-way and that the City never asked for such a dedication before the State applied for application of the right-of-way. But it is typical to consider such matters in the context of an application for abandonment. Alternatives to Abandonment Petitioners concede that pedestrian safety at the Mission San Luis "would be rendered perfect if the road were abandoned, closed, and eliminated." However, they contend that other steps could be taken to protect the pedestrians as well or better without abandoning the road. First, Petitioners suggest the alternative of a pedestrian crossing with a pedestrian-controlled stop light and advance warning flashers. This suggestion was supported by the testimony of Petitioners' traffic expert, Wayne Coloney. But he assumed there would be 360 feet between the pedestrian crossing and the curve in Mission Road. Actually, the pedestrian crossing would be only approximately 210 feet from the curve, which is less than the 330 feet that Mr. Coloney considered to be safe. The other traffic experts also believed that it would be unsafe to design a pedestrian-crossing that close to the curve, even with advance warning flashers--a design that works best on straight roads with long sight-line distances, such as Meridian Road. Next, Petitioners suggest the construction of an overpass. This would be a more expensive proposition. It would require the construction of ramps, stairs, and elevators to comply with the Americans with Disabilities Act. In addition, to be effective in protecting pedestrians, fencing would have to be installed for a considerable distance on both sides of the road to discourage pedestrians from crossing the road instead of using the overpass. According to Mr. Coloney, all of this would cost between $300,000 and $390,000 to install and between $20,000 and $30,000 to maintain. Both the overpass and the fencing would be at odds with the environment the State would be trying to re- create and maintain on the Mission property. Petitioners also suggest digging a tunnel under the road, which would be less obvious than an overpass. However, this also would require fencing to be effective and would be the most expensive of the suggested alternatives--costing between $450,000 and $690,000 to install. In addition, it would require digging a tunnel through artifact-rich earth, which would be contrary to the a primary purpose of Mission San Luis. Application of Findings to Standards Paragraph 2 of Policy 410 requires a demonstration that an abandonment of right-of-way is "in the best interests of the general public." It is clear that the proposed abandonment is not in any private interest since the abandonment is to the State for incorporation in its Mission San Luis, a public facility. The abandonment is not for the sole purpose of placing property on the tax rolls, or for the benefit an abutting private property owner. It is to benefit the public. It also is primarily to protect the safety of pedestrians working at and visiting the facility, including many school children. For these reasons, the abandonment clearly is in the public interest, as opposed to any private interest. Whether it is in the best interest of the general public is a more difficult judgment to make. But, on balance, the abandonment application, with the standard and recommended conditions, probably is in the best interest of the general public. The proposed abandonment also meets the new policy criteria for abandonment of right-of-way. It does not create any safety or public heath hazard, including environmental health hazard. It does not preclude access to any existing parcel or lot of record. It does not preclude access to any publicly- maintained facility or infrastructure. It does not create any condition inconsistent with the Comprehensive Plan, including the Long-Range Transportation Plan. It does not eliminate or preclude a street or bicycle/pedestrian interconnection that the City Commission intends to retain. It does not adversely affect any required service access for any official service provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Planning Commission recommend to the City Commission that DEP's application for abandonment of right- of-way be granted, with the standard and recommended conditions. DONE AND ENTERED this 2nd day of June, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2008. COPIES FURNISHED: Deepika Andavarapu Tallahassee-Leon County Planning Department 300 South Adams Street, Fourth Floor Tallahassee, Florida 32301-1721 William H. Davis, Esquire Dobson, Davis & Smith 610 North Duval Street Tallahassee, Florida 32301 Jonathan P. Sanford, Esquire Office of the City Attorney 300 South Adams, Box A-5 Tallahassee, Florida 32301 Lisa M. Raleigh, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Findings Of Fact On or about October 1, 1985, Nick Navarro, Sheriff of Broward County, set forth certain criteria for all persons who desired to be appointed special process servers for civil cases in the courts of Broward County. The criteria for appointment was revised in 1988. On or about October 21, 1985, the Sheriff's Office denied Petitioner's application for appointment as a special process server in Broward County. His application was denied again in 1986. In 1991, the Florida Legislature substantially revised the provisions of Section 48.021, Florida Statutes, which deals with the appointment of special process servers, in Chapter 91-306, Laws of Florida(1991). A Sheriff is authorized therein to prescribe additional rules and requirements directly related to the criteria and eligibility of a person to become a special process server. On November 20, 1991, Petitioner filed a petition for an administrative determination of the validity of certain rules of the Broward County Sheriff, seeking to invoke the provisions of Sections 120.56 and 120.57(1), Florida Statutes(1991). The challenged rules of the Sheriff's Office which relate to the appointment of special process servers were adopted in 1985 and revised in 1988.
The Issue The issue is whether Petitioner’s application for a license from the Florida Real Estate Commission was properly denied.
Findings Of Fact Petitioner, his Background, and the Application Leroy L. Baines, Jr., was born on October 31, 1985. Currently 29 years old, he is employed with a financial services company. He serves on the board of a non-profit organization called Butterfly Foundation Group. The organization works with underprivileged and at-risk youth. He also works with J.J.’s Boxing Club and Global Village, both non-profit entities. In 2005, Mr. Baines pled no contest to a criminal traffic infraction: operating a motor vehicle without a valid license (“Criminal Traffic Infraction No. 1”). He was adjudicated guilty and sentenced. Respondent’s Ex. No. 1 at 00028. The following calendar year, 2006, Mr. Baines was convicted of driving while his license was cancelled, suspended, revoked, or he was disqualified from holding a license (“Criminal Traffic Infraction No. 2”). Id. at 00022. In 2008, in the U.S. District Court for the Southern District of Florida, Mr. Baines pled guilty and was adjudicated guilty of two federal crimes: 1) conspiracy to interfere with interstate commerce by robbery, and 2) carrying a firearm during and in relation to a crime of violence (the “Federal Criminal Offenses”). Id. at 00013. Mr. Baines was sentenced to 55 months imprisonment for the Federal Criminal Offenses on June 18, 2008. He served his sentence in prisons located in Florida, Texas, and North Carolina. His sentence expired on June 30, 2014, and he was discharged from supervision on September 3, 2014. Id. at 00040. On April 11, 2014, Respondent received Mr. Baines’ application for licensure as a real estate associate (the “Application”). He answered “Yes” to Background Question 1, which asks, “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction . . . ?” Id. at 00010. After the background questions in the Application, the Application states, “If you answered ‘YES’ to any question in [the background questions], please refer to Section IV of the Instructions for detailed instructions on providing complete explanations, including requirements for submitting supporting legal documents.” Id. In the Application’s “Section IV(b) – Explanation(s) for Background Question 1,” Petitioner listed the Federal Criminal Offenses. For one of the two offenses under “Penalty/Disposition,” he wrote “Time Served”; for the other, he wrote “55 months.” Id. Under “Description” as to each of the two Federal Criminal Offenses, Petitioner wrote, “5 years Supervised Release.” Id. Despite the Application’s detailed instructions that require criminal traffic infractions to be listed (“This question applies to any criminal violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses . . . .” Id.), Petitioner failed to list the two Criminal Traffic Infractions. Petitioner’s Case Mr. Baines testified that his application should be granted because he has cooperated with Respondent by providing everything that was asked of him during the Application review process. Although he had not included the Criminal Traffic Infractions on the written Application, he freely admitted during the hearing it was his responsibility at the time he made out the Application to report them and to offer any relevant explanation of them. With regard to the Criminal Traffic Infractions, Mr. Baines testified he spent 30 days in the Orange County Jail. He seeks leniency in this application process based on his age at the time of the offenses which he claimed, at first, was 16. Noting the difference between his birthday and 2005 and 2006, Mr. Baines conceded during cross-examination that he was several years older than 16 at the time of the Criminal Traffic Infractions. Mr. Baines elaborated on the Federal Criminal Offenses explaining that he had fallen in with former high school friends whom he had not seen for some time when they recruited him to drive the get-away car in a robbery. He stated that at the time of the crime he was in possession of two guns both of which he had been carrying legally prior to the crime: a nine millimeter Glock and a .40 caliber handgun. Mr. Baines’ time in prison was spent without any violations of prison rules, according to his testimony, and he completed the post-release program successfully. His success in serving his time is the basis, Mr. Baines asserted, for his release from federal supervision so promptly after the expiration of the sentence. No documentation of “good behavior” in prison, however, was offered at hearing. In an attempt to demonstrate rehabilitation, Mr. Baines referred to his service to the Butterfly Foundation, J.J.’s Boxing Club, and the other two non-profit organizations with which he works that serve at-risk youth in the Pompano and Fort Lauderdale areas. He also averred that he had been cleared by the Department of Children and Families (“DCF”) to work with underprivileged youth for cheerleading and gymnastics although he offered no supportive documentary evidence from DCF. Mr. Baines did submit to Respondent as part of his application three documents related to rehabilitation. The first extolled his work as an employee. The second was written by a teacher at Stranahan High School who is a fellow basketball player at pick-up games in a public basketball court in Plantation, Florida. The third was written by his pastor at the Living Waters Sanctuary in Oakland Park, Florida. The authors of the letters all write highly of Mr. Baines. In support of his case for rehabilitation, Mr. Baines testified that after his conviction for the Federal Criminal Offenses, he had had only one slip-up: a urinalysis (“UA”) positive for marijuana, a substance he had used as a youth. Mr. Baines claimed that the UA was conducted only because those supervising his post-release case sent him for the testing after Mr. Baines had voluntarily acknowledged his recent use of marijuana. But for the single marijuana incident, Mr. Baines asserted under oath that his record after his conviction, in prison and out of prison during a post-incarceration discharge period, had been spotless. His admirable conduct, he testified, is what led to the court to promptly release him from federal supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner’s application for licensure as a real estate sales associate. DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2015. COPIES FURNISHED: Leroy L. Baines, Jr. 4808 Northwest 8th Court Lauderhill, Florida 33317 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) William N. Spicola, General Counsel Department of Business and Profession Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399 (eServed) Darla Furst, Chair Real Estate Commission Department of Business and Profession Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 (eServed)
Findings Of Fact The Respondent has been a registered engineer at all times relevant to this matter. On or about December, 1977, a set of plans for a shopping center were presented to the St. Lucie County Building Department for approval and for a construction permit. The plans contained the title block of Harry Reigler, a registered architect, along with Respondent's seal and signature. On each sheet which had not been originally drawn by or under the responsibility of the Respondent, the Respondent indicated the same by inserting "Revised by Advanced Design and Planning Service, T. Slider, P.E., J.W. Hunter, I.E., T.R. Conklin, P.D." The architects original title block was not disturbed or altered in any manner by the Respondent. The Respondent believed that any revisions he made to the original plans could be detected by a comparison with the original plans which he understood were on file with the St. Lucie County Engineering Department. The Respondent was not aware that the St. Lucie County Engineering Department had not previously issued a permit based on the original design but rather issued the permit based on the revised plans as executed by the Respondent. A comparison of the original plans prepared by the architect and the plans prepared by the Respondent demonstrates that the plans are essentially the same with drainage calculations added and changes made in the exterior facade. The majority of work in the preparation of the plans was prepared by the architect and not by the Respondent. By adding the phrase "Revised by the Respondent intended to show that his seal applied only to the revisions made by him or under his direction. At the hearing, the Department of Professional Regulation agreed to dismiss Count I and proceed only as to Count II.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department find that the Respondent violated Section 471.26(1)(e), Florida Statutes and place the Respondent on probation for thirty (30) days and immediately suspend the imposition of the penalty. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Carol Gregg, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Timothy P. McCarthy, Esquire Levy, Plisco, Schapiro, Kneen Kingcade and McCarthy Post Office Box 275 West Palm Beach, Florida
The Issue The issue is whether the application of Westinghouse Gateway Communities, Inc. for approval of the Area Master Plan 2 in the Gateway Development of Regional Impact in Lee County, Florida should be approved, approved with conditions, or denied.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Petitioner, Westinghouse Gateway Communities, Inc. (WGC), is a real estate developer that owns and operates a project known as the Gateway new community (Gateway) in Lee County, Florida. Gateway lies in central unincorporated Lee County, adjacent to I-75. It is located southwest of Lehigh Acres, immediately north of the Southwest Florida Regional Airport, and just east of the City of Fort Myers. The community is planned and approved for not more than 19,932 residential dwelling units, 816 acres of business, commercial and office uses and required support facilities on approximately 5,464 acres of land. To date, WGC has expended more than $38.9 million on the project, and more than 180 homes and 49,000 square feet of non-residential uses and a golf course country club are under construction or have been constructed. Petitioner, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of administering and enforcing Chapter 380, Florida Statutes, and the development of regional impact (DRI) programs pursuant to that chapter. Petitioner, Southwest Florida Regional Planning Council (SWFRPC), is the regional planning agency for the region in which Gateway is located. It is charged with various DRI-related responsibilities under chapter 380. Respondent, Lee County Board of County Commissioners (County), is the local government unit authorized by chapter 380 to issue local development orders for DRIs and to adopt land use and zoning policies under other legal authority. This proceeding involves three separate and timely appeals under Section 380.07, Florida Statutes (1989) from a development order rendered by the County on January 4, 1990. The development order pertains to the Gateway DRI. Many of the issues raised by the parties are factually and legally complex with little, if any, agency and judicial precedent to use as a guide. The issues are dealt with in separate portions of this Recommended Order. Finally, all parties presented fact and expert testimony on the various issues raised by the pleadings. As might be expected, the testimony is sharply conflicting in many respects. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. Background WGC purchased its Gateway acreage in 1982. At that time, it obtained an appraisal of the land showing a value of approximately $5,000 per acre, based on the highest and best use of the then agriculturally-zoned property for residential development. According to WGC, it purchased the land because of its single ownership, location in the path of growth, surrounding transportation network, and the adjacent Southwest Florida Regional Airport which was then under construction. At present, WGC owns approximately one-half of the Gateway land and holds the balance under options with a takedown rate of approximately 350 acres per year. (Schmoyer, Tr. 131-32; Respondent's Exhibit 3; Paragraph 2, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Koste, Tr. 607-08, 615-16). Prior to 1984, the Gateway property was zoned agricultural. In 1984, the County adopted the 1984 Lee County Comprehensive Plan pursuant to Chapter 163, Florida Statutes. Under the plan, public expenditures for roads and other infrastructure were targeted to an Urban Services Area, which the County's local planning agency recommended stop at Interstate 75. Gateway was located east of the Urban Services Area and beyond I-75 and designated rural under the local planning agency's plan. Although WGC desired to have Gateway included in the Urban Services Area, the local planning agency did not change its recommendation to the County. WGC accordingly proposed a "New Community" land use category in the comprehensive plan. (Spikowski, Tr. 1781; Bigelow, Tr. 1709-1712). In 1984 WGC developed the "New Community" land use concept, drafted the language, and submitted the proposal to the County. Among other things, WGC represented to the County that: Such lands are capable of being planned and developed as a cohesive unit in order to be free-standing economic units which do not impose negative fiscal impacts on the County. We've requested a non-urban services district designation. Thus, we have not affected the efficiency of the urban services area. We are not going to cost the County anything. This will not add to the cost of the plan. (Paragraphs 9 and 10, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 16 and 517). In proposing the new community designation, WGC sought to establish a category that would work with the location and the proposed plan of development of the Gateway DRI, while also fulfilling the 1984 comprehensive plan requirements. On December 21, 1984, the County adopted the new community designation proposed by WGC with only minor changes in the 1984 comprehensive plan. The Gateway property is designated as a new community in accordance with Section III, Land Use Plan Element of the 1984 comprehensive plan. When the new community designation was adopted by the County, the County included such statements as follows: New Community areas will be developed as free-standing economic units and will not impose negative fiscal impacts on the County. The land shall be developed as a free- standing community offering a complete range of land uses, e.g., a full mix of housing types for a range of household incomes... Off-site impacts shall be mitigated. (Paragraphs 11-14, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 10 and 28). The new community designation was specifically created for Gateway and agreed to because WGC indicated to the County that it would provide its own infrastructure, not cost the County anything, and be a freestanding economic unit. In light of the County's inability at that time to finance the infrastructure outside urban areas, it agreed to allow urban densities in non- urban areas only if the developer privately provided infrastructure. The new community designation has benefited WGC by increasing the valuation of the property. While the 1982 appraisal valued the property at $5,000 per acre, seven years later WGC requested an appraised value of $75,000 per acre for a land donation. Finally, it is noted that the Gateway lands are the only lands designated as new community within the entire county. (Spikowski, Tr. 1781-83; 1785-88; Respondent's Exhibits 3, 239, and 517; Nicholas, Tr. 3372-78; Paragraphs 15, 16, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). The 1985 DRI Order The WGC development known as Gateway is a development of regional impact (DRI) pursuant to the provisions of Section 380.06, Florida Statutes. A DRI is a development which, because of "its character, magnitude, or location," substantially affects the health, safety and welfare of citizens of more than one county. Gateway's ultimate buildout development of 19,932 residential units and 816 acres of commercial/office uses is the equivalent of 20 DRIs, based on commercial acreage alone. Indeed, Gateway is the second largest DRI in Lee County history. (Paragraph 26, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Starnes, Tr. 2414; Gibbs, Tr. 2117-18). An application for development approval for the Gateway DRI was determined to be sufficient under the provisions of Section 380.06, Florida Statutes (Supp. 1984) by SWFRPC on August 17, 1984. SWFRPC's report and recommendations were issued on October 18, 1984, recommending that the Gateway DRI be approved subject to certain enumerated conditions. (Paragraphs 28 and 29, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibit 22). In the DRI process, the regional planning council takes a lead coordination role in the review of a DRI. According to SWFRPC's executive director, SWFRPC staff recommended only conceptual approval of the Gateway DRI at the outset in 1984 under a process in Section 380.06, Florida Statutes, known as the Application for Master Development Approval (AMDA) process because the proposed 40-year buildout of Gateway exceeded local planning horizons and the proposed Gateway DRI was very large. Moreover, it is impossible to accurately plan a development over twenty years or more. SWFRPC staff worked with WGC to find a way to allow the development to move forward with certain planning and analysis delayed. The staff concerns were eventually resolved when WGC proposed phased or incremental review to provide for more specific analysis of Gateway as portions were proposed for development and to provide for a continued review role by the regional planning council. (Daltry, Tr. 2626, 2628; Burr, Tr. 2691- 92, 2701). In 1984 and early 1985 County planning staff also advocated the master application review approval and found the application information inadequate to analyze the project's impacts 40 years into the future. Staff indicated that the Gateway DRI application raised concerns about whether infrastructure needs would be mitigated in later phases. (Gibbs, Tr. 2119-22; Respondent's Exhibits 23, 37, 45 and 46). On May 31, 1985, the County approved, with conditions, restrictions and limitations, WGC's illustrative concept plan in the Gateway DRI Development Order #1-8384-36 (1985 DO). The illustrative concept was a delineation of the land use program specified in the area master plan (AMP) development program in the 1985 DO. The County granted approval for WGC to develop not more than 19,932 residential dwelling units, 816 acres of business/commercial/office uses, and required support facilities in accordance with the AMP development program set forth in Exhibit C to the 1985 DO and subject to certain conditions, limitations, and restrictions. Gateway included a total of approximately 5,319 acres and was proposed to be developed in nine areas over a 40-year buildout. (Paragraphs 33 and 35, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Respondent's Exhibits 45, 46, 63, and 809). On May 31, 1990, the County also adopted Planned Unit Development (PUD) Ordinance No. 85-15 to implement the Gateway DRI in terms of local procedures. (Respondent's Exhibit 62; Gibbs, Tr. 2118). The 1985 DO created an area master plan (AMP) process to determine the "precise location of land uses within each area," or the "precise location and character of land uses within the DRI," "in order to logically and rationally coordinate the phasing of development with available facilities." However, the 1985 DO did not assess the particular impacts of development of any area within Gateway or the mitigation WGC would be required to pay for them. (Respondent's Exhibits 63 and 809). Under the 1985 DO, no development within Gateway could occur without submission to the County of an AMP for the area sought to be developed. This prohibition was in accordance with a provision of the DO which provided that "Prior to carrying out any development of the parcel proposed for development, WGC shall prepare and submit to Lee County an Area Master Plan." The PUD ordinance adopted for WGC on May 31, 1985, and which is referred to in finding of fact 16, provided a process for further refinements of each AMP and also precluded commencement of "any development or construction within GATEWAY" without submission of an AMP to the County for review and approval. (Respondent's Exhibits 62, 63, 809 and 810). Under the 1985 DO, information in each AMP application must address drainage, conservation, transportation impact, wetlands, potable water, sewer, parks and recreation, schools, threatened and endangered species and fire protection, among other issues. The County must also determine whether to approve, approve with conditions, or deny the AMP according to the following standards for determination as to the extent to which the proposed AMP is: Consistent with the land uses authorized by this Development Order and the general distribution of uses set forth in paragraph 1 of this Order; Consistent with the PUD Ordinance #85-15 and the Lee County Comprehensive Plan; Consistent with sound land planning principles; Served, or will be served, by adequate public facilities, including: Water, Sewer, Roads, Surface Water Management, Law Enforcement, Fire Protection, Schools, Parks and Recreation. Consistent with the specific conditions set forth in this Development Order.. Finally, as part of its determination, the County must make a determination of whether the AMP is a "substantial deviation" pursuant to then Subsection 380.06(17), Florida Statutes, now Subsection 380.06(19), Florida Statutes. After approval, the AMP is the "controlling instrument" concerning the "location, character and magnitude of specific uses" within that area of the Gateway DRI. (Respondent's Exhibits 63 and 809). The 1985 DO further highlights the importance of the AMP process and the fact that issues would be subject to later adopted regulations for mitigation of impacts identified in that process in the following specific subject areas: Drainage. WGC must comply with every applicable rule, regulation, or requirement of the South Florida Water Management District (SFWMD) prior to any development of "any portion of the Gateway DRI". Energy. WGC must provide a bicycle/pedestrian system consistent with Lee County requirements. Transportation. WGC must submit a traffic impact statement (TIS) with each AMP application and approval or approval with conditions of Gateway phases is dependent on the results of the TIS and review and recommendations of various agencies, including SWFRPC. WGC must agree to pay for its "proportionate share" of needed road improvements as a "condition for area master plan approval." Water Supply and Sewer Service. During each AMP review, WGC must document adequate water supply and sewer service and comply with all SFWMD and Florida Department of Environmental Regulation (DER) regulations prior to development. Wetlands. WGC must delineate jurisdictional wetlands and submit plans for mitigation of impacted wetlands during the AMP process and comply with all applicable SFWMD and DER regulations. Education. School sites will be located during the AMP process. Protective Services. Sites for fire protection, emergency medical services and law enforcement will be dedicated during the AMP process. Each AMP application must demonstrate availability of fire protection services. Fiscal Impact. WGC must demonstrate with each AMP submittal that Gateway will not have a negative fiscal impact on the County. Parks. Parks will be located during the AMP process. Housing. WGC must cause the provision of a "range of housing types to be addressed" during AMP review. (Respondent's Exhibits 63 and 809). The 1985 DO also provides that the approval is further limited because it does not "obviate the duty of the applicant to comply with all other applicable local or state permitting procedures." (Respondent's Exhibits 63 and 809). The SWFRPC planning director agreed that (a) the 1985 DO did not confer blanket approval to develop the Gateway DRI, (b) information in the 1984 DRI application by Gateway did not satisfy regulatory requirements for DRI review of area 2, and (c) the original 1985 DO does not permit WGC to develop area 2 of the DRI due to missing details. In particular, the original application was not sufficient to fully address transportation concerns for every phase. (Burr, Tr. 2695-96, 2705-05). County planning staff viewed the 1985 DO as atypical, because it did not confer any authority to begin construction without further review under the AMP process. In essence, the County deferred impact mitigation to the AMP process because there was no 40-year impact assessment. The 1985 DO did not establish the specific development conditions for each area within Gateway. (Gibbs, Tr. 2118-20, 2173; Spikowski, Tr. 1789). Doctor Earl M. Starnes, the County's outside planning expert and the first state planning director, found that the 1985 DO did not address specific impacts in detail or by time frame, deferring those issues. Instead, it established a broad scheme for the location of future land uses and their intensities, subject to detailed AMP review for assessment and mitigation of impacts. The 1985 DO gave WGC no right to build future areas before availability and adequacy of public facilities and services and required mitigation were determined, but instead established a mechanism to make such determinations. (Starnes, Tr. 2415, 2429-30, 2509-10). WGC's president and chief operating officer indicated that the original DRI application addressed all issues, but provided for traffic mitigation on a more current basis. In a letter written to the County in March 1985 before approval of the DO, he stated that the AMP process offered continual County review of impacts. Under the 1985 DO, he agreed that WGC needed AMP approval and development orders before construction can occur. By stating that the 1985 DO authorized a "fully approved" DRI for the entire community, he meant it authorized a conceptual plan, as opposed to final approval of all of Gateway. (Koste, Tr. 616-23, 631, 646; Respondent's Exhibit 52). AMP Review Process The AMP process is similar but not identical to the application for master development approval (AMDA) process established in Subsection 380.06(21), Florida Statutes, and Rule 9J-2.028, Florida Administrative Code, in that both identify information needed for further review of later development phases or increments, identify the issues subject to further review and issues that could result in denial, and provide for review by substantial deviation procedures. The ADMA process was designed to deal with large projects with long buildouts and complex issues. The important parts of the AMDA process were addressed for the Gateway DRI by providing for the AMP process. According to the SWFRPC's executive director, who participated in the Gateway DRI review and approval process, the 1985 DO essentially gave WGC the right to submit more detailed applications and to continue to participate in the process. Future AMP applications and reviews were to address and resolve how the approved dwelling units could be supported by infrastructure, what mitigation was needed for impacts and the timing of that mitigation. This is consistent with SWFRPC's desire to limit the original approval to what was currently planned for roads and public services. (Daltry, Tr. 2660-61, 2627, 2641; Respondent's Exhibit 809). The DCA planner who reviewed the 1985 DO concurred that the AMDA and AMP processes were similar, stating: "This project is not a master incremental DRI, but it will be reviewed in that fashion." (Respondent's Exhibit 67). The County's expert witness Starnes also found the AMP process similar to the AMDA process, which was developed while he was state planning director. Under both processes, the developer was allowed to proceed subject to assurances that infrastructure would be addressed later. Both processes look first at future land uses and intensities and then refine them later to coordinate with infrastructure timing issues based on details that cannot be addressed over a 40-year period. An example would be in the transportation area where WGC submitted a DRI application in 1984 addressing that issue, but the County wanted to reassess the mitigation to relate to the development and proportionate share payment due in the AMP time frame proposed. (Starnes, Tr. 2431-37, 2464-65, 2467). According to the County's acting zoning director and the planner principally responsible for County review of the Gateway 2 application, the AMP process is similar to the AMDA or phased DRI process in that a long list of issues must be addressed in an AMP application. The acting zoning director also established that the AMP process is not a typical Lee County review or a strictly local review. This was further confirmed by witness Starnes, who concluded that the AMP review was not a local review process in general. (Gibbs, Tr. 2119-22; Starnes, Tr. 2437-38). The County's understanding and intent for the AMP approval process was expressed in an April 26, 1985, letter from an assistant county attorney and county director of development review to a member of the County Commission: Some concerns were raised about fire protection services and proper funding for water, sewer, police, EMS and other services. The L. P. A. was very concerned about Westinghouse Gateway Communities meeting their financial obligations. The comprehensive plan requires that the "New Community areas will be developed as free- standing economic units and will not impose negative fiscal impacts on the County." The L. P. A. required WGC to come back through the L. P. A. with each Area Master Plan to insure that when the specifics were known, the impacts of those specifics would be addressed in every respect, including financial. If there was any shortfall utilizing the funding mechanisms provided for, WGC would have to make up its financial shortages. (Respondent's Exhibit 57). WGC's intent and understanding of the AMP review process was expressed in the following: A letter dated March 22, 1985, to the County's director of the division of county development in which WGC acknowledged that: "The Board of County Commissioners are the ultimate decision-makers with respect to an Area Master Plan." A letter dated March 28, 1985, to the chairman of the Board of County Commissioners dated March 28, 1985, in which WGC represented that the DRI development order and PUD ordinance scheduled for adoption on April 19, 1985: "... will represent a beginning not an end, of an approval process which will involve many governmental agencies on an ongoing basis over the projected life of the [40- year] development period. The Area Master Plan approval process (phase) requires that each Area Master Plan be approved by the Lee County staff ... the Local Planning Agency, and the Board of County Commissioners. This process offers several advantages to both the developer and the County. The developer obtained a Development Order for the entire property and a set of rules to live by which will allow it to make the business decisions necessary to begin development. The County will be able, through the Area Master Plan process, to continually review impacts of the Gateway Community and react accordingly during the Area Master Plan approval reviews. We believe the County staff and WGC have developed a proper program for a larger scale development to gain approval while allowing the County a continuing opportunity to thoroughly review the land uses and impacts of the community. (Emphasis added) (Respondent's Exhibits 51, 52, 54; paragraph 38, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). Area 1 Development Order The County amended the 1985 DO on May 21, 1986, and approved with conditions the Area 1 Master Plan. That amendment authorized development of two hundred and ten acres of office/commercial/industrial uses and 1,850 residential dwelling units. Under the transportation-related terms and conditions of the Area 1 DO: WGC is required to submit a new Traffic Impact Statement and to mitigate additional adverse traffic impacts where approval is requested for the next AMP. (Emphasis added) WGC is required to pay a proportionate share for traffic mitigation of $3.5 million (1985 dollars). To satisfy that requirement WGC must pay road impact fees (estimated at $2.8 million in 1985 dollars) in effect at the time building permits are issued for all residential and non-residential development in Area 1. In addition, WGC agreed to construct the four-lane extension of Daniels Road at no cost to Lee County. However, WGC is not eligible for credits against road impact fees for the construction and right- of-way dedication associated with the construction of the four-lane extension of Daniels Road during Area 1 and subsequent areas of Gateway. WGC may claim a credit against future road impact fees in the later phases of Area 1 or subsequent phases of Gateway if WGC's actual costs for the construction of the four-lane extension exceed $700,000. WGC is also required to pay a proportionate share of the cost of the Southwest Florida Regional Airport (SWFRA) and the extension of Daniels Road; and to pay 70% of the cost of an at-grade intersection at Daniels Road and SWFRA entrance, if the design study indicates such an improvement is necessary. WGC's payment of a proportionate share for at-grade improvements are to be in addition to payments of road impact fees and other obligations specified in the amendment. WGC's payment of a proportionate share of the cost of at-grade improvements at the Daniels Road extension and the SWFRA entrance intersection will not reduce WGC's obligation for proportionate share contribution for future improvements needed at this intersection, but the contribution of the $125,000 may be credited against WGC's obligation for future proportionate share contributions for further improvements at that intersection. However, WGC is not eligible for credits against road impact fees during Area 1 or subsequent areas of Gateway for any proportionate share payments for at- grade improvements at that intersection. WGC's president acknowledges that Area 1 is the only area in which WGC has approval to construct. After approval of AMP 1, WGC commenced development activities and has done so continuously since that time. (Respondent Exhibit 107; Koste, Tr. 651). The County stated in the Area 1 DO that its highest priority for expenditure of road impact fees collected from Gateway Area 1 and other developments along the Daniels Road corridor was for road improvements necessary to mitigate traffic impacts along Daniels Road. (Respondent's Exhibit 107). Area 2 Application On January 17, 1989, WGC submitted a notification of proposed change to a previously approved DRI, the state's standard substantial deviation determination request, which included related DO amendments. This request indicated specifically that "Approval of the Second Area Master Plan" was among "PROPOSED CHANGES-TO THE APPROVED DRI." The request stated that the complete AMP application was attached. (Respondent's Exhibit 229; Montgomery, Tr. 419; Gibbs, Tr. 2125-26). The Area 2 application was submitted February 1, 1989. In the same time frame, WGC's attorney indicated that the new community designation required assurance that adequate public facilities would exist at the time of demand and that the issues for Area 2 review included determination of the AMP 2 proposal's consistency with "the Lee County Comprehensive Plan" and sound land planning principles, as well as availability of adequate infrastructure. After a meeting with County staff, WGC waived the time frame for initial staff review. (Respondent's Exhibit 239; Montgomery, Tr. 419; Gibbs, Tr. 2127-28, 2224). While the 1985 DO anticipated that Gateway would consist of nine areas developed over a 40-year period, the Area 2 Master Plan submitted in 1989 actually included geographical Areas 2 through 5 of the original nine areas. As a result, the Area 2 application also included assessment of Area 1 in the transportation portion of the application in order to look at cumulative traffic impacts. In the Area 2 application, WGC requested approval of development of 2,481 total acres including 5,244 residential dwelling units and approximately 504 acres of non-residential office/commercial uses, with non-residential square footage initially limited to 1,670,000 square feet of office and 177,000 square feet of commercial use. The buildout period proposed by WGC for Area 2 was the year 2000. (Gibbs, Tr. 2130-31, 2220; WGC Exhibit 6; Respondent's Exhibit 237). A substantial deviation determination by the County was required for evaluation of the Area 2 application. The substantial deviation process reviews new, additional or previously unreviewed regional impacts. While the 1985 DO allowed review of more than one area at a time, submission of original Areas 2-5 as the Area 2 application resulted in half the total property coming in for review at one time and an area boundary modification in violation of the spirit and intent of the 1985 DO. This change also suggested a potential shifting of development density from the southern portions of Gateway near Daniels Road and other development toward the environmentally sensitive Six-Mile Cypress area. WGC also requested amendments to and changes in the 1985 DO, provided the County with public hearing notices treating the Area 2 proposal as a DO amendment and a substantial deviation request under Subsection 380.06(19), Florida Statutes, and proposed an Area 2 development order as part of amendments to the 1985 DO, despite protestations from WGC witnesses at final hearing that DO amendments were not needed. Under standard DRI practice, submission of a substantial deviation notice like the one WGC submitted in January 1989 calls for an amendment to the original DO. (Gibbs, Tr. 2132-42, 2255-56, 2181-83; Respondent's Exhibits 220 and 302; Montgomery, Tr. 505-06, 509; WGC Exhibit 155). Based on statutory criteria that consider new or additional or unreviewed regional impacts to be substantial deviations, the County's DRI reviewer concluded that the AMP 2 proposal would constitute a substantial deviation. However, the County ultimately approved a final Area 2 development order on December 20, 1989, that found the proposal would not be a substantial deviation "if subject to the conditions enumerated herein." The formal order itself was rendered on January 4, 1990. The DO approved the amount of development requested by WGC through the year 2000 subject to numerous detailed conditions. It is from those conditions that these appeals ensued. Finally, on September 5, 1990, the County receded from a number of conditions imposed in the January 4, 1990 order. This action is formalized in respondent's exhibit 742. (Gibbs, Tr. 2205-06; Respondent's Exhibits 606 and 742; WGC Exhibit 1). Applicability of Post-1985 Regulations to the Project A key disputed issue was whether various regulatory requirements adopted after the May 1985 DO were applicable to the Area 2 proposal or whether it was vested by virtue of the DO against their application. Such later-adopted regulations included the 1989 Lee County Comprehensive Plan adopted under Chapter 163, Florida Statutes, general County ordinances, and state and local "concurrency" regulations requiring development to meet level of service standards for public infrastructure and services concurrently with actual development. According to the County's deputy director of the department of community development, its acting zoning director and the assistant county attorney in charge of the Gateway 2 review in 1989, only the Gateway Area 1 development may have vested rights against concurrency and other regulations adopted after that DO was approved in 1986. Further, from his expert planning perspective, Dr. Starnes concluded that the 1985 DRI DO did not protect Gateway from applicability of new regulations for issues subject to future assessment, such as transportation and housing. Doctor Starnes also concluded that to the extent the DO approved activities, such as the establishment of conceptual boundaries, those things are protected under DRI vesting provisions of chapter 163, but activities that were not approved or assessed and mitigated are open to further regulation. (Spikowski, Tr. 1870-71; Gibbs, Tr. 2200; Ciccarone, Tr. 2850, 2860-61; Starnes, Tr. 2444-46, 2474; Respondent's Exhibits 199 and 402). From a local regulation perspective, the County's acting zoning director indicated that the proposed development submitted for approval in the County, including a Gateway AMP proposal, is evaluated under the County comprehensive plan in effect at submission. This approach is appropriate for review of AMP 2 for several reasons. First, the 1985 DO contains no language indicating that other County ordinances would not apply. Secondly, WGC was only entitled to rely on express conditions of the 1985 DO. Third, under the Gateway PUD ordinance, County ordinances and regulations should apply unless pre-empted by the provisions of that ordinance. Fourth, the 1985 DO requires that future AMPs satisfy "sound land planning principles," which are included in the 1989 comprehensive plan. Finally, it is illogical to assume that the single 1984 Gateway DO would apply over 40 years of development, with the comprehensive plan changing throughout that period. It is noted that other Lee County DRIs that may be exempt from later adopted comprehensive plan amendments either contained specific mitigation requirements, which the 1985 Gateway did not, or contained specific DRI DO conditions allowing election of one or another plan. (Gibbs, Tr. 2123-24, 2161-64, 2166-2167, 2194-95, 2204, 2272-73) At hearing, one of WGC's current attorneys, who was assistant county attorney at the time the 1985 DO was approved, testified she advised WGC that the 1985 DO was vested and that only the 1984 comprehensive plan applied. However, because the County staff took the position that both the 1984 and 1989 comprehensive plans applied, WGC instructed her to cooperate with the County on that basis. The former assistant county attorney also took the position that except for the PUD ordinance, no other development ordinance would apply to Gateway. She further interpreted condition 58 of the 1985 DO, which states that the DO does not obviate WGC's duty "to comply with all other applicable local or state permitting procedures," to mean local building or state environmental permits. However, the same witness' testimony was contradicted by her own prior statements and other testimony given at hearing. For example, while employed as assistant county attorney, she authored documents indicating that Gateway would need to be consistent with other laws if areas of regulation were not covered in the DRI DO or PUD ordinance and that Gateway would be subject to continuing review. She also told County staff in April 1989 that Gateway should be under the 1984 comprehensive plan for one purpose, but under the 1989 plan for another purpose if it were to Gateway's advantage, such as for transportation conditions. The witness also confirmed that Gateway had sought to apply the 1989 plan to avoid disadvantage to Gateway. The witness further conceded that the 1985 DO standards for AMP approval include consistency with the "Lee County Comprehensive Plan," not the "Lee Plan" as the 1984 Plan was called, and consistency with sound land planning principles, on which she placed no temporal limitation. (Montgomery, Tr. 408, 482-84, 488, 490-91, 495-96, 539; Gibbs, Tr. 2146-47, 2203-04,). Transportation Issues Generally An Overview The 1985 DO on appeal determined that, based on its then current analysis, the transportation proportionate share for Gateway Areas 1 and 2 through the year 2000 was approximately $26 million, plus costs for additional needed road improvements not yet identified. It required WGC to pay $15 million of that amount within one year and required a reanalysis after five years of the appropriate additional proportionate share. (Respondent's Exhibit 606). The principal transportation issues in these appeals are how much WGC should pay for mitigation of its Areas 1 and 2 traffic impacts through the year 2000 and how that amount should be determined. Based upon the more credible and persuasive testimony, it is found that a transportation proportionate share contribution of $21,367,457, plus approximately $8.6 million anticipated in future costs, is the appropriate amount of mitigation. It is also found that identification of impacts through a widely used transportation computer model and calculation of proportionate share by publicly accepted mathematical formulas are a standard DRI methodology appropriate for use by the County. Alternate DRI mitigation methodologies proposed by WGC are rejected as contrary to accepted public policy, precedent and professional practice. It is further found that transportation mitigation consisting of a DRI proportionate share payment may be required in advance of development by Gateway under standard DRI policy. Advance payment would secure WGC certain development and transportation concurrency rights based upon the County's evidence at hearing. WGC's Expectations as to Traffic Mitigation When it purchased the Gateway property in 1982, WGC recognized that funding mechanisms for traffic improvements were evolving and that it would be required to participate in the funding of transportation improvements on the public road network surrounding the proposed project. However, WGC did not study the costs of such funding participation as part of its acquisition analysis because the answers would depend on when and where WGC commenced development on its property. Ultimately, development of Gateway commenced toward the southern end of the project nearest the new regional airport and Daniels Road, which WGC considered a "growth corridor". (Paragraph 5, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement; Koste, Tr. 2000-01). Internal WGC meeting notes dated December 3, 1982, reveal that WCG recognized even then that traffic impacts would be significant for Gateway. With respect to Daniels Road, they contained statements such as "capacity captured by airport" and "Need to capture capacity any way we can." With respect to Colonial Boulevard, the notes contained statements such as "do whatever it takes to get it built --even help pay for it" and "potentially serious capacity problems". With respect to traffic levels of service, they stated "Need educational process to get level of service D." With respect to development phasing, they stated "Colonial or Daniels 1st? Go to north if can capture capacity on Daniels." WGC's then director of planning and permitting, who wrote the notes, testified at hearing that the idea of "capturing capacity" was not an important objective or main idea to Gateway in the sense that "if ... you are there first ... there would be adequate capacity on the road to handle the levels of traffic." Rather, he testified that "Westinghouse was looking to make sure that the roads would not be congested because that is not a good marketing for a community." He conceded that, from a marketing standpoint, free-flowing roads in the vicinity are a "benefit to any development." (Respondent's Exhibit 4; Widmer, Tr. 1733). One WGC reviewer of a draft of WGC's original DRI application for development approval (ADA) noted in a June 13, 1983, memorandum to WGC's president: After the ADA is submitted, the probability of getting the County to participate or to build (Daniels Road) on their own will be negligible. To offer to make improvements to County roads is foolhardy. We will be negotiating from a very weak position. Why not let them tell us what they expect? (Respondent's Exhibit 9) In its evaluation of the transportation section of the original Gateway ADA filed in early 1984, SWFRPC estimated that the DRI would require: two additional lanes on Daniels Road from U.S. 82 to the airport entrance by 1988; two further lanes on Daniels Road from U.S. 41 to the airport entrance by 2010; interchange modifications at I-75 and the airport entrance from 1997 through 2015; two lanes on Daniels Road from the airport entrance to S.R. 82 by 1985; two further lanes on Daniels Road from the airport entrance to S.R. 82 by 2000; additional lanes and access controls on Daniels Road between the airport and Gateway entrances by 2010; four lanes on Colonial Boulevard from I-75 to S.R. 82 by 1988; two additional lanes on Colonial Boulevard from Metro Parkway to I-75 by 2010, with access control by 2020; two further lanes on Colonial Boulevard from I-75 to the Gateway entrance by 2020; and control devices and auxiliary lanes at the junction of S.R. 82 and Colonial Boulevard by 1988 and 2020, respectively. The SWFRPC evaluation of WGC's ADA rejected WGC's assertion that certain improvements would not be needed by Gateway and advised that "planned improvements on several regional roadways must be pushed forward to accommodate Gateway ..." In its 40-year application, WGC had committed to direct funding of internal roads, intersection improvements at entrances, right-of-way donations for roads along its boundaries, 50% participation in construction of Daniels Road from the airport to S.R. 82 and of a Colonial Boulevard extension to the DRI. (Respondent's Exhibit 22) On January 30, 1985, approximately four months before adoption of the original Gateway development order, the president of WGC's corporate parent wrote WGC's president with respect to the development order as it then was proposed: The one area that is rather ambiguous is in the area of the road construction (transportation).... We commit to build two lanes here, two lanes, there.... (Respondent's Exhibit 40) On April 15, 1985, or approximately six weeks before adoption of the 1985 DO, WGC's president wrote the corporate parent's president and identified, among other "liabilities", the following feature of the proposed DO and PUD: Regional transportation improvements "open- ended" -- to be imposed at each phase based on periodic studies of actual and projected impacts. At hearing, WGC's president testified that there were changes in the final documents "but the areas (of liability) as far as I know, were all still included, and I know none of them went away." In his deposition received in evidence, he testified that with respect to the AMP process, which was adopted: The mitigation costs are not determined up front, they are determined as you go through the process, and should we ever conclude what the costs will be for Area Master Plan 2, that will only be as good as Area Master Plan 2 and Area Master Plan 1 together. Area Master Plan 3 remains a question mark. By not appealing the original DO, WGC accepted the deferral of impact mitigation determinations until each area master plan review. (Respondent's Exhibit 54; Koste, Tr. 621, 634-35, 2002-03; Paragraph 38c, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). Before filing an application for approval of AMP 1, WGC's vice president informed the WGC staff that potential transportation issues included "how proportionate share would be calculated, what would be the appropriate timing of the road improvements and receiving due credit ... with regard to impact fees for advanced payment if there was a question of timing of a road improvement." (Schmoyer, Tr. 135-36, Respondent's Exhibit 69). During the review of Gateway AMP 1, both DCA and the County took issue with WGC's assumption that the widening of Daniels Road to four and six lanes and the extension of Daniels Road to S.R. 82 would be available when needed because the improvements were "programmed." In response, WGC recognized that the improvements were not "committed" and stated that they were "necessary to support all area developments" and "a function not only of Gateway Area 1 development but also other area developments in the Daniels Road Corridor." (Respondent's Exhibits 77, 78, and 81) On April 3, 1986, while AMP 1 was still under review, WGC's traffic consultant for AMP 1 wrote WGC's director of planning and permitting as follows: As you requested, we have prepared an estimate of the likely roadway network in the Gateway Study Area at buildout of Westinghouse Gateway Communities. The future Study Area roadway network will be dependent not only on Gateway development but also other area development. Improvements of particular importance include the widening of Daniels Road to six lanes from west of US 41 to SR 82, the extension and widening of Colonial Boulevard to six lanes from west of US 41 to SR 82, a new east/west arterial (north of Daniels Road) from US 41 to SR 82, an interchange with I-75 at the new east/west arterial, and the Airport Flyover at Daniels Road. That portion of the new east/west arterial from Palomino Lane to the Six Mile Parkway, due to environmental permitting problems, may be very difficult to construct. In fact, the Development Order for Gateway (1-8384-36, Condition 17) states that access to Gateway Area 9 "... shall not be permitted through, over or under the slough." Nevertheless, as east/west access along Daniels Road becomes more difficult in the future due to area developments, the County in combination with area developers may consider alternative east/west access routes. Any alternative east/west in the area would require bridging the Six Mile Cypress. Without doing more detailed traffic studies, it is difficult to estimate with any degree of certainty the roadway requirements for Gateway Area 2. Those roadway requirements will be dependent on the level of development anticipated in Area 2 (and in particular the retail/office component), other area developments, and roadway improvements undertaken by the County, State and area developers. At this time, we would anticipate the following Study Area roadway improvements be considered during Area 2. Daniels Road widened to six lanes divided from the Airport Entrance to Gateway Boulevard, four lanes divided from Gateway Boulevard to SR 82 and six lanes divided from I-75 to US 41. Colonial Boulevard extended as four lanes divided from Gateway Boulevard to SR 82. East/West Arterial extended as four lanes divided from Gateway Boulevard to SR 82. East/West Arterial extended as four lanes divided from Gateway Boulevard to Treeline Road (and possibly to I-75 with an interchange at I-75). Treeline Road widened to four lanes divided from Daniels Road to the East/West Arterial. North/south connection from Gateway to Colonial Boulevard (four lane divided). Airport Entrance/Daniels Road flyover. It is very likely that Area 2 will be treated in the same manner as Area 1. That is Area 2 would be assessed a proportionate share of all roadway improvements with impact fees representing a portion of that proportionate share. At some time in the future, beyond Area 2, it would be anticipated that impact fee payments would represent the total proportionate share. (Emphasis added) (Respondent's Exhibit 97; Widmer, Tr. 1742-44). WGC's knowledge and understanding of the transportation conditions of the May 1986 Area 1 DO were reflected in an August 6, 1986, internal memorandum in which WGC's director of planning and permitting stated that: If a road improvement is needed at some future point which jeopardizes our continuance of development, there is always the option to make the road improvement ourselves (within reason) and receive credits against impact fees, which is provided for in our DO. (Paragraph 56b, Respondent's August 15, 1990 Draft Stipulated Facts, as stipulated in WGC's Prehearing Statement). A WGC staff member's notes of a November 16, 1988 internal strategy meeting concerning the pre-AMP 2 application reflects the following strategic considerations, among others: DRI proportionate share number should be brought in line with impact fee number; Consider pipelining impact fee money to County for construction of needed roads -- this will help AMP approval with County, RPC and DCA; Neale (Montgomery) will determine dollars to pipeline and where on Daniels Road (dollars needed for four-laning and east of I-75). At that time, the staff member recognized the impact fees and a calculated proportionate share could differ. (Anderson, Tr. 2018-31; Respondent's Exhibit 213). In a November 23, 1988 letter to Chris Knotts, U. S. Army Corps of Engineers, concerning the Area 2 mitigation, a WGC staff member wrote: A development designated as `New Community' must be able to obtain a complete mixture of land uses, in order to be economically self-sufficient (as possible). This type of development is an appropriate response in order to refrain from contributing to negative fiscal impacts to Lee County, which is already suffering from inadequate infrastructure. This lack of infrastructure ranges from roads operating at acceptable levels of service to proper sewer and water distribution lines and treatment facilities. (Respondent's Exhibit 217) County's Road Financing Efforts Lee County is one of the fastest growing metropolitan areas in the United States. The County seeks to accommodate rather than limit growth by devising funding mechanisms to meet infrastructure needs. For transportation funding, the County has relied on user fees, gas taxes, impact fees, state road funds and assessments against benefited individuals or properties, including DRI exactions. The County has adopted every tax within its authority to fund roads, including all optional gas taxes, and was one of the first counties in the State to adopt road impact fees. (Nicholas, Tr. 3364-70, 3440-41; Spikowski, Tr. 1790- 91; Respondent's Exhibit 733) Unmet road needs in Lee County are overwhelming. According to SWFRPC's executive director, traffic problems in the four Southwest Florida coastal counties, including Lee, are going to be as bad as Dade and Broward Counties in southeast Florida. Therefore, the goal of the DRI planning process is to have DRIs charged for the full impact of their traffic. (Daltry, Tr. 2640). According to a former member of the Board of County Commissioners from 1986-1990, the County's philosophy concerning new development was that infrastructure needs should be met by the public and private sectors collectively. The County directed its administrator to move the County to "get about the business of putting infrastructure in the ground." (Bigelow, Tr. 1713- 15; Segal-George, Tr. 1182-84). The County is continuing its efforts to finance road needs. It is seeking approval of a one-cent optional sales tax for roads by public referendum in the spring of 1991 and lobbying for state approval of a 1% real estate transfer tax for road financing. In addition, the County has had prepared a major report identifying major options for future road funding in the County. (Segal-George, Tr. 1189-90; Spikowski, Tr. 1942-43; Respondent's Exhibit 733). Mitigation for Road Impacts of Areas 1 and 2 Requirements of 1985 DO The 1985 DO required submission of a Traffic Impact Statement (TIS) by WGC for each area master plan. After submission of the TIS, the 1985 DO required the county engineer to determine off-site road and intersection improvements required due to that Gateway area to maintain a Level of Service D during the peak season and to determine Gateway's proportionate share of the cost of needed improvements, which could be 100%. As a condition for AMP approval, WGC was required to enter into an agreement with the County concerning how and when payments would be made. (Respondent's Exhibits 63 and 809). By mutual acquiescence of the County and WGC, key features of the DO requirements were not followed during the processing of WGC's application for AMP 2. The county engineer played essentially no role in the required determinations. The county administrator delegated determination of a proportionate share jointly to the County's department of community development and department of transportation and engineering, but final decision-making authority on that subject was left to the Board of County Commissioners. Generally, the department of community development assures that mitigation imposed is appropriate, adequate and consistent with other DRIs and coordinates its activities with the department of transportation and engineering. There was no agreement ever entered by WGC and the County regarding proportionate share, as required by the 1985 DO as a condition for AMP approval. (Brown, Tr. 2521; M. Swanson, Tr. 1657-58, 1683-84; Segal-George, Tr. 1192, 1196). Under the 1985 DO, the TIS was to be prepared "as per Attachment E" to the DO. There was disagreement among the transportation planners at final hearing as to what was required by Attachment E to the DO, and by the methodology discussed and agreed to in 1988 by County, SWFRPC and WGC planners and as to whether the TIS submitted by WGC followed Attachment E and the methodology the planners discussed. The more credible and persuasive evidence supports a finding that the 1985 DO did not require the use of the difference between results of the "with DRI" and "without DRI" analyses to determine proportionate share, as advocated by WGC, that both County and SWFRPC staff objected to this method and that it is not standardly accepted DRI practice. (Respondent's Exhibits 63 and 809). Attachment E did not call for a "with and without" approach in which the difference between "with DRI" and "without DRI" analyses would equal project impacts, but rather called for identification of traffic generated specifically by the DRI or DRI trips. The generally accepted definition of a "DRI trip" is a trip that has one "end," or an origin or destination within the DRI. Indeed, WGC's expert planner agreed that Attachment E did require assignment of DRI trips to the road network and he did not do that in the TIS submitted to the County or ever send that information to the County. (Respondent's Exhibit 809; M. Swenson, Tr. 1590-91, 1593-94, 1597-99, 1654-55; Horner, Tr. 870-71, 2880-81, 2901-02, 2926, 2931; Hall, Tr. 3086, 3112-14, 3322-24; Jackson, Tr. 768). Concerning the TIS methodology agreed to by the County, SWFRPC and WGC planners in 1988 for AMP 2, the County and SWFRPC planners established a methodology in June 1988 calling for identification of DRI trips on the road network by means of a manual assignment of those trips from a transportation computer model projecting total traffic on the road network at the buildout of the Area 2 phase. The methodology agreed to did ask for a "without Gateway" model run to give a basic idea of what the roadway network would need to look like without Gateway, but that run was not used to identify DRI trips. The planners rejected WGC's suggestion that project impacts be modeled as the difference between the total traffic "with and without" the Gateway project. (Respondent's Exhibits 154 and 165; M. Swenson, Tr. 1593-96, 1652-54, 1597-99; Horner, Tr. 2874-77). The TIS submitted to the County in February 1989 used the "with and without" methodology, contrary to County and SWFRPC staff positions. This use of the "with and without" approach meant that County staff could not use the TIS to identify project traffic and future roadway needs to determine mitigation because project or DRI trips were not identified. Both County and SWFRPC staff objected to the TIS because it used only a "with and without" approach and failed to identify DRI trips as needed to determine whether a DRI's trips are "significant" on a particular road link and therefore require mitigation. (M. Swenson, Tr. 1657, 1660-61, 1663-64, 1697-98; Loveland, Tr. 2935, 2941-43; Respondent's Exhibits 169, 249, 265, 271 and 273). The TIS also failed to follow SWFRPC DRI policies and had other deficiencies. Under the SWFRPC Comprehensive Regional Policy Plan, DRI traffic is deemed "significant" for purposes of determining which roads should be studied and which roads should be improved or impacts mitigated if DRI traffic is 5% of the Level of Service D peak hour capacity of a road. WGC's planner conceded that his use of a 10% significance factor in the TIS was inconsistent with the SWFRPC adopted plan, which he had been given a copy of prior to the preparation of the TIS. (Respondent's Exhibit 125; Daltry, Tr. 2630, 2681-82; Loveland, Tr. 2942; Horner, Tr. 2920; Jackson, Tr. 775-76; Montgomery, Tr. 498- 99). The TIS also included no calculation by WGC of a proportionate share to be paid by WGC and WGC did not submit an estimated total proportionate share to the County before late July 1989. Prior to-the adoption of the AMP 2 DO by the County on December 20, 1989, WGC's planner never submitted to the County a spread sheet containing his independent determination of a proportionate share. As contemplated by the original DO and as a result of WGC's actions, determination of the proportionate share required of WGC for the traffic impacts of Gateway Areas 1 and 2 fell to the County staff. (M. Swenson, Tr. 1666, 1700- 01; Jackson, Tr. 796). County Methodology As a result of these and other factors, County staff conducted an independent assessment of the road impacts of Gateway Areas 1 and 2 and determination of the proportionate share WGC was required to pay as a result. It is noted that the TIS and DO for Area 2 included Area 1 for purposes of traffic analysis due to the need to cumulate traffic impacts and as a result of prior DO conditions. (Gilbertson, Tr. 2725; Jackson, Tr. 776-78). The basic methodology used by the County staff to determine the WGC proportionate share relied on a transportation computer modeling program known as FSUTMS (Florida Standard Urban Transportation Model Structure) to determine the road impacts of Gateway Areas 1 and 2 in the Area 2 buildout year of 2000 and on a variation of an adopted DCA proportionate share rule for DRIs used to calculate the proportionate share dollar amount owed. (M. Swenson, Tr. 1667-75). County staff agreed with WGC representatives to do various FSUTMS computer runs in August 1989. The staff used a FSUTMS run to identify total traffic on the road network. It also identified DRI trips with a FSUTMS module known as "module 4" or the "DRI trips" or "selected link" methodology. These computer runs were performed and the output was in the form of oversized drawings known as "plots," which identify the road network and traffic volumes projected in the year 2000 on those roadways. Information from the plots for the total traffic and DRI trips FSUTMS runs was then used with a separate Lotus 1-2-3 spread sheet computer program to determine a proportionate share contribution for roads. (M. Swenson, Tr. 1666-68, 1670-72; Faris, Tr. 859; Johnson, Tr. 1483-85; Jackson, Tr. 716; Hall, 3092-93; Respondent's Exhibits 443, 446 and 450). The County used its standard DRI policies at the time to determine proportionate share. Those standard policies follow a variation of the DCA DRI transportation policy rule (Rule 9J-2.0255, Florida Administrative Code) minimum proportionate share policy. Those County policies were that if a roadway was operating at an inadequate level of service (less than level of service D), or the adversity test, and the road was impacted by the DRI by more than 5% of the level of service D capacity of the road (the "significance" test), then a proportionate share for that particular roadway link is calculated. The formula assesses the DRI a proportionate share of needed improvements if future traffic projected at project or phase buildout exceeds capacity, not if the addition of DRI traffic alone causes a road to exceed capacity. However, the DRI is only assessed a share of those total improvement costs. The spread sheet program uses information, including the total trips and DRI trips volumes, determined by FSUTMS, and a number of mathematical calculations to determine whether a proportionate share contribution is required for each roadway link studied, the share for that road link and the total proportionate share due for all road links. (M. Swenson, Tr. 1619-22, 1659-60, 1678-83; Hall, Tr. 3073). According to SWFRPC's executive director, SWFRPC has its own list and map of regional road links to be studied for DRI impacts adopted as part of its Regional Comprehensive Policy Plan. That plan and map show certain roads in the vicinity of Lehigh Acres, such as Alabama Road, as regional. Other roads may be reviewed in the DRI process for local impacts in agreement with the County's MPO. The SWFRPC encourages local governments not to overlook their local roads. It is noted that WGC's planner did not indicate any problem with the list of roads studied by the County for proportionate share purposes and he included them in his own spread sheets offered in evidence. (Daltry, Tr. 2663-65, 2683; Respondent's Exhibit 125; WGC Exhibit 95). The 5% test used by the County to determine if a proportionate share should be determined for a particular roadway link is the SWFRPC's 5% significance test. The basic mathematical formula used by the County to determine Gateway's percentage or proportionate share of a road improvement needed as a result of Gateway's traffic was received from SWFRPC staff. In addition to the 5% significance factor, the SWFRPC staff formula differed from the DCA proportionate share rule in that it allocated "reserve" or presently unused road capacity on road links studied first to non-DRI trips and then to the DRI in the year 2000. (M. Swenson, Tr. 1673-74; Hall, Tr. 3099-3101; Respondent's Exhibit 465). The County's use of FSUTMS and the SWFRPC proportionate share approach resulted in a final County staff spread sheet in November 1989 with a proportionate share for Gateway Areas 1 and 2 of $25,951,738 due to an error in one of the computer formulas for one road link. This total did not include additional improvements still needed by the year 2000 to Daniels Road and Colonial Boulevard. SWFRPC's executive director conducted an independent proportionate share estimate in November 1989 determining a $23.5 million cost. He found the County's $26 million share "within the range." (M. Swenson, Tr. 1677-78; Hall, Tr. 3075-78; Daltry, Tr. 2633, 2635-36; Respondent's Exhibits 525, 541 and 688; WGC Exhibit 187). The settlement of a County-DCA dispute over the 1989 comprehensive plan in the fall of 1989 had no bearing on the $26 million Area 2 proportionate share amount included in the Gateway Area 2 DO. (Bigelow, Tr. 1715-17; Segal- George, Tr. 1191) Using the same basic FSUTMS/SWFRPC staff proportionate share formula, in 1990 the County's expert planner recalculated the proportionate share based on an updated FSUTMS base year model for Lee County and on updated land use, road network and road cost information, all available after County staff acted in 1989. Based on this updated and more accurate information, in October 1990 he calculated a new proportionate share for Gateway Areas 1 and 2 as WGC sought to develop them through the year 2000 of $21,367,457, which reduces the amount imposed in the County's Area 2 DO on appeal by more than $4 million. In conjunction with an alternate five-year development program approving Area 1 and one-half the proposed Area 2 development through 1995 only, the planner in October 1990 also calculated a proportionate share of $11,386,657. (Hall, Tr. 3120-37; Respondent's Exhibits 896 and 897). None of those proportionate share calculations included the cost of additional improvements still needed beyond the six-laning of Daniels Road and Colonial Boulevard. Those improvements could consist of expressway-type improvements to Daniels Road. The County estimated, without challenge, that WGC's proportionate share of them was $8.6 million. (Hall, Tr. 3128-33; M. Swenson, Tr. 1681-82). FSUTMS Model Use Transportation computer modeling of future traffic projections began in the 1960s and has been evolving continuously. Such modeling is the representation of road network and land use date to project future travel demands and road improvement requirements. In the early 1980s, access to computer technology and modeling became more widely available as a result of the creation of microcomputers and minicomputers. Model systems have become extremely "bullet-proof" over many years of use, according to witness Fennessy, a national expert and pioneer in the field of transportation computer modeling. (Fennessy, Tr. 2977-85). The County's expert transportation planner, while working for the Florida Department of Transportation (FDOT) in the late 1970s, developed the concept of a standard computer traffic model for use in all urban areas in Florida and the research needed to implement the concept. The Florida standard model became known as FSUTMS. FDOT's goal was to create a standard model to be used by all public agencies in Florida and private consultants to evaluate future traffic conditions. (Hall, Tr. 3065-66; Faris, Tr. 838). The FSUTMS model, as developed in the late 1970s and early 1980s by FDOT, could only be used on large mainframe computers at first. When microcomputers became available, FDOT was aware that they would allow extended use of FSUTMS by public agencies such as local transportation planning groups known as Metropolitan Planning Organizations (MPOs). MPOs play an important role in growth management and local comprehensive planning issues concerning roads, developing future road improvement design and construction plans for their areas. FDOT wanted all urban areas to continue to plan and analyze long- range transportation needs similarly and in 1985 selected Fennessy as the software author for the FSUTMS model for micro- and minicomputers. The software program became available for use in late 1987 and early 1988 after several years of FDOT testing and refinement. Indeed, Florida is the most advanced state in the United States in the field of transportation computer systems modeling. (Faris, Tr. 844-47). The FSUTMS model simulates human travel behavior. It has three basic operational steps. In simplified terms, based on in-home surveys, the model determines how many trips will be generated for what purpose from each traffic area or zone, distributes them based on the shortest path of travel by time, and assigns them to a particular road network. Old "manual" methods of using a hand calculator, standard industry trip generation rules and guesswork cannot simulate the complex sets of interactions among land uses determined by FSUTMS. Those methods are not as dynamic as FSUTMS is in assessment of DRI traffic impacts. (Faris, Tr. 849-58; Hall, Tr. 3083-88). The FSUTMS model is widely used and accepted. It is used by all Florida MPOs and many local governments and major private transportation planning firms. It is the most commonly used model in Florida today. (Faris, Tr. 863; C. Swenson, Tr. 1341). Over the years, the FSUTMS model has evolved to the point where it is appropriate for use to measure transportation impacts of a particular development using a "selected link" or DRI trips analysis developed by Fennessy which is as accurate as the model in general. Fennessy developed the selected link capability from another computer model in response to inquiries from private consultants and government staff who wanted to know which development had traffic using a particular road link. This technique can be used with a high degree of confidence to isolate trips generated by a particular development and their impact on a particular road. (Faris, Tr. 859; Fennessy, Tr. 2969-75, 2989). The FDOT recommends use of FSUTMS and the selected link methodology to evaluate the transportation impacts of larger DRIs and to determine DRI trips. This recommendation in favor of FSUTMS is contained in official FDOT guidelines for DRI review issued in April 1990. The selected link analysis is the method taught to analyze DRI road impacts in FDOT training courses for private and public planners. One of WGC's transportation planners agreed that FDOT intends in its guidelines that FSUTMS be used to identify the transportation impacts of DRIs and pointed out that Gateway Area 2 is of such a size that it would fit the recommended category for use of FSUTMS. The FDOT has implemented the guidelines in its district offices to require FSUTMS use if recommended by them. If a developer wants to use any other computer model or a manual method, he must go through a justification process as to why he is departing from use of the model studied, supported and recommended by FDOT. (Faris, Tr. 860-61, 888-89; Fennessy, Tr. 2972-73; Hall, Tr. 3078-79, 3081-82, 3143-44, 3212-13; Mierzejewski, Tr. 1152-53; Respondent's Exhibit 674). The DCA's chief of the bureau of state planning agreed that transportation computer modeling is a very common approach for large DRIs and that a computer is needed to help determine the distribution of DRI trips and significance of their impact on the roadway. FSUTMS is the model encouraged and accepted to identify DRI transportation impacts in the DCA's new application form for DRIs projected at time of hearing to be adopted in November 1990. Departure from use of computer modeling would require a demonstration that another method is appropriate. The new DRI application form promotes use of FSUTMS by name to determine traffic generation and assignment to the network and this is the first time a specific transportation model has ever been mentioned in an agency rule. Most of the DRI applicants in the SWFRPC area who use computer modeling are also using the selected link analysis to identify DRI trips as well. (Beck, Tr. 1978, 1987-88, 1993-95; Hall, Tr. 3215-17; Loveland, Tr. 2944; Respondent's Exhibit 734). In the private transportation planning field, it is now routine to use FSUTMS for large DRIs. The old "manual" techniques are only used under standard practice on small DRIs and those with short buildouts. FSUTMS is more accurate than manual techniques in reflecting traffic impacts on a systemwide basis. It provides an objective starting place using land use data in a model validated for accuracy without favoring or disfavoring any particular development. It replaces the subjective manual approach where planners and engineers used to estimate that 5% of a project's trips would head in one direction or 10% in another. The 1984 original Gateway DRI application used those outdated methods. (Hall, Tr. 3081-82; C. Swenson, Tr. 1434-35; Crawford, Tr. 2750, 2752; WGC Exhibit 3). The FDOT has high confidence in the accuracy of FSUTMS. Each model with a particular urban area's land uses projected to a future year goes through a formal accuracy determination called validation. Indeed, no model duplicates observed traffic behavior and no computer model is infallible. However, FDOT standards for accuracy call for traffic projected by FSUTMS to be within 10% of actual ground traffic counts for a prior year on roads with high traffic volumes and within 20% on lower volume roads. During the validation process, adjustments to the model are made to correlate model traffic projections to ground counts. The models are achieving that accuracy generally. The accuracy on individual links may vary by much greater percentages, but if a road link has an inaccuracy greater than 10% or 20%, that variance needs to be explained in order to validate a model. (Faris, Tr. 838, 857-58, 864-65, 881-83; Mierzejewski, Tr. 1145; Nicholas, Tr. 3448). WGC's consultant Mierzejewski questioned using the County FSUTMS model to assess the impacts of a particular development on individual road segments based on illustrations from a December 1989 validation study prepared by Kimley- Horn, a private transportation firm that is a Lee County consultant. In particular, he highlighted the post-validation range of correlation between actual counts and traffic projections for four road segments studied in the Kimley-Horn validation report, although he stated that the Kimley-Horn adjustments to the FSUTMS model during the validation process were generally within accepted modeling practice. However, the Kimley-Horn transportation planner and engineer in charge of the validation report established that plus or minus 20% is the general range for accuracy on individual road links although in some very rare cases there may be significantly higher errors on individual links. Moreover, overall the FSUTMS model as validated for the County is the best method to project traffic for any development within the County, including Gateway, and those model outputs can be used to calculate a proportionate share reliably. The County validated model is more likely to underpredict actual traffic than overpredict it. (Mierzejewski, Tr. 1115-17; 1143-44; C. Swenson, Tr. 1339, 1341, 1359, 1408, 1411, 1415-16, 1434). The model results for four road segments in the validation report Mierzejewski criticized were the four worst of eighty-three studied in the report. However, if the model traffic projections for those road links were adjusted to match actual ground traffic counts, the result would increase the WGC proportionate share for Gateway Areas 1 and 2 by about $1 million, due to the model's tendency to underproject. (Hall, Tr. 3055). Both WGC and County experts agreed that the computer models should be more accurate in the five to ten year timeframe, due to land use projection accuracy, than for longer periods. Thus, FSUTMS and the selected link technique can be used with confidence for analysis of DRI transportation impacts for the DRI-related level of detail in a five and ten year buildout, such as Gateway Area 2. (Mierzejewski, Tr. 1166; Faris, Tr. 881, 937-38) In his private consulting business, WGC's transportation planner routinely uses FSUTMS computer modeling on DRI projects and also uses the output of DRI trips or selected link technique as a guide to identify and assign DRI trips to the road network and as an input to calculation of a proportionate share. Both he and County experts agreed that transportation planning and engineering judgment should be applied to analysis and use of the traffic volumes projected using the FSUTMS and the DRI trips technique. If sound engineering judgment indicates that the model outputs are logical, both also agreed that no adjustments to the output of FSUTMS may be needed. The FDOT April 1990 DRI review guidelines also call for use of judgment in using modeling results. (Jackson, Tr. 710, 804-05, 816, 820-21, 971, 3568-69, Hall, 3057-58, 3092-93; Respondent's Exhibit 674). Concerning the total future traffic projections and DRI trip projections as a result of the County's FSUTMS runs in September 1989, WGC's expert witness Jackson did not have any major problems with using the data without adjustment from computer runs as input into the County's proportionate share spread sheet. The expert was present at County offices in mid-September 1989 when the County prepared its output "plots" from the FSUTMS DRI trips runs. The record reflects that the expert (and his staff) actually helped input the data from FSUTMS computer plots into the County's proportionate share spread sheet program, and concluded that the output was reasonable for use and that the DRI trips model run was valid. (Jackson, Tr. 802-03, 806-08, 1023-24; Johnson, Tr. 1490-94, 1499-1500). DCA Rule and County Variations The DCA established the basis from which the County derived its proportionate share methodology in a DRI transportation policy rule (Rule 9J- 2.0255, FAC) adopted in early 1987. According to the DCA's chief of bureau of state planning, there was extensive debate over the rule and input from many formal and informal advisory groups, but the rule was a consensus as far as one could be reached. The goal of the rule was to bring some consistency to DRI transportation impact assessment and evaluation. The rule has had the intended effect. (Beck, Tr. 1966-67, 1976-77). The DCA rule includes three mitigation options: "staging" of development with the timing of road improvements by government or others so they accommodate the development, "pipelining" proportionate share dollars for road impacts to one or more major improvements, and a creative third option which combines those two. In "pipelining," the most commonly used option, a mathematical formula is used to calculate a proportionate share and those dollars are paid up front before development occurs and expeditiously committed to actual road building. WGC transportation experts agree proportionate share dollars are usually paid up front and devoted to road building in advance of development. If these minimum criteria are met, then a DRI has, to DCA's satisfaction, met the requirements of Subsection 380.06(15)(e), Florida Statutes, that a DRI makes "adequate provision" to accommodate its road impacts. (Beck, Tr. 1964, 1967-68, 1972; Jackson, Tr. 962-63; Mierzejewski, Tr. 1164). The DCA rule options establish minimum criteria. Both the rule and DCA practice allow regional planning councils and local governments to impose more stringent criteria or mitigation requirements. For example, the SWFRPC, and other regions, use the 5% significance test, rather than the DCA's 10% test. Transportation monitoring of actual traffic conditions as the DRI develops and determination of whether a road should be considered "committed" for improvement or subject to a proportionate share charge are other areas where the local government could be more stringent, based upon local or regional conditions. (Beck, Tr. 1964, 1969-70, 1972, 1974; Bittaker, Tr. 1476-77) The proportionate share formula used by the County as obtained from SWFRPC staff had another more stringent feature than the DCA rule. The formula used by the County allows any "reserve" capacity on a road segment to be used first by non-DRI traffic before it is used by the DRI being analyzed. The DCA formula gives first call on use of the reserve capacity to the DRI being reviewed. Even prior to submitting the TIS, WGC was aware that this reserve capacity issue had a major effect involving millions of dollars on proportionate share amount and that reviewing agencies often ignored the reserve feature of the DCA rule. (Hall, Tr. 3099-3101; Horner, Tr. 2882-83; Jackson, Tr. 783; Anderson, Tr. 2026-27; Respondent's Exhibits 218 and 736). The specific SWFRPC staff formula supplied to County staff was used for the Omni DRI in Fort Myers and gave other development first call on reserve capacity before the DRI. SWFRPC staff did not feel that DRIs should have first call on existing capacity. The southwest Florida region has a large number of approved subdivisions with one million lots that have a vested right to develop and the County has 400,000 such lots. There is no available reserve capacity near those projects and they should get priority over a new expanding DRI. In other words, the latest DRI should not be first in line. Those projects include Lehigh Acres near Gateway and Cape Coral and will require use of existing reserve road capacity. (Horner, Tr. 2882-83; Loveland, Tr. 1207-08; Daltry, Tr. 2630-33, 2644). The SWFRPC has not formally adopted a formula to deal with the vested project issue due to diversity but the SWFRPC itself has continually indicated that vested projects were more entitled to use capacity than a new DRI. Its staff recently has been taking a position of equivalent use by DRIs and non-DRIs but vested growth constitutes a public policy reason for the approach taken in the formula used by the County. The County used the formula because it was more representative of conditions in the County concerning the use of excess or reserve capacity than the DCA rule in light of the large, vested Lehigh Acres and Cape Coral projects in the County. (Daltry, Tr. 2653-54, 2680-81; M. Swenson, Tr. 1674-75; Spikowski, Tr. 1817). It is not inequitable to give other developments use of reserve road capacity before Gateway because surplus capacity should belong to the general public or the County, which is paying for 80% of the road needs in the vicinity of Gateway. This use of reserve capacity is a legitimate public policy choice so long as the County treats other DRIs similarly. First come, first served is a normal approach to use of available road capacity. (Nicholas, Tr. 3432-34, 3461-62). Proportionate Share for Daniels Road Widening Daniels Road is a major east-west road that serves and will serve the Gateway DRI. Daniels Road to the south of Gateway, Colonial Boulevard to the north, Metro Parkway to the west and S.R. 82 to the east form the principal road network surrounding Gateway on all four sides. (Hall, Tr. 3096-97; Respondent's Exhibit 738). The inadequate condition of Daniels Road as a two-lane facility was of particular concern to the County in the late summer and early fall of 1989. It was the general consensus that Daniels Road should be widened to six lanes rather than four, and the County approved imposition of two additional cents of local gas taxes and bonded those revenues in order to accommodate the six- laning. The County bonded ten years worth of these gas taxes to get the Daniels Road and Colonial Boulevard Extension improvements, among others, built although its most important development areas lie elsewhere, in Cape Coral, Bonita Springs, and South Fort Myers. (Segal-George, Tr. 1185-87; Spikowski, Tr. 1820, 1931; WGC Exhibit 16). The Gateway DRI benefits from the Daniels Road widening. The County accelerated the Daniels and Colonial improvements ahead of other pressing needs elsewhere to serve development needs, including those of Gateway. Gateway is a major contributor to the need for the Daniels Road widening, although not the sole cause, and Daniels Road was substantially impacted under the 5% significance test by the proposed development of Gateway Areas 1 and 2. A conservative estimate of Gateway's proportionate share use of the Daniels Road to the year 2000 was 20%. (Jackson, Tr. 991; Spikowski, Tr. 1848-50; M. Swenson, Tr. 1687; Hall, Tr. 3130-31). The County advance-funded the Daniels Road widening based on knowledge since 1983 of the Gateway development. If a county such as Lee County advances road funding in order to get ahead of development, it should not bear the risk that it cannot recover those funds in part from benefited developers. If the County cannot require Gateway's participation, the County would not participate in future forward funding. The County also demonstrated responsibility by determining the amount of development expected east of I-75 and initiating improvements rather than waiting for severely congested conditions, given the long lead time needed to plan, design, and build roads. It is unsafe to wait until a road is over capacity to initiate improvements. (Hall, Tr. 3098, 3249-50; Nicholas, Tr. 3472-73, 3508-09, 3519-22). If the Daniels Road widening to six lanes were considered a road "committed" to improvement, under the County's proportionate share methodology WGC would pay nothing for the widening of Daniels Road from two to six lanes, despite Gateway's traffic impact on that road. In any event, however, WGC would need to participate in funding improvements beyond six-laning. (Hall, Tr. 3342) The County staff initially considered the Daniels Road widening committed and calculated no proportionate share for WGC on that facility. When the county administrator learned of this, she determined it made no sense to charge nothing of a development that would significantly impact Daniels Road and established a policy that developers' road impacts should be assessed and a proportionate share calculated, regardless of whether the road improvement was in the County's capital improvement budget. It is the County's present general practice and policy to follow this approach for all developments. The County staff followed this policy for Gateway Areas 1 and 2 for roads including Daniels Road, the Colonial Boulevard Extension, and Metro Parkway. It would not be a true picture of Gateway's traffic impact and resulting responsibility to assume that improvements to those roads, which are now underway, were in place without a proportionate share contribution required from WGC. (Segal-George, Tr. 1187- 89; M. Swenson, Tr. 1610-12; Hall, Tr. 3096-97, 3169-70). Other DRIs in the vicinity of Daniels Road have been assessed a proportionate share for that road widening and it is reasonable to expect WGC to pay along with other anticipated causes of growth for that project. (Crawford, Tr. 2840-41, 2844-47) Other DRI review agencies agree that the issue of whether a road improvement is considered "committed" or should be assessed a proportionate share may depend on local circumstances. The DCA transportation policy rule does not address what is a committed road. Rather, that is an area left to local government based on local and regional conditions. In addition, committed roads usually include those under construction, but the source of the funding commitment is important and those revenue sources commonly include anticipated developer proportionate share payments. (Beck, Tr. 1974; Daltry, Tr. 2659, 2678- 79; Hall, Tr. 3243-44). If the County were to follow DCA's staging option approach to mitigation, the Gateway Area 2 development, as proposed by WGC in a single 10- year phase, would be required to wait until Daniels Road improvements beyond six-laning were planned and in place. Segments of Colonial Boulevard, as well as Daniels Road, would also fail by 1995 and 2000 even after identified improvements have been made. (Hall, Tr. 3104-05, 3128, 3342-43, 3351-53, 3575). County Estimated Road Improvement Costs In determining a proportionate share, the DRI's percentage of the demand for a needed road improvement is multiplied times the estimated cost of the improvement. In the County proportionate share spread sheets prepared in 1989, costs were based on estimates from the County project manager in charge of road projects under design or improvement and on FDOT average costs. The DCA generally relies on FDOT and local government cost data for estimated road costs under its proportionate share rule. (M. Swenson, Tr. 1673, 1681, 1683; Beck, Tr. 1973). As part of his updated 1990 determination of a proportionate share contribution for Gateway Areas 1 and 2, the County's expert planner Hall made adjustments to the cost per mile data based on actual bid and other updated information prepared by the County staff. The updated costs came from County staff, FDOT and adjustments made by Hall. For County roads under construction or bid, Hall used costs determined by the county engineer in September 1990. Those costs for Cypress Lake, Daniels Road, Metro Parkway, Six-Mile Cypress and the Colonial Boulevard Extension were cost per centerline mile averages derived from actual or estimated right-of-way, engineering, construction, project management and miscellaneous costs. Those costs were the most accurate reasonable costs available to the County as of September 1990. WGC's transportation engineer and civil engineering consultant agreed that specific actual or bid costs for particular road projects were better to use than other types of estimates. (Hall, Tr. 3149-50, Brown, Tr. 2535-37; Hill, Tr. 1088; Jackson, Tr. 991; Respondent's Exhibit 739). The County's expert Hall found that the cost data he used for his $21.4 million proportionate share estimate in the year 2000 were considerably more refined than data often used to calculate proportionate shares for DRIs and that it was the best data available from FDOT and the County for specific construction projects. (Hall, Tr. 3343-44). Most of the WGC criticisms of the road costs used by the County were directed at estimated costs before they were updated for actual bid costs. The principal witness who leveled these criticisms, Hill, had never done a DRI proportionate share calculation and had no road design or road engineering experience in Lee County. Hill estimated costs calculated by the County were too high based on actual bids and on cost data in a March 1989 road impact fee study prepared by Kimley-Horn, an engineering consulting firm used by the County. Hill selected the Kimley-Horn data as the best estimate of cost in instances where there was no bid. However, the author of that study established that the cost numbers in the study should not be used to calculate a proportionate share except as a gross check against other estimates. (Hill, Tr. 1064-65, 1066-70, 1092-93; C. Swenson, Tr. 1348-49; WGC Exhibit 101). WGC witness Jackson also criticized the county engineer's costs used by County witness Hall because those costs were not further broken down for each road segment along Daniels Road per lane mile. However, the county engineer established that it was not appropriate to calculate a lane mile per cost by dividing the cost per centerline line mile by the number of lanes on a road segment because a cost per lane mile needed to be based on actual engineering analysis of the work being done. In addition, further understanding of design and engineering factors would be needed to refine further the costs used for Daniels Road. Witness Jackson acknowledged that he had done no significant study of design plans for the Daniels Road widening, although he proposed a reduction in the proportionate share for Daniels Road on a lane mile basis. Like witness Hall, WGC witness Hill used a uniform cost per mile for all Daniels Road segments and indicated that was a legitimate approach if the cost per mile were based on actual bids, as Hall's was. In a proportionate share estimate offered by witness Jackson during the final day of hearing, Jackson assumed a uniform cost per mile for Daniels Road, just as Hall did. (Brown, Tr. 2552-53; Hall, Tr. 3155; Jackson, Tr. 3562-63, 3573, 3578; WGC Exhibit 101). WGC witness Jackson also questioned whether costs used by Hall for S.R. 82 were "somewhat" too high because they assumed a uniform cost for segments in the heart of downtown Fort Myers and those near downtown. However, Jackson did not independently estimate what the cost should be, did not adjust 1986 or 1987 FDOT cost estimates for S.R. 82 for inflation and did not study property values along S.R. 82 concerning right-of-way. State road costs in general may exceed county costs due to more stringent bidding and engineering factors. (Jackson, Tr. 3564-65, 3580-81; Hall, Tr. 3285, 3587). Impact of Gateway by DRI trips v. "With and Without" Methodology WGC witness Jackson contended that the traffic impacts of a DRI should be assessed using a "with and without" approach rather than the DRI trips method used by the County. He based this contention in part because the "with and without" method is a better way of assessing "new" trips added to the roadway as a result of the DRI. However, Jackson himself in his work has used a DRI trips approach rather than the "with and without" method to calculate a DRI proportionate share. (Jackson, Tr. 3554-57, 3568-69). Jackson never submitted a proportionate share calculation using the "with and without" method to County staff and WGC introduced no evidence of the monetary effect of that method of analysis on the total proportionate share assessed by the County in 1989 or redetermined by County witness Hall in October 1990. Moreover, he agreed with the County and SWFRPC that the DCA proportionate share formula, on which the County formula is based, does not use the difference between "with and without" trip projections (variously called "impact trips" or "travel demand" by WGC witnesses and counsel) as the measure of a DRI's traffic impact. The DCA and County formula call for determination of DRI trips (trips with an origin or destination in the DRI) and use of that number in the proportionate share calculation. (M. Swenson, Tr. 1682; Jackson, Tr. 990, 3569- 70 Crawford, Tr. 2842-43; Hall, Tr. 3108-09; Loveland, Tr. 2961-62; Horner, Tr. 2878). The FDOT recommends the DRI trips approach to assess impact instead of the "with and without" method. One major problem is that the "with and without" method fails to identify trips leaving or entering the DRI on roads at its front door. (Faris, Tr. 860, 914-15, 934-35). The SWFRPC staff generally does not accept the use of the "with and without" methodology to assess DRI impacts because it identifies the effect of diversion of traffic due to a DRI rather than specific DRI volumes on each roadway. The "with and without" approach tends to understate the impact of the DRI on roads near the DRI. In the case of the Omni DRI, for example, the "with and without" approach showed a major DRI would result in fewer trips right at the DRI's front door. (Loveland, Tr. 2943; Horner, Tr. 2878-80, 2915, 2917, 2925-26). The "without project" trip volumes and "with project" volumes represent two entirely different traffic projections assuming different land uses. The difference does not equal DRI trips on any particular road link. The "with and without" method could operate so that multiple DRIs could set up a domino theory in which each DRI evades responsibility to mitigate a major portion of traffic coming to a DRI destination. (Hall, Tr. 3108-12; Respondent's Exhibit 737). Concepts related to "new" versus "old" trips, including trips diverted to the DRI, are not relevant when FSUTMS modeling is used. The model looks at sophisticated land use interactions and determines how many trips there will be on each road link in the future, eliminating the need to focus on trips existing today. The model also makes the concept of a diverted trip unnecessary to consider in looking at future impacts. WGC witness Jackson also assumed in an impact fee calculation he prepared, where a determination of percentage of "new" trips was required as an input factor, that 100% of trips generated by Gateway Areas 1 and 2 would be "new." He further agreed that FSUTMS takes diverted trips into account and that County witness Hall's final proportionate share determination of $21.4 million should not be adjusted to reflect the concept of new trips versus old trips. (Hall, Tr. 3338-40, 3048-49, 3088-90; C. Swenson, Tr. 1352-53, 1435-36; Faris, Tr. 861-62; Jackson, Tr. 819, 1001-02, 3582) Division of Proportionate Share by Two From the outset of the Gateway Area 2 application preparation process in April 1988, it was a WGC internal goal or desire of considerable importance to keep transportation mitigation using a DRI proportionate share approach below the amount of impact fees, which are charged all new County developments. WGC was preoccupied with this subject throughout 1988 and 1989. From November 1988 through 1989, WGC witness Jackson prepared numerous memoranda and analyses for WGC comparing proportionate share contribution estimates with anticipated road impact fees owed by Gateway for Areas 1 and 2. The proportionate share estimate by Jackson rose from $500,000 to $14 million during this time period. In some of these analyses, Jackson advised his client that current road impact fees should cover all WGC proportionate share contribution requirements In July 1989, Jackson's highest proportionate share estimates for Areas 1 and 2 were still slightly lower than anticipated impact fees, both of which were in the $13.5 - $14 million range. Jackson's proportionate share estimate was shared with the County for the first time in a July 25, 1989 letter to the county administrator from WGC's executive vice-president who maintained that traffic mitigation should not exceed impact fees. During the same November 1988 to July 1989 timeframe there was no discussion between WGC and Jackson about dividing the proportionate share in half. (Jackson, Tr. 757-58, 760-63, 779-99, 1024; Anderson, Tr. 2024-25, 2032-34; Respondent's Exhibits 156, 175, 209, 212, 218, 260, 264, 295, 296, 306, 317, 334, 360, 368-370 and 602) In mid-September 1989, Jackson visited the County's offices and his staff and subconsultant inputted FSUTMS data into proportionate share spread sheets. He was aware at that time that the DRI trips approach, not the "wish and without" method, was going to be used by the County to calculate proportionate share. During this same timeframe, the County had created spread sheets determining proportionate share dollar amounts owed by WGC. A County spread sheet available by September 21, 1989, showed that the County proportionate share had reached $17 million (if not divided by two) more than impact fees. On September 15, 1989, Jackson proposed for the first time to County staff that the proportionate share should be divided by two if the County wanted to use DRI trips. (Johnson, Tr. 1490-91, 1494; Jackson, Tr. 802-04, M. Swenson, Tr. 1675-76; Respondent's Exhibit 459). By memorandum dated September 19, 1989, Jackson argued the proportionate share should be divided by two because the DRI was responsible for only one end of a DRI trip. Although a County staff person agreed to division by two in a September 21, 1989 letter, the staff person did not discuss the content of that letter with anyone before he wrote it. The staff person based his decision on an inaccurate conclusion from questions he asked others about the model. Based on further discussions with experts and study of model workings, the staff member later concluded he was wrong. A full staff consensus was subsequently reached that the proportionate share should not be divided by two and the final decision was up to the Board of County Commissioners. Standard county policy is not to divide DRI proportionate share calculations in half. (Gilbertson, Tr. 272 6-28, 2730-31, 2745-47; M. Swenson, Tr. 1627-28; Jackson, Tr. 977-78; Segal-George, Tr. 1192; Gibbs, Tr. 2234-35; Respondent's Exhibits 454 and 459). The DCA, SWFRPC and County experts all reject the divide by two approach for a number of reasons. The DCA considered and rejected it during consideration of its DRI transportation policy rule because it is an impact fee methodology, not a DRI exaction methodology. The County agrees that division by two is an impact fee principle that is not properly applied to DRI proportionate share calculations. It is one of the simplifying assumptions used in impact fees that assumes there will be an impact-fee-paying development at each end of the trip. However, that is often not the case, so the impact fee tends to undercharge. The SWFRPC staff also rejects division by two because to do so would provide a double benefit since the proportionate share approach already only imposes a proportionate share charge for DRI trips if they are significant (greater than 5%) on a road segment that will operate at an "adverse" level of service. Transportation planners for SWFRPC since 1984 have never seen this type of division by two approved for a DRI. (Beck, Tr. 1981-82; Nicholas, Tr. 3399-3400, 3402; Daltry, Tr. 2636-37; Horner, Tr. 2884; Loveland, Tr. 1211, 2948). The County's expert Hall also found it completely inappropriate to divide by two and was not aware of any transportation consultant in Florida that had used that approach to assess DRI transportation impacts. A proportionate share charge is only imposed on adversely operating roads where DRI trips are significant and those limitations naturally reduce or eliminate proportionate share costs as DRI trips get farther away from the DRI. Based on Hall's October 1990 proportionate share calculation, this effect resulted in a proportionate share charge for only about half, or 53%, of all miles traveled by DRI trips. It is logical to divide by two for impact fees due to simplifying and averaging assumptions used, but not for site-specific DRI proportionate share assessments that focus on charging the DRI for DRI trips occurring near the DRI on roads that will fail. Other County experts concurred in this assessment. At hearing, WGC witness Jackson also corrected any implication in his written testimony that Gateway was charged a share for all DRI trips rather than only for those where the significance and adversity tests were met. (Hall, Tr. 3115-20, 3345-46; Crawford, Tr. 2759-60; C. Swenson, Tr. 1356-57; Jackson, Tr. 825, 946-49, 966- 67, 985-86). Division by two was also out of WGC witness Jackson's realm of experience until this case. Of the more than fifteen DRIs he has worked on, none involved division by two of a proportionate share calculated using the FSUTMS model. Finally, WGC expert witness Mierzejewski conceded there are no state or regional public agencies that espouse his view that if a proportionate share method is used, the proportionate share should be divided between both ends of the trip. (Jackson, Tr. 808; Mierzejewski, Tr. 1162-63). i. Gas Tax Credit Issue The County rejected witness Jackson's suggestion in 1989 that gas taxes attributable to development of Gateway Areas 1 and 2 should be deducted from the proportionate share. WGC expert Fishkind also argued that the present value of gas tax credit should be deducted from the proportionate share. However, there is no such deduction provided for in the DCA's DRI transportation policy rule. Indeed, during the rule adoption proceeding, DCA rejected the idea that the gas tax credit should be subtracted from the proportionate share because there was no way to assure that those funds would be allocated to address the site-specific impacts of a DRI. (Fishkind, Tr. 1238-41; Jackson, Tr. 737-38, 965, 3559-60, 3571; Beck, Tr. 1977-78). County expert Nicholas established that there should be no deduction from the proportionate share for gas taxes so long as WGC receives impact fee credit for the total proportionate share contribution. Impact fees include a credit for gas taxes. Giving both impact fee credit and separate gas tax credit for payment of proportionate share would give the same gas tax credit twice. The County was the first local government in the State to create a transferable impact fee credit program so the impact fee credits above those Gateway can use should be valuable and marketable to other developers. Finally, it is noted that gas taxes attributable to Gateway Areas 1 and 2 could "dribble" in over the next 25 years and thus not be available to provide road improvements by the time they are needed. Gateway did not appear willing to wait 25 years for road improvements to be phased in. (Nicholas, Tr. 3402-03, 3424-25, 3473-77, 3479, 3384-85, 3441, 3533-36, 3467-68, 3533-36; C. Swenson, Tr. 1340-41, 1401-02) 1989 Area 2 DO Issues DCA Concerns DCA witnesses identified two areas of concern in the 1989 DO on appeal: (a) a condition on page 19 of the DO requiring Gateway to pay to correct certain roads after 1995 without attribution of the road deficiency to Gateway; and (b) a condition on page 17 of the DO requiring Gateway to undergo further DRI review although it may have mitigated for road impacts. On September 5, 1990, the County modified its position in this proceeding by abandoning (deleting) the two provisions opposed by DCA. (Bittaker, Tr. 1446-48, 1460-61; Spikowski, Tr. 1825-27; Respondent's Exhibits 606 and 742). Impact Fee Credit The County should grant Gateway impact fee credits for the full proportionate share imposed if it exceeds impact fees and both exactions are imposed for the same need. The County's revised position, as reflected in its exhibit 742, gives full credit and thus resolves the issue. It is noted, however, that the County would continue not to give credit for approximately $1 million for obligations for which no credit was given under the Area 1 DO. (Nicholas, Tr. 3390, 3519, 3527-28; Spikowski, Tr. 1804-05, 1904-05; Respondent's Exhibit 742). Monitoring of Actual Traffic Conditions related to traffic monitoring involve an area where local governments may be more stringent than the DCA transportation rule or regional policies. Standard SWFRPC practice is to monitor all significantly impacted roads using the 5% significance test. The 1989 DO contained a list of intersections and roadways to be monitored. Monitoring is needed to see if WGC may be responsible for road improvements beyond those for which it has paid by means of a proportionate share. There are a number of roads for which no proportionate share would be imposed because traffic is not significant or the road would not operate adversely, but where conditions are being approached. It is possible that over the course of actual development of Gateway Areas 1 and 2 that those conditions will be reached, thus triggering a need for mitigation. If so, in order for WGC to continue development, improvements needed to restore an acceptable level of road service must be made by the public, WGC or other entities (the staging approach). However, any additional costs would be paid by WGC only if, despite best efforts today to identify future road impacts, additional roads fail and Gateway's impact on such roads is significant under the 5% significance test. As reflected in witness Hall's testimony, the County has receded from its original position and now proposes to monitor only those roads and intersections where the significance and adversity conditions are being approached and on roads immediately adjacent to Gateway. They include Daniels Road, Metro Parkway, S.R. 82 and Colonial Boulevard, all having proximity to where the proposed development will have the greatest impact. By monitoring only those roads, the County has insured that there is no overlap or double assessment of mitigation. (Beck, Tr. 1970; Loveland, Tr. 2950; Spikowski, Tr. 1805, 1911-17, 1934-35; Hall, Tr. 3135-37; Respondent's Exhibits 606 and 742) While recognizing that DRI development orders often contain requirements for traffic mitigation that are open-ended based on monitoring, WGC witness Fishkind criticized this element of the 1989 DO and suggested that it would cause WGC difficulty in obtaining bank financing for its development. However, he did not know if WGC relies on this type of financing for its development. Even so, the County's abandonment of its more stringent monitoring requirements substantially reduces its open-endedness. Moreover, witness Fishkind acknowledged that open-endedness is a general statewide consequence of modern "concurrency" requirements. Finally, the record establishes that developers and local governments have found ways to assure sufficient certainty so that front-end development financing can be obtained. (Fishkind, Tr. 1250-52, 1301, 1304-05; Nicholas, Tr. 3436-43). Five-Year Traffic Reanalysis The 1989 DO includes a reanalysis of the Gateway Areas 1 and 2 proportionate share in five years and a potentially greater proportionate share but no lesser one. There are sound transportation planning reasons for a five- year review based on new conditions and such re-reviews are not uncommon for DRIs. One particular reason for re-review in 1995 in this case is because both Daniels Road and Colonial Boulevard are projected to operate at unacceptable levels of service by 1995 and by 2000 and it is reasonable to anticipate that further improvements may have been identified by 1995. However, rather than mandate a 1995 re-review for a ten-year approval as required in the 1989 Area 2 DO, County planners believed it fair to give WGC a choice of a five-year approval for one-half the proposed Area 2 development or a full ten-year approval without mandatory review. However, proportionate shares assessed for those periods would not be refunded. The proportionate share "pipelining" approach is designed to collect those funds up front and actually spend them expeditiously for road construction. The DCA proportionate share rule does not provide for any refund of "pipelined" dollars paid at the beginning of a phase. This concession by the County resolves an issue raised by WGC. (Hall, Tr. 3125, 3128; Nicholas, Tr. 3436-37; Spikowski, Tr. 1803-04; Beck, Tr. 1968, 1980; Respondent's Exhibits 742, 896 and 897). Concurrency Requirements Upon further consideration, the County staff determined that if WGC pays a proportionate share toward improvement of certain roads, WGC should be granted "concurrency" protection for its contribution to those improvements on those roads. The 1989 DO provided no such protection. On September 5, 1990, the County abandoned its original position and took the position that WGC has met concurrency provisions for the roads where a proportionate share is imposed in witness Hall's October 1990 spread sheet to the extent of the road capacity considered in assessing the proportionate share. Full transportation concurrency for roads, such as Daniels Road, where additional improvements are still needed to serve the proposed Area 2 development in the year 2000, cannot be determined until later. (Spikowski, Tr. 1798-99, 1805, 1907-08, 2139-40; Respondent's Exhibits 606 and 742). Colonial Boulevard Extension Credit After the 1989 DO was rendered, the County determined that credit should be given to WGC for amounts assessed or paid by WGC under an October 11, 1989, agreement between landowners, including WGC, and the County to fund the extension of Colonial Boulevard from I-75 to S.R. 82. By making such a concession, the County has resolved an issue raised by WGC. (Hall, Tr. 3131-32; Respondent's Exhibits 742 and 819). Restrictions on Additional Applications to Five-Year Periods On September 5, 1990, the County agreed to amend the 1985 DO and the 1989 Area 2 DO to provide that future Area Master Plan increments of development, either as new AMPs or additions to Areas 1 and 2, must have buildout dates of no less and no greater than five years. Additions to Areas 1 and 2 may be submitted every three years and, in all instances, the County may permit more frequent applications if unique circumstances warrant in the public interest. The 1989 DO included a five-year phasing concept, but the restrictive amendment would make it more precise. (Spikowski, Tr. 1799-1801; Gibbs, Tr. 2140). The 1985 DO contemplated development of nine areas within Gateway over a forty-year period, or an average increment of just under five years in length. The inclusion of original Areas 2-5 in a single Area 2 violated the spirit and intent of that arrangement. There are numerous general and specific reasons why a five-year phasing approach is appropriate. In the planning field, five-year planning periods have been used historically throughout the United States in conjunction with revenue cycles. Five years is the period of time most commonly used by the planning profession. Five year planning periods are used in the County for the County's capital improvement program, FDOT and MPO transportation improvement plans and DRI development orders. The five year period is particularly appropriate for estimating road impacts and needed mitigation because land use assumptions and cost data are more accurate in the five year horizon. In fact, FDOT recommended in 1984, after reviewing the original Gateway DRI application, that only "tentative conceptual approval" should be granted subject to and dependent on the results of incremental transportation impact analyses every five years. In addition, because it takes five to seven years to plan and build a major road, the five year period provides a realistic view of whether roads actually may be built during a five year development phase. More fundamentally, as the Gateway Area 2 case illustrates, determining mitigation beyond five years involves assumptions subject to debate and the mitigation required for a ten-year period may be too high for developer acceptance. These considerations indicate that the five-year period is an appropriate one to use in the AMP process and fulfills the 1985 DO's finding that the AMP process should "logically and rationally coordinate the phasing of development with available facilities." (Gibbs, Tr. 2132-34, 2255-56; Starnes, Tr. 2439-41; Spikowski, Tr. 1792-94, 1799-1801, 1877; Respondent's Exhibits 22, 63, 742 and 809). The proposed five-year phasing approach also gives WGC adequate flexibility to plan and structure its development program. WGC can elect a ten- year approval under the County's restrictive amendment and still apply for a new AMP development approval as early as 1995. It can apply for additions of residential units and non-residential square footage in Areas 1 and 2 in three years. If WGC has developed all approved uses in shorter periods, it can seek relief from the County under the proposed special circumstances provision giving the County great latitude to accept and approve an AMP application early. While initial start-up may be slow, in the five-year Area 1 phase from 1985-90 WGC had sold perhaps two hundred of the 1,850 dwelling units approved in Area 1, raising questions about WGC's need for further early approvals. This restrictive amendment resolves an issue raised by WGC. (Spikowski, Tr. 1800, 1879-81; Koste, Tr. 615; Schmoyer, Tr. 90). WGC has also recognized in its own planning the viability of five- year planning periods and the need to address changes as development proceeds. In the original ADA, WGC stated: Complete development of Gateway is anticipated to require 40 years, commencing in 1985. For purposes of discussion, the 40- year phasing of Gateway has been separated into eight 5 year periods for Residential, Business, and School classifications . Data shown are estimated for 5-year phasing periods for residential dwelling units, business acreage, and number of schools by type. In addition, WGC witness Schmoyer testified: The Community Plan consists of planning areas showing generalized land areas. Each area is to be developed in accordance with the Area Master Plan Program set forth in the 1985 development order for the Gateway DRI. Dividing the property into planning areas allows the flexibility needed to meet the constantly changing needs of an evolving community. As each area master plan is submitted to the County for review and approval, specific information is provided such as the precise location and character of residential units ... plus the locations and types of facilities required by a thriving community. (WGC Exhibit 3; Schmoyer, Tr. 82). Additional Improvements to Colonial Boulevard and Daniels Road As previously found, portions of Colonial Boulevard and Daniels Road are projected to fail even after six-laning. Therefore, it is appropriate to impose a requirement that WGC mitigate for its significant impacts on those roads when additional improvements are identified. On September 5, 1990, the County proposed to impose a proportionate share of the cost of those additional improvements on WGC, which is in relation to its use of the capacity of those roads. This restrictive amendment resolves an issue raised by WGC. (Spikowski, Tr. 1805-06; Respondent's Exhibit 742). Other Revisions The position taken by the County on September 5, 1990, contains other conforming changes to Areas 1 and 2 transportation conditions in the 1989 DO. It also updates provisions of the 1985 DO to lodge the county engineer's transportation review responsibilities in the Board of County Commissioners, to replace a required proportionate share agreement with DO conditions, and to require WGC to propose traffic mitigation in the TIS. All such changes are found to be reasonable and appropriate. (Spikowski, Tr. 1801-02; Gibbs, Tr. 2138; Respondent's Exhibit 742). Inflation Index If a revised Gateway Area .2 DO allows payment of a portion of the proportionate share by WGC after 1990, as the County now proposes if a year 2000 development program is used, then those future payment amounts should be adjusted for inflation at the time of payment. The year 2000 program allows payment over the first six years of the ten-year Area 2 development phase. The appropriate inflation index to use is the state highway construction cost index published in the Engineering News-Record (McGraw-Hill). (Crawford, Tr. 2768-69; Spikowski, Tr. 1804; Respondent's Exhibit 742). Substantial Deviation By its position taken on September 5, 1990, the County also proposed to find that, due to the fact that the Gateway Area 2 application addressed new, additional or previously unreviewed substantial impacts, such as road impacts, there is a substantial deviation to the 1985 original DO, but if the proposed conditions are met, the application may be approved. The SWFRPC planner who coordinated SWFRPC review of the original Gateway DRI application established that the application did not include the detailed information for Area 2 required for DRI review and that the Area 2 transportation impacts under 1989 road conditions could be different than those originally reviewed. Gateway Area 2 will require improvements beyond the six-laning of Daniels Road by 1995 or 2000, for example, while the SWFRPC's 1984 impact assessment projected that six lanes were all that would be needed by 2010. (Spikowski, Tr. 1607, 1892; Burr, Tr. 2692, 2695-96, 2710-11; Respondent's Exhibits 22 and 742). WGC Alternate Mitigation Proposals During the course of this proceeding, WGC witnesses discussed at least five different approaches to the determination of appropriate mitigation for the transportation impacts of Gateway Areas 1 and 2. They included: A so-called regional planning council method of division of a proportionate share by two; The DCA rule proportionate share method; A method correlating projected WGC trips to a percentage of projected County road costs in the year 2000; Road impact fees including an independent fee assessment for Gateway; and The proportionate share variation of the DCA rule used by Lee County, previously described. Only the last two methods were shown to be potentially applicable to this case. These proposed approaches are discussed below. (Kendig, Tr. 266-67; WGC Exhibit 46). Regional planning council division by two method WGC witness Kendig suggested that the SWFRPC had a mitigation method resulting in a $15.9 million proportionate share. However, this suggestion was disavowed by SWFRPC staff and other witnesses. One premise for the $15.9 million proportionate share is apparently a calculation by County staff in 1989 using a 1% rather than 5% significance test which determined that the WGC proportionate share for Areas 1 and 2 would be approximately $31 million. A second premise for the $15.9 million amount is apparently a statement in a November 2, 1989 memorandum by SWFRPC staff concerning proportionate share issues. The memorandum contains a statement at the bottom of the first page that "the act of `cutting in half' is only appropriate when 100% of all trips are counted for their full length." However, it was explained that the statement is meant to require assessment of all DRI trips (not just those that were significant at 5% or more) over their full length of travel, even on roads not operating at an adverse level of service, and that the memorandum was not an endorsement of the proposed method. (Spikowski, Tr. 1937-39; Jackson, Tr. 741- 42, 978-79; Loveland, Tr, 1206-07; Daltry, Tr. 2637-38, 2645). WGC's Calculations Under DCA Rule Under the DCA DRI transportation policy rule, the County was specifically authorized to impose greater monetary mitigation than the required proportionate share contribution minimum under the DCA rule. The "DCA rule" proportionate share of $14.6 million calculated by WGC witness Jackson on August 31, 1990, using assumptions taken from DCA witness Bittaker and of $12 million determinined by Jackson on the last day of hearing are questionable and inapplicable. (Jackson, Tr. 1006, 3560-61, 3571-72; WGC Exhibit 95). The August 31, 1990, calculation underestimates the proportionate share by failing to cumulate the impacts of Gateway trips from 1990 to 2000 as should have been done. That understatement on one road link alone was shown to be $850,000. This calculation also ignores significant environmental, permitting, and right-of-way cost and acquisition problems related to an assumed four-lane improvement on Penzance Road. The analysis inexplicably assumes also that all Gateway DRI trips will be removed from major portions of Daniels Road and put on Penzance Road. The only improvement to Penzance Road presently under consideration is an extension of a two-lane road. Even that improvement will be extremely controversial environmentally, due to a proposed crossing of the Six Mile Cypress Slough. Permitting for another road crossing of the Six Mile Cypress Slough took twelve years and permitting related to this route has not begun. Problems with the proportionate share calculation under the DCA rule proposed by Jackson also included a $1 million per mile understatement of the actual cost of improving Daniels Road as determined by witness Brown. (Jackson, Tr. 777, 1008-13, 1015-23, 3572-73; Segal-George, Tr. 1185, 1189; Brown, Tr. 2521, 2535-36; Hall, Tr. 3062-63; Respondent's Exhibit 739). Mitigation as Percentage of Year 2000 Road Costs Another mitigation method suggested by WGC was to assess WGC $12.4 million as a percentage of total costs for new roads needed in the County for growth between 1987 and 2000, because Areas 1 and 2 trips would constitute 5% of new trips in the County during that time period. However, the supporting testimony and mathematical assumptions used by WGC witnesses Kendig and Jackson for this calculation were confusing and questionable and County witnesses identified a number of infirmities in that approach. Moreover, it is noted that no regulatory agency in the State has ever used this methodology in analyzing proportionate share mitigation. Accordingly, the proposed mitigation method should not be used. (Kendig, Tr. 256-64; Jackson, Tr. 709, 744, 956-61; C. Swenson, Tr. 1357-58; Hall, Tr. 3048; WGC Exhibit 42). WGC's Independent Impact Fee Analysis At final hearing, WGC witness Jackson maintained that the best method of determining the transportation mitigation owed for Gateway Areas 1 and 2 was by independent impact fee calculation approach provided for under the 1989 and 1990 Lee County road impact fee ordinances and that the resulting dollar mitigation was $14.6 million. The 1989 impact fee ordinance established specific criteria and procedures to be followed when a developer proposes to use an independent impact fee calculation rather than standard impact fee rates. However, witness Jackson did not have the information needed to do an independent calculation in accordance with the ordinance and did not submit any such calculation in accordance with the ordinance before final County action on the Area 2 DO in December 1989. (Jackson, Tr. 751-52, 795-96, 799-800, 973; WGC Exhibits 85 and 94; Respondent's Exhibits 564 and 891). The calculation proposed by Jackson makes assertions that did not go through the required pre-review procedure established by the ordinance and lacks supporting documentation that should be subjected to review. Indeed, the ordinance established a rational administrative procedure for such calculations and does not allow for adjustment outside its terms. (Nicholas, Tr. 3420-21, 3458-61). DRI Proportionate Share v. Impact Fee Mitigation Both sides agree that the DRI proportionate share approach under the DCA rule and the County variation and the impact fee approach are two different methods unlikely to produce the same dollar amount mitigation requirements. WGC representatives were aware of this during review of AMP 2. Other County DRIs have had proportionate share mitigation imposed that was greater than County impact fees. One such example is the Airport Expansion DRI which had a proportionate share that was $5 million more than impact fees. (Jackson Tr. 811; C. Swenson, Tr. 1354-56, 1389-90; Hall, Tr. 3118-19, Nicholas, Tr. 3391-92; Anderson, Tr. 2031; Spikowski, Tr. 1810-13; Respondent's Exhibit 682). The proportionate share approach is preferable for DRI transportation mitigation because it is site-specific and precise, focused on DRI traffic near the DRI and the identification of specific roads that are significantly impacted by traffic reasonably attributable to the DRI. This approach also considers the fact that trips to and from the DRI will congregate around the DRI, cause the most congestion there, and therefore result in needed mitigation where those trips are traveling. The nature of the proportionate share approach moots WGC's argument that development of Gateway will not alter total County growth since a theoretical shift of new population to a DRI should also theoretically result in fewer road needs in less developed portions of the County. (Hall, Tr. 3119, 3328, 3346-47; Kendig, Tr. 253). The DCA firmly believes that a DRI proportionate share approach is preferable to local road impact fees to mitigate a DRI's road impacts. This is because impact fees and a DCA rule proportionate share calculation can differ, DRI exactions are site-specific, and different mathematical formulas are used. For example, while the impact fees charged a DRI in one location versus another could be the same, the proportionate share calculation for that same DRI could differ by several million dollars. (Beck, Tr. 1978-79, 1981). Impact fee methodology is based on simplified averaging assumptions that do not relate to the impact of a particular project on any particular roads and that do not consider the actual conditions of those roads. It is important to consider specific levels of service on specific roads to determine the total magnitude of the problem. The impact fee approach in the County only calculates the hypothetical lane miles that are projected to be used by a project. Moreover, the impact fee formula does not identify specific links that will have trips on them from a DRI or look at whether a road is operating beyond capacity. Further, the impact fee ordinance does not fund any particular roads or implement any County long-range road improvement plan. Finally, while a proportionate share approach tries to be project specifics an impact fee uses averages. (Hall, Tr. 3118-19, 3142, 3346-47; C. Swenson, Tr. 1364-65, 1431; Jackson, Tr. 972, 980-81; Mierzejewski, Tr. 1146-47, 1179-80; Fishkind, Tr. 1285) Impact fees are based on averages and several simplifying assumptions: all new developments are average; all types of development proceed evenly; roads can be built one foot at a time as fees are collected; site- specific or development-specific problems are handled at development or DRI approval stage because they are assumed away at the later building permit stage when impact fees are collected; and each new development sends its trips to a destination where another impact fee is paid. The impact fee approach allocates the fair share cost of road facilities on a road capacity basis for an average road, whereas a DRI proportionate share looks at specific improvements needed. (Nicholas, Tr. 3400-02, 3439-40, 3506-07). When the DCA developed its DRI transportation policy rule, and since that time, it has been lobbied by various interests to adopt an impact fee approach to DRI mitigation but that approach has always been rejected. The reasons for rejection include the fact that impact fees are calculated only to mitigate local impacts while a DRI must mitigate regional impacts. Proportionate share "pipelining" also causes road improvements to occur more expeditiously than impact fees which are paid at the building permit stage and which must be pooled until there is enough money to fund a road improvement. Also, impact fees can be spent anywhere in an impact fee benefit district, while proportionate share "pipelining" generally results in improvements of roads near the DRI. (Beck, Tr. 1963, 1979, 1980-81, 1997-98). It was established that the County did not adopt its impact fee ordinance as the sole method of transportation impact mitigation. The ordinance was intended to be in addition to other County regulatory activities, including DRI regulation. (Nicholas, Tr. 3413-16; WGC Exhibit 85). There are a number of general reasons, including the project-specific nature of a proportionate share, why the dollar amounts calculated under the DRI proportionate share approach and an impact fee differ. A proportionate share contribution for a DRI includes mitigation of regional impacts and logically requires mitigation above local impact fees for local roads. Even if there is no local impact fee a DRI must mitigate its regional transportation impacts through the DRI process. In practice, private developers also find that DRI exact ions commonly exceed impact fees because they may cover both regional and local impacts and impact fees are only charged for local road impacts. In fact, the transportation mitigation required for Gateway Area 1 was a DRI proportionate share exceeding impact fees. The Area 1 DO also made it clear that the proportionate share should be imposed, even if an independent impact fee calculation reducing standard fees was performed. (Crawford, Tr. 2841-42; Beck, Tr. 1964, 1973, 1978-79; Hopping, Tr. 2608; Jackson, Tr. 778; Respondent's Exhibit 107). There are additional reasons why impact fees and DRI proportionate share calculations may vary. The County impact fee ordinance was designed to keep fees as low as possible. The road construction and right-of-way costs assumed in the most recent County impact fee study are conservative due to exclusions of a number of items from the cost base, including road projects with high environmental mitigation costs, toll facilities, urban interchanges, and business damages to and damages for destruction of buildings on right-of-way property. Indeed, the impact fee average costs for construction and right-of- way may be 20 to 40 percent below median, based on those factors. On the other hand, a DRI proportionate share may be greater because it is designed to pay for the cost of major improvements up front in exchange for development approval in advance of actual road capacity. (Nicholas, Tr. 3383; C. Swenson, Tr. 1345-47, 1350-51, 1364-65, 1371, 1432). County witness Hall identified three site-specific reasons that account for the present value difference between impact fee and DRI proportionate share amounts for Gateway, all relating to the roads in the vicinity of Gateway. First, Interstate 75 to the west of Gateway functions like a "Great Wall of China" where it is easy to travel along the top but difficult to pass through. There are only three crossings of I-75 available in Gateway's vicinity. Second, there is no traditional grid pattern of streets in Gateway's vicinity. Those grids are essential to disperse traffic, but expensive to implement. Third, the roads that have surrounded Gateway and need to be improved as a result of its and other development are two-lane roads. These three factors call for very expensive solutions, which an independent impact fee method cannot address because it does not focus on specific roads and their locations and conditions. (Hall, Tr. 3044-48). When inflation is taken into account, the difference between the DRI proportionate share and impact fees for Gateway Areas 1 and 2 is relatively narrow. This finding comports with the testimony of County witnesses Nicholas, C. Swenson and Hopping. (C. Swenson, Tr. 1353-54; Nicholas, Tr. 3393-98; Hopping, Tr. 2618; Respondent's Exhibits 731, 891, 896 and 897). L. Affordable Housing The original DO granted to WGC the right to develop 19,932 dwelling units subject to the following housing condition found in paragraph 51: WGC shall cause to be provided a range of housing types to be addressed during the Area Master Plan review. The amendment to the original DO adopted on January 4, 1990, provided the following conditions relative to housing in paragraph J: WGC will provide a full range of housing types in Area 2, in conformance with the Lee Plan definition of New Community. WGC shall ensure that appropriate levels of low and moderate income housing will be provided within Gateway. When 1990 census results are available (approximately 1992), these results shall be analyzed to determine if a minimum of 10% of all new and existing housing units are attainable to low and moderate income families (utilizing the Census Bureau definition). If the County determines that this cannot be verified, then Gateway Areas 1 and 2 shall be required to provide the appropriate levels of such housing. WGC contends that the condition in paragraph 2. is unwarranted and that the County has no basis for imposing this condition on a previously approved DRI, particularly in light of the condition in paragraph 51 of the original DO. In its revised position adopted on September 5, 1990, the County proposed that approval of Area 2 be conditioned on amending paragraph 51 of the 1985 DO Condition to read as follows: WGC shall demonstrate to the satisfaction of the Board of County Commissioners the existence of, or cause to be provided a range of housing types (e.g., a full mix of housing types for a full range of household incomes, including low and moderate incomes) that will enable people to find adequate housing reasonably accessible to their places of employment within the Gateway community. The County would further condition approval of Area 2 on making the requirement applicable for all future development approvals. (Respondent's Exhibits 606 and 742). This compromise proposal is reasonable and is supported by the evidence because it: Removes the 10% countywide affordable housing criterion, which is no longer a requirement of the County's comprehensive plan; Ties together housing and employment, like the statutory criterion for DRI review (Subsection 380.06(12)(a)5., F.S.) which is currently the subject of emerging DCA policy; Is consistent with the linkage between housing and employment which is a basic rationale for Gateway's New Community classification under the County's comprehensive plan; and Recognizes the advantage of using current census data, among others, during each incremental review. (Cook, Tr. 2337, 2344, 2351; Keyes, Tr. 1519-20, 1563; Beck, Tr. 2006-09; Spikowski, Tr. 1802-03, 1806; Starnes, Tr. 2451, 2507, 2510-11; Kendig, Tr. 216, 218, 224-225; Schmoyer, Tr. 118-119). Airport-Related Restrictions The Southwest Florida Regional Airport (the airport) in Lee County officially opened in May 1983, before approval of the Gateway DRI. It is located on approximately 3,515 acres to the southeast of the Gateway DRI. The original 1977 master plan for the airport recommended establishment of airport noise/hazard zones near the airport and they were adopted as part of Lee County Ordinance No. 78-12. A portion of the property now owned by WGC was included in a zone category prohibiting residential development. Those zones were delineated by quarter-, half- and full section lines to reflect the fact that they were based on annual average, not peak season, noise conditions and to avoid splitting small parcels between zones. In 1985 and 1987, the airport conducted a Federal Aviation Regulations Part 150 Noise Compatibility Study, which also recommended adoption of airport noise zones to restrict development in areas around the airport based on noise contours. (Barnes-Buchanan, Tr. 2059- 60; WGC Exhibit 17; Respondent's Exhibits 682 and 697). The Lee County Port Authority (Port Authority) reviews developments in the vicinity of the airport for issues related to land use and noise compatibility and use of navigational airspace under various state and federal laws. In agreements for airport funding, the Port Authority has assured the federal government that it will restrict land uses near the airport for compatibility with airport operations. These regulations mandate that the Port Authority prevent airport hazards, which are structures or land uses that obstruct airspace needed for aircraft flights or that are otherwise hazardous to aircraft. (Barnes-Buchanan, Tr. 2049-50, 2053-54). The County has implemented the federal and state requirements by adopting the 1987 Airport Part 150 Noise Compatibility Study, 1989 amendments to its local comprehensive plan under Chapter 163, Florida Statutes, and 1989 zoning code amendments in Ordinance No. 89-31. (Barnes-Buchanan, Tr. 2042, 2053- 54; Respondent's Exhibits 236, 410 and 697). The 1989 County local comprehensive plan adopted January 31, 1989, included a land use policy establishing airport noise zones as overlay designations on the future land use map. Zone 2 does not allow mobile homes. Zone 3 does not allow residential uses, churches, libraries, schools, hospitals, correctional institutions, or nursing homes. The policy also provides that prior to issuance of all building permits and development orders in Zones 2 and 3, noise and avigation easements must be dedicated to the County by the property owner. (Respondent's Exhibit 236). In developing the avigation easement concept, the County recognized that, although the location chosen for the airport was remote, it was important that the airport have room for expansion. In determining what kind of regulations to impose on land uses near the airport, the County decided that, rather than forbidding certain types of development, it would allow less noise sensitive development as an alternative. The County has regulations that may deny noise sensitive development incompatible with the airport to protect the public health, safety and welfare. Indeed, WGC concedes that the County also can prohibit construction of tall structures due to their adverse effects on flight safety, human safety and radar interference. (Spikowski, Tr. 1920; Barnes-Buchanan, Tr. 2071-72; Dolan, Tr. 658). The Part 150 study and 1989 comprehensive plan provisions were implemented through August 31, 1989 zoning code amendments in Ordinance No. 89- 31, which substantially revised Section 483 of the zoning code. The purposes of the regulations in Section 483 of the zoning code include promotion of the "maximum safety of aircraft" at county airports, the "maximum safety of residents and property" near the airports, establishment of building height standards for lands beneath aircraft flight paths and regulation of land uses in airport noise zones. The County declares that airport obstructions that may be hazardous to aircraft operations and persons and property in their vicinity are public nuisances and that it is necessary to the public health, safety and welfare that the creation of airport obstructions and incompatible land uses in the airport noise zones be prevented. (Barnes-Buchanon, Tr. 2053-54, 2080; Respondent's Exhibit 410; WGC Exhibit 112). A portion of the 1989 zoning code amendments creates airport noise zones in the vicinity of the airport, with Zones 2 and 3 implementing the land use restrictions contained in the 1989 comprehensive plan. The locations of Zones 2 and 3 are determined by legal descriptions contained in the zoning code, which followed the quarter-, half- and full-section approach in the 1978 county regulations for the same reasons. These legal descriptions are based on noise contours in the 1987 Part 150 study. The zoning amendments also require execution and recordation of a noise and avigation easement to the County before issuance of building permits or subdivision platting in Zones 2 or 3. (Barnes- Buchanan, Tr. 2060-61, 2069; Dolan, Tr. 586-87; Respondent's Exhibit 410; WGC Exhibit 112). Under the 1978 County noise zones, which remain in effect in addition to the 1989 zoning code designations, a portion of Gateway along its southern boundary has been and is located in Zone 3, prohibiting residential and other noise sensitive uses. The 1978 noise zones were expanded under the 1987 Part 150 study to include areas based on a different noise contour. A portion of Gateway along its eastern boundary also currently lies within Airport Noise Zone 2 under the 1989 comprehensive plan and zoning code. (Barnes-Buchanan, Tr. 2057, 2069, 2081-82; WGC Exhibit 115). The avigation easement required under the comprehensive plan and zoning code has several public purposes, including assurance of noise and other compatibility of neighboring land uses, regulation of tall structures and airport hazards, and provision of notice of airport operations to prospective buyers. A form that has been used as an "Avigation Easement and Release" provides for the grant by the landowner of a perpetual avigation easement and right of flight through navigable airspace above the owner's property and, separately, the release of claims by the landowner as a result of airport operations or aircraft activities and noise levels. The easement regulates land uses on the ground by precluding landowners from interfering with aircraft flights over the property. The release is intended to cover normal airport and aircraft operations. (Barnes-Buchanan, Tr. 2068A, 2072, 2085-86, 2091-92; WGC Exhibit 31; Respondent's Exhibit 721). The 1989 Area 2 DO on appeal included certain airport-related conditions. They implemented the 1989 comprehensive plan and zoning amendments by requiring that "[p]rior to the issuance of all building permits and development orders in Airport Noise Zones 2 and 3 (as defined in the 1989 Lee Plan) noise and avigation easements must be dedicated to Lee County." This language in the 1989 Area 2 DO was mutually agreed to by the Port Authority staff and WGC, and WGC anticipated such conditions. Indeed, WGC representatives had assumed as early as March 1988 that the airport would want to impose avigation easements as conditions of the next Gateway AMP. Language included in the final 1989 DO and a statement concerning inclusion of avigation easement language as required in the comprehensive plan were read over the telephone to WGC's manager of operations by Port Authority staff and WGC agreed the language was acceptable. (Barnes-Buchanan, Tr. 2048-49, 2053, 2062-64; Fisher, Tr. 2093- 98; Widmer, Tr. 1746-47; Anderson, Tr. 2034-35; Dolan, Tr. 582-83; Respondent's Exhibits 350, 356, 371, 381 and 895). At final hearing, WGC raised questions about the location of Airport Noise Zones 2 and 3 on the Gateway property. However, WGC failed to avail itself of any administrative remedies available to seek changes to the location of Noise Zones 2 and 3 on Gateway property. Although WGC brought the issue to the attention of Port Authority staff in November 1988, or prior to adoption of the 1989 comprehensive plan, it did not make a written request to adjust the noise zones then, did not file an administrative challenge to the comprehensive plan concerning location of the noise zones, did not seek a variance from the zoning amendments locating noise zones, and did not indicate problems with the location of the noise zones after adoption of the comprehensive plan on January 31, 1989. (Dolan, Tr. 561-63, 572-76, 588-89, 670-71; Barnes-Buchanan, Tr. 2069- 70, 2072-73) None of the maps presented by WGC at hearing showing noise contour lines relating to Noise Zones 2 and 3 was based on the Part 150 Study, although one WGC map (WGC Ex. 113) was so labelled. In fact, the WGC maps were based on unmonitored contour lines from the 1990 airport master plan update, which are conceptual lines that have not been adopted by the FAA as part of the Part 150 study. The last monitored noise contour lines are in the 1987 Park 150 study, which was used for the legal descriptions contained in the 1989 Zoning Code amendments. WGC conceded that the best existing monitored information is in the 1987 Part 150 Study, which contains a map of those noise contours. (Dolan, Tr. 584-88, 593-97, 654; Barnes-Buchanan, Tr. 2070-71, 2078-79; Respondent's Exhibit 697; WGC Exhibits 17, 113-115). The current designation of certain Gateway lands as Noise Zone 3, as carried forward from the 1978 zoning regulations, is based on inclusion of a northern general utility runway in the airport layout. The Noise Zone 3 designation on Gateway can be removed once the FAA approves the Port Authority's recommendation to remove that runway. Until then, it is prudent for planning purposes to ensure the Zone 3 protection. WGC concedes that the Noise Zone 3 issue is moot once the FAA acts to implement the Port Authority's recommendation and that WGC has not actively asked for deletion of the Noise Zone 3 overlay. (Barnes-Buchanan, Tr. 2069-70, 2081-82; Dolan, Tr. 589-90, 670). The land uses proposed in the AMP 2 application for Gateway lands included in Noise Zone 3 under the comprehensive plan are business and commercial uses, as allowed in that zone. The proposed land uses included in Noise Zone 2 are a utilities site, a park site, multi-family residential, commercial and school uses, all of which are allowed. If there is any error in mapping of Noise Zones 2 or 3 in Gateway, WGC knows of no logic for changing the proposed land uses in either zone and no proposals to do so were made. WGC presented no quantification of damages to WGC's property interest as a result of the avigation easement in favor of the County. (Dolan, Tr. 659-61). To clarify its intent concerning avigation easements, the County has proposed to incorporate a change providing that only the effects of normal airport operation, aircraft activities and noise levels would be covered by the easement. (Spikowski, Tr. 1807; Respondent's Exhibit 742). Other 1989 Development Order Conditions Fiscal Conditions Doctor Nicholas, the County's outside fiscal expert who provided fiscal analysis to the County in the development of the 1984 comprehensive plan testified: It became clear very early in the planning process that Lee County had more areas designated for development than were required to accommodate the anticipated growth and that it would be economically infeasible for Lee County to attempt to provide publicly financed infrastructure to a sprawled form of development. This policy decision ultimately led to the comprehensive planning classification of Gateway as a "New Community" requiring private, not public, provision of infrastructure. (Nicholas, Tr. 3372-75). In reviewing WGC's original ADA, County staff determined that neither it nor subsequent submittals had demonstrated that Gateway would be developed as a freestanding economic unit and would not impose negative fiscal impacts on the County, as required by the New Community provision of the Comprehensive Plan. Therefore, paragraph 46 of the 1985 Gateway DO provided that: WGC shall demonstrate with each Area Master Plan submittal that Gateway will not impose a negative fiscal impact upon the County. The first Area Master Plan will be based upon projections; subsequent Area Master Plan[s] shall include appropriate data from previously approved Area Master Plan[s] to support compliance with this condition. (Respondent's Exhibits 63 and 809). The DO Amendment for Area 1 added Condition H, "[c]onsistent with Gateway Development Order Condition No. 46:" WGC shall be required to monitor fiscal impact and present evidence of fiscal neutrality as part of its next Area Master Plan submittal, but in no case later than 5 years from the effective date of approval of Area Master Plan 1. Should Gateway not be determined to be fiscally neutral or fiscally positive, WGC will be required to remedy the deficiency prior to approval of the next Area Master Plan. The assumptions to be monitored include, but are not limited to: The number of dwelling units built and other constructed improvements and their sales prices; Percentage of units receiving homestead exemption and other applicable exemptions; The number of undeveloped acres and their value as assessed by the Lee County Property Appraiser; Factors relating to property taxes (assessment ratio, cost of sale factor, millage rate); Factors relating to expenditures (per capital expenditures for capital and operating); Factors relating to revenues; Cost factors relating to parks (acquisition and development cost per acre and acreage standards for parks); Rate of commercial development as compared to the initial projections; and The accuracy of the fiscal model used by WGC for projecting costs and revenues for the Gateway development. By its terms, this requirement applies to Area 2 and possibly "the next Area Master Plan." (Respondent's Exhibit 107). WGC's fiscal analysis for Area 2, dated April 19, 1989, stated: It is premature to monitor the fiscal impacts from Area 1 since there are certificates of occupancy only for the model center and offices. Until more construction activity occurs, monitoring should be delayed. Fairly soon after WGC submitted the Area 2 fiscal analysis its economic consultant discovered an error in the development absorption period used (20 years instead of 10 years). However, WGC decided not to call the error to the attention of the County during its review of Area 2. The error was corrected shortly before final hearing in the instant case. (Fishkind, Tr. 122 3-5, 1265- 6; WGC Exhibits 103 and 104). In the staff report to the Local Planning Agency dated June 5, 1989, County staff analyzed the WGC fiscal analysis for Gateway AMP 2 as follows: Gateway's economic consultant has done an analysis of the fiscal impacts of the project using a range of variables in response to staff questions. Although staff generally accepts the various computer runs, there are still outstanding concerns and questions: Any computer model is only as accurate as the variables used in the calculations. In the case of a long term project such as Gateway, the major assumption is that the project will be constructed and sold as it is currently phased, planned and priced. In other words, the fiscal impact model assumes from the beginning the project will be an economic success. If this assumption is accurate, the project will, after 3 to 5 years, be yielding a net positive cash flow to local government. However, the future fiscal impacts are difficult to predict due to changes in taxable values, residential and commercial development variables, and the project phasing and construction period. If any of these items should change significantly, the fiscal impact of the project could be very different. Gateway has a requirement (Area 1 Development Order Condition 46) to perform a fiscal analysis for each area when submitted and to monitor the fiscal impacts of previously submitted areas. It is not possible to monitor Area 1 because there has been no substantive construction for use in the fiscal impact model. When originally submitted, the phasing schedule estimated that by 1990 there would be 2,080 dwelling units and 119 acres of commercial development existing in the project. DRI projects typically do not meet their phasing schedules, and this invalidates the fiscal impact model. As part of the DRI annual monitoring report required by Chapter 380, Florida Statutes, Gateway should provide sufficient information to allow staff to update the fiscal impact model rather than having to wait until the submission of the next area plan in addition to the existing monitoring requirement. The applicant's consultant has added one variable not generally used by staff. The variable is the tax dollars generated by the undeveloped land that is part of the project. The addition of this variable has the effect of causing the project to demonstrate a net positive cash flow much sooner than it normally would. The fiscal impact model uses average county values and assumes that all locations of all projects in the county are equivalent when, in fact, they are not. For the above reasons staff recommends that there be no further Area Master Plan submittals until Areas 1 and 2 have been developing for at least three to five years and there is sufficient information to monitor and update the impacts from Areas 1 and 2. (WGC Exhibit 128). In the staff report to the County dated July 31, 1989, County staff abbreviated their comments on the fiscal analysis as follows: Gateway's economic consultant has done an analysis of the fiscal impacts of the project using a range of variables in response to staff questions. The concern with fiscal impact analysis is the long-term build-out of the project. Gateway has a requirement (Area 1 Development Order Condition 46) to perform a fiscal analysis for each area when submitted and to monitor the fiscal impacts of previously submitted areas. It is not possible to monitor Area 1 at this time because there has been no substantive construction for use in the fiscal impact model. When originally submitted, the phasing schedule estimated that by 1990 there would be 2,080 dwelling units and 119 acres of commercial development existing in the project. DRI projects typically do not meet their phasing schedules. Gateway has provided language that would allow for monitoring at five-year intervals until it is determined that fiscal neutrality occurs. Staff is reviewing this language, which initially appears to resolve this issue. (WGC Exhibit 133). At the December 11, 1989, final County hearing leading to adoption of the 1989 DO for Gateway Area 2, WGC's economic consultant stated that: The last thing I would offer for your consideration is that this project generates a rather large fiscal surplus of the county budget after accounting as best we can for fiscal impacts. That was one of the conditions that this Commission required of Area One and now requires of Area Two. And we have a monitoring provision in the development order that as soon as there is support development to monitor we'll be able to get a better appreciation on what it is. But the numbers are -- the positives are quite large. I'm confident after monitoring that's how the equation will turn out. The County responded by adding Paragraph 46b. to the 1985 DO: 46b. If staff can not determine at the time of the Area Master Plan submittal whether or not Gateway will impose a negative fiscal impact upon the County, due to the lack of available data or lack of agreement on the fiscal model, then WGC shall submit a fiscal monitoring analysis in five years from the date of the most recent Area Master Plan approval, and every five years thereafter, until staff has sufficient data to undertake a valid analysis on the fiscal neutrality issue. WGC accepted this treatment of the issue. (Gibbs, Tr. 1248; Respondent's Exhibits 588 and 606). There is general agreement that, in the long run, Gateway's overall fiscal impact on the County should be positive. Although the point that it becomes positive has not yet been shown through monitoring, WGC suggested that any general revenue surplus could be used by the County to offset Gateway's road impacts. WGC also acknowledged, however, that the County could have higher priorities to which such funds may be devoted. WGC's fiscal analysis, dated September 13, 1990, points out that, at least in the short run, the County's expenditures, like those of local governments throughout much of Florida, substantially exceed revenues. The general policy throughout the federal, state and local governments is that transportation should be financed through user fees and "that general taxation should not be used to finance transportation unless there is a clear and extraordinary benefit accruing to the general public." The County does not utilize ad valorem tax revenues to build roads. (Koste, Tr. 611; Fishkind, Tr. 1228, 1296; Spikowski, Tr. 1857; Nicholas, Tr. 3365-66, 3368, 3382-83, 3428-30; Respondent's Exhibits 10 and 236). In its petition filed in this case, despite its earlier agreement, WGC asserted that paragraph 46.b. "goes far beyond the substantive scope of review of an area master plan under the Gateway DRI Development Order." Accordingly, in an effort to be fair to WGC, the County has proposed a less stringent requirement which deletes paragraph 46.b. and states in lieu thereof: "Condition H of Master Plan 1 shall also apply to Area 2." (Gibbs, Tr. 2305-06; Respondent's Exhibit 742). WGC's corrected fiscal analysis for Area 2 dated September 13, 1990, and submitted at hearing in the instant case, remains a projection and does not purport to contain the monitoring data required for Area 1. WGC conceded that its projections for non-residential development at Gateway are "aggressive". It is reasonable, therefore, to leave Condition H of the Area Master Plan 1 DO Amendment applicable to Area 2 as proposed by the County. In addition to proposing a revision for fiscal conditions, County planning staff has proposed other minor changes to the 1989 DO on appeal, which are set forth in respondent's exhibit 742. (Gibbs, Tr. 2305-06; Fishkind, Tr. 1276-76; WGC Exhibit 104; Respondent's Exhibit 742). Abandonment of DRI In the 1989 DO which was appealed, the County added a condition to the 1985 DO related to the abandonment of the Gateway DRI. It provided that if no significant development activity occurred for five years, the DRI would be required to cease development pending further County consideration. After further examination of state regulations concerning abandonment, County planners concluded that this condition was unnecessary, and the County has subsequently proposed to delete this condition. This proposal resolves an issue raised by WGC. (Spikowski, Tr. 1803, 1888; Respondent's Exhibit 742). Protective Services The 1989 Area 2 DO on appeal contained a provision limiting credits toward impact fees imposed for police, fire and emergency medical protective services to 57% of the value of any land dedicated by WGC for such purposes. After further consideration, County planners concluded that provisions related to impact fee credits for land dedications by WGC for provision of these services should be instead subject generally to the credit provisions of the protective services impact fee ordinance. The County now proposes to delete the 5% limitation and provide that WGC would be eligible for impact fee credits based on the fair market value of protective services sites dedicated under the terms of impact fee ordinances addressing protective services needs. This resolves an issue raised by WGC. (Spikowski, Tr. 1806; Respondent's Exhibits 606 and 742). Roadway Maintenance The 1985 DO contained a provision requiring that WGC or a Community Development District created by WGC pay for operation and maintenance of all roads within the Gateway DRI, except for arterial and collector roads built as a result of the Lee County Official Trafficways Map. The 1989 DO on appeal modified this provision to require the County to pay the operation and maintenance costs for arterial roads serving a countywide function and shown on the Official Trafficways Map, while leaving responsibility for operation and maintenance of other arterial up to future Board determination. To address this issue raised by WGC, the County has now proposed to reinstate the original 1985 DO condition, which was unchallenged by WGC. (Respondent's Exhibits 505, 742, and 809). General Governmental Facilities and Park Site Hearing Procedures The 1989 Area 2 DO contained provisions related to procedures for locating sites within Gateway for general governmental facilities and park sites. These provisions established that if WGC and County staff could not agree on location of such sites, the issue would be sent to the County's Hearing Examiner for resolution. The County has proposed to add procedural details for appeals to the Hearing Examiner making it clear that such proceedings will be administrative appeals like others governed by the provisions of the Lee County Zoning Ordinance. (Spikowski, Tr. 1806-07; Respondent's Exhibits 606 and 742). Wildlife and Vegetation Condition The parties have agreed that a stipulation and agreement dated September 6, 1990, resolves the appeals in regard to the vegetation and wildlife condition.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission adopt an amended final development order for Gateway Area 2 approving the application subject to conditions. Those conditions should incorporate the proposed September 5, 1990 revisions to the County's 1989 Area 2 Development Order, including the County's October 1990 determination of the required transportation proportionate share contribution and the further payment option described in conclusion of law 213. Respectfully submitted this 14th day of January, 1991, 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 14th day of January, 1991. APPENDIX Petitioner WGC: 1-2. Partially adopted in finding of fact 5. 3. Rejected as being unnecessary. 4-5. Partially adopted in finding of fact 5. 6. Covered in preliminary statement. 7-8. Rejected as being unnecessary. 9-12. Covered in preliminary statement. Partially adopted in finding of fact 15. Partially adopted in finding of fact 1. 15-16. Partially adopted in finding of fact 15. 17-21. Partially adopted to the extent they are consistent with findings of fact 11 through 25. 22-28. Adopted in conclusion of law 203 to the extent the undersigned found the project is not an AMDA. 29. Partially adopted in finding of fact 15. 30. Partially adopted in finding of fact 11. 31. Partially adopted in finding of fact 15. 32. Partially adopted in finding of fact 20. 33-34. Partially adopted in finding of fact 16. 35-36. Partially adopted in finding of fact 19. 37. Partially adopted in finding of fact 42. 38. Partially adopted in finding of fact 38. 39. Partially adopted in finding of fact 17. 40. Partially adopted in finding of fact 18. 41. Partially adopted in finding of fact 19. Rejected as being a conclusion of law. Partially adopted in finding of fact 18. 44-46. Partially adopted in findings of fact 17-25. 47. Partially adopted In finding of fact 32. 48. Partially adopted in finding of fact 35. 49. Partially adopted in finding of fact 42. 50. Partially adopted in finding of fact 38. 51-52. Partially adopted in finding of fact 37. 53-58. Partially adopted in finding of fact 38. 59-63. Partially adopted in finding of fact 64-65. Partially adopted in finding of fact 9. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. 68-69. Rejected as being a conclusion of law. Covered in conclusion of law 201. Rejected as being contrary to the more credible evidence. 72-77. Partially adopted in finding of fact 1. Rejected as being unnecessary. Rejected as being contrary to the more credible evidence. 80-81. Rejected as being unnecessary 82-83. Partially adopted in finding of fact 193. 84-86. Partially adopted in findings of fact 183-192. 87-105. Partially adopted in findings of fact 164-167. 106-111. Partially adopted in findings fact 168-181. 112-116. Partially adopted in finding of fact 194. 117-119. Partially adopted in finding of fact 196. 120. Rejected as being contrary to the evidence. 121-127. Partially adopted in finding of fact 195. 128-131. Partially adopted in findings of fact 132-134. 132-137. Partially adopted in finding of fact 196. 138-140. Partially adopted in finding of fact 197. 141-315. Partially adopted in findings of fact 43-163. Petitioner DCA: 1. Partially adopted in finding of fact 2. 2-3. Partially adopted in finding of fact 5. 4. Partially adopted in finding of fact 17. 5. Partially adopted in finding of fact 20. 6-7. Partially adopted in finding of fact 32. 8. Partially adopted in finding of fact 35. 9. Partially adopted in finding of fact 63. Rejected as being unnecessary. Partially adopted in finding of fact 44. Partially adopted in findings of fact 97-99. 13-14. Partially adopted in findings of fact 94-95. Partially adopted in findings of fact 96-97. Partially adopted in findings of fact 61-100. Partially adopted in finding of fact 82. Partially adopted in finding of fact 92. 19-20. Partially adopted in finding of fact 130. 21. Rejected as being a conclusion of law. 22-23. Partially adopted in finding of fact 19. 24. Partially adopted in finding of fact 154 25-27. Partially adopted in findings of fact 72 and 155. 28. Partially adopted in finding of fact 95. 29-30. Partially adopted in finding of fact 96. Covered in preliminary statement. Rejected as being contrary to the more credible evidence. Note -- Where proposed findings have been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, not supported by the more credible evidence, or a conclusion of law. Respondent: Respondent's proposed findings of fact have been substantially adopted in this Recommended Order. COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Carlton Building, Room 415 Tallahassee, FL 32399-0001 Charles L. Siemon, Esquire Andrew C. Stansell, Esquire Laura E. Peck, Esquire 2 East Camino Real Boca Raton, FL 33432 Peter D. Doragh, Esquire 11691 Gateway Boulevard Fort Myers, FL 33913 M. D. Adelson IV, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Gary P. Sams, Esquire Elizabeth C. Bowman, Esquire Diana M. Parker, Esquire O. Box 6526 Tallahassee, FL 32314 David E. Bruner, Esquire 1114-B North Collier Boulevard Marco Island, FL 33937 James G. Yeager, Esquire 1831 Hendry Street Fort Myers, FL 33901
Findings Of Fact The Respondent was hired by the City on July 25, 1977, as an electrician in the Electrical Department. Shortly thereafter he was transferred to the Traffic Engineering Department as an "electronics technician helper." The position of "electronics technician helper" is an entry level position in the Traffic Engineering Department. The helpers are responsible for performing technical electronics work, primarily in the area of traffic signal control devices and systems. The Respondent had ample qualifications, including education and experience, to qualify for the position. Up to and including the date of the final hearing, the Respondent remained employed with the City as an "electronics technician helper." During the time that he has been employed with the City, the Respondent has received regular periodic written evaluations. The City utilizes a "performance rating form" for these evaluations. An employee's performance is evaluated in several different areas on a rating system that ranges from a high rating of "satisfactory" to "exceeds standard" to "improvement needed" to a low rating of "unsatisfactory." In all of the evaluations of the Respondent, his "overall performance rating" was rated as needing improvement. In the important areas of "performance of assigned tasks," the Respondent has received consistently satisfactory ratings only in his ability to complete work on schedule. He has been evaluated as needing improvement or as unsatisfactory in areas designated "work completed meets requirements," "performs assigned tasks without close supervision," "uses tools and equipment properly," and "work does not have to be redone." The Respondent has also been evaluated as unsatisfactory or as needing improvement in the area of "technical knowledge." It is very unusual for the City to continue to employ persons in its Traffic Engineering Department for as long as the Respondent has been employed, without the employee ever receiving a satisfactory evaluation. The evaluations of the Respondent appear to reflect the opinions of the Respondent's supervisors that he is able to accomplish the job, but that he does not apply himself to the work at hand, and makes many mistakes. Several examples of deficiencies in the Respondent's work were established at the hearing. On one occasion, the Chief Traffic Signal Engineer explained to the Respondent step by step how to do a particular rewiring operation that involved three wires. The Respondent was also provided with a book that explained the procedure. The procedure was a simple one, and although it was explained to the Respondent on a Friday, he needed to have it reexplained to him the following Monday. On another instance, a number of three-wire cords, in which each of the cords were a different color, were to be wired with the black wire on a specific prong of a socket. The work was so repetitious that some mistakes would be expected. The Respondent wired half of them wrong. On another occasion, the Respondent was asked to reglue a "faceplate" that had been broken. The Respondent accomplished this task, but west on to bend and virtually destroy another faceplate so that he could remove it just to reglue it. On another occasion, the Respondent was asked to cut a cord in half and to install sockets on each end. He cut the wire in three pieces. Generally, the Respondent's work is so deficient that his supervisors will not let him work on equipment that could cause a hazard. As a part of his duties, the Respondent is occasionally "on call" to make emergency repairs on traffic control equipment. When he is called upon to make such repairs, the Respondent is responsible for preparing and submitting "time slips" which reflect the location and nature of the work, and the amount of time that it took to complete it. These cards are used to determine the Respondent's appropriate overtime pay, and also in many instances to establish whether or not equipment was working for litigation purposes. On March 8 and 9, 1980, the Respondent was called upon to make several emergency repairs. In his time slips and reports, the Respondent miscategorized some of the equipment that he utilized in making the repairs, specifically light bulbs; submitted reports that were mutually inconsistent as to the amount of time for which he was seeking overtime pay; did not reflect whether the repairs were accomplished in the "a.m." or "p.m."; and in one instance, they contained an overlap of time which would show the Respondent as being in two locations at the same time. The Respondent submitted the reports and time slips on March 10, 1980. It is not uncommon for there to be errors on the forms, and clerical employees typically correct them without returning them to the person who performed the work. There were so many errors, however, in the Respondent's forms that they were returned to him. The Respondent resubmitted the forms to the clerical staff, but they wore again deficient, and needed to be returned to him. After having some of the forms returned to him three times, the Respondent finally completed them adequately. While errors on the forms are common, the number of errors in the Respondent's forms is extraordinary.
