The Issue The issue in this case is whether the amendment to the Future Land Use Map of the Clay County Comprehensive Plan, adopted by Ordinance No. 2007-53, is “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2007).1
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and amendments thereto, and determining whether a plan or amendment is “in compliance.” Clay County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. The parties stipulated that each Petitioner is an “affected person” as that term is defined in Section 163.3184(1)(a), Florida Statutes. Each Petitioner owns property in Clay County and timely submitted comments and objections regarding the amendment to the Clay County Board of County Commissioners. The parties stipulated that Intervenors are “affected persons.” Intervenors Kingsley Beach, LLC, and Kingsley Ventures Development Co., LLC, are the owners of the subject property. Avery C. Roberts is the managing member of each. The Amendment The amendment changes the FLUM land use designation for two parcels of land totaling 47.06 acres, located between County Road 16A and Kingsley Lake (“the property”) from Rural Residential to Rural Fringe. The Rural Residential category has a base density of 1 dwelling unit per 5 acres, but provides for up to 1 unit per acre through application of a points system established in the Future Land Use Element (FLUE) of the comprehensive plan. The Rural Fringe category has a base density of 1 unit per acre, but points can be used to increase the density to 2 units per acre. With clustering, the density can be further increased to 3 units per acre. The County adopted the amendment designating the property as Rural Fringe and added a notation on the FLUM that the maximum permitted residential units on the property is 70, corresponding to a maximum density of 1.5 units per acre. The result is an amendment that creates a hybrid land use category for the property, with development rights different than those normally applicable to Rural Fringe.2 Existing Uses and Conditions of the Property The property is located on the north side of Kingsley Lake, an Outstanding Florida Water. The eastern parcel is known as the Kingsley Lake Campground and RV Resort, which contains 253 recreational vehicle camping spaces, 13 cabins, a gatehouse, a boat ramp, a restaurant, an office, and a number of other ancillary buildings. The western parcel has been used since the 1950's as a recreational area for swimming, picnicking, and boating. It contains a boat ramp, a three-story frame building and other scattered buildings. The property is not longer in active use. The property is located on a paved road with access to nearby county and state roads which meet or exceed adopted level of service standards. Public water and sewer services are not available to the property. The property is within one mile of fire and emergency medical services. The property is within school bus service. The property is suitable for construction of a stormwater management system which can meet the design criteria for discharging into Kingsley Lake. There are no wetlands on the property. Although only relevant as an example of what development is possible under the amendment, the Intervenors propose to develop a 70-unit, private, gated, residential subdivision to be called Kingsley Cove, which would be served by a community-scale potable water system and septic tanks. The Kingsley Lake Community The property is located in the 560-acre Kingsley Lake “community” or “enclave,” which is unusual in that it is completely surrounded by the 72,000-acre Camp Blanding Military Installation. In addition to the development on the subject property, the Kingsley Lake community includes a convenience store, a church, a cemetery, a county-owned parcel, a community club, and residential properties. Most of the residential properties are located on the lakefront and have docks and private boathouses. Excluding the subject property, the Kingsley Lake community contains about 249 homes. The average density of the residential parcels in the community is two dwelling units per acre (du/a). Approximately 30 percent of the lots in the Kingsley Lake enclave are smaller than half an acre and approximately 60 percent are smaller than one acre. More than half of the residential parcels in the community exceed 1.5 du/a. Petitioners each own property within the Kingsley Lake community. Petitioner Treece's lot is 0.6 acres. Petitioner Murphree's lot is a half acre. Petitioner Leseman's lot is 8.0 acres. The Kingsley Lake community is located 8.75 miles at its closest point from another urban service area. Rural Character Petitioners claim that the amendment would destroy the rural character of the Kingsley Lake community. However, it was disputed at the hearing whether the Kingsley Lake community has much rural character. When Petitioners’ witnesses testified about the rural character of the community, they used the term “rural” as synonymous with “rustic,” “quaint,” “historical,” or “old- Florida.” The County’s 2007 Evaluation and Appraisal Report (EAR) refers to rural character in the County, generally, as a “country lifestyle.” One distraction from the rural character of the Kingsley Lake community is its surrounding by Camp Blanding, an active military installation which creates “uncommon disturbances,” primarily noises that occur at all hours. The County has legislatively determined through its comprehensive plan that there are degrees of rural character, and those degrees are reflected in three rural residential land use categories: Rural Residential, Rural Reserve, and Rural Fringe. The average residential density in the Kingsley Lake community is greater than is allowed under its current Rural Residential land use category. The community has densities associated with the Rural Reserve and Rural Fringe categories. The comprehensive plan does not contain a description of the Rural Fringe land use category or a statement of the County’s specific intent with regard to this category, other than its cap on residential density. The lack of detail in the plan makes the task of determining whether the amendment is in compliance more difficult. Beyond the restriction of land uses and establishment of density limits, the protection of rural character is difficult, because new dwellings generally cannot be required to look the same (e.g., rustic) as older, existing dwellings. With regard to rural vistas, Petitioners presented no evidence to show, for example, that existing lake views would be adversely affected or that incompatible building heights would be allowed as a result of the change to Rural Fringe. Urban Service Areas Under the comprehensive plan, certain land use categories define the County’s urban service areas. These categories are Urban Core, Urban Fringe, Rural Fringe, Rural Reserve, Mixed Use, and Planned Community. By changing the land use designation to Rural Fringe, the amendment automatically places the subject property in an urban service area. The discussion of the issue in this case involved semantic inconsistency between rural land use and urban services. However, that the comprehensive plan clearly contemplates that the Rural Reserve and Rural Fringe land use categories would have both rural characteristics and urban services. The County’s chief planner, Dr. Sun-Man Kim, testified that the provision of urban services is not intended to transform the Rural Fringe land use category into an urban area, but to provide better services. He believes the urban service area designation is appropriate for a compact rural development area like the Kingsley Lake community. There are three other urban service areas in the County. FLUE Policy 2.3 provides the means by which an urban service area may expand: Urban service areas may be expanded to include undeveloped land in or near existing urban areas provided that the Clay County Health Department has determined that connection to a central system is required in the public interest due to public health consideration. Services and facilities must be guaranteed through “agreements to serve” by the Clay County Utility Authority. Expansion of the urban service area shall require a plan amendment. This policy appears to apply only to the expansion of an existing urban service area into adjacent undeveloped areas, and not to the creation of new urban service areas. There are no policies in the comprehensive plan that expressly address the creation of new urban service areas. It is only logical that a newly-designated urban service area would have urban services currently available or planned. The County’s density point system uses several urban services as a basis for assigning density bonus points: fire protection, emergency medical services, paved access to arterial or collector roads, central water and sewer facilities, and proximity to schools. All of these urban services are available to the property except central sewer. Petitioners object to the amendment, in part, because they believe the Rural fringe designation is only permitted in areas where central water and sewer facilities are available. The County granted density bonus points to the proposed Kingsley Cove development for having central water service, based on its proposed community-scale potable water system. Therefore, it is presumed that Petitioners disagree that a community-scale water system qualifies as “central” water service, and/or they believe the Rural fringe designation requires both central water and central sewer services. FLUE Policy 2.4 states that all development within the urban service areas shall be served by central water and wastewater services, “if available.” In addition, FLUE Policy 3.1 grants density points for proposed developments in land use categories (that are also urban service areas) when central water and sewer facilities are available. These policies are acknowledgments that sometimes central water and sewer facilities are not available in urban service areas. Petitioners argued that, in 2003, the County and Department interpreted the urban service area policies of the comprehensive plan differently than they are interpreting them in this case. In 2003, the County and Department were reviewing an application to designate 21 acres of the subject property to Rural Reserve, which, as stated above, also results in an automatic urban service area designation. Following its review of the 2003 amendment, the Department prepared an Objections, Recommendations, and Comments (ORC) Report which opposed the change to Rural Reserve based on insufficient data and analysis. The County staff report regarding the 2003 amendment also recommended denial. Petitioners contend that these prior actions were based on determinations by the Department and the County that, to be placed in an urban service area, lands must be served by central water and sewer facilities. Holly Parrish, the County planner who prepared the 2003 County staff report, testified that central water and sewer services are not mandatory for an urban service area, and that any statement to the contrary in the 2003 staff report was an error. Neither Chapter 163, Florida Statutes, nor Florida Administrative Code Chapter 9J-5 defines urban service areas, nor do they establish guidelines or standards on what or how many urban services are necessary to qualify an area as an urban service area. The comprehensive plan contains some ambiguity with respect to urban service areas. The County might be to able to interpret the comprehensive plan as Petitioners urge, to prohibit the creation of a new urban service area where central water and sewer facilities are unavailable. However, the County’s interpretation and application of its urban service area policies to allow an urban service area to be created in the unique circumstances of a rural compact development area surrounded by a military installation, where central sewer facilities are not available, but several other urban services are available, is not unreasonable. Petitioners assert that the County’s rationale for the amendment would allow urban service areas to be placed anywhere on the FLUM, but there are no other areas on the Clay County FLUM like the Kingsley Lake community. Urban Sprawl Petitioners also contend that the amendment is inconsistent with FLUE Objective 2 which discourages urban sprawl. Florida Administrative Code Rule 9J-5.006(5) contains guidelines for use in determining whether a plan or plan amendment discourages the proliferation of sprawl. Petitioners focused on five of the listed indicators: (5)(g) Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment: * * * 4. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources . . . * * * Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide clear separation between rural and urban areas. However, Petitioners did not prove that the amendment will create an increased threat to natural resources. Nor did they show that the County’s use of existing or future public facilities and services is somehow impaired or made inefficient, or that the cost in time, money and energy, of providing and maintaining facilities and services would be increased as a result of the amendment. The amendment does not prevent a clear separation between rural and urban areas because the property remains rural. Dr. Joseph Addae-Mensa, the Department's planning expert, does not believe the amendment encourages urban sprawl in violation of Florida Administrative Code Rule 9J-5.006(5). When evaluated in the context of the entire comprehensive plan and the features and characteristics unique to the locality, as required by Florida Administrative Code Rule 9J-5.006(5), Petitioners' evidence was insufficient to prove that the amendment fails to discourage urban sprawl. Data and Analysis Petitioners contend that the application and staff report for the subject amendment did not contain sufficient data and analysis to demonstrate that the property could be provided with central water and sewer facilities within the planning horizon. However, for the reasons stated above, such data and analysis are unnecessary because central water and sewer facilities are not mandated. Petitioners also claim there is insufficient data and analysis to demonstrate what effect the designation of the urban service area would have on surrounding properties, which they believe could be a significant increase in the density of Kingsley Lake community because lots might now qualify for density bonus points. However, Dr. Kim analyzed this issue and concluded that only one lot would gain additional density points as a result of the urban service area designation, resulting in potentially two additional residential units. His analysis was not rebutted. Petitioners’ contention that there is insufficient data and analysis to show that the Rural Fringe land use category is consistent with the conditions of the property is contrary to the record which contains ample data and analysis on this point.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendment is “in compliance” as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 30th day of May, 2008.
The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP as “regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available, at the levels of service adopted in this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 3rd day of September, 2010.
The Issue The Appellants raise several issues on appeal, including: whether Ordinance 003-2015 did not comply with the constitutional single subject rule and did the County’s application of the Ordinance violate the Florida Constitution; whether the County exceeded its police power in enacting Ordinance 003-2015 and failed to follow the essential requirements of the law when it applied the ordinance to the Appellants’ property; (3) whether the Planning Commission’s decision violated its obligations to support, protect, and defend the Unites States and Florida Constitutions; and (4) whether the Appellants were deprived of their fundamental due process rights during the Commission hearing.
Findings Of Fact The signs in question are located on Interstate 10, an interstate highway. One sign is located one-half mile west of the intersection of Interstate 10 and State Road 79, and the other sign is located one mile east of said intersection. The first sign is located 120 feet and the second sign located 130 feet from the nearest edge of pavement of Interstate 10. Neither sign is located within an incorporated city or town, and neither has been issued a permit as required by Section 479.07, Florida Statutes. The owner of the signs holds leases from the owners of the land upon which the signs are located. The signs were constructed in the first week of December, 1978, after Interstate 10 was opened to public use and accepted as part of the interstate system. On July 2, 1979, Holmes County duly adopted a comprehensive land use plan, which provides in pertinent part as follows: It is the intent of this plan that a strip of land 50 feet wide, lying on either side of I-10 and extending east and west one mile from S.R. 79 interchange and one mile from S.R. 81 interchange, be considered commercial, for the express purpose of allowing the business of Holmes County to place signs along the side interstate highway, and be in conformance with the provisions of Chapter 479, Florida Statutes. Both signs in question are located in the area described above in the comprehensive land use plan. Having adopted the comprehensive land use plan, Holmes County is now developing its zoning plan in the manner outlined in Chapter 163, Florida Statutes. However, the zoning ordinance has not yet been adopted by Holmes County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, tee Hearing Officer recommends that the Department of Transportation net grant permits to the subject signs and, having been found in violation of Section 479.07, Florida Statutes, said signs be removed. DONE and ORDERED this 13th day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 James E. Moore, Esquire 102 Bayshore Drive Post Office Box 746 Niceville, Florida 32578
The Issue At issue in these proceedings is the validity of respondent's proposed rules 9J-5.003(140) and 9J-5.006(6).
Findings Of Fact The parties Petitioner, St. Joe Paper Company, is a Florida corporation which owns either directly or through its subsidiaries approximately 1,500,000 acres of land in Florida. Petitioner, Florida East Coast Industries, Inc., is also a Florida corporation which owns either directly or through its subsidiaries approximately 17,500 acres of land along the east and west coast of Florida. Respondent, Department of Community Affairs (Department or DCA), is the state land planning agency under the provisions of Chapter 163, Part II, Florida Statutes, [the "Local Governmental Comprehensive Planning and Land Development Regulation Act" (the "Act")]. As the state land planning agency under the Act, the Department is charged by law with the duty to provide technical assistance to local governments in preparing comprehensive plans and with the duty to ascertain whether local comprehensive plans or plan amendments are in compliance with the provisions of Chapter 163, Part II, Florida Statutes. Here, the parties have stipulated that petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., as well as their subsidiaries, and intervenors, Florida League of Cities, 1000 Friends of Florida, Department of Environmental Protection, Florida Association of Realtors, R. J. Collins, Florida Electric Power Coordinating Group, and Florida Association of Counties, have standing. No such stipulation was, however, accorded intervenors Florida Land Council, Inc., Florida Farm Bureau Federation, Highlands County Farm Bureau, and Claude E. Smoak, Jr., and they offered no proof at hearing to demonstrate standing. Notwithstanding, the Department raised no objection and its post hearing submittal does not contest their standing. Publication of notice and the economic impact statement On October 2, 1992, the Department first published notice of the proposed revisions to Chapter 9J-5, Florida Administrative Code, in volume 18, number 40, of the Florida Administrative Weekly. Such publication contained the following statement regarding the economic impact of the proposed rules: SUMMARY OF THE ESTIMATED ECONOMIC IMPACT OF THE PROPOSED RULES: The estimated agency cost to be incurred by this action is $3,627, which is the cost of promulgating the rule amendment . . . It is not anticipated that the amendment will generate additional costs to local governments and other affected persons above and beyond those attributable to existing rules and statutes. Ultimately, it is believed that this amendment will result in more efficient patterns of development which allow services and facilities to be provided more cost efficiently . . . to local governments. The procedures required by the proposed amendments have no significant impact on competition and the open market for employment. There is no impact on small or minority business as defined by the Florida Small and Minority Business Assistance Act of 1985. On October 23, 1992, petitioners filed their initial petition for an administrative determination of the invalidity of the proposed rules. Such petition contended, inter alia, that the proposed rules were invalid for the agency's failure to prepare an economic impact statement that complied with the provisions of Section 120.54(2)(c), Florida Statutes. Petitioners did not, however, at any time, file a request for the preparation of an economic impact statement with the agency. 1/ Background of the rules Pursuant to Section 163.3184(8)(a), Florida Statutes, the Department is obligated to review each adopted local plan or plan amendment and determine if it is in compliance with the Act. Section 163.3184(1)(b), Florida Statutes, defines "in compliance" as: . . . consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II. In 1985 the Legislature directed the Department to develop Chapter 9J- 5, Florida Administrative Code, and apply it to the review of local plans. The Legislature has reviewed the rule, as adopted, and given it special legal protection from rule challenges. Section 163.3177(10), Florida Statutes. Among the rules so approved, was Rule 9J-5.006 which provided that "the purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of the local government comprehensive plan elements." Rule 9J-5.006(3)(b)7 provides that the future land use element shall contain specific goals, objectives and policies which discourage the proliferation of urban sprawl, and Rule 9J-5.011(2)(b)3 provides that the general sanitary sewer, soiled waste, drainage, potable water and natural groundwater aquifer recharge element shall contain objectives and policies which address the use of existing facilities and the discouragment of urban sprawl. The Department has, since approximately 1988, developed, refined and explicated its policy regarding the discouragement of urban sprawl in local government comprehensive plans. In a technical memo issued in 1989, the Department observed: If the goals and objectives of Florida's growth management laws are to be achieved, local plans must effectively deal with urban sprawl and the closely related issues of conservation, natural resource protection, and efficient use of public facilities and services. [DCA Exhibit 12] That publication further set forth the Department's definition of urban sprawl, and discussed the various provisions in the State Comprehensive Plan (Chapter 187, Florida Statutes), Chapter 163, Part II, Florida Statutes, and Chapter 9J- 5, Florida Administrative Code, which related to the discouragement of urban sprawl. As for the term "urban sprawl," the technical memo provided: The term "urban sprawl" as it is applied by the DCA in its review of local plans is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. * * * Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development can result in increased risks to water supplies and sensitive environmental areas. * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of crub and median cuts and access points permitted. Strip development frequently overburdens arterial roadways with local trips because local road networks are poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low- density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. * * * In other words, urban sprawl is the epitome of bad land use planning. It adversely impacts and often destroys precious natural resources. It promotes inefficient use of land resources and existing public facilities and services, and makes it difficult or impossible to provide new infrastructure and services efficiently to new development. It produces development that is typically unsightly and not aesthetically pleasing. It produces sterile, one-dimensional urban environments which are not convenient, enjoyable or healthy for their residents. Successfully discouraging urban sprawl through local comprehensive planning is not a mystical art. It requires rigorous data collection, thorough analyses of current and future needs, effective planning, and responsible decision making. . . . Also pertinent to the Department's policy on urban sprawl, and an assessment of the propriety of the proposed rules, the State Comprehensive Plan contains a number of goals and policies which both individually and collectively address the issue of urban sprawl. Some of these goals and policies are as follows: (5) HOUSING-- Goal.--The public and private sectors shall increase the affordability and availability of housing for low-income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost- effective operations. Policies-- * * * 3. Increase the supply of safe, affordable, and sanitary housing for low-income and moderate-income persons and elderly persons by alleviating housing shortages, recycling older houses and redeveloping residential neighborhoods, identifying housing needs, providing incentives to the private sector to build affordable housing, encouraging public- private partnerships to maximize the creation of affordable housing, and encouraging research into low-cost housing construction techniques, considering life-cycle operating costs. * * * (8) WATER RESOURCES.-- Goal.--Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. Policies.-- * * * 2. Identify and protect the functions of water recharge areas and provide incentives for their conservation. * * * 5. Ensure that new development is compatible with existing local and regional water supplies. * * * Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features. Protect aquifers from depletion and contamination through appropriate regulatory programs and through incentives. Protect surface and groundwater quality and quantity in the state. * * * Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state. NATURAL SYSTEMS AND RECREATIONAL LANDS-- Goal.--Florida shall protect and acquire unique natural habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. Policies.-- Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. Acquire, retain, manage, and inventory public lands to provide recreation, conservation, and related public benefits. Prohibit the destruction of endangered species and protect their habitats. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic and recreational value. Develop and implement a comprehensive planning, management, and acquisition program to ensure the integrity of Florida's river systems. Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation. Expand state and local efforts to provide recreational opportunities to urban areas, including the development of activity- based parks. * * * 13. Encourage the use of public and private financial and other resources for the development of recreational opportunities at the state and local levels. AIR QUALITY.-- Goal.--Florida shall comply with all national air quality standards by 1987, and by 1992 meet standards which are more stringent than 1985 state standards. Policies.-- * * * 2. Ensure that developments and transportation systems are consistent with the maintenance of optimum air quality. * * * ENERGY-- Goal.--Florida shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors, while at the same time promoting an increased use of renewable energy resources. Policies-- 1. Continue to reduce per capita energy consumption. * * * Improve the efficiency of traffic flow on existing roads. Ensure energy efficiency in transportation design and planning and increase the availability of more efficient modes of transportation. * * * HAZARDOUS AND NONHAZARDOUS MATERIALS AND WASTE.-- Goal.--All solid waste, including hazardous waste, wastewater, and all hazardous materials shall be properly managed, and the use of landfills shall be eventually eliminated. Policies-- * * * 11. Identify, develop, and encourage environmentally sound wastewater treatment and disposal methods. * * * LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies-- Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new popu- lation and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the livability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. * * * 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. * * * DOWNTOWN REVITALIZATION.-- Goal.--In recognition of the importance of Florida's developing and redeveloping downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.-- Provide incentives to encourage private sector investment in the preservation and enhancement of downtown areas. Assist local governments in the planning, financing, and implementation of development efforts aimed at revitalizing distress downtown areas. Promote state programs and investments which encourage redevelopment of downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- Provide incentives for developing land in a way that maximizes the uses of existing public facilities. Promote rehabilitation and reuse of existing facilities, structures, and buildings as an alterna- tive to new construction. Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents. * * * (20) TRANSPORTATION-- Goal.--Florida shall direct future transport- ation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. Policies.-- * * * 2. Coordinate transportation investments in major travel corridors to enhance system efficiency and minimize adverse environmental impacts. * * * Encourage the construction and utilization of a public transit system, including, but not limited to, a high-speed rail system, in lieu of the expansion of the highway system, where appropriate. Ensure that the transportation system provides Florida's citizens and visitors with timely and efficient access to services, jobs, markets, and attractions. * * * (23) AGRICULTURE.-- Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Policies. * * * 9. Conserve soil resources to maintain the economic value of land for agricultural pursuits and to prevent sedimentation in state waters. The technical memo, heretofore discussed, addressed in significant detail how some of these goals and policies impact the issue of urban sprawl. The Department has also explicated its policy definition of urban sprawl, as well as the significance of urban sprawl to the state comprehensive plan, in a number of cases where, under the provisions of Section 120.57, a hearing was held to determine whether a plan was in compliance. [See, e.g., Department Exhibits 4-6]. More recently, a challenge to the Department's nonrule policy was rejected by a Hearing Officer of the Division of Administrative Hearings, and that decision was affirmed on appeal. Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). In that case, at page 968, the court observed: . . . The hearing officer found that indeed, there was a consensus on the meaning of urban sprawl and that urban sprawl is: [T]he extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard develop- ment pattern in which land uses are not functionally related to each other. Common patterns of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non- urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non- urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Next, and more importantly, the hearing officer found that DCA does not have any policies of general applicability concerning the application of the urban sprawl rules which it consistently applies to individual plans. The DCA has yet to crystallize any urban sprawl policies which it intends to apply to individual plans. He noted that the application process, which is by nature adjudicatory, demands a through understanding of each plan, including the data and analysis describing the characteristics of the land and existing land uses; the goals, objectives and policies prescribing proposed land uses; and the future land use map. Indeed, he recognized that the myriad of details involved in applying the urban sprawl rules to an individual plan may preclude rulemaking, but even if theoretically possible, rulemaking in the area of application is not now practicable. In short, the alleged nonrule policies do not meet the definition of a rule, Section 102.52(16). These findings, which are conclusive of the outcome of the rule challenge, are based upon competent substantial evidence in the record. Adam Smith Enterprises, Inc. v. Department of Environmental Regulation, 553 So.2d 1260, 1274 (Fla. 1st DCA 1989). The purpose of Chapter 9J-5 and the proposed rules The purpose of Chapter 9J-5, as stated in 9J-5.001, is to "establish minimum criteria for the preparation, review, and determination of compliance of comprehensive plans" pursuant to Chapter 163, Part II, Florida Statutes. "Criterion " is defined in Webster's New Collegiate Dictionary (1974) as "a standard on which a judgment or decision may be based." Consistent with such purpose, Chapter 9J-5 has heretofore established the general requirements for local comprehensive plans, including format (elements), data and analysis requirements, level of service standards, planning time frames, and monitoring and evaluation requirements. Rule 9J-5.005, Florida Administrative Code. The chapter also includes standards for the adoption of concurrency management systems to ensure that adopted level of service standards required for roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation, and mass transit, if applicable, will be maintained. Rules 9J- 5.0055 and 9J-5.0057, Florida Administrative Code. Finally, the chapter includes the minimum requirements for the future land use element; traffic circulation element; mass transit element; ports, aviation and related facilities element; housing element; sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element; coastal management element; conservation element; recreation and open space element; intergovernmental coordination element; and capital improvement element. Common to each of these elements is the requirement that the local government assess current conditions and needs, and project future growth based on appropriate and relevant data and analysis. Rules 9J-5.006-5.016, Florida Administrative Code. Here, the Department is proposing to define the term "urban sprawl" for purposes of Chapter 9J-5 and to establish a methodology or standard for the review of local comprehensive plans or plan amendments for the discouragement of urban sprawl. By so doing, the Department is seeking to codify in rule form the policies it has previously explicated on the subject. In gauging the propriety or sufficiency of the proposed rules, it is important to recognize that an analysis of urban sprawl is but one aspect of a complicated evaluation of a particular plan or plan amendment for consistency, and that such analysis is peculiarly dependent upon an evaluation of the specific plan or plan amendment and its supporting data and analysis. Concomitantly, an analysis of a plan or plan amendment to discern whether it discourages urban sprawl is site or community specific, and no single formula could address the myriad of growth patterns existent within the diverse communities of the State of Florida with mathematical certainty. The proposed rules The rules challenged in these proceedings are proposed rule 9J- 5.003(140), which defines "urban sprawl," and proposed rule 9J-5.006(6), which establishes a process for the review of plans for discouraging the proliferation of urban sprawl. Proposed rule 9J-5.003(140), defines "urban sprawl" as follows: "Urban sprawl" means urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: The premature or poorly planned conversion of rural land to other uses. The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area. The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. Urban sprawl is typically manifested in one or more of the following land use or development patterns: (1) Leapfrog or scattered development; ribbon or strip commercial or other development; or (3) large expanses of predominantly low-intensity, low-density, or single-use development. This definition of urban sprawl includes terms which also have proposed definitions in Rule 9J-5.003, and are not the subject of challenge. These provisions are as follows: (35) "Density" means an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre. * * * (37) "Development" has the meaning described in s. 380.04, F.S. * * * (55) "Functional relationship" means a complementary and interactive relationship among land uses or development, including at a minimum a substantial and positive exchange of human interaction, goods, resources, institutions, services, jobs or workers between land uses or developments. * * * (64) "Intensity" means an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on or below ground; the measurement of the use of or demand on natural resources; and the measurement of the use of or demand on facilities and services. * * * (116) "Rural areas" means low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property. The definition of urban sprawl proposed by the Department is a sound generic definition that finds support in the literature and among professional planners. Indeed, urban sprawl is generally conceived as an extension of urban- type development into rural or sparsely developed lands in a haphazard development pattern in which land uses are not functionally or proximately related to each other. Such development may be reasonably described as uncontrolled, poorly planned and premature since it commonly occurs in areas where infrastructure and services do not already exist to serve it and where the urban development or uses are not functionally related to the uses which predominate the area. Moreover, the proof supports the conclusion that, as observed in the proposed rule, the three patterns in which urban sprawl commonly manifests itself are leapfrog or scattered development, ribbon or strip commercial or other development (i.e., retail, office and multifamily residential development), and large expanses of predominately low-intensity, low density, or single-use development. While the proposed rule is sound in a generic sense, that does not suggest that the exercise of professional planning judgment is not required for its application. Indeed, whether the land area at issue in a comprehensive plan or plan amendment is a rural area interspersed with generally "low-intensity or low-density urban uses," and whether such uses or planned uses may be reasonably characterized as the "premature or poorly planned conversion of rural land to other uses," the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area," or the "creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided," certainly involve the exercise of professional judgment in any analysis of a comprehensive plan or plan amendment. Such analysis is not, however, bereft of objective factors to guide it or to test its ultimate conclusions. Indeed, any such analysis is dependent upon the specific comprehensive plan or plan amendment under review, which would include the future land use element, as well as the local government's specific data and analysis which support it. The other rule under challenge, proposed rule 9J-5.006(6), establishes a process for the review of comprehensive plans or plan amendments for discouraging the proliferation of urban sprawl. It is organized into twelve paragraphs, with paragraphs (g)-(j) being the focus of the subject challenge. The purpose or function of paragraphs (g)-(j) are described in the proposed rule as follows: Use of indicators. Paragraph (6)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. Methodology for determining indicators. Paragraphs (6)(h) through (6)(j) describe the three major components of a methodology to determine the presence of urban sprawl indicators. Paragraph (6)(h) describes how land use aspects of a plan shall be analyzed. The land use element, including both the future land use map and associated objectives and policies, represents the focal point of the local government's planning effort. Paragraph (6)(i) describes the unique features and characteristics of each jurisdiction which provide the context of the analysis and which are needed to evaluate the extent, amount or frequency of an indicator and the significance of an indicator for a specific jurisdiction. Paragraph (6)(j) recognizes that land use plans generally may be significantly affected by other development policies in a plan which may serve to mitigate the presence of urban sprawl indicators based on the land use plan alone. Paragraph (6)(j) describes development controls which may be used by a local government to mitigate the presence of sprawl. Simply stated, paragraphs (h)-(j) are the components for an analysis of a plan or plan amendment to discern whether any of the indicators of urban sprawl, specified in paragraph (g), are present. If present, "the extent, amount or frequency of that indicator . . . [or] multiple indicators" must "be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Proposed rule 9J-5.006(6)(d). The primary indicators, established by proposed rule 9J-5.006(6)(g), that a plan or plan amendment does not discourage the proliferation of urban sprawl, are stated to be: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits in fill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among liked or related land uses. Results in the loss of significant amounts of functional open space. As heretofore found, urban sprawl is typically manifested by leapfrog or scattered development, ribbon or strip commercial or other development, and large expanses of predominantly low-intensity, low-density, or single-use development. Indicators 1-3 are appropriate indicators of urban sprawl as they reflect the three typical ways in which it is manifested. Moreover, a plan or plan amendment that evidenced such characteristics might reasonably be found not in compliance with the mandates of Sections 163.3177(1) and (6)(a), Florida Statutes; the State Comprehensive Plan, Section 187.201(16) and (18), Florida Statutes; and, the provisions of Chapter 9J-5, Florida Administrative Code, relating to, inter alia, the minimum criteria required of local government plans relating to the future land use element, and such provisions of law may be reasonably read to speak to the issue of discouraging urban sprawl. Indicator 4 is also an appropriate indicator of urban sprawl since the premature or poorly planned conversion of rural land to other uses frequently intrudes on, or fails to adequately protect and conserve natural resources, such as wetlands, natural groundwater aquifer recharge areas, lakes, rivers and shorelines. As with other indicators, this indicator finds support in, and furthers, existent law which speaks to the adoption of standards for the orderly and balanced growth of an area, including the conservation and protection of natural resources. See Section 163.3177(1) and (6)(d) and (g), Florida Statutes, Section 187.201(9), (10) and (16), Florida Statutes, and Rules 9J- 5.006, 9J-5.011, 9J-5.012, and 9J-5.013, Florida Administrative Code. Indicators 5 and 9 are also appropriate indicators of urban sprawl since the intrusion of urban activities into rural areas frequently has negative impacts on rural uses such as logging, farming and mining. As with the previous indicators, these indicators are supported by, and further, existent law, which addresses the orderly and balanced development of the area, the control and distribution of population densities, the conservation of soil resources to maintain viable agricultural pursuits, and the separation of rural and urban uses. See Section 163.3177(1), and (6)(a) and (d), Florida Statutes, Section 187.201(16)(a), 16(b)2, (23)(a) and (23)(b)9, Florida Statutes, and Rule 9J- 5.006, Florida Administrative Code. Indicators 6 and 7 are also appropriate indicators of urban sprawl since a failure to utilize existing and future capacity of public facilities and services often evidences a failure to guide development into areas with existent infrastructure appropriate for development. These indicators are consistent with, and further, current comprehensive planning laws which favor orderly and balanced development, encourage efficient development, and maximize the use of existing public facilities. See Section 163.3177(1) and (6)(a), Florida Statutes, Section 187.201(16)(a) and (b)1, (17)(a), (18)(a), and (18)(b) 1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 8 is an appropriate indication of urban sprawl for the same reasons addressed as to indicators 6 and 7, and because such premature expansion of land uses requires the extension of public facilities and services at disproportionate costs. This indicator is also consistent with, and furthers, the comprehensive planning laws addressed as to indicators 6 and 7. Indicator 10 is an appropriate indication of urban sprawl since a failure to encourage infill development or the redevelopment of existing neighborhoods and communities is consistent with failing to discourage urban sprawl. This indicator is consistent with, and furthers, the comprehensive planning laws which favor orderly and balanced growth, maximizing the use of existing facilities, the renewal of blighted areas and the revitalization of downtown areas. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(a), (16)(b)1-3, 17(a), 17(b)2, (18)(a) and (18)(b)1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 11 is an appropriate indication of urban sprawl for the same reasons addressed as to indicator 10, and is consistent with and furthers the comprehensive planning laws supporting that indicator. See also Rule 9J-5.010, Florida Administrative Code. Moreover, the encouragement of an attractive and functional mix of living, working, shopping and recreational activities in an urban area is the antithesis of urban sprawl. Indicator 12 is an appropriate indication of urban sprawl since urban sprawl patterns often result in poor accessibility among related land uses and increase the cost of transportation between related uses. This indicator is consistent with and furthers the comprehensive planning laws which favor orderly, balanced and efficient development, which includes timely and efficient access to services, jobs, markets and attractions. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(b)1 and 3, and (20)(b)9, Florida Statutes, and Rule 9J5-5.006, Florida Administrative Code. Finally, indicator 13 is an appropriate indication of urban sprawl since urban sprawl patterns often result in the loss of significant amounts of functional open spaces ("undeveloped lands suitable for passive recreation or conservation"). This indicator is consistent with and furthers the comprehensive planning laws which address orderly and balanced growth, conservation of natural resources, and the need for recreational and open space. See Section 163.3177(1) and (6)(d) and (e), Florida Statutes, Section 187.201(10) and (16)(b)2, Florida Statutes, and Rules 9J-5.006, 9J-5.013, and 9J-5.014, Florida Administrative Code. While the indicators are reasonable in a generic sense, their existence or significance in any given case is wholly dependent upon an analysis of the specific plan or plan amendment and the local government's specific data and analysis which support it. Notably, these are the factors contemplated by the provisions of paragraphs (h)-(j) of the proposed rule which, when analyzed, presume to provide the insight necessary to render such a conclusion as to whether any indicators of urban sprawl are present. The first step in the analysis is an evaluation of land uses, as prescribed by paragraph (h). Under such provision, a land use analysis is the focus of the review of the plan or plan amendment when determining whether it discourages urban sprawl. The rule provides a list of ten factors by which each land use type (i.e., residential, commercial, industrial, agricultural), included within the plan or amendment, will be evaluated. These factors are: extent, location, distribution, density, intensity, compatibility, suitability, functional relationship, land use combinations, and demonstrated need over the planning period. "Extent," "distribution," "density," "intensity," "compatibility," "suitability," and "functional relationship" are defined by proposed rule 9J- 5.003(50), (39), (35), (64), (28), (131) and (55), respectively. The term "demonstrated need over the planning period" is a term described in existing Rule 9J-5.006, which requires an analysis of the amount of land needed to accommodate the projected population, including the categories of land use and their densities or intensities of use. Petitioners did not challenge any of these rule definitions. The terms "location" and "land use combinations," while not defined in the rules, have a commonly understood meaning among professional planners. "Location" means the situs or relationship of any one land use to any other land use or geographic feature. "Land use combinations" means the different types of land uses (i.e., residential, commercial, industrial, agricultural) on a land use map. Paragraph (i) of the proposed rule specifies the local conditions against which each of the land use factors described in paragraph (h) is to be evaluated. The paragraph lists ten features or characteristics to be used in this evaluation which, like the analysis in paragraph (h), is based on the plan or plan amendment and its underlying data and analysis. These factors are: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Petitioners offered no proof at hearing directly challenging the propriety or reasonableness of any of the factors listed in this paragraph. Moreover, one would expect a plan or plan amendment, together with its data and analysis, to address these factors. Paragraph (j) of the proposed rule sets forth a list of development controls which, to the extent they are included in a local plan, will be evaluated to determine their impact on the land uses at issue and, therefore, the ultimate issue of whether the plan or amendment discourages urban sprawl. A local government is not required to adopt any of the development controls, but if they elect to include them in their plan or plan amendment, the controls, which may mitigate or obviate an urban sprawl issue, are pertinent to the urban sprawl question. Indeed, each of the development controls is an accepted planning technique to control or discourage urban sprawl, and a professional planner should be familiar with such controls and their implications. Viewing the provisions of paragraphs (g)-(j) as a whole, the gist of petitioners' challenge appears to be that, while the purpose of the rule is to discourage urban sprawl, the rule fails to indicate "how much sprawl is acceptable and how much sprawl is too much," that the various indicators and criteria have no established weighting, and the terms used lack definition. Under such circumstances, petitioners argue the rules are vague or vest unbridled discretion in the agency. [See Petitioners' proposed recommended order, paragraphs 27-29.] Such concerns are not however, supported by the proof. As heretofore noted, the meaning applied to the terms used in the rules at issue is contained in other proposed rules, the existing rule, or the terms are commonly understood among professional planners. Moreover, in most cases, the terms used are identical to those employed by the Legislature in the enactment of Chapter 163, Part II, and Chapter 187, Florida Statutes, and the provisions of existing Rule 9J-5, which has been accorded special status by the Legislature under Section 163.3177(9), Florida Statutes. Under such circumstances, these terms have been routinely applied for a significant period of time in the preparation and review of local plans, and are presumably understood by professional planners. In concluding that the indicators and criteria are reasonable, it has not been overlooked that they do not have an established weighting, nor that professional planners could reasonably disagree in their application to a particular circumstance. As to establishing a weighting for each indicator or criteria, the variety of circumstances among local governments and their plans or proposed amendments would foreclose such an approach. As to disagreements among professional planners, such is not a failing of the rule, but the consequence of the diversity or vagary among local plans or amendments, data and analyses and local conditions. Notwithstanding, the plans or amendments, data and analyses, and local conditions provide an objective basis upon which an evaluation can be made and, if necessary, challenged and tested. Finally, as to the rule's failure to prescribe "how much sprawl is acceptable and how much sprawl is too much" the same conclusion must prevail, since it is the plan or amendment, data and analysis, and local conditions that will derive that answer and not the rule. Indeed, the benchmark adopted by the Department to "discourage the proliferation of urban sprawl" is not unreasonable under the circumstances. The common meaning of "discourage" and "proliferation" used in the Department's mandate provide a reasonable benchmark for addressing a problem that cannot be quantified. The word "discourage" means "To dissuade or deter . . . To hamper; hinder . . . To try to prevent," and the word "proliferation" means "To increase or spread at a rapid rate." The American Heritage Dictionary, New College Edition (1979). In reviewing plans or plan amendments as required by the Act, it is presumed that the Department's planners will exercise sound planning judgment and will conform their conduct to existent law. See e.g., Atlantic Coast Line R. Co. v. Mack, 57 So.2d 447 (Fla. 1952). Should the Department fail to do so, or should there be a divergence of opinion among the parties or professional planners, the statutory framework provided by Section 163.3184, Florida Statutes, which establishes the procedures for adoption of comprehensive plans and plan amendments, provides a review process to test, if necessary, the sufficiency and consistency of any Departmental determination regarding urban sprawl or any other planning issue. Moreover, during the course of such review, deference is accorded the decision of the local government, not the Department. Regarding the review process, Section 163.3184, Florida Statutes, provides for initial review of proposed comprehensive plans and plan amendments by the Department, and the rendering of an "Objections, Recommendations, and Comments Report" (ORC Report) by the Department to the local government. The local government, upon receipt of the ORC report, may then adopt or adopt with changes the proposed plan or plan amendment. If adopted, a copy of the adopted plan or plan amendment is filed with the Department, which has 45 days to review it and determine if the plan or amendment is in compliance with the Act. The Department's determination of compliance can only be based upon one or both of the following: The state land planning agency's [Department's] written comments to the local government . . .; and Any changes made by the local government to the comprehensive plan or plan amendment as adopted. Section 163.3184(8)(a), Florida Statutes. If the Department issues a notice of intent to find the plan in compliance, any affected person is accorded an opportunity to file a petition for review pursuant to Section 120.57, Florida Statutes. "In this proceeding the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Section 163.3184(9)(a), Florida Statutes. Should the Department issue a notice of intent to find the comprehensive plan or plan amendment not in compliance, the notice is forwarded to the Division of Administrative Hearings (DOAH) for review pursuant to Section 120.57, Florida Statutes. In such proceeding, . . . the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a prepond- erance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination is fairly debatable. Section 163.3184(10)(a), Florida Statutes. In either case, the recommended order rendered by DOAH is subject to final agency action by the Department or the Administrative Commission, as appropriate, and ultimately judicial review. Sections 120.68 and 163.3184(9), (10) and (11), Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED THAT: The Board enter an order finding that the 275 acre site itself proposed for Unit 3 is consistent and in conformity with existing land use plans and zoning ordinances; The Board find the railroad spur to be consistent with Polk County's zoning ordinance. The Board find that the proposed 46 mile associated transmission line is consistent and in conformity with existing land use and zoning ordinances with the exception of that portion of the line which traverses the Green Swamp area; and The Board hold the transmission line within the Green Swamp area not to be in conformance or compliance with the Green Swamp regulations, and that the applicant must apply for a variance from such regulations to Polk County officials before any further consideration of this certification by the Board. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of September, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, 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 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
The Issue The issue in this case is whether a small scale amendment to the Cooper City comprehensive plan adopted pursuant to Section 163.3187(1)(c), Florida Statutes, is "in compliance."
Findings Of Fact The Parties. Petitioner, The Sunshine Ranches Homeowners Association, Inc. (hereinafter referred to as the “Homeowners Association ") is a not-for-profit corporation. The Homeowners Association has members who reside within the residential area known as Sunshine Ranches, located in Broward County. The address of the principal office of the Homeowners Association is 12400 Flamingo Road, Fort Lauderdale, Broward County, Florida. (Stipulated Facts). The Homeowners Association was formed on or about December 4, 1968. The Homeowners Association is involved in working for the betterment of residents and land owners within Sunshine Ranches to secure political, social, and economic improvement within Sunshine Ranches. Petitioner, Charles F. Seip, resides at 4661 Southwest 128th Avenue, Fort Lauderdale, Florida. Mr. Seip lives two blocks west of the parcel of property which is the subject of this proceeding. Mr. Seip has lived at his current location for 26.5 years. (Stipulated Facts). Petitioner, Anthony E. Coulson, resides at 4710 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Coulson lives approximately four blocks from the subject property. (Stipulated Facts). Petitioner, Jeffrey Price, resides at 5001 Southwest 126th Avenue, Fort Lauderdale, Florida. Mr. Price lives approximately four blocks west of the subject property. (Stipulated Facts). Each Petitioner submitted oral and written objections to the City of Cooper City during the review and adoption proceedings conducted by the City of Cooper City on the adoption of the comprehensive plan amendment which is the subject of this proceeding. Petitioners submitted objections to the Cooper City Planning and Zoning Board and the City of Cooper City Commission. The parties stipulated that Petitioners are "affected persons." Respondent, the City of Cooper City (hereinafter referred to as the "City"), is a municipality of the State of Florida. The City is located in Broward County, Florida. The City is a "local government" as defined in Section 163.3164(13), Florida Statutes. The City's address is 9090 Southwest 50th Place, Cooper City, Broward County, Florida. (Stipulated Facts). Intervenor, George H. Lange, Trustee, is the representative of a trust that owns the property which is the subject of the amendment at issue in this proceeding. The Amendment. By Ordinance Number 96-10-3, the City adopted an amendment, L.L.U.P.A. 96-S-1 (hereinafter referred to as the "Plan Amendment") to the Cooper City Land Use Plan. (Stipulated Facts). The Plan Amendment was adopted on October 22, 1996. (Stipulated Facts). Also adopted with the Plan Amendment was a Development Agreement establishing conditions for the development of the property which is the subject of the Plan Amendment (hereinafter referred to as the "Subject Property"). The Plan Amendment was also identified as Ordinance Number PS96-15 in some notices published by the City. (Stipulated Facts). The Plan Amendment changes the land use designation of approximately 8.45 acres of land from "Estate Residential" to "Commercial" for the eastern 3.82 acres and to "Community Facility" for the western 4 acres. (Stipulated Facts). The Plan Amendment is a "small scale amendment" pursuant to Section 163.3187(1(c), Florida Statutes. Therefore, the Plan Amendment was not reviewed by the Department of Community Affairs. (Stipulated Facts). The petition challenging the Plan Amendment was filed with the Division of Administrative Hearings within 30 days of October 22, 1996, the date the Plan Amendment was adopted. (Stipulated Facts). The City and Its Comprehensive Plan. The City is a relatively small municipality located in southwestern Broward County. Geographically, the City consists of approximately six-and-a-quarter square miles. The City is located directly to the east of Sunshine Ranches. The City and Sunshine Ranches are bounded on the north and south by the same roads: Griffin Road and Orange Road in the north; and Sheridan Street in the South. The western boundary of the City either abuts Sunshine Ranches or is separated by Flamingo Road. The City is bounded on the north by the Town of Davie. It is bounded on the south by Pembroke Pines. The City adopted the Cooper City Comprehensive Plan in 1991 (hereinafter referred to as the "Plan"). It consists of Volumes I, II, and III. Volume I contains the text of the Plan. Volumes II and III contain the data and analysis for the Plan. Pursuant to a Compliance Agreement entered into between the City and the Department of Community Affairs, the Plan was found to be "in compliance" as defined in Chapter 163, Part II, Florida Statutes. The City's Evaluation and Appraisal Report. The City was required to submit an Evaluation and Appraisal Report to the Department of Community Affairs on or before March 11, 1996. At the time of the formal hearing of this case, the City had prepared a draft of its Evaluation and Appraisal Report. See Respondent's and Intervenor's Exhibit 5. The draft of the City's Evaluation and Appraisal Report had not, however, been filed with the Department of Community Affairs. Sunshine Ranches. Sunshine Ranches is an unincorporated area of Broward County. It is generally bounded by the following roads: On the north by Orange Road and Griffin Road; On the south by Sheridan Street; On the west by Volunteer Road (148th Avenue); and On the east by Flamingo Road. Griffin Road abuts the entire length of the northern boundary of Sunshine Ranches. Orange Road is located immediately to the north of Griffin Road. The two roads are separated by a canal which runs the entire length of the northern boundary of Sunshine Ranches. The area to the north of Orange Road and Griffin Road is largely undeveloped. Flamingo Road on the eastern boundary of Sunshine Ranches is a six-lane road with a wide right-of-way. There is also a canal that runs the length of Flamingo Road. The canal separates Flamingo Road from Sunshine Ranches and other parcels of property located west of Flamingo Road. The right- of-way and canal are approximately 270 feet wide. The roads along the north, south, and west of Sunshine Ranches are contiguous with Sunshine Ranches' boundaries. On the east, Flamingo road is contiguous with most of Sunshine Ranches' eastern boundary. There are, however, several parcels of property located west of Flamingo Road which are a part of the City. Sunshine Ranches consists of approximately four square miles of land, or approximately 2,500 acres. Sunshine Ranches is a rural community with a significant number of small and large horse farms. There are also large homesites, the majority of which are five acres or larger. Many homesites have barns on them. A substantial number of homes in Sunshine Acres have animals, such as horses, chickens, and cows. Most of the roads in Sunshine Ranches are dirt roads. There are no sidewalks or traffic lights. There are a few fire hydrants in Sunshine Ranches. Most areas, however, are served by fire wells. There is a volunteer fire department consisting of two vehicles. The vehicles are leased from Broward County. Sunshine Ranches is a unique community in Broward County, both in terms of the size of lots and its rural, equestrian and agricultural character. There are signs at each entrance road into Sunshine Ranches that include the following: "Welcome to Sunshine Ranches: A Rural Estate Community." Most commercial enterprises within Sunshine Ranches are involved in equestrian-related activities. These activities consist of providing boarding facilities, riding schools, and horse training facilities. There is also a plant nursery located in Sunshine Ranches. Horses owned by non-residents of Sunshine Ranches are boarded at facilities in Sunshine Ranches. Non-residents also ride horses at facilities located in Sunshine Ranches. The land use designations for Sunshine Ranches consist of the following: "Rural Ranches," which allows one residential unit per two and one-half acres; and "Rural Estate," which allows one residential unit per one acre. The designation of Sunshine Ranches as Rural Ranches and Rural Estate was accomplished by an amendment to the Broward County comprehensive plan. It was the first area in Broward County to receive these designations. The designations resulted from a study conducted by Broward County to identify, preserve, and protect rural lands from urban encroachment. Property designated Rural Ranches may be used for "Community Facilities" also. Community Facilities include schools, fire stations, churches, etc. Churches require five- acre lots. There are several parcels located along Flamingo Road in Sunshine Ranches which are used by Churches. There are also schools located within Sunshine Ranches. Approximately 90% of Sunshine Ranches is designated Rural Ranches. Approximately 10% of Sunshine Ranches is designated Rural Estate. The portion of Sunshine Ranches designated Rural Estate is located along Giffin Road. Commercial Activities Around Sunshine Ranches. There are only a few commercial sites located near the boundaries of Sunshine Ranches. One is located on the western boundary of Sunshine Ranches at Volunteer Road and Griffin Road. This site is located on the side of Volunteer Road opposite to Sunshine Ranches. The site is, therefore, separated from Sunshine Ranches by the road and a canal. The largest amount of commercial property in the vicinity of Sunshine Ranches is located near the eastern boundary of Sunshine Ranches and Flamingo Road. At the corner of Flamingo Road and Giffin Road, immediately across Flamingo Road from the Subject Property, is Wal-Mart Shopping Center. Abutting Flamingo Road is the parking lot for the shopping center. The shopping center is located to the east of the parking lot. The shopping center is currently separated from Sunshine Ranches by approximately 700 feet of parking lot, the six-lanes of Flamingo Road, the canal located on the west side of Flamingo Road and the Subject Property. Immediately to the south of the Wal-Mart parcel are properties designated "Low 5" and "Low-Medium 10." Both designations allow residential uses. Flamingo Road and the canal on the western side of Flamingo Road act as a buffer between the existing commercial activities on Flamingo Road and Sunshine Ranches. Flamingo Road has historically acted as a dividing line between commercial activities and Sunshine Ranches. Commercial activities have been limited to the eastern side of Flamingo Road. On the west side of Flamingo Road there are several parcels of land which have been annexed as part of the City. None of these parcels are currently approved for commercial uses, however. They are all currently designated for residential ("Estate Residential") or Community Facilities. Most remain undeveloped. The Estate Residential designation allows use of the property for Community Facilities. Immediately to the south of the Subject Property is a 16-acres parcel designated Estate Residential. The largest parcel of property in the City located on the western side of Flamingo Road has been developed under the name of County Glen. There are no commercial sites within County Glen. Steps were taken in developing County Glen to minimize the impact of its higher density on Sunshine Ranches. These steps included restricting the number of traffic lights within the development and a limitation on density of the lots directly abutting Sunshine Ranches to one residential unit per acre. Although County Glen is more urban than Sunshine Ranches, steps were taken to buffer Sunshine Ranches from the impact of the development, consistent with development allowed west of Flamingo Road. The Need for Commercial Property in the City. Volume II of the Plan contains an analysis of the amount of commercial acreage within the City necessary to support the residents of the City. The analysis indicates that the City has one of the lowest ratios of commercial to residential acreage in Broward County. The ratio of commercial property to residential property was 7.2 percent. Although this ratio is lower than the ratio for Broward County, the City and the Department of Community Affairs agreed that the Plan, including the amount of acreage designated for commercial use, was "in compliance." The City has not amended its Plan to change this ratio. The City has adopted two Plan amendments reducing the amount of acreage in the City designated "Commercial" under the Plan. One amendment involved approximately 14.4 acres. The evidence failed to prove the size of the other parcel. Currently, there are a number of parcels of land designated Commercial under the Plan which are vacant. One is known as the Transflorida Bank Plaza. It is located to the east of the Subject Property at the corner of Griffin Road and 100th Avenue. The property was formerly a Winn Dixie Supermarket. Part of the property is still used for commercial uses. Another vacant commercial parcel is located on Pine Island Road across from David Poenick Community Center. This parcel is 6.5 acres. The City has approved use of this property for a 55,000 square-foot Albertson's. Another vacant commercial parcel is located on Stirling Road across from the Cooper City High School. On the east side of Flamingo Road, between Stirling Road and Giffin Road, there is a shopping center known as Countryside Shops. There are vacant parcels to the south and north of this property which could be used for commercial purposes. Finally, there are other vacant commercial parcels located in the central part of the City. The location of commercial property is an important factor in determining whether the property will actually be used. Therefore, the fact that there are vacant commercial properties located in the City fails to prove that there is not a need for the total amount of property designated Commercial under the Plan. Overall, the City has reduced the amount of property designated Commercial under the Plan. The amount of land being classified as Commercial pursuant to the Plan Amendment will not increase the amount of property originally designated Commercial pursuant to the Plan. The "Industrial" land use designation under the Plan allows some uses which may be considered commercial. This was true when the Plan was found to be in compliance, however, and the amount of land designated Commercial was still approved. The evidence failed to prove that the amount of property designated Commercial, including the portion of the property being designated Commercial pursuant to the Plan Amendment, is not supported by the data and analysis that supported the amount of commercial property found to be in compliance under the Plan when it was adopted. In light of the fact that the City has not submitted its Evaluation and Appraisal Report to the Department of Community Affairs for review as required by Section 163.3191, Florida Statutes, the amount of property designated Commercial in the originally approved Plan should not be relied upon to support the Plan Amendment. While the draft of the Evaluation and Appraisal Report prepared by the City indicates a need for additional commercial acreage in the City, the Department of Community Affairs has not reviewed the report. Nor has the City amended the Plan "based on the recommendations contained in the adopted evaluation and appraisal report " Section 163.3191 (4), Florida Statutes. The Subject Property and the Impact of the Plan Amendment. The Subject Property is currently classified as "Estate Residential" in the Plan. This classification allows the use of the Subject Property for residential purposes. The Subject Property is located at the southwestern corner of Flamingo Road and Griffin Road. It is located on the west of Flamingo Road. The Subject Property abuts the northeastern corner of Sunshine Ranches. Under the Plan Amendment, the eastern approximately four acres of the Subject Property will be designated Commercial (hereinafter referred to as the "Commercial Property"). This will be the first property on the west side of Flamingo Road designated for commercial uses. The Commercial Property will be separated from Sunshine Ranches by the remaining 3.82 acres of the Subject Property. This portion of the Subject Property will be designated Community Facilities (hereinafter referred to as the "Community Facilities Property"). The Subject Property abuts an area of Sunshine Ranches which consists of Rural Estate property. This designation makes up approximately 10 percent of the property in Sunshine Ranches. The Plan Amendment allows stormwater facilities required for the Commercial Property and the Community Facilities Property to be located on the Community Facilities Property. I. Compatibility of Land Classifications with Surrounding Classifications; The Impact of the Plan Amendment on Sunshine Ranches. Policy 1.1.3 of the Plan provides that the compatibility of a proposed land use with existing land uses is a primary consideration in determining whether a land use should be allowed. Residential and commercial land uses are not inherently compatible. Despite this fact, residential and commercial land uses often abut each other. Where this occurs, steps can be taken to minimize the negative impact of the commercial use of property on the residential use of adjoining property. Flamingo Road and the adjacent canal provide a good boundary and buffer between rural Sunshine Ranches and the urbanized area of the City. The Plan recognizes this fact by requiring that the City conduct a study of the application of an urban growth boundary line for areas of the City located west of Flamingo Road. Regardless of the size of the Commercial Property, the designation of the Commercial Property for commercial uses would be the first commercially authorized use of property west of Flamingo Road or inside any of the other boundary roads of Sunshine Ranches. Comparing the uses allowed on the Commercial Property with the uses of property in Sunshine Ranches, it is evident that the uses are not compatible. This conclusion, however, does not necessarily mean that the City's approval of the Commercial Property for commercial uses is not "in compliance." Although the uses allowed on the Commercial Property and in Sunshine Ranches are incompatible, there are steps which can be taken to minimize the negative impacts which occur when commercial activities approach residential activities. One of those steps was taken when the City approved the Plan Amendment with the Community Facilities Property located between the Commercial Property and Sunshine Ranches. The Community Facilities Property, in conjunction with other measures, can be an effective buffer between the Commercial Property and Sunshine Ranches. The Development Agreement adopted by the City was adopted, in part, to address compatibility concerns. The Development Agreement eliminates various uses of the Commercial Property which would otherwise be allowed by the City's zoning for commercial parcels. The Development Agreement also provides that the Community Facilities Property will be dedicated to community facilities uses once the development of the Commercial Property is approved. The Development Agreement also includes certain development standards and requirements intended to reduce the impact on Sunshine Ranches due to incompatibility, such as requiring berms and landscaping to buffer the Subject Property from Sunshine Ranches. Horse trails along the Subject Property are to be included in the development. Land development regulations will require that steps be taken in the development of the Subject Property to reduce the negative impact on adjoining property, including Sunshine Ranches. The designation of the Commercial Property for commercial uses could, however, have a "domino affect" on other property located west of Flamingo Road. Once one parcel is approved, it will be difficult for the City not to approve similarly situated parcels. The Plan Amendment will increase the expectation of others who own property west of Flamingo Road that the land- use designation of their property can be changed to Commercial. The evidence, however, failed to prove that there are other parcels of property located west of Flamingo Road which are sufficiently similar to the Subject Property that they would be allowed to be used for commercial purposes. The evidence also failed to prove that any parcels of property located west of Flamingo Road which may be considered in the future for commercial uses cannot have conditions imposed on their use for commercial purposes which will adequately protect Sunshine Ranches from an incompatible use. The Plan Amendment could also negatively impact the ability to use adjoining property for residential purposes. In particular, the sixteen-acre parcel located immediately to the south of the Subject Property will more difficult to develop as residential if the Plan Amendment is approved. The evidence failed to prove, however, that with effective buffering adjoining property cannot be used for residential purposes. The evidence failed to prove that, with proper measures to reduce the impacts of the development on the Subject Property on Sunshine Ranches, the development of the Subject Property allowed by the Plan Amendment would necessarily be incompatible with Sunshine Ranches. The evidence failed to prove that the uses allowed for the Community Facilities Property are incompatible with the uses allowed in Sunshine Ranches. The Availability of Infrastructure. The evidence failed to prove that the Plan Amendment is not in compliance due to the lack of available vehicle trips on roads that would be impacted by development of the Subject Property. This issue, which involves the question of whether development of the Subject Property is consistent with relevant transportation levels of service, is one that should be considered at the time a development order is sought. It is not an issue for consideration in determining whether a land use designation amendment is in compliance. The same conclusion applies to other services such as sewer and water, which currently are available for the Subject Property. Urban Sprawl, the State and Regional Plan, Internal Inconsistency, and Inconsistency with the Broward County Comprehensive Plan. The evidence failed to support allegations concerning urban sprawl, the state and regional plans, internal inconsistencies, and inconsistencies with the Broward County comprehensive plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Administration Commission finding the Plan Amendment is invalid because it was adopted in violation of Section 163.3187(6), Florida Statutes, and is not "in compliance." DONE AND ENTERED this 23rd day of July, 1997, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1997. COPIES FURNISHED: Richard Grosso, General Counsel Scott SznitRen, Certified Law Intern ENVIRONEMENTAL and LAW USE LAW CENTER, INC. Civil Law Clinic Shepard Broad Law Center Nova Southeastern Center 3305 College Avenue Fort Lauderdale, Florida 33314 Alan Ruf, City Attorney City of Cooper City 9090 Southwest 50th Place Cooper City, Florida 33328 Richard G. Coker, Jr., Esquire BRADY and CORER 1318 Southeast 2nd Avenue Fort Lauderdale, Florida 33316 Barbara Leighty, Clerk Administration Commission Growth Management and Strategic Planning 2105 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Administration Commission 209 Capitol Tallahassee, Florida 32399-0001
Findings Of Fact On or about February 13, 1995, Petitioner, Hillary Sklar, filed Petitioner's Second Amended Petition. Ms. Sklar has challenged the Department's determination that an amendment to the City's comprehensive plan adopted by Ordinance No. 94-2-2 was "in compliance." In the second amended petition Ms. Sklar made the following allegations concerning her standing to institute this proceeding: * * * 2. The Petitioner's address is 11321 Southwest 49th Place, Fort Lauderdale, 33330, in the County of Broward, Florida. * * * 4. On February 8, 1994, the Respondent passed Ordinance NO. 94 -2 -2 authorizing the implement- ation of Land Use Plan Amendment 94 - S - 1. The Land Use Plan Amendment affects property located at 11791 Southwest 49th Street, Cooper City, in the County of Broward. . . . * * * Petitioner's property is located in a section of unincorporated Broward County which abuts and adjoins the property in question. Petitioner's property has been defined by Respondent as an "enclave." Petitioner's property is similarly situated to those of property owners in Cooper City and will be affected more than those property owners located in Cooper City; including, but not limited to, the allegations contained in Paragraphs 10 through 17, inclusive. Petitioner made objections to the ordinance at the February 8, 1994 City Council meeting discussing adoption of the ordinance. . . . * * * Ms. Sklar has still failed to allege that she resides, owns property or operates a business located with a City of Cooper City address or which otherwise is subject to the jurisdiction of the City of Cooper City. The oral objections made by Ms. Sklar were made at a public hearing of the City of Cooper City Council held on February 8, 1994. According to the minutes of that meeting, Ms. Sklar "said the zoning is a done deal and the annexation and sale was a done deal. Why should it be a done deal before the Public Hearing was held, she asked." The factual information contained in the Preliminary Statement of this Recommended Order is hereby incorporated by reference.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order dismissing the Petitioner's Second Amended Petition, filed by Hillary Sklar. DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995. COPIES FURNISHED: Edward R. Curtis, Esquire Bruce Botsford, Esquire 1828 S.E. 1st Avenue Fort Lauderdale, Florida 33316 Suzanne H. Schmith Certified Legal Intern Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Silvia Morell Alderman, Esquire Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
The Issue The issues in this case are whether the Small Scale Comprehensive Plan Amendment No. 05S-01 (the Plan Amendment) adopted by Polk County (County) through the enactment of Ordinance No. 05-004 is “in compliance,” as that term is defined by Section 163.3184(1)(b), Florida Statutes,1 and whether Petitioner, Citizens for Proper Planning, Inc. (CPPI), has standing as an “affected person” as defined by Section 163.3184(1)(a), Florida Statutes, in this proceeding.
Findings Of Fact The ECRA is a local special district governmental agency established pursuant to Chapter 163, Part III, Florida Statutes, and is composed of a seven-member board of directors. The boundaries of the Eloise Community Redevelopment Area include an area consisting of approximately 665 acres within the unincorporated Eloise area of Polk County (the Redevelopment Area). The Subject Property is located within the Redevelopment Area. See JE 8A. The ECRA meets once a month, except July, when they do not normally meet. Its purpose is to discuss and implement the ECRA Redevelopment Plan’s six objectives within the Redevelopment Area. The ECRA opposed the Plan Amendment by and through its attorney and submitted oral and written comments, recommendations, and objections to the County regarding the Plan Amendment during the Plan Amendment adoption proceedings. As a part of its presentation to the County regarding the Plan Amendment, the ECRA delivered to the County, ECRA Resolution No. R-05-01, objecting to the Plan Amendment. The parties agree that the ECRA has standing in this proceeding. Petitioner, Bruce Bachman (Mr. Bachman), resides in Winter Haven, Polk County, Florida. His residence is located outside of the Redevelopment Area and is approximately three (3) miles from the Subject Property. He is employed as the operator (since 1980) and general manager of Phoenix Industries, LLP, (Phoenix), located at 621 Snively Avenue, County Road (CR) 655 in Eloise, which is adjacent to and across the street from the Subject Property. Mr. Bachman has served as the Chairman of the Board of Directors of the ECRA since 1998. Phoenix operates a warehousing and distribution complex for dry, refrigerated, and frozen food products east of Snively Avenue and across the street from the Subject Property. The Phoenix property stretches north and south within an elongated area within the Redevelopment Area, and is open 24-hours a day, seven days a week.2 See JE 8A at "30". (The railroad, designated with a red line, runs north and south through the Phoenix property. JE 8A.) Phoenix has spent approximately $115,000 changing the angles of its buildings and moving docks so that trucks could maneuver on the property, and not have to enter Snively Avenue to do so. Mr. Bachman is involved with the Eloise residential area and the Redevelopment Area generally and his contributions to the Eloise area are well-noted in the record. His work with the community includes working with the students at Snively Elementary School. Individually, and on behalf of the ECRA, Mr. Bachman submitted oral and written comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Bachman has standing in this proceeding. Petitioner, Johnny Brooks (Mr. Brooks), resides at 143 8th Street, Eloise, Polk County, Florida, approximately three (3) blocks southwest from the Subject Property. His home is located within the main residential component of the Redevelopment Area. He was born in Eloise (on 5th Street) and has lived, with his wife, at the 8th Street address for 41 years. Mr. Brooks also serves as Vice-Chairman of the Board of Directors of the ECRA. Although disabled, Mr. Brooks is an active member of the Eloise Community. For example, he and his wife conduct a “homework club” at the Eloise Community Resource Center (opened in 2002) located between 7th and 8th Streets and Snively Avenue, which is east and down the block from his residence. JE 8A at "2". They also use the computer lab at the resource center for adult education. They use the neighborhood Snively/Brooks Park, JE 8A at "4", approximately one block south of the Brooks' residence and west of the Snively Elementary School, JE 8A at "3", for, among other activities, Easter egg hunts and Christmas parties. Mr. Brooks is also involved in the Eloise Neighborhood Association, which offers adult computer classes, GED classes, and classes in English as a Second Language. He and his family use other resources within the Redevelopment Area, such as the Snively Elementary School, and a post office, JE 8A at "1", which is located approximately one block north of the Subject Property between 4th and 5th Streets, near Snively Avenue. Mr. Brooks attends the Eloise United Methodist Church (built in 1966-1967), which is located on land designated as Industrial (IND) on the FLUM. 3 JE 8A at "10". This church is located on the southwest side of Snively Avenue, and approximately five or six blocks south of the Subject Property and approximately two blocks south of the Snively Elementary School and the Snively-Brooks Park.4 Mr. Brooks submitted oral comments, recommendations, and objections to the County during the Plan Amendment adoption proceedings. The parties agree that Mr. Brooks has standing in this proceeding. CPPI is an organization comprised of approximately two hundred members, located throughout Polk County, Florida. CPPI has been an existing corporation since 2002. No application, request to join or payment of dues is currently required for membership. According to its executive chairperson, Jean Reed, its purpose is to "better plan for our growth in Polk County." Ms. Reed lives approximately one mile east of Eloise and four of five of the CPPI Board of Directors live within a mile of Eloise. All CPPI members live in the County. CPPI had been involved in County hearings and an administrative hearing involving a small scale comprehensive plan amendment. The organization currently encourages donations and plans to charge dues next year. CPPI submitted oral comments, recommendations and objections to the County during the Plan Amendment adoption proceedings. No evidence was presented to show that CPPI owns real property within the County. The County and the Intervenor dispute CPPI’s standing in this proceeding. The County is a political subdivision of the State of Florida, empowered to adopt, implement, and amend its Comprehensive Plan in accordance with the laws of Florida. Intervenor, Don C. Smith (Smith or Intervenor), owns the Subject Property. He purchased the Subject Property of 9.9 acres, which is part of a contiguous 20-acre site, in May of 2003. Mr. Smith learned that the Subject Property had an RL-4 land use designation just prior to his purchase of the Subject Property. The parties agree that Mr. Smith has standing in this proceeding. The Eloise Community Redevelopment Area The Redevelopment Area consists of approximately 665 acres. EE 2, Plan at 30. It is generally bounded by the CSX railroad to the north of US 17; by Lake Lulu and Shell Road on the east; by Snively Avenue (CR 655) on the south; and by Wahneta Canal and a portion of Wahneta farms on the west. JE 8A.5 (Snively Avenue is a four-lane undivided, major collector highway, but is not a buffer.) Both historically and presently, the Redevelopment Area has been composed of mixed uses in an urban area. Under the FLUM, there are eight separate land uses within the Redevelopment Area: Industrial (IND), Business Park Center (BPC- 2), High Impact Commercial (HIC), Institutional (INST-1), Community Activity Center (CAC), Residential Suburban (RS), Residential Low-1 (RL-1), and Residential Low-4 (RL-4). JE 8A. Beginning at the northern portion of the Redevelopment Area and moving from west to east, south of the CSX railroad and approximately one block south of US 17, the land uses designated on the FLUM are HIC, CAC, and HIC. Moving southward and east of Snively Avenue, the land use designation for a triangular portion of land is BPC-2. The land use designation adjacent to and immediately south of the BPC-2 designation and east of Snively Avenue is designated as IND. The IND designation covers the land in a southerly direction until Snively Avenue intersects with Croton Road. The land to the east and adjacent to the BPC-2 and IND designations is designated as RL-1. There is a small portion of land near Shell and Croton Roads at the southern boundary of the Redevelopment Area designated as Residential Suburban (RS). (The RS designation continues to the east outside of the Redevelopment Area. Lake Lulu is to the east of the eastern RL-1 and RS designations.) There is also land designated as RL-1 west of Snively Avenue, bisected by Unnamed Street, extending west of Wahneta Canal and south-southwest of the Snively Elementary School/Snively-Brooks Park area, to the southwestern boundary of the Redevelopment Area.6 The Snively Elementary School and the Snively-Brooks Park are located in the INST-1 land use designation.7 JE 8A. Approximately 150 children walk to and from this elementary school (with another 60 to middle and high schools outside the Redevelopment Area), utilizing the sidewalk bordering the western portion of Snively Avenue. The majority of the children attending the elementary school reside in the RL-4 designated area (mainly between 1st and 9th Streets). Mr. Smith agreed that the elementary school was in close proximity to the Subject Property. Mr. Smith testified that after meetings with the ECRA, he moved the fence in front of the Subject Property and business back ten feet so that the children could have more room to walk down the street. He also instructed his drivers of big trucks and heavy equipment not to enter the Subject Property during times when the children are going to and from school. There are several school crossings, crossing Snively Avenue. There is a bus stop at 5th Street and Snively Avenue for children attending middle and high school. JE 8A at "6". There are also bus stops on 7th Street and in front of the elementary school. JE 8A at "5" and "7". Except for the residential portions of the CAC and BPC-2 areas, the primary residential area of the Redevelopment Area is generally bounded by US 17 and 1st Street on the north, the Wahneta Canal on the west, and to just north of Snively Elementary School and 9th Street on the south. JE 8A; EE 2, Plan at 6 and Figure 2. The Eloise Community Redevelopment Area Uses 1. In General The Redevelopment Area, for at least the last 40 years, has supported a wide variety of industrial, commercial, institutional, and residential uses. Mr. Brooks and Mr. Smith testified that the Redevelopment Area has supported these mixed uses and has historically been defined by the interrelationship of these various uses with the predominant industrial activities within its boundaries. In the past, the established residential area (RL-4) was once a successful working-class neighborhood which primarily provided homes to those workers who were employed in the citrus plants located within the industrial classified areas. That residential area is now blighted and provides housing for low and moderate income families. Though well established, the RL-4 residential area contains a substantial number of vacant lots within that residential designated area. 2. Redevelopment Area Problems and Redevelopment During the early 1980’s, Eloise was a troubled community, suffering, for example, from theft and vandalism. The community had difficulty finding minority contractors willing to work at Phoenix because of the problems associated with the community. By the early 1990s, the residential area of the Redevelopment Area had deteriorated to such an extent that the Housing and Neighborhood Development Division (HND), an agency of the County, became actively involved in the redevelopment of the community. In 1992, the Eloise Neighborhood Association was formed. In 1996, a Neighborhood Revitalization/Redevelopment Plan was commissioned by HND. This plan was prepared by County staff. Also in 1996, the HND and the Eloise Neighborhood Association prepared the Eloise Neighborhood Revitalization/Redevelopment Plan, which “focused on the 138 acres generally bounded by the CSX Railroad on the east, the railroad and US 17 on the north, the Wahneta Canal on the west, to just south of the Snively Elementary School. Its recommendations included improved social services, land use changes, housing programs and infrastructure improvements.” In 1998, a Declaration of Slum and Blight was adopted by the Board through Resolutions Nos. 98-08 and 98-66, which, respectively, made a finding of blighting conditions in Eloise and adopted a redevelopment plan for Eloise. As a result, the ERCA was created pursuant to Section 163.356, Florida Statutes, to rehabilitate, conserve, and/or redevelop the Redevelopment Area. In 2000, the Board, pursuant to Section 163.360, Florida Statutes, adopted Ordinance No. 00-33, approving of the Eloise Redevelopment Plan as the Community Development Plan for the Redevelopment Area. It was the purpose and intent of the Board that the Eloise Redevelopment Plan be implemented in the Redevelopment Area. The Board made numerous findings in Ordinance No. 00- 33 including a determination that “[t]he Plan conforms to the general plan of the county as a whole” and that “[t]he Plan conforms to the Polk County Comprehensive Plan.” The Board also determined that “[t]he need for housing accommodations has increased in the area.” The Eloise Redevelopment Plan has not been adopted as part of the County's Comprehensive Plan. Thus, the Plan Amendment need not be consistent with the Eloise Redevelopment Plan to be “in compliance.” The May 2000, Eloise Redevelopment Plan describes the then existing ownership patterns such that “[t]he existing Eloise residential neighborhood between 1st and 9th Streets is subdivided into platted, fifty-foot wide lots. Most are 100-125 feet in depth. Lots along 9th Street abutting the school are platted as 70-foot wide lots. The ownership pattern in this area typically follows the lot lines. Most are individually owned lots. (See Figure 6).” EE 2, Plan at 16. Particularly relevant here, it is also stated: “Lots 33 and 34 [part of the Subject Property] are each approximately 9 acres and are owned by Alterman Transport Corporation (ATC). The site is currently used for storage and, in the past, was zoned GI [General Industrial] and R-3. In the current Comprehensive Plan, however, this site is planned for Residential Suburban (RS) to be compatible with the surrounding neighborhood. The trucks are a legal-nonconforming use and may continue but any future development shall comply with the RS land use district.” EE 2, Plan at 16. The Eloise Redevelopment Plan also recommended that the Alterman Trucking Annex, also known as the Alterman Transportation Corporation, be developed for up to 75 single- family homes by the end of 2004. EE 2, Plan at 32; JE 3 at 3 of (The Subject Property was also formerly known as the Alterman Motor Freight Terminal. JE 2, 8/10/2004 site map.) In 2001, the County also changed the classification of the Subject Property from RS to RL-4 pursuant to Ordinance No. 01-45. See Finding of Fact 54. In addition to the creation of the ECRA, the County, through the HND, has attempted to revitalize the Redevelopment Area. Since 1993, HND has spent approximately $4.4 million dollars in these efforts. These funds have been spent on community policing ($424,790), slum and blight clearing ($47,428), housing rehabilitation ($186,807), parks and recreation ($149,982), water/sewer/drainage ($1,094,677), construction of the Eloise Community Center ($2,147,037), replacement of five homes ($314,138), and rehabilitation and repair of five homes ($46,819). As part of the Eloise Redevelopment Plan, many additional infrastructure improvements have been proposed, such as fire hydrants, turnaround areas for emergency vehicles and fire trucks, storm water installation, and sewer for the Residential Area of Eloise between 1st and 9th Streets and between Snively Avenue and the canal. The proposed projects for water, sewer, and storm water include 350 parcels to be served in this Residential Area. The construction of the Eloise Community Center has been the most costly expense in these efforts. After the County obtained this parcel from Phoenix Industries, it was discovered that the land was contaminated and more than $400,000 was spent on environmental clean-up costs for this property. The ECRA and the County have made progress in the area of code enforcement. Furthermore, crime has been cut in half and a drinking ordinance was passed by the County upon request of the ECRA and the Eloise Neighborhood Association. Eloise, with the County's cooperation, also initiated a Community- Oriented Policing program. There has been an increase in construction in the area, both on the residential and commercial/industrial side of Snively Avenue. The ECRA has also been working on a beautification strategy. For example, Phoenix spent $35,000 for landscaping, removing barbed wire, installing an irrigation system, and installing an attractive entrance to its facilities. Further beautification is planned for other areas along Snively Avenue, the main gateway to the area from US 17, and improvements to Snively Elementary School, for which the ECRA allocated up to $10,000. Currently, the socio-economic status of the families living within the residential portion of the Redevelopment Area is low and moderate income. But, as noted above, the area is being revitalized, including the addition of several Habitat for Humanity-built homes. Mr. Bachman confirmed that "[t]hings have changed now," including the employment of minorities and an increase in diversity at the elementary school. The Subject Property The Subject Property is located within the Redevelopment Area on the southwest side of Snively Avenue between 5th and 6th Streets. JE 8A. The Subject Property consists of approximately 9.9 acres, which is part of a 20-acre parcel owned by Mr. Smith. Tr. 261. (There is a vacant parcel not subject to the Plan Amendment, also acquired by Mr. Smith at the same time, adjacent to and west of the Subject Property, which appears to be within a flood zone area. JE 8A at “46”. The canal serves as the western border for this parcel.) Currently, there are ten to eleven residences along 5th Street, north of the Subject Property, and ten residences between the Subject Property and 6th Street, south of the Subject Property. See EE 7. There does not appear to be any appreciable distance between these residences and the Subject Property. Aside from the residential homes north and south of the Subject Property, there are also retail, auto repair, and other commercial uses which border on Snively Avenue. See, e.g., IE 1, aerial with 15 photographs; JE 3 at 5 of 27; Tr. 295-297; JE 8A. According to Mr. Smith, he requested the land use designation change to cure the non-conforming status of the Subject Property. All operations on the Subject Property had ceased for less than one year when he purchased the Subject Property. The Subject Property has historically and, except as noted above, continuously been utilized since the late 1960’s for industrial-type purposes, including motor freight activities which include loading and unloading citrus trucks, racking, truck repair, and truck weighing. These activities would not necessarily be restricted to an Industrial land use designation;8 the current use of the Subject Property as a motor freight terminal is also permitted within a BPC-2 land use designation. There has been no substantial change in the use of the Subject Property since 1980.9 Mr. Brooks testified that while he was growing up in Eloise, the Subject Property "was primarily truck parking for the citrus plant." He "worked for the scale house back in the late 60's before the plant went down and all [they] did was like park the trucks there for unloading and which would be in the citrus plant itself." However, he never knew the Subject Property "to be an industrial park itself," during the late 1960's. Historically, Mr. Snively, who died in 1957, owned several different businesses across the street from the Subject Property, including a fresh fruit packing house, JE 8A at "20", juice plant, JE 8A at "21", concentrate plant, JE 8A at “22”. The plant closed in 1969 or 1970. In and around 1972, during the summer, Mr. Smith worked for the Snively operation when they parked their citrus trucks on the Subject Property and then for the Alterman operation on-site when he loaded and unloaded trucks. Under the County's zoning ordinance adopted in November 1970, the Subject Property, along with the Phoenix Industries Property, its adjoining property, and the property southeast and adjacent to Snively Elementary School, were zoned as General Industrial (GI). Like the Subject Property, this industrial area is located east and immediately adjacent to property classified as residential (RS) (although the property is presently undeveloped). By an amendment to the FLUM adopted by Ordinance No. 91-06 on April 19, 1991, the Subject Property was classified as RS, rather than IND.10 At the same time, the Phoenix Industries Property, its adjoining property, and the property immediately adjacent to Snively Elementary all maintained their Industrial classification. The May 2000 Eloise Redevelopment Plan recommended, in part, consideration of "a plan amendment from RS to RL-4 for the properties north of Snively [Elementary] School and west of Snively Avenue" which included the Subject Property. EE 2, Plan at 38. On July 11, 2001, the County adopted Ordinance No. 01- 45, which changed the land use designation on the FLUM from RS to RL-4, for all of the property (including the Subject Property) between 1st Street and just south of 9th Street and between Snively Avenue on the east and the canal on the west. EE 1 at map page 2. The land use designation for the Snively- Brooks Park was also changed to INST-1 from IND. Other land use designations were changed pursuant to Ordinance No. 01-45. EE 1. See also Tr. 130-136, 139-140. The FLUM changes implemented strategies set forth in the Eloise Redevelopment Plan and adopted recommended changes to the FLUM. See Tr. 163. The RL-4 designated property is located immediately adjacent to and on the north, west, and south sides of the Subject Property. JE 8A. Across Snively Avenue from the RL-4 property is the industrial area which was previously used in the citrus industry and which is currently used by Phoenix warehousing and trucking activities. JE 8A. "The purpose of the [RL-4] District is to provide areas for low density residential needs of residents in urban areas who desire areas with smaller lots, a minimum of 6,000 square feet." § 204A7., Land Development Code (LDC). The County and Mr. Smith contend that the Subject Property was mistakenly or erroneously classified as RS in 1991 and RL-4 in 2001. However, the preponderance of the evidence indicates that no mistake or error was made in 1991 or 2001 based, in part, on the chronology of events regarding the land use changes mentioned above. Merle H. Bishop, A.I.C.P., the current Director of Growth Management for the County, has been an employee of Polk County for 30 years, and was involved in the adoption of the original Comprehensive Plan in 1991. In preparing land use designations for the initial FLUM, he used aerial photographs primarily and the existing zoning at the time. Since that time, he and staff have discovered errors in mapping the land uses of property, including industrial. Typically, the errors have been corrected when presented to the Board for comprehensive plan changes to the FLUM. Mr. Bishop testified that pursuant to a policy in the Comprehensive Plan, the County desired to “recognize industrial uses.” Tr. 444-445. According to Mr. Bishop, an active industrial use would only be eliminated with good reason, i.e., such as it was a remote and isolated industrial use. Tr. 455. According to Mr. Bishop, the Subject Property, the southern parcel by the elementary school, and the Phoenix Industries property made up a major industrial use area. Tr. 456. Although Mr. Bishop stated the Subject Property "would have been" designated as Industrial in 1991 given its use, Tr. 511-512, Mr. Bishop could not "say whether or not [they] missed this on the map when [they] mapped it. I mean it appears -- I mean, when you look at the map, it's very general; or whether there was an intention to not map it." Tr. 483-484. Mr. Bishop did not testify persuasively that the Board, in 1991 or in 2001, erroneously designated the Subject Property as RS and then RL-4. The February 2, 2005, staff report, mentions the applicant’s contention that a mapping error occurred, but implicitly rejects this argument. JE 3 at 11 and 12 of 27. Staff stated: The site has recently changed ownership and the current property owner wants the non-conforming uses to become conforming uses. Recognizing the existing use will enable to [sic] owner to continue utilizing the site as it has historically been used and allow the redevelopment of the property as needed. In addition, the use has remained the same since the early 1970’s according to the applicant. The applicant also states that Policy 2.113-A2 of the Comprehensive Plan states that the [FLUM] Series shall include all major existing industrial areas; since the property has historically been used for industrial uses, the recognition of the site will correct the County’s mapping error. On the other hand, staff and the ECRA has [sic] indicated, for this and the prior requested land use change (CPA 04A-05), that the impacts to the residential neighborhood is [sic] more significant than the redevelopment of the site for commercial or industrial uses. The County worked with the residents, business owners, and land owners in the area to develop a redevelopment plan, in which, the site was intentionally made non-conforming by the community and the County in order to create separation between the industrial uses across the street from the residential uses on the west side of CR 655 (Rifle Range Road [sic]). Therefore, the applicant’s primary argument for recognizing the historical use is not relevant. JE 3 at 12 of 27. Mr. Bishop was not directly involved with the staff review although he participated at the pubic hearing before the Board. If the Subject Property were vacant, Mr. Bishop would not recommend an Industrial land use designation. He supports the land use change because of the existing (at the time) use of the Subject Property and to have the property be a conforming use. Tr. 506-507. The history of industrial-type use on both the Subject Property and other sites in the Redevelopment Area has been a subject of significant concern. Although no tests have been conducted to determine whether the Subject Property is contaminated, Dr. Cherry testified that as a result of its long industrial use, it is likely that contamination will be present, which would render its use for residential purposes not realistic. Tr. 221-223. Since the subject property is located near the property upon which the community center was constructed and both parcels were part of a larger industrial area and utilized for similar uses, Dr. Cherry suspects that the Subject Property will likewise be contaminated. Tr. 222. If the Subject Property is contaminated, it is Dr. Cherry's opinion that there will be insufficient funds to clean the area. Tr. 219. Consequently, Dr. Cherry opined that if the Subject Property could not be used for industrial purposes, it would likely be unable to be developed as residential and most likely would be abandoned, thereby becoming a “brownfield.” This would significantly burden the redevelopment efforts in the Redevelopment Area. However, the Subject Property has not been declared a “brownfield” and no finding can be made regarding the environmental condition of the Subject Property based upon the record of this case. The Small Scale Plan Amendment Application and Adoption On or about August 10, 2004, Mr. Smith filed an application requesting the County to re-designate the land use of the Subject Property from RL-4 to IND. JE 2. According to the “Narrative Summary,” “[t]his change will provide for the continuation of historical motor freight uses and provide for optional industrial uses.” Id. On January 4, 2005, the County published Notice in a newspaper of local circulation providing that the Board would consider the adoption of the Plan Amendment at its meeting of January 19, 2005. At the January 19, 2005, meeting, the County tabled consideration of the Plan Amendment to its meeting of February 2, 2005. The Polk County Planning Division Staff report is dated February 2, 2005. This report contains a detailed analysis of the application. The Planning Division recommended denial of the Plan Amendment. (The report indicates that the Planning Commission recommended approval (3 to 1 vote) of the Plan Amendment.) The Planning Division found, in part, that "the proposed development request IS NOT compatible with surrounding land uses and general character of the area of the residential uses on the southern side of Snively Avenue (CR 655) and IS NOT consistent with the Polk County Comprehensive Plan for a land use change to Industrial (IND) because it would likely intrude into the existing residential neighborhood, allow for more intensive uses to be developed next to existing homes, and not be consistent with the approved Eloise Redevelopment Plan." (Emphasis is original). On February 2, 2005, the Board voted to adopt the Plan Amendment by the adoption of Ordinance No. 05-004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order concluding that the Plan Amendment adopted by Polk County Ordinance No. 05-004 is not "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 8th day of July, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2005.
