The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-92-20, which was adopted by ordinance number 92-50 rendered the Broward County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency. The Department is charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenor, Susan Edn, is a resident of, and owns real property located in, Broward County, Florida. Ms. Edn submitted written and oral comments to the County concerning the plan amendment at issue in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the north by Palm Beach County, on the south by Dade County, on the east by the Atlantic Ocean and on the west by Collier and Hendry Counties. The County's Comprehensive Plan. The County adopted a comprehensive plan as required by the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan includes the Broward County Land Use Plan, which applies to, and governs, future land use throughout the County, including the unincorporated areas of the County. The Future Land Use Element. The County Plan includes a Future Unincorporated Area Land Use Element dealing with future land use in the unincorporated areas of the County. See Volume 2 of the County Plan, Edn exhibit 15. The Future Land Use Element of the County Plan required by the Act consists of the Broward County Land Use Plan and the Future Unincorporated Area Land Use Element. The Future Land Use Element identifies a number of land-use categories, including a "residential" category. Densities of development on land designated "residential" are also established. There are eight designated residential future land uses identified and defined in the Future Land Use Element of the County Plan. Those designations and densities are as follows: Estate (1) Residential: up to 1 dwelling unit per gross acre. Low (2) Residential: up to 2 dwelling units per gross acre. Low (3) Residential: up to 3 dwelling units per gross acre. Low (5) Residential: up to 5 dwelling units per gross acre. Low-Medium (10) Residential: up to 10 dwelling units per gross acre. Medium (16) Residential: up to 16 dwelling units per gross acre. Medium-High (25) Residential: up to 25 dwelling units per gross acre. High (50) Residential: up to 50 dwelling units per gross acre. The density of development for the Rural Estate category is up to 1 dwelling unit per gross acre. The density for the Rural Ranch category is up to 1 dwelling unit per 2.5 gross acres or up to 1 dwelling unit per 2 net acres. The County Plan includes Goal 08.00.00, titled Public Facilities and Phased Growth, and Objective 08.01.00, which provide: GOAL 08.00.00 PHASE GROWTH CONSISTENT WITH THE PROVISION OF ADEQUATE REGIONAL AND COMMUNITY SERVICES AND FACILITIES. OBJECTIVE 08.01.00 COORDINATE FUTURE LAND USES WITH AVAILABLE REGIONAL AND COMMUNITY FACILITIES AND SERVICES Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. The following policies related to Goal 08.00.00 and Objective 08.01.00 are included in the County Plan: POLICY 08.01.04 In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. . . . . POLICY 08.01.09 Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. POLICY 08.01.10 Local government entities shall require existing development on septic tanks and private wells to hook up to centralized sewer and water facilities as they become available. The evidence failed to prove that the amendment which is the subject of this proceeding is inconsistent with the policies quoted in finding of fact 14 or any other goal, objective or policy of the County Plan. The Subject Amendment: PC-92-20. The Board of County Commissioners of the County adopted Ordinance 92- 50 on December 9, 1992. Ordinance 92-50 included nineteen amendments to the County Plan, including amendment PC-92-20. PC-92-20 (hereinafter referred to as the "Challenged Amendment"), is the amendment to the County Plan challenged in this proceeding by Ms. Edn. The Challenged Amendment amends the land use designation of approximately 2,453 acres of land. Of the 2,453 total acres, the designation of 2,272 acres is changed from Estate (1) Residential to Rural Ranch and the designation of the remaining 180.7 acres of land is changed to Rural Estate. Pursuant to the Challenged Amendment the change in designation also results in a change in density from one dwelling unit per acre to a density of one dwelling unit per two and one-half acres for the Rural Ranch and a density of one dwelling unit per two net acres for the Rural Estate. The Subject Property. The 2,453 acres of land which are the subject of the Challenged Amendment are located in the unincorporated area of the County, east of Southwest 148th Avenue, south of Griffin Road, west of Flamingo Road and north of Sheridan Street. Dwellings currently exist on approximately 85 percent to 90 percent of the subject property. Existing dwellings are served by septic tanks and wells. Pursuant to the County Plan, without the Challenged Amendment, the 10 percent to 15 percent of the subject property not yet developed may be developed at a higher density using septic tanks and individual wells. The subject property is not currently serviced by a sewer service provider or a water service provider. The County Plan recognizes and accepts the foregoing existing conditions. See Map 12-1 of the County Plan Map Series titled "Existing and Proposed Sanitary Sewer Service Area", and Map 14-1 of the County Plan Map Series, titled "Existing and Proposed Potable Water Service Area." The Challenged Amendment does not modify the existing conditions of the subject property except to decrease the density of development allowed on the property. The subject property is not located within a public wellfield zone of influence. See County Plan Land Use Plan Natural Resource Map Series, titled "Existing and Planned Waterwells & Zones of Influence." The Department's Review of the Challenged Amendment. The Department reviewed the Challenged Amendment as originated by the Act. After review of the Challenged Amendment, the Department raised no objections. As part of the Department's initial review of the Challenged Amendment pursuant to Section 163.3184(6), Florida Statutes (1992 Supp.), the Department considered comments of various entities, including the Florida Department of Environmental Protection, the South Florida Regional Planning Council, the South Florida Water Management District and others concerning the Challenged Amendment. Some of those comments were critical. The critical comments concerning the Challenged Amendment pertain to the use of wells for potable water and the use of septic tanks in the effected area. Those concerns were considered by the Department and ultimately determined to be insufficient to find the Challenged Amendment not "in compliance." The Department's conclusion was based, in part, upon the fact that the Challenged Amendment will reduce the demand on sewer by 477,400 gallons per day and the demand on water by 380,800 gallons per day. The Department's conclusion was also based upon the fact that the majority of the area effected has already been built-out. Ms. Edn offered the critical comments of various governmental entities who provided comments to the Department pursuant to Section 163.3184, Florida Statutes (1992 Supp.), into evidence. Evidently, Ms. Edn believes that those comments were not adequately considered by the Department or that they prove that the Challenged Amendment is not "in compliance." The evidence failed to prove either suggestion. The evidence failed to prove that the Department's consideration of critical comments about the Challenged Amendment was not adequate or that the Department's conclusions concerning those comments were not reasonable and proper. On the contrary, the evidence proved that the Department did consider all comments and decided that the Challenged Amendment was "in compliance" despite the critical comments. The evidence also proved that the Department's rationale for still finding the Challenged Amendment in compliance was reasonable. Additionally, Ms. Edn failed to present evidence to support a finding that the entities that made critical comments concerning the Challenged Amendment during the initial review of the Challenged Amendment still believe those comments are valid. Therefore, the evidence failed to prove that the critical comments concerning the Challenged Amendment were still valid as of the date of the final hearing of this matter. Data and Analysis-Sewer and Potable Water Services. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on sewer and potable water services. Facility and service capacity data and analyses concerning the impact of the Challenged Amendment on the availability of, and the demand for, sewer and potable water services was provided to the Department by the County. Based upon the data and analysis provided, the Challenged Amendment will tend to reduce the demand on sewer and potable water services. The evidence failed to prove that the data and analysis provided was inadequate. Data and Analysis-Soil Suitability. The evidence failed to prove that the County did not provide data and analysis concerning soil suitability. The County submitted data and analysis concerning the impact of the Challenged Amendment on soil and natural resources, including waterwells and zones of influence, to the Department. The County concluded that the Challenged Amendment would preserve the natural function of soils in the area and Ms. Edn failed to prove the inaccuracy of the County's conclusion. See the County Land Use Plan Natural Resource Map Services titled "Soils." Data and Analysis-Wellfield Protection. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on wellfield protection. The County relied upon the County Land Use Plan natural Resource Map Series titled "Existing and Planned Waterwells and Zones of Influence" and concluded that the area impacted by the Challenged Amendment is not located within a public wellfield zone of influence. The evidence failed to prove the inaccuracy of the County's conclusion. Data and Analysis-Biscayne Aquifer. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on the Biscayne Aquifer. The South Florida Water Management District has not designated the area of the County impacted by the Challenged Amendment to be a "prime groundwater recharge area" for the Biscayne Aquifer. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, (1992 Supp.) and Rule 9J-5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The Department has provided a definition of "urban sprawl" in a November 1989 Technical Memorandum: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The evidence failed to prove that the foregoing definition or any other pronouncement in the Technical Memorandum constitutes policy of the Department. The evidence also failed to prove that the reduced densities allowed by the Challenged Amendment constitute "urban sprawl." The State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the State Comprehensive Plan. The Regional Comprehensive Policy Plan. The South Florida Planning Council has adopted the Regional Plan for South Florida (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for the County, Dade County and Monroe County. In the petition filed in this case, Ms. Edn alleged that the Challenged Amendment is inconsistent with Goal 13.4.10 of the Regional Plan. Goal 13.4.10 of the Regional Plan provides the following: Within the study area of the Southwest Broward/Northwest Dade Subregional Study, any existing or new user of on-site disposal systems in Broward County and within the Dade County urban development boundary should be required to hook up to a centralized wastewater collection when available. The evidence failed to prove that centralized wastewater collection is "available" to require existing or new users of on-site disposal systems in the area of the Challenged Amendment to hook up to. The evidence failed to prove that the Challenged Amendment is inconsistent with the Regional Plan.
Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
Findings Of Fact During 1974, Beker Phosphate Corporation applied to the Board of County Commissioners of Manatee County for a development order approving proposed phosphate mine operations. Beker is seeking to engage in phosphate mining on over ten thousand acres of land located in Manatee County in the watersheds of the Manatee and Myakka Rivers. The TBRPC is the regional planning agency which reviews development of regional impact applications in Manatee County. On December 9, 1974, the TBRPC recommended that the proposed mine be approved with modifications. On January 28, 1975, the Board of County Commissioners of Manatee County issued a DRI Development Order. The order approved the application submitted by Beker subject to thirteen specified conditions which are set out in the order. A copy of this development order was received in evidence at the final hearing as a Appellant's Exhibit 3. Neither the Division of State Planning nor any appropriate regional planning agency appealed the development order to the Florida Land and Water Adjudicatory Commission. Sarasota County did attempt to appeal the order; however, on June 17, 1975, the Land and Water Adjudicatory Commission accepted the Hearing Officer's recommended order and dismissed the appeal. This action was affirmed by the First District Court of Appeal. Sarasota County v. Beker Phosphate Corporation, 322 So.2d 655 (1975). In its application for development order, Beker had proposed to construct two secondary dams prior to commencing mining activities. One of these was to be constructed on the East fork of the Manatee River, and one on Wingate Creek. The dams were located down stream from initial waste clay settling areas. One of the purposes of the secondary dams was to serve as a back up system in the event that there was a break in the primary dam. In approving the application, the Board of County Commissioners of Manatee County required that the secondary dams be constructed prior to the commencement of mining activities. The primary motivation of Manatee County in requiring construction of the secondary dams was not protection from leaks in the primary dam system, but rather a desire to plan for the County's long term water needs. The Board anticipates that a reservoir would eventually be constructed behind the secondary dams, and that these reservoirs would serve the long-term water needs of the people of Manatee County. Since the secondary dams were to be constructed in wetland areas, Beker needed to obtain a permit from the Department of Environmental Regulation in order to construct the dams. An application was submitted. On November 29, 1976, the Department of Environmental Regulation issued a Notice of Intent to Deny the application. Beker subsequently petitioned for a hearing in accordance with the provisions of Section 120.57(1), Florida Statutes (1976 Supp). The request was forwarded to the Division of Administrative Hearings. A final hearing was scheduled, but due to subsequent action taken by the Board of County Commissioners of Manatee County, and due to this proceeding, the hearing was postponed and the case has been held in abeyance since April 5, 1977. No formal hearing has been conducted with respect to the application to construct the secondary dams, and no final order has been issued by the Department of Environmental Regulation. While the Department of Environmental Regulation matter was pending before the Division of Administrative Hearings Mr. Louis Driggers, the Chairman of the Board of County Commissioners of Manatee County, became concerned that the proceeding could have an adverse effect upon the county's long-range desire to construct a reservoir which would serve water supply needs. Mr. Driggers had a conference with Secretary Landers of the Department of Environmental Regulation, and learned that the agency's initial objections to the secondary dams were that the dams themselves would cause destruction of wetlands areas, and that since the primary dams were being constructed in accordance with Department of Environmental Regulation Rules and Regulations, there would be no need for the secondary dams. This opinion was set out in a letter from Mr. Landers to Mr. Driggers dated March 14, 1977 (Beker Exhibit 1). Mr. Driggers subsequently relayed this information to other members of the Board of County Commissioners, and on April 12, 1977, the Board adopted a resolution modifying a portion of the DRI development order which it had issued on January 28, 1975. The earlier order was specifically amended to delete the requirement that the secondary dams be constructed prior to the beginning of mining operations. The requirement that the secondary dams be constructed has not been altogether deleted; however, it is no longer a purpose of the dams to provide any secondary protection from a putative phosphate spill. The dams now have as their primary purpose long-range water supply and flood control. Manatee County is in effect now able to insist that Beker construct the dams at any time that the county so desires, assuming that all proper permits can be obtained. It is unlikely that the county will ever request that a secondary dam be constructed in Wingate Creek in the Myakka River watershed. The Board of County Commissioners of Manatee County did not submit the issues resolved in the April 12 order to the appropriate regional planning agency, and did not, through its order specifically consider all of the potential regional impacts of the order. The Commission concluded that the amendment did not constitute a substantial deviation from the original development order. Following entry of the order the SWFRPC filed this appeal to the Florida Land and Water Adjudicatory Commission. The SWFRPC, and Sarasota County contend that the April 12 amendment constitutes a substantial deviation from the original development order, and that the Board of County Commissioners of Manatee County should have entered the order only after conducting all of the proceedings contemplated in Florida Statutes Chapter 380. Beker Phosphate, Manatee County, and the TBRPC contend that the April 12 order does not constitute a substantial deviation from the original development order. Testimony presented at the hearing related primarily to the secondary dam originally proposed for construction in Wingate Creek in the Myakka River watershed. An initial waste clay settling area with a capacity of 8,848 acre- feet is proposed for construction primarily within the Myakka River watershed adjacent to Wingate Creek. Phosphate slimes would be stored above ground and permitted to settle in this area. The proposed secondary dam would have been located approximately three miles downstream from the settling area. The secondary dam would have had a capacity of 260 acre-feet. The secondary dam would thus have the capacity to contain a limited spill from the primary settling area. The secondary dam would provide no protection from a complete destruction or break down of the dams surrounding the primary settling area, or of any spill from the primary area greater than 260 acre-feet. Such a spill would result in destruction of the secondary dam. Spills of less than 40 acre- feet of material from the primary settling area would have no substantial impact on areas below the secondary dam whether the dam was constructed or not. Spills of a volume between 40 acre-feet and 260 acre-feet could, without the construction of secondary dams, have an impact upon areas below the secondary dams. Turbidity caused by such a spill, and deleterious substances contained in the slime could result in substantial environmental impacts, including destruction of vegetation, and short-term and long-term fish kills at least as far down the system as upper Myakka Lake, which is located in Sarasota County. No evidence was presented to indicate that a spill of from 40 to 260 acre-feet from the primary settling area is likely or more than a mere hypothetical possibility. The only testimony respecting the likelihood of any spill was that if the dams surrounding the primary settling area were constructed in accordance with Department of Environmental Regulation Rules and Regulations, and were properly inspected, there is no likelihood of a breakdown in the dams or of a spill. Argument was presented at the hearing to the effect that phosphate slimes could escape the settling area, or other areas within the mining operation, but there was no evidence to that effect, and certainly no evidence that such leakages or minor spills would be as large as 40 acre-feet. Deletion of the requirement for construction of secondary dams prior to commencement of mining activities as set out in the January 28, 1975 development order, would constitute a substantial deviation from that order only if there were some likelihood of a breakdown in the dams surrounding the primary settling area, or of some leakage at some point in the mining operations that would result in a spill of from 40 to 260 acre-feet of material into the Myakka watershed. No evidence was offered that would serve to establish even the remotest likelihood of such an event. The evidence does, however, establish that construction of the secondary dam in Wingate Creek would have adverse environmental consequences. The construction would take place in a viable wetlands area. The natural flow of water through the Myakka watershed would be disturbed. Construction of the dam would appear to constitute a concession that more than 4 acres of valuable and viable flood plain along Wingate Creek would be given up for the sake of the phosphate mining operations. It is possible that without the dams the result of any spill could be confined to a smaller area than that surrounded by the secondary dams. Without the dams the normal flow of water through the system will not be disturbed, and areas below the primary settling area can remain in their natural condition.
The Issue The main issue in this case is whether the Town of Marineland's Comprehensive Plan Amendments adopted by Ordinance 2005-1 on August 18, 2005,1 are "in compliance," as defined by Section 163.3194(1)(b), Florida Statutes (2005).2 Another issue is whether Petitioners have standing.3
Findings Of Fact Background The Town of Marineland is unique. Its history is not only interesting but helpful to an understanding of why the Plan Amendments may or may not be "in compliance," and also why Petitioners may or may not have standing. Marineland originated as the Marine Studios, which was created so that oceanic life would exhibit natural behavior that could be filmed for feature Hollywood films. The Marineland Attraction (Attraction) followed, and the new word "Oceanarium" was coined. The Attraction was the first marine theme park and served as the model for those that followed. The Town of Marineland was created in 1940 essentially to provide support services for the Attraction. Eventually, the Attraction's founding members died, and the property was sold to a group of St. Augustine investors, with the new entity being called Marineland, Inc. The investors looked at the property as a real estate investment, and the 1992/2005 Plan reflects this vision, calling for a community of 1500 persons and 600 dwelling units. The Town and the Attraction remained interdependent, with the Attraction being the entity that generated revenue and provided for most of the financial needs of the Town. As the face of Florida tourism changed during the 1970's and 1980's, fewer and fewer people came to Marineland, opting instead for the high profile attractions in the Orlando area. Rather than being a profit center for the investors that allowed them leisure to develop the rest of the land at their convenience, the Attraction became a money sink and required the investors to put money in each year to keep the facility going. This was an untenable situation in the long run and ultimately Marineland, Inc., sold its holdings to Marineland Ocean Resort (MOR), which split off another entity, the Marineland Foundation, to manage the Attraction. The Marineland Foundation operated under the umbrella of the Town of Marineland and not specifically as part of MOR. As this was happening, the Town of Marineland found itself having to be self-sufficient for the first time in 55 years. It needed to assume all the trappings of a municipal government and deal with matters that had previously been handled in whole or part by Marineland, Inc. During all these changes various attorneys examined different aspects of the Town's operation and found certain deficiencies. The most serious for land use planning was that the Town had not followed through after adoption of the 1992/2005 Plan and adopted any sort of land development regulations (LDRs). Simultaneously, MOR was considering how to develop the land it had bought. Its model was timeshares, and it considered turning the two oceanfront hotels into timeshare units, building an additional oceanfront timeshare hotel, selling timeshare campground slots, selling timeshare marine slips, and building timeshare units along the riverfront in the maritime hammock. Since the town had no LDRs, MOR would have had a free hand to build anything it pleased. To remedy this deficiency as quickly as possible the Town passed: Ordinance 97-1, which adopted the Flagler County development code provisions for signage, storm water and drainage, wetlands, tree protection, road construction and coastal construction; Ordinance 97-2 to adopt various standard codes relating to amusement devices, buildings, fire prevention, gas, grading, housing, mechanical, plumbing and swimming pools; and Ordinance 97-3 establishing zoning districts and providing for zoning regulations. Ordinance 97- 3 allowed for medium-density housing at four units per acre in the disturbed and cleared areas and at two units per acre in the the partially-disturbed maritime hammock. The intention was to prevent the rest of the maritime hammock, a rapidly disappearing environment throughout Florida and an environment of special concern, from being cleared for river-view timeshare units along the Intracoastal Waterway (ICW). The Town wished to balance the need to preserve important lands with the need to rebuild the town and regain lost population. It was not clear from the evidence how many units of residential development would be allowed under Ordinance 97-3, but it would be less that under the 1992/2005 Plan or under the Plan Amendments. Shortly after these ordinances were passed, MOR, which had been struggling financially and unable to realize any of its development plans, filed for bankruptcy and sale of their holdings. Its attorneys expressed great concern about the effect of the town ordinances on the pending bankruptcy and sale, and pointed out that when MOR filed, the court froze the status quo, preventing the Town from amending the 1992/2005 Plan's future land use map (FLUM) to reflect Ordinance 97-3. The Trust for Public Land (TPL) was successful in purchasing the MOR holdings from the bankruptcy proceedings. The result was a substantial reshaping of the land ownership within the Town. Approximately 90 acres of the most vulnerable lands were purchased from TPL with grant money from Florida Communities Trust (FCT)and set aside for conservation. The University of Florida's Whitney Marine Lab purchased additional land to double its holdings, and Jacoby Development, Inc. purchased about 40 acres of the disturbed lands for development. Concurrent with these activities, DCA awarded two planning grants to the Town under the Remarkable Coastal Place Program. The purpose of the grants was to enable the Town to take advantage of state experts in various aspects of community planning who could help the Town reorganize itself, recover its lost population, and rebuild itself from the ground up. It became apparent during this work that the Town would need a new comprehensive plan, not simply an update to the existing plan, in order to reflect the different structure of land ownership and to support the vision that the stakeholders had created during the planning process of a sustainable community that would be a center of science, education, recreation, and ecotourism. This was begun while state expertise was still available to the town, and once again incorporation of Ordinances 97-1, 97-2, and 97-3 into the existing comprehensive plan and FLUM was put on the back burner, since a new set of LDRs would have to be written to support the new comprehensive plan work in progress. Existing Uses The Town's existing land uses are distributed into two major categories: those found within and those found outside the River-to-Sea Preserve. The Preserve Approximately 89 acres of the total 151+ acres of the Town is off-limits to development through protection in the River-to-Sea Preserve. The River-to-Sea Preserve is undeveloped and vegetated with maritime hammock, coastal strand, beaches, dunes, and approximately eight acres of salt marsh within the Town's boundaries. The land has experienced significant disturbance in some areas. However, the majority of the site consists of native forested and non-forested vegetative communities. Lands covered with coastal scrub growth dominated by saw palmetto are located along the barrier dunes and to some extent to the west along the southern border of the Town but mostly seaward of the Coastal Construction Control Line regulated by Florida Department of Environmental Protection. This is a rapidly-disappearing community, and some sites harbor numerous endangered species. For that reason, it is one of three which has been designated by the Florida Fish and Wildlife Conservation Commission (FFWCC) as a "Rare and Unique Upland Community" within Florida. Development to the south of the Town has left these scrublands as an isolated remnant of the former community. The Preserve protects approximately seven acres of the coastal scrub community located in the Town. The Preserve protects three-fourths (32.6 acres) of the coastal hammock community located in the Town. The coastal hammock community also has been designated as a "Rare and Unique Upland Community" by the FFWCC. This community provides valuable cover and feeding areas for migratory songbirds in fall and spring as they migrate down the Atlantic Coast. Running the length of the Town along the Atlantic Ocean are 8.9 acres of beach area, an area of unconsolidated material that extends landward from the mean low water line to the primary dune system. The north and south ends of the beach are in the Preserve. Outside the Preserve Development in the Town, outside the Preserve, includes the existing Oceanarium facilities, the Whitney Lab, and the presently closed marina facility. Approximately 2.2 acres in the northeastern portion of the Town between A1A and the Atlantic Ocean contain the two original Oceanarium tanks of Marineland and has been included in The National Register of Historic Places. The Marine Park of Flagler has purchased the MOR property and intends to revitalize these areas. The Whitney Lab consists of the Whitney Laboratory for Marine Bioscience and the Marine Education Building, all operated by the University of Florida. These facilities occupy approximately 10 acres and are used for educational and research purposes. The Whitney Lab has broken ground on a new Center for Marine Studies and has plans for a Center for Marine Animal Health. The marina facility is located in the northwestern part of the Town adjacent to the ICW. It is 3.4 acres in size. The marina has been closed due to the deteriorating facilities. There is a plan to redevelop the Marina as a "Clean Marina." A smaller (0.74 acre) parcel is located adjacent to the Preserve on the west side of A1A and is the location of the Guana Tolomato Matanzas National Estuarine Research Reserve (GTMNERR) Administrative Offices, classroom, lab, and research facilities. Besides the beach, undeveloped urban lands outside the Preserve consist primarily of an approximately 47-acre, privately-owned parcel located in the center of the Town west of A1A. It is surrounded on three sides by already-developed areas within the Town. It includes approximately 10.3 acres of the Temperate Hardwood Hammock. Adjacent Lands The Flagler County/St. Johns County line passes through the northern tip of the Town so that the Town is primarily located in Flagler County. Flagler County is a fast-growing county having five incorporated municipalities. Land to the north of the Town, located in St. Johns County, consists of undeveloped coastal scrub and dune, saltwater marshes, and single-family houses along the barrier dune and in the vicinity of Summer Haven, a small unincorporated community located on the south side of the Matanzas Inlet. To the south, in Flagler County, there are large areas of coastal scrub and temperate hammock. A residential development called Matanzas Shores is being constructed. This development was permitted by Flagler County after Development of Regional Impact (DRI) review by the RPC. Immediately to the south of this development is the Washington Oaks Gardens State Park. To the west of the Town are saltwater marshes associated with Pellicer Creek, which is designated an Outstanding Florida Water (OFW), and the Matanzas River, which is part of the ICW. Pine flatwoods and temperate hammock are on the mainland shore. The Princes Place Preserve, Faver Dykes State Park, and St. Johns River Water Management District lands along Pellicer Creek serve as a 19,000-acre buffer between the ICW and the U.S. 1/I-95 corridor to the west. Two islands located in the Matanzas River estuary have been purchased through the FCT program and are owned by the Town. The southern island is located directly across from the Marineland marina on the west bank of the ICW and on the Flagler/St. Johns County boundary. The north island is on the west side of the ICW just south of the Matanzas Inlet in St. Johns County. The Florida Park Service will manage the islands. Although owned by the Town, these islands have not been annexed into the Town boundaries. It is the intent of the Town to annex these islands and incorporate them into long-term research, education and protection. Density8 On several fronts, Petitioners take issue with the density of development allowed by the Plan Amendments. They point to the designation of the Coastal High Hazard Area (CHHA), as well as data and analysis concerning erosion, topography (ground elevations), hurricane frequency and severity (or intensity), hurricane evacuation and shelter concerns, and effects on the sensitive environment of the Town and vicinity. CHHA In accordance with the law at the time, the Town's 1992/2005 Plan designated the CHHA to be seaward of the Town's coastal dune. In compliance with Rule 9J-5.012(3)(b)6., which required (and still requires) coastal management elements of plans to contain one or more specific objectives which "[d]irect population concentrations away from known or predicted coastal high-hazard areas," the Town's 1992/2005 Plan included Coastal/Conservation Element (C/CE) Objective E.1.6, which provided: Marineland shall direct population concentrations away from known or predicted high-hazard areas and shall ensure that building and development activities outside high-hazard areas are carried out in a manner which minimizes the danger to life and property from hurricanes. Development within Coastal High-Hazard Areas shall be restricted and public funding for facilities with[in] Coastal High-Hazard Areas shall be curtailed. Marineland shall provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding. In addition, the Town's 1992/2005 Plan did not allow residential (or any other) development in the designated CHHA. In 1993 the Florida Legislature amended the definition of the CHHA mean the Category 1 hurricane evacuation zone. See Section 163.3178(2)(h), Fla. Stat. See also Rule 9J-5.003(17) (defining the CHHA to mean the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study). Rule 9J-5.002(8) requires a local government to "address" rule changes in the next cycle of amendments. Since the entire Town is in the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study, the Plan Amendments designate the entire Town as the CHHA. The Plan Amendments allow residential development west of the ocean dune in what is now the CHHA. The Plan Amendments also replace Objective E.1.6 with a new C/CE Objective E.1.6, Hazard Mitigation, which requires the Town to "ensure that building and development activities areas [sic] are carried out in a manner which minimizes the danger to life and property" and "provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding." A series of policies follow the new objective. The question under these circumstances is whether the Plan Amendments adequately address the change in CHHA definition and comply with Rule 9J-5.012(3)(b)6. As the following findings explain, it is found that they do. Petitioners contend that they do not and that the Town was required to keep the 1992/2005 C/CE Objective E.1.6, which arguably would prohibit any residential development in the Town. This also would be the result if Rule 9J- 5.012(3)(b)6. were construed to require the Town to direct all population away from the CHHA. At least some Petitioners candidly would prefer that result, and Petitioners make a seemingly half-hearted initial argument that allowing any residential development in the Town (i.e., in the CHHA) would be inappropriate and not "in compliance." But it is clear that such a result is not mandated by the statute or rules. To the contrary, DCA interprets the statutes and rules as not even requiring a re-evaluation or "down-planning" of land uses (in particular, a reduction in residential densities) allowed under an existing comprehensive plan when a local government "addresses" the change in definition of the CHHA by increasing its size. DCA has not required such a re- evaluation anywhere in the State. Rather, DCA interprets the statutes and rules to prohibit the local government from increasing density in the CHHA above the density authorized by its existing comprehensive plan. In this case, the Town not only has designated the new CHHA but also has conducted a re-evaluation and revised its comprehensive plan. Under the rather unusual circumstances here, where the CHHA covers the entire Town, changing residential densities in various parts of the Town is not significant in determining whether population concentrations are directed away from the CHHA. Rather, what is important is the total residential development allowed in the Town as a whole. The Town contends, along with DCA and Centex, that the Plan Amendments reduce residential density in the Town. Petitioners, on the other hand, contend first of all that the density allowed by the Plan Amendments cannot be compared to the 1992/2005 Plan because the existing plan did not establish residential density standards, as required by Section 163.3177(6)(a), Florida Statutes ("[e]ach future land use category must be defined in terms of uses included, and must include standards to be followed in the control and distribution of population densities"). Instead, Petitioners contend that the 1992/2005 Plan was written in terms of "vague and standardless" design criteria and a policy direction for the Town to adopt LDRs consistent with the design criteria. Primarily for that reason, Petitioners contended that the density allowed by the Plan Amendments had to be compared to the residential density established by Ordinance 97-3 to determine whether the Plan Amendments increased residential density. Regardless of the way it was written, the 1992/2005 Plan was found to be "in compliance." In addition, while the policies in the Future Land Use Element (FLUE) of the 1992/2005 Plan were written in terms of average gross acre lot sizes, maximum lot coverage, and maximum floor area ratios characteristic of design criteria, it is nonetheless possible to calculate (albeit not without difficulty and with room for minor differences in results depending on the approach taken and assumptions made) the residential density allowed under the 1992/2005 Plan. The adopted FLUM depicted the various residential land use categories, as required by Section 163.3177(6)(a)("[t]he proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series"), and a summary of the total allowable residential land uses was included in data and analysis that accompanied the 1992/2005 Plan,9 making it possible to calculate residential density. Contrary to Petitioners' argument, it is not necessary to use Ordinance 97-3 to determine the residential density allowed under the 1992/2005 Plan, and there is no other plausible reason, or any precedent, for using land development regulations in that manner. As represented in the data and analysis summary for purposes of calculating the land requirements for housing, the 1992/2005 Plan allowed a maximum of 427 residential dwelling units on 37.7 acres, including apartments above retail uses, which are not depicted on the FLUM but are allowed under Housing Element (HE) Policy C.1.1.2 to provide affordable housing. This maximum of 427 assumed 98 apartments above retail uses although more arguably would be allowed under the 1992/2005 Plan. In addition, the 1992/2005 Plan's HE Policy C.1.1.1 allowed "out-buildings" as "ancillary structures to the rear of lots containing single family dwellings." Like the apartments over retail, these dwelling units are not depicted on the FLUM but are allowed as of right and theoretically could result in 176 additional dwelling units on a total of 37.6 acres. To arrive at the residential density allowed under the 1992/2005 Plan, DCA's expert added 12 of the approximately 12-20 dwelling units not shown in the summary but mentioned in the data and analysis of the 1992/2005 Plan as being either existing or allowed on the Whitney Lab's 5.4 acres, bringing the total theoretical maximum under the 1992/2005 Plan to 615 residential units on 43 of the Town's 151 acres, at various densities ranging from 2.2 units per acre at the Whitney Lab to 28.8 units per acre for apartments above retail uses, for an average residential density of 14.3 units per acre.10 Centex's expert took a different tack. First, for the apartments over retail uses, he assumed two units per retail use, for a total of 198 units (while also pointing out that there was no cap on these units in the 1992/2005 Plan). Second, he did not include any units for the Whitney Lab because they were not grounded in Plan policies. Using this approach, he arrived at a total of 704 residential units allowed under the 1992/2005 Plan. While he maintained the validity of that calculation, he pointed out that eliminating the units (both residential units and associated "out- buildings") allowed on land now included in the River-to-Sea Preserve would lower the total to 611 units. The Town's expert did not count apartments above retail uses or the units at the Whitney Lab and arrived at a total of approximately 421-425 dwelling units allowed under the 1992/2005 Plan. When he eliminated the units (residential units with associated "out-buildings") allowed on land now included in the River-to-Sea Preserve, he decreased his total to 275 units. The reason for the differences in his calculation was not clear from the record. Turning to the Plan Amendments, although more typical residential density standards are used, the experts still disagree on exactly what residential density the Plan Amendments allow and achieve. Most development under the Plan Amendments will occur in the Sustainable Mixed Use (SMU) future land use category, which allows a maximum of 241 residential units, a maximum of 50,000 square feet of commercial uses, and accessory residential units for affordable housing. Centex's expert determined that, under the Plan Amendments, the maximum theoretical number of dwelling units that could be developed in the Town, including the SMU category, is 565 units. It is not reasonable to conclude that 565 dwelling units would actually be developed, because this number includes 241 affordable accessory units, one for each residential unit. However, the Town concluded there is only a need for 39 such units. Centex's expert found that 13 of the 39 affordable housing units needed in the Town will be provided in FLUM categories other than SMU--namely, Institution Research (the Whitney Lab) and Conservation. It is more reasonable to expect that only the remaining 26 accessory units needed to address affordable housing will be developed in the SMU category to meet the 39-unit affordable housing need, instead of 241, and that 350 units actually will be built under the Plan Amendments. In his analysis, DCA's expert did not count any affordable housing units in the SMU category in reaching the conclusion that a 315 residential units are allowed under the Plan Amendments. Adding the theoretical maximum of 241, his total maximum theoretical number of residential units would be 553. The record is not clear as to why his numbers differ somewhat from the Centex expert's. The Town's expert somehow arrived at the conclusion that the Plan Amendments allow a total of 279 residential units. Like the DCA expert, he apparently did not count affordable housing units in the SMU category. The reason for other differences in his calculation are not clear from the record. It may be that he did not count residential units in the Tourist/Commercial category, while the others counted 35 units because there is a possibility that 35 condominium units could be developed there instead of 70 hotel rooms. Differences may also involve how he assessed and counted the possibility for residential units in the Institutional Research and Conservation categories. Despite these computational differences, it is clear that the Plan Amendments allow fewer residential units in the Town than the 1992/2005 Plan did, even assuming no residential development under the 1992/2005 Plan in what became the River- to-Sea Preserve. The density allowed under the Plan Amendments is comparable to densities authorized by comprehensive plans north and south of the Town, as well as the actual development that has occurred and is occurring in those areas. Since the entire Town is within the new CHHA, the Plan Amendments can be said to result in a reduction in population concentration within the CHHA by comparison to the 1992/2005 Plan. This also is reflected in the population projections on which the two plans were based. The 1992/2005 Plan was based on a projected total 2005 population of 1,551 people, including 900 permanent and 651 seasonal. The Plan Amendments are based on a projected 2015 population of 630, including 386 permanent residents and 244 seasonal residents and university students living in dormitories at the Whitney Lab. While reluctantly conceding that some residential growth in the Town (i.e., in the CHHA) is appropriate, Petitioners contend that growth must be limited to what is allowed under Ordinance 97-3 because any more growth than that would increase residential density in the CHHA. They argue that Ordinance 97-3 should be the benchmark because the 1992/2005 Plan did not establish residential density but instead relied on Ordinance 97-3 to do so. However, as reflected above, this argument was not supported by the evidence. Under the unusual circumstances of this case, while the Plan Amendments do not include an objective that parrots the words in Rule 9J-5.012(3)(b)6.--"[d]irect population concentrations away from known or predicted coastal high- hazard areas"--they do have goals, objectives, and policies which do so, as well adequately address the new CHHA definition. Data and Analysis Under the proposed findings in the section of their PRO entitled "Data and Analysis," Petitioners argue that there was a: "Failure to prove need for proposed density." The basis for the argument appears to be that: "[n]o professional methodology was utilized"; that the Town's population estimate was based on the "desires of the stakeholders," i.e., the "property owner investors"; and that the "desire of the stakeholders was for 'approximately 241 dwelling units,' not the at least 565 dwelling units authorized by the Amendments." Petitioners' PRO, at ¶61. But Petitioners did not prove that no professional methodology was used or that the population estimate was based solely on the "desires of the stakeholders." In addition, while the Plan Amendments state that the visioning effort undertaken by the Town for developing the Town's Master Plan under Florida's Remarkable Coastal Place program identified "approximately 241 dwelling units . . . as a target for meeting the permanent residential population of the Town," it also stated that "approximately 315 dwelling units were identified as a target for meeting the sustainability goal of the Town." Joint Exhibit 2, pp. A-14, C-11. Finally, there is no requirement that data and analysis "prove need for proposed density," but only that they support allocations of land for various uses. See § 163.3177(6)(a), Fla. Stat. ("future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth"). Accommodating need for affordable housing on the same land allocated for other residential and commercial development does not run afoul of this data and analysis requirement. See Fla. Admin. Code R. 9J-5.006(2)(c). No witness for Petitioners opined that the population projection for the Plan Amendments was not supported by data and analysis. To the contrary, several witnesses for the other parties opined that the data and analyses supporting the Plan Amendments were surprisingly comprehensive for a local government the size of the Town and were more than adequate. Land Use Suitability Petitioners' PRO contends: "The data and analysis concerning Town erosion, the low elevation of the Town, increased hurricane frequency and severity, inadequacy of hurricane evacuation time and shelter capacity, the adverse impacts of the land use designations on shellfish beds, estuarine nursery areas, the Tropical Hardwood Hammock, the designation of domestic waste water treatment and discharge facilities in the River to Sea Preserve, and water pollution resulting from foreseeable flooding establishes that the density of the Amendments is unsuitable for the Town land." Petitioners' PRO, ¶63. Erosion and Elevation It is clear that the Town of Marineland, due to its location and low elevation (generally 5-6 feet NGVD west of A1A), has been, is, and will continue to be vulnerable to beach erosion and flood damage from a major hurricane. Several hundred years ago, there was a navigable tidal pass north of the Town. The pass closed naturally through sand and sediment accretion but in recent years the area has been suffering significant erosion, resulting in State Road A1A having to be rerouted and access to homes along the old A1A being severely limited. In 1999, when Hurricane Floyd was 100-150 miles east of the Town in the Atlantic Ocean, significant erosion occurred within the Town, including the waters and sand of the Atlantic Ocean overtopping A1A in the north end of the Town, along with flooding the Town. As a result, the Town was a declared a disaster zone, and FEMA awarded two separate redevelopment grants. The Town's shoreline has been critically eroded, but is stable at this time. Notwithstanding these characteristics of the Town, which contribute to its designation as a CHHA, and as previously discussed, the evidence is clear that the Town is not considered unsuitable for development. To the contrary, the development allowed by the Plan Amendments is considered acceptable. Petitioners also cite evidence that sea level is expected by some to rise approximately 20 inches in the next 100 years. But no qualified witness opined that, for planning purposes, the Town should be considered unsuitable for development for that reason. Hurricane Frequency and Intensity Petitioners also contend that the Town is unsuitable for development in light of data and analysis concerning hurricane frequency and intensity. Indeed, there is persuasive evidence that hurricane frequency and intensity is cyclical and that in about 1995 a period of heightened hurricane frequency and intensity that usually lasts 10-20 years probably began. The evidence was clear that DCA does not consider the frequency and intensity of hurricanes to be relevant data and analysis in evaluating whether comprehensive plan development density and intensity are "in compliance." Rather, this is considered to be a matter to be addressed by the Legislature. So far, there has been no legislation to either further enlarge the CHHA or further restrict development in the CHHA.11 Hurricane Evacuation and Shelter Study Petitioners allege that the Town did not undertake adequate hurricane evacuation planning in connection with the Plan Amendments. Specifically, their PRO cites Section 163.3178(2)(d), Florida Statutes, which requires a comprehensive plan's coastal management element to include: "A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element in the event of an impending natural disaster." They also cite Rule 9J-5.012(2), which addresses the requirement that the coastal element be based on the following data and analysis, among others: (e) The following natural disaster planning concerns shall be inventoried or analyzed: 1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped, hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times. They point out that Rule 9J-5.003(57) defines Hurricane Vulnerability Zone (HVZ) as "the areas delineated by the regional or local hurricane evacuation plan as requiring evacuation" and that it also requires the HVZ to "include areas requiring evacuation in the event of a 100-year storm or Category 3 storm event." Finally, they cite Rule 9J- 5.012(3)(b)7., which requires one or more specific Coastal Element objectives which: “Maintain or reduce hurricane evacuation times.” The evidence was that these planning requirements were met. There are no mandatory state, regional, or local evacuation clearance times. The 1992/2005 Plan included C/CE Objective E.1.5., which provided: "The time period required to complete the evacuation of people from flooding of vulnerable coastal areas prior to the arrival of sustained gale force winds shall be maintained at less than 12 hours." The Plan Amendments replaced that objective with C/CE E.1.5., which now provides: "Evacuation clearance time should be maintained or reduced to less than 12 hours." This complies with Rule 9J-5.012(3)(b)7. The Plan Amendments were based on appropriate data and analysis. Because the entire Town is in the CHHA, the Town population must evacuate in a Category 1 and all higher storm categories. Evacuation routes for the Town are S.R. A1A north to S.R. 206 in St. Johns County, and S.R. A1A south to Palm Coast Parkway in Flagler County. The best and most current evidence, based on a 2005 update to the RPC's 1998 Regional Hurricane Evacuation Study, indicates that evacuation clearance times for St. Johns County are estimated to be 11 hours for Category 1 hurricanes, 14 for Category 2 hurricanes, 16 hours for Category 3 hurricanes, and 16.75 hours for Category 4 through 5 hurricanes; evacuation clearance times for Flagler County are estimated to be 7.75 hours for Category 1 and 2 hurricanes and 12 hours for Category 3 through 5 hurricanes. The Flagler clearance times are lower than those estimated in a 1998 version of the study, even though based on a higher population, primarily because the widening of the Palm Coast Parkway to four-lanes has been completed. The evidence does not demonstrate that the evacuation clearance times in St. Johns County increased under the 2005 Study. Clearance times are based on the worst bottleneck in a county, where traffic is metered to derive the actual clearance times. Evacuation of Town residents under the Plan Amendments will not impact the bottlenecks in either St. Johns County or Flagler County. For that reason, evacuation of Town population would be expected to be take less time than the clearance times calculated for those counties in the RPC's 2005 study; conversely, evacuation of Town residents under the Plan Amendments will have no effect on the overall clearance times in either St. Johns County or Flagler County. Assuming a maximum additional population (resulting from the addition of 829 dwelling units) under the Plan Amendments, 652 cars would be added to an evacuation during high tourist occupancy season (which includes the summer tourist season, which generally corresponds to hurricane season). This would increase traffic during the worst theoretical hour of the Town's evacuation (i.e., during which 30 percent of the Town's traffic would try to enter the evacuation road network) by 8.7 percent heading north from the Town on A1A and by 13 percent heading south of the Town on A1A. Based on a comparison of maximum theoretical densities under the 1992/2005 Plan and under the Plan Amendments, the number of evacuating vehicles added to the road network is reduced under the Plan Amendments. By comparison, assuming a maximum additional population (resulting from the addition of 565 dwelling units) under the 1992/2005 Plan, 922 cars would be added to an evacuation during high tourist occupancy season. This would increase traffic during the worst theoretical hour of the Town's evacuation by 12.3 percent heading north from the Town on A1A and by 18.4 percent heading south of the Town on A1A. Likewise, based on a comparison of maximum densities under the 1992/2005 Plan and the Plan Amendments, the Plan Amendments result in a reduced demand for shelter space. Obviously, since the entire Town is in the CHHA and must evacuate in a Category 1 and all higher storm categories, there is no requirement for the Town itself to provide hurricane shelter. Similar to most Florida counties, St. Johns and Flagler Counties have deficits in shelter space that are expected to increase as the population increases. According to DCA's Division of Emergency Management (DEM), in 2004 Flagler County had hurricane shelter spaces for 4,267 persons and a deficiency of 2,401 shelter spaces. This deficiency is expected to almost double (be 4,020) by 2008. According to DCA's DEM, in 2004 St. Johns County had hurricane shelter capacity for 7,320 persons, and a hurricane shelter demand of 9,829 people, resulting in a deficiency of 2,509 spaces. In 2009, the St. Johns County shelter demand is projected to be 11,564, “leaving an anticipated shelter deficit of 4,244.” However, the evidence was not clear that the shelters to which Town residents would be assigned are either over capacity or under capacity. In addition, it was not clear that future development would not include the construction of facilities that may serve as shelters. Finally, there was no clear evidence why these anticipated shelter deficits should restrict development in either county, or in the Town, so as to make the Plan Amendments not "in compliance." Natural Resources Petitioners contend that the Plan Amendments are not "in compliance" because of effects on various natural resources in the Town and vicinity, including shellfish harvesting areas, important estuarine nursery for juvenile fish and invertebrates, and the Town's high-quality oak hammock area (also referred to as a maritime hammock, a coastal temperate hammock, or a tropical hardwood hammock.) Petitioners' main argument regarding adverse effects on shellfish harvesting and nursery areas was that flooding during hurricane events will cause household chemicals and other pollutants stored inappropriately at ground level to be released into the environment, probably at a time when juvenile fish are present in the estuarine nursery areas. But there also was persuasive evidence that chemicals released during these kinds of flood events would be substantially diluted by the massive volume of water associated with them, which would greatly reduces any deleterious effects on nursery and shellfish areas. Through C/CE Policies E.1.3.4 and E.1.3.5 in the Plan Amendments, the Town has chosen to impose OFW standards that substantially exceed those that would otherwise be imposed by the St. Johns River Water Management District. OFW standards prohibit degradation of water below ambient conditions and typically require the design of stormwater systems that provide 1.5 times the level of treatment that otherwise would be provided for stormwater. There was evidence that shellfish harvesting has declined in the waters of the GTMNEER to the north of the Town over the recent past as the land near these waters has been developed. The evidence was not comprehensive as to the reason(s) for the decline, but poorer water quality generally is thought to be the primary cause. Some shellfish harvesting areas still are productive, including some near the Town where Mr. Cubbedge has an oyster and clam lease. Petitioners presented no testimony related to the temperate hardwood hammock. Centex's expert in environmental analysis observed that portions of the hammock areas have been altered or disturbed and that the higher-quality areas have been placed in the River-to-Sea Preserve where they are protected from development. Much of the natural vegetative communities in the Town are within the Conservation future land use category and not subject to development. To protect 10.3 acres of oak hammock located on land that is subject to development, the Plan Amendments impose a Maritime Hammock Overlay. In addition to otherwise applicable density and intensity standards, development within the Overlay is subject to numerous restrictions on adverse impacts on natural vegetation. Amendment FLUE Policies A.1.8.3. and A.1.8.4. allow only 50 percent of single-family and multi- family parcels to be cleared of trees, understory, and groundcover, and only 25 percent of the tree canopy to be removed. Petitioners also argue that the designation of the "Public Facilities" future land use category in the River-to- Sea Preserve in Amendment Policy A.1.4.2 is unsupported by data and analysis and "fairs [sic] to show the extend [sic] of the category as required by Section 163.3177(6)(a), Fla. Stat., and it does not estimate the gross acreage of the category as required by Rule 9J-5.006(2)(c)." Actually, the statute cited requires the FLUE to designate the "extent of the uses of land," and the rule requires an "analysis of the amount of land needed to accommodate the projected population, including: . . . 2. The estimated gross acreage needed by category . . . ." There was no testimony or other adequate evidence to support these arguments, and it was not proven that the Plan Amendments are not "in compliance" for any of these reasons. Conclusion It was not proven that data and analysis concerning the above matters establish that the density of the Plan Amendments is unsuitable for the Town land. Meaningful and Predictable Standards Similar to the Amended Petition and Petitioners' Statement of Position in the Prehearing Stipulation, Petitioners' PRO lists numerous objectives and policies in the Plan Amendments and contends that they are not "in compliance" because they do not provide meaningful and predictable standards. One expert called by Petitioners (Ms. Owen) testified in general that the Plan Amendments contain objectives and policies "which do not contain meaningful and predictable standards" or "that are not measurable or provide any standards or specificity." (T. 359). She also initially testified that the Plan Amendments (at her request) incorporated into data and analysis OFW water quality standards for discharges into the ICW but that "their goals, objectives and policies, as drafted, do not provide specific enough standards to be able to measure that"; later, she conceded that C/CE Policy E.3.5 incorporated OFW water quality standards. Another expert for Petitioners (Mr. Johnson) testified, "I think there's not enough detail in these policies and standards by which somebody could measurably allow growth to occur and measurably predict that it's not going to have an effect, a negative effect, on the environment." Otherwise, Petitioners put on no expert testimony to explain why the objectives and policies in the Plan Amendments do not provide meaningful or predictable standards, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." Another expert for Centex (Dr. Dennis) testified specifically that incorporation of the OFW standards in the C/CE and other goals, objectives, and policies were adequate to protect the waters of the ICW and its natural resources and the River-to- Sea Preserve even with the development allowed by the Plan Amendments. Rule 9J-5.005(6) provides in pertinent part: "Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. This chapter does not mandate the creation, limitation, or elimination of regulatory authority for other agencies nor does it authorize the adoption or require the repeal of any rules, criteria, or standards of any local, regional, or state agency." Rule 9J-5.003 sets out definitions, including: (52) "Goal" means the long-term end toward which programs or activities are ultimately directed. (82) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress toward a goal. (90) "Policy" means the way in which programs and activities are conducted to achieve an identified goal. Properly understood, these Rules require that an objective's "intermediate end" be specific and measurable in the sense that it can be determined when the "intermediate end" is reached. They do not mean that objectives must eliminate all possibility ambiguity or be amenable to quantitative measurement. They only require that objectives provide "meaningful guidance" and be enforceable in that sense. All of the objectives and policies listed by Petitioners have been reviewed. The evidence does not prove beyond fair debate that any of the listed objectives and policies are inconsistent with the cited Rule provisions, properly understood. Petitioners complain that several of the listed objectives and policies require the adoption of LDRs without including meaningful and predictable standards. In some cases, the objectives and policies themselves provide meaningful and predictable standards. But it is not necessary for comprehensive standards to be included in each such objective or policy. Rather, when required, meaningful and predictable standards to guide the LDR adoption process can be placed elsewhere in the comprehensive plan, as is often the case with the Plan Amendments. (In addition, not all plan directions to adopt LDRs are required by statutory and rule mandatory criteria, and it is possible that all of them may not be required to include meaningful and predictable standards if superfluous.) As they did elsewhere in their PRO, Petitioners contend that FLUE Policy A.1.4.2 does not "state what is the areal extent of the 'Public Facilities' land use category as required by Section 163.3177(6)(a), Fla. Stat. or estimate the gross acreage of the 'Public Facilities' land use category as required by Rule 9J-5.006(2)(c)." They also characterize the alleged failing as a lack of meaningful and predictable standards. But as previously mentioned, the Plan Amendments are not inconsistent with that statute and rule. See Finding 73, supra. Petitioners also argue that a listed objective and several listed policies fail to provide meaningful and predictable standards because they do not contain a percentage distribution of mixed uses.12 Actually, these are two different issues. As already indicated, it was not proven beyond fair debate that the objectives and policies fail to provide meaningful and predictable standards. As for the separate issue of percentage distribution of mixed uses, Rule 9J-5.006(4)(c) provides: Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use. (Emphasis added.) Petitioners put on no expert testimony to explain why the objective and policies in the Plan Amendments do not meet the requirements of this Rule, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, as already mentioned, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." On the evidence presented, it was not proven beyond fair debate that the Plan Amendments do not contain policies with "[an]other objective measurement" of the distribution among the mix of uses in the SMU, General Commercial, and Tourist Commercial land use categories established in FLUE Policy A.1.4.2. H. Petitioners' Other Issues The Amended Petition and Prehearing Stipulation raised other issues that were not included in Petitioners' PRO. Some of these were addressed in the parts of Centex's PRO, which the Town and DCA joined, including financial feasibility, planning timeframes, and deletion of a policy requiring habitats of listed species to be designated Conservation. To the extent that these other issues have not been abandoned by Petitioners, it is found that they were not proven. Petitioners' Standing All of the Petitioners submitted oral or written comments, recommendations, or objections to the Town during the period of time beginning with the transmittal hearing for the Plan Amendments on March 31, 2005, and ending with their adoption on August 18, 2006. None of the Petitioners own property or reside in the Town or own real property abutting real property in the Town. The Hamilton Brothers Brothers George William (Bill) Hamilton, III, and Patrick S. Hamilton live in Crescent Beach, which is four to five miles north of the Town in St. Johns County. Together (along with their wives), they own and operate Homecomers, Inc., which does business as Southern Realty of St. Augustine and Crescent Beach (Southern Realty), and as Southern Horticulture, which is located in Crescent Beach or St. Augustine (the evidence was not clear which). Patrick operates the real estate brokerage, which has offices in St. Augustine and in Crescent Beach, and Bill operates the retail garden and landscaping business. The brothers also own part of Coastal Outdoor Center, which is located in Crescent Beach at S.R. 206 and features kayak tours of the Matanzas River, mostly south to Pellicer Creek. The Hamilton family also has oyster and clam leases in St. Johns County. It appears that the vast majority of the brothers' business activities are conducted in St. Johns County north of the Town. However, over the years, some limited business has been conducted in the Town. In 1993 Patrick Hamilton twice brokered the sale of land from Marineland, Inc., one parcel to an private individual and the other to the Whitney Lab. In 1995 he procured a contract for the sale of Marineland, Inc. (and, with it, essentially the entire Town) for a fish farm operation for approximately $10 million; when the contract was breached, Southern Realty got part of the forfeited $100,000 binder. In 1998 Hamilton was authorized by MOR to sell its holdings in the Town for a ten percent commission. Hamilton was successful in efforts to arrange for it to be purchased by FCT and the Trust for Public Lands (TPL) through the bankruptcy court in Jacksonville, and some of the land was immediately resold at a profit to Mr. Jacoby. When Hamilton pursued payment of Southern Realty's brokerage commission through the bankruptcy court, he learned that TPL had indemnified MOR for the brokerage commission. At that point, Southern agreed to accept an $18,000 fee from TPL and drop its bankruptcy claim for ten percent on the overall purchase. In 2002, Hamilton paid for and prepared grant applications for the Town's purchase of two islands that were outside the Town's municipal boundaries but which the Town intends to annex. In September 2004 he wrote an offer on behalf of a trustee of the Whitney Lab to purchase a small parcel of land TPL still owned in the Town and donate it to the Lab. However, no contract was reached, and Southern Realty received no commission. In 2005 Phil Cubbedge asked Hamilton to represent him in the sale of his oyster and clam lease to Centex but then backed out when Centex proposed to deal directly with Cubbedge without Southern Realty's involvement. Southern Horticulture used to do business with the Marineland Attraction but has not done any business in the Town in nine years, since the Attraction went into receivership and did not pay a Southern Horticulture bill in full. The Town never has required the Hamiltons or their businesses to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 Southern Realty applied and paid for and obtained an occupational license to "engage in the business of real estate." This was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. On several occasions over the years, the Hamilton brothers have engaged in various civic activities pertaining to the Town. Most of these activities have been Patrick's. These have included: participation on the management advisory group for the GTMNERR and efforts in the early to mid-1990s to have its Administrative Office established in the Town; efforts in 2000 or 2001 related to the designation of A1A as a scenic highway in St. Johns County, with a segment being in the Town; subsequent work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County; advocacy related to the St. Johns County Comprehensive Plan; service on the Board of Trustees of the Whitney Lab; and financial contributions to and fund-raising for the Whitney Lab. The brothers do these things out of a sense of civic duty and for the good of the community and their vision for it. However, they also believe these activities provide a benefit for their business, particularly the real estate and outfitting businesses. It is found, based primarily on the activities of Southern Realty, that the Hamilton brothers own or operate a business within the Town. Florida Wildlife Federation FWF is a not-for-profit Florida corporation with approximately 50,000 members and supporters. No FWF members reside or own property in the Town, and FWF does not have an office in the Town. One member (Mr. Cubbedge) has an oyster and clam lease in the Town. Cubbedge, the Hamilton brothers, and Dr. Michael Greenberg, who works and has his office at the Whitney Lab in the Town, are the only members who have a connection to the Town, according to the evidence. In April 2004, FWF established a regional office in St. Johns County outside the Town for the primary purpose of reviewing comprehensive plan amendments, focusing on natural resource protection. FWF monitors growth management and habitat protection during the development stages of the Town, focusing on the draft of the goals, objectives and policies for the comprehensive plan. In furtherance of this effort, FWF’s planning advocate (Ms. Owen) has attended and participated in meetings of the Remarkable Coastal Place work group stakeholder meetings, where they reviewed drafts of comprehensive plan amendments; has talked with elected officials to educate them on FWF (and FOM) concerns; and has attended meetings of and made presentations to the South Anastasia Community Association, a civic organization that holds its meetings in the Town. Through the Post Office and its website, FWF publishes a newsletter with information about FWF’s activities in the state, including fundraising. No evidence was presented that the newsletter is distributed in the Town. FWF’s regional office held a fundraiser in St. Augustine in February 2006 to raise money to pay attorney’s fees and expert witness fees for this proceeding. The Town never has required FWF to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 FWF applied and paid for and obtained an occupational license "to engage in the business of monitoring growth management and habitat protection." As with Southern Realty, this was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. Based on the evidence, it is found that FWF owns or operates a business within the Town. Friends of Matanzas FOM is a not-for-profit Florida corporation established in 2001 to preserve and protect the estuary and its watershed, and to maintain the rural beach community, particularly on South Anastasia Island and in southern St. Johns County to Marineland. FOM has 34-44 members. No FOM members reside in the Town, but at least two of them--its current president, Dr. Greenberg, and Maureen Welsh--work at the Whitney Lab. The Hamilton brothers also are members. FOM itself does not have an office in the Town. However, Dr. Greenberg is its president, and he may keep some FOM records and documents in his office at the Whitney Lab. There was no evidence that FOM ever has had a Town occupational license, or that the Town ever has required it to have one. In part (if not primarily) through the activities of the Hamilton brothers, FOM has been involved in: efforts in the mid-1990s to have the Administrative Office of GTMNERR established in the Town; efforts, including production of a video in 2000 or 2001, related to the designation of A1A in St. Johns County, including within the Town, as a scenic highway; and work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County, including within the Town. There also was evidence that FOM holds annual meetings in the Town. Based on the evidence, it is found that FOM does not own or operate a business within the Town.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006.
Findings Of Fact Background The Parties Respondent, City of Hialeah (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive plans and amendments thereto. Petitioners, Edmond J. Gong and Dana L. Clay (petitioners), reside in Coconut Grove, Florida and own at least two parcels of property within the City. The parties have stipulated that petitioners are affected persons within the meaning of the law and have standing to challenge the remedial amendment in issue here. The Nature of the Dispute In 1991 and 1992, the City adopted three sets of land use amendments to its comprehensive plan known as amendments 91-1, 91-2 and 92-1. Each set of amendments generated objections by the DCA, and the matters were later sent to the Division of Administrative Hearings and were assigned Case Nos. 91-6340GM, 92-3113GM and 92-7517GM, respectively. Petitioners did not participate in any of these proceedings. To resolve the objections raised by the DCA, the City and DCA negotiated a stipulated settlement agreement in December 1993, which was executed by the City on January 28, 1994. Pursuant to that agreement, on April 21, 1994, the City adopted a remedial amendment (Ordinance 94-27) known as amendment 94R-1. After reviewing the amendment, on June 2, 1994, the DCA issued a cumulative notice of intent to find such amendment in compliance. On June 7, 1994, the South Florida Regional Planning Council also found the amendment to be in compliance. Finally, on July 11, 1994, the DCA's motion to dismiss Case Nos. 91-6340GM, 92-3113GM and 92-7517GM was granted. Petitioners, who participated in the local hearings concerning the adoption of amendment 94R-1, timely filed their petition for administrative hearing on June 23, 1994, challenging the propriety of that amendment for various reasons. The petition was assigned Case No. 94-3506GM. Although petitioners failed to plead any procedural issues in the initial petition, respondents have agreed that petitioners may raise certain procedural objections regarding amendment 94R-1 since the procedural issues were raised in their objections and comments filed with the City during the adoption process of the amendment. Procedurally, petitioners argue that the local government did not comply with all statutory requirements in noticing its proposed approval of the settlement stipulation and its later intent to adopt an ordinance. As to the DCA, petitioners argue that the state agency did not comply with the law in publishing its cumulative notice of intent on June 2, 1994, and that the notice contained erroneous rule citations and lacked a geographical map. Substantively, petitioners complain that before final approval of amendment 94R- 1 was given, the local government and DCA did not consider the enactment of Chapter 94-338, Laws of Florida, which created a multijurisdictional tourism, sports and entertainment special district known as the Blockbuster Park Special District, and they did not consider the traffic impacts of a recently opened connector to Interstate 75 and an interchange within the City that connects traffic from the connector to the Florida Turnpike. Finally, they contend that the amendment improperly redesignated more than ten acres of land from residential to commercial land use. Amendments 91-1, 91-2 and 92-1 involve ten amendments to the plan, all originally found not to be in compliance by the DCA. To cure three of those deficiencies, the City rescinded three ordinances leaving seven plan amendments to be remediated. Petitioners challenge the validity of these seven amendments but none change the use on their property. In reality, though, petitioners rely principally on their procedural objections in seeking to have a determination made that the amendment is not in compliance. Were the Notice Requirements Met? After the DCA and City reached an agreement in principle to resolve the DCA's objections to the plan amendments, a settlement agreement was prepared for execution by the City's mayor and DCA Secretary. Before the mayor could sign the agreement, however, the City Council's approval and authorization were required. Such approval and authorization to sign the agreement came in the form of a resolution adopted at a public hearing held on January 25, 1994. The agreement was later signed by the mayor and DCA Secretary on January 28 and March 3, 1994, respectively. The City had originally intended to consider the item at its January 11, 1994 meeting. Timely publication of notice was given for that meeting on December 27, 1993, in the regular edition of The Miami Herald, a newspaper of general paid circulation published daily in Dade County. At the January 11 meeting, however, the City discussed the matter but then deferred final action on the item until its next meeting on January 25, 1994. Accordingly, it republished a notice of its January 25 meeting in the Zone 4 Northwest Neighbors section of the Herald. The Zone 4 Northwest Neighbors section is an insert in the Herald each Thursday and Sunday and contains news pertaining to the northwest portion of Dade County, including the City. Because all copies of the Herald delivered and sold in northwest Dade County contain this particular Neighbors insert, the City complied with the requirement that the advertisement be published in a newspaper of general paid circulation within the jurisdiction of the City. Since petitioners reside and work outside of northwest Dade County, they say they did not receive the Neighbors insert in their paper and thus they were not aware of the January 25 hearing. There is no requirement, however, that the advertisement be published in other parts of Dade County. It is noted that even though they should have received notice of the January 11 hearing through the advertisement published in the regular edition of the Herald on December 27, 1993, they did not attend the hearing. The four-inch notice published on page 15 of the January 16, 1994 edition of the Neighbors section reads as follows: At its regular meeting of January 25, 1994, the Hialeah City Council will consider the following Resolution in addition to other business. Members of the public are invited to attend; the meeting begins at 7:00 p.m. at Hialeah City Hall, 501 Palm Avenue, Hialeah, Florida. RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, AUTHORIZING THE MAYOR TO ENTER A STIPULATED SETTLEMENT AGREEMENT IN CASE NOS. 91-6340GM, 92-3113GM AND 92-7517GM, ENTITLED "DEPARTMENT OF COMMUNITY AFFAIRS VS. CITY OF HIALEAH" NOW CONSOLIDATED BEFORE THE STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS FOR TRANSMITTAL TO THE FLORIDA DEPART- MENT OF COMMUNITY AFFAIRS. Applicable state law (s. 163.3184(16), F.S.) called for the notice to be published at least ten days prior to the hearing. In addition, general provision 3 of the settlement agreement provided in part as follows: This agreement has been approved by the governing body at a public hearing advertised in an adver- tisement published at least 10 but not more than 15 days prior to the hearing in the format prescribed for advertisements in Section 163.3184(15)(c) and Section 163.3187. Assuming the day of the hearing is not counted in computing the ten days, the City would have had to publish the notice by Saturday, January 15, 1994, in order to meet the ten-day requirement. Because the Neighbors section was not published on Saturdays, but rather only on Thursdays and Sundays, the City opted to publish the notice on Sunday, January 16, 1994, or just nine days before the hearing. This was necessary since the item was deferred at the January 11 hearing, and the City presumably was unable to meet the deadline for having an ad published only two days later in the Thursday, January 13, 1994 edition of Neighbors. Even so, petitioners were unable to show any prejudice by virtue of the City failing to meet the ten-day notice requirement. The settlement agreement called for the City to adopt certain remedial amendments by ordinance. These amendments are contained in Ordinance No. 94-27. Although state law (s. 163.3184(16)(d), F. S.) requires that the City hold only one advertised public hearing on a compliance amendment at the adoption stage, in accordance with the City Charter, two hearings were scheduled for that purpose on March 22 and April 12, 1994. A single one-quarter page advertisement in the regular edition of the Herald was published on March 17, 1994, or five days before the first hearing. The law (s. 163.3184(15)(b)2., F. S.) also requires that the hearing be "approximately 5 days after the day that the second (i. e., adoption stage) advertisement is published." The advertisement referred to both hearing dates and noted that their purpose was "to receive comments from interested parties on the Stipulated Settlement Agreement between the City of Hialeah and the Florida Department of Community Affairs related to the 1990 and 1991 Cycles I and II plan amendments to Hialeah's Comprehensive Plan." The advertisement also contained a list of the ten plan amendments and a map showing the portion of the City affected by each of those amendments. Although petitioners contended that the map was illegible in some respects, they nonetheless read the notice in the newspaper and attended both hearings to voice their objections to the ordinance. Notwithstanding petitioners' objections, on April 12, 1994, the City adopted the ordinance. Contrary to petitioners' assertion, the City complied with the notice requirements for both hearings. Assuming arguendo that the statutory notice requirements were not strictly met, petitioners failed to demonstrate that they were prejudiced by such an error. After reviewing the ordinance, on June 2, 1994, the DCA published in the Neighbors section of the Herald a cumulative notice of intent to find the plan amendments and remedial plan amendment in compliance. The advertisement was one-quarter page in size, identified the plan amendments in issue, advised readers that the amendments were in compliance, gave a location where such amendments and comments could be reviewed, and offered a point of entry to affected persons. Therefore, its content was sufficient to inform the public of the action being taken. The DCA concedes that in the notice, however, it cited rule 9J-11.012(8) as the provision dealing with the contents of a petition to challenge the amendments found to be in compliance when in fact the correct citation should have been rule 9J-11.012(7). There is no section (8) in the rule. The notice also cited former rule 22I-6.010 as the rule dealing with intervention when in fact that rule has been renumbered as rule 60Q-2.010. Even so, petitioners were unable to show how they were prejudiced by these minor errors, especially since they knew the nature of the action being proposed by the DCA, and they timely filed their petition for hearing to challenge the amendment. The DCA policy is to publish its notice of intent to find an amendment in compliance in the same local newspaper as the local government uses for its publication. The DCA also pointed out that by advertising in the Neighbors section as opposed to the regular edition of the Herald, it saved several thousand dollars. Therefore, the DCA used the Neighbors section of the Herald. At the same time, the DCA has never included in its advertisement a map showing the location of the land use changes being proposed. This is because the local government advertisements have already included a map, and the DCA notice is simply for the purpose of advising the public which ordinances are in or out of compliance. In the absence of any showing of prejudice, and in view of petitioners' failure to demonstrate to the exclusion of fair debate that the plan amendment as a whole is incompatible with, does not further or take action in the direction of realizing, the goals of the law, the cited procedural errors are insufficient to support a finding that amendment 94R-1 is not in compliance. The plan amendment Since 1986, petitioners have owned two parcels of undeveloped property in the southern one-half and northwestern one-quarter of Tract 24 of Section 28, which is located in the western part of the City. The property consists of approximately six acres located at the northeastern intersection of West 76th Street and the Hialeah-Hialeah Gardens Boulevard. The property has been designated on the future land use map as low density (single-family) residential, which allows up to twelve units per acre. Petitioners have not specifically pled or shown how amendment 94R-1 adversely affects their property. Instead, they simply argue that the plan amendment is not in compliance because the City did not consider the impacts of "drastically changed circumstances" before adopting the remedial ordinance, and the City improperly reclassified a small tract of land. These claims will be considered below. Effective June 3, 1994, Chapter 94-338, Laws of Florida, became law. That law created a multijurisdictional tourism, sports and entertainment special district more commonly known as Blockbuster Park. That legislation, however, is not relevant to this proceeding for several reasons. First, there is no mechanism to consider multijurisdictional impacts in the local planning process. Second, the special act did not become law until after the amendment process here had been completed. Since the City was only required to consider the best available data present at the time the amendment was being reviewed and adopted, consideration of the special law was neither necessary or appropriate. Third, the act itself does not authorize a development. If and when a development order is approved, the City can update its plan to take into account any impacts from the project. As to the contention that the City and DCA failed to take into account the six-lane connector road completed on December 31, 1993, or two years after the plan amendments were adopted, the impact of the connector road is identified and discussed on pages 21 and 23C of the future land use element contained in the remedial amendments. At hearing, it was further explained that the connector road is a limited access regional road under the control of Dade County, and not the City. This means that there is no access to the connector from properties which front on the road, and local access will be limited to three major road intersections. No land use changes along the road have been proposed, and the City has adequately addressed the circulation map requirements in the plan and how the internal circulation routes would be compatible with the major connectors. This being so, it is found that the City and DCA gave adequate planning consideration to the connector. Finally, petitioners contended that certain land was improperly redesignated from single-family residential to multi-family and commercial use. They complain that this is inappropriate since the land is close to a school and does not lie near a major intersection. The evidence shows, however, that such redesignation was appropriate since the land is located at an intersection and lies just across the street from an existing five-acre commercial tract. Moreover, the multi-family part of the tract will serve as a buffer between the commercial use at the intersection and the existing single-family use to the south. Then, too, the proximity of a nearby school to the west will serve to reduce trip time for persons shopping in the area while dropping off or picking up children from the school. Finally, some types of commercial use in residential neighborhoods can serve valid planning purposes, and the City has already established a pattern of having some schools located near commercially designated property. The redesignation is found to be reasonable and based on appropriate planning considerations. Although no proof was submitted by petitioners regarding any other parts of the plan amendment, respondents demonstrated that all remaining parts are supported by adequate data and analysis and are in compliance. Accordingly, petitioners have failed to prove to the exclusion of fair debate that remedial amendment 94R-1 is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of Hialeah comprehensive plan amendment to be in compliance. DONE AND ENTERED this 11th day of October, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3506GM Petitioners: 1-2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4-20. Partially accepted in findings of fact 5-8. 21-24. Partially accepted in findings of fact 9. Partially accepted in findings of fact 10 and 11. Partially accepted in finding of fact 4. 27-29. Covered in preliminary statement. Rejected as irrelevant. Rejected as unnecessary. 32-35. Rejected as irrelevant. 36-38. Partially accepted in finding of fact 6. 39-41. Partially accepted in finding of fact 11. 42. Rejected as unnecessary. Respondent DCA: 1-12. Covered in preliminary statement. 13. Partially accepted in finding of fact 1. 14. Partially accepted in findings of fact 2 and 13. 15. Partially accepted in finding of fact 1. 16-19. Partially accepted in findings of fact 6-8. 20-22. Partially accepted in finding of 9. 23-25. Partially accepted in findings of fact 10 and 11. 26. Partially accepted in finding of fact 6. 27. Partially accepted in finding of fact 11. 28. Partially accepted in finding of fact 6. 29-30. Partially accepted in finding of fact 10. 31-55. Partially accepted in findings of fact 13-17. Respondent City: Because the City's proposed recommended order was not timely filed, the undersigned has considered the contents of the proposed order but has not made specific rulings on each proposed finding of fact. See Sunrise Community, Inc. v. DHRS, 14 F.A.L.R. 5162 (DHRS, 1992), affirmed 619 So.2d 30 (Fla. 3rd DCA 1993). Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the more credible, persuasive evidence, subordinate, or unnecessary to the resolution of the issues. COPIES FURNISHED: Mr. Edmond J. Gong Ms. Dana L. Clay 6161 Blue Lagoon Drive, Suite 370 Miami, FL 33126 Terrell K. Arline, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 William M. Grodnick, Esquire 501 Palm Avenue, 4th Floor Hialeah, FL 33010 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue Introduction. 21 The Parties. 21 General Description of Monroe County 22 The Monroe County Year 2010 Comprehensive Plan 24 The Original Comprehensive Plan. 24 The Remedial Comprehensive Plan. 25 Area of Critical State Concern Review 27 The Florida Keys Area of Critical State Concern. 27 Area of Critical State Concern Review of the Remedial Plan. 28 The DCA Proposed Rules 31 Challenges to the DCA Proposed Rules 33 The Administration Commission Proposed Rules . 34 Challenges to the Administration Commission Proposed Rules 36 The Final Order in the DCA and Administration Commission Proposed Rules Challenge Cases. 36 The Department's Review Pursuant to the Act. 38 Section 163.3184, Florida Statutes 38 The Department's Review. 39 Impact of the Area of Critical State Concern Review on the Department's Review Under the Act. 40 Challenge to the Remedial Plan Pursuant to the Act by the Intervenors 41 Carrying Capacity: The Cornerstone of Monroe County Remedial Plan. 42 Carrying Capacity as a Planning Tool 42 Monroe County's Carrying Capacity Analysis 44 The Settlement Agreement's Reference to a Carrying Capacity Analysis 45 Monroe County's Application of the Carrying Capacity Analysis. 46 Hurricane Evacuation Carrying Capacity 47 Environmental Carrying Capacity. 48 The Department's Review of Monroe County's General Acceptance of a Carrying Capacity Approach 49 Monroe County's Environment. 49 The Unique Environmental Character of the Florida Keys 49 General Habitat Types in the Florida Keys. 51 Upland Habitat Types 53 Wetland and Transitional Wetland Habitat Types. 55 Marine Habitat Types 59 The National Marine Sanctuary. 63 The Upper, Middle and Lower Keys 64 Areas of Critical County Concern 66 Ohio Key 67 Coupon Bight 67 Species of Special Concern 68 The Florida Key Deer 68 Marine Turtles 72 The Impacts of Development on the Environment of the Florida Keys. 72 A Brief History of Development in the Florida Keys 72 The Impact of Development on Water Quality and Marine Resources 73 The Impact of Development on Coral Reefs 79 The Impact of Development on Seagrasses. 80 The Impacts of Boating 80 The Impacts of Docks and Marinas 82 The Impacts of Development on Wetlands and Transitional Wetlands. 83 The Impact of Development on Mangroves 85 The Impact of Development on Beach Berm. 85 The Impact of Development on Hammocks. 86 The Impact of Development on Offshore Islands. 87 The Impact of Development on North Key Largo . 88 The Impact of Development on Ohio Key. 88 The Impact of Development on Key Deer and Big Pine Key 89 The Impact of Development on Coupon Bight. 92 The Impact of Development on Marine Turtles. 92 The Florida Keys' Environmental Carrying Capacity 92 Monroe County's Conclusion 92 The Carrying Capacity of the Nearshore Waters and Seagrasses. 94 The Carrying Capacity of the Coral Reefs of the Florida Keys. 98 The Carrying Capacity of Offshore Islands. 98 The Carrying Capacity of North Key Largo, Ohio Key and Coupon Bight. 99 The Carrying Capacity of the Key Deer and Big Pine Key 101 The Need to Maximize Measures to Protect Other Environmental Features of the Florida Keys Environment 103 Sewage Treatment Systems 104 Provisions of the Remedial Plan. 104 The Department's Review Under the Act. 107 Intervenor Challenges. 108 Maintenance vs. Improvement. 109 Delay of the Adoption of the Master Plan 110 The Interim Levels of Service. 112 Cesspool Inspection Program. 117 Disturbed and Undisturbed Wetlands 117 Stormwater Treatment. 118 Provisions of the Remedial Plan. 118 The Department's Review Under the Act. 119 Intervenor Challenges. 119 Delay of the Adoption of the Master Plan 120 Impact on Water Quality. 121 The Interim Levels of Service. 121 Marine Resources 121 Provisions of the Remedial Plan. 121 The Department's Review Under the Plan 124 Intervenor Challenges. 125 Adequacy of Living Marine Resource Protections. 127 Moored/Anchored Vessels, Marinas and Docks. 128 Provisions of the Remedial Plan Impacting Moored/Anchored Vessels. 128 Provisions of the Remedial Plan Impacting Marines. 128 Provisions of the Remedial Plan Impacting Docks. 129 The Department's Review Under the Act. 131 Intervenor Challenges. 133 F Residential Docks. 135 G. Perpendicular Docks. 136 Canals 137 Provisions of the Remedial Plan. 137 The Department's Review Under the Act. 138 Intervenor Challenges. 138 Wetlands. 139 Provisions of the Remedial Plan. 139 The Department's Review Under the Act. 140 Intervenor Challenges. 140 Disturbed Wetlands 141 Setbacks 141 Provisions in the Remedial Plan. 141 The Department's Review Under the Plan 142 Intervenor Challenges. 143 The Justification for Setbacks 143 "No Net Loss" of Wetlands 145 Provisions of the Remedial Plan. 145 The Department's Review Under the Act. 145 Intervenor Challenges. 146 On-Site Mitigation vs. Off-Site Mitigation 147 ACCC: Big Pine Key, North Key Largo and Ohio Key. 148 Provisions of the Remedial Plan. 148 The Department's Review Under the Act. 151 Intervenor Challenges. 152 Big Pine Key; Protection of the Key Deer 154 North Key Largo. 155 Miscellaneous Environmental Provisions. 156 Freshwater Lenses. 156 Open Space Requirements for Hammocks 157 Public Access to Beaches 158 Public Expenditures in the Coastal Zone. 159 Natural Heritage and Park Program. 160 Protection of Upland Vegetation. 161 Clustering 161 Hurricane Evacuation Carrying Capacity. 162 Hurricanes 162 Preparation for Hurricanes 165 The Potential Impacts of Hurricanes on the Florida Keys 167 Evacuation and Refuges of Last Resort 169 Monroe County's Hurricane Evacuation Provisions 172 The Department's Review of Monroe County's Hurricane Evacuation Response in Objective 101.2. . . . . . . . . . . . . . . . . . . . .175 Intervenor Challenges. 177 Alleged Worthlessness of Undeveloped Property and Impact on Taxes. 179 Hurricane Evacuation Clearance Time Calculations 180 The Reasonableness of the Estimated Clearance Time Calculations. 187 Sham Device and Reasonableness of Monroe County's Hurricane Evacuation Goals. 189 Hurricane Shelters 191 The Board of County Commissioner's Meeting of May 4, 1991 198 The Administration Commission's Policy 216.1.19 . . . . . . . . . . . . . . . . . . .198 The Permit Allocation System 200 Monroe County's Decision to Employ a Permit Allocation System. 200 Provisions of the Remedial Plan Adopting the Permit Allocation System 203 Monroe County's Method of Allocating Allowable Growth Under the Permit Allocation System. 205 The Department's Review of the Permit Allocation System Under the Act. 210 The Department's Review of the Point System Under the Act. 210 Intervenor Challenges to the Permit Allocation System. 216 General Challenges to the Point System 216 Intervenor Challenges to Policies 101.5.4 and 101.5.5. 217 The Number of Permits and Subareas 218 The General Challenges to the Permit Allocation System 219 General Challenges to Policies 101.5.4 and 101.5.4. 222 Negative Points for Habitat, Habitat of Critical Concern and Species 222 Protected Species Habitat Map. 228 Coastal High Hazard Areas. 228 Platted Subdivisions 229 Affordable Housing 229 Transportation Levels of Service 229 Commercial Infill, and the Existence of Infrastructure 230 Points for TDRs. 230 Offshore Islands, Conservation Lands and Historic/Archaelogical Resources 232 Transferable Development Rights Program 233 The Current Transferable Development Rights Program. 233 Provisions of the Remedial Plan. 233 The Department's Review Under the Act. 236 D Intervenor Challenges. 238 E. Sender vs. Receiver Sites. 239 Land Use Categories. 242 Provisions of the Remedial Plan. 242 The Department's Review Under the Act. 243 Intervenor Challenges. 247 D. Policies 101.4.1 and 101.4.2 248 Maintenance of Community Character and Protection of Environmental Resources. 248 Residential Medium Land Use Category 249 Mixed Use/Commercial and Mixed Use/Commercial Fishing. 249 Disturbed Wetlands 251 Height Limitation. 251 The Future Land Use Map Series. 252 The Future Land Use Map Series Adopted by Monroe County 252 The Department's Review Under the Act. 252 Intervenor Challenges. 253 Are the Future Land Use Maps in Compliance With the Act 254 Vested Rights. 255 Provisions of the Remedial Plan. 255 The Department's Review Under the Act. 256 Intervenor Challenges. 258 Definition of Vested Rights. 258 Limited Application of Land Development Regulations to Property with Vested Rights 259 Miscellaneous Provisions of the Remedial Plan 260 Non-Residential Development. 260 The Monroe County Land Authority 263 Transient Residential Unit Moratorium. 264 Nonconforming Uses 266 The Coastal High Hazard Area 268 The Post-Disaster Redevelopment Plan 269 Siting Public Facilities 270 Intergovernmental Coordination 272 The County Geographic Information System 275 Public Expenditures for Services and Infrastructure 275 Affordable Housing 276 L. Goal 101 276 Roadway Improvements 277 Solid Waste Level of Service 278 Proposed Widening of U.S. Highway 1 on Big Pine Key 279 Public Participation 280 Capital Improvements 280 Monroe County's Commitment to Funding the Remedial Plan. 282 Monroe County's Determination of the Economic Impact Consequences of the Remedial Plan and Its Response Thereto 282 The Department's Review of Monroe County's Commitment to Funding the Remedial Plan. 284 Intervenor Challenges. 286 Monroe County's Lack of Commitment to Funding the Remedial Plan. 286 The Justification for Funding Assistance 287 Policy 1, as Modified by the Department and Policy 4 as Adopted by the Administration Commission are in Compliance with the Act. 288 Compliance with the State and Regional Plans. 291 The State Comprehensive Plan 291 The South Florida Regional Planning Council Policy Plan. 292 Constitutional Taking. 293
Conclusions For Petitioner, the Department of Community Affairs: Stephanie M. Gehres Assistant General Counsel David J. Russ Assistant General Counsel Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 33050 For Respondent, Monroe County: Robert C. Apgar, Esquire David A. Theriaque, Esquire Apgar, Pelham, Pfeiffer & Theriaque 909 East Park Avenue Tallahassee, Florida 32301 For Intervenor, 1000 Friends of Florida, Inc.: Richard Grosso, Legal Director 1000 Friends of Florida Civil Law Clinic Shepard Broad Law Center NOVA Southeastern University 3305 College Aveneue Ft. Lauderdale, Florida 33314 For Intervenors, Henry Lee Morgenstern and Florida Wildlife Federation: David J. White, Esquire National Wildlife Federation 1401 Peachtree Street, Northeast Suite 240 Atlanta, Georgia 30309 For Intervenor, Friends of the Everglades, Inc.: Nancy Carroll Brown, President Friends of the Everglades, Inc. 9220 Southwest 166th Street Miami, Florida 33157 For Intervenor, Upper Keys Citizens Association: Dagny Johnson, President Upper Keys Citizens Association, Inc. 95,600 Overseas Highway Key Largo, Florida 33037 For Intervenors, George N. Kundtz and Florida Keys Citizens Coalition: Gregg Goldfarb, Esquire 19 West Flagler Street, Suite 707 Miami, Florida 33130 For Intervenor, The Wilderness Society: Debra S. Harrison Florida Keys Coordinator The Wilderness Society 8065 Overseas Highway Marathon, Florida 33050 For Intervenors, George DeCarion, et al.: James S. Mattson, Esquire Andrew M. Tobin, Esquire MATTSON & TOBIN Post Office Box 586 Key Largo, Florida 33037 STATEMENT OF THE ISSUES The issue in these cases is whether the remedial Monroe County Year 2010 Comprehensive Plan is "in compliance", as defined in Section 163.3184(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order finding that the Monroe County Year 2010 Comprehensive Plan is not in compliance within the meaning of Section 163.3184(1)(b), Florida Statutes, consistent with this Recommended Order. DONE and ORDERED this 17th day of July, 1995, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1995. APPENDIX A Case Numbers 91-1932GM and 93-3371GM The parties have submitted proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, or the proposed findings of fact of the parties, except 1000 Friends of Florida, George N. Kundtz and the Florida Keys Citizens' Coalition and the Upper Keys' Citizens' Association, have been accepted or rejected in this Appendix A. The Department's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 9-10, 24, 26, 31-34, 43, 60, 67, 73, 75, 78, 87-88, 91, 97-100, 102-103, 107, 160, 192, 224, 231, 237, 248, 256, 282, 288, 294, 300-303, 313, 316, 331, 338, 340, 355, 376 Proposed findings of fact which are rejected in whole or in part: 2 Not a finding of fact. 108 The last sentence is not supported by the weight of the evidence. Monroe County's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 3, Footnote 4, 42, 55, 93-94, 115, 125-127, 130, 173, 178, and 181. Proposed findings of fact which are rejected in whole or in part: 10 The third sentence is not supported by the weight of the evidence. 13 The second sentence to the next to last sentence is not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence and the rest of the proposed finding is not relevant. Not supported by the weight of the evidence. 40 The first sentence is not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. "DCA" did not amend Policy 1. Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 48 Not supported by the weight of the evidence and there has been no challenge to the rules that address Policy 1. 58 The last three sentences are not supported by the weight of the evidence. 133 The last sentence is not supported by the weight of the evidence. 138 The first two sentences are not supported by the weight of the evidence. 146 The last three sentences are not relevant. Not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally true, the proposed finding ignores the fact that the evidence failed to prove that the lack of action by the Service is because the key deer have not reached their carrying capacity, which is the issue in these proceedings. The first two sentences are not supported by the weight of the evidence. The last sentence is not relevant. 157-159 Although generally correct summaries of some testimony, these proposed findings are not relevant. 160-163 These proposed findings are generally accepted. They do not, however, justify failing to recognize that the carrying capacity of the key deer has been exceeded. Not relevant. Not supported by the weight of the evidence. 170 The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The first and last sentences are not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. The last sentence is not supported by the weight of the evidence. 189 The last sentence is not supported by the weight of the evidence. 191 The last sentence is not supported by the weight of the evidence. 193 The last sentence is not supported by the weight of the evidence. 195 The first sentence is not supported by the weight of the evidence. The last two sentences are not supported by the weight of the evidence. The first sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. 202 The first and last sentences are not supported by the weight of the evidence. 203 Not supported by the weight of the evidence. 204 Not supported by the weight of the evidence. 205 Not relevant. 205 Not relevant. DeCarion's Proposed Findings of Fact Findings of fact after number 53 have not been numbered in DeCarion's proposed order. They are referred to in this Appendix by the titles of the portion of the proposed order under which they appear. Proposed findings of fact which are hereby accepted in whole or in part: 1, 25-29, 32, 35-38 Proposed findings of fact which are rejected in whole or in part: 1 No evidence to support this proposed finding was presented. Standing was, however, stipulated to. 7-16 Although generally correct, the conclusions reached in these proposed findings are not supported by the weight of the evidence. 19 Not supported by the weight of the evidence. 24 The first sentence is not relevant. 43-44 While these proposed findings are an accurate reflection of some of the testimony in these proceedings, the conclusions suggested by DeCarion are not supported by the weight of the evidence. 46-48 Not supported by the weight of the evidence. 49-50 Not relevant. Not supported by the weight of the evidence. The first three sentences are not supported by the weight of the evidence. The third sentence is not supported by the weight of the evidence. "Five-Year Moratorium on Hotel-Motel Construction": The second paragraph is not supported by the weight of the evidence. "Marina Expansion Restrictions": The second paragraph is not supported by the weight of the evidence. Wilderness Society's Proposed Findings of Fact Proposed findings of fact which are hereby accepted in whole or in part: 1, 7, 10, 12, 29, 34, 71-72, 81, 87, 138, 141 Proposed findings of fact which are rejected in whole or in part: 3-6 Not relevant. 73-75 Not relevant. 88-89 Not supported by the weight of the evidence. 102-103 Not relevant. Not relevant. The first paragraph is not supported by the weight of the evidence. 117-130 Not relevant. 147-248 Not relevant. 154 Not supported by the weight of the evidence. 159-161 Not relevant. APPENDIX B ORIGINAL AND REMEDIAL PLAN CHALLENGE CASES: CASE NUMBERS 91-1932GM AND 93-3371GM TABLE OF CONTENTS APPEARANCES. 3
Findings Of Fact Background Respondent, City of Daytona Beach (City), is a Florida municipal corporation subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The City is responsible for the comprehensive planning for the entire municipality. Its most recent comprehensive plan (Plan) was adopted on May 16, 1990, and was found to be in compliance with the law in July 1991. On October 1, 1992, the City made application for what is known as the LPGA Plan Amendment (plan amendment). Generally, the plan amendment changes land uses and densities on approximately 4,000 acres of land within the City and adds various policies to the Plan. Public hearings on the plan amendment were held on October 22, 1992, April 21, 1993, and May 19, 1993. The plan amendment was adopted on June 2, 1993, and it was found to be "in compliance" by the DCA on July 26, 1993. Petitions challenging the plan amendment were filed in Case No. 93- 4863GM by petitioners, 1000 Friends of Florida and Robert Jenks. 1000 Friends of Florida is a non-profit tax-exempt corporation formed expressly for the purpose of overseeing implementation of Florida's growth management laws at all levels of government. Jenks is a property owner within the City and a member of 1000 Friends of Florida. A petition was also filed in Case No. 93-4864GM by petitioners, Adeline Jones, Marta Perez and Nelson Perez. Those individuals are adults residing within the City. Petitioners contended, among other issues, that the housing element of the plan, which has been revised by the amendment, would not assure the provision of adequate affordable housing within the City. Finally, a petition to intervene in support of the plan amendment has been filed in both cases by intervenors, Patricia Lagoni (Lagoni), as trustee, and Indigo Development, Inc. (Indigo). Lagoni is the trustee for two trusts that own approximately 4,600 acres of land within the City that are the subject of the plan amendment. Indigo is the developer of the trustee's property. The parties have stipulated that petitioners and intervenors are "affected persons" within the meaning of the law and have standing to participate in these proceedings. The Plan The plan is a twenty year long range planning document. It includes and applies to the entire City except for approximately 16,400 acres which has subsequently been annexed into the City limits since the adoption of the plan. The portions adopted by ordinance are goals, objectives, and policies; the Neighborhood Development Policies; Capital Improvement Element Implementation; Monitoring, Updating and Evaluation Procedures (Appendix); the Future Land Use Map Series; the Future Traffic Circulation Map; the Future Mass Transit Map; and the Future Aviation Facilities Map. Because a local government may choose not to adopt support documents such as data and analysis, the City did not adopt by ordinance the supporting data and analysis to the plan. The plan support documents include population projections through the year 2010. The population projections used in support of the plan are based on the 1980 U. S. Census. A census is an estimate of population at a particular time while a population projection is an analysis using estimates of past existing populations, such as a census, to predict future population. When the plan was prepared and adopted, the City was required to rely on the 1980 U. S. Census. At that time, the City's Evaluation and Appraisal Report (EAR) was due in 1995. Based on a 1993 change in the law, the EAR is now due in 1997. Under the Department's interpretation of the Act, which is found to be reasonable, a local government need not apply the 1990 U. S. Census until it submits its EAR. Therefore, between the adoption of the original plan and submittal of the EAR, a local government may amend its plan without having to base the amendment on a newly released U. S. Census. Such a comprehensive evaluation and updating of the plan and its data source is not required until the EAR is due because it would be a very exhaustive and expensive burden on local governments. The existing land use map is a support document of the plan. It generally depicts how land is used in various parts of the City at the time of transmittal of the proposed plan and includes six classifications: residential, vacant/undeveloped, commercial, industry, government and institution, and parks and recreation. On the other hand, a future land use map series is an adopted portion of the plan which generally depicts where the local government wants to have particular land uses by the end of its planning period. The future land use classifications include the following broad categories of land uses: residential, commercial, industry, government and institutional, parks and recreation, and miscellaneous. It is noted that the future land use map has no "vacant" classification since "vacant" is not an actual use which can be assigned a density or intensity and direct future development. The plan amendment Adoption and contents On October 1, 1992, Indigo made application for the plan amendment. Public hearings were held for the review and discussion of the amendment on October 22, 1992, and resolution number 92-460 was subsequently enacted by the City authorizing the proposed amendment to be forwarded to the DCA for review. After the amendment was submitted to the DCA, the agency conducted an in-house review of the amendment and thereafter issued its objections, recommendations and comments (ORC) on February 19, 1993. That document contains the DCA's objections and comments as well as more than twenty recommendations which address those concerns. A notice of intent was published by the DCA to advertise that fact. After considering the ORC, the City made various changes in its proposed plan amendment and issued its response to the ORC on March 24, 1993. Also, it conducted further public hearings on April 21 and May 19, 1993. On June 2, 1993, the City adopted plan amendment 93D2 by Ordinance No. 93-219. On July 8, 1993, the amendment was found by the East Central Florida Regional Planning Council (ECFRPC) to be consistent with its Comprehensive Regional Policy Plan. Finally, on July 26, 1993, the amendment was found by the DCA to be in compliance. The plan amendment (a) amends the future land use map to provide new classifications for approximately 4,000 acres within the City, (b) includes some textual changes to the future land use, conservation, coastal management, traffic, and housing elements, and (c) changes the future traffic circulation map in certain respects. The acreage in question is located mostly to the west of I-95 except for some portions east of I-95 where 11th Street crosses the Interstate. The property is intended to be developed by Indigo as a "world- class golf resort and accompanying planned community." Prior to the amendment, the predominant land use category on the property was Level 1 residential with some designation for government or institutional use and retail commercial. As originally proposed by the City, the amendment reduced Level 1 residential acreage, increased Level II residential acreage, and created new categories of passive park/buffer area, interchange commercial and mixed use. After the DCA issued its criticisms in the form of an ORC, the City revised its amendment by redistributing the future land uses and adding policies to the housing element. The land use changes include a 1,375 acre reduction in Level 1 residential (a single-family residential future land use category with 1 to 8 units per acre) caused by conversion of land to a golf course and dedication of 831 acres for conservation purposes, a 575 acre increase in Level 2 residential (a residential future land use category with 9 to 20 units per acre), and a 98 acre increase in Level 3 residential (a mixed residential/retail category with 21 to 40 residential units per acre), or a net effect of an overall increase in the residential land use density of approximately 4,300 units of higher density housing than that density which existed prior to the plan amendment. The plan amendment proposes a mixed use future land use category to allow a wide range of urban uses, including light industrial, office, tourist accommodations, retail and multi-family residential. In neighborhoods K, S, T and U, a minimum of 12 percent and a maximum of 30 percent of the total area designated as mixed use must be developed as residential with a minimum of 15 dwelling units per acre and a maximum of 25 dwelling units per acre. Increased density on the property from both the increased Levels 2 and 3 land use designations, as well as the mixed use residential requirements, provide opportunities that foster increased availability of affordable units. Housing element Every comprehensive plan must contain a housing element with goals which state the aspirations for where a community wants to be. Goal 1 of the housing element is "to assure the availability of sound and affordable housing for all current and future residents of Daytona Beach." This means that the City will assure the availability of housing for all segments of the population. The housing element must also contain specific objectives for each goal statement. In the original plan, the City adopted Objective 1.1 (on page 5.37 of the plan) entitled "New Construction." It was not revised by the amendment. That objective reads as follows: Assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995. The amendment adds seven policies to the housing element, all relating to affordable housing. In the context of a comprehensive plan, a policy is interpreted to mean the specific actions the local government will use to implement its objectives. Proposed policy 1.3.6 reads as follows: Policy 1.3.6 The City, through its land development regulations, shall establish a mechanism that permits density bonuses of at least 10 percent for projects that provide very low and low income housing units, provided that the increased density is consistent with all other goals, objectives and policies of this plan including, but not limited to, environmental and concurrency goals. Under this proposed policy, developers are encouraged to construct affordable housing through the offering of a financial incentive. The incentive, more commonly known as a density bonus, allows them to use a slightly higher density than they otherwise would have. This is a common approach in encouraging affordable housing, and while not an absolute guarantee, the policy does have the effect of encouraging additional affordable housing in the City. Proposed policy 1.3.7 reads as follows: Policy 1.3.7 The City will continue programs to maximize opportunities for private sector involvement in the formation of community-based non-profit organizations to actively participate in the provision of low and moderate income affordable housing. This policy simply reinforces the City's commitment in existing policy 1.3.2. to "continue to use its CDBG funds to provide seed money and technical assistance to non-profit corporations that construct housing for low and moderate income households including HUD 202 elderly housing and State/County housing finance agency bond-funded rental units." Proposed policy 1.3.8 provides as follows: Policy 1.3.8 The City Community Development Department will continue to support community-based non-profit organizations such as Habitat for Humanity in their efforts to provide adequate housing at a cost affordable to low-income residents by providing land that is acquired by the City. This policy reiterates the City's commitment in existing policy 1.3.2 and proposed policy 1.3.7 to supporting non-profit organizations which participate in providing affordable housing to low and moderate income households. Although the policy does not add any new assurances in providing affordable housing, it does not adversely affect the provision of affordable housing. No evidence was submitted to show that this policy is inconsistent with any requirements applicable to this proceeding. The next proposed policy is 1.3.9. It reads as follows: Policy 1.3.9 The City shall strive to participate in the State Housing Incentives Partnership Program as specified in the 1992 William Sadowski Affordable Housing Act. The City will follow its Local Housing Assistance Ordinance which establishes a local housing partnership, administrative responsibilities, and a local Housing Advisory Committee. This policy reflects a new affordable housing program which was enacted by the state subsequent to the plan's adoption. The more credible evidence reflects that the policy will have a positive impact on affordable housing. Proposed policy 1.3.10 provides that the City "will encourage the County to provide impact fee waiver programs for schools and transportation as an incentive for affordable housing." In Volusia County, impact fees are a significant cost of housing. Seventy percent of the impact fees applied in the City are County assessed. Under the proposed policy, the City is attempting to persuade the County to provide certain impact fee waivers for affordable housing. Proposed policy 1.3.11 reads as follows: Policy 1.3.11 By 1995, the City shall complete an assessment of affordable and special housing needs utilizing detailed housing data from the 1990 U. S. Census and an assessment of target areas and population segments representing priority affordable housing needs as a basis for establishing specific quantifiable near and long-term affordable housing programs. Results of the assessment shall be used to update the Comprehensive Plan's affordable housing policies. Although this policy will not have the direct effect of producing affordable housing, there is no evidence that the policy is inconsistent with any requirements at issue in this proceeding. Finally, the City has proposed a new policy 1.3.12, which reads as follows: Policy 1.3.12 The City will continue to be active in housing isues through the Community Development Department in the following ways: providing informational and technical asistance to the public on affordable housing programs, completing housing inventories and assessments, working to increase local utilization of state and federal funding programs, and coordinating with the Redevelopment Department. The City will annually update the Comprehensive Housing Affordability Strategy (CHAS) in compliance with U.S. HUD guidelines in conjunction with the State of Florida CHAS. This policy adds nothing new to the plan. It simply reiterates commitments expressed in other housing element policies. Again, no evidence was submitted to show that the policy is inconsistent with any other requirements at issue. As noted earlier, objective 1.1 is to "assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995." The derivation of the 6,400 units is found on page 5.25 of the housing element of the plan. In general terms, the number of units was derived by taking the population of the City in 1980, updating that figure through 1987, and then projecting the number of households by income category in the year 1995. Of the 6,400 units, 2,601 are projected for the low and very low income household categories. Low income is defined as being 80 percent of the median income ($31,000) for Volusia County, or $24,800, while very low income is defined as being one-half of median income, or $15,500. Tables 5-20 and 5-21 of the data and analysis support this objective. Table 5-20 projects housing needs for the City by income category from 1987 to 1995. Table 5-21 projects housing need by income category for the years 1995 through 2000. The tables break the population into the following income categories: very low, low, moderate, middle, and upper and high. The data and analysis concludes that availability of land is not a concern with meeting the projected need for residential units through the year 2000. Rather, the principal concerns center around the current lack of federal and state subsidy programs for housing construction, and the fact that the City is already shouldering more than its regional fair share. As to this latter concern, the City now provides at least 75 percent of the public housing in Volusia County. The amendment, however, provides more opportunities for the new construction of affordable housing units. Also, the mixed use category and its location near retail and office uses and arterial roads will provide a greater diversified housing stock. Between the years 2000 and 2010, the City will need to annex additional acreage to accommodate the anticipated population growth for that period. Since the plan adoption, however, the City has annexed approximately 16,400 acres of land west of I-95 belonging to Indigo. The concept of "filtering" in relation to affordable housing is that when a new house is built, an existing household will move into that house and vacate a less expensive house. Filtering is discussed in the plan's data and analysis as a solution to providing the needed additional units for very low and low income households projected in Tables 5-20 and 5-21. The plan assumes that filtering is operative in the City, and the evidence shows that filtering does in fact operate as a source of affordable housing within the City. The City uses a large portion of its $1.2 million in federal community block grants in assisting low and very low income residents to rehabilitate existing substandard housing. The City also employs a down payment assistance program to aid in the filtering process. This program consists of homeowner education and grants to low and very low income individuals for down payments on the purchase of an existing home, thereby enabling the individual to qualify for and successfully purchase existing housing stock. The program has not had any difficulty in finding housing stock for purchase by its clients. Finally, the City recently obtained an additional $1 million award of federal Housing Opportunities for People Everywhere (HOPE) funds for use in its rehabilitation and down payment assistance programs. While it is not possible to identify the location of future affordable housing on the future land use map, local government can create favorable conditions for affordable housing on the map by utilizing densities and locations. Here, the City has done so. The data and analysis reveal increased minimum floor densities to 15 units per acre minimum and a 25 units per acre maximum of multi-family housing and the location of land uses adjacent to arterial roads of 11th Street and the municipal stadium. They also reveal that the nature of mixed use categories with increased densities could result in three-story, more affordable apartment complexes. Finally, the amendment provides an additional forty-four acres of Level III residential in the area parallel to Williamson Boulevard, south of 11th Street, and increases sites at higher residential densities, and thus increases opportunities for affordable housing. Therefore, it is found that the plan amendment does not preclude the devevopment of affordable housing. b. Data and analysis used in the amendment All elements of a comprehensive plan must be based on "appropriate data." According to Rule 9J-5.005(2)(c), Florida Administrative Code, that data must be taken from existing data sources and should be the "best available existing data." As to population data, Rule 9J-5.005(2)(e), Florida Administrative Code, requires comprehensive plans to be based on resident and seasonal population estimates and projections provided by the University of Florida, Bureau of Economic and Business Research, the Executive Office of the Governor, or generated by the local government. Finally, where data are relevant to several elements, Rule 9J-5.005(5), Florida Administrative Code, requires that "the same data shall be used, including population estimates and projections." The City has adhered to each of these requirements, and it is found that the plan amendment is based on the best available data and analysis. Population projection information is used in several plan elements. If the 1990 Census was used to support one element, as petitioners suggest it should have been, that same census must be used to support the other elements. Stated another way, the chosen population estimates and projections must be used consistently throughout the entire plan. Relying on different censuses in different elements would render the plan internally inconsistent. Contrary to petitioners' assertion, there is no specific requirement that a local government update its population estimates and projections each time it amends its plan. Such a requirement would impose an unreasonable burden on local governments without advancing any of the purposes of the Act. Petitioners failed to present any compelling reason that the 1990 Census should be the underlying basis for plan amendments before the EARs are due. The fact that the 1990 Census was available in its raw form in the fall of 1991 is not persuasive to overcome the specific requirements of Rule 9J-5.005(2)(c), Florida Administrative Code, as to the approved sources of population estimates and projections. Therefore, it is found that the City was not required to use the 1990 Census in support of its amendment. The LPGA property is located within Zone C, one of three zones designated in the future land use element. Of the 3,995 available vacant developable residential acreage, 2,740 acres were originally allocated to Zone C within the City. Under the plan amendment, the available residential land in Zone C has been reduced to 1,313 acres. The reduction of residential land by the amendment reduces the overall residential developable acres to 2,838. The City's total residential acreage need is 2,144 acres. Of that 2,144 acres, approximately 876 acres are required for very low and low income housing. The data indicates that an additional 694 excess acres are available to accommodate affordable housing needs within the City. When added to the 876 acres previously required for very low and low income housing, a total of 1,570 acres are available to accommodate the very low and low income affordable housing needs within the City. The data and analysis also indicate that a ratio of 1.8 or 180 percent of the need for affordable housing acreage is being met by the City. The more land that is made available by the City increases the opportunity for market forces to work to provide housing. The ratio of 1.8 is further increased by the recent annexation of the Indigo property of approximately 16,400 acres. Not including the recently annexed property, 46 percent of the total vacant residential acreage in the City is in the LPGA property. The LPGA Development of Regional Impact Intervenors' property which is the subject of this amendment is intended to be the future headquarters site of the Ladies Professional Golf Association (LPGA). If completed as originally planned, it will be the size of the neighboring municipality of Holly Hill. The development is a public-private joint venture between the City and intervenors, and the City and State have pledged $23 million of public money for the project. In conjunction with the project, a development of regional impact (DRI) development order was adopted by the City on August 18, 1993. Petitioners did not appeal that order. A DRI is a development order issued by a local government. It pertains to approval for a specific type of development requested by a developer for a particular site. In contrast, a comprehensive plan is a different type of document altogether which considers long range planning for an entire jurisdiction, taking into account the cumulative effect of many developments. DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate and apart from that undertaken here. Conversely, comprehensive plans and amendments must comply with Subsection 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with chapter 380 to be "in compliance." A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process to allow for different types of development or increased development over certain thresholds. Then, too, a developer may add up to ten percent more residential units without going through the substantial deviation process. Finally, a development order may expire during the planning period without finishing or even beginning construction. In reviewing a plan amendment, the whole range of development possibilities must be evaluated regardless of any development order issued for the affected land. What a DRI development order, or any other development order, allows to be constructed on a parcel of land which is the subject of a plan amendment is therefore irrelevant for amendment review purposes. Applications for DRI approval are prepared and submitted to the DCA by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan amendment. It is true, of course, that some information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment. Here, however, the information regarding income range of employees and price range of housing anticipated to be constructed on the project site is speculative and should not guide the scope of review for a long range planning document. Indeed, it was not credibly shown how this information applies to the plan or any requirements in this proceeding. Therefore, petitioners' reliance on various projections used in the DRI application for incremental development approval and other DRI documents is misplaced and not relevant to this action. The amendment's internal and external consistency Rule 9J-5.005(5), Florida Administrative Code, requires comprehensive plan elements to be consistent with each other. The same rule requires the future land use map to reflect the goals, objective and policies within all elements of a plan. When amending a plan, consistency is maintained by using data consistently throughout the plan. In order to be internally consistent, the City was required to use 1980 census data for the plan amendment, as it did here. By adding policies to the housing element, the City has assisted with the implementation of objective 1.1 of the housing element. By changing the land use designations on the future land use map, the City has effectively increased the opportunity for higher density housing. Finally, the plan amendment's changes to the future land use element are consistent with and further objective 1.1 of the housing element. Accordingly, the plan amendment is found to be internally inconsistent. The state comprehensive plan is found in Chapter 187, Florida Statutes. The appropriate regional policy plan in this case is the East Central Florida Comprehensive Regional Policy Plan. The DCA does not interpret Subsection 163.3177(10(a), Florida Statutes, as requiring a plan or amendment to be consistent with every policy in the state or regional plans. If an inconsistency with an individual policy exists, that policy is not viewed in isolation but rather is considered in the context of the complete state or regional plan. While an amendment may frustrate the achievement of a policy in the state or regional plan, it may further the local government's pursuit of another policy, thus rendering the amendment to be consistent with the state or regional plan construed as a whole. Petitioners allege that the amendment is inconsistent with state plan goals 5, 8, 10 and 16 and with regional policy plan issues 19, 37, 43, 44 and In the joint prehearing stipulation, they also make reference to regional policies 19.1(1), 19.2 and 19.3(4) and state plan provisions found in Subsections 187.201(5)(a), (b)1. and (b)3., Florida Statutes. They did not, however, present any evidence describing how the plan amendment is inconsistent with the foregoing goals, issues or statutes. To the contrary, the more credible and persuasive evidence supports a finding that the amendment is consistent with both the state and regional plans. Therefore, the plan amendment is in compliance. Attorney's fees Intervenors, but not the DCA or City, have requested sanctions on the theory that the petition initiating Case No. 93-4863GM was filed for an improper purpose within the meaning of Subsections 120.57(1)(b)5., 120.59(6)(a), and 163.3184(12), Florida Statutes. The request is grounded principally on the notion that because the initial petition of 1000 Friends of Florida and Robert Jenks contains allegations pertaining to environmental issues, and no proof was submitted at final hearing as to those claims, the undersigned should draw an inference that the petition was filed for an improper purpose. Having cosidered the totality of the record, the undersigned concludes that insufficient evidence exists to make such an inference. Similarly, there is an insufficient record basis to find that petitioners raised the issue of affordable housing merely to cause unnecessary delay, or that 1000 Friends of Florida's conduct as a whole constitutes "economic harrassment." Therefore, the request for sanctions is denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the City's plan amendment to be in compliance with the law. DONE AND ENTERED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May 1994. APPENDIX Petitioners: Although the undersigned has considered petitioners' joint proposed order in the preparation of this recommended order, he has not made specific rulings on proposed findings of fact since the proposed order was untimely and it violated Rule 60Q-2.031(3), Florida Administrative Code. Respondents: 1. Partially accepted in finding of fact 3. 2-3. Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 5. 7-8. Partially accepted in finding of fact 6. 9. Partially accepted in finding of fact 5. 10-11. Rejected as being unnecessary. 12. Partially accepted in findings of fact 4 and 29. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 29. 17-18. Partially accepted in finding of fact 31. 19. Partially accepted in finding of fact 30. 20-21. Partially accepted in finding of fact 31. 22. Partially accepted in findings of fact 8 and 9. 23. Partially accepted in finding of fact 9. 24-25. Partially accepted in finding of fact 10. 26. Partially accepted in finding of fact 11. 27-29. Partially accepted in finding of fact 14. 30-31. Partially accepted in finding of fact 17. 32-33. Partially accepted in finding of fact 18. 34-35. Partially accepted in finding of fact 19. 36-37. Partially accepted in finding of fact 20. 38-39. Partially accepted in finding of fact 21. 40-41. Partially accepted in finding of fact 22. 42. Partially accepted in finding of fact 15. 43.-45. Partially accepted in finding of fact 24. 46-47. Partially accepted in finding of fact 26. 48. Partially accepted in finding of fact 27. 49. Partially accepted in finding of fact 35. 50-51. Partially accepted in finding of fact 36. 52. Partially accepted in finding of fact 37. 53. Partially accepted in finding of fact 38. 54-56. Partially accepted in finding of fact 39. 57. Rejected as being unnecessary. 58-59. Partially accepted in finding of fact 43. 60-61. Partially accepted in finding of fact 44. Intervenors: 1-2. Partially accepted in finding of fact 1. 3-7. Partially accepted in finding of fact 3. Covered in preliminary statement. Partially accepted in finding of fact 1. Rejected as being unnecessary. 11-13. Partially accepted in finding of fact 4. 14-15. Partially accepted in finding of fact 5. 16. Rejected as being unnecessary. 17. Partially accepted in finding of fact 6. 18-21. Partially accepted in finding of fact 32. 22-25. Partially accepted in finding of fact 25. 26. Partially accepted in finding of fact 14. 27. Partially accepted in finding of fact 21. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 25. 30. Partially accepted in finding of fact 26. 31-32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 34. 34. Partially accepted in finding of fact 27. 35. Rejected as being unnecessary. 36. Partially accepted in finding of fact 7. 37. Rejected as being unnecessary. 38-41. Partially accepted in finding of fact 8. 42-43. Partially accepted in finding of fact 9. 44. Partially accepted in finding of fact 10. 45-49. Partially accepted in finding of fact 11. 50. Partially accepted in finding of fact 12. 51. Partially accepted in finding of fact 13. 52. Partially accepted in finding of fact 29. 53-56. Partially accepted in finding of fact 32. 57. Rejected as being unnecessary. 58-60. Partially accepted in finding of fact 32. 61-64. Partially accepted in finding of fact 33. 65. Partially accepted in finding of fact 11. 66-67. Partially accepted in finding of fact 6. 68. Rejected as being unnecessary. 69-70. Partially accepted in finding of fact 6. 71-77. Partially accepted in finding of fact 28. 78-81. Rejected as being unnecessary. 82-89. Partially accepted in findings of fact 34-39. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 14. Rejected as being unnecessary. Partially accepted in finding of fact 25. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 24. 100-104. Partially accepted in findings of fact 40-44. 105-106. Partially accepted in finding of fact 5. 107-119. Partially accepted in findings of fact 40-44. 120-160. Rejected. See finding of fact 45. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the evidence, subordinate, unnecessary to a resolution of the issues, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Karen A. Brodeen, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Richard J. Grosso, Esquire Post Office Box 5948 Tallahassee, Florida 32314 Paola G. Annino, Esquire 308 South Martin Luther King Drive Daytona Beach, Floirda 32014-4872 Frank B. Gummey, III, Esquire Marie S. Hartman, Esquire Post Office Box 2451 Daytona Beach, Florida 32115-2451 James F. Page, Jr., Esquire Thomas A. Cloud, Esquire Michele P. Scarritt, Esquire Post Office Box 2068 Orlando, Florida 32802-3068 Jonathan W. Hewett, Esquire 216 South 6th Street Palatka, Florida 32177-4608 Robert F. Apgar, Esquire Post Office Box 10809 Daytona Beach, Florida 32120
The Issue The issue is whether the Evaluation and Appraisal Report (EAR) amendments for the Bay County (County) Comprehensive Plan (Plan) are in compliance.
Findings Of Fact The Parties Diane C. Brown resides and owns property within the County, and she submitted written and oral comments to the County during the adoption process of Ordinance No. 09-36. The County is a local government that administers its Plan and adopted the Ordinance which approved the changes being contested here. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The EAR Process The County's first Plan was adopted in 1990 and then amended through the EAR process in 1999. As required by law, on September 5, 2006, the County adopted another EAR and in 2007 a Supplement to the EAR. See County Ex. 1C and 1D. The EAR and Supplement were found to be sufficient by the Department on December 21, 2007. See County Ex. 1E. After the EAR-based amendments were adopted by the County and transmitted to the Department for its review, the Department issued its Objections, Recommendations and Comments (ORC) report. After making revisions to the amendments in response to the ORC, on October 20, 2009, the County enacted Ordinance No. 09-36, which adopted the final version of the EAR-based amendments known as "Charting Our Course to 2020." See County Ex. 1B. On December 15, 2009, the Department issued its notice of intent determining that the EAR-based amendments were in compliance. See County Ex. 1F. Notice of this determination was published in the Panama City News Herald the following day. See County Ex. 1G. The EAR is a large document comprised of five sections: Overview Special Topics; Issues; Element Reviews; Recommended Changes; and a series of Maps. Section 163.3191(10), Florida Statutes, requires that the County amend its comprehensive plan "based" on the recommendations in the report; subsection (2) also requires that the County update the comprehensive plan based on the components of that subsection. The EAR-based amendments are extensive in nature, and include amendments to all 13 chapters in the Plan. However, many provisions in the 1999 version of the Plan were left unchanged, while many revisions were simply a renumbering of a provision, a transfer of a provision to another element, a change in the format, or an otherwise minor and non-substantive change. Although the EAR discusses a number of issues and concerns in the first three sections of the report, the EAR- based amendments must only be based on the recommended changes. See § 163.3191(10), Fla. Stat. Therefore, it was unnecessary for the County to react through the amendment process to the discussions in the Issues and Element Reviews portions of the EAR. For example, the EAR discusses air quality and mercury but made no specific recommendations to amend the Plan to address either subject. Also, nothing in chapter 163 or Department rules requires that the County implement changes to the Plan that parrot each specific recommendation to the letter. So long as the revisions are "based" on an area of concern in the recommendations, the statutory requirement has been satisfied. Section Four of the EAR contains the "Recommended EAR- Based Actions and Corrective Measures Section 163.3191(2)(i)." See County Ex. 1C, § 4, pp. 1-9. Paragraph (2)(i) of the statute requires that the EAR include "[t]he identification of any actions or corrective measures, including whether plan amendments are anticipated to address the major issues identified and analyzed in the report." Section Four indicates that it was intended to respond to the requirements of this paragraph. Id. at p. 1. Finally, the only issue in this proceeding is whether the EAR-based amendments are in compliance. Therefore, criticisms regarding the level of detail in the EAR and Supplement, and whether the County adequately addressed a particular issue in those documents, are not relevant. A determination that the EAR was sufficient in all respects was made by the Department on December 21, 2007. In her Amended Petition, Petitioner raises numerous allegations regarding the EAR-based amendments. They can be generally summarized as allegations that various text amendments, including entire elements or sub-elements, are inconsistent with statutory and rule provisions or are internally inconsistent with other Plan provisions, and that the County failed to properly react to changes recommended in the EAR. Because this is a challenge to an in-compliance determination by the Department, Petitioner must show that even though there is evidence to support the propriety of these amendments, no reasonable person would agree that the amendments are in compliance. See Conclusion of Law 90, infra. Objections Administrative Procedures - Chapter 1 Petitioner contends that new policy 1.4.1(4) is inconsistent with sections 163.3181 and 187.201(25)(a) and (b)6., which generally require or encourage effective citizen participation, and rule 9J-5.004, which requires a local government to adopt procedures for public participation. She also contends the County should not have deleted policy 1.4.2, which required the County to provide notices (by mail and sign postings) beyond those required by chapter 163. The new policy simply provides that notice of public hearings be provided for in accordance with chapter 163. There is no statutory or rule requirement that more stringent notice requirements be incorporated into a plan. The new notice requirements are consistent with the above statutes and rule. It is fairly debatable that the changes to the Administrative Procedures part of the Plan are in compliance. Future Land Use Element (FLUE) - Chapter 3 Petitioner has challenged (a) one policy that creates a new planning area; (b) the County's failure to adopt new energy standards in the FLUE; and (c) the adoption of new development standards for two land use categories in Table 3A of the FLUE. Table 3A describes each land use category in the Plan, including its purpose, service area, designation criteria, allowable uses, density, intensity, and development restrictions. See County Ex. 1A, Ch. 3, pp. 3-5 through 3-17. These contentions are discussed separately below. Southport Neighborhood Planning Area New FLUE policy 3.4.8 creates the Southport Neighborhood Planning Area (Southport), a self-sustaining community with a functional mix of uses. See County Ex. 1A, Ch. 3, pp. 3-20 and 21. The effect of the amendment is simply to identify Southport as a potential planning area that includes a mixture of uses. This follows the EAR recommendations to create "new areas where residents are allowed to work, shop, live, and recreate within one relatively compact area while preserving the rural and low density land uses in the area[,]" and to create "higher density rural development." County Ex. 1C, § 4, p. 2. Southport is located north of the greater Panama City area in an unincorporated part of the County near or adjacent to the proposed new intersection of County Road 388 and State Road 77. Southport is also identified in new policy 3.2.5(8) as a Special Treatment Zone (STZ) that is designated as an overlay on the Future Land Use Map Series. Id. at p. 3-5. (There are seven STZs in the Plan that act as overlay districts on the FLUM. Overlays do not convey development rights.) Petitioner contends that policy 3.4.8 is inconsistent with sections 163.3177(6)(a) and (d), (8), and (9)(b) and (e), and rules 9J-5.005(2), (5), and (7), 9J-5.006(5), and 9J-5.013. More precisely, Petitioner generally contends that the amendment will encourage urban sprawl; that there is no need for the additional development; that there are no central water and wastewater facilities available to serve that area; that there is no mechanism for monitoring, evaluating, and appraising implementation of the policy; that it will impact nearby natural resources; that it allows increased density standards in the area; and that it is not supported by adequate data and analysis. Most of the data and analysis that support the establishment of the new planning area are in the EAR. They are found in the Introduction and Overview portion of Section One and the FLUE portion of Section 3 of the Element Reviews. The County Director of Planning also indicated that the County relied upon other data as well. Although the new policy allows an increase in maximum residential density from five to 15 dwelling units per acre, paragraph (b) of the policy specifically requires that "all new development [be] served by central water and sewer." Petitioner's expert opined that the new community will create urban sprawl. However, Southport is located within the suburban service area of the County, which already allows densities of up to five dwelling units per acre; it is currently developed with low-density residential uses; and it is becoming more urban in nature. Given these considerations, it is fairly debatable that Southport will not encourage urban sprawl. The new STZ specifically excludes the Deer Point Reservoir Protection Zone. Therefore, concerns that the new policy will potentially threaten the water quantity and quality in that reservoir are not credited. In addition, there are other provisions within the Plan that are designed to protect the reservoir. Petitioner criticized the County's failure to perform a suitability analysis before adopting the amendment. However, a suitability study is performed when a land use change is proposed. Policy 3.4.8 is not an amendment to the FLUM. In fact, the Plan notes that "[n]othing in this policy shall be interpreted as changing the land use category of any parcel of the [FLUM]." County Ex. 1A, Ch. 3, p. 3-21. In determining the need for this amendment, the County took into consideration the fact that except for the Beaches STZ, the EAR-based amendments delete residential uses as an allowed use in commercially-designated lands. The number of potential residential units removed from the commercial land use category far exceeds the potential number of residential units that could be developed at Southport. Thus, the new amendment will not result in an increase in residential units. Petitioner also contends that the County should have based its needs analysis using Bureau of Economic and Business Research (BEBR) estimates. The County's population projections are found in the Introduction portion of the EAR and while they make reference to BEBR estimates, they are not based exclusively on those data. See County Ex. 1C, § 1, pp. 2 and 3. However, there was no evidence that the estimates used by the County are not professionally acceptable. Where there are two acceptable methodologies used by the parties, the Department is not required to evaluate whether one is better than the other. See § 163.3177(10)(e), Fla. Stat. ("the Department shall not evaluate whether one accepted methodology is better than another"). The County's estimates are professionally acceptable for determining need. The other objections to the amendment have been considered and found to be without merit. Therefore, it is at least fairly debatable that the amendment is in compliance. Neighborhood Commercial - Table 3A The purpose of this commercial category is to "provide areas for the convenience of residential neighborhoods so as to generate a functional mix of land uses and reduce traffic congestion." County Ex. 1A, Ch. 3, p. 3-15. Allowable uses include, among others, supermarket centers, restaurants, public facilities, and other similar uses. The County amended the intensity standard for this category by allowing development that is "[n]o more than 50-feet in height." Id. Petitioner asserts that the new 50-foot height limitation for commercial buildings results in the amendment being inconsistent with rule 9J-5.006 because it is not based on adequate data and analysis. Petitioner further argues that the standard is internally inconsistent with FLUE objective 3.9 and policy 3.9.1 and Housing Element objective 8.5, which relate to compatibility. Finally, Petitioner alleges that it will cause unsustainable density in the category and create new demands for public services. The EAR contains a section that analyzes data regarding residential development in commercial land use categories. See County Ex. 1C, § 2. There is, then, data and analysis that support the amendment. The 50-foot height limitation actually limits the intensity that would normally be allowed under current Land Development Regulations (LDRs) if this limitation were not in the Plan. Therefore, it will not increase the intensity of development within this district. Because the Plan specifically provides that the category is for "areas [with] low-intensity commercial uses that will be compatible with adjacent or surrounding residential uses," and such uses must be located "outside subdivisions . . . unless intended to be included in the subdivisions," compatibility issues with adjacent residential areas should not arise. Petitioner failed to establish beyond fair debate that the amendment is not in compliance. Seasonal/Resort - Table 3A This land use category is designed for transient occupancy (temporary seasonal visitors and tourists) under chapter 509, rather than permanent residents. It is limited to areas with concentrations of accommodations and businesses that are used in the tourist trade. See County Ex. 1A, Ch. 3, p. 3- The category includes a new intensity standard for buildings of "[n]o more than 230-feet in height." Id. Petitioner contends that this intensity standard is inconsistent with section 163.3177(6)(d), (8), and (9) and rules 9J-5.005(2) and (5), 9J-5.006, and 9J-5.013. These provisions require that an amendment protect natural resources, that it be based on the best available data and analysis, and that it be internally consistent with other Plan provisions. Petitioner also points out that the land use category is located in or adjacent to the Coastal High Hazard Area, that the amendment allows an increase in density, and this results in an inconsistency with statutes and rules pertaining to hurricane evacuation zones. Prior to the adoption of the EAR-based amendments, there was no intensity standard in the Plan for this land use category and all development was governed by LDRs. Pursuant to a recommendation by the Department in its ORC, the new standard was incorporated into the Plan. Before making a decision on the specific height limitation, the County considered existing condominium construction on the beach, current LDR standards for the district, and whether the new standard would create an internal inconsistency with other Plan provisions. Therefore, it is fair to find that adequate data were considered and analyzed. The new height limitation is the same as the maximum height restriction found in the Seasonal Resort zoning district, which now applies to new construction in the district. Because condominiums and hotels that do not exceed 230 feet in height are now allowed within the district, and may actually exceed that height if approved by the County, the amendment is not expected to increase density or otherwise affect hurricane evacuation planning. Historically, transient visitors/tourists are the first to leave the area if a hurricane threatens the coast. Petitioner also contends that the amendment will create compatibility problems between existing one- or two-story residential dwellings in the district and high-rise condominiums, and that the County failed to adequately consider that issue. However, before a condominium or other similar structure may be built, the County requires that the developer provide a statement of compatibility. It is fairly debatable that the new intensity standard is in compliance. Energy Issues Petitioner alleges that the new amendments do not adequately address energy issues, as required by section 163.3177(6)(a). That statute requires, among many other things, that the FLUE be based upon "energy-efficient land use patterns accounting for existing and future electric power generation and transmission systems; [and] greenhouse gas reduction strategies." However, amendments to objective 3.11 and policy 3.11.5, which relate to energy-efficient land use patterns, adequately respond to these concerns. See County Ex. 1A, Ch. 3, pp. 3-27 and 3-28. In addition, new Transportation Element policy 4.10.3 will result in energy savings and reduce greenhouse gases by reducing idle times of vehicular traffic. See County Ex. 1A, Ch. 4, p. 4-12. It is fairly debatable that the energy portions of the Plan are in compliance, and they promote energy efficient land use patterns and reduce greenhouse gas emissions, as required by the statute. Transportation Element - Chapter 4 The EAR contains 14 recommended changes for this element. See County Ex. 1C, § 4, pp. 2-4. Item 2 recommends generally that bike paths be installed in or next to certain areas and roadways. Id. at p. 2. Petitioner contends that this recommendation was not implemented because it is not included in the Recreation and Open Space Element. However, one section of the Transportation Element is devoted to Bicycle and Pedestrian Ways and includes objectives 4.14 and 4.15 and policies 4.14.1 and 4.15.1, which respond to the recommendation. See County Ex. 1A, Ch. 4, pp. 4-14 and 4-15. In addition, the General Strategy portion of the element requires the County to install alternative transportation systems where a demonstrated need exists. Id. at p. 4-1. Petitioner contends that by limiting bike paths only to where there is a demonstrated need, the County has not fully responded to the recommendation. This argument is illogical and has been rejected. It is fairly debatable that the above amendments are in compliance. Groundwater Aquifer Recharge - Chapter 5F As required by section 163.3177(6)(c), the County has adopted a natural groundwater aquifer recharge element. See County Ex. 1A, Ch. 5F. The goal of this sub-element, as amended, is to "[s]afeguard the functions of the natural groundwater recharge areas within the County to protect the water quality and quantity in the Floridan Aquifer." County Ex. 1A, Ch. 5, p. 5F-1. The EAR contains three recommended changes for this part of the Plan: that the County update its data and analysis to identify areas of high and/or critical recharge for the Floridan aquifer; that it include in the data and analysis an examination of existing LDRs which affect land uses and development activities in high recharge areas and note any gaps that could be filled through the LDRs; and that it include within the data and analysis a study of potential impacts of increased development in high recharge areas, including reasonable development standards for those areas. See County Ex. 1C, §4, pp. 4-5. Petitioner contends that "the objectives and policies pertaining to protecting water recharge areas" are inconsistent with sections 163.3177(6)(d) and 187.201(7) and rules 9J-5.5.011 and 9J-5.013, which require that the Plan protect groundwater; that they violate section 163.3177(8) and rule 9J-5.005(7), which require measurable objectives for monitoring, evaluating, and appraising implementation; and that the County violated section 163.3191(10) by failing to respond to the recommended changes in the EAR. In response to the EAR, in July 2009, the County prepared a watershed report entitled "Deer Point Lake Hydrologic Analysis - Deer Point Lake Watershed," which was based on a watershed management model used by County expert witness Peene. See County Ex. 4. The model used for that report is the same model used by the Department of Environmental Protection (DEP) and the United States Army Corps of Engineers. The study was also based on data and analysis prepared by the Northwest Florida Water Management District. The purpose of the analysis was to look at potential future land use changes in the Deer Point watershed and assess their ultimate impact upon the Deer Point Reservoir, which is the primary public water supply for the County. The model examined the entire Deer Point watershed, which is a much larger area than the Deer Point Lake Protection Zone, and it assumed various flows from rain, springs, and other sources coming into the Deer Point Reservoir. The study was in direct response to a recommendation in the EAR that the County undertake a study to determine if additional standards were needed to better protect the County's drinking water supply and the St. Andrews estuary. See County Ex. 1C, § 4, p. 5. Another recommendation was that the study be incorporated by reference into the data and analysis of the Plan and be used as a basis for any amendments to the Plan that might be necessary. Id. at p. 6. Pursuant to that recommendation, the report was incorporated by reference into Objective 5F.1. See County Ex. 1A, Ch. 5, p. 5F-1. The evidence supports a finding that the report is based on a professionally accepted methodology and is responsive to the EAR. The model evaluated certain future land use scenarios and predicted the level of pollutants that would run off of different land uses into the Deer Point Reservoir. Based on this analysis, Dr. Peene recommended that the County adopt certain measures to protect the groundwater in the basin from fertilizers, stormwater, and pesticides. He also recommended that best management practices be used, that septic tanks be replaced, and that any new growth be on a centralized wastewater treatment plant. Petitioner's expert criticized the report as not sufficiently delineating the karst features or the karst plain within the basin. However, the report addresses that issue. See County Ex. 4, p. 2-36. Also, Map 13 in the EAR identifies the Karst Regions in the County. See County Ex. 1C, § 5, Map 13. One of the recommendations in the EAR was to amend all goals, policies, and objectives in the Plan "to better protect the Deer Point watershed in areas not included within the Deer Point Reservoir Special Treatment Zone, and [to] consider expanding the zone to include additional areas important to preserving the quantity and quality of water entering the reservoir." County Ex. 1C, § 4, p. 6. Besides amending the sub-element's goal, see Finding of Fact 31, supra, the County amended objective 5F.1 to read as follows: By 2010 protect groundwater resources by identifying and mapping all Areas of High Aquifer Recharge Potential to the Floridan Aquifer in Bay County by using the data and analysis contained in the Deer Point Lake Hydrologic Analysis - Deer Point Watershed, prepared by Applied Technology and Management, Inc., dated July 2009. In addition, policy 5F-1.1 requires that the County use "the map of High Aquifer Recharge Areas to establish an Ecosystem Management overlay in the Conservation Element where specific land use regulations pertaining to aquifer water quality and quantity shall apply." Also, policy 5F-1.2 requires the identification of the Dougherty Karst Region. Finally, the EAR and Map 13A were incorporated by reference into the Plan by policy 1.1.4.4. These amendments sufficiently respond to the recommendations in the EAR. While Petitioner's expert criticized the sufficiency of the EAR, and he did not believe the report adequately addressed the issue of karsts, the expert did not establish that the study was professionally unacceptable or otherwise flawed. His criticism of the County's deletion of language in the vision statement of the sub-element that would restrict development density and intensity in areas known to have high groundwater aquifer potential is misplaced. An amendment to a vision statement is not a compliance issue, and nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to limit "density and intensity" in high aquifer recharge areas. On this issue, the EAR recommended that the County's drinking water supply be protected by using "scientifically defensible development standards." County Ex. 1C, § 4, p. 5. The amendments accomplish this result. Petitioner also contends that while new policy 5F.3 and related policies are "good," the County should have collected additional data and analysis on the existence of swallets, which are places where streams flow underground. Again, nothing in chapter 163 or chapter 9J-5 requires the County to consider swallets. Also, a contention that policy 5F3.2 allows solid waste disposal facilities in high recharge areas is without merit. The policy requires that the County continue to follow chapter 62-7 regulations (implemented by DEP) to protect water quality of the aquifers. In addition, a moratorium on construction and demolition landfills has been adopted, and current LDRs prohibit landfills within the Deer Point Reservoir Protection Zone. Petitioner also criticized the sufficiency of policy 5F.4, which requires the implementation of LDRs that limit land uses around high aquifer recharge areas. The evidence establishes that the new policy is sufficient to achieve this purpose. It is at least fairly debatable that the new amendments protect the natural resources, are based on the best available data and analysis, include measurable objectives for overseeing the amendments, and respond to the recommended changes in the EAR. Conservation Element - Chapter 6 The purpose of this element is to conserve the natural resources of the County. Petitioner contends that "many of the amendments [to this chapter] are not consistent with applicable rules and statutes, and that a number of recommendations in the EAR pertaining to the Conservation Element were not implemented as required by Section 163.3191(10)." These contentions are discussed below. Air pollution While the EAR discusses air pollution, there were no specific recommendations to amend the plan to address air quality. See County Ex. 1C, Element Reviews, Ch. 6, pp. 1 and Petitioner contends, however, that current Plan objective 6.3, which was not amended, is not protecting air quality and should have been revised to correct major air quality problems in the County, including "the deposition of atmospheric mercury caused by fossil fuel burning power plants and incinerators." Objective 6.3 requires the County to maintain or improve air quality levels, while related policies 6.3.1 and 6.3.2 require that the County's facilities will be constructed and operated in accordance with state and federal standards. The policies also require that the County work through state and federal agencies to eliminate unlawful sources of air pollution. Notably, the County does not regulate emissions or air pollution, as that responsibility lies within the jurisdiction of other state and federal agencies. It is fairly debatable that the County reacted to the EAR in an appropriate manner. Policies and Objectives in Chapter 6 Petitioner contends that policy 6.1.1 is inconsistent with section 163.3177(8) and rule 9J-5.005(2) because: it is not supported by adequate data and analysis; it does not implement the EAR recommendations, as required by section 163.3191(10); it is inconsistent with section 163.3177(9)(b) and (f) because it results in "inconsistent application of policies intended to guide local land use decision[s]"; it is inconsistent with sections 163.3177(6)(d) and 187.201(9) and (10) and rule 9J- 5.013 because it fails to adequately protect natural resources, including isolated wetlands; and it is internally inconsistent with other Plan provisions. Policy 6.1.1 provides that as a subdivision of the State, the County "will, to the maximum extent practicable, rely upon state laws and regulations to meet the conservation goals and objectives of this Plan." Item 9 in the recommended changes recommends that the County should resolve the ambiguities and inconsistencies between various policies and objectives which rely on the jurisdiction of state laws and regulation on the one hand, and objective 6.11 and implementing policies, which appear to extend wetland jurisdiction to all wetlands, including isolated wetlands not regulated by the Northwest Florida Water Management District. See County Ex. 1C, § 4, p. 6. The real issue involves isolated wetlands, which at the time of the EAR were not regulated by the Northwest Florida Water Management District. The EAR did not recommend a specific solution, but only to resolve any apparent "ambiguity." Through amendments to policy 6.11.3, which implements objective 6.11, the County reacted to the recommendation. These amendments clarify the Plan and provide that wetlands in the County will be subject to the Plan if they are also regulated by state and federal agencies. Any ambiguity as to the Plan's application to isolated wetlands was resolved by the adoption of new rules by the Northwest Florida Water Management District, which extend that entity's jurisdiction to isolated wetlands. See Fla. Admin. Code Ch. 62-346. This was confirmed by County witness Garlick, who explained that the Plan now defers to the wetland regulations of state and federal agencies. Therefore, any inconsistencies or ambiguities have been resolved. Petitioner contends that objective 6.2 and implementing policy 6.2.1 are inconsistent with statutes and a rule which require protection of natural resources because they focus on "significant" natural resources, and not all natural resources. With the exception of one minor change to the policy, the objective and policy were not amended, and the EAR did not recommend that either be revised. Also, testimony established that existing regulations are applied uniformly throughout the County, and not to selected habitat. Finally, the existing objective and related policies already protect rare and endangered species in the County. Objective 6.3 requires that the County "maintain or improve air quality levels." For the reasons cited in Finding of Fact 45, the objective is in compliance. Objective 6.5 requires the County to maintain or improve estuarine water quality consistent with state water quality standards, while policy 6.5.1 delineates the measures that the County will take to achieve that objective. See County Ex. 1A, Ch. 6, pp. 6-4 and 6-5. Except for one minor change to paragraph (3) of the policy (which is not in issue), neither provision was revised. Also, the EAR did not recommend any changes to either provision. Notwithstanding Petitioner's contention to the contrary, the County was not required to revise the objective or policy. Policy 6.5.2 requires that the County "protect seagrass beds in those areas under County jurisdiction" by implementing certain enforcement measures. County Ex. 1A, Ch. 6, p. 6-5. The policy was only amended in minor respects during the EAR process. Petitioner contends that the County failed to amend the policy, as required by the EAR, and this failure results in no protection to natural resources. However, the EAR only discusses the policy in the Issues section. See County Ex. 1C, § 2, p. 7. While the EAR emphasizes the importance of seagrass beds to marine and estuarine productivity, it has no recommended changes to the objective or policy. Even so, the County amended policy 6.5.2(5) by requiring the initiation of a seagrass monitoring program using Geographic Information System (GIS) mapping by 2012. See County Ex. 1A, Ch. 6, p. 6-6. It is at least fairly debatable that the objective and policy are in compliance. Objective 6.6 requires the County to "protect, conserve and appropriately use Outstanding Florida Waters, Class I waters and Class II waters." County Ex. 1A, Ch. 6, p. 6-6. Its purpose is to ensure the quality and safety of the County's primary drinking water supply. Id. The objective was not amended and remains unchanged since 1999. Except for a recommendation that the County give a land use designation to water bodies, there were no recommended changes for this objective or related policies in the EAR. Because land use designations are for land, and not water, the County logically did not assign a land use to any water bodies. Petitioner contends that the objective and related policies are not based on the best available data and analysis and are not measurable, and that they fail to protect Lake Powell, an Outstanding Florida Water, whose quality has been declining over the years. Because no changes were recommended, it was unnecessary to amend the objective and policies. Therefore, Petitioner's objections are misplaced. Notably, the Plan already contains provisions specifically directed to protecting Lake Powell. See, e.g., policy 6.6.1(1), which requires the County to specifically enforce LDRs for Lake Powell, and objective 6.21, which requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." County Ex. 1A, Ch. 6, pp. 6-6 and 6-24. Petitioner's expert also criticized the objective and related policies on the ground the County did not adequately identify karst areas in the region. However, nothing in the EAR, chapter 163, or chapter 9J-5 requires the County to collect new data on the existence of karst areas. Petitioner also points out that objective 6.6 and policy 6.6.1 are designed to protect Deer Point Lake but were not amended, as required by the EAR, and they fail to adequately protect that water body. For the reasons expressed in Finding of Fact 55, this contention has been rejected. Objective 6.7, which was not amended, provides that the County "[c]onserve and manage natural resources on a systemwide basis rather than piecemeal." County Ex. 1A, Ch. 6, p. 6-8. Related policies, which were not amended except in one minor respect, require that the County implement programs in "Ecosystem Management Areas." These areas are illustrated on Map 6.1 of chapter 6. Petitioner contends that even though they were not amended, the objective and policies are not supported by adequate data and analysis, they fail to contain measurable standards, and they are not responsive to a recommendation in the EAR. Because no changes were made to these provisions, and the EAR does not recommend any specific changes, the contentions are rejected. The 17 water bodies comprising the Sand Hill Lakes are identified in policy 6.9.1. Policy 6.9.3, which also implements objective 6.9, continues the practice of prohibiting development with a density of greater than one unit per ten acres on land immediately adjacent to any of the Sand Hills Lakes outside designated Rural Communities. See County Ex. 1A, Ch. 6, p. 6- (The three Rural Communities in the County have been designated as a STZ and are described in FLUE policy 3.4.4.) The policy has been amended by adding new language providing that "[p]roposed developments not immediately adjacent to, but within 1320 feet of a Sand Hill Lake, and outside of a designated Rural Community, will provide, prior to approval, an analysis indicating that the development will not be too dense or intense to sustain the lake." Id. Other related policies are unchanged. The amendment was in response to a recommendation in the EAR that all goals, objectives, and policies be amended to more clearly define the area around the Sand Hill Lakes within which densities and intensities of land must be limited to ensure protection of the lakes. See County Ex. 1C, § 4, p. 6. Petitioner contends that the amended policy is inconsistent with various statutes and rules because it contains no specific standards for site suitability assessment and does not restrict density bordering on the lake; it does not implement the EAR; it is not based on EAR data and analysis; and it does not contain procedures for monitoring and evaluating the implementation of all policies. Policy 6.9.3 applies to agricultural areas outside of rural communities where the maximum density is now one dwelling unit per ten acres, and to properties that are designated as agriculture timber, which allows one dwelling unit per 20 acres. Contrary to Petitioner's assertion, it does not change the established densities on those land use categories. Before a property owner can convert a land use affected by the policy, the applicant will be required to provide an analysis that the new development will not be too intense or dense to sustain the lake. It is at least fairly debatable that the amendment responds to the EAR recommendation, that it will not increase density, that it is based on sufficient data and analysis in the EAR, and that adequate standards are contained in the policies to ensure proper implementation. Objective 6.11 requires the County to "[p]rotect and conserve wetlands and the natural functions of wetlands." County Ex. 1A, Ch. 6, p. 6-14. A challenge to an amendment to policy 6.11.3(3), which relates to setbacks or buffers for wetlands, has already been addressed in Case No. 10-0859GM. Policy 6.11.3 provides that in order "[t]o protect and ensure an overall no net loss of wetlands," the County will employ the measures described in paragraphs (1) through (6) of the policy. Petitioner contends that by using the standards employed by state and federal agencies for wetlands in paragraph (2), the County has abdicated its responsibility to protect natural resources. However, as previously discussed, the recent assumption of jurisdiction over isolated wetlands by the Northwest Florida Water Management District allows the County to extend these measures to all wetlands in the County. Petitioner also contends that the term "no net loss" in policy 6.11.3 is not measurable. Through its GIS system, though, the County can monitor any loss of wetlands. This was confirmed by County witness Garlick. In addition, the County will know at the development order phase whether any federal or state agency requires mitigation to offset impacts to wetlands. It is at least fairly debatable that the amendments to policy 6.11.3 will protect all wetlands, including isolated wetlands. Objective 6.12 requires that by the year 2012, the County will "develop a GIS layer that provides baseline information on the County's existing wetlands. This database will be predicated on the USFWS [United States Fish and Wildlife Service] National Wetlands Inventory (Cowardin et al 1979) hierarchy of coastal and inland (wetlands) represented in North Florida. This inventory shall be developed through a comprehensive planning process which includes consideration of the types, values, functions, sizes, conditions and locations of wetlands." County Ex. 1A, Ch. 6, p. 6-15. Related policies 6.12.1, 6.12.2, and 6.12.3 require that the County (a) use the GIS database to identify, classify, and monitor wetlands; (b) adopt LDRs which further the objective and policies; and (c) track in the GIS database the dredge and fill permits issued by DEP. Id. Petitioner criticizes the County's decision to wait until 2012 to develop a GIS layer; contends that policy 6.12.2 improperly defers to LDRs; asserts that the policy lacks meaningful standards; and contends it is not responsive to the EAR. The evidence presented on these issues supports a finding that it is at least fairly debatable that the amendments are in compliance. The EAR-based amendments deleted objective 6.13, together with the underlying policies, which related to floodplains, and created new provisions on that subject in the Stormwater Management Sub-Element in Chapter 5E. This change was made because the County concluded that floodplain issues should more appropriately be located in the stormwater chapter. The natural resource values of floodplains are still protected by objective 5E-9 and related policies, which require that state water quality standards are maintained or improved through the County's stormwater management programs. See County Ex. 1A, Ch. 5E, p. 5E-7. Also, "flood zones" are retained as a listed "significant natural resource" in Conservation Element policy 6.2.1. See County Ex. 1A, Ch. 6, p. 6-3. It is at least fairly debatable that the transfer of the floodplain provisions to a new element does not diminish protection of that resource. Finally, Objective 6.21 (formerly numbered as 6.23) requires the County to "[m]aintain or improve water quality and bio-diversity in the Lake Powell Outstanding Florida Water (OFW)." Except for renumbering this objective, this provision was not amended, and there is no specific recommendation in the EAR that it be revised. Therefore, the contentions that the existing policy are not in compliance are not credited. Coastal Management Element - Chapter 7 The recommended changes for this element of the Plan are found on pages 7 and 8 of Section 4 of the EAR. In her Proposed Recommended Order, Petitioner contends that the entire element is inconsistent with section 163.3191(10) because the County did not follow the recommendations in items 1, 2, and 4. Those items generally recommended that the County update the data and analysis supporting the element to reflect current conditions for, among other things, impaired waters. This was done by the County. Accordingly, the County adequately responded to the recommendations. Petitioner also contends that policy 7.1.1 improperly deferred protection of coastal resources to the LDRs. The policy reads as follows: 7.1.1: Comply with development provisions established in the [LDRs] for The Coastal Planning Area (Chapter 10, Section 1003.2 of the Bay County [LDRs] adopted September 21, 2004) which is hereby defined as all land and water seaward of the landward section line of those sections of land and water areas seaward of the hurricane evacuation zone. County witness Crelling established, however, that there are numerous other policies in the element that govern the protection of natural resources. Petitioner contends that no changes were made to provide additional guidance in policy 7.2.1 (formerly numbered as 7.3.1) to improve estuarine water quality even though multiple water bodies are listed as impaired. Except for a few clarifying changes, no revisions were made to the policy. Policy 7.2.1 does not reduce the protection for impaired waters. The minor rewording of the policy makes clear that the protective measures enumerated in the policy "will be taken" by the County to maintain or improve estuarine water quality. It is fairly debatable that the element and new objectives and policies are in compliance. Petitioner contends that amended objective 7.2 (formerly numbered as 7.3) will lead to less protection of water quality. The objective requires the County to "[m]aintain or improve estuarine water quality by regulating such sources of pollution and constructing capital improvements to reduce or eliminate known pollutants." County Ex. 1A, Ch. 7, p. 7-2. Its purpose is to regulate all known potential sources of estuarine pollution. The evidence fails to establish that the amended objective will reduce the protection of water quality. Policy 7.3.1 was amended to delete the requirement that areas with significant dunes be identified and mapped and to provide instead that the County may impose special conditions on development in dune areas as a part of the development approval process. See County Ex. 1A, Ch. 7, p. 7-4. This change was made because the EAR recommended that a requirement to map and identify dune systems be deleted due to the "extremely dynamic nature of beach and dune systems." County Ex. 1C, § 4, p. 7. A similar provision in the Conservation Element was transferred to the Coastal Management Element to respond to the recommended change. The County adequately responded to the recommendation. Petitioner contends that amended policy 7.3.2 (formerly numbered as 7.4.1) does not include sufficient standards to protect significant dunes. The amended policy requires that where damage to dunes is unavoidable, the significant dunes must be restored and revegetated to at least predevelopment conditions. It is at least fairly debatable that the standards in the policy are sufficient to protect dunes. In summary, the evidence does not establish beyond fair debate that the revisions to chapter 7 are not in compliance. Housing Element - Chapter 8 Petitioner contends the entire element is inconsistent with section 163.3191(10) because the County failed to react to recommendations in the EAR; and that new objective 8.16 and related policies 8.16.1, 8.16.2, and 8.16.3 are inconsistent with section 163.3177(9)(e) and rules 9J-5.005(6) and (7) because they fail to identify how the provisions will be implemented and thus lack specific measurable objectives and procedures for monitoring, evaluating, and appraising implementation. Petitioner focused on item 4 in the Recommended Changes for the Housing Element. That recommendation reads as follows: 4. The revised data and analysis should also include a detailed analysis and recommendations regarding what constitutes affordable housing, the various state and federal programs available to assist in providing it; where it should be located to maximize utilization of existing schools, medical facilities, other supporting infrastructure, and employment centers taking into consideration the costs of real property; and what the likely demand will be through the planning horizon. The objectives and policies should then be revised consistent with the recommendation of the analysis, including the creation of additional incentives, identification on the Future Land Use Map of areas suited for affordable housing, and, possibly amending the County Land Development Regulations to require the provision of affordable housing if no other alternatives exist. County Ex. 1C, § 4, p. 8. Item 1 of the Recommended Changes states that "[t]he County should implement those policies within the Housing Element which proactively address affordable housing, and in particular Policy 8.15.1 outlining density bonuses, reduced fees, and streamlined permitting, to provide incentives for the development of affordable housing." Id. Policy 8.15.1 was amended to conform to this recommendation. The new objective and policies address incentives for the development of affordable housing. While item 4 is not specifically addressed, the new objective and policies address the County's housing concern as a whole, as described in the Recommended Changes. Also, the new objective and policies contain sufficient specificity to provide guidance to a user of the Plan. It is fairly debatable that the element as a whole, and the new objective and policies, are in compliance. Intergovernmental Coordination Element - Chapter 10 Although discussed in the Element Reviews portion of the EAR, there are no recommended changes for this element. See County Ex. 1C, § 3, pp. 1-5. Petitioner contends that because the County deleted objective 10.5, the entire element conflicts with the EAR recommendations, and it is inconsistent with two goals in the state comprehensive plan, sections 163.3177(6)(h)1. and (9)(b) and (h), and rules 9J-5.015 and 9J-5.013(2)(b)8. The deleted provision required the County to "establish countywide resource protection standards for the conservation of locally significant environmental resources." Besides deleting this objective, the County also deleted objective 10.1, which provided that the County "will take the lead role toward the creation of an 'intergovernmental forum' as a means to promote coordination between various jurisdictions and agencies." County Ex. 1A, Ch. 10, p. 10-1. To support her argument, Petitioner relies upon a concern in the Issues part of the EAR that states that "countywide resource protection standards have not been established" and that "consistency of regulation between jurisdictions" must be observed. See County Ex. 1C, § 2, p. 45. Mr. Jacobson, the County Planning and Zoning Director, pointed out that the County currently has numerous interlocal agreements with various municipalities and does not require authorization from the Plan to adopt these agreements. Objective 10.5 was deleted because the County cannot implement its regulations in the various municipalities, and protection of natural resources is addressed in other portions of the Plan. He also noted that the "intergovernmental forum" discussed in deleted objective 10-1 is not required by any statute or rule. It is at least fairly debatable that the element is in compliance and does not violate any statute or rule. (i) Capital Improvements Element - Chapter 11 Petitioner contends that the County failed to implement three recommended changes in the EAR and therefore the entire element is in violation of section 163.3191(10). Those recommendations include an updating of information on the County's current revenue streams, debts, commitments and contingencies, and other financial matters; a revision of policy 11.6.1 to be consistent with Recreation and Open Space Element policy 9.71 with regard to recreational levels of service (LOS); and the development of a five-year schedule of capital improvements. See County Ex. 1, § 4, p.9. Policy 11.6.1 has been substantially revised through the EAR process. Table 11.1 in the policy establishes new LOSs, including one for local parks, regional parks, and beach access points. The County has also adopted an updated five-year Capital Improvement Plan. See County Ex. 36. That exhibit includes a LOS Analysis for recreational services. The same exhibit contains a breakdown of financial matters related to capital improvements. It is fairly debatable that the element is in compliance. Petitioner also contends that objective 11.1 and policy 11.1.1 are not in compliance. Both provisions remain unchanged from the 1999 Plan, and the EAR did not recommend that either provision be amended. The contention is therefore rejected. Other Issues All other issues not specifically addressed herein have been considered and found to be without merit, contrary to the more persuasive evidence, or not subject to a challenge in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the EAR-based amendments adopted by Ordinance No. 09-36 are in compliance. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2011.
The Issue The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
Findings Of Fact The Parties Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue. Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads. The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive. Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about 0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant. The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. History of Cocoa Comprehensive Plan Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes. Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance. The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category. The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997. The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997. Transmittal and Adoption Process On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted. On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA. At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion. The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting. Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed. At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee. At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one. Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation. At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations. However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent. The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County. In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources. On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989. Notwithstanding the Tenzel-related concerns expressed at the December 11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners. The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins. The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day. By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments. Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time. A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote. The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site. A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council. The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan. The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism. Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area. After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two. After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years. Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments. Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion. Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property. After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue. After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential. The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings. All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations. Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution. As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49. The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council. The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria. Data and Analysis in Support of Designations Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations. More pertinent to the Wilson and Tompkins parcels, the data and analysis note: Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical. Background Analysis, FLUE, page 1-26. At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16. On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26. Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation. Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land. The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development. If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis. The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories. Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity. Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater. A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments. The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis. Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments. This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section. The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis. For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J- 5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas and Discouraging Urban Sprawl FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities." Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6. Public Facilities Objective 4.2.5 is to adopt land development regulations that prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic] FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria: Provisions of new residential uses shall be adequately balanced with the availability of residential support services including community facilities, shopping, schools, parks and open space, and transportation services. The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur. Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses. Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools. FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides: New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical. Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities. The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive. However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment. The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan. The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy. Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl. FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources. There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation. The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas. Consistency of Designations with Regional and State Plans Regional Plan Policy 51.12 states: The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity. Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to: Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . . Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities Strengthening and preserving existing residential areas through the planned provision of public services, zoning and other techniques. Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . . Regional Policy Plan 51.10 limits the use of septic tanks in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be adhered to . . . where regional resources may be adversely affected: * * * 3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks. For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan. Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner." Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods." For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners. ENTERED this 8 day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of August, 1991.
The Issue The issue presented for consideration herein concerns the standing of Petitioners to challenge the development order entered by the City of Alachua, Florida, granting DPI approval to Turkey Creek, Inc. That order dates from June 15, 1982. In particular, the Motion to Dismiss filed by Respondent Turkey Creek asserts that Petitioners are not members of the class of individuals delineated in Subsection 380.07(2), Florida Statutes, who would have standing to appeal the development order; in that Petitioners are neither "owners" or within other classifications of individuals who might file an action before the Florida Land and Water Adjudicatory Commission, which action is in opposition to the grant of the development order. RECORD Although a transcription was not made of the motion hearing, the following items which are attached to this Recommended Order constitute the factual basis for this decision. Attachment "A" is the Notice of Appeal of development order; Attachment "B" is the petition for review of development order with its attendant exhibits; Attachment "C" is the letter of referral from the Secretary to the Florida Land and Water Adjudicatory Commission to the Director of the Division of Administrative Hearings; Attachment "D" is the answer and affirmative defenses to the petition filed by Turkey Creek; Attachment "E" is the motion to dismiss filed by Turkey Creek; Attachment "F" is the notice of hearing related to the motion to dismiss; and Attachment "G" is the supplemental authority offered by Turkey Creek. For purposes of this Recommended Order, notwithstanding the answer of Turkey Creek wherein facts of the Petition are denied, the factual allegations related to the standing issue as made through the petition are deemed to be factually accurate, with the exception of those contentions pertaining to conclusions of law.
Findings Of Fact On January 4, 1982, the Turkey Creek Development of Regional Impact Application for Development Approval was filed with the City of Alachua, Florida, City Commission and North Central Florida Regional Planning Council in accordance with Chapter 380, Florida Statutes. It was filed by Turkey Creek, Inc., as applicant. Turkey Creek, Inc. is wholly-owned by Norwood W. Hope, N. Forest Hope and A. Brice Hope. Turkey Creek proposes to develop 5,300 residential dwelling units on 976+- acres, which constitutes a residential development of regional impact according to Chapter 380, Florida Statutes, and Chapter 22F-2.10, Florida Administrative Code, involving real property located in the City of Alachua, Alachua County, Florida, as included in the property description found as an exhibit to the petition document which is Attachment "B" to this Recommended Order. Prior to June 15, 1982, the City of Alachua had previously duly zoned or did simultaneously zone the said 976+-acres PUD and commercial to permit the development as specified in the said application. June 15, 1982, is the date when the City of Alachua adopted the development order for the Turkey Creek Development of Regional Impact. Following the action by the City of Alachua, the Petitioners in this cause, in the person of counsel, filed a notice of appeal of the development order. This appeal was made on June 28, 1982, and on that same date, the petition for review of that development order was filed with the State of Florida, Land and Water Adjudicatory Commission. On August 4, 1982, the matter was transmitted to the division of administrative Hearings for formal hearing by action of the Office of the Office of the Secretary of the Florida Land and Water Adjudicatory Commission. The case was subsequently assigned to this Hearing Officer and a motion hearing was conducted to consider a dismissal of this action based upon Respondent Turkey Creek's allegation that the Petitioners lack standing. The motion hearing was conducted on September 2, 1982. Petitioners are owners of real property included within the Turkey Creek development of regional impact and their property is adjacent or in close proximity to properties which were the subject of the City's zoning decision made in conjunction with approval of the development order.
