The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2019.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE. AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-044 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this S 1 say of { (low Ane , 2018. Paula For Agency Clerk The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By U.S. Mail W. James Gooding, III, Esquire Gilligan, King, Gooding & Gifford, P.A. 1531 Southeast 36th Avenue Ocala, Florida 34471 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs Page 4 of 4
The Issue Whether Amendment 15-1ACSC to the Monroe County Comprehensive Plan, adopted by Ordinances 003-2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2015).1/
Findings Of Fact The Parties The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. Petitioners reside in, and own property within, the County. Petitioners submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Rockland owns the property subject to the Plan Amendment and is the applicant for the Plan Amendment.4/ The Navy owns the Station in the County and submitted oral or written comments concerning the Plan Amendment to the County during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. The Subject Property The Plan Amendment affects five different parcels of property in the Lower Keys. The parcels are owned by Rockland and are all either current or former mining sites with developed ancillary uses. Most of the property is vacant scarified land and the remainder supports warehousing and distribution facilities and related uses. Four of the parcels are located on Rockland Key (the Rockland parcels): two along U.S. Highway 1 and two on the north side of the Key along the Gulf of Mexico. Together, the four parcels total 29.59 acres. The existing FLUM designation of the parcels is Industrial, the primary purpose of which is to “provide for the development of industrial, manufacturing, and warehouse and distribution uses.” FLUE Policy 101.4.7. (2015).5/ The non-residential development potential of the property is between 322,235 and 773,364 square feet. The Industrial category also allows residential development at a density of one dwelling unit per acre (1du/acre) and a maximum of 2du/buildable acre.6/ Under the existing FLUM category, the Rockland parcels could be developed for a maximum of 47.3 residential units.7/ The parcel on Big Coppitt Key (the Big Coppitt parcel) is a narrow L-shaped 14.8-acre property bordering a former mining pit. The parcel runs north along the western boundary of Petitioners’ residential subdivision, then west along the Gulf of Mexico. Petitioners’ homes are located directly adjacent to the Big Coppitt parcel. The majority of the parcel (12.33 acres) is designated Industrial and the remainder (2.5 acres) as Mixed Use/Commercial Fishing (MCF). The non-residential development potential of the Big Coppitt parcel is between 161,498 and 365,816 square feet. Under the existing FLUM categories, the Big Coppitt parcel could be developed for a maximum of 43.7 dwelling units. Together, the subject property could be developed for a maximum of 91 dwelling units or 1.1 million square feet of non- residential uses, or some proportional mix thereof. The Plan Amendment The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial to Commercial. The Commercial FLUM category does not allow residential development, thus limiting future development of the property to between 193,341 and 644,470 square feet of non-residential uses. The Plan Amendment changes the FLUM designation on the Big Coppitt parcel to Mixed Use/Commercial (M/C), which allows residential development at a maximum density of 2-8du/acre. Under the M/C designation, the Big Coppitt parcel could be developed for a maximum of 213.6 dwelling units. Under the M/C designation, the Big Coppitt parcel has a non-residential development potential of between 64,599 and 290,697 square feet. However, the Plan Amendment also creates FLUE Policy 107.1.6, a sub-area policy applicable to the Big Coppitt parcel. The policy restricts development to deed- restricted affordable housing units (minimum mix of 10 percent median-income and at least 20 percent combination of low- and very low-income categories) and employee housing. The policy prohibits all non-residential development of the property, including dredging, and prohibits development of market-rate and transient-dwelling units. As adopted, the Plan Amendment authorizes development of up to 213 affordable housing units, no market rate units, no transient units, approximately 644,000 square feet of non- residential uses, and no dredging of the existing mining pit on the Big Coppitt parcel. Compared to the existing FLUM designations of the subject property, that is a potential increase of 114 units and a decrease of approximately 456,000 square feet of non-residential development. Naval Air Station Key West Rockland Key is located directly across U.S. Highway 1 from the Station. The Big Coppitt parcel is in close proximity to the Station. The Station’s Boca Chica airfield has been in operation since 1943. The primary mission at Boca Chica is to train pilots for air-to-air combat and to meet aircraft carrier qualifications. Fighter pilots from all over the country are trained for air-to-air combat primarily at the Station. The Station is uniquely situated to accomplish its training mission because there is little commercial air traffic and a large unencumbered airspace in close proximity to the airfield. Pilots who take off from Boca Chica quickly arrive in vast airspaces west and south of the Station for air-to-air combat training. This allows for very efficient use of fuel for training. Pilots train for aircraft carrier qualifications through field carrier landing practice at Boca Chica. Field carrier landing practice requires flying the same touch-and-go pattern at the field that the pilot would fly at an aircraft carrier. Each pilot in a squadron must fly the pattern accurately to a certain “readiness level” before the squadron can be certified to deploy. The readiness level is based on the number of sorties completed. One sortie includes at least one takeoff and one landing. Boca Chica typically operates Monday through Saturday from 8:00 a.m. to 10:00 p.m. However, the airfield operates outside of those hours, and on Sundays, when training missions dictate. The airfield averages 36,000 sorties per year. The Station is extremely valuable to the Department of Defense due to the size of the airspace, weather, lack of commercial traffic interference, and capacity for training missions. As the commanding officer of the Station, one of Captain Steven P. McAlearney’s primary duties is to protect the military value of the Station by protecting the airspace and existing operation capacity. As such, Captain McAlearney is concerned with encroachment by development incompatible with Station operations. Navy AICUZ The Navy has established a Military Installation Area of Impact (MIAI) surrounding the Station. In its most recent Environmental Impact Statement (EIS), the Navy has designated Air Installation Compatible Use Zones, or AICUZ, within the MIAI. The AICUZ are mapped as noise contours extending outward from the Station. Each contour indicates a range of day- night average noise levels (DNL) which are expected to impact properties within the specific contour. The AICUZ map is accompanied by a Land Use Compatibility Table (the table) containing recommendations for compatibility of various land uses within the specific noise contours. According to the table, residential land uses are “generally incompatible” in both the 65-69 and 70-74 DNL zones, also referred to as “noise zones.” The Navy discourages residential use in DNL 65-69 zones, and strongly discourages residential use in DNL 70-74 zones. The table deems residential use in the 75-79 DNL zone as “not compatible” and recommends local government prohibit residential use in those zones, also referred to as “incompatibility zones.” FLUE Policy 108.2.5 On May 22, 2012, the County adopted FLUE Policy 108.2.5, which took effect on July 25, 2012. The Policy, which is lengthy and is not set forth in full herein, generally prohibits applications to change FLUM designations within the MIAI after the Policy’s effective date. However, the Policy sets forth a procedure by which FLUM amendment applications “received after the effective date of this [p]olicy,” which increase density or intensity within the MIAI, may be approved. The procedure requires the County to transmit the application to the Navy for a determination of whether the property subject to the application is within a noise zone or an incompatibility zone, and whether the proposed density or intensity is incompatible with Station operations. If the Navy determines an application is within an incompatibility zone, the Policy requires the County to determine whether appropriate data and analysis supports that determination, and, if so, maintain the existing designation. Additionally, the Policy states that “Monroe County shall encourage the Navy to acquire these lands . . . for the protection of the public health, safety, and welfare of the citizens of the Florida Keys.” If the Navy determines an application is within a noise zone, the Policy requires the applicant to submit a supplemental noise study, based on “professionally acceptable methodology,” to establish whether the property is within a 65 DNL or higher zone. The Navy has nine months from receipt of the supplemental noise study to provide comments to the County concerning whether the noise study is based on professionally accepted methodology. After receipt of the Navy’s comments, the County may allow the application to proceed through the public hearing process, but must also adopt a resolution determining whether the property subject to the application is subject to the density and intensity restrictions within the MIAI. Affordable Housing The parties stipulated that the County has a demonstrated community need for affordable housing. A 2014 study projected a deficit of 6,500 affordable units in the City of Key West alone. In 2013, 51 percent of all County households were “cost-burdened,” meaning they paid more than 30 percent of their income for housing. That figure compares to 43 percent of cost-burdened households statewide. In the County, more than half of renters are cost- burdened and about 45 percent of home owners are cost-burdened. The lack of affordable housing in the County is exacerbated by four factors: high land values; geographic and environmental limitations on development; artificially- controlled growth of housing supply8/; and a tourist-based economy which drives lower paying service-sector jobs. The lack of affordable housing impacts not only the tourism industry, but also public-sector agencies, including the school system, emergency management, and even the County’s Planning and Environmental Resources Department. Lack of affordable housing makes it harder to recruit and retain school teachers, police, and firefighters, among other public-sector employees. High turnover rates in these areas present budget and personnel challenges for the County. The County has 460 existing affordable housing units for the very-low, low-, and median-income households, and 354 units for moderate-income households (a combination of rental and owner-occupied units). The greatest percentage of existing affordable housing units is deed-restricted for the moderate-income range. The yearly income limit for a three-person household (a couple with a child) in the very-low income category is $52,400; the low-income category is $83,800; and the median- income limit is $104,800. The moderate-income level maximum is $125,760 for rental, and $167,680 for owner-occupied. The County has approximately 700 affordable housing units to be allocated through the year 2023. The Plan Amendment Application On May 18, 2012, Rockland applied for a FLUM amendment which included the Rockland parcels, but did not include the Big Coppitt parcel. The application affected 141 acres (approximately 77 upland acres). As proposed, the application would have allowed development of a maximum of 385 dwelling units, 1,155 transient rooms (or spaces), and 500,940 square feet of non-residential uses, or some proportional mix thereof. The application was reviewed by the County’s development review committee (DRC) on November 27, 2012, which recommended denial due to the density and intensity impacts. Largely in response to the DRC’s concerns, and after lengthy discussions with County staff, Rockland submitted revisions to its application on April 1, 2014. The revisions greatly reduced the overall size, as well as the density and intensity impacts of, the proposed amendment. The revised application included the Big Coppitt parcel for the first time. Rockland revised the application again on June 17, 2014, to reflect the same proposed acreages and designations as the approved Plan Amendment. The application, as amended on June 17, 2014, was approved by both the DRC and the County Planning Commission. On December 10, 2014, the Board of County Commissioners voted to transmit the application to the state land planning agency, the Department of Economic Opportunity (DEO), pursuant to section 163.3184(4).9/ On March 20, 2015, DEO issued its Objections, Recommendations, and Comments (ORC) report objecting to the Plan Amendment, particularly the increased residential development potential on the Big Coppitt parcel. The ORC report included the following relevant objections: The Plan Amendment is inconsistent with policy 108.2.6, which adopts the MIAI Land Use Table, designating residential uses as “generally incompatible” in the 65-69 DNL zone. The Big Coppitt parcel lies within the 65-69 DNL zone where residential use is discouraged. The Land Use Table notes that “[a]lthough local conditions regarding the need for affordable housing may require residential uses in these [z]ones . . . . The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need for the residential use would not be met if development were prohibited in these [z]ones.” While the applicant supports the application by arguing that it will support a multi- family affordable housing development, nothing in the amendment provides assurance that any future residential development on this property will be for affordable housing. While there is a shortage of affordable housing in the County, especially in the lower keys, there is no shortage of vacant lots with density for housing. The County failed to establish that, “in the absence of viable alternative development . . . a demonstrated community need for the residential use would not be met if development were prohibited” on the parcel. The [Big Coppitt] parcel is entirely within the Coastal High Hazard Area (CHHA) and therefore, inconsistent with Monroe County comprehensive plan policy 101.14.1, which states, “Monroe County shall discourage developments proposed within the [CHHA].” The [Big Coppitt] parcel is very narrow and development of the area adjacent to the mine pools could have negative water quality impacts on the tidally influenced mining pool and is inconsistent with the Principles for Guiding Development in the Florida Keys. After consideration of the ORC report, Rockland submitted a text amendment application creating FLUE Policy 107.1.6 to restrict development on the Big Coppitt parcel to affordable housing. In addition, the sub-area policy requires noise attenuation of all habitable buildings in the 65-69 DNL to an indoor noise level reduction of at least 25 decibels (25dB). Similarly, the Policy requires noise attenuation of habitable buildings within the 70-74 DNL zone to achieve an indoor noise level reduction of at least 30dB. The amendment to the FLUM remained the same. The County adopted both the FLUM amendment, and the text amendment creating Policy 107.1.6, on February 16, 2016, and forwarded the Plan Amendment to DEO for review, pursuant to 163.3184(4)(e)2. On April 25, 2016, DEO issued a notice of intent to find the Plan Amendment “in compliance.” The instant Plan Amendment challenge followed. Petitioners’ Challenge Petitioners allege two bases on which the Plan Amendment should be found not “in compliance.” First, Petitioners allege the Plan Amendment is internally inconsistent with Plan Policies 108.2.5 and 101.14.1, in violation of section 163.3177(2), which states that “[c]oordination of the several elements of the [Plan] shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent.” Second, Petitioners allege the Plan Amendment is inconsistent with the Principles, in violation of section 163.3184(1)(b). That statute requires all plan amendments in the Keys Area of Critical State Concern (ACSC) be consistent with the applicable principles. Policy 108.2.5 Petitioners allege that Policy 108.2.5 applies to the Plan Amendment because the application was filed after Policy 108.2.5 took effect on July 25, 2012. If proven, Policy 108.2.5 would require the applicant to follow the procedure for approval of residential density in the noise zones, including submission of a supplemental noise study and a legislative finding as to whether the Plan Amendment is subject to the density and intensity restrictions in the MIAI. Rockland’s original application for the Plan Amendment was made on May 18, 2012, prior to the effective date of Policy 108.2.5. Petitioners argue that the revised application on April 1, 2014, should be considered a new application subject to Policy 108.2.5 because it was made two years after adoption of the Policy and contained significant substantive changes to the original application. In essence, Petitioners argue that the 2014 revised application (and subsequent changes thereto) constitute a new and different application than the May 2012 application. Petitioners introduced no evidence that any administrative provision of the Plan, or any other County ordinance or regulation, provides for expiration of an application for plan amendment after a specified time period. The April 2014 changes were filed with the County in strike-through/underline (legislative format) as “revisions to its FLUM amendment application.” The June 17, 2014, changes were likewise filed in legislative format as “additional revisions to its FLUM amendment application.” One of the main reasons for delay between the May 2012 application and the April 2014 revisions was County staff’s recommendation that the Rockland parcels be rezoned to the Commercial-2 (C-2) zoning category, a category which was being created and would be consistent with the Commercial FLUM category. Staff recommended the category because it would prohibit residential uses but allow Rockland to proceed with plans for commercial and retail development of the formerly industrial property. The C-2 zoning category was not finalized and adopted by the County until early 2014. The application, as revised in June 2014, was not reviewed again by the DRC, but was set for hearing by the Planning Commission on August 27, 2014, and considered by the County Commission on December 10, 2014, which approved the application for transmittal. Rockland was not required to pay a second application fee for the revised application in 2014; however, the County charged Rockland an additional fee to cover a second hearing before both the Planning Commission and the County Commission. The County’s director of planning and environmental resources, Mayte Santamaria, testified that it is not unusual for delays to occur between initial applications for, and final adoption of, plan amendments. Some applicants request an application be put on hold while they address issues with surrounding property owners. Other times, significant changes are made in the interim, especially in response to concerns raised by the state land planning agency, which take time to draft and refine. In neither case does the County consider the passage of time to require a new application. Likewise, the revisions do not require a new application, even revisions which remove property from, or add property to, a FLUM amendment application. Clearly, Petitioners believe it was unfair to allow the application, which was “on hold” for almost two years and revised in 2014 to exclude some of the original property, and include additional property adjacent to their subdivision, to proceed without applying newly-adopted plan policies. Despite their belief, Petitioners did not prove that the application, as revised in April and June 2014, was a new application subject to Policy 108.2.5. Policy 101.14.1 Next, Petitioners allege the Plan Amendment is internally inconsistent with Policy 101.14.1, which provides that the “County shall discourage developments within the Coastal High Hazard Area (CHHA).” The subject property is located entirely within the CHHA. In fact, Ms. Santamaria testified that “almost the entire Keys is in the [CHHA],” with exception of some areas just along U.S. Highway 1 in the Upper Keys. The Plan Amendment reduces total potential non- residential intensity on the subject property, while increasing potential residential density. The Plan Amendment also eliminates future transient (hotel and motel) density, as well as future dredging and other industrial uses. “Development” is defined broadly in section 380.04 as “the carrying out of any building activity or mining operation, the making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.” § 380.04(1), Fla. Stat. The definition specifically includes “a change in the intensity of use of land, such as an increase in the number of dwelling units . . . on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units . . . on land.” § 380.04(2)(b), Fla. Stat. Notably, the definition also includes “mining or excavation on a parcel” and “deposit . . . of fill on a parcel of land.” § 380.04(2)(c) and (d), Fla. Stat. Two expert witnesses testified regarding whether the Plan Amendment violates the County’s policy to discourage development within the CHHA. In Ms. Santamaria’s opinion, the Plan Amendment, on balance, is consistent with the policy to discourage development because it prohibits residential development of the Rockland parcels, and prohibits all but affordable housing units on the Big Coppitt parcel. In addition, the amendment prohibits future uses which are within the statutory definition of “development,” such as industrial, marinas, market-rate housing, and residential subdivisions. Max Forgey, expert witness for Petitioners, opined that the increase in density from 91 to 213 units is “as far from discouraging as I could imagine.” Overall, the Plan Amendment reduces non-residential intensity while increasing residential density. Given the totality of the evidence, it is reasonable to find that the Plan Amendment complies with Policy 101.14.1 by discouraging many types of development allowed on the property under the existing FLUM designations. Principles for Guiding Development Petitioners’ final argument is that the Plan Amendment is inconsistent with the Principles in the Keys ACSC. The property subject to the Plan Amendment is located in the Keys ACSC, thus, subject to the Principles in section 380.0552(7), which reads as follows: (7) PRINCIPLES FOR GUIDING DEVELOPMENT.— State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as specified in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which is adopted and incorporated herein by reference. For the purposes of reviewing the consistency of the adopted plan, or any amendments to that plan, with the principles for guiding development, and any amendments to the principles, the principles shall be construed as a whole and specific provisions may not be construed or applied in isolation from the other provisions. However, the principles for guiding development are repealed 18 months from July 1, 1986. After repeal, any plan amendments must be consistent with the following principles: Strengthening local government capabilities for managing land use and development so that local government is able to achieve these objectives without continuing the area of critical state concern designation. Protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. Protecting upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. Ensuring the maximum well-being of the Florida Keys and its citizens through sound economic development. Limiting the adverse impacts of development on the quality of water throughout the Florida Keys. Enhancing natural scenic resources, promoting the aesthetic benefits of the natural environment, and ensuring that development is compatible with the unique historic character of the Florida Keys. Protecting the historical heritage of the Florida Keys. Protecting the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection, treatment, and disposal facilities; Solid waste treatment, collection, and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks, wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Electric Co-op; and Other utilities, as appropriate. Protecting and improving water quality by providing for the construction, operation, maintenance, and replacement of stormwater management facilities; central sewage collection; treatment and disposal facilities; the installation and proper operation and maintenance of onsite sewage treatment and disposal systems; and other water quality and water supply projects, including direct and indirect potable reuse. Ensuring the improvement of nearshore water quality by requiring the construction and operation of wastewater management facilities that meet the requirements of ss. 381.0065(4)(l) and 403.086(10), as applicable, and by directing growth to areas served by central wastewater treatment facilities through permit allocation systems. Limiting the adverse impacts of public investments on the environmental resources of the Florida Keys. Making available adequate affordable housing for all sectors of the population of the Florida Keys. Providing adequate alternatives for the protection of public safety and welfare in the event of a natural or manmade disaster and for a postdisaster reconstruction plan. Protecting the public health, safety, and welfare of the citizens of the Florida Keys and maintaining the Florida Keys as a unique Florida resource. (emphasis added). Petitioners’ challenge, as set forth in the Amended Petition, focuses on subsections (7)(a), (b), (e), and (h)4. Petitioners introduced no evidence to support a finding that the Plan Amendment is inconsistent with either subsection (7)(a), (b), or (e) regarding the local government’s capability to manage land use and development, protect shoreline and marine resources, and protect water quality, respectively. 1. section 380.0552(7)(h)4. Petitioners argue that the Plan Amendment will adversely impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station, in violation of subsection (7)(h)4. A portion of the Rockland parcels lie within the 75-79 DNL zone, in which the Navy deems residential development incompatible and recommends that the local government prohibit it. The Plan Amendment changes the FLUM designation of the Rockland parcels from Industrial, which allows residential development at 47.3du/acre, to Commercial, which does not allow any residential development. Thus, the Plan Amendment prohibits future residential development in the 75-79 DNL zone as recommended by the Navy. A portion of the Rockland parcels and the southern end of the Big Coppitt parcel lie within the 70-74 DNL zone. The remainder of the Big Coppitt parcel lies within the 65-69 DNL zone. The Navy deems residential development in the 70-74 and 65-69 DNL zones as “generally incompatible,” but not prohibited. The AICUZ table strongly discourages residential use in the 70-74 DNL zone, and discourages residential use in the 65-69 DNL zone. With respect to the 65-69 and 70-74 DNL zones, the AICUZ contains the following recommendations: The absence of viable alternative development options should be determined and an evaluation should be conducted locally prior to local approvals indicating that a demonstrated community need would not be met if development were prohibited in these zones. * * * Where the community determines that these uses must be allowed, measures to achieve an outdoor to indoor [noise level ratio or] NLR of at least 25 decibels (dB) in DNL 65 to 69 and NLR of 30 dB in DNL 70 to 74 should be incorporated into building codes and be in individual approvals . . . . Normal permanent construction can be expected to provide a NLR of 20 dB, thus the reduction requirements are often stated as 5, 10, or 15 dB over standard construction . . . . The Plan Amendment, through the sub-area policy, prohibits residential dwellings on that portion of the Big Coppitt parcel within the 70-74 DNL zone. As such, the Plan Amendment prohibits residential use where the Navy strongly discourages said use. The majority of the Big Coppitt parcel lies within the 65-69 DNL zone. The Plan Amendment increases allowable residential density from 91 units to 213 units. Through the sub-area policy, the Plan Amendment requires sound attenuation of at least 25 dB for residences in the 65-69 DNL zone. Further, the Plan Amendment requires sound attenuation of at least 30 dB for any habitable buildings within the 70-74 DNL zone.10/ One purpose of recommending sound attenuation for dwelling units within noise zones of 65 DNL and higher, is to limit the number of community noise complaints to the Station. Community complaints regarding noise from Station exercises are directed to the Station’s Air Operations Department. The Station receives an average of 10 complaints per month, but that number fluctuates with the number of squadrons in town for training at the Station. Sometime in the past, the Station altered a training flight arrival pattern known as the Dolphin One Arrival. The arrival pattern is now called the King One, and it avoids directly flying over Stock Island. The evidence did not clearly establish whether the pattern was changed due to community noise complaints or due to the fact that Stock Island was in residential use. Captain McAlearney testified that because of the population on Stock Island, we set up a little to the south of what would be optimum for practicing, or most safe, frankly, for practicing a carrier landing or bringing a formation of airplanes into the field. On cross-examination, Captain McAlearney admitted that the change occurred well before his time as station commander and that he had no direct knowledge of the reason the change was made. Petitioners argue that the County must do more than just establish a community need in order to approve new housing in the 65-69 DNL zone consistent with the Navy recommendations. They argue that, pursuant to the AICUZ table, the County must establish that no viable alternative development options exist and that the demonstrated community need would not be met if development were prohibited in that zone. The County conceded that other parcels are available for construction of affordable housing within the Keys, however, there are very limited locations of Tier III,11/ scarified properties, outside of the 65-69 DNL zone in the Lower Keys with potential for affordable housing development. The parcels are scattered and none would support a large-scale affordable housing development such as is proposed pursuant to the Plan Amendment. While the County’s demonstrated need for affordable housing may be met, eventually, by incremental development of smaller scattered parcels and occupancy in renovated mobile home parks, the Plan Amendment addresses a significant amount of the affordable housing deficit in the immediate future. Based on the totality of the evidence, Petitioners did not demonstrate that the Plan Amendment is inconsistent with section 380.0552(7)(h)4. In reviewing and recommending adoption of the Plan Amendment, County staff carefully considered the recommendations of the Navy AICUZ table and revised the amendment to prohibit residential use in the 75-79 DNL zone, where the Navy deems those uses incompatible and recommends prohibition of said uses; and to prohibit residential use in the 70-74 DNL zone, where the Navy deems those uses generally incompatible and strongly discourages them. The Plan Amendment was crafted to limit residential use to those areas within the 65-69 DNL zone, where Navy discourages, but does not recommend prohibition of, residential uses. Further, County staff determined a local community need for affordable housing, determined that the need could not be addressed through viable alternatives, and required sound attenuation as recommended by the Navy. While the Navy introduced some evidence regarding potential impacts to the Station from increased residential density on Big Coppitt Key, the evidence was speculative. Captain McAlearney’s testimony did not establish that additional noise complaints (assuming the new development would generate new noise complaints) would negatively impact the “value, efficiency, cost-effectiveness, and amortized life” of the Station. 2. section 380.0552(7)(g) Although not included in their Amended Petition, Petitioners argued at hearing that the Plan Amendment was inconsistent with section 380.0552(7)(g), the Principle to “protect[] the historical heritage of the Florida Keys.” Petitioners’ expert based his opinion of inconsistency with this principle on the long-standing presence of the Station in the Keys and its important role in naval air training. No evidence was introduced to establish that the Station itself has a historic resource designation or contains any historic structures or archeological resources. The site is not designated as an historic resource by either the County or the State. Petitioners did not prove the Plan Amendment is inconsistent with this Principle. Other Principles A. section 380.0552(7)(l) Section 380.0552(7)(l) sets forth the Principle to “[make] available adequate affordable housing for all sectors of the population in the Florida Keys.” The Plan Amendment limits development of the Big Coppitt parcel to deed-restricted affordable housing and requires, at a minimum, a mix of at least 10 percent median- income category and at least 20 percent mix of very-low and low- income categories. The Plan Amendment would allow development of 213 of the 700 affordable housing units the County has to allocate through 2023. The Plan Amendment addresses affordable workforce housing needs in the County for income levels in both the service industry and the public sector. The Plan Amendment furthers section 380.0552(7)(l) by making available affordable housing for residents in a range of income levels from very low- and low-income to moderate-income. B. Remaining Principles The majority of the remaining Principles either do not apply to the Plan Amendment, or have only limited application. Very little evidence was introduced regarding these Principles. No evidence supports a finding that the Plan Amendment is inconsistent with the remaining Principles. The evidence did not establish that the Plan Amendment is inconsistent with the Principles as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Monroe County Comprehensive Plan Amendment adopted by Ordinances 003- 2016 and 004-2016 on February 10, 2016, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of August, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 9th day of August, 2016.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-265 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below in the manner described, on this vf, upey of July, 2009. ula Ford Agency Clerk Florida Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U.S. Mail: Bram D.E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Amy Taylor Petrick, Esquire Palm Beach County Attorney's Office 300 North Dixie Highway, Third Floor West Palm Beach, Florida 33401-4705 Henry B. Handler, Esquire Weiss, Handler, Angelos & Cornwell, P.A. One Boca Place, Suite 218A 2255 Glades Road Boca Raton, Florida 33431 Margaret-Ray Kemper, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Andrew S. Maurodis, Esquire City of Deerfield Beach 150 Northeast Second Avenue Deerfield Beach, Florida 33441-3506 Daniel A. Seigel, Esquire Weiss, Serota, Helfman, Pastoriza Metropolitan Planning Organization 200 East Broward Boulevard, Suite 1900 Fort Lauderdale, Florida 33301 Hand Delivery: Richard Shine, Esquire L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399 FINAL ORDER NO. DCA09-GM-265
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA09-GM-320 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this 62 day ollifpher. 2009. { Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Terence M. Brown, Esquire Terence M. Brown, P.A. Post Office Box 40 Starke, Florida 32091-0040 By Hand Delivery Lynette Norr Assistant General Counsel Department of Community Affairs Page 4 of 4
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-123 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct . copies have been furnished to the persons listed below in the manner described, on this “Dl- day of July, 2010. 7 a Dy. GLE Paula Ford Agency Clerk i Florida Department of Community Affairs : 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 U.S. Mail: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 Jeffery Sullivan, Esq. Stidham and Stidham, P.A. 150 East Davidson Street Bartow, Florida 33831 Hand Delivery: Matthew Davis, Esquire Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, Florida 32399
