The Issue The issue is whether the City of Crestview's (City's) small-scale development amendment adopted by Ordinance No. 1370 on November 26, 2007, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background B & H is a Florida corporation which owns and operates a number of concrete batch plants and a surveying and engineering company known as Integrated Engineering Solutions, LLC. The parties have stipulated that B & H is the owner of property within the City and submitted comments to the City in support of the change in the land use prior to the adoption of the plan amendment. As such, B & H is an affected person and has standing to participate in this matter. In 2005, B & H purchased a 75.56-acre tract of vacant, undeveloped land in the unincorporated part of Okaloosa County (County), just southwest of the City. The parcel is generally bounded on its northern side by Interstate 10 (I-10) and by a 150-foot wide Gulf Power Company easement on its southern boundary. All of the property carried a County land use designation of RR, which limits development to one residential unit per five acres. See Future Land Use Element (FLUE) Policy 10.1.e. (Petitioner's Exhibit A). After B & H purchased the property, it applied for development approval (including a land use change from RR to an industrial) from the County. In the face of substantial public opposition, and a negative staff recommendation, B & H withdrew its application during a County Planning Commission hearing on April 12, 2007. (The County staff noted that the property "is located in the immediate vicinity of . . . a residential subdivision"; that a wide range of industrial uses would be allowed on the property if it was changed to IN; that the requested action would have the effect of "spot zoning"; that there is no shortage of industrial-zoned lands in other areas of the County; and that "the requested action is not compatible with the proximate residential subdivision and does not result in an appropriate transition of uses, densities, and intensities as expressed in [FLUE] Policy 4.4.") Shortly thereafter, B & H filed a petition for voluntary annexation with the City. On August 27, 2007, the City annexed a 9.98-acre parcel of B & H's land lying in the eastern half of the larger parcel. (The remainder of the larger parcel remains in the County.) B & H then filed an application in the form of a small-scale development amendment seeking a change in the land use on the property from RR to IN. Because the size of the parcel was less than 10 acres, the change in land use was accomplished by this type of amendment, which is not reviewed by the Department of Community Affairs (Department). See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. According to FLUE Policy 7.A.3.4.f. in the City's Plan, the IN category is designed to protect lands for production and distribution of goods and for other industrial activities. A wide range of industrial uses and commercial uses are allowed in this category. Specific uses include light and heavy manufacturing, assembly, training facilities, vehicle repair (including body work and painting), packaging, processing, wholesale business and warehousing, truck terminals, borrow pits, asphalt/concrete plants, heavy equipment sales, service and/or rentals, and other uses similar to those listed herein. Residential uses are prohibited except as an accessory to a permitted use. In addition to the application for a change in the FLUM, B & H submitted an application for site plan approval for a concrete batch plant to be located on the southern end of the subject property. This use would be consistent with the IN category. However, until this proceeding is concluded, the site plan will not be reviewed, modified, or approved by the City, and therefore any development provisions incorporated therein are not final. Further, the proposed use (a concrete batch plant) requires the issuance of a permit by the Department of Environmental Protection (DEP). On September 9, 2007, the City Planning Commission conducted a public hearing to consider the amendment and voted 4-1 to recommend approval of the application to the City Council. On October 8, 2007, a first reading of Ordinance No. 1370 implementing the amendment occurred at the City Council meeting. On October 22, 2007, a public hearing was held before the City Council. The City Council voted 3-2 to deny the amendment. On November 13, 2007, the City Council conducted another public hearing for the first reading of the amendment. On November 26, 2007, the City Council conducted a second public hearing on the amendment and adopted Ordinance No. 1370 enacting the amendment. (New zoning on the land will not be imposed until or unless the plan amendment here is found to be in compliance.) Although not subject to review by the Department, the following day the City sent a copy of the adopted Ordinance to the Department. On December 24, 2007, Petitioner, who resides in Antioch Estates, a nearby residential subdivision located within the City, filed her Petition with DOAH. On February 7, 2008, she moved to amend the Petition and authorization to do so was granted by Order dated February 8, 2008. In her Amended Petition, she generally contended that the amendment is not in compliance because it is internally inconsistent with other Plan provisions in several respects; the amendment is not supported by adequate data and analysis; the property being reclassified is greater than 10 acres in size and therefore cannot qualify as a small-scale development amendment; the City did not analyze the financial feasibility of the amendment; and the City failed to conduct the necessary intergovernmental coordination and review. The parties have stipulated that Petitioner resides within the City and offered comments in opposition to the amendment prior to its adoption. As such, she is an affected person and has standing to challenge the amendment. At the hearing, Petitioner, who is a planner for the City of Destin but resides in Crestview, acknowledged that before she filed her initial Petition, her husband was contacted by a representative of Couch Ready Mix USA (Couch), a non-party who operates a concrete batch plant 0.8 miles southeast of Antioch Estates on Old Antioch Road, and with whom B & H would compete if the application is approved and a new concrete batch plant constructed on the site. However, Petitioner stated that she would have filed a petition even if her husband had not been contacted by Couch. Even so, it is fair to infer from the evidence that funding for Petitioner's counsel and two experts was provided by Couch. The Subject Property The subject property is a 9.98-acre parcel bordered on the north by I-10 and on the east, west, and south by property owned by B & H, all of which is designated RR and zoned Agricultural. Directly to the east of the larger B & H parcel is a 70-foot strip of vacant land owned by Rhett Enzor, a non- party whose land stretches from I-10 southward to the Gulf Power easement. The Enzor property also carries a RR land use designation and Agricultural zoning. Besides the 70-foot strip on the eastern side, Mr. Enzor owns the other property that surrounds the larger parcel to the south and west; however, the extent of that property is not of record. Just to the east-northeast and adjacent to the Enzor property is a residential subdivision (Antioch Estates) comprised of around 125 homes. The subdivision is divided into two sections - the larger section lying north of I-10 and the smaller section located just south of I-10. It is unclear whether the entire subdivision has 125 units, or if the southern portion alone has that number. In any event, Petitioner and members of the public who offered comments at the hearing reside in the southern portion of the subdivision and oppose the application. At its closest point, the western boundary of the subdivision (particularly lots 51-55) appears to be slightly more than 600 feet from the 9.98-acre parcel, but no more than 70 feet or so from the eastern boundary of the larger parcel. The distance to the proposed concrete batch plant, which will lie in the south-southwest end of the subject property, is slightly less than one-quarter mile. An elementary school (Antioch Elementary School) with an enrollment of around 800 students and 100 staff, built sometime after 1996, is located just east of Antioch Estates. A former borrow pit, Blocker Pit, lies south of the subdivision, while an active borrow pit, Garret Pit, lies around one-half mile or so southeast of the subdivision. Antioch Estates is classified by the City as Low Density Residential (LDR), while the school is in the Public Use land use category. Under FLUE Policy 7.A.3.4.a., the LDR category "is limited to residential uses, customary accessory uses, recreation uses, churches and places of worship and planned unit developments. Non-profit and civic organizations may be permitted by special exception. This category is intended for single family homes which may be developed with up to six (6) units per gross acre." Antioch Road appears to be a major arterial road running in a northwest-southeast direction (crossing over or under I-10) just east of the elementary school. (Less than a mile southeast of the school, Antioch Road becomes P.J. Adams Parkway.) All vehicles wishing to access the school, Antioch Estates, or the 9.98-parcel (as well as the larger B & H parcel) must do so by turning off of Antioch Road onto Garret Pit Road, a County-maintained road which intersects with Antioch Road just south of I-10. Within a short distance, Garret Pit Road intersects with Whitehurst Lane, a paved road which runs in a northwest direction from Garret Pit Road to the school and eventually makes a loop in the subdivision. At the Whitehurst Lane intersection, Garret Pit Road turns into a dirt road. Vehicles traveling to B & H's property continue south on Garret Pit Road for 300 feet or so until it intersects with Point Center Road, a privately-owned, unplatted and undedicated dirt road which runs directly west from Garrett Pit Road (and roughly parallel to I-10) through the Enzor strip and into the eastern side of the B & H property. From there, it appears that vehicles would turn south for a short distance on Borrow Pit Road (also referred to as Barrow Pit Road on certain map exhibits), another dirt road which eventually turns westward when it reaches the southern boundary of B & H property. The 9.98-acre parcel is around 66 feet north of Borrow Point Road. According to a B & H witness, Point Center Road and Borrow Pit Road are not actually roads, but are more akin to dirt trails which trucks now use to reach the excavating and land fill sites. Finally, Point Center Road passes approximately 140 feet south of, and parallel to, the southern boundary of Antioch Estates. When the subject property was annexed into the City, it retained the County FLUM designation of RR and zoning of Agricultural. The FLUM and zoning designations are retained until a plan amendment and rezoning is approved by the City. Under the County's Plan, residential uses in RR must not exceed one unit per five acres. There is currently an inactive borrow pit (covering around six acres) on the southern part of the 9.98-acre parcel, which extends westward into the larger parcel. B & H says it has no intention of resuming this operation. A small storage facility with "manholes," "pipe," and other "equipment" sits on the southwestern corner of the property, while a small wetlands area of less than an acre occupies the northwestern corner. To the west of the subject parcel on the northwestern corner of the larger parcel is an active, permitted 7.5-acre Construction & Demolition (C & D) landfill. There is some ambiguity in the testimony over the actual size of the landfill; however, in DEP's letter of intent dated March 17, 2006, which transferred Permit No. 0002800-002-SO from the original owner (Point Center, Inc.) to B & H, it stated that B & H is authorized to operate a 7.5-acre disposal unit until March 17, 2010. See Petitioner's Exhibit B. Although the useful life of the existing C & D landfill will eventually run out, at the hearing B & H's Project Manager stated that the company has an application pending with DEP to expand the landfill. The status of that matter is unknown. Expansion of a non-conforming land use, however, may be problematic. See Finding of Fact 21, infra. Besides the active C & D landfill, B & H is also periodically retrieving fill dirt from the larger parcel for site work operations, using up to 30 dump trucks for this work. According to a witness, the larger parcel still has around 3,000,000 cubic yards of usable dirt. Whether B & H is authorized to conduct borrow pit operations on the larger parcel is not of record. More than likely, once the landfill is used up (or no later than March 2010 when the permit expires unless it is renewed), the non-conforming use will have run its course, and the RR designation will apply to all future activities on the larger parcel. Although the entire B & H parcel was classified as RR, the borrow pit and C & D landfill are non-conforming uses under the County's Plan, presumably having been in existence before the County's Plan was adopted. A non-conforming use is one where the actual use of the property is not consistent with the future land use of the comprehensive plan or not consistent with the zoning of the property. There are very strict parameters as to whether or not you can change or modify a non-conforming use. Normally, changes to non-conforming uses are not allowed. A non-conforming use can not be expanded. B & H has acknowledged that it intends to seek annexation of the entire larger parcel into the City. With the exception of the C & D landfill, it is also planning to request a FLUM amendment from RR to IN for the remainder of the larger parcel. Thus, if the instant application is approved, it is fair to say that this action will be the forerunner of an effort to reclassify the entire 75.56 acres (except the 7.5-acre landfill) as industrial property, leaving only the 70-foot strip of Enzor property as a RR buffer between the industrial land and the subdivision. Petitioner's Objections Ten-Acre Maximum Petitioner's first objection is that the amendment does not meet the statutory criteria for a small-scale development amendment because the use involves more than 10 acres. See § 163.3187(1)(c)1., Fla. Stat. ("[t]he proposed amendment [must involve] a use of 10 acres or fewer"). Petitioner argues that parcel size is not the only determinant of what must be included in the amendment, and that any acreage that is integral to the design and operation of the proposed use is considered in determining whether the small scale development amendment criteria are met. Petitioner argues that B & H failed to include in the amendment all acreage that is integral to the design and operation of the proposed use. It is undisputed that the subject parcel is 9.98 acres, as determined by Kermit George, who sealed the property's survey for B & H, and as confirmed by City employee Teresa Gaillard by using the Autocad software program. Relying primarily upon site plans for the concrete batch plant filed by B & H with the City, however, Petitioner contends that the acreage (.0604 acres) related to a 66-foot driveway which will access the south side of the property from Borrow Pit Road, the acreage (1.607 acres) related to the use of Borrow Pit Road after turning off of Point Center Road, the acreage (.052 acres) for an easement necessary to run a County water line from B & H's southern property line to the smaller parcel, and the 150-foot buffer on the east side of the site (which will be required by the City when or if a concrete batch plant is permitted and built) must be included in the total amount of acreage. Excluding the buffer, Petitioner has calculated this additional land to total 1.7194 acres. Petitioner argues that even if only one of the above items is included, it would cause the size of the amendment to exceed ten acres and lose its status as a small-scale development amendment. It is fair to infer from the evidence that the dirt trail that makes up Borrow Pit Road, as well as the 66-foot trail from Borrow Pit Road to the subject property, are already being used by B & H trucks or other vehicles to access the landfill and borrow pit area. Therefore, this "infrastructure" will be used for other purposes, irrespective of whether development on the 9.98-acre parcel occurs. At the same time, the City's planning expert noted that good planning practices do not require that the land necessary to access a parcel with roads or utilities, and off-site buffering, be included in calculating whether the "use" of the parcel exceeds 10 acres. Except as to the buffering issue, this interpretation of the statutory language is more logical and reasonable than Petitioner's approach and is hereby accepted. Compare Parker v. St. Johns County et al., DOAH Case No. 02-2658, 2003 Fla. ENV LEXIS 34 at *12 (DOAH Dec. 17, 2002, DCA Feb. 27, 2003)("[i]t would be unreasonable to construe Section 163.3187(1)(c)1., Florida Statutes, as requiring local governments and applicants to calculate pro rata share impacts of off-site utilities, determine proportionate acreage based on those impacts, and apply those figures to the small scale acreage calculations"). The issue of whether the acreage related to the off- site buffering should be included as a use is not so clear cut. The City Land Development Code (LDC) requires that there be appropriate buffering between industrial and residential land uses. While the pertinent portion of the LDC is not of record, the evidence submitted by B & H and the City shows that an approximate 150-foot buffer will be necessary on the eastern side of the parcel. A City witness testified that the buffering "would normally take place upon the property being developed." However, because the use will occur in an existing borrow pit (which is 20 feet below the surface of the adjacent land), the City concluded that it would be more appropriate to place any required vegetative buffer and fencing off-site on the edge of the larger parcel, also owned by B & H. The buffering is an integral part of the project being placed on the parcel. In other words, the plant cannot be built without the required buffering. Therefore, the land on which the buffer and fence will be placed should be included as an integral part of the property's use. Compare St. George Plantation Owners' Association, Inc. v. Franklin County et al., DOAH Case No. 96- 5124GM, 1997 Fla. ENV LEXIS 37 at *18-20 (DOAH Feb. 16, 1997, Admin. Comm. Mar. 25, 1997) where three off-site absorption beds required to serve a wastewater treatment plant were considered an integral part of the facility, thereby increasing the size of the amendment's "use" from 9.6 to 14.6 acres. By adding the acreage for the 150-foot off-site buffer and fencing to the 9.98 acres, the use of the property that is the subject of the amendment clearly involves more than 10 acres and cannot qualify as a small-scale development amendment. Data and Analysis Petitioner also objects to the amendment as not being supported by relevant and appropriate data and analysis, as required by Section 163.3177(8) and (10)(e), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2). Paragraph (2)(a) of the rule requires that "plan amendments . . . shall be based upon relevant and appropriate data and the analyses applicable to each element." To be based on data "means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Id. Petitioner points out that B & H has acknowledged (by way of answers to Requests for Admissions and stipulated facts in its Motion in Limine) that it did not present to the City any studies or data related to noise, traffic, property values, air pollution, or protected natural resources that may be impacted by, or attributable to, a concrete batch plant being placed on the subject property. She also argues that to the extent an analysis was made in the City's staff report (as to infrastructure demands, protection of wetlands and natural resources, traffic, financial feasibility, and compatibility), it was based on incorrect data or was otherwise insufficient. The City's planning consultant prepared the staff report for the City, which summarizes the data and analysis supporting the amendment. See § 1, Joint Exhibit E, which is a six and one-half page staff report. The analysis was performed on the premise that a concrete batch plant would be located on the subject property. The staff report indicates that "[t]he purpose of the amendment is to provide for the development of a concrete batch plant." See page 1, § 1, Joint Exhibit E. The staff report contains in summary form the data and analysis supporting the amendment. Section 1 reflects that the City relied upon (a) FLUM map sheet 7-5, which indicated that all adjacent lands except I-10 on the north side are in the RR land use category while lands in the vicinity are classified as LDR, MDR, Conservation, Public Lands, Industrial, and Commercial; (b) data reflecting that the existing use of land on the subject property is vacant and undeveloped; the larger B & H parcel contains a C & D landfill and is otherwise vacant; adjacent properties include numerous single-family homes and subdivisions, existing and planned multi-family projects, planned commercial uses, and a school; and wetlands are located in the northwest corner of the subject property; (c) data showing that the type of development on the property will be a concrete batch plant; (d) data showing that the amendment will "result in a significant decrease in potential demands on all City infrastructure systems" (potable water, sewer, solid waste, recreation/open space, drainage, and traffic) because it will eliminate potential future demands for residential units that would otherwise be allowed on the RR property; (e) data reflecting that the change in land use is compatible and suitable with adjacent lands because the proposed facility is "not adjacent to any homes, schools or other similar uses," and the adjacent properties are owned by B & H; (f) data showing that the site is generally level with an average elevation of 100 feet; (g) data in the Soil Survey of Okaloosa County, Florida indicating that the soil "is suited for the planned use and development of the subject property"; (h) data reflecting that there is "a small area with wetland soils" in the northwest corner of the property which will not be developed; and (i) data indicating that there are no historic and archeological resources on the property. The consultant also reviewed the current Plan to determine if the plan amendment was consistent with all relevant provisions and concluded that the "amendment is consistent with and furthers the adopted Comprehensive Plan." He added that at the same time the small-scale amendment was being considered, the City was also considering a set of large-scale amendments to its Plan (presumably to the FLUM), and the data and analysis used for those amendments provide further support for the amendment being challenged. However, the nature of the large- scale amendments, and their underlying data and analysis, are not of record or otherwise identified. Finally, the City did not perform a concurrency analysis since it says that the Department no longer requires one at the amendment stage and instead defers that task until the development process begins. Whether the City specifically considered the concerns noted in the County's staff report recommending a denial of the land use change is not clear. However, the staff report discounted the notion that the amendment would encourage urban sprawl (or "spot zoning" in the words of the County staff report) since it promotes urban infill development. In response to a criticism by Petitioner, at hearing the City's consultant utilized further data from City sources, presumably available at the time the amendment was adopted, which indicate that the total available capacity for new customer usage from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the water requirements related to the proposed industrial usage. Without providing specifics, the consultant also opined that if the County is called upon to provide water to the site, as B & H now intends, it likewise has sufficient capacity to do so. In analyzing the impacts on infrastructure, the City assumed that a change from RR to IN, and the placement of a concrete batch plant on the property, would "result in a significant decrease in potential demands on all City infrastructure systems." The more persuasive evidence shows, however, that when comparing the new traffic that would be generated by potential residential units on the property versus a concrete batch plan, the latter would probably generate an increase of at least 110 vehicle trips per day, most by heavy trucks, which is more than five times the number of trips used in the City's analysis. In contrast, the staff report stated that the projected demands from development of the plant "[i]n theory, [could result in] up to 20 trucks trips per day" but this high a number was "not likely." In this respect, the data being used and analyzed were not correct or were incomplete, and the City's assumptions drawn from that data were flawed. Thus, as to these impacts, the amendment is not supported by adequate data and analysis. Although the staff report also failed to reflect the increased water usage that would be generated by the concrete batch plant, at hearing the City relied upon available data to show that both the City and County had sufficient capacity to provide water service for the plant. To a certain degree, compatibility and suitability overlap one another. "Compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as "a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition." This criterion is used to evaluate whether the proposed industrial land use is compatible with the uses on nearby or adjacent properties. On the other hand, subsection (128) of the rule defines "suitability" as "the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development." This criterion requires a determination of whether the industrial land use category is suitable in this particular area, given the existing characteristics of the land. After reviewing and analyzing data on the issue of suitability and compatibility, the City concluded that because B & H owned all the lands around the site (except on the northern boundary which adjoined I-10), "adverse issues [not otherwise identified in the report] associated with compatibility should be minimized." To further support its finding of suitability and compatibility, the report went on to state that the subject property "is not adjacent to any homes, schools or other similar uses." While the data used by the City (such as the FLUM map) were adequate, the City did not react to it in an appropriate manner. The City is correct in concluding that a change to an industrial land use category may be suitable on land where a non-conforming borrow pit already exists. However, because the proposed industrial use is in "relative proximity" to rural residential land on three of its sides, a large residential subdivision that begins no more than 200 yards away, an access road used by numerous heavy trucks which lies only 140 feet south of the subdivision, and a single outlet for all traffic exiting the subdivision, school, and B & H property, it is fair to infer that there will be a direct or indirect negative impact on those adjacent or nearby uses in contravention of Florida Administrative Code Rule 9J-5.003(123). In this respect, the amendment is not supported by adequate data and analysis. The City's recognition of the wetlands area on the subject property, and its finding in the report that such lands would be protected if development occurs, constitutes sufficient data and analysis and appropriate reaction thereto to satisfy the statute and rule. Petitioner also contends there was no analysis related to the fact that Point Center Road, the private road used to access the parcel, crosses wetlands "at the bottom of the hills," and the wetlands will be impacted by the change. As pointed out at hearing, however, the road has been there "forever," and filling of the adjacent wetlands occurred many years ago, or long before B & H acquired the property. Other than paving the road if the land change is approved, no other "filling" will occur, and the City's assessment of this matter was sufficient. All other contentions by Petitioner regarding the lack of sufficient data and analysis to support the amendment have been considered and rejected. Financial Feasibility Section 163.3177(2), Florida Statutes, requires that "the comprehensive plan shall be financially feasible." Relying upon this statute, Petitioner contends that the City failed to analyze whether the amendment was financially feasible. According to Petitioner's expert, when a FLUM change is made, a financial feasibility analysis must be made, which requires that the local government make a facility-based analysis to demonstrate whether the local government has sufficient capacity for the change. Specifically, she argues that there is no commitment from the County to provide water, and that the City did not analyze whether the City or County has the capacity to provide sufficient water to serve a concrete batch plant. Although the staff report addresses this issue in summary fashion and without specifics, at hearing the City's planning consultant testified, without contradiction, that the total available capacity from the City's water system is 3.2 million gallons per day, or far more than is necessary to meet the potential water requirements of a concrete batch plant on the site. He also opined, without contradiction, that if the County is called upon to provide the water, it likewise has sufficient capacity to do so. Based upon this analysis of available data, it is found that financial feasibility was adequately addressed by the city. Intergovernmental Coordination Petitioner next contends that the City did not evaluate and coordinate the amendment with the County, as required by Section 163.3177(4)(a), Florida Statutes, Florida Administrative Code Rule 9J-5.015, and the Intergovernmental Coordination Element (ICE) of the City's Plan. The statute provides in part that "[c]oordination of the local comprehensive plan with the comprehensive plans of . . . the county . . . shall be a major objective of the comprehensive planning process." The two most relevant provisions in the Plan on this subject, both very general in nature, are ICE Goal 13.A., which states that a goal of the Plan is to "[p]rovide coordination of this plan (ordinance) with Okaloosa County, other local governments (as appropriate) and other governmental agencies providing services within the City[,]" and ICE Objective 13.A.1., which provides that the City shall "review, on an annual basis, actions that have taken place to coordinate the Comprehensive Plan of Crestview with the Plans of other units of government and the Okaloosa County School Board." Although the County was given constructive notice of B & H's annexation request through the publication of a notice in a local newspaper on July 7, 2007, there is no evidence that the County was given specific notice that an application for a change in the FLUM had been filed by B & H and was being processed by the City, or that the County was afforded an opportunity to provide input into that process, if it chose to do so. Given the unique circumstances here, coordination is especially important since the subject property is surrounded on three sides by County land designated as RR with Agricultural zoning, the requested change would create a small industrial pocket in the middle of County RR land, and the County staff had just prepared a report recommending denial of the same change before the City annexed the property. While the cited statute, rule, and Plan provisions clearly do not contemplate that adjacent local governments have veto power over the City's ability to enact plan amendments, or that the City is required to accept alternative suggestions proposed by other entities, at a minimum they contemplate that notice of changes be given to adjacent local governments, and that those local governments be afforded the right to offer input, if any, prior to consideration of the amendment. See, e.g., City of West Palm Beach et al. v. Department of Community Affairs et al., DOAH Case Nos. 04-4336GM, 04-4337GM, and 04-4650GM, 2005 Fla. ENV LEXIS 192 at *34-35 (DOAH July 18, 2005, DCA Oct. 21, 2005). Because there was no coordination here, even minimal, the adoption of the plan amendment contravened the cited statute, rule, and ICE Goal 13.A. Internal Consistency Petitioner next argues that, contrary to the requirement in Section 163.3187(2), Florida Statutes, that there be "internal consistency" within a plan, the amendment is inconsistent with the Plan in the following respects: quality of life (Legal Element Section 1.04); compatibility (FLUE Policy 7.A.1.2.c.); school siting (FLUE Policy 7.A.9.1.); and wetlands impacts (Conservation Element Goal 11.A and Objective 11.A.2.). Petitioner first contends that the amendment is inconsistent with the stated general intent and purpose of the Plan, which is found in Section 1.04 of the Plan's Legal Element. That Element contains a "whereas" clause, the Plan's title, jurisdiction for adopting the Plan, the City Council's intent in adopting the Plan, and its effective date. The Element indicates that it is intended to implement Florida Administrative Code Rule 9J-5.001, which sets forth the broad purposes of Florida Administrative Code Rule Chapter 9J-5. Section 1.04 provides in relevant part that the Plan is intended to "maintain and improve the quality of life for all citizens of the City" and to protect and promote the "public health, safety and general welfare of its citizens." This salutary language is so broad and aspirational in nature that the undersigned does not construe it, or other provisions in the Legal Element, as an appropriate basis for finding an amendment not in compliance. Petitioner's argument is accordingly rejected. Petitioner also argues that the amendment is inconsistent with the Plan's requirement that compatibility of adjacent land uses be ensured. FLUE Policy 7.A.1.2.c. appears to be the only Plan provision specifically dealing with this issue and it provides that the LDC shall contain detailed provisions to "ensure compatibility of adjacent land uses." B & H and the City take the position that during the zoning and development phase of the process (rather than during the plan amendment stage) the LDC would be used to ensure compatibility, as required by the Plan. However, the issue of compatibility was analyzed by the City and presented to the City Council, and the staff report contains an entire section on compatibility and suitability. See Finding of Fact 30, supra; § 1, pages 3-4, Joint Exhibit E. Therefore, it is appropriate to consider at the plan amendment stage whether the change in land use is compatible with adjacent or nearby properties. As noted earlier, Antioch Estates is a low-density residential subdivision directly to the east of the B & H parcel. At its closest point, the subject property is around 200 yards from the subdivision. The distance from the subdivision to the proposed concrete batch plant is less than a quarter-mile. At the same time, the road over which the heavy trucks will travel to and from the industrial site is no more than 140 feet south of the southern boundary of the subdivision, and the connecting road eventually terminates at an outlet onto Antioch Road shared by traffic from the subdivision and school. Finally, B & H acknowledges that the proposed change here is a precursor to a request for annexation of the larger parcel into the City and a change in the land use on the larger parcel (except for the land fill) to industrial. This would leave the Enzor property (which is only 70 feet wide) as the sole remaining RR buffer with Antioch Estates. Given these considerations, the change in land use will not "[e]nsure compatibility of adjacent land uses," as required by FLUE Policy 7.A.1.2. Finally, Petitioner contends that the amendment is inconsistent with FLUE Policy 7.A.9.1.1., which provides that a "proposed school location shall be compatible with existing and projected uses of adjacent property." (Emphasis added). Since the Antioch Elementary School already exists, it appears that this provision has no application. For the same reason, Petitioner's contention that the amendment contravenes Section 1013.36(3), Florida Statutes, is also rejected. That statute requires that a new school should not be sited adjacent to factories or other properties from which noise, odors, or other disturbances would be likely to interfere with the educational program. While compatibility issues with existing schools are relevant when a map change is being made, they can only be considered in the context of Plan provisions which directly apply to those issues. Summary In summary, because the amendment involves a use of more than 10 acres, it does not meet the criteria in Section 163.3187(1)(c)1., Florida Statutes; the amendment is not supported by adequate data and analysis with respect to impacts on infrastructure (traffic) and compatibility; the amendment contravenes the statutory, rule, and Plan requirement that it be coordinated with other local governments; and it is internally inconsistent with FLUE Policy 7.A.1.2.c., which requires compatibility of adjacent uses. All other contentions raised by Petitioner have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small-scale development amendment adopted by the City by Ordinance No. 1370 on November 26, 2007, is not in compliance. DONE AND ENTERED this 21st day of April, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2008.
Findings Of Fact Parties The Department is the state land planning agency charged with the responsibility of reviewing plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes, also known as The Local Government Comprehensive Planning and Land Development Regulation Act (Act). The Association is a non-profit Florida Corporation, whose members reside, own property, or conduct business generally within the boundaries of the City of Gainesville and specifically the College Park Neighborhood (College Park). The purpose of the Association is to maintain and improve the quality of life for the residents of College Park. The Association submitted written objections concerning the plan during the review and adoption proceedings. Further, the Association participated more in the comprehensive plan development process than any other part of the City. The City is a local government required to adopt a revised comprehensive plan pursuant to Sections 163.3164(12) and 163.3167, Florida Statutes. City Background The City is located in north central Florida and is the county seat for Alachua County. The City encompasses approximately 20,000 acres, of which approximately 3,600 acres remains vacant. The City is approximately 83%-85% "built out". The development of the remaining 15%-17% vacant and undeveloped land will be limited by constraints of soil types, floodplains and wetlands. There is an acute lack of unimproved land suitable for higher density development, necessitating the major focus of the comprehensive plan's Future Land Use Element (FLUE) upon redevelopment of underdeveloped areas of the City. As of 1991, the City had an estimated population of 92,723, with a projected population in the year 2001 of approximately 97,116. The population is more densely concentrated around the major activity centers which include the Oaks Mall area, the University of Florida (University) campus and the older central part of the City. UNIVERSITY OF FLORIDA The University and the surrounding areas, make up an area described by the plan as the University Oriented Area. The area includes the College Park neighborhood and is one of the biggest activity centers in North Central Florida. The University is the major activity generator within the City limits. The University itself occupies approximately 1,100 acres within the City limits and has an enrollment of approximately 36,000 students. The data and analysis indicates that the students and faculty of the University will play a major role in the future development of the City. The University provides on campus housing for approximately 6,800 single students in dormitories located throughout the campus. The University also provides approximately 987 units for single parent and married students. Total housing provided by the University accounts for only 18-20% of the total student population and future development of on-campus housing will be limited due to the lack of room to build future dormitory facilities. The University is heavily dependent upon "off campus" housing offered by the areas surrounding the campus to meet student housing needs. SPECIAL TRANSPORTATION AREA In order to permit further redevelopment in the University Oriented Area, the City needed a mechanism to permit that further development in view of the potential degrading of level of service standards for traffic circulation. This was particularly so since the City had experienced traffic circulation deficiencies in the University Oriented Area, including College Park. To mitigate the traffic congestion in the vicinity of the University, the City proposed to make these areas a Special Transportation Area (STA). As defined by data and analysis, an STA is a compact geographic area for which the Florida Department of Transportation (FDOT), the Florida Department of Community Affairs and the local government, in consultation with the Regional Planning Council and the Metropolitan Transportation Planning Organization, mutually agree to set specific standards for level of service standards and use and transportation services in order to reach growth management goals. By letter dated August 30, 1991, the FDOT approved an Interim STA for the central city which included the University Oriented Area and College Park. The specific strategies to be developed in the Interim STA are set forth in Traffic Circulation Element (TCE) policy 1.1.7 and read as follows: The following specific strategies and guidelines shall be applied within the Interim STA consistent with the conditions of approval by FDOT: The level of service of all arterial roadways in the Interim STA shall be evaluated using the ART by FDOT, to evaluate such traffic variables as green flow in order to determine the exact condition of each facility. This evaluation shall be done cooperatively with FDOT and the Metropolitan Transportation Planning Organization (MTPO). The City shall coordinate with the MTPO and the FDOT through the Technical Advisory Committee of the MTPO to review strategies for improved level of service such as signalization, adjustments in green dedicated turn lanes, and roundabouts. The City shall limit the development of new drive service or sales to customers while in their automobiles. In the STA, the City shall prohibit additional or expanded drive constrained roadways. Drive facilities on other roads within the STA shall be regulated by special use permit. Criteria shall include minimum separation of 400 feet for such facilities and shall provide minimal interruption of the urban streetscape. COLLEGE PARK NEIGHBORHOOD College Park consists of approximately 145 acres and is located immediately north of the University. College Park is bordered on the south by West University Avenue, on the east by NW 13th Street, on the west by NW 20th Street, and on the north by NW 5th Avenue. College Park also includes a small nine block area immediately northeast of the main boundaries. This additional area is bounded by NW 5th Avenue on the south, NW 15th Street on the west, NW 7th Avenue on the north and NW 13th Street on the east. College Park is one of the oldest residential neighborhoods in the City and has long served as a student residential area offering low to moderate apartment housing and duplex units. The area has a friendly environment for walking and biking. It has a number of crossing points to the campus and close proximity. The width of the street and the amount of on constrain the speed of the traffic to bicycling speed and walking speed so that it is compatible for walking and bicycling. The southern and eastern outermost boundaries of College Park, University Avenue and NW 13th Street respectively, consist of a mixture of commercial and institutional land uses. The western boundary, NW 20th Street, is predominantly fronted by single family residential land uses. The northern border, NW 5th Avenue, consists of single family and duplex dwellings, small apartment buildings and institutional facilities which include several churches and their ancillary buildings. Many of the single family housing units that previously existed in the core of College Park have been converted into multi- unit or garden apartment dwellings to better accommodate demands for student housing. The innermost core of College Park is almost devoid of true single family homes and the single family neighborhood character of the neighborhood has long since evolved into a student community. The large number of streets in College Park are arranged in a traditional grid pattern. Most of the streets in the neighborhood do not have curbs or gutters. COLLEGE PARK DENSITIES In 1970 the City, by ordinance, adopted the Comprehensive Development Plan for the Gainesville Urban Area (1970 Plan). The 1970 Plan had the provision of a framework for logical development decisions, both by the private and public sectors as its primary goal. The 1970 Plan in several provisions addresses the framework for allowable densities in College Park. One of those provisions, Premise C, Principle 7 provides: High density residential development should be encouraged to locate near concentrations of non-residential activities such as the University of Florida and the Central Business District, and adjacent to the major traffic arteries. Another provision, Premise B, Principle 2 provides: mixed dwelling types and housing densities should be permitted in those areas where prior planning will permit such a mixture. Prior to the 1970 Plan, the density in the innermost core of College Park was unlimited. The City Commission, in preparing the 1970 plan, determined that unlimited densities were not appropriate anywhere in the City. The actual numerical densities for College Park were established at that time by zoning regulations with the highest density being 43 units per acre in the innermost core. With the creation of the first Growth Management Act in 1975, local governments were asked to develop comprehensive plans. The City used the opportunity to enhance the existing 1970 plan. The revised plan was entitled "Gainesville Comprehensive Plan 1980 to 2000" (1980 Plan). The 1980 Plan continued to promote higher densities around the University of Florida, including College Park. The 1980 Plan also contained guiding principles which directly assisted the improvement of public facilities in College Park and incorporated recommendations made in a special neighborhood study of College Park conducted in 1975. The recommendations supported a number of zoning categories in a transitional approach, with higher densities near NW 13th Street and West University Avenue and decreasing densities moving into the core of the neighborhood. The actual densities in College Park through the zoning code followed the density transition approach with the core of the neighborhood remaining a maximum of 43 units per acre. The City also, through the revised zoning ordinance, incorporated urban design standards which contained development within the neighborhood. With the 1985 amendment of the Growth Management Act, the creation and adoption of a comprehensive plan by the City became mandatory. The City used this opportunity to improve upon the already existing 1980 Plan. In a further effort to better plan for development in College Park, the City hired renowned urban planner Andres Duany. After surveying the College Park neighborhood and interacting with the residents of the neighborhood, Duany developed the Master Plan for College Park. The Master Plan made many recommendations as to how growth should proceed within College Park. Based on the recommendations of the Master Plan, the City's 1990 comprehensive plan created a land use category for College Park which allowed up to 75 units per acre in the neighborhood core. 1990 PLAN College Park is referenced in several provisions of the 1990 plan and supporting data and analysis. In the second paragraph of the section entitled "Redevelopment" on page 38 of the Future Land Use Data And Analysis Report (accepted in evidence as Petitioner's Exhibit 1.), the following information is provided: Neighborhoods north, east, and south of the University have a large percentage of student residents, but do not accommodate a large enough share of student housing. It is especially desirable to accommodate student housing close to the University to reduce the transportation demand that student housing in outlying areas places on the City and the University. As stated earlier, students at the University of Florida are currently included in the City's population figures. As new students enroll in the University dormitories, existing students move out. These are the students that should continue to be housed near the University. Over time, this will have the effect of reducing peak hour traffic problems and help to revitalize downtown. This would also provide the density that is needed to support the mass transit system. Future Land Use Element Policy 2.4.1 of the 1990 comprehensive plan provides that the City shall prepare special area plans for certain areas of the City. Specifically, the plan in Policy 2.4.2 provides: Special Area plans for the College Park Neighborhood, . . . shall be the first priority. The Future Land Use Element goes on to specifically address development in College Park in Policies 2.4.7, 2.4.8, and 2.4.9., respectively, as follows: The City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood. Residential development in the neighborhood shall be allowed in Type II buildings with 3.5 stories and Type III buildings with 2.5 stories (measured in the number of floors, each not to exceed 13 feet, floor to ceiling). * * * The following criteria shall be used to guide development in the College Park Neighborhood south of N.W. 5th Avenue: Type I buildings which allow retail, office and residential uses within four story buildings shall be allowed in areas designated Mixed Use-Low, Retail uses shall be restricted to the first 2 floors, office uses shall be allowed on all fourth floors and residential shall be allowed on the second through the fourth floor. The Type II buildings which allow office and residential uses within a 3.5 story building shall be allowed in areas designated Mixed Use-Residential, Office uses accessory to the residential use shall be restricted to the first floor. The Type III buildings which allow residential uses within a 2.5 story building shall be allowed in areas designated Residential Medium Density, Residential uses along with home occupations shall be the only uses allowed. * * * By June 1992, The City shall adopt Land Development Regulations and a Special Area Plan for the College Park Neighborhood based on a Master Plan being prepared for the neighborhood. The Special Area Plan shall be adopted by amending the Comprehensive Plan, Land Development Regulations shall establish the overall density and intensity of uses. A review of the Future Land Use Map (FLUM) indicates that the following densities and corresponding intensities are allowed in College Park: Residential Medium development is designated for land located in northern portions bordering 5th avenue at densities ranging from 8-30 units per acre. This designation also applies to predominantly all the areas in the 9 block extension of the northeast corner of College Park. Mixed Use Low Intensity development is designated along the borders of West University Avenue and NW 13th Street at a density of 8- 30 units per acre and a floor area ratio intensity of 1.00-2.00. In most areas this land use category extends into the neighborhood approximately one block. Public facilities development is designated for the one area in College Park located on NW 2nd Avenue between NW 16th Street and NW 17th Street. The maximum lot coverage in this category is 80%. Mixed use residential development is designated for the entire core area of College Park at a density of 75 units per acre with the intensity of office use not to exceed more than 10% of the total residential floor area per development. Residential low development is designated in the northwest portion of College Park at a density of 5.8 to 12 units per acre. Single family development makes up the remainder of the northwest portion of College Park at a density of 0 to 8 units per acre. The several land use designations found within the neighborhood are arranged so that the most intensive development (75 units per acre) is located in the innermost core of the neighborhood and the lesser intense development on the outermost core (8-30 units per acre). This density arrangement ensures that the adjacent neighborhoods with single family character will be buffered from the more intensive University oriented development of College Park. The major change in land use planning proposed by the 1990 plan which relates specifically to College Park is that within the mixed use residential land use category the maximum allowable densities in certain areas increased from 43 units per acre to 75 units per acre. Additionally, an intensity for commercial use of not more than 10% of the total residential floor area for the development was also added, although there is no allocation of solely commercial use in the interior of College Park. The mixed use residential category applies to approximately 36 acres within College Park. Objection to the increase in density and the addition of commercial intensity in this category forms the foundation of Petitioner's challenge. The mixed use residential category definition in FLUE Policy 2.1.1 of the comprehensive plan reads as follows: This residential district provides for a mixture of residential and office uses. Office uses that are complementary to and secondary to the residential character of the district may be allowed. An essential element of the district is orientation of structures to the street and the pedestrian character of the area. Office use as located within this district shall be scaled to serve the immediate neighborhood and pedestrians from surrounding neighborhoods and institutions. Land Development Regulations shall set the district's size; appropriate densities (up to 75 dwelling units per acre); the distribution of uses; appropriate floor area ratios; design criteria; landscaping, pedestrian, mass transit and bicycle access, and streetlighting. Land Development Regulations shall specify the criteria for the siting of public and private schools, places of religious assembly, and community facilities within this category when designated in a manner compatible with the adoption of a special area plan for that area. The intensity of office use cannot exceed more than 10 percent of the total residential floor area per development. As a review of the FLUE data and analysis reveals, land use analysis have been performed to determine the development and redevelopment possibilities within the City limits. Such analysis adequately supports the land use category designations on the FLUM. Specifically the analysis includes traffic circulation, potable water, natural groundwater aquifer recharge, sanitary sewers, stormwater and solid and hazardous waste. A plan policy is not required to contain actual data and analysis. Rather, the plan's Goals, Objectives, and Policies (GOPs) are required to be based on appropriate data and analysis. The Gainesville Urban Area Land Use Model was used to determine land use requirements. The model focused on market demand and existing and projected relationships between demand and developed space. Future land use and development was allocated by the model to nine market areas. College Park is located in Market Area 3. Data and analysis submitted by the City in support of the plan indicate that the City will require approximately 15 acres of commercial/office acreage through the year 2001. The data further indicates that there are 260 vacant acres which the FLUM designates for commercial/office usage. College Park contains approximately 5 vacant acres of land designated commercial/office land use, but no commercial/office use is required or needed in Market Area 3. The lack of projected need for the 5 acres of designated commercial/office land use in College Market would appear to suggest a conclusion that such additional commercial/office land uses should not be permitted in Area 3 and specifically College Park. However, such a conclusion ignores several other criteria which also must be factored into the analysis of the data. Much of the 260 vacant acres that could accommodate commercial/office land uses appears environmentally constrained. Therefore, in actuality many of the 260 acres will not accommodate future commercial/office development. An example of this can be seen in Market Area 5 which has a surplus of 108 vacant acres. Most of this land, however, is located near a hazardous waste Superfund site or near the airport. These areas clearly would not be appropriate for the provision of commercial/office land uses and justify planning for the accommodation of commercial/office land uses within College Park. The overall planning goals of the City include the redevelopment of urban areas and the promotion of infill and compact development. The City has made a policy decision that in order to further the regional and state planning goal of discouraging urban sprawl, commercial office development will be encouraged in College Park rather than outside of the City's central business core. Even with this new land use category, the actual increase in commercial uses will not be significantly different than what currently exists in College Park. It is not proven beyond fair debate that Policy 2.1.1 of the Comprehensive Plan and specifically the inclusion of such commercial/office land uses within College Park lacks the support of appropriate data and analysis. Traffic impacts in College Park that will be caused by the non residential uses allowed by the mixed use land use category have been analyzed by the City. The data and analysis which accompanies the TCE is replete with data concerning traffic circulation and traffic levels of service for the entire City, including College Park. The City readily acknowledges that certain areas of the City, including the University Oriented Area, have traffic circulation problems. In an effort to correct the traffic circulation deficiencies the City with the approval of FDOT created the Central City STA discussed earlier at paragraph 9. With the creation of the STA, the City analyzed the impacts of future development not only within College Park but within the entire University Oriented Community. This action establishes beyond fair debate that the City has analyzed traffic impacts. In terms of parking impacts, allowing the non-residential mixed uses will not increase the parking demands within College Park. There will be no significant increase of commercial land uses in the College Park Area over the commercial uses that already exist, absent compliance with concurrency management system requirements. If facilities are not in place at the time development of additional non-residential uses is desired, development can not proceed. Further, introduction of non-residential uses into College Park will not de-stabilize the neighborhood. Rule 9J- 5.006(4)(c), Florida Administrative Code, specifically encourages local governments to use mixed use categories, provided policies for implementing the mixed uses are included. The plan provides these in FLUE Policies 2.4.7 and 2.4.8., set forth above. These policies, combined with the requirement that any additional office use allowed in the core area of College Park be allowed only in places where people live, will directly prevent de-stabilization. Accordingly, it has not been shown to the exclusion of fair debate that allowing mixed uses in College Park will de- stabilize the neighborhood. The FLUE is required by Rule 9J-5.006(3)(c)7., Florida Administrative Code, to contain policies which implement standards or intensities of use for each land use category. In reviewing FLUE Policy 2.1.1, specifically the mixed use residential land use category, it is clear that the policy establishes a maximum density (75 units per acre) and an intensity (intensity of office use not to exceed 10% of the total residential floor area). The Mixed Use Residential Land Use category provides that the Land Development Regulations (LDRs) will control the actual implementation of such things as appropriate floor area ratios, design criteria and distribution of uses. Such language does not inappropriately defer implementation of the plan to LDRs. The Act requires that local governments adopt appropriate regulations to implement their plans. As required by Section 163.3202(2), Florida Statutes, such regulations "shall contain specific and detailed" provisions necessary to implement the adopted plan. The Plan should, and does, contain general criteria upon which LDRs will be developed. FLUE Policy 2.1.1, specifically the mixed use residential category, contains many general standards which will guide and narrow the focus of future LDRs. The City has recognized that the mixed use category criteria of FLUE Policy 2.1.1 must be implemented carefully. The plan in FLUE Policy 2.1.3 places a moratorium on zoning changes within the mixed land use categories until new LDRs are developed and the comprehensive plan amended to reflect the new LDRs. In the interim, the plan indicates that Chapter 29, City of Gainesville Code of Ordinances, shall regulate development. It is clear that Policy 2.1.1 in combination with other policies in the FLUE taken as a whole does not inappropriately defer implementation to LDRs. Increasing density from 43 to 75 units per acre in College Park will not necessarily result in overcrowding and undue concentrations of population. While the previous maximum of 43 units per acre permitted intense urban development, the increase to 75 units per acre requires compliance with design standards that were previously absent. FLUE Policy 2.4.8 establishes the design standards for use in conjunction with the 75 units per acre density. Notably, criteria in FLUE Policy 2.4.8 were incorporated into the plan at the request of the Association. Those criteria and other policies in the FLUE indicate that no undue concentration of population will be allowed. For example, as noted in Policy 2.4.7, set forth above, "[t]he City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood." It has not been proven to the exclusion of fair debate that Policy 2.1.1 and the FLUE will result in overcrowding of land and undue concentration of population. Densities greater than the 75 units per acre found objectionable in College Park by Petitioner exist in several locations as illustrated by depictions on the FLUM of other neighborhoods surrounding the University which currently have densities upwards of 100 units per acre. As discussed earlier, the City is 83%-85% buildout and development on much of the remaining undeveloped land will be constrained since the land that can be developed will only accommodate low density development. To accommodate City wide future growth, the data and analysis indicates that redevelopment of already existing underdeveloped areas is necessary. Further, redevelopment and infill of areas is required to discourage urban sprawl. The data and analysis indicates that College Park is one of the few remaining underdeveloped areas where redevelopment can occur. As a result, the higher densities proposed for College Park appear justified. Just as allowing mixed uses in College Park will not result in de- stabilization, the same is true of the proposed higher densities. Although the higher density levels would, if realized, exceed the projected population for College Park, planning for this area of the City must be combined within the overall planning decisions of the City as a whole. The data and analysis clearly provides that the City has limited areas which can accommodate future high density development. The population projections for the City indicate an increase in population of approximately 10,000 people over the next 10 years. This population increase will include University students. Sound planning demands that the City not rely on the County to bear the burden of housing this future population increase and thereby promote even more urban sprawl outside of the City with further traffic problems and demands for additional services such as mass transit, police, and fire protection. Also, the higher densities in College Park are in part an effort to provide developers with an incentive to develop this area rather than the outlying urban areas. This effort is consistent with the conclusions found in the FLUE data and analysis that the FLUE must accommodate high densities close to campus. The overall impact of the increased density will be less urban sprawl, and a more efficient use of existing infrastructure. Such sound planning decisions do not show to the exclusion of fair debate that the FLUE inappropriately overallocated or that the increase in density will de-stabilize College Park. It has been alleged that FLUE Objective 2.4 and Policies 2.4.3 and 2.4.4 are not supported by data and analysis which substantiate the need for redevelopment of College Park. FLUE Objective 2.4 provides: Redevelopment shall be encouraged to promote urban infill, improve the condition of blighted areas, to reduce urban sprawl and foster compact development patterns. Policy 2.4.3 provides: Before June 1992, the City shall adopt a special area plan for the College Park neighborhood to identify the appropriate uses and intensity of uses and to provide urban design guidelines for development in the area. In the preparation of the plan the City shall consider recommendations made by the College Park Neighborhood Plan prepared by Wallace, Todd and Roberts. Policy 2.4.4 provides: The City's Future Land use Plan shall accommodate increases in student enrollment at the University of Florida and the relocation of students from the urban fringe by designating appropriate areas for high density residential development and/or appropriate mixed use development within one and half mile of the University of Florida and J. Hillis Miller Medical Center. As previously noted, the FLUE contains data and analysis which supports the allowance of mixed uses at a density of 75 units per acre within College Park. The FLUE data and analysis also justifies the City's policy decision to increase the potential for redevelopment and infill development within College Park. Housing Element (HE) data and analysis further indicates the amount of dilapidated and substandard housing conditions within College Park. As indicated by HE Map 3, the area which includes College Park contains between 16% and 30% substandard housing units. As HE Appendix C Tables 46 and 47 clearly indicate, College Park contains approximately 1,342 housing units. Of these units 23.10% are substandard or dilapidated. Based on these figures, the FLUE and HE data and analysis indicates that College Park is one of the areas in the City which should be redeveloped. It has not been shown to the exclusion of fair debate that the challenged plan provisions are not supported by data and analysis or that redevelopment is not appropriate for College Park. FLUE Policy 2.1.1 is consistent with Rule 9J- 5.006(3)(c)2., Florida Administrative Code, and provides for compatibility of adjacent land uses. The mixed use residential category and the potential densities of 75 units per acre established by the policy does not appear incompatible with the adjacent single family neighborhoods when the existing land development patterns in the area are considered. Currently, College Park is buffered from the adjacent single family neighborhoods by several churches along 5th Avenue, and J.J. Finley Elementary School. The churches make up much of the northern border of College Park. 5th Avenue itself also works as a separator between College Park and the adjacent neighborhoods. Further, although there has been no showing that the previous 43 unit per acre density caused incompatibility problems, potential compatibility issues are addressed in FLUE Policies 2.4.1, 2.4.2, 2.4.3, 2.4.7, 2.4.8, and 2.4.9. These policies interact with each other and the FLUM to form a step down in densities. This step down approach means that the lowest allowable densities in College Park will be next to the adjacent neighborhoods. The step down approach of the FLUE policies also ensures that land uses within College Park are compatible. It has not been proven to the exclusion of fair debate that FLUE Policy 2.1.1 fails to provide measures which ensure compatibility with adjacent land uses. It is alleged that Traffic Circulation Element (TCE) Policies 1.1.8 and 1.1.9 are not in compliance with Section 163.3177(3)(a), F.S., and Rules 9J- 5.007(2)(a) and (b) 9J- 5.007(3)1. and 9J-5.005(1)2., Florida Administrative Code. TCE Policy 1.1.8 provides: The City shall designate areas on the FLUM for housing, which serves the needs of employees and students within walking distance of the University. TCE Policy 1.1.9 provides: Eighteen months from the adoption of this plan the City, in cooperation with FDOT and the MTPD, shall seek permanent designation of the Central City Interim Special Transportation Area or an extension of the interim designation or the elimination of the STA. These plan provisions outline principles for correcting deficiencies in traffic circulation. TCE Policy 1.1.8 directs the City to provide housing closer to the University so that fewer trips will be entering the area from further out in the urban area, thereby eliminating some of the traffic congestion that now exists. Further, TCE Policy 1.1.9 mentions the STA which was the City and FDOT solution to the problem of correcting existing deficiencies while still allowing growth. TCE Policies 1.1.4 through 1.1.10 combine to further provide controls to prevent degradation of traffic level of service standards. It is clear beyond fair debate that TCE Policies 1.1.8 and 1.1.9 outline principles for correcting deficiencies. Degradation of level of service standards as the result of increased densities in College Park has not been shown to the exclusion of fair debate. The Mass Transit Element (MTE) data and analysis indicates that the relevant transportation bus routes for College Park include Routes 2, 5, 6, 7, 8 and 9. As shown by Table 11 of the MTE data and analysis, each of these routes currently have at a minimum a 54% excess capacity available for ridership. In fact, Route 9 has a 90% excess capacity available for ridership. While TCE Policies 1.1.8 and 1.1.9 do not specifically provide for capital improvement implementation, each plan provision does not need to trigger capital improvements or concurrency requirements. The plan however does address concurrency and the triggering of capital improvements in the Capital Improvement Element (CIE). For example, CIE Policies 1.2.1, 1.2.6 and 1.2.7 establish how capital improvements through development orders will be implemented. In part, CIE Policy 1.2.1 provides: By June 1992, the City shall issue final development orders conditioned on the following: The availability of existing public facilities associated with the adopted LOS (level of service standards); The funding of public facilities (based on existing or projected funding sources) listed in the 5 year schedule of Capital Improvements that are needed to maintain adopted level of service standards. Petitioner has alleged that FLUE Objective 1.5 and Policy 2.4.4 are not in compliance with Rules 9J-5.015(1)(a) and 9J- 5.015(2)(b), Florida Administrative Code, in that the City failed to assemble and assess data from the Alachua County School Board and the University regarding the shifting of student populations. The referenced rules require a local government to coordinate with adjacent local governments, school boards and other units of local government. Such intergovernmental coordination should address specific problems and needs within each jurisdiction and attempt to resolve the problems and needs through better plan provisions. FLUE, Objective 1.5 provides that the City will: Ensure that the future plans of state government, the School Board of Alachua County, the University of Florida, and other applicable entities are consistent with this comprehensive plan to the extent permitted by law. FLUE Policy 2.4.4 is set forth above in paragraph 49. As established by data and analysis of the Intergovernmental Coordination Element (ICE), the City coordinated planning action with the University of Florida and the Alachua County School Board. The School Board did have concerns about the City's 1990 plan designation of J.J. Finely Elementary School as a recreational facility. Through the intergovernmental coordination process, the City and School Board resolved the issue. In terms of justifying a shift of student population, the purpose of FLUE Policy 2.4.4 is not to shift student populations. Instead, the City is attempting to accommodate future population and development within College Park since the growing University population will not be completely accommodated on campus. FLUE Objective 1.5 and Policy 2.4.4 are in compliance with the intergovernmental coordination requirements of Rule 9J-5, Florida Administrative Code. MTE Goal 1 and Objective 1.4 comply with requirements of Rules 9J- 5.008(2)(b) and 9J-5.008(3)(b)1., Florida Administrative Code, and demonstrate that projected mass transportation levels of service are consistent with the proposal to locate increased student populations in College Park. MTE Goal 1 provides that the City shall: Encourage increased transit usage to reduce the impacts of private motorized vehicles on the social, cultural and natural environment, and provide basic transit for disadvantaged City residents to employment, education facilities and basic services. Objective 1.4 provides: The future land use plan shall distribute land uses in a way that promotes transit ridership. Objective 1.4 satisfies the requirements of Rule 9J- 5.008(3)(b)1., Florida Administrative Code, that the plan contain an objective to address the provision of efficient mass transit. Further, as previously noted, there is more than adequate mass transit capacity in the City's system. Petitioner has failed to prove to the exclusion of fair debate that MTE Goal 1 and Objective 1.4 do not comply with provisions of Rule 9J-5, Florida Administrative Code. Petitioner alleges that Stormwater Management Element (SME) Objective 1.3 is not in compliance with Rule 9J-5.011(2)(b)1. and 2., Florida Administrative Code, in that the plan fails to address deficiencies in stormwater and drainage in College Park or coordinate the extension of, or increase in the capacity of those facilities to meet projected future needs. SME Objective 1.3 provides: The City shall ensure that proper and adequate stormwater management facilities are provided to meet future needs. Appendix C of the SME provides a stormwater need assessment list for the City. Need number 69 of the list specifically references College Park and the need to upgrade inadequate facilities. The City made the correction of these inadequate facilities a priority. In SME Policy 1.2.2, the plan calls for a Hogtown Creek Stormwater master plan to address deficiencies. The Hogtown Creek Master Plan is further accounted for in Table 14 of the Capital Improvements Element of the Plan. Petitioner has failed to prove to the exclusion of fair debate that SME Objective 1.3 fails to address deficiencies in stormwater and drainage in College Park. A final issue raised by Petitioner is whether FLUE Objective 1.4 is in compliance with Rule 9J-5.006(3)(c)3. and 4., Florida Administrative Code, requirements for provision of adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to drainage and stormwater management, open space and convenient on- site traffic flow and vehicle parking. FLUE Objective 1.4 reads as follows: Upon Plan adoption, the City shall ensure the provisions of services and facilities needed to meet and maintain the LOS standards adopted in this Plan. Between Plan adoption and implementation of the Concurrency Management System, the City shall adjust existing facility capacity to reflect the demand created by final development orders as they are issued. As addressed earlier, the Plan, and supporting data and analysis, make provision for adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to these matters. Petitioner has failed to show to the exclusion of fair debate that FLUE Objective 1.4 is not in compliance. State And Regional Plans The City's comprehensive plan is consistent with, compatible with, and furthers the state comprehensive plan construed as a whole. A comprehensive plan not only has to meet the minimum criteria of Rule 9J Administrative Code and be generally found consistent with the regional policy plan, it also has to further and promote the goals within the state comprehensive plan. The promotion of infill development, maximizing existing facilities, the separation of urban and rural land uses, and downtown revitalization, are efforts in furtherance of the state comprehensive plan. Higher densities within downtown areas are generally considered to be not only sound planning principles but they achieve many of the state's goals. The plan is also consistent with, compatible with, and furthers the North Central Florida Regional Policy Plan (Regional Plan). The North Central Florida Regional Planning Council's Regional Policy Goals IV, page 1, provides that "Urban sprawl should be minimized and urban development should be directed to a designated urban development area." Regional Policy Goals 16, 4 and 11, IV.2, lists six or seven goals dealing with future development directed to urban development areas. By increasing residential densities and high intensity urban areas, the City of Gainesville Comprehensive Plan implements regional as well as state Growth Management objectives. By providing opportunities for infill development, the plan increases development of potential existing urban areas, thus discouraging urban sprawl. This also serves to encourage the redevelopment of older areas and serves to direct new population growth to areas with existing facilities, thereby promoting the full utilization of those facilities before the expansion of new facilities.
Recommendation Based on the foregoing it is RECOMMENDED that a final order be entered finding the comprehensive plan of the City of Gainesville to be in compliance. DONE AND ENTERED this 2nd day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. In lieu of proposed findings, Petitioner submitted a document entitled "Suggested Preliminary Finding". The document consisted of 28 pages containing unnumbered paragraphs with no citation to the record established at the final hearing, contrary to requirements of Rule 22I-6.031(3), Florida Administrative Code. Nonetheless, Petitioner's submittal has been reviewed. Many of the assertions contained in the document appeared to be a cumulative restatement of Petitioner's arguments heard at the final hearing, or proposed findings which are cumulative or subordinate to the findings of the Hearing Officer. To the extent possible, the remainder of Petitioner's suggestions have been reviewed and are addressed by the foregoing findings of fact. Respondent City's Proposed Findings. 1.-3. Accepted. 4.-6. Rejected, legal argument. 7. Accepted. 8.-9. Rejected, not supported by weight of the evidence. 10.-20 Accepted. 21. Rejected, unnecessary. 22.-24. Accepted. 25.-28. Rejected, unnecessary. 29. Accepted. 30.-34. Rejected, cumulative. 35.-45. Accepted. 46.-47. Rejected, conclusion of law. 48.-49. Rejected, unnecessary. 50.-59. Accepted. 60. Rejected, argumentative. 61.-65. Accepted. 66. Rejected, argumentative. 67.-71. Accepted. 72.-74. Rejected, argumentative. 75.-84. Accepted. 85.-86. Rejected, cumulative. 87.-90. Accepted. 91.-92. Rejected, unnecessary. Accepted. Rejected, unnecessary. 95.-96. Accepted. 97.-98. Rejected, argumentative. 99.-106. Rejected, unnecessary and cumulative. 107.-114 Accepted, not verbatim. 115. Rejected, unnecessary. 116.-135. Accepted. 136.-139. Rejected, cumulative. 140.-142. Accepted. 143.-146. Rejected, cumulative. 147.-157. Accepted. 158. Rejected, no record citation. 159.-161. Subordinate to Hearing Officer's findings. 162.-166. Adopted in substance, not verbatim. 167.-172. Adopted in substance. 173.-180. Adopted by reference. Respondent Department's Proposed Findings. 1.-26. Accepted. 27.-50. Adopted in substance, not verbatim. 51.-58. Accepted. 59. Adopted by reference. COPIES FURNISHED: Linda Loomis Shelley, Esquire Secretary Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Steven Pfeiffer, Esquire General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Michael P. Donaldson, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Elizabeth A. Waratuke, Esquire Assistant City Attorney Post Office Box 1110 Gainesville, Florida 32602 Thomas D. Rider, 1624 Northwest 7th Place Gainesville, Florida 32603
Findings Of Fact Based upon all of the pleadings and evidence, including the stipulation by counsel, the following findings of fact are determined: Respondent, Marion County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. In this case, the County has adopted an amendment to its comprehensive plan, which is the subject of the dispute. Petitioners, Henry and Betty Prominski, are residents of Marion County and own a 16.5 acre tract of land on the southeast bank of Lake Weir in the southeastern portion of the County. The property is more commonly known as Orangewood Shores Subdivision. Until April 1994, the land was classified in the urban expansion category, which allows up to four residential units per acre. The County adopted its comprehensive plan in January 1992. After the plan was determined by the DCA to be not in compliance, the County eventually adopted certain remedial amendments on April 7, 1994, one of which changed the land use designation on petitioners' property from urban expansion to urban reserve. Under the new classification, only one residential unit per ten acres is allowed. A cumulative notice of intent to find the plan and remedial amendments in compliance was issued by the DCA on May 30, 1994. During the foregoing process, petitioners timely submitted oral or written objections to the County concerning the plan amendment, and thus they are affected persons within the meaning of the law. On September 14, 1994, the County, through its Staff Vesting Committee, issued Vesting Order No. 94-14, which granted petitioners' application for vesting determination on Orangewood Shores Subdivision. Among other things, the order determined that "the applicant has vested rights to complete the development (known as Orangewood Shores Subdivision) without aggregation of lots providing the applicant continues development activity in good faith." In this regard, petitioners have represented that they intend to "continue development activity in good faith," and they do not intend to vacate their plat. They also recognize that their land is vested from the plan amendment. Despite the lack of any viable issues regarding the development of their property, for the sake of "principle" only, they still wish to contest the de facto reclassification of their property. The foregoing language in the Vesting Order means that petitioners have vested rights to complete the development of their land notwithstanding the change of land use designation from urban expansion to urban reserve. The parties also agree that the effect of the Vesting Order is to vest the property from the comprehensive plan and the restrictions of the urban reserve area. Therefore, within the narrow context of the petition, the thrust of which is that the plan amendment prevents the subdivision's development, the issues raised therein are no longer viable, and petitioners do not have a cognizable interest in the outcome of this proceeding. The controversy is accordingly deemed to be moot.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the petition in this case on the ground the issues raised therein are moot. DONE AND ENTERED this 21st day of June, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 21st day of June, 1996. COPIES FURNISHED: Henry J. Prominski, Esquire Post Office Box 540 Weirsdale, Florida 32195-0540 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Thomas D. MacNamara, Esquire 601 Southeast 25th Avenue Ocala, Florida 34471-2690 James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The parties Respondent, Marion County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioner, William B. Hunt, owns property and resides within the County. Petitioner also submitted written comments to the County during the public hearing held on April 7, 1994, concerning the adoption of an amendment to the County's comprehensive plan. Therefore, he is an affected person within the meaning of the law and has standing to bring this action. The nature of the dispute In July 1991, the County initially transmitted its proposed comprehensive land use plan to the DCA. The DCA issued an Objections, Recommendations, and Comments (ORC) report for the County's plan on October 18, 1991. The County issued a response to the DCA's ORC report and adopted its comprehensive plan in January 1992. In April 1992, the DCA issued a notice of intent to find the comprehensive plan not in compliance. In an attempt to bring the County's plan into compliance, the DCA and County entered into a settlement agreement in March 1993. Pursuant to the agreement, the County was supposed to adopt certain remedial amendments to its comprehensive plan. In August 1993, the County adopted remedial amendments to its comprehensive plan. In October 1993, the DCA issued a notice of intent to find the remedial amendments not in compliance. In another attempt to bring the County's plan into compliance, the DCA and County entered into another settlement agreement in February 1994, and into an addendum thereto in April 1994. Pursuant to this agreement, the County adopted the agreed-upon remedial amendments to its comprehensive plan by Ordinance No. 94-12 on April 7, 1994. On May 30, 1994, the DCA issued a cumulative notice of intent to find the County's comprehensive plan and remedial amendments in compliance. On June 18, 1994, petitioner filed a petition to intervene with the Division of Administrative Hearings seeking to challenge the newly amended plan. After being advised that the petition was filed in the wrong forum, and that he incorrectly sought to intervene rather than to initiate a new proceeding, on December 13, 1994, petitioner filed a petition for an administrative hearing with the DCA. In his lengthy petition, which contains allegations running some fifty-four pages in length, petitioner has challenged the County's plan, as amended, in numerous respects. In his proposed order, however, petitioner has summarized his complaints into the following categories: (a) "many" of the plan objectives are not "specific or measurable," (b) "many" policies in the plan are not "adequate," (c) "many" of the required objectives and policies are not found within a particular element, (d) "many" policies in the plan defer implementation to the land development regulations, or to other kinds of regulations, that are to be adopted after the plan is adopted, (e) "publications" adopted by reference in the plan "have not been adequately cited," (f) "the plan does not control growth," and it "designates an over- allocation of land that can be developed at non-rural densities and intensities," (g) the plan violates the concurrency provision on State Road 200, and (h) the plan fails to include an analysis of projected mass transit level of service and system needs. Is the Plan, as Amended, in Compliance? Generally In attempting to prove the allegations in his petition, petitioner offered only the testimony of a DCA land use planning manager and the County's acting planning director, both of whom concluded that the plan, as amended, was in compliance. Because both witnesses generally refuted all allegations raised in the petition, and they disagreed with the theories advanced by petitioner through his direct examination, the record in this case clearly supports a finding that the plan, as amended, is in compliance. Notwithstanding this state of the record, the undersigned will address in general terms the broad issues raised in the petition, namely, the adequacy of the plan's supporting data and analysis, the adequacy of the goals, objectives and policies, the plan's internal consistency, and the plan's consistency with the state comprehensive plan. In addition, the undersigned will address the more specific objections raised by petitioner in his proposed recommended order. Adequate data and analyses Petitioner has alleged that the County's plan, as amended, is not in compliance because ten elements were not supported by adequate data and analyses, as required by Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Goals, objectives and policies Petitioner further alleged that the County's plan, as amended, is not in compliance because a number of the goals, objectives and policies (GOPs) contained in the various elements were inadequate in that they did not meet some of the requirements for GOPs in Chapter 9J-5, Florida Administrative Code. However, petitioner either abandoned these allegations or failed to prove them to the exclusion of fair debate. Internal consistency of plan Petitioner next alleged that the County's plan, as amended, is not in compliance because the internal consistency requirements in Chapter 9J-5, Florida Administrative Code, had not been met. Based on the findings of fact above, however, it is clear that the evidence failed to show to the exclusion of fair debate that the County's plan contained GOPs that were in conflict with each other, thereby rendering the plan internally inconsistent. Consistency with state comprehensive plan Petitioner has also alleged that the County's plan, as amended, is not in compliance because it is not compatible with, and does not further, a number of goals and policies of the State Comprehensive Plan, which are contained in Section 187.201, Florida Statutes. Petitioner failed to present any evidence showing that the County's plan, as amended, is not compatible with, and does not further, the State Comprehensive Plan. Other objections Petitioner has alleged in his proposed recommended order that some of the objectives and policies used by the County do not conform to the definition of those terms in Rule 9J-5.003, Florida Administrative Code. However, the evidence established that those definitions are not mandatory, they merely provide clarification for the local government, and the local government is free to use other definitions in its plan so long as they generally conform with the codified definition. Since the challenged objectives and policies generally conform with the above rule, and they provide the means for their achievement, they are found to be in compliance. Petitioner also alleges that some elements in the plan lack certain policies and objectives required by chapter 9J-5 and thus are deficient. The more persuasive evidence shows, however, that each of the challenged elements was adequate in terms of containing the necessary policies and objectives, and thus the requirements of chapter 9J-5 have been satisfied. Petitioner next alleges that many of the policies in the plan defer implementation to the land development regulations (LDRs) or other regulations that will not be adopted until after this plan becomes effective. Contrary to petitioner's assertion, however, some of the policies do not defer to the LDRs. In cases where they do, the LDRs must still be adopted in accordance with strict time limitations established by Chapter 163, Florida Statutes, and thus the necessary guidance in the plan is not lacking. Petitioner further contends that "publications" adopted by reference in the plan "have not been adequately cited." He specifically refers to policy 1.5 of the Traffic Circulation Element which adopts by reference, and without specific citation to a page number, a manual entitled Institute of Traffic Engineers Trip Generation. Through testimony of witness Manning, however, it was established that it is impractical and unnecessary for the local government to cite specific page numbers of the manual in the plan itself. Indeed, reference to the title of the manual is sufficient. Therefore, those provisions of the plan which incorporate by reference other publications without detailed citations are found to be in compliance. Petitioner has also complained that the plan does not control growth, and it over allocates land to non-rural purposes. In this regard, the County's future allocation of land use was made through the use of a multiplier, which is a planning technique for assessing future land use needs. This technique, and the accompanying calculations, were not shown to be unreasonable or to produce inappropriate results. It was further established that, in making its projections, the County exceeded the requirements of chapter 163. Indeed, in the words of a DCA planner, the County made one of the "most honest assessments of development of any plan in the state." Petitioner next asserts that policy 2.1 of the Traffic Circulation Element allows a 20 percent degradation to the existing level of service for two segments on State Road 200, and thus it "violates the concurrency provision of the act and Rule 9J-5." While the level of service for roads must be consistent with Department of Transportation standards to the maximum extent possible, if it cannot meet them, the local government may show justification for deviation from those standards. In this case, the County presented justification for deviating from those standards by 20 percent on State Road 200 as authorized by Rules 9J-5.0055(1)(d) and 9J-5.007(2)(b), Florida Administrative Code. Therefore, the questioned policy is deemed to be in compliance. Finally, petitioner alleges that the plan fails to include an analysis of projected mass transit level of service and system needs. Admittedly, such an analysis is not found in the plan. However, this is because the County does not operate a public mass transit system. In circumstances such as these, the County is required by chapter 163 to have a mass transit element in its plan, but it is not required to adopt an objective on this subject. Therefore, the absence of such an analysis does not render the plan not in compliance.
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 Marion County's comprehensive plan, as amended by Ordinance No. 94-12, is in compliance. DONE AND ENTERED this 29th day of June, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-7071GM Petitioner: 1. Partially accepted in finding of fact 2. 2-3. Partially accepted in finding of fact 1. 4a.-4c. Partially accepted in finding of fact 14. 4d. Partially accepted in finding of fact 15. 4e. Partially accepted in finding of fact 16. 4f. Partially accepted in finding of fact 17. 4g. Partially accepted in finding of fact 18. 5. Partially accepted in finding of fact 19. 6. Partially accepted in finding of fact 20. 7-9. Covered in conclusions of law. Respondents: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 6. 7. Partially accepted in finding of fact 7. 8. Partially accepted in finding of fact 9. 9. Partially accepted in finding of fact 10. 10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 13. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: William B. Hunt 3531 S. E. 30th Terrace Ocala, Florida 34471 Gordon B. Johnston, Esquire 601 S. E. 25th Avenue Ocala, Florida 34471-2690 Brigette A. Ffolkes, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
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 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.
The Issue Whether Building Permit No. 9020000827 issued by Monroe County, Florida, to Lawrence J. Bruno is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondent Lawrence J. Bruno is the owner of real property known as Lot 9, Block 20, Crain's Subdivision, on Grassy Key in unincorporated Monroe County, having purchased the property in 1985. Mr. Bruno has constructed a single family dwelling on that property, but the building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. At the time Mr. Bruno purchased the property in 1985, the lot was vacant, but there was a wooden dock in existence that was used by the neighboring lot owners. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. The wooden dock that was on the property at the time Mr. Bruno purchased his property was built before Monroe County adopted the following land development regulations and was a lawful, preexisting structure. Section 9.5, Monroe County Code, pertains to structures that were in existence at the time the subject land development regulations were adopted, but which do not conform to those regulations. Section 9.5-141, Monroe County Code, provides as follows: The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in nonconformities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-144 allows the continued existence and the ordinary repair and maintenance of nonconforming structures which predated the adoption of the subject land development regulations, and provides, in pertinent part, as follows: Authority to Continue: A nonconforming structure devoted to a use permitted in the land use district in which it is located may be continued in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair of registered nonconforming structures may be performed. Enlargements and Extensions: Nonconforming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or extended provided that the nonconformity is not further violated. . . . From the time he purchased the property in 1985 until the subject construction in 1991, Mr. Bruno made periodic improvements that constituted ordinary repair and maintenance that did not require a permit from Monroe County. In 1991, Mr. Bruno constructed a concrete pier on top of the existing wooden pier and rotated the terminal platform of the pier so that the terminal platform is now T-shaped. The concrete pier is on its own supports and is independent of the wooden pier, which still exists under the new concrete pier. Mr. Bruno contends that this construction in 1991, which was performed without obtaining a permit from Monroe County, should be construed to be ordinary maintenance and repair of the preexisting wooden pier. This contention is rejected. The greater weight of the evidence establishes that Mr. Bruno went beyond the mere maintenance and repair of the preexisting wooden pier and constructed a new concrete pier on top of the existing pier. After the construction of the concrete pier was completed, Mr. Bruno was cited by Monroe County for non-permitted construction. He thereafter applied to Monroe County for an after the fact permit. Monroe County subsequently issued Permit No. 9020000827, the permit that is the subject of this appeal. That permit authorized the construction that had been completed by Mr. Bruno, but it contained a restriction that no propeller driven boats are to be docked or used in the area of the pier. Prior to the construction that is at issue in these proceedings, Mr. Bruno could moor boats at the wooden pier because it was a preexisting nonconforming structure. The restriction contained in the building permit issued by Monroe County that prohibits the mooring of boats at the concrete pier has not been challenged by Mr. Bruno. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. By Final Judgment entered June 7, 1991, the Honorable Richard G. Payne, Judge of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, ruled in Stanton v. Monroe County, Case No. 91-20-035- CA-18, that Monroe County's four foot rule does not apply to swimming piers, concluding, in pertinent part, as follows at page five of the Final Judgment: 5. To the extent that the County's Comprehensive Plan and Land Development Regulations fail to provide for swimming piers ... the court finds that it is unreasonable to treat such piers as if they were docks at which boats are to be moored. Pursuant to the judicial review authority of Chapter 163, Fla. Stat., the court declares . . . [the four foot rule] inapplicable to piers at which boats are not to be moored. The County has adequate judicial remedies, including injunction, to prevent the use of such piers, including the subject pier, for the mooring of boats. Petitioner's concern is that boats will moor at the structure regardless of the restrictions on the permit and that these boats will cause degradation to the nearshore waters while crossing to deep water. Damage to the benthic communities in the vicinity of the Bruno's property and degradation to the nearshore waters would occur if propeller driven boats were to moor at the subject dock in violation of the restrictions that have been placed on the permit. Petitioner's concern is premised on the unwarranted assumptions that the structure will be illegally used at some point in the future by boats. Petitioner did not establish that damage would be done to the environment by this structure since the mooring of boats is prohibited. The greater weight of the evidence established that there was no risk of damage to sea grass beds or other benthic communities by the structure so long as there is compliance with the restrictions contained in the permit. Respondents presented evidence that several similar projects were permitted at approximately the same time as Mr. Bruno's permit without Petitioner filing an appeal. These shallow water structures are intended to provide personal access to the water, either because of heavy mangrove fringe or difficult access to the water. The Florida Department of Environmental Regulation, the Florida Department of Natural Resources, the U.S. Army Corps of Engineers and Monroe County have, in the past, issued permits for these type structures.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's issuance of building permit number 9020000827. DONE AND ENTERED this 11th day of June, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of June, 1993. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-6328DRI The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 11, and 12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 8 and 10 are subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being contrary to the greater weight of the evidence. While Mr. Metcalf testified that there was a boat moored at the structure when he inspected the structure in June 1991, there was no evidence as to whose boat he observed or the circumstances that resulted in the boat being moored at the structure. Mr. Bruno's testimony that he sold his boat and that he does not use the structure for the mooring of boats is persuasive. The remaining proposed findings in paragraph 9 are subordinate to the findings made. The following rulings are made on the proposed findings of fact submitted by Respondent Bruno. The proposed findings of fact in paragraphs 1, 2, 4, 5, 7 and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 3 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 3 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraphs 6 and 9 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James S. Mattson, Esquire Mattson & Tobin Post Office Box 586 Key Largo, Florida 33037 Lucky T. Osho, Esquire David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Attorney for Monroe County Post Office Box 1117 Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Bob Herman, Herb Rabin, Lorenzo Aghemo, Pat McNeese Monroe County Growth Management Division Public Service Building, Wing III 5100 Junior College Road West Stock Island Key West, Florida 33040 David K. Coburn, Secretary Florida Land and Water Adj. Commission Executive Officer of the Governor 311 Carlton Building Tallahassee, Florida 32301
The Issue The issues are whether the City of Jacksonville's (City's) Ordinance No. 2008-628-E adopted on September 9, 2008, which remediates Ordinance No. 2007-383-E, is in compliance, and whether Chapter 2009-96, Laws of Florida, renders this proceeding moot, as alleged by Petitioner, Dunn Creek, LLC (Dunn or Petitioner).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Petitioner is the owner of a vacant 89.52-acre parcel of property in Council District 11, which is located in the northern reaches of the City. More specifically, the property lies around four or five miles east of the airport and Interstate 95, just south of Starratt Road between Dunn Creek Road and Saddlewood Parkway, and within a "couple of miles of Main Street," a major north-south State roadway. Dunn submitted oral and written comments to the City during the plan amendment process. As such, it is an affected person and has standing to participate in this proceeding. The City is a local government that is subject to the requirements of Chapter 163, Florida Statutes. It adopted the amendments being challenged by Dunn. Except for the challenged plan amendment, the City's current Plan is in compliance. Intervenor Britt owns property and resides within the City. The parties have stipulated to the facts necessary to establish that she is an affected person and therefore has standing to participate in this matter. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the City. Background On May 14, 2007, the City adopted Ordinance No. 2007- 383-E, which amended the FLUM by changing the land use category on Dunn's property from LDR to RPI, which would allow an increase in the density and intensity of use on the property. (The LDR land use allows up to seven dwelling units per acre, while RPI is a mixed-use category that allows up to twenty dwelling units per acre if built to the maximum development potential.) On July 9, 2007, the Department issued its Notice and Statement of Intent finding that the Ordinance was not in compliance on the ground the map change was not supported by adequate data and analysis to demonstrate that the City would achieve and maintain the adopted LOS standards for the roadways within its jurisdiction. The Department further determined that the traffic study submitted by the City was not based on the maximum development allowed under the RPI category. On August 1, 2007, the Department initiated this case by filing a Petition, which tracked the objections described in its Notice and Statement of Intent. The City, Dunn, Department, and Britt later entered into settlement discussions. As part of the settlement discussions, Dunn submitted a revised traffic study and coordinated with other applicants for map changes to perform cumulative traffic impact studies. The parties eventually entered into a proposed settlement agreement which would limit development of the property to 672 condominiums/townhomes and 128,000 square feet of non-residential uses through an asterisk to the Plan. See Petitioner's Exhibit 1, p. 25. Also, the proposed settlement agreement noted that the data and analysis confirmed that certain future road improvements in the Capital Improvement Element (CIE) of the Plan would offset the traffic impacts of the new RPI land use. These were improvements to the East-West Connector (U.S. Highway 17 to New Berlin Road) and Starratt Road. Id. Finally, Dunn agreed to pay $4.3 million in "fair share money" to the City to offset the proportionate share of the development's traffic impacts. See Petitioner's Exhibit 6. The proportionate share agreement was intended to match the trip count anticipated from the RPI development. On September 3, 2008, the proposed settlement agreement and remedial amendment were presented to the City Council Land Use and Zoning Committee (Committee) for approval as Ordinance Nos. 2008-627 and 2008-628, respectively.3 At that meeting, the Committee heard comments from several members of the public who opposed the amendment, a Dunn attorney, and the City's Director of Planning and Development, William B. Killingsworth. The City Council member who represents District 11 and is a member of the Committee also spoke in opposition to the proposal. Based primarily upon data in a new traffic study prepared on August 28, 2008, by a member of Mr. Killingsworth's staff, and the opposition of the District 11 Council member, the Committee voted unanimously to revise the proposed settlement agreement and remedial amendment by changing the land use designation on the property back to LDR, its original classification. The revised settlement agreement was approved by Ordinance No. 2008- 627-E, while the remedial amendment changing the land use was approved by Ordinance No. 2008-628-E. The two Ordinances were then forwarded to the full City Council, which approved them on September 9, 2008. The revised settlement agreement was later executed by the City, Department, and Britt, but not by Dunn, and is known as the Sixteenth Partial Stipulated Settlement Agreement. See Petitioner's Exhibit 2. The essence of the revised agreement was that by changing the land use back to its original designation, the potential adverse impacts to transportation facilities would be resolved. Id. The remedial amendment package was transmitted by the City to the Department for its review. On December 18, 2008, the Department issued a Cumulative Notice of Intent to Find Ordinance Nos. 2007-383-E and 2008-628-E in compliance. On January 8, 2009, Dunn filed a Motion to Amend Petition to Intervene pursuant to Section 163.3184(16)(f)1., Florida Statutes. Because Dunn objected to the revised settlement agreement and challenged the remedial amendment, the parties were realigned, as reflected in the style of this case. On June 1, 2009, Senate Bill 360, engrossed as Chapter 2009-96, Laws of Florida, became effective. That legislation amends Chapter 163, Florida Statutes, in several respects. Among other things, it designates the City as a Transportation Concurrency Exception Area (TCEA).4 See § 163.3180(5), Fla. Stat. The new law also provides that plan amendments for land uses of a local government with a TCEA are deemed to meet the LOS standards for transportation. See § 163.3177(3)(f), Fla. Stat. Therefore, after a TCEA becomes effective, the Department no longer has the authority to review FLUM amendments in the TCEA for compliance with state-mandated transportation concurrency requirements. However, Senate Bill 360 contains a savings clause, which provides that "this subsection does not affect any contract or agreement entered into or development order rendered before the creation of the [TCEA] except as provided in s. 380.06(29)(e)." See § 163.3180(5)(f), Fla. Stat. The City, Department, and Britt contend that this provision "saves" the Sixteenth Partial Stipulated Settlement Agreement executed by them in November 2008, and that the Department still retains jurisdiction to consider the remedial amendment. Conversely, Dunn contends that the savings clause does not apply to the revised agreement, that the Department no longer has jurisdiction to review the challenged amendment, that the remedial amendment was not authorized, and that because the remedial amendment never became effective, the Department's Petition should be dismissed as moot. Objections to the Remedial Amendment Besides the contention that the proceeding is moot, Dunn raises three issues in its challenge to the amendment. First, it contends that the amendment is not supported by relevant and appropriate data and analysis related to traffic impacts and therefore is not in compliance. Second, Dunn contends that the amendment does not address the concerns raised in the Department's original Notice and Statement of Intent regarding the City's achieving and maintaining the adopted LOS of affected roadways. See § 163.3184(16)(f)2., Fla. Stat. Third, Dunn contends that due to procedural errors in the amendment adoption process, it was unduly prejudiced. Data and analysis Because almost all of the unresolved FLUM amendments in this case involved "traffic issues," on September 4, 2007, a Department employee, Melissa Hall, sent an email to counsel for a number of applicants, including Dunn, describing "what the department would be looking for in terms of traffic analysis." See Petitioner's Exhibit 12, p. 1. The email required those applicants to submit revised traffic studies. Id. Among other things, the applicants were advised that the revised traffic impact analysis for each amendment had to use "a professionally acceptable traffic impact methodology." Id. Dunn followed the requirements of the email in preparing its revised traffic study. At the time Ordinance No. 2007-383-E was adopted, based on total background traffic, which includes existing traffic plus reserve trips for approved but not-yet-built developments, eight road segments in the study area already failed to meet LOS standards. (LOS E is the adopted passing standard on those roadways.) The study area includes affected roadways within a two-mile radius of the boundaries of the proposed project site where project traffic consumes more than one percent of the service volume. If the Dunn project is built, six segments impacted by the development will continue to fail. According to the City's expert, as a general rule, an applicant for a land use amendment is not required to bring a failing segment back up to its adopted LOS. Rather, it is only required to pay its proportionate share of the improvements for bringing it up to compliance. The unique aspect of this case is that the City has simply reclassified the property back to what it was, LDR, when Ordinance No. 2007-383-E was adopted. At that time, the Plan was in compliance. In response to Dunn's contention that Ordinance No. 2008-628-E is not supported by relevant and appropriate data and analysis, the City, joined by the Department and Britt, first contends that, given the unique circumstances presented here, no data and analysis were required. Alternatively, it contends that there are sufficient relevant and appropriate data and analysis to support maintaining the LDR land use designation. The data and analysis include the traffic study prepared by Dunn's consultant in October 2007, the additional traffic analysis performed by the City staff just before the Committee meeting, and the testimony provided at the Committee meeting on September 3, 2008. At hearing, the City first pointed out that the RPI designation was never determined to be in compliance, Ordinance No. 2007-383-E never became effective, and the property has remained LDR throughout this proceeding. See § 163.3189(2)(a), Fla. Stat. ("[p]lan amendments shall not become effective until the [Department] issues a final order determining the adopted amendment to be in compliance in accordance with s. 163.3184(9), or until the Administration Commission issues a final order determining the adopted amendment to be in compliance"). Therefore, the City takes the position that Ordinance No. 2008- 628-E did not need to be supported by data and analysis because the LDR category was the land use designation on the property at the time of the adoption of Ordinance No. 2008-628-E. In the same vein, it argues that the remedial amendment is the equivalent of a repeal of the prior ordinance (2007-383-E), which would not require any data and analysis support. While at first blush these arguments appear to be plausible, the City could not cite any provision in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-55 that relieves a local government from the requirement that a plan amendment be supported by data and analysis. The City also argues that even if Ordinance No. 2008- 628-E is deemed to be a change in the land use (from LDR to LDR), the net impact of the change would be zero. This argument is based on the accepted testimony of Mr. Killingsworth, who stated that the City, Department, and Florida Department of Transportation (FDOT) agreed upon a methodology which entitled the City to give "credit" for uses permitted under the existing land use category.6 Under that methodology, the City subtracts the number of trips that the existing land use (LDR) generates from the additional trips generated by the proposed land use (LDR). Therefore, the net transportation impact of a change from LDR to LDR, in effect, would be zero. The methodology is described in Petitioner's Exhibit 15, a memorandum authored by Mr. Killingsworth and sent on October 4, 2007, to Dunn and other parties seeking map changes in this case. The memorandum stated that the methodology described therein was "developed in coordination [with] FDOT District 2" and "is the suggested methodology for use in determining traffic impacts of proposed land uses for the City." See Petitioner's Exhibit 15, p. 1. Mr. Killingsworth could not cite any provision in Chapter 163, Florida Statutes, or Chapter 9J-5 allowing for such a credit for traffic generated by a prior permitted land use in the data and analysis required for a FLUM amendment. At the same time, however, Petitioner could not cite any rule or statute that prohibits the Department from allowing this type of methodology when deemed to be appropriate. Even though it differed from the methodology described in Ms. Hall's earlier email by allowing credit for the existing land use, it was nonetheless "a professionally acceptable traffic impact methodology" approved by the Department and FDOT and could be used as data and analysis to support a change back to the property's original land use classification. Therefore, it constitutes relevant and appropriate data and analysis to demonstrate that the net traffic impact of the change in land use from LDR to LDR is zero. The City further argues that if it was required to provide other data and analysis, the traffic impacts of the new ordinance are offset by the two roadway improvements negotiated with the Department in the proposed settlement agreement for Ordinance No. 2008-627. See Finding 7, supra. Based upon the City staff's analysis, which is found in City Exhibit 3, the LDR land use generates less trips than the RPI land use. (This study was prepared a few days before the Committee meeting in response to an inquiry from a Committee member.) More specifically, page 3 of that exhibit reflects that there are 169 less afternoon peak hour trips for LDR than RPI with the development cap of 672 dwelling units and 128,000 square feet of non-residential uses. It is fair to infer, then, that if the proposed mitigation in the original settlement agreement offsets the impacts of the more intense RPI land use, the mitigation also offsets the impacts of the less intense LDR land use. City Exhibit 3 is a comparative calculation of the difference in vehicle trips generated by development of the property under the LDR category approved by Ordinance No. 2008- 628-E and the development of the property under the RPI category approved by Ordinance No. 2007-383-E. Dunn points out, however, that the exhibit does not show how the trips generated are distributed on affected roadways or how those trips, as they may be distributed, affect LOS of any roadways. Despite the fact that the data in Exhibit 3 are limited to trip generation data, and establish no facts relating to the LOS of affected roadways, they support a finding that more trips will be generated under the RPI designation than the existing LDR designation. Also, they provide further support for a finding that if the proposed road improvements offset the impacts of the RPI use, the mitigation will offset the impacts, if any, of the original LDR use. For data and analysis relating to the LOS of affected roadways, the City, joined by the Department and Britt, rely upon a traffic study performed by Dunn's traffic consultant, King Engineering Associates, Inc. (King). That firm prepared a transportation analysis dated November 19, 2007, for the purpose of supporting a mixed-use development on the property under the RPI category. See Petitioner's Exhibit 8. This study, however, does not apply to development of the property under the LDR category because it was based upon a mixed-use project which would allow for credit based upon the internal capture of some trips. (In other words, a portion of the new trips will be internal to the site, that is, trips between the residential and commercial land uses on the property.) Because of this, any reference to the King study and proposed mitigation therein was deleted from the revised settlement agreement. In this respect, the study does not support the amendment. The King study addresses impacted roadway segments, existing and background traffic, proposed traffic generated by the development, and LOS for the impacted roadways, as suggested by Ms. Hall in her email. Dunn's traffic engineer established that in the impacted study area, six out of eight roadway links will continue to fall below adopted LOS standards based upon existing traffic and that generated by the RPI development (segments 174, 372, 373, 374, 377, and 543). See Table 4, Petitioner's Exhibit 8. The study also identifies proposed roadway improvements in the vicinity of the project site that are intended to help cure or mitigate the failing standards. See Petitioner's Exhibit 8, p. 12. These improvements are listed in the CIE and will cost around $85 million. A "fair share" agreement has also been executed by the City and Dunn, which requires Dunn to pay more than $4.3 million to offset impacts of the RPI development. Those monies would be applied to improvements in Sector 6.1 (the North Planning District), which includes Starratt Road and the East-West Connector. The agreement notes that this contribution would offset the proportionate share of traffic impacts of the proposed RPI development. Notably, the City has already funded both the widening of Starratt Road and the improvements to the East-West Connector, U.S. Highway 17 to Berlin Road, through the Better Jacksonville Plan. Therefore, even if the Dunn fair share agreement is not implemented, the two improvements will still be made. According to Dunn's engineer, the completion of the four projects listed on page 12 of his traffic study, which are labeled as "mitigation," will not restore or cure any of the LOS failures that now exist on the six impacted segments in Table 4 of the study. However, two of the failing segments (373 and 543) may be "helped" by the projects listed on that page. Dunn's engineer also analyzed City Exhibit 3 and concluded that if the Dunn property is developed as LDR, rather than RPI, there would be potentially one less roadway segment (374) impacted by development, while five other segments would continue to fail. When the proposed mitigation in the King study is factored in, he opined that the East-West Connector may help two other failing segments. He further opined that if LDR development on the property occurs, probably three of the six impacted segments will continue to fail adopted LOS standards. Even so, the improvements identified in the CIE, including those already funded by the Better Jacksonville Plan, should offset the proportionate share of traffic impacts associated with any future LDR development.7 The foregoing data and analysis establish that the LDR land use category generates less traffic impacts than the originally-proposed RPI use; that a change from LDR to LDR should have zero effect in terms of traffic impacts; that even if there are impacts caused by a change back to LDR, the proposed mitigation in the CIE will offset the proportionate share of the impacts associated with any LDR use; that while it differed from other studies, a professionally acceptable traffic impact analysis was used by the City to support the remedial amendment; and that the proposed road improvements are fully funded without having to implement the fair share agreement. Finally, in adopting the amendment, the City has reacted to the data and analysis in an appropriate manner. Does the Remedial Amendment Resolve All Issues? Dunn also asserts that the amendment does not resolve the issues raised by the Department in its Notice and Statement of Intent dated July 9, 2007. Under Section 163.3184(16)(f)2., Florida Statutes, an affected party may assert that a compliance agreement does not resolve all issues raised by the Department in its original notice of intent. The statute allows an affected party to then address those unresolved issues in the realigned proceeding. In this case, Petitioner asserts that the Department's original objection that the change in land use would result in a lowering of the LOS in the study area was not addressed by the remedial amendment. In its Notice and Statement of Intent to find the amendment not in compliance, the Department cited the following rules and statutes as being contravened: Sections 163.3164(32) and 163.3177(3)(b),(6)(a), (8), and (10), Florida Statutes, and Rules 9J-5.005(2)(a) and (c), 9J-5.006(2)(a), (3)(b)1. and 3., 9J-5.016(4)(a)1. and 2., and 9J-5.019(3)(a) through (h) and (4)(b)2. Although these sources of authority were cited in a single generic notice of intent as a basis for objecting to all seventeen map changes, it is assumed that they have equal application to this proceeding. The cited statutes relate to funding of transportation projects and concurrency issues, while the rules relate to data and analysis requirements, concurrency issues, the capital improvement element, and required transportation analyses, all subjects addressed by Dunn at the final hearing. Assuming arguendo that the remedial amendment does not address all of the issues raised in the original notice of intent, Dunn was given the opportunity to fully litigate those matters in the realigned proceeding. Procedural Irregularities Rule 9J-5.004 requires that the City "adopt procedures to provide for and encourage public participation in the planning process." See also § 163.3181(1), Fla. Stat. ("it is the intent of the Legislature that the public participate in the comprehensive planning process to the fullest extent possible"). Dunn does not contend that the City failed to adopt the required procedures. Rather, it contends that the City did not follow those procedures during the adoption of the remedial amendment. More specifically, prior to the Committee meeting, Dunn says it spent "hundreds of thousands of dollars on top of the millions that [it] had spent previously, working for fourteen months in conjunction with the City and [Department]" so that the parties could resolve the Department's objections. Dunn argues that it was unduly prejudiced by the last-minute revisions made by the Committee and City Council, and that it did not have an adequate opportunity to respond. Dunn points out that a City Planning Commission meeting was conducted before the Committee meeting, and that body unanimously recommended that Ordinance Nos. 2008-627 and 628 be approved. It further points out that when the Committee met on September 3, 2008, the proposed revisions to the settlement agreement, the accompanying remedial amendment, and the new traffic data were not discussed until after the public comment portion of the meeting was closed. (The transcript of that meeting reflects, however, that after the new revisions and traffic study were raised, Dunn's counsel was briefly questioned about Dunn's traffic study and the density/intensity of the project. Also, according to Mr. Coe, a copy of the City's newly-prepared traffic study was given to a Dunn representative just before the Committee meeting.) For both public meetings, the City's published notices indicated that the purpose of the meetings was to consider the proposed revised settlement agreement and remedial amendment allowing a cap on the development of the RPI property through the use of an asterisk, as reflected in Ordinance Nos. 2008-627 and 2008-628. See Petitioner's Exhibits 16 and 17. Dunn contends that it had insufficient time between the Committee meeting on September 3, 2008, and the final City Council meeting on September 9, 2008, in which to review and evaluate the new traffic information and respond to the comments of the Committee member who supported the revisions. It also points out that, like other members of the public, Dunn's attorney was only given three minutes to present comments in opposition to the revised agreement at the City Council meeting on September 9, 2009. Notwithstanding any procedural errors that may have occurred during the City's adoption process, Dunn received notice and attended both the Committee and City Council meetings, it presented written and oral objections to the revised plan amendment prior to and at the City Council meeting on September 9, 2008, and it was given the opportunity to file a petition to challenge the City's decision and present evidence on the revisions at the hearing in this case. Savings Clause in Senate Bill 360 In support of its position that the matter is now moot, and that the savings clause in Senate Bill 360 does not "save" the revised settlement agreement executed by the City, Department, and Britt, on November 10, 2008, Dunn submitted extrinsic evidence to show the Legislature's intent in crafting a savings clause, which include four separate analyses by the Legislative staff (Appendices A-D); an article authored by the Bill's Senate sponsor (Senator Bennett) and published in the St. Petersburg Times on May 23, 2009 (Appendix E); a similar article authored by the same Senator and published in the Sarasota Harold-Tribune on June 11, 2009 (Appendix F); a seven-page letter from Secretary Pelham to Senator Bennett and Representative Murzin dated July 23, 2009, concerning the new law and a two and one-half page summary of the bill prepared by the Department (Appendix G); a power point presentation for the Senate Community Affairs Committee on October 6, 2009 (Appendix H); and an article published in the October 2009 edition of The Florida Bar Journal (Appendix I). The Florida Senate Bill Analysis and Fiscal Impact contained in Appendix A was prepared on February 17, 2009, and does not reference the relevant savings clause. A second Senate Bill Analysis and Fiscal Impact contained in Appendix B and prepared on March 19, 2009, merely acknowledges that the legislation includes a savings clause but provides no further explication. See App. B, p. 9. Appendix C is the Florida House of Representatives 2009 Session Summary prepared in May 2009, while Appendix D is a Summary of Passed Legislation prepared by the House of Representatives Economic Development and Community Affairs Policy Council on an undisclosed date. Neither document addresses the issue of what types of agreements were intended to be saved. Appendices E through I are guest newspaper columns, correspondence, a power point presentation, and an article in a professional journal. None are authoritative sources of legislative intent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2008-628-E, which remediates Ordinance No. 2007- 383-E, is in compliance. DONE AND ENTERED this 28th day of December, 2009, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2009.
The Issue The issues are (1) whether the City of Lake Worth (City) followed required statutory and rule procedures in adopting the height restrictions on pages 22 and 23 of the Future Land Use Element (FLUE) of the Evaluation and Appraisal Report (EAR) amendments, and (2) whether the adoption of the EAR-based amendments by the City more than 120 days after receiving the Department of Community Affairs' (Department's) Objections, Recommendations, and Comments (ORC) report renders them not in compliance.
Findings Of Fact The Parties Sunset is a Florida limited liability company whose principal address is 5601 Corporate Way, Suite 111, West Palm Beach, Florida. It owns property located at 826 Sunset Drive South within the City. See Sunset Exhibit 3. The property is currently classified on the FLUM as County Medium Residential 5.1 There is no factual dispute that Sunset is an affected person and has standing to participate in this proceeding. Ms. Hayes-Tomanek owns property within the City. She submitted comments regarding the height restrictions during the public hearing on October 20, 2009, adopting the EAR amendments. See City Exhibit 6, Minutes, p. 7. The City is a local government that administers the City's Plan. The City adopted the EAR-based amendments which are being contested here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the City. The Amendments On October 1, 2008, the City's EAR-based amendments were passed on first reading and transmitted to the Department. See Joint Exhibit 2. These amendments did not include any height-based restrictions on the three categories of residential property in the Plan: Single-Family, Medium-Density, and High- Density. These three categories make up around 75 percent of the City's total land area. According to Sunset's expert, height restrictions for those categories (which are less stringent than those later adopted and being challenged here) were then in the City's zoning ordinances. On January 14, 2009, the Department issued its ORC report regarding the EAR-based amendments. See Joint Exhibit 3. Objection 4 in the report stated in part that the "City has not adequately established its mixed use districts . . . because the mixed used categories do not establish the types of non- residential uses or the appropriate percentage distribution among the mix of uses, or other objective measurement. In addition, the General Commercial, Industrial, Public, Public Recreation and Open Space Future Land Use categories do not include the densities and intensities of use for these categories." Id. Sunset's expert points out that the ORC report, and in particular Objection 4, did not recommend any changes to the residential categories of property. Accompanying the ORC report was a document styled "Transmittal Procedures," which stated, among other things, that "[u]pon receipt of this letter, the City of Lake Worth has 120 days in which to adopt, adopt with changes, or determine that the City will not adopt the proposed EAR-based amendments." Id. The 120-day period expired on May 14, 2009. See Sunset Exhibit 15. The City initially scheduled an adoption hearing on May 5, 2009. See Sunset Exhibit 8. For reasons not of record, the EAR amendments were not considered that day. On June 25, 2009, then City Commissioner Jennings wrote Bob Dennis, Department Regional Planning Administrator, and asked whether the City could incorporate certain substantive changes into its EAR amendments between the first (transmittal) and second (adoption) readings. Among others, she asked if the following change to the EAR amendments could be made: Establish or change the maximum building heights in various land use classifications. During the master plan process, the city received public input regarding maximum building heights . . . . The height changes vary from a 10' reduction to a 25' reduction in different land use categories. The letter included an outline of the proposed changes in seven land use categories, including the three residential categories. See City Exhibit 2. In her deposition, Commissioner Jennings stated that around the time of the transmittal hearing in January 2008 she had requested that new height restrictions be incorporated into the EAR amendments, but based on conversations with City staff, she was under the impression that these changes could not be made at that time. See City Exhibit 9. By letter dated July 29, 2009, the Department, through its Chief of Office of Comprehensive Planning, responded to Commissioner Jennings' inquiry as follows: The proposed maximum building height changes identified in your letter are for the Single Family Residential, Medium Density Multi-family Residential, High Density Multi-family Residential, Mixed Use, Downtown Mixed Use, Transit Oriented Development, and the General Commercial land use categories. Contrary to the [FLUM] revisions discussed above, the City did transmit proposed amendments to Future Land [Use] Policy 1.1.3, including new and revised Sub-policies 1.1.3.1 through 1.1.3.11 concerning these land use classifications. Height limitations were proposed for the Mixed Use and Downtown Mixed Use land use categories. In addition, the Department's ORC Report includes an objection that the Mixed Use, Downtown Mixed Use, Transit Oriented Development, General Commercial, Industrial, Public, Recreation and Open Space land use classifications do not establish adequate densities and intensities of use for these categories. In preparing this letter, the Department notes that an intensity standard of 0.1 F.A.R. (floor area ratio) was proposed for the Recreation and Open Space category. To address the Department's objection, the Department recommended the City include densities and intensities for the listed land use categories and specify the percentage distribution among the mix of uses in the mixed use categories. Appropriate intensity standards for non-residential uses include a height limit and maximum square footage or a floor area ratio. Because the City transmitted amendments that included revisions to the residential and several non- residential land use categories and because the Department's ORC Report identified the need to include density and intensity standards for the mixed use categories and several non-residential land use categories, it would be acceptable for the City to revise the proposed height limitations previously submitted or to include height limitations for the other land use categories. As noted above, height alone is not a density or intensity standard. (Emphasis added) City Exhibit 3. This determination by the Department was just as reasonable, or even more so, than the contrary view expressed by Sunset's expert. After receiving this advice, the City conducted a number of meetings regarding the adoption of the EAR-based amendments, including a change in the height restrictions. On September 2, 2009, a Board meeting was conducted regarding the proposed new height restrictions. The Board voted unanimously to adopt the changes. The Minutes of that meeting reflect that a "special workshop" would be conducted by the Commission at 6:00 p.m., September 14, 2009, "to address height and intensity" changes to the EAR amendments. See City Exhibit 4, Minutes, p. On October 11, 2009, a "special meeting" of the Commission was conducted. Finally, on October 20, 2009, the City conducted the adoption hearing. There is no dispute that Petitioners appeared and presented comments in opposition to the proposed changes. By a 3-2 vote, Ordinance No. 2008-25 was adopted with the new height restrictions described on Table 1, pages 22 and 23 of the FLUE.2 See Joint Exhibit 4; Sunset Exhibit 6. This was 279 days after the City received the ORC report. The adopted amendments were then submitted to the Department for its review. Notices for each hearing (but not the special workshop) were published in a local newspaper. See City Exhibits 4, 5, and 6. Each advertisement indicated that one of the purposes of the meetings was to consider the "City's EAR- Based Amendments." No further detail regarding the EAR amendments was given. Sunset's expert acknowledged that local governments do not always provide more specificity than this in their plan amendment notices but stated he considers it to be a good planning practice to provide more information. On December 30, 2009, the Department issued its Notice of Intent to find the amendments in compliance. See City Exhibit 5. The following day, a copy of the Notice of Intent was published in The Lake Worth Herald. On January 19, 2010, Sunset timely filed a petition contending that certain procedural errors were committed by the City during the adoption process. This petition was twice amended prior to hearing. A petition was filed by Ms. Hayes-Tomanek on April 5, 2010. Petitioners' Objections Petitioners first point out that the City did not follow the requirement in section 163.3184(7)(a) that it "shall" adopt the amendments no more than 120 days after receipt of the ORC report. They contend that because the City failed to do so, this requires a determination that the EAR-based amendments are not in compliance. At hearing, Sunset also relied upon (for the first time) Florida Administrative Code Rule 9J-11.009(8)(e), which provides that "[p]ursuant to Section 163.3191(10), no amendment may be adopted if the local government has failed to timely adopt and transmit the evaluation and appraisal report- based amendments." The parties agree that the City did not adopt the EAR- based amendments until 279 days after receipt of the ORC report. According to the Department's Regional Planning Administrator, Bob Dennis, the Department took no action after the 120 days had run because the statute "gives no guidance as to what happens when a local government does take more than the prescribed time in the statute." See City Exhibit 8. He also indicated that the Department has no policy relative to this situation. Sunset's expert agreed that there is no penalty in the statute in the event a local government takes more than the prescribed time. Richard Post, a Department Planning Analyst, noted that local governments sometimes take longer than the statutory time periods to "send in adopted amendments, and the Department has taken no particular posture regarding their tardiness." See City Exhibit 7. He further noted that if a filing is late, as it was here, it does not affect the Department's review. As a safeguard, if an adopted amendment is transmitted to the Department after the statutory time period, it is reviewed by a planner to determine whether the information is still relevant and appropriate or has become "stale" and out-of-date. In this case, the Department reviewed the adopted amendments and, notwithstanding the passage of 279 days since the ORC report was received by the City, the amendments were found to be in compliance. For the reasons expressed in Endnote 3, infra, rule 9J-11.009(8)(e) does not prohibit the City from adopting the challenged amendments.3 While Petitioners stated that they have suffered prejudice because the new height restrictions will adversely impact the use of their property, there was no evidence that the delay in adopting the amendments affected their ability to participate in the planning process. Petitioners also contend that the City failed to follow statutory and rule procedures when it added the height restrictions between the first and second readings of the amendments. By the City doing so, Petitioners argue that rule 9J-5.004 was violated, which requires that the City "adopt procedures to provide for and encourage public participation in the planning process, including consideration of amendments to the . . . evaluation and appraisal reports[,]" and procedures to assure that the public is noticed regarding such changes and has the opportunity to submit written comments. Petitioners further argue that subsections 163.3191(4) and (10) were violated by this action. The first subsection requires the local planning agency (the Planning & Zoning Board) to prepare the EAR report (as opposed to the amendments) in conformity with "its public participation procedures adopted as required by s. 163.3181[,]" while the second subsection requires that the City adopt the EAR-based amendments in conformity with sections 163.3184, 163.3187, and 163.3189. They also argue that the notice of the adoption hearing violated section 163.3184(15) because it failed to describe the changes being made to the original EAR-based amendments. Finally, they contend the new height restrictions were not responsive to the ORC report.4 Petitioners do not contend that the City has failed to adopt adequate public participation procedures, as required by rule 9J-5.004. Rather, they contend that the participation procedures were violated, and that members of the public and other reviewing agencies, such as the Treasure Coast Regional Planning Council, were not given an opportunity to provide input on the new height restrictions. The record shows that, notwithstanding the content of the notice in the newspaper, both Petitioners were aware of new height restrictions being considered by the City prior to their adoption, and both were given the opportunity to participate at the adoption hearing. There is no dispute that Sunset submitted written or oral comments to the Commission prior to the adoption of the new height restrictions. Likewise, Ms. Hayes-Tomanek has closely followed the planning process for years (mainly because she wants the density/intensity standards on her property increased) and became aware of the new height restrictions well before they were adopted. The record further shows that the new height limitations were discussed by City officials before June 2009, when Commissioner Jennings authored her letter to the Department, and that written input on that issue was received from 239 residents. See Sunset Exhibit 9; City Exhibit 9. It is fair to construe these comments from numerous citizens as "public input." Even if there was an error in procedure, there is no evidence that either Petitioner was substantially prejudiced in the planning process. Finally, Petitioners' assertion that the new height restrictions are not responsive to the ORC report has been considered and rejected. See Finding of Fact 9, supra; City Exhibits 7 and 8.5
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 EAR-based amendments adopted by Ordinance No. 2008-25 are in compliance. DONE AND ENTERED this 24th day of March, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2011.
