The Issue The issue in this case is whether the Walton County Comprehensive Plan (Plan) is in compliance with Chapter 163, Part II, Florida Statutes (the Act), the State Comprehensive Plan (Section 187.201, F.S.), the West Florida Comprehensive Regional Policy Plan, and Chapter 9J-5, Florida Administrative Code (F.A.C.).
Findings Of Fact 1. Rejected, not supported by the weight of the evidence. 2-4. Rejected, not supported by the weight of the evidence. 5. Rejected, argumentative. 6-7. Rejected, not supported by the weight of the evidence. 8. Rejected, argumentative and legal conclusion. 9-12. Rejected, not supported by the weight of the evidence. 13. Rejected, legal conclusion. 14-17. Rejected, not supported by the weight of the evidence and much of these proposed findings are argumentative legal conclusions. 18-21. Rejected, not supported by the weight of the evidence. Also many of these proposed findings are merely arguments of law. 22-36. Rejected, not supported by the weight of the evidence. Again, many of these proposed findings are argumentative and mere conclusions of law as opposed to statements of factual findings supported by the record of evidence admitted at hearing. Rejected, not supported by the weight of the evidence. Accepted. Rejected, argumentative. 40-42. Rejected, subordinate to Hearing Officer's findings. 43. Adopted by reference. 44-48. Rejected, argumentative, mere recitation of testimony. 49. Rejected, not supported by weight of evidence. 50-62. Rejected, not supported by weight of evidence, argumentative, and, again, counsel argues law as opposed to presenting facts. Rejected, argumentative. Rejected, argumentative. Rejected, the failure of the county to adopt a traffic circulation map simply renders moot any need for discussion of adequacy of maps in data and analysis. 66-67. Rejected, see statement for finding number 65 above. 68-69. Rejected, not supported by the weight of the evidence. 70-71. Rejected, argumentative. Rejected, not supported by the weight of the evidence. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, conclusion of law. Rejected, not supported by the weight of the evidence. Counsel continues also to engage in legal argument as opposed to presenting findings of fact. 77-79. Rejected, subordinate to Hearing Officer's findings. Rejected, subordinate to Hearing Officer's finding of fact. Rejected, generally this finding consist of an argumentative conclusion of law. 82-83. Rejected, the weight of the evidence does not support findings that these policies comply with requirements of 9J5. 84-96. Rejected, the greater weight of the evidence does not support any finding that these objectives comply with requirements of 9J5. 97-118. Rejected, not supported by the greater weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Florida Land and Water Adjudicatory Commission 311 Carlton Building Tallahassee, FL 32301 George Ralph Miller, Esquire County Attorney Post Office Box 687 DeFuniak Springs, FL 32433 Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 David J. Russ, Esq. Kenneth D. Goldberg, Esq. Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Fred H. Kent, Jr., Esquire Post Office Box 53075 Jacksonville, FL 32201-3075 Chris Cadenhead, Esquire Post Office Box 5354 Destin, FL 32540 Richard Grosso, Esquire 1000 Friends of Florida Post Office Box 5948 Tallahassee, FL 32314-5948
Recommendation Based on the foregoing, it is hereby recommended that the Administration Commission for enter a final order determining that the Walton County Comprehensive Plan is not in compliance. RECOMMENDED this 13th day of April, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 13th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1080GM The following constitutes my specific rulings in accordance with Section 120.59, Florida Statutes, on Findings of Fact submitted by the parties.
The Issue The issue for determination is whether the comprehensive plan adopted by Escambia County is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact PARTIES DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments under Florida's Local Government Comprehensive Planning and Land Development Regulation Act (the Act). Final agency action with regard to plans and plan amendments found not in compliance by DCA is taken by the Governor and Cabinet, acting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes. Respondent, Escambia County, is a local government required to adopt a Comprehensive Plan under the Act. The following intervenors filed petitions challenging portions of the plan: League of Women Voters of the Pensacola Bay Area, Inc.; Dorothy Kaser; Joseph Grizzaffi, Jr.; Anneice Grizzaffi; Francis M. Weston Audubon Society; Gabrielle Faddis; James Lane; Jacqueline Lane; and Vivian Faircloth. The following intervenors filed petitions in support of the plan: Homebuilder's Association of West Florida, Inc., Michael Blanton and Escambia Construction, Inc.; Highland Development Group, Inc.; Edwin Henry and Henry and Co., Inc.; and E.J. Gibbs. Prior to commencement of the hearing Highland Development Group, Inc. withdrew its petition to intervene. As a result of stipulation of the parties, no objection is raised to the participation of the remaining parties who are intervenors on behalf of Respondent. STANDING OF THE PARTIES In order to intervene in this proceeding, the requirements of Section 163.3184(1)(a), Florida Statutes, must be met. First, the intervenor must be an "affected person" as defined by that section. Second, the intervenor must have submitted oral or written objection during the local government "review and adoption proceedings." The local government "review and adoption" period is the period of time which runs from the issuance of DCA's Objections, Recommendations and Comments Report (the ORC Report) and the adoption of the plan. In the instant case this period of time commenced on August 10, 1990, the date of the ORC Report, and ended on October 8, 1990, the date of the plan's adoption. The League of Women Voters of the Pensacola Bay Area, Inc. (the League), is a local chapter of the League of Women Voters. Gloria Dawson, former president for the League, spoke on behalf of the League before the Board of County Commissioners September 17 and 24, 1990, and expressed concerns and opinions regarding the County's proposed plan. Between August 10, 1990, and October 8, 1990, the League also provided written comments to the County concerning the plan. Many members of the League, including Gloria Dawson, Vivian Faircloth, Muriel Wagner, Dorothy Faddis, are residents of Escambia County; several members reside in the unincorporated area of the County. Dorothy Kaser resides and owns property in Escambia County. She was a member of the Planning Board, the County's local planning agency pursuant to Section 163.3174, Florida Statutes, from 1988 to December 1990. Through her duties as a Planning Board member Ms. Kaser provided written and oral comments to the Board of County Commissioners regarding the comprehensive plan. Her comments were stated at Planning Board meetings during the local government review period, and were incorporated in the final Planning Board recommendation which was forwarded to the Board of County Commissioners for final approval and adoption. Joseph Grizzaffi, Jr., and Anneice Grizzaffi are married and reside and own property in Escambia County. During the local government review period the Grizzaffis spoke on August 23,1990 to the Board of County Commissioners, impaneled as the Zoning Board, concerning mixed use categories, leapfrog development, and strip commercial development. The Grizzaffis made these comments in opposition to a rezoning request, but also as part of the larger planning scheme involving the comprehensive plan. The Grizzaffis were under the impression given by the Public Participation Procedures and the conduct of one of the commissioners at the August 23 meeting that comments concerning the plan could be directed to either the Board of County Commissioners or the Zoning Board. The Frances M. Weston Audubon Society is a local chapter of the National Audubon Society (Audubon). Gabriel Faddis spoke about issues concerning the comprehensive plan on behalf of Audubon before the Board of County Commissioners on August 31 and September 24, 1990. Ms. Faddis represented Audubon at these meetings at the request of the Chapter's president. James and Jacqueline Lane reside and own property in Escambia County. During the local government review process, neither of the Lanes provided the County any oral or written comments concerning the plan. Although the Lanes attended the adoption hearing, neither of them offered any comments because they felt it was "pointless." In their opinion, the period of time between the ORC Report and plan adoption was dedicated by the County to entertaining land use changes as opposed to constructive criticism or comments from the public. Vivian Faircloth is a resident of Escambia County and an officer of the State League of Women Voters. Ms. Faircloth commented on the plan to the Board of County Commissioners on September 24, 1990. At that time she made it clear that she was speaking on behalf of herself, not the League, which was officially represented at the same meeting by Gloria Dawson. DCA was not requested by the County to attend the plan adoption public hearings which were conducted on October 5 and 8, 1990. COUNTY BACKGROUND The most western county in the Florida Panhandle, Escambia County is bordered on the east by the Escambia River, on the west by the Perdido River, on the north by the State of Alabama, and on the south by the Gulf of Mexico. It is comprised of approximately 430,661 acres. According to the plan's data and analysis, the population for the unincorporated portion of the County is estimated and projected as follows: 1990 232,271 1995 249,623 2000 263,150 There are only two incorporated municipalities within the County: Pensacola and Century. These municipalities have drafted and adopted their own plans. The City of Pensacola is an urban area in the southeast portion of the County with a population of approximately 62,036 persons; Century is a rural community in the northern portion of the County with a population of 2,664 persons. Approximately 95 percent of the County's population resides in the area of the County which extends from Pensacola to the middle of the County. Escambia County has an abundance of valuable water resources including Pensacola Bay, Perdido Bay, Escambia Bay, Escambia River, Perdido River, Bayou Chico, and Bayou Texar. The County's surface water resources can be divided into four drainage basins: the Escambia River Basin, Pensacola Bay Basin, Perdido Bay Basin, and Perdido River Basin. The County also has significant wetland areas, particularly along the rivers, in the Southwest portion of the County and in the coastal areas. In 1984 the Governor and Cabinet, sitting as the Administration Commission, designated the lower portions of Escambia and Santa Rosa counties a resource planning area pursuant to Section 380.045, Florida Statutes. This designation arose from concern about development damaging coastal dunes and wetland areas. The purpose of this designation was not to stop growth in this area, but to evaluate the ability of the local governments to protect the environment through comprehensive planning and land development regulations. The evaluation was conducted by the Escambia-Santa Rosa Counties Coastal Resource Management Planning Committee, which produced a report containing numerous recommendations that were approved by the Governor and Cabinet. In his November 24, 1984 charging letter to the committee, Governor Graham specifically asked it to evaluate the adequacy of resource protection, particularly for coastal dunes, wetland areas, and the estuarine resources of the various bay systems in the study area. Historically the County has been reluctant to plan development. To date not all of the unincorporated areas of the County are subject to zoning regulations. The County did not have any zoning in the unincorporated area of the County until adoption of its Zoning Ordinance in 1989, which zoned the southern part of the County from what is known as Ten-Mile Road south to the coastal edge of the County. The County presently has two zoning ordinances of limited scope which were adopted only after intervention from the State. One of the zoning ordinances applies to the limited area surrounding the University of West Florida, a state-funded university. The University of West Florida zoning ordinance was adopted at the insistence of the State, which did not wish to invest in an unplanned area, prior to the construction of the university. The Urban Land Use Regulation Ordinance, which applies to the area south of Ten Mile Road, was adopted at the request of the Escambia-Santa Rosa Counties Resource Protection Management Committee as a first step towards planning future development. HISTORY OF THE PLAN The County contracted with the West Florida Regional Planning Council (RPC) to draft proposed goals, objectives and policies; compile support data and analysis; and provide technical assistance in the preparation of the plan. The RPC also drafted a Future Land Use Map after the ORC Report was issued. This map was not adopted by the County. The key person involved with the preparation of the plan was Robert Koncar, Assistant County Administrator. Although the County has a planning staff housed in the Department of Planning and Zoning, the County's planners were not involved in the preparation of the plan. Koncar personally revised the goals, objectives, policies and the Future Land Use Map Series which had been developed by the RPC. The County's land development regulations were due to be adopted by May 1, 1991. Those regulations were not adopted on schedule, nor was the Concurrency Management System which the County affirmatively committed to adopt in Capital Improvements Policy 1.3.7 of the plan by May 1, 1991. The proposed plan was received by DCA on May 1, 1990. DCA issued its ORC Report on August 10, 1990. The County held public hearings on the adoption of its plan on October 5 and October 8, 1990. During the course of these public hearings the County considered numerous applications for land use changes. These changes applied to designations on the Future Land Use Map series. The application forms for land use changes simply requested information as to the location of the property and desired use. No explanation or data and analysis was required of an applicant to justify a land use change. No data and analysis was submitted by the County to DCA to support these land use changes. The proposed plan originally did not include planning for Pensacola Beach and Navarre Beach. The proposed Santa Rosa Future Land Use Sub-element (Santa Rosa Sub-element) was submitted to DCA after submittal of the proposed plan. The Sub-element was prepared later by a different consultant, the Strategic Planning Group, following DCA's objection to Santa Rosa's exclusion from the plan. DCA reviewed the proposed Santa Rosa Sub-element and its data and analysis later and issued a separate ORC Report based on it. On October 8, 1990, the Escambia County Board of County Commissioners adopted Ordinance 90-18 which by reference adopted the Goals, Objectives, and Policies of the Comprehensive Plan and the Future Land Use Map or Map Series. On November 30, 1990, DCA issued its Statement of Intent to find the plan to be not in compliance. In 1991 the legislature adopted Chapter 91-310, Laws of Florida, which altered the boundary line between Escambia County and Santa Rosa County so that Navarre Beach is now in Santa Rosa County. SANTA ROSA ISLAND AUTHORITY One of the unusual physical features of Escambia County is Santa Rosa Island, a coastal barrier which stretches from the eastern half of the County to Walton County. The County acquired 20 miles of the western-most portion of the Island by deed from the federal government in 1946 to be used in the public interest subject to regulation by the County, whether leased or not. A substantial part of the Island was given back to the federal government to be used as part of the National Seashore. The deed specifically prohibits the County from selling any part of the Island. The remainder of the County's portion of the Island was either placed under the control of the Santa Rosa Island Authority (SRIA) or leased to Santa Rosa County. The SRIA was established by special act in the 1950's to administer the County's portion of the islands. The SRIA is governed by a board consisting of one member selected by each of the five County Commissioners and one member elected by residents on the Island. The Authority has an executive director and permanent staff of approximately 60 employees. Beginning in the 1950's, the SRIA disposed of the property under its control by entering into standard 99-year leases with automatic 99-year renewals. These leases are for commercial and residential properties and generally authorize the construction of development on the parcels up to a certain intensity of use or density. More current commercial leases for other than hotel purposes are generally for shorter periods than 99-year terms. The leases are not subject to a bidding process or other competitive public process. They are negotiated with private individuals on a case-by-case basis. The rent provided for in the lease has no relationship to the market value of the property. The term of the leases has no relationship to the need to amortize an investment. Very few of the parcels subject to leases for multiple-family use on Pensacola Beach have been built to the maximum density provided for in the lease; yet, most of those uses are earning a profit. The data and analysis, and goals objectives and policies, relating to Santa Rosa Island were done under the assumption that the outstanding leases are enforceable over the police powers of the County. The portions of the plan relating to Santa Rosa Island were designed to take those leases into account. If a "carrying capacity" analysis of the island had been done, a completely different result would have been recommended by the consultant. No effort has been made by the County or the SRIA to challenge the validity of the leases or to enter into a program to minimize the number or term of the leases. In fact leases are still being executed by the SRIA with no information about how the rent relates to the fair market value of the property. In 1985 the County issued a series of revenue bonds to pay for improvements on Pensacola Beach. The revenues which were pledged for repayment included anticipated lease payments from new lessees. The number of units actually built since 1985 has been a mere fraction of the ones anticipated in the bond documents. Yet the debt service on the bonds has been kept current, and existing revenues will be sufficient to maintain those payments into the foreseeable future. The SRIA generates no funds for Escambia County government, and the leases are not subject to ad valorem taxation. EFFICIENCY OF LAND USE AND THE FUTURE LAND USE MAP As early as its 1980 Comprehensive Plan (1980 Plan), the County acknowledged predominant land development patterns in the unincorporated area characteristic of two types of sprawl: The random development pattern and the corridor pattern. These development patterns resulted from past policies of minimum planning, lack of development coordination and absence of land use or zoning controls in the County except for the areas around the University of West Florida. That area, under the University of West Florida Land Use Regulations, exhibited orderly growth in contrast to other parts of the County. The corridor pattern of growth along the major transportation routes had become an increasing trend in Escambia County in the 1980's as the urbanized area spread outward to the north and west. Even though these patterns of development were criticized in the 1980 Plan, they are still characteristic of the types of development which currently exist in the County and are encouraged by the land use designations on the Future Land Use Map. The 1980 plan noted that the random development, or leapfrog pattern, was characterized by low density residential clusters in the urbanized areas of the County surrounding the City of Pensacola with scattered intermittent commercial and mixed uses along the major transportation routes radiating out from the urban areas. The random or leapfrog growth pattern, characterized by intermittent, developed clusters and undeveloped open spaces, produces low tax revenue per acre of land, a very high cost of providing services and facilities to the scattered clusters, and little incentive for fill-in development in the vacant areas. Generally speaking, single-family residential property does not generate sufficient ad valorem tax revenue to pay the costs of providing public services to the property, especially when sprawling patterns make those services more expensive to provide. Sprawling development patterns impose additional costs, such as increased utility costs and lower levels of service on roads, some of which may be offset by reduced land costs. However, accommodating such patterns through the provision of public services like law enforcement, emergency response, water and sewer, and public schools, also tends to result in the subsidization of inefficient development patterns by residents who live or do business in areas characterized by a mixture of functionally related uses. These costs are of increasing significance to County governments in rapidly growing areas like Florida because residents of unincorporated areas are increasingly demanding a level of public services that used to be enjoyed only by residents of incorporated municipalities. Requirements that a plan be based on data and analysis, protect natural resources, maximize use of efficient infrastructure, and be financially feasible, are related in the sense that a plan which discourages sprawl is more likely to accomplish these planning objectives as well. The term "urban sprawl" as it appears in Chapter 9J-5 is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas, and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. Leapfrog development may occur due to the lower cost of land outside the urban area compared to the cost of developable land in the urban area. This can occur when plans fail to address the timing of development in addition to its location. Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development may still present an increased risk to water supplies and sensitive environmental areas. Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant communities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of curb and median cuts and access points which must be permitted. Strip development frequently overburdens arterial roadways with local trips since local road networks remain poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that may require protection from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential, commercial, industrial, recreational and institutional uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient use of developable land, and frequently destroys significant environmental and natural resources. Allowing low-density development on large expanses of land also frequently precludes development or redevelopment at the higher densities that become appropriate as the urban or urbanizing area grows. The resulting growth pattern encourages leapfrog development. If redevelopment of these low-density areas to higher intensities does occur, the costs to expand public facilities and services will commonly be substantially higher than would have been incurred to provide the infrastructure capacities that would have been appropriate initially. Plans which fail to discourage urban sprawl often over-allocate land uses, especially residential uses, and designate areas for development which are not suitable, such as wetlands, floodplains, poorly drained soils and aquifer recharged areas. An unregulated land development environment is usually unsuccessful in bringing about truly efficient land development patterns because such a market does not force a developer or land consumer to pay the true, full economic costs of land development. Hidden subsidies may arise from a failure to impose marginal cost pricing of utilities, failure to establish special taxing units to reflect actual costs of parties' utilities, and failure to assign costs to destruction of natural resources like wetlands and aquifer recharge areas. Sprawling development patterns also adversely impact agricultural operations in that such patterns may cause land use conflicts by encouraging farmers to abandon reinvestment in their farm operations and begin looking to sell their land. The Escambia County plan greatly over-allocates residential land uses. This over-allocation is not based on data and analysis. Generally, the number of developable acres designated for use over the 10 year planning period should be only slightly larger (25 percent) than the number of acres needed for that particular land use. Using the County's own assumption regarding densities, approximately 18,841 acres will be required to meet residential needs, excepting agricultural and agricultural/timber categories. The plan allocates total acreage of 122,980, or more than five times the land supply needed for this purpose. The plan allocates 8,881 acres for commercial and industrial purposes in the face of assumed need for only 4,294 acres, more than twice the projected need. The Escambia County Comprehensive Plan actually encourages the proliferation of urban sprawl in the land use patterns set out on its Future Land Use Map (FLUM). Similarly, the plan is not based on data and analysis regarding land use allocations and, by encouraging scattered residential development, poses a threat to the continued viability of agriculture in the County. Future Land Use Element (FLUE) Policy 3.1.3 classifies residential land uses. The following land use categories, as established by that policy, allow special exceptions as land uses: Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential; and Urban Residential. Nowhere in the plan is there any indication of what uses will be allowed by special exception or what criteria will be used in establishing the conditions for a special exception. Thus, the plan's densities and intensities of use for Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential and Urban Residential are chimera. The plan includes mixed use classifications of land use in several policies: FLUE Policy 3.1.5 (Mixed Use and Mixed Use-Southwestern District), 3.1.5.a (Mixed Use and Mixed Use- Southwestern District), 3.1.3 (Rural Residential-Mixed Use), and Santa Rosa Sub-element Policy 1.4.5 (Medium Density Residential Commercial and High Density Residential Commercial) and 1.4.8 (High Density Residential). Nowhere in these policies or related policies, including FLUE Policy 4.1.22 and 4.1.23, is there any criteria which establish the composition of mixed use categories (i.e., 30% commercial, 70% residential) or guide the implementation of these mixed use classifications such as by ensuring that the land uses are functionally related. Thus, no densities or intensities of use have been established for these land use categories. The plan does not ensure that development will result in a balanced and complimentary mixture of land uses. FLUE Policy 3.1.5 establishes land uses for the Mixed Use-Southwestern District. This category allows the following development: Low Density residential, 1-7 dwelling units per acre; Medium Density Residential, 8-15 dwelling units per acre; and Commercial, consistent with lot coverage standards of 75% maximum coverage for all impervious surfaces. The Future Land Use Map series does not indicate where the various residential densities are allowed nor does the plan include any criteria to provide any guidance as to which density would apply where and under what circumstances. Most of the area in the Mixed Use-Southwestern District contains wetlands. Based on the General Soils Map contained in the data and analysis, this area is dominated by Klej-Leon (somewhat poorly drained), Plummer-Rutledge (poorly drained) and undifferentiated poorly drained flood plains and swamps. These soils, which are indicative of poor drainage, are referred to as hydric soils, which is an indicator of wetlands. The data and analysis does not analyze the suitability of this area for development despite the soils characteristics. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach and includes a category denominated Conservation/Recreation. That classification states in pertinent parts: . . . depending on the specific characteristics of each site appropriate recreation uses may include public parking, beach access, boardwalks, nature trails, boat launching areas, docking facilities, picnic areas, rest rooms, and other such related uses as may be approved by the Santa Rosa Island Authority consistent with legal requirements presently in force. Other uses may by approved by the Santa Rosa Island Authority subject to appropriate studies which demonstrate that such uses are environmentally sound and in the public interest . . . The development of a golf course is allowed by this category and has been specifically contemplated in the past by the Santa Rosa Island Authority. Language of the Conservation/Recreation category in Santa Rosa Sub- element Policy 1.4.5 (10), affords great discretion in the Santa Rosa Island Authority as to what "other uses" are in the "public interest" or "environmentally sound. "No standards are provided which would specifically identify the limits of the types of uses for this classification or the specific criteria which would apply in ensuring a development was in the "public interest" or "environmentally sound." As a result, this policy places unbridled discretion for development in the hands of the Santa Rosa Island Authority, an entity not elected and not accountable to the public. The residential density for the area depicted on the Future Land Use Map as Special Development/Buffer is established in the FLUE Policy 3.1.1 and FLUE Policy 3.1.9. These policies are internally inconsistent as relates to residential densities. Policy 3.1.1 allows one to five dwelling units per acre and Policy 3.1.9 allows only one dwelling unit per acre for this land use. FLUE Policy 3.1.7 establishes land uses for the Recreational category allowing "public recreation areas, private recreational facilities, including limited commercial uses, such as marinas, public utilities." The intensity must be "consistent with lot coverage included in the land development regulations." This policy is inadequate because the intensity of development must be established in the plan, not the land development regulations. FLUE Policy 3.1.8 establishes land uses for the Conservation category. This category allows: . . . activities compatible with the purposing of conserving or protecting natural resources, including flood control, wildlife habitat protection[,] resource-oriented recreational uses, wetlands application of reclaimed water where appropriate and beneficial, and, where appropriate, silviculture using best management practices as defined by the Florida Division of Forestry. No density or intensity is established in the plan for this category. The County could have established intensities for this category through lot coverage, floor area ratios, height densities, and bulk criteria. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach including the following categories: General Retail; Recreation Retail; Conservation/Recreation; and Government and Civic. Each of these categories allows development but does not establish any densities or intensities. Santa Rosa Sub-element Policy 1.4.8 establishes land uses for Navarre Beach including the following categories: High Density Residential; Commercial; and Recreation. Each of these categories allows development but does not establish any densities or intensities. The data and analysis submitted to support the proposed plan included a map series which identified historic districts, archeological areas, historical sites, and additional facilities. The Future Land Use Map series does not depict any historic properties, although such properties are known and identified in the data and analysis. The data and analysis identifies existing and planned water wells. Table 15 lists wells operated by various facilities for public and industrial uses and Table 16 lists future wells projected for the period of 1985-2005. These existing and future wells are depicted on a location map which is a part of the data and analysis. However, the locations of these existing and future wells are not depicted on the Future Land Use Map series. Further, the areas around major water wells, termed "cones of influence" are also not depicted on The Future Land Use Map series. The data and analysis depicts the 100-year floodplain on a location map. The 100-year floodplain is not depicted on the Future Land Use Map series. There are various types of wetland systems in Escambia County including: Bottom land hardwood communities, located along the Escambia River; the mixed wetlands, found in the Southwest District and the Perdido area; estuarine systems associated with the estuaries Pensacola Bay, Escambia Bay and Perdido Bay; coastal salt marshes; and the unique freshwater lens system found on Perdido Key and Santa Rosa Island. The Future Land Use Map series fails to depict all these wetlands. The identification of hydric soils may be a good indicator of wetland areas, but the Generalized Soils Map which is found in the support data and analysis was not adopted by the County. The adoption ordinance does not indicate that the County adopted a wetlands map of any kind. The data and analysis generally depict soils. The data and analysis contain a map entitled "General Soil Map" which was prepared by the U.S. Department of Agriculture in 1960. This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map series which was adopted depicts no soil information. The data and analysis generally depict sandy clay and clay; medium- fine sand and silt; and gravel and coarse sand on a map entitled "Mineral Resources." This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map which was adopted does not depict any mineral information. The Future Land Use Map series consists of three maps: a countywide map with land use categories "drawn" on a Florida Department of Transportation general highway map, a map of Pensacola Beach, and a map of Navarre Beach. The countywide map is internally inconsistent with the Navarre Beach Map because the countywide map depicts only three land use classifications on Navarre Beach: Low density residential, Commercial, and Conservation. The Navarre Beach Map, however, includes these different designations: low density residential; medium density residential; high density residential; commercial public utility; outdoor recreation; and preservation. The policies in the FLUE which describe low density residential (Policy 3.1.3), commercial (3.1.4) and recreation (3.1.7), describe different uses and intensities or densities than are described for categories of the same name in Santa Rosa Policy 1.4.8. The countywide Future Land Use Map depicts a Tourist/Resort category on Pensacola Beach. No policy establishes this category, describes the allowable uses, or establishes densities or intensities of use. The countywide map depicts a large area next to the City of Pensacola as "Commercial." FLUE Policy 3.1.4 defines this classification to allow commercial activities and public facilities and specifically prohibit residential development. The Existing Land Use Map found in the data and analysis indicates that the existing land uses are more varied and include residential uses. No explanation of the prohibition of residential development exists within the data and analysis. PROTECTION OF NATURAL RESOURCES The data and analysis identifies numerous types of natural resources: rivers, bay, lakes, estuaries, groundwater, wildlife, endangered and threatened plans and animals, trees, wetlands, dune systems, and marine resources. The FLUE is required to include an objective ensuring the protection of natural resources. The only objective in the FLUE which attempts to address countywide natural resources is Objective 1.9, which reads: By May 1991, development criteria shall be adopted in the land development code to protect areas designated as Conservation, Special Development/Buffer, and other land requiring protection due to the presence of sensitive natural resources. FLUE Objective 1.9, while expressing a basic goal, is not specific and measurable. It is meaningless for purposes of marking progress toward an identified goal. Simply referring to a time frame does not make it measurable. Objectives and policies intended to meet the requirements of Chapter 9J-5, F.A.C., must be substantively effective upon adoption and not relegated to adoption through land development regulations. The data and analysis identify numerous natural resources throughout the County which are threatened by development and should be protected, however FLUE Objective 1.9 provides limited protection to the two areas designated Special Development/Buffer and to the few coastal areas designated Conservation. Therefore, this objective is not supported by the data and analysis. The FLUE is required to contain a policy which addresses implementation activities for the protection of environmentally sensitive land. The only policy in the FLUE which attempts to address the protection of environmentally sensitive land is FLUE Policy 1.9.1, an implementing policy of FLUE Objective 1.9., which states: The development criteria shall include, but not be limited to, the prohibition of development of areas designated as Conservation, severe limitation of development potential for areas designated as Special Development Buffer, special review and approval procedures for properties which may be identified as having sensitive natural resources. FLUE Policy 3.1.9 establishes a residential density of one dwelling unit per acre for the Special Development/Buffer. Per the FLUM, this is a land use found in only two areas in the eastern portion of the middle section of the County. The term "severe limitation" contained in FLUE Objective 1.9. is not defined, leaving the application of this policy to be subject to interpretation. The referenced special review and approval procedures have not been delineated, nor have other areas containing sensitive natural resources (in addition to the Conservation and Special Development/Buffer areas) been identified, yet they are known to exist, as shown in the data and analysis. Accordingly, FLUE Policy 1.9.1 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 1.9.2, also an implementing policy of FLUE Objective 1.9, states: The County shall maintain and implement Section XVI of the Urban Area Land Use Regulation Ordinance, as may be amended, requiring review of all properties for presence of wetlands prior to issuance of any development permits. Development projects proposed for development on lands identified as containing wetlands must complete the special development review procedures established in the land development regulations. Provision shall be established in the Land Development Regulations for requirement exemption through an agreement of nondevelopment of wetland areas. FLUE Policy 1.9.2 fails to establish specifications or programs to protect wetlands, is not supported by the data and analysis, and allows the policy to be amended from time to time without going through the necessary agency review process required by Section 163.3184, Florida Statutes. Accordingly, FLUE Policy 1.9.2 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 4.1.9 states: The County shall develop criteria for assessing the negative impacts of a potential development upon the environment which shall include, but not be limited to: Environmental habitat adjacent to proposed development; Intensity of development; Potential pollutants or other negative impacts released as a result of development. This policy is inadequate because it does not identify specific actions or programs. It does not constitute a "policy" as that term is defined in Rule 9J- 5.003(68), F.A.C., and it defers implementation or action until a future date. The plan, including FLUE Policies 4.1.9, 1.9.2, and 1.9.1, do not adequately address implementation activities for the protection of environmentally sensitive land as required by Rule 9J-5.006(3)(c)6, F.A.C. As applied specifically toward the protection of environmentally sensitive lands on Santa Rosa Island, Santa Rosa Island Sub-element Objective 1.4 states: Design and adopt a Future Land Use Map for Santa Rosa Island which coordinates the built environment with the natural environment. The Future Land Use Map shall coordinate topography, soils, beachdunes, native vegetation, natural waterbodies, and other natural resources with compatible intensities of allowable urban land uses such that potential Island population densities do not exceed hurricane evacuation capability. Policies 1.4.1-1.4.7 of Santa Rosa Island Sub-element Objective 1.4 do not ensure the protection of environmentally sensitive land because they do not identify specific actions or programs in accordance with the definition of "policy" in Rule 9J-5.003(68), F.A.C. Accordingly, there is no FLUE policy which adequately addresses implementation activities for the protection of environmentally sensitive land on Santa Rosa Island. The Coastal Management Element (CME) is required to include an objective for each goal statement which protects beaches or dunes, establishes construction standards minimizing impacts of manmade structures on beach or dune systems, and restores altered beaches or dunes. CME Policy 2.1.9 states: Construction seaward of the Coastal Construction Control Line shall only be permitted if state permits are first obtained. The Coastal Construction Control Line is a line established by the State of Florida, Department of Natural Resources pursuant to Chapter 161, Florida Statutes, under the premise that the area seaward of the line is subject to erosion. The State will not consider approval of development seaward of the coastal construction control line unless the applicable local government has already approved it. This provision of the plan makes construction contingent on state approval, contrary to law. It is inconsistent with requirements of Chapter 161. The Future Land Use Map series depicts development seaward of the coastal construction control line, including areas which are vacant. CME Policy 2.1.9, along with the Future Land Use Map designations which allow more development than is supported by the data and analysis, abrogates the County's duty to regulate the area seaward of the coastal construction control line in order to protect dune systems or other coastal resources. By failing to discourage development seaward of the coastal construction control line, CME Policy 2.1.9 fails to achieve the goal statement of Goal 2 of the Coastal Management Element which is to protect human life and limit public expenditure in areas that are subject to destruction by natural disaster. Objectives under Goal 2 of the CME do not adequately address protection of beaches and dunes as required by Rule 9J-5.012(3)(b)4., F.A.C.. CME Objective 2.1 addresses only maintaining a roadway clearance time for hurricane evacuation of twelve (12) hours; Objective 2.2 simply requires the County to identify the Coastal High Hazard Area; Objective 2.4 is concerned with public expenditures for facilities and infrastructure in the Coastal High Hazard Area; Objectives 2.5, 2.6. 2.8, 2.9, and 2.10 address dune reconstruction in the limited situation of post-disaster redevelopment. CME Objective 2.7 states: Establish site design criteria for construction and reconstruction within the Costal High Hazard Area. This objective is inadequate. It provides no specifically measurable intermediate end that is achievable marking the progress toward Goal 2. Similarly, CME Objective 2.11, which provides that "[c]onstruction activities on Santa Rosa Island shall not adversely impact the barrier island system," is inadequate because it is not specific and measurable. CME Objective 2.12 reads: "Allow no further loss in the acreage of beaches and dunes on the barrier island(s)." This objective, although specific and measurable, is inadequate because it applies only to the barrier islands and ignores the beach and dune resources on the mainland. Furthermore, development is specifically allowed in the beach and dune areas based on the Future Land Use Map designations. This internal inconsistency poses the question of whether the County intended Objective 2.12 or the Future Land Use Map to control the issuance of development orders in this area. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands and living marine resources. The CME is also required to include an objective which protects, conserves, or enhances remaining coastal wetlands and living marine resources. CME Objective 1.1 fulfills the requirement of Rule 9J-5.012(3)(b)1., F.A.C., to conserve remaining wildlife habitat, but none of its implementing policies meet the requirements of Rule 9J-5.012(3)(c)1., F.A.C., to limit impacts of development upon wetlands and living marine resources. CME Policy 1.1.6 appears to address this requirement. It is inadequate, however, because it fails to identify specific implementing actions or programs and it defers protection of these resources until the adoption of land development regulations. The policy states: The County shall, in conjunction with the Santa Rosa Island Authority, adopt or amend land use regulations on barrier islands, including Perdido Key and Santa Rosa Island, and other coastal areas identified in data and analysis which, at minimum address the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, and Florida Department of Natural Resources. This policy fails to include any criteria indicating what the land development regulations will require to protect these resources and no interim protection is provided. CME Objective 1.4 states: "By December 1992, the County shall develop a plan of action for maintaining and improving estuarine quality in the Coastal Area." This objective is inadequate because it defers implementation until December, 1992, and does not provide any criteria for any interim or future plan of action. No other objective in the CME addresses estuarine environmental quality. Therefore, there is no objective in the CME which maintains or improves estuarine environmental quality. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific and cumulative impacts of development upon wetlands. CME Policy 1.3.7 clearly attempts to address the requirements of this rule. However, it is inadequate to achieve the objective of protecting wetlands. The policy states: By 1993, amend existing land development regulations to include specific protection provisions for the specific cumulative impacts of development or redevelopment upon wetland areas as indicated and recommended by the stormwater management plan study. On its face, this policy is intended to address only the impacts of stormwater runoff on wetlands, and does not address other specific cumulative impacts of development or redevelopment such as the restriction or prohibition of development in wetlands. Furthermore, the policy is inadequate because it defers implementation until 1993 through land development regulations and no specific criteria is included in this policy as to what should be included in those regulations. The CME is also required to include a policy which identifies regulatory or management techniques for limiting impacts of development upon wildlife habitat. CME Policy 1.1.2 attempts to address this requirement. This policy states: By May 1991, revise the Special Development District Regulations to include special provisions to enhance wildlife protection to include, but not be limited to, consideration of cluster development, increasing mandatory open space requirements, consideration of wildlife corridors between special development districts and other such districts, in addressing the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Services, Florida Game and Freshwater Fish Commission, and Florida Department of Natural Resources. The vague use of the term "consideration" in CME Policy 1.1.2 does not provide any assurance that these actions will actually be implemented at a future date. Furthermore, the policy is not specific and measurable due to lack of criteria for open space, cluster development, or wildlife corridors. Further, the policy does not identify how the protection of species will be implemented. All of this is deferred to special development district regulations. 1/ The quality and quantity of waters flowing into estuarine or oceanic waters is not adequately protected as required by Rules 9J-5.013(2)(b)2., and 9J-5.013(c)6., F.A.C. The Conservation Element (CE) objectives of the plan are silent as to water quantity. Objective 1.1 refers to a state government agency's standards which apply only to water quality and do not address water quantity. CE Objective 1.1, which addresses surface water quality, states: "Prevent degradation of surface water quality below water qualities standards using as a minimum Chapter 17-25.040(5), F.A.C., in consideration of development of alternative regulations." Rule 17-25.040, F.A.C., is the Florida Department of Environmental Regulation rule for construction permit requirements for new stormwater discharge facilities. That rule, in turn, references Rule 17-25.030, F.A.C., which provides exemptions from the notice and permitting requirements of the Chapter. Rule 17-25.030 exempts single-family duplex, triplex and quadraplex facilities. Thus, CE Objective 1.1 applies only to water quality standards for new development and excludes single-family duplex, triplex and quadraplex facilities and existing development from drainage facility standards. CE Policy 1.1.11, which implements CE Objective 1.1, reads: Adopt or amend land development regulations to require retention/detention of stormwater runoff prior to discharge into surface water; and to prevent discharge of untreated or treated domestic and industrial waste water (which does not meet current treatment standards) into these areas through public and private sewage treatment plants, poorly designed septic disposal systems [or] both. Mechanisms shall include the Stormwater Management Conservation Ordinance, the formal agreement called for in Policy 1.1.10 and Policy 2.11.4 in the Coastal Management Element. Require all new development adjacent to marine, aquatic, environmentally sensitive and estuarine areas to prohibit depositing into any of these areas stormwater and domestic water that does not meet treatment standards set forth in Section 17-25.040(5), F.A.C., and the Escambia County Department of Health Regulations relative to septic tanks." CE Policy 1.1.11 adopts by reference Rule 17-25.040(5), F.A.C., which applies the exemptions of Rule 17-25.030, F.A.C., and expressly does not apply to existing development. Thus, CE Policy 1.1.11 does not identify surface water quality standards which are to be maintained for all development. Water quantity may adversely impact water quality especially in wetlands where water moves slowly. Development in and adjacent to wetlands adds runoff, silt and fertilizers to the wetland system. If these substances exceed the carrying capacity of the wetlands, adequate purification of the water does not occur before it enters into the estuaries. Development of wetlands also impairs their ability to retain water and absorb stormwater impact. The County has experienced problems associated with untreated stormwater runoff. The County's engineer has identified four main areas which experience stormwater runoff problems. In those areas the development is primarily single-family residential. Therefore, there is no rational basis for the County to exempt existing development and single-family development from its stormwater standards. There also is no basis in the data and analysis for the County to exclude duplexes, triplexes, and quadraplexes from the stormwater standards. The CE is required to include a policy addressing implementation activities for the restriction of activities known to adversely affect the survival of endangered and threatened wildlife. The County has many plants and animals which are threatened, endangered, and species of special concern. The data and analysis identifies threatened, endangered and special concern communities in Escambia County which were identified by the Florida Natural Areas Inventory. CE Policy 1.8.3 states: Endangered species habitats and unique natural areas, as identified by the Florida Natural Areas Inventory, shall be considered environmentally sensitive. Prior to development in these sections, the development site shall be inventoried for the presence of environmentally sensitive habitats. The results of this survey, as well as mitigation measures for protection of these features if found, shall be submitted as part of land development permit applications submitted for the project. This policy fails to take into consideration the known listed species already identified by the Florida Natural Areas Inventory as reflected in its data and analysis. This policy also does not address the habitats of threatened species and fails to establish specific criteria which will be applied to development in order to protect the functional viability of the habitats of endangered species. The CE is required to include a policy which addresses implementation activities for the protection and conservation of the natural functions of certain natural resources including rivers, wildlife habitat, estuarine and wetland areas. CE Policy 1.1.13 attempts to address these requirements. The policy reads: By December 1991, the County shall, in conjunction with federal, state and local agencies, develop a set of recommendations to further provide for protection of rivers, wildlife habitat, estuarine, and wetland areas. Once the study has been completed specific recommendations shall be forwarded to the Board of County Commissioners for inclusion to land development regulations. CE Policy 1.1.13 does not apply to the natural resources known to be present in the County. The data and analysis identifies numerous natural resources, such as rivers, wildlife areas, estuarine areas, and wetlands, whose natural functions qualify for immediate protection. Accordingly, the policy is not based on the data and analysis. CE Policy 1.1.13 also is not an adequate policy because it does not provide specific criteria which will be used to protect the natural functions of these resources. This policy refers to an undefined and uncommenced study which will be conducted in conjunction with federal, state and local agencies. The policy should include the specific criteria needed to protect the natural resources and be in place at the time of plan adoption, not at a later time such as December, 1991, or at the time of adoption of land development regulations. COASTAL HIGH HAZARD AREAS/HURRICANE EVACUATION The CME is required to include an objective for each goal statement which directs population concentrations away from known or predicted Coastal High-Hazard Areas. The plan contains no provisions to direct or discourage population concentrations away from Coastal High-Hazard Areas. CME Objective 1.8 states: Development or redevelopment in the coastal area shall occur only if minimum level of service standards for infrastructure is met or exceeded. The coastal area is defined by the County as including the area approximately one to one and a half miles inland from the shoreline, with the exception of the area adjacent to Escambia Bay along the bluffs. This includes the barrier islands in their entirety. This coastal area is depicted on Existing Land Use Map Series I which was submitted with the proposed plan. The plan defines the Coastal High-Hazard Area in CME Policy 2.2.1 as the area seaward of the Coastal Construction Control Line established by the Department of Natural Resources; Federal Emergency Management Velocity (V) Zones designated on the Flood Insurance Rate Maps for Escambia County; and areas which have historically received damage in areas scientifically predicted to receive water damage in a Category 3 hurricane. The Coastal High Hazard Area is included within the coastal area as defined by the County. CME Objective 1.8 is inadequate to serve the purpose of directing population concentrations away from Coastal High-Hazard Areas because it allows development to continue to occur so long as the levels of service standards are met or exceeded. There is no threshold cap for development or redevelopment. Based on the densities established in the FLUE, population concentrations are being directed toward the Coastal High-Hazard Area. Santa Rosa Island Sub-element Policy 1.4.5 establishes land use densities and intensities for Pensacola Beach. The land use designations of high density residential, high density residential/commercial and commercial are allowed within the Coastal High-Hazard Area of Pensacola Beach. Based on these designations, development of up to thirty (30) units per acre is allowed. High density residential allows multi-family development in the range of sixteen to thirty units per acre; high density residential allows a range of sixteen to thirty units per acre for residential uses or up to fifty units an acre with a special exception; commercial hotel allows the same densities as is allowed under high density residential/commercial. The densities established in Santa Rosa Sub-element Policy 1.4.5 represent an increase in development based on what is currently developed on Pensacola Beach in the Coastal High-Hazard Area. The plan encourages more development in the Coastal High-Hazard Area of Pensacola Beach. Santa Rosa Island Sub-element Policy 1.4.8 similarly allows an increase in density in the Coastal High-Hazard Area in Navarre Beach from what is existing there currently. The high density residential designation allows up to thirty dwelling units per acre and the commercial designation allows up to thirty units an acre or fifty units an acre with a special exception. Perdido Key lies entirely within the Coastal High-Hazard Area; however the designation for Perdido Key based on the Future Land Use Map is Mixed Use. Future Land Use Element Policy 3.1.5 allows Mixed Use to be developed between sixteen to fifteen dwelling units per acre and an unspecified mix of commercial which may cover up to eighty percent of the lot with impervious surface. The densities and intensities established for Perdido Key do not serve the purpose of directing population concentrations away from the Coastal High-Hazard Area; rather more development is encouraged to occur there. The plan's hurricane evacuation planning is based on the Tri-state Hurricane Evacuation Study and the Escambia County Peacetime Emergency Plan which are referenced in the data and analysis as sources. No data is available which isolates the evacuation time for just the unincorporated portion of Escambia County. However, it is estimated that the evacuation time for the entire County is approximately 14.25 hours. This is based on a medium response curve for a Category III hurricane event. CME Objective 2.1 states that the County will maintain a roadway clearance time for hurricane evacuation of twelve hours. This clearance standard is not met currently. No data and analysis have been provided to support the densities on the coastal barrier islands in relation to maintaining or improving hurricane evacuation times. Furthermore, the data and analysis do not indicate that the current clearance time to maintain is only 12 hours. Thus, the coastal area population densities have not been coordinated with the appropriate regional hurricane plan, the Tri-State Study, and there is no assurance of maintaining or improving the hurricane evacuation time. CME Objective 2.5 states that the County will adopt a post-disaster redevelopment plan for Escambia County that identifies short-term recovery and long-term redevelopment activities. This objective is inadequate because it does not identify any specific and measurable criteria. CME Policy 2.6.3.b., an implementing policy of CME Objective 2.5, reads: By 1992, incorporate in the Santa Rosa Island land development regulations, the following build-back policy, to be applied after a major natural disaster such as a hurricane . . . B. Structures damaged more than fifty percent of their replacement cost at the time of damage can be re-built to their original square footage and density, provided they can comply with: *Federal requirements for elevation above the 100-year flood level. *Building code requirements for floodproofing. *Current building and life safety codes. *State Coastal Construction Control Line. *Any required zoning or other development regulations (other than density or intensity), unless compliance with such regulations would preclude reconstruction otherwise intended by the build-back policy. *Any other relevant federal regulations. *Any other relevant local regulations, including lease agreements. *Any other relevant state regulations. CME Policy 2.6.3.b., allows structures damaged more than fifty percent to be rebuilt to their original square footage and density. Thus, this policy does not require redevelopment following disaster which will reduce or eliminate the exposure of human life in public and private property to future natural hazards. COASTAL MANAGEMENT The CME is required to include an objective that, following adoption of the plan, limits public expenditures to subsidize development permitted in Coastal High-Hazard Areas except for restoration or enhancement of natural resources. The CME is also required to include a policy designating Coastal High-Hazard Areas, limiting development in these areas, and relocating or replacing infrastructure away from these areas. The CME does not contain any objective or policy that adequately limits development of public expenditures subsidizing development in a Coastal High-Hazard Area. CME Policy 2.4.2 allows the development of public facilities in the Coastal High-Hazard Area provided that certain criteria are met. That policy reads: Public facilities shall not be located or improved in the Coastal High-Hazard Area unless the following criteria are met: the use is necessary to protect human life; the service provided by the facility cannot be provided at another location outside the Coastal High-Hazard Area; no alternate site is identified outside the Coastal High-Hazard Area; the facility is designed to provide the minimum capacity necessary to meet level of service standards for its service area; the total cost to build the facility to meet the Coastal Building Codes including floodproofing requirements does not increase the cost of the project beyond feasibility. CME Policy 2.4.2 does not limit the extension of facilities which subsidize development in the Coastal High-Hazard Area. The level of service will be the minimum criteria for the applicable land uses. As described above, the land uses tend to encourage development towards the Coastal High Hazard Area. Development may continue provided the level of service standards are met. CME Policy 2.1.10 states that the County will not allow the extension of water, sewer or storm drainage infrastructure to facilitate new permanent residential structures within the Coastal High-Hazard Areas of Escambia County for which the County has permitting authority unless state permits are first obtained. This policy does not limit the extension of facilities that subsidize development in the Coastal High-Hazard Area in the event that state permits are first obtained. No state permits have been identified which would independently have the effect of limiting development in the entire Coastal High-Hazard Area or relocating or replacing infrastructure away from this area. VESTED RIGHTS Policies 1.4.2, 1.4.3, 1.4.4 and 1.4.6 of the Santa Rosa Island Future Land Use Sub-element provide that leased property on Santa Rosa Island is exempt from the plan and land development regulations. FINANCIAL FEASIBILITY The comprehensive plan is required to contain a Schedule of Capital Improvements for which the local government has fiscal responsibility for the first five fiscal years following adoption of the plan and a list of projected costs and revenue sources by type of public facility for the five-year period. The Capital Improvements Element (CIE) is required to set forth a financially feasible plan which demonstrates that the local government can achieve and maintain the adopted level of service standards. The Schedule of Capital Improvements includes the expenditure of $9,400,000 for a Master Drainage Study and Facilities for the fiscal years 1990- 91 through 1994-95. The data and analysis identifies and recommends impact fees as the revenue source to fund the Master Drainage Study and Facilities. The County has not adopted an impact fee for drainage or stormwater management, or even for the study. In May 1991, the Board of County Commissioners considered alternative methods of funding for stormwater management. The Board of County Commissioners rejected the implementation of a municipal service benefit unit for stormwater. Instead, the Board of County Commissioners adopted the alternative of development and implementation of a stormwater utility fee which requires approval of the voters at a referendum. At the time of plan adoption and the time of the hearing, the referendum had not taken place. There is no guarantee that the voters will approve the referendum. Therefore, it cannot be said that the Master Drainage Study and Facilities will be funded through fiscal year 1994-95. CIE Policy 1.4.1 states: Existing and future development, including those on Santa Rosa Island, directly benefiting from stormwater management improvements shall bear a proportionate cost of stormwater facility capital improvements. Further, the Board of County Commissioners shall consider, and implement as it deems necessary, impact fees for other public facilities. CIE Policy 1.5.1 states: The Board of County Commissioners shall develop and implement any alternative revenue sources needed to properly fund the Capital Improvements Element which could include, but not be limited to, property taxes, special assessments and other forms of revenue raising measures. Neither Capital Improvements Element Policy 1.4.1 nor Policy 1.5.1 establishes the impact fees necessary to fund the Drainage Study and Facilities or identifies viable revenue sources. Therefore, the Master Drainage Study and Facilities, identified in the Schedule of Capital Improvements, is not funded and is not financially feasible. XII CONCURRENCY MANAGEMENT Minimum requirements for a Concurrency Management System mandate that the system ensure that facilities and services needed to support development are available concurrent with the impacts of such development. Prior to the issuance of a development order or development permit, the Concurrency Management System must ensure that the adopted level of services standards required by roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation and mass transit, if applicable, will be maintained. The Concurrency Management System contained in the Capital Improvements Element of the plan provides that facility capacity may be determined or counted as existing capacity, provided facilities were in the procurement cycle or if there is a binding executed contract for construction of the facility. This provision is overly broad and, hence, inadequate to meet rule requirements. The minimum requirements for concurrency are not uniform in every respect for the various types of public services and facilities needed to support development. For parks and recreations, the local government may satisfy the concurrency requirements through a binding executed contract which provides for a commencement of the actual construction of the required facilities or the provision of services within one (1) year of the issuance of the development permit in addition to other criteria. However, rule requirements in Chapter 9J-5, F.A.C., do not permit use of a binding executed contract to ensure concurrency for potable water, sewer, solid waste, and drainage facilities. The Concurrency Management System provides, on page 11-xi of the plan, that facility capacity may be counted if "the new facilities are guaranteed in an enforceable development agreement and is consistent with the Capital Improvements Element of the Comprehensive Plan." This is contrary to the requirements of Rule 9J- 5.0055(2)(a)(4), F.A.C., which contains minimum criteria for meeting concurrency through an enforceable development agreement. Those minimum criteria, which include the provisions of Rules 9J-5.0055(2)(a)1.- 3., F.A.C., are not recited in any provision of the Concurrency Management System or the Capital Improvements Element. The Concurrency Management System does not establish guidelines for interpreting and applying level of service standards to applications for development orders and permits and for determining when the test for concurrency has been met. The Concurrency Management System also does not contain guidelines for measuring the level of service and capacity of public facilities. Santa Rosa Island Future Land Use Sub-element Policy 1.1.3 indicates that the Concurrency Management System does not apply to Pensacola Beach. That policy reads: "By May 1991, the County shall adopt a Concurrency Management System in coordination with the Santa Rosa Island Authority to implement the Level of Service Standards of the Escambia County Comprehensive Plan as applicable to the Pensacola Beach." Santa Rosa Island Future Land Use Sub-element Policy 1.1.1 states: Development orders and/or permits for future development and redevelopment activities on Santa Rosa Island shall be issued only if public facilities necessary to meet level of service standards, adopted as a part of the Capital Improvements Element of the Escambia County Comprehensive Plan, are available concurrent with the impacts of development or are guaranteed in an enforceable development agreement pursuant to Section 163, F.S. and Rule 9J-5.0055, F.A.C., or an agreement or development order pursuant to Chapter 380, F.S. Santa Rosa Sub-element Policy 1.1.1 does not contain a provision that the necessary facilities and services will be in place when the development of impacts occur or, in lieu thereof, that the agreement must include the provisions of Rules 9J-5.0055(2)(a)1.-3., F.A.C. The Pensacola Beach Concurrency Management System was not adopted in the plan. Thus, the plan does not establish countywide concurrency. Santa Rosa Sub-element Policy 1.1.3 also is insufficient as it defers implementation of adoption of a concurrency management system until May 1991. The Concurrency Management System must be in place at the time of plan adoption. The Concurrency Management System does not clearly indicate the latest point in the application process for the determination of concurrency. The Concurrency Management System must indicate at what point in the application process final approval of a specific plan for development occurs and that this be prior to the determination of concurrency. The Concurrency Management System indicates that this point is the "final sign-off", however, that term is not defined and its meaning is opaque. LEVEL OF SERVICE STANDARDS Each local government is required to establish level of service standards for ensuring that adequate facility capacity will be provided for future development and for purposes of issuing development orders or permits pursuant to Section 163.3202(2)(g), Florida Statutes. The level of service standards must be set for each individual facility or facility type within the local government jurisdiction and not on a system-wide basis. The purpose of the sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element is to provide for necessary public facilities and services correlated to future land use projections. The sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element of the plan must contain policies which address implementation activities for establishing and utilizing level of service standards in accordance with rule requirements. The County has not adopted a level of service standard for drainage which will be applied to all development. Drainage Sub-element Policy 2.1.3 states: The level of service standard for stormwater water quality shall be the minimum Florida Department of Environmental Regulation Standards, Section 17-25.040(5), Florida Administrative Code. Single-family dwellings not part of a larger development will be exempt from the level of service requirements. As discussed above under Protection of Natural Resources, Section 17- 25.040, F.A.C., does not apply to new facilities. Thus, the County has not adopted a drainage level of service standard for existing facilities, as it must. Drainage Sub-element Policy 2.1.3 is also insufficient because it has not removed other exemptions included in Chapter 17-25.030, F.A.C.,: the single family, duplex, triplex and quadraplex exemption. This policy specifically exempts single-family dwellings not part of a larger development from the level of service standard, but is silent as to the other exemptions of Chapter 17-25, F.A.C. No such exemptions from the drainage level of service standards is authorized by Rule 9J-5, F.A.C. Santa Rosa Sub-element Policy 1.1.2 states in pertinent part: "Development approval is conditioned upon, but not limited to a determination of whether the following level of service standard can be met: (1) the post- development peak rate of stormwater discharge will not exceed the pre- development peak rate based upon the 25-year stormwater event of critical duration . . ." This level of service standard is inadequate because it ignores such critical factors as water quality. The Traffic Circulation Element (TCE) is required to include a policy establishing level of service standards at peak hours for all roads located within the government's jurisdiction. Subsection 9J-5.005(3) and subparagraph 9J-5.015(3)(b)3., F.A.C. A portion of SR 30/Pensacola Bay Bridge lies within the boundaries of unincorporated Escambia County. The Pensacola Bay Bridge starts in the City of Pensacola and terminates in Gulf Breeze, Santa Rosa County. Between the starting point of the bridge on the Pensacola side and the County line, which is over the Pensacola Bay, a portion of the bridge lies within the jurisdiction of Escambia County. The Department of Transportation General Highway Map, upon which the County-wide Future Land Use Map is drawn, depicts the County boundaries between Escambia County and Santa Rosa County. This map shows that Escambia County has jurisdiction over SR 30 between the City of Pensacola and midway between the mainland and Gulf Breeze. Approximately 1.5 miles of the bridge lies within the jurisdiction of the County. According to the data and analysis, SR 30/Pensacola Bay Bridge currently is operating at a level of service "F". This level of service is applied in the plan. 2/ The TCE is required to include a policy which establishes level of service standards at peak hours for roads within the local government's jurisdiction. These standards must be consistent with Florida Department of Transportation's policies. TCE Policy 1.1.1 adopts peak hour minimum acceptable operating level of service standards for County roads. The level of service standards for Transportation Planning Areas vary for various roadway types (freeways, principal arterials, minor arterials) depending on the area classification (existing urbanized, transitioning urban, rural). The policy also adopts a "deficient" level of service standard of "F" (existing) for the Pensacola Bay Bridge which it separately classifies as a Special Consideration (Backlogged Facility). The policy defines backlogged facilities as "roadways which do not meet the minimum acceptable level of service standards, are not in a Special Transportation Area, not constrained and are not scheduled for capacity improvement." The Pensacola Bay Bridge is a principal arterial road. The recommended Florida Department of Transportation level of service for the bridge is "D". A level of service of "D" indicates a range of speed of 17 to 21 miles per hour. A level of service of "F' indicates a range of speed of 0 to 13 miles per hour. The "F" standard cannot be violated because traffic may not be slowed below zero miles per hour. No specific measure of current operating conditions is provided to ensure the operating conditions will be maintained and improved. As long as existing bridge traffic exceeds 0 miles per hour, TCE Policy 1.1.1 allows the bridge road to continue to degrade. This is no standard at all. Capital Improvements Element Policy 1.3.3 commits the County to certain level of service standards for various services and facilities, including traffic circulation. That policy states in pertinent part that capital improvement projects adopted by Escambia County shall maintain level of service standards as reflected in the policy's tables. A schedule of level of service for Traffic Circulation Facilities is included in the policy. Capital Improvements Element Policy 1.3.3 establishes level of service standards for Special Transportation Areas, but does not establish specific level of service standards for Constrained Facilities and Backlogged Facilities. This policy commits to a level of service standard for Constrained Facilities for freeways, principal arterials, minor arterials, and others as "maintain." As to Backlogged Facilities, the policy commits to "maintain and improve" freeways, principal arterials, minor arterials, and others. As written, the level of service standards "maintain" and "maintain and improve" are not specific and measurable, are internally inconsistent with the specific level of service standards adopted in TCE Policy 1.1.1 (i.e., "C", "D"), and allow for future revision without undergoing the plan amendment process. The Capital Improvements Element (CIE) is required to include a policy for each objective which establishes level of service standards for public facilities within the local government's jurisdiction. These standards are required to be those found in the other local government comprehensive plan elements. The Drainage Sub-Element is required to include a policy addressing implementation activities for establishing and utilizing level of service standards for design storm return frequency for Drainage Facility Capacity. Drainage Sub-element Policy 2.1.3 adopts Rule 17-25.040(5), F.A.C., as the level of service standard for Stormwater Water Quality. That rule requires that facilities which directly discharge to Outstanding Florida Waters shall provide additional treatment as specified in Rule 17-25.025(9), which in turn requires an additional level of treatment equal to 50 percent more than the one-half inch requirement for sites less than 100 acres and one-inch of run-off from sites greater than 100 acres. CIE Policy 1.3.3 includes a level of service standard for drainage facilities. The policy states in pertinent part that for projects with drainage areas greater than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one inch of run-off from storm rainfall; for projects with drainage areas less than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one-half inch of run-off from storm rainfall; and for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration the level of service standard requires that a drainage system allow for discharges equal to pre-development levels unless an engineering analysis using professionally accepted methodologies demonstrates that a differing discharge rate should be used. This policy is internally inconsistent with Drainage Sub-element Policy 2.1.3 because CIE Policy 1.3.3 does not provide for the additional level of treatment for stormwater discharge facilities which directly discharge to Outstanding Florida Waters. CIE Policy 1.3.3 level of service standard for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration is not specific and measurable. This provision allows for the possibility of post- development run-off rate to exceed pre-development rates by allowing a different, presumably a higher, discharge rate to be used instead maintaining pre-development levels. There is no data and analysis to support an increase in discharge beyond pre-development levels. The Coastal Management Element is required to include an objective establishing level of service standards, areas of service and phasing of infrastructure in the coastal area. While CME Policy 1.8.1 establishes coastal area levels of services for sanitary sewer, solid waste, drainage, potable water, and recreation and open space, it does not include a level of service standard for traffic circulation. The primary sanitary sewer service provider in Escambia County is the Escambia County Utilities Authority. The data and analysis shows the existing level of service for sanitary sewer to range between 61.5 and 176 gallons per capita per day for wastewater treatment facilities owned by Escambia County Utilities Authority. For example, the Avondale facility has an existing level of service of 61.5 gallons per capita per day, the Mainstreet facility has an existing level of service of 99.8 gallons per capita per day, and the Navarre Beach Facility has an existing level of service of 176 gallons per capita per day. Sanitary Sewer Sub-element Policy 1.2.1 states: Escambia County hereby adopts 75 gallons per capita per day as level of service standard for the provision of sanitary sewer facilities in the Escambia County Utilities Authority service area, and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. Sanitary Sewer Sub-element Policy 1.2.3 states: "The County, through a Certificate of Availability, shall verify the capacity of public sewer systems prior to issuing development permits to ensure that adequate capacity to meet level of service standards (which is 100 gallons per capita per day) is available." The 100 gallons per capita per day level of service referenced in this policy is inconsistent with Sanitary Sewer Sub-element Policy 1.2.1 which adopts a level of service of 75 gallons per capita per day for Escambia County Utilities Authority Facilities and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. This internal inconsistency creates confusion as to which level of service standard is in fact being adopted and will be used for the issuance of development orders. The County is responsible for the disposal of all solid waste within its jurisdiction through the County's Department of Solid Waste. The level of service is established in Solid Waste Sub-element Policy 1.1.1 which states: "The County will provide the capacity to dispose of 7 pounds of solid waste per capita per day." Table 11 of the Solid Waste Sub-element Data and Analysis shows the projected generation of solid waste for the County from the year 1986 through the year 2000. Table 11 Projected Generation for Escambia County Year County Population Annual Tonnage lbs/capita/day 1986 230,250 309,000 7.4 1990 255,552 324,450 7.0 1995 274,520 340,670 6.8 2000 289,368 357,700 6.8 There is no data and analysis which relates the actual capacity of the landfill with the need projections of Table 11. Hence, the data and analysis fails to adequately support Solid Waste Sub-element Policy 1.1.1 and the policy's assurance that the County will provide adequate land-fill space. Potable Water Sub-element Policy 1.1.1 adopts two levels of service standards for the provision of potable water: Escambia County Utilities Authority - 75 gallons per capita per day and all other service providers - 100 gallons per capita per day. Escambia County is served by 10 public water supply systems, none of which are operated by the County. The largest public water supply system is operated by Escambia County Utilities Authority which has an existing level of service of 157.3 gallons per capita per day in Zone 2 and 101.6 gallons per capita per day in Zone 1. Table 12 of the Potable Water Sub-element Data and Analysis shows water system demand and plant facilities for 15 facilities, including facilities operated by private owners, the Town of Century, the Special District of Escambia Utilities Authority, and the Federal Government, Santa Rosa County, and the State of Florida. Nine of the facilities not operated by Escambia Utilities Authority are below 100 gallons per capita per day. The data and analysis do not adequately support Potable Water Sub- element Policy 1.1.1 and the aim of the policy to ensure that service providers currently providing less than 100 gallons per capita per day be able to meet that level in the event of future demand. AFFORDABLE HOUSING The Housing Element of the plan is required to contain an objective providing adequate sites for housing for low and moderate income families, and for mobile homes. The Housing Element's data and analysis concludes that affordable housing for persons in the very low, low and moderate income ranges should not exceed 30 percent of family income. By 1987 standards, these family income limits translate into less than $13,151 for very low income families and between $13,152 and $21,040 for low/moderate income families. The data and analysis does not state what the demand for new affordable housing construction will be through the planning period. Housing Element Objective 1.2 states: "Based on existing available resources provide for the rehabilitation of a minimum of 90 substandard homes and 10 new affordable housing sites annually." This objective is not quantitatively supported by the data and analysis and fails to describe the types of housing that will be constructed at the sites, i.e., single family dwellings, multi-family dwellings, or apartment buildings. The Housing Element is required to include a policy for each objective which addresses implementation activities for the improvement in the regulatory and permitting processes, if deemed necessary by the local government. Housing Element Policy 1.1.4 states: Develop a permit review process (that will include a checklist and flow chart) that will take into consideration the following aspects in order to expedite and help facilitate affordable housing projects: Fast track permitting process which will provide for concurrent review of all permits; Waiving or use of weighted permit fees; and Waiving or use of weighted County imposed impact fees. Although the need to improve the regulatory and permitting processes is identified, there is no assurance that the methods to expedite affordable housing projects outlined in Housing Element Policy 1.1.4 will be implemented because the policy merely states that those methods will be taken "into consideration." The policy is subject to interpretation and may or may not be implemented despite the identified need to expedite affordable housing projects. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN For the reasons set forth below, the plan is inconsistent with the state plan, construced as a whole. The plan is not consistent with and fails to further State Comprehensive Plan Goal 5(a) relating to housing, which states: The public and private sectors shall increase the affordability and availability of housing for low- income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost-effective operations. The vagueness of Objective 1.2 of the plan's housing element fails to further this goal or policy 3 of this state goal, which relates to increasing housing availability for low and moderate income persons and elder persons. Policy 4 of this goal addresses reduction of housing costs through elimination of unnecessary regulation which adds to the cost of housing. The plan's lack of specific implementing actions that will be taken with regard to this policy establishes that the plan is not consistent with and does not further this state goal. Densities and intensities of land use in the plan which increase runoff and inadequacies of level of service for drainage facilities make the plan inconsistent with state goal 8(a) relating to water resources and the need to assure availability of water quantity for reasonable and beneficial uses while maintaining the present level of surface and ground water quality. These inadequacies of the plan also fail to further policy 8(b)2 of the state goal requiring the identification and protection of water recharge areas. The plan also fails to further state policy 8(b)5 of this goal since the plan does not ensure that new development will be compatible with existing local and regional water supplies. The distribution pattern and intensities and densities of land use and the plan's inadequate approach to existing and future deficiencies of drainage issues also prevent the plan from being consistent with state policies 8(b)8-13, which seek to encourage development of floodplain management; preserve hydrologically significant wetlands and other natural floodplain features; support the protection of aquifers from depletion and contamination; protect surface and groundwater quality and quantity; promote water conservation; provide for elimination of discharge of inadequately treated wastewater and stormwater runoff into the waters of the state; and support alternative methods of wastewater treatment, disposal, and reuse to reduce degradation of water resources. The plan fails to further and is not consistent with state goal 9(a) which provides: Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the state's population additional beaches and marine environment, consistent with sound environmental planning. Policies of this goal include: Policy 1 which seeks the acceleration of public beach acquisition; policy 2 which ensures public beach access; policy 3 which emphasizes the importance of avoiding expenditure of funds to subsidize development of coastal high hazard areas; policy 4 which protects coastal resources, marine resources and dune systems from the adverse effects of development; policy 5 which seeks development of a planning system ensuring the continued attractive image of coastal areas; policy 6 which requires compatibility of land and water uses with protection of sensitive coastal resources; policy 7 which requires protection and restoration of productivity of fisheries and habitat; and policy 9 which prohibits development of other activities which disturb dune systems. The plan is not consistent with either the goal or policies 1-7 and 9 due to the plan's inadequacies with regard to preservation or conservation of coastal resources; density and development patterns along the coastal area; level of proposed development; and the failure of land uses on the future land use map to be compatible with sensitive coastal resource protection. The plan is inconsistent with and does not further state goal 10(a) which requires the protection of unique natural habitats and ecological systems such as wetlands and various vegetative species, as well as restoring degraded natural systems to a functional condition. Deficiencies within the plan's objective and policies, as well as the failure to depict wetlands and floodplains on an adopted FLUM, prevent a finding that policy 1 of the goal, regarding conservation of forests, wetlands, fish, marine life, and wildlife, is consistent with or furthered by the plan's objectives and policies. Other policies of this goal where objectives, goals and policies of the plan fail to establish specific implementing actions necessary to a finding of consistency with the state plan include: Policy 2 regarding the acquiring, retaining, managing, and inventory of public lands to provide recreation, conservation, and other public benefits; policy 3 relating to prohibition and destruction of endangered species and protection for their habitats; policy 4 relating to establishment of an integrated regulatory program to assure the survival of endangered and threatened species within the state; policy 5 relating to the promotion of agricultural practices compatible with protection of wildlife and natural systems, which is specifically not supported by the plan's relatively high residential densities in some agricultural areas of 1-5 units per acre; policy 6 relating to maximizing use of forest resources where again the plan's densities and distribution of those densities on the land use map prevent consistency; policy 7 relating to protection and restoration of the ecological functions of wetland systems; policy 9 relating to an acquisition program to ensure the integrity of Florida's river systems, which is unsupported by any provision of the plan to establish such a county program; policy 10 relating to acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation; and policy 11 relating to state and local efforts to provide recreational opportunities to urban areas, including the development of activity-based parks. The plan is inconsistent with and does not further state goal 16(a), which states: In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Likewise the plan is inconsistent with and fails to further policy 2 of state goal 16(a), relating to development of incentives and disincentives to encourage separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. The failure to further this policy highlights the fundamental shortcoming of the plan as to densities and intensities and distribution of those uses. Policies 4 and 6 of state goal 16(a) are not furthered by and are inconsistent with the plan. Policy 4 provides for development of a system of intergovernmental negotiation for siting locally unpopular public and private land uses, but the plan does not provide how the county will address this subject. Policy 6 requires consideration, in land use planning and regulation, of the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. The distribution of land uses shown on the future land map and the lack of adequate policies prevent the plan from furthering this policy. Goal 20 of the State Plan relates to transportation and provides: Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. The plan does not address coordination between land uses and the transportation system. Therefore this goal is not furthered by the plan. Policy 3 of Goal 20 relates to promotion of a comprehensive transportation planning process coordinating state, regional, and local transportation plans. The plan adopts a level of service "F" for the Pensacola Bay Bridge which designation fails to provide any point at which development orders should be denied. This adopted level of service permits unlimited degradation and therefore does not further and is not consistent with the state plan. Policy 12 of Goal 20 of the state plan requires local governments to eschew transportation improvements which encourage increased development in coastal high-hazard areas or in environmentally sensitive areas such as wetlands, floodways, or productive marine areas. The high densities of use provided in the plan for coastal areas will inevitably cause demand for improved transportation systems in these areas and consequently fail to further this policy. The requirement of policy 13 of goal 20 to coordinate transportation improvements with state, local, and regional plans is not furthered by a level of service designation in the plan, such as the one for Pensacola Bay Bridge, which does not ensure that improvements can be coordinated. A level of service designation such as that accorded the bridge permits complete degradation without necessarily requiring coordination for expansion of the facility. The plan fails to address, and thus does not further, Policy 14 of goal 20, addressing acquisition of advanced rights-of-way for transportation projects in designated transportation corridors consistent with state, regional, and local plans. Policy 15 of goal 20, relating to promotion of effective coordination among various modes of transportation in urban areas to assist urban development and redevelopment efforts, is not addressed or furthered by the plan. The plan is not consistent with and does not further transportation goals and policies of the state comprehensive plan. The lack of adequate policies and high density of residential use in agricultural areas in the plan prevent the plan from furthering goal 23 of the state comprehensive plan, which reads as follows: Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, agriculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Goal 26 of the state comprehensive plan reads as follows: Systematic planning capabilities shall be integrated into all levels of government in Florida, with particular emphasis on improving intergovernmental coordination and maximizing citizen involvement. Policy 4 of Goal 26 relating to the need to simplify, streamline, and make more predictable the existing permitting procedures, is not furthered or consistent with plan as a result of the plan's failure to adequately define what would be done to simplify the regulatory process. CONSISTENCY WITH THE REGIONAL POLICY PLAN The plan is inconsistent with the West Florida Regional Policy Plan (the regional plan), construed as a whole, for the reasons listed below. The vagueness of Housing Element objective 1.2 with regard to provision of 10 new housing sites is inconsistent with Regional Goal 2 of Regional Issue 19, related to housing, contained in the regional plan. The plan fails to further that goal, which provides: By 1990, affordable, safe and sanitary housing for low and moderate income households and the elderly population which will increase by 10% over 1985 levels. The failure of the plan to address Goal 3 of Regional Issue 19 contained in the regional plan with regard to elimination of housing discriminatory practices is a significant inconsistency with the regional plan. The failure of the future land use map to identify existing and planned waterwells constitutes an inconsistency with goal 1 of regional issue 37 of the regional plan. That goal reads: By 1995, Regional water supply authorities shall be established throughout the Region which shall adopt water supply plans that incorporate water conservation programs, protection of water recharge areas and existing and future well sites, and identify vulnerable water supplies that local governments should regulate to limit development. As a result of the failure of the plan to set out densities and intensities of land use which serve to protect natural resources, as well as deficiencies of the plan with regard to drainage facilities, the plan does not further regional goal 1 of regional issue number 38. That goal provides: By 1995, the Region's potable aquifers shall be protected from depletion and contamination to ensure adequate quality of the Region's water resources to meet current and long-term needs for all reasonable-beneficial uses. Inadequate protective policies within the plan are inconsistent with the regional plan. Some of those inadequacies include inadequate drainage level of service standards, allowance of septic tanks in unsuitable areas, and high densities covering high aquifer recharge areas with impervious services. These plan policies are inconsistent with regional goal 1 of regional issue 39, Natural Systems Protection, which provides: By 1995, 10 percent of regional natural water systems will be protected, maintained, and their natural processes restored. The densities and intensities of use proposed by the plan for the barrier islands and in some of the coastal areas are very high and negatively impact resources of the land. This is particularly so with regard to densities and intensities of use established in Pensacola Beach, Navarre Beach and Perdido Key areas. The inadequacies of policies within the plan do not further goal 1 of issue 40 of the regional plan relating to protection of beach and dune systems. That goal reads: By 1990, land use guidelines will be adopted which protect beach and dune systems. Goal 1 of regional issue 41 is not furthered by provisions of the plan, specifically the lack of adequate level of service standards for drainage. This goal of the regional plan provides: By 1990, land use and coastal zone planning will be coordinated with the protection and management of marine fisheries habitat. Regional issue 43 of the regional plan addresses protection of natural resources. Goal 1 of that issue is not furthered due to the previously mentioned inadequacies of the plan, plus the lack of inclusion of a wetlands map and floodplains map as part of the adopted comprehensive plan. This goal of the regional plan provides: By 1990, state and local regulatory programs shall be designed to appropriately use and protect the Region's functioning natural systems. Endangered and threatened species are addressed by issue 44 of the regional plan. Goal 1 of that issue provides: By 1995, the number of native species in the Region on the official list of Endangered and Potentially Endangered Species of Fauna and Flora in Florida (FGFWFC) shall be reduced by 5 percent. The lack of planning directives and controls upon development in the county by goals, objectives and policies of the plan, prevents a finding that the plan furthers this goal. Regional issue 45 regarding the management of public and private land in a manner that permits continued functioning of natural systems is not furthered by the plan. Again, the densities and intensities of use established by the plan; the lack of control over development permitted by the plan; and specifically, the failure of the plan to include an adopted map of wetlands and floodplains establishes the plan's failure to further goal 1 of this issue. That goal provides: By 1990, public and private lands will be managed and land resources used according to comprehensive, economic and environmental principles, especially critical areas including, but not limited to coastal lands, wetlands, flood plains, margins of estuarine nursery areas, and locally important agricultural lands. Regional issue 58, regarding natural resource preservation and coordination between potable water and wastewater treatment facilities and land uses with regard to aquifer protection, is not furthered by the plan in view of the plan's provisions which fail to discourage urban sprawl and, instead, permit urban development to spread and negatively impact natural systems. Goal 1 and goal 2, respectively, of this issue of the regional plan read as follows: Regional goal 1 By the year 1991, local land use planning will be fully coordinated with planning for the provision of potable water and wastewater treatment and disposal. Regional Goal 2 By the year 1991, each local government in the Region will use review procedures that consider cumulative impact of development on natural resources. Neither of these goals is furthered by the plan. Because level of service standards established in the plan's Capital Improvements Element (CIE) permit inadequate roadway level of service standards with regard to the Pensacola Bay Bridge and permit the change of such level of service standards simply by having a roadway definitionally reclassified, regional issue 63 and regional goal 1 of that issue are not furthered by the plan. Regional goal 1 of the issue reads: By 1995, all modes of transportation planning will be integrated to efficiently, economically and safely accommodate transportation needs in the West Florida Region. Regional issue 64 addresses transportation planning to aid growth management. Regional goal 1 of the issue provides that planned development patterns and land use permitting will conform and coordinate with existing or programmed state and local transportation systems by 1991. Regional goal 2 of this issue provides that land development codes will include an analysis of transportation impacts, provide for protection of transportation rights-of-way, and establish private sector sharing of the cost of transportation facilities by 1991. Inasmuch as traffic analysis under the plan appears based on historical projections, as opposed to the impacts of future land use permitted by the plan, the plan does not further this issue or goals 1 and 2. Regional issue 69 of the regional plan and goals 1 through 4 of that issue are not furthered by the plan in view of the relatively high densities and intensities of residential use permitted in agricultural areas. Such usage for residential purposes does not ensure that agriculture will be protected.
Recommendation Based upon the foregoing findings and fact and conclusions of law, it is hereby recommended that a final order be entered finding that the Escambia county Comprehensive Plan is not in compliance. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992.
The Issue The issue in this case is whether the Gilchrist County comprehensive plan and subsequent remedial amendments are "in compliance" pursuant to Chapter 163, Part II, Florida Statutes.
Findings Of Fact PARTIES Intervenors Craig Hennis, Jim Moore, and Jean Wonser own property in Gilchrist County, Florida, which is located in or near the area known as the Waccasassa Flats. Hennis, Moore, and Wonser submitted oral and written comments during the review and adoption proceedings. Hennis, Moore, and Wonser are "affected persons" as defined in Section 163.3184(1)(a), Florida Statutes. Gilchrist County Gilchrist County is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Part II, Florida Statutes The County is situated in North Central Florida. The County is bordered on the east by Alachua County; on the south by Levy County; on the west by Dixie and Lafayette Counties; and on the north by Suwannee and Columbia Counties. The County seat is the incorporated City of Trenton. The County contains many areas of natural resources including the Santa Fe River in the north, the Suwannee River in the west, numerous fresh water springs, and the Waccasassa Flats. Department The Department is the state land planning agency charged with the responsibility of reviewing local government comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Waccasassa Flats The Intervenors' challenge concerns the level of protection afforded the Waccasassa Flats (Flats). The Flats are approximately 56,000 acres in size in Gilchrist County and act as the source of the Waccasassa River, whose headwaters are located in Levy County. The Flats extend from northern Gilchrist County through Levy County to the Gulf of Mexico. The Flats are situated on a high limestone formation between two sand ridges. The Flats are a mosaic of uplands, wetlands, and sandhills composed primarily of commercial pine plantations, hardwood swamps, isolated strands of cypress domes, and shrubs and brush. Approximately 31,000 acres are forested uplands and forested flatwoods; 24,000 acres, forested wetlands and non-forested wetlands; and 1,000 acres, non- forested uplands. The water table in the Flats is generally near or above the surface, and is linked to a surficial aquifer, not the Floridan Aquifer, which is much deeper. The Flats act as a low to moderate water recharge area by collecting water, then slowly releasing it to surrounding areas. The Flats are not unlike many parts of North Central Florida, including northern Columbia County, eastern Alachua County, parts of Baker and Levy Counties, Nassau County, Lafayette County, eastern Hamilton County, western Madison County, Taylor County, and Dixie County. Within Gilchrist County, the Flats are privately owned and historically have been logged in large part by commercial silviculture companies. This activity continues today. A network of logging roads and fire lines have been cut through the Flats. Silviculture activities such as the clearcutting of large tracts of timber, replanting with non-native species of pine, and creating a monoculture pine forest, have degraded the ecosystem, fragmented wildlife habitat, and negatively impacted some species of wildlife and native vegetative communities in the Flats. For example, throughout most of the Flats native longleaf pine communities no longer exist. Many of the native hardwood hammocks have been cut to increase the land available for pine planting and harvesting. In addition, native cypress trees have been cut. While the Flats still function as a natural system, they are not a pristine system because of these past and current silviculture activities. The Division of Forestry in the Florida Department of Agriculture and Consumer Services recommended that 56,050 acres of the Flats be acquired by the State of Florida through the Conservation and Recreation Lands (CARL) program. The Flats have been on the CARL acquisition list since 1988: they were ranked ninth on the list in 1988 and thirty-third in 1993. WACCASASSA FLATS/DENSITY Intervenors assert that the Plan fails to adequately preserve and restore the natural resources associated with the Flats. Specifically, Intervenors claim that a density of one dwelling unit per 160 acres in the area designated Silviculture/Agriculture (S/A) on the County's FLUM does not preserve wildlife, wildlife habitat, native vegetative communities, and groundwater quality, nor restore wetlands in the Flats. Policy I.2.2 of the Plan establishes the densities in the S/A land use category at no more than one dwelling unit per 160 acres and no more than one development unit per 80 acres. The policy defines development units as: [] structures commonly associated with row crops, pasture, hunting or silviculture activities such as barns, outbuildings and sheds, vehicle storage, small mill operations, and small office structures. . . The density established under Policy I.2.2 is a low density. By requiring at least 160 acres before one residence can be built, development in the S/A category is discouraged and directed to other areas of the County where higher densities are permitted. The following uses and activities are established by Policy I.2.2 for lands classified as S/A: Lands classified in Silviculture/Agriculture shall be lands which are predominantly used for silviculture activities conducted in accordance with Policy V.2.16, limited agricultural uses as described below, dwelling units, development units, archery ranges, rifle, shotgun and pistol ranges, and hunting and fishing camps and uses customarily accessory and clearly incidental and subordinate to such uses. Policy I.2.2 describes the limited agricultural activities permitted in the S/A land use classification: Within the Silviculture/Agriculture land use classification, intensive agriculture uses shall be prohibited. Grazing of livestock on pasture lands shall be allowed and row crops planted on a rotational basis between the harvesting of timber and planting of trees as part of silviculture activities shall also be allowed. Row crop activity shall be limited to areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) and shall maintain a 50-foot natural buffer around all wetlands. The Plan conserves and protects wetlands. In addition to restricting row crops to drier soils and requiring buffers between row crops and all wetlands (as described above), Policy I.2.2 provides: [] ditching or any other activity which would modify the natural hydrology and environmental character of Silviculture/Agriculture areas shall be prohibited, provided however, that trench irrigation shall be allowed in areas containing soils within hydrological Groups A and B as identified in Soil Survey of the County (U.S. Soil Conservation Service, September 1992) for row crops within Silviculture/Agriculture areas so long as such trench irrigation practices do not result in the conversion of wetlands to uplands. To further protect wetlands, Policy V.2.4 requires a 35-foot natural buffer around all wetlands, within which agricultural and residential uses are prohibited. Additionally, Policy V.2.8 prohibits development which alters the natural functions of wetlands where all structures can be clustered on the non- wetland portion of the site. Where that option does not exist, Policy V.2.8 permits only minimal residential development activity and establishes other limitations on development, including the requirement that walking paths and driveways to residences use permeable fill and allow the uninterrupted flow of water. Wetlands are also protected by Policy V.2.16, which requires silviculture activities to follow the best management practices established in the 1993 Florida Department of Agriculture's "Silviculture Best Management Practices." These identified policies in the Plan conserve and protect wetlands in the Flats. Intervenors assert that development at the rate of one dwelling unit per 160 acres will "fragment" wildlife habitat in the Flats and thereby negatively affect wildlife associated with the Flats. The Flats is not a particularly significant habitat for threatened or endangered species, species of special concern, or rare species. The best available existing data shows that the habitat in the Flats is not used by many, if any, of these types of species. Development at the low density allowed in the S/A land use classification will not adversely impact either the habitat or the wildlife which might use that habitat. Some species may be positively impacted by the limited development activities allowed in the Flats under the Plan. While wading birds at times forage for food in the Flats, development at the low density allowed in the S/A land use category, with the various wetlands protection policies in the Plan, will not adversely affect utilization of the Flats by these bird populations. An individual animal may be negatively impacted by limited development of one dwelling unit per 160 acres, but the wildlife population as a whole will suffer no adverse impacts. Moreover, development at this density could cause less severe fragmentation and fewer negative impacts than are caused by current silviculture practices which have been utilized in the Flats for decades. Policy V.2.8, relating to residential development in wetlands, limits clearing or removal of native vegetation and provides some protection to the Flats. Such clearing or removal may not exceed more than one-half acre per five acres. Requirements of Policy V.3.4 that the County cooperate with other governmental entities, research and interest groups to conserve and protect unique vegetative communities within the County, affords protection to wildlife, wildlife habitat, and native vegetative communities. Also, Policies V.3.4, V.4.1, and V.4.2 require the County to cooperate with the Florida Game and Freshwater Fish Commission in monitoring and inventorying wildlife and wildlife habitats, including cooperating in the application, and compliance with, all federal and state regulations pertaining to endangered and rare species. Policy V.4.3 also requires consultation with the Florida Game and Fresh Water Fish Commission prior to the issuance of a development order where there is an indication that such issuance would result in an adverse impact to any endangered or rare species. The low density permitted in the Flats, in conjunction with wetlands protection and other identified policies in the Plan, will conserve and protect wildlife, wildlife habitat, and existing native vegetative communities, and maintain the overall integrity of the natural resources in the Flats. Intervenors assert that placement of septic tanks within the Flats have the potential to contaminate the underlying groundwater. Contamination from a septic tank from a residential development at a rate of one dwelling unit per 160 acres will have no significant impact on groundwater quality. Scientific studies show that any adverse impact of effluent from a septic tank system, or even a malfunctioning septic tank, is dissipated within 50 feet. As a result, the placement of septic tanks in the Flats at the designated density required by the Plan will not adversely impact the groundwater quality. In addition to the Plan's protection of groundwater quality as a result of the maximum density in the S/A land use classification of one dwelling unit per 160 acres and one development unit per 80 acres, protection also results from the previously-identified policies relating to wetlands protection. A comprehensive approach to conserving and protecting the natural resources associated with the Flats has been established by the County through all the above-referenced policies. The Plan relies on the low density established for the S/A land use classification, as well as various planning controls. These controls limit the type and extent of uses allowed in the S/A land use classification and protect wetlands, and require cooperation with other governmental entities to ensure the conservation and protection of wildlife, wildlife habitat, native vegetative communities, and groundwater quality in the Flats. BOUNDARY DESIGNATIONS FOR SILVICULTURE/AGRICULTURE AND AGRICULTURE-5 LAND USE CLASSIFICATIONS Intervenors assert that the County's designation of the S/A and Agriculture-5 (Ag-5) land use classifications are inappropriate and do not follow the boundaries of the Flats. Although the Flats are approximately 56,000 acres in Gilchrist County, there is no definitive boundary for the Flats. Prior to the 1991 adoption of the County's comprehensive plan, the Flats were zoned Preservation-1 (P-1). The lands zoned P-1 prior to 1991 now are classified by the Plan as S/A. The size of the S/A category is slightly larger than the P-1 zone. The subject of boundaries of the Flats was addressed in Gilchrist Timber Company v. Gilchrist County, Florida, Case No. 88-156-CA (Eighth Judicial Circuit, August 21, 1989). In that case, the circuit court determined that the County did a "commendable and legally defensible task in following section lines, quarter section lines and existing uses in setting the boundaries [of the P-1 zoning category]. These lines must be somewhere and those made in this case are quite reasonable." Much of the land surrounding the Flats was zoned General Flood Plain-1 (GFP-1) or General Flood Plain-2 (GFP-2) prior to the 1991 Plan adoption; the vast majority of that land now is classified by the Plan as Ag-5. In determining the boundaries of the S/A and Ag-5 land use classifications for the FLUM in the adopted Plan, the County reviewed its zoning map, conducted site visits, and utilized updated maps and information prepared by state, federal, and regional agencies. These maps included the Federal Emergency Management Agency's Flood Insurance Rate Map (1988); the U.S. Fish and Wildlife Service's National Wetlands Reconnaissance Survey (1981); the U.S. Department of Agriculture Soil Conservation Service's Soil Associations map (1991); and the Florida Sinkhole Research Institute's Potential for Groundwater Pollution of the Floridan Aquifer (1988). This information was the best available data and analysis which existed at the time the Plan and remedial amendments were adopted. These maps depict the boundary of the resources within the Flats, but cannot be used to definitely establish the boundaries of the Flats. Policy I.2.2 establishes the density for the Ag-5 land use classification as one dwelling unit per 40 acres. This is a low density which discourages development in the Ag-5 category, and directs development to other areas of the County which have higher densities. The density in this land use classification thereby serves to limit negative impacts from development to surrounding areas, including the Flats. As a buffer between the Flats and surrounding agriculture lands, the Ag-5 areas protect natural resources in the Flats from the potential adverse impacts of agricultural activities and higher densities and intensities of development permitted outside the Flats. Buffering in this way is a professionally-accepted planning tool for protecting natural resources. The natural resources associated with the Flats will receive adequate protection through the Plan policies referenced earlier, regardless of whether they fall within the S/A or Ag-5 land use classification. The data and analysis used by the County to delineate the boundaries of the S/A and Ag-5 land use classifications was the best available existing data, was relevant and appropriate. The Plan's classification of certain lands as S/A and Ag-5 was reasonable and based on sound planning principles. NEEDS ASSESSMENT Intervenors allege that the future population projections in the Plan do not demonstrate a need for additional density in the Flats in order to meet the future residential needs of Gilchrist County. Pursuant to Plan Policy I.2.2, a density of one dwelling unit per 160 acres in the S/A land use category would allow a maximum of 232 dwelling units to be built in the Flats. Under Plan Policy I.2.2, the current density allowed in Ag-5 is one dwelling unit per 40 acres. A comparison of the adopted FLUM with the prior zoning map reveals that over 5,000 acres are designated Ag-5 which were formerly zoned GFP-2 prior to the Plan's adoption. Under the old GFP-2 zoning category, a maximum of 5,000 dwelling units could have been built. Under the current Ag-5 land use classification, no more than 160 dwelling units could be built. Through the Plan's adoption, the densities established for the combined S/A and Ag-5 land use classifications result in an overall reduction in density allowed in the Flats and surrounding areas. Moreover, the densities permitted in these areas do not result in adverse impacts to natural resources in the Flats. The County's designation of densities in the S/A and Ag-5 land use classifications is reasonable and appropriate and based on data and analysis in the Plan.
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 Gilchrist County Comprehensive Plan as subsequently amended to be "in compliance." DONE AND ENTERED this 23rd day of May, 1995, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 23rd day of May, 1995.
The Issue Whether Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Each of the four Petitioners owns property in Escambia County and submitted written or oral comments regarding the Plan Amendment to the County between the date the Plan Amendment was transmitted to the Department of Economic Opportunity (“Department”) and the date it was adopted by the County Commission. Escambia County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive land use plan, pursuant to section 163.3167, Florida Statutes (2019). Existing Conditions There are approximately 610 square miles of land in the unincorporated County. Of that, almost half (48.75 percent) is designated for agricultural use. Escambia County can be roughly described as an hourglass shape. The northern portion is dominated by agricultural uses and is overwhelmingly designated as Agricultural on the County’s 2030 Future Land Use Map (“FLUM”). The Agricultural (“AG”) land use category allows a maximum residential density of one dwelling unit per 20 acres (“1du/20 acres”). In contrast, the southern portion has a much more urban development form. The central urban core, located west of the City of Pensacola, is designated as Mixed-Use Urban, with a sprinkling of Industrial designations, and Commercial designations along the major thoroughfares. Radiating out to the north and west of the urban core is a swath of Mixed-Use Suburban, with some areas designated for Recreation, and Commercial along major thoroughfares. Farther west are lands designated for Conservation, which extend to the Perdido River, the County’s western boundary. The “neck” of the hourglass serves as a transition between the agricultural northern portion and the urban and suburban southern portion of the County. The dominant future land use categories in this area are Agriculture, Mixed-Use Suburban, and a category critical to this case, Rural Community, or “RC.” Rural Communities According to the Comprehensive Plan (“the Plan” or “the existing Plan”), the RC FLUM category is: ntended to recognize existing residential development and neighborhood serving nonresidential activity through a compact development pattern that serves the rural and agricultural areas of Escambia County. The designation was applied to pockets of mixed residential and commercial developments that served the agricultural areas in existence when the Plan was originally adopted. The FLUM depicts roughly 20 RCs in the County, almost all of which are located in the northern portion. The uses allowed in RC are agriculture, silviculture, residential, recreational facilities, public and civic, and compact traditional neighborhood supportive commercial. Development is limited to a residential density of two units per acre (“2du/acre”), but does not impose a cap on the intensity of commercial development. The County’s policy in establishing and maintaining RCs is best reflected in Goal FLU 3 and its implementing Objective and Policies, which read, as follows: GOAL FLU 3 Rural Strategies Escambia County will promote rural strategies, including protecting agriculture, silviculture, and related activities, protecting and preserving natural resources and guiding new development toward existing rural communities. OBJ FLU 3.1 Rural Development All new development within the rural areas, including commercial development, that is compatible with the protection and preservation of rural areas[,] will be directed to existing rural communities. Policies FLU 3.1.1 Infrastructure Expenditures. Escambia County will limit the expenditure of public funds for infrastructure improvements or extensions that would increase the capacity of those facilities beyond that necessary to support the densities and intensities of use established by this plan unless such expenditures are necessary to implement other policies of this plan. FLU 3.1.2 Water Facility Extensions. Escambia County will coordinate with potable water providers on any extensions of potable water facilities in the rural area. FLU 3.1.3 FLUM Amendments. During consideration of FLUM amendments, Escambia County will consider the impacts of increased residential densities to the agriculture and silviculture industries as well as public facility maintenance and operation expenditures (i.e., roads, water, sewer, schools) needed to serve the proposed development. FLU 3.1.4 Rezoning. Escambia County will protect agriculture and the rural lifestyle of northern Escambia County by permitting re-zonings to districts, allowing for higher residential densities in the RC future land use category. FLU 3.1.5 New Rural Communities. To protect silviculture, agriculture, and agriculture-related activities, Escambia County will not support the establishment of new rural communities. Designated Sector Area Plan The Designated Sector Area Plan (“DSAP”) was created and adopted in the Plan in 2011, and comprises approximately 15,000 acres in the transitional area between the urban and suburban south County and rural and agricultural north County. The DSAP plans for the location of traditional urban neighborhoods, new suburban and conservation neighborhoods, and regional employment districts, and includes the location of existing and planned public facilities to serve the new development. As noted by the County’s Development Director, Horace Jones, in August 2018, the primary purpose of the DSAP was to “prevent urban sprawl into the agrarian and rural communities . . . so that we can’t continue to intrude upon those prime farmland areas, upon those large parcels of land in the AG category.” At the final hearing, Mr. Jones several times confirmed that the purpose of the DSAP was to prevent urban sprawl into the agricultural areas of the County. As noted by the County’s Senior Urban Planner, Juan Lemos, in August 2018, “We haven’t gotten to that point where we need those agricultural lands to build houses for people . . . or to develop businesses[.]” At final hearing, Mr. Lemos confirmed that his opinion on that issue has not changed.3/ The Plan Amendment The Plan Amendment, plainly and simply, deletes FLU 3.1.5 in its entirety. The Plan Amendment represents a policy change by the County to allow consideration of plan amendments establishing new RCs in the County. Petitioners’ Challenges Petitioners allege the Plan Amendment is not “in compliance” because it: (1) creates internal inconsistencies in the existing Plan; (2) is not based on relevant and appropriate data and an analysis by the local government; and (3) fails to discourage urban sprawl. Internal Inconsistencies Petitioners allege the Plan Amendment is inconsistent with FLU Goal 3, “Rural Strategies,” and Objective 3.1, “Rural Development.” The Goal provides that, in rural areas, the County will “guide[] new development toward existing [RCs],” and the Objective provides that “[a]ll new development within rural areas . . . will be directed to existing [RCs].” The language of both the Goal and Objective is clear and unambiguous. Establishment of new RCs in the rural areas of the County will not guide new development to existing RCs, and will be contrary to both the Goal and the Objective. However, the Plan Amendment neither establishes new RCs nor creates a policy supporting the establishment of new RCs. It merely deletes a policy expressing the County’s intent not to support new RCs. Absent an express policy in the County’s existing Plan, the Plan Amendment is not internally inconsistent with FLU Goal 3 and Objective 3.1.4/ The preponderance of the evidence does not support a finding that the Plan Amendment creates internal inconsistencies in the existing Plan. Data and Analysis The County agenda items for transmittal and adoption hearings on the Plan Amendment were devoid of any supporting data or analysis. The County’s transmittal package to the Department and other reviewing agencies contained only the ordinance adopting the Plan Amendment accompanied by a cover letter. The Plan Amendment reflects a policy change by the County to consider allowing establishment of new RCs. The Plan Amendment does not change the land use of any particular parcel of land in the County, and does not change the uses allowed, or the density or intensity of development allowed thereon. The Plan Amendment does not, in and of itself, require the expenditure of public funds, nor does it immediately impact the provision of public services in the rural areas of the County. Whether the County will establish any new RCs in the rural areas of the County depends on whether a property owner proposes one in the future, and whether the County approves said proposal, after consideration of all applicable Plan policies. The agenda items for both the transmittal and adoption hearings on the Plan Amendment contain the following as background for the Plan Amendment: The Escambia County Board of County Commissioners finds that an amendment to its Comprehensive Plan is necessary and appropriate based on the changing needs within the County; and it is in the best interest of the health, safety, and welfare of the County to amend its Comprehensive Plan. (emphasis added). At the final hearing, the County offered no data to establish the “changing needs within the County” referenced in the background statement. In effect, the County offered no data or analysis at final hearing to support the Plan Amendment. Mr. Jones testified that “there were some discussions [among Commissioners] on why they were adopting this and why they felt it was necessary.” He stated, “the record reflects that they stated that basically it was to give someone an opportunity for them to make a request to make an application [for RC].” Mr. Jones’s hearsay testimony was not corroborated by any non-hearsay evidence. In a series of leading questions, Mr. Jones affirmed that the County Commissioners “found that FLU 3.1.5 restricted the ability of landowners to even request a change to the rural community future land use category,” and “found that the [Policy] restricted the ability of landowners to construct residences due to the density limitations of only one dwelling unit per 20 acres.” Mr. Jones’s testimony was neither credible nor persuasive. Mr. Jones’s explanation of the reason for the Plan Amendment was undermined by his subsequent testimony that the Commission had the authority to approve a plan amendment, changing the designation of property from AG to RC, even without repealing Policy FLU 3.1.5. If that is true, there is absolutely no basis for the Plan Amendment.5/ In a series of leading questions from his counsel, Mr. Jones agreed that “this text amendment was necessary to allow . . . existing residential areas [within AG] to change to RC in order to come into the appropriate future land use category” and “determined that there were areas within the agricultural future land use designation which would benefit from the ability to change to a rural community future land use category.” However, Respondent offered no evidence of the location of any such residential areas outside of existing RC communities, or an explanation of why the assigned AG designation was inappropriate. Nor did Mr. Jones expound on the benefit the Plan Amendment would allegedly bestow on property in the agricultural areas. This testimony was conclusory and lacked foundation. Mr. Jones’s testimony was further undermined by his refusal to speak for the Commission when questioned by the Petitioners regarding the Commission’s reasons for the Plan Amendment, contrasted with his eager agreement with leading statements from his counsel offering reasons for the Plan Amendment. On redirect, when Mr. Jones responded to Petitioner Rogers’s question regarding the County’s reasons for adopting the Plan Amendment, he referred generally to “economic reasons” and vaguely referred to “other public reasons as she previously stated,” deferring to his counsel’s leading questions. (emphasis added). Mr. Jones’s testimony that the Commission’s justification for the Plan Amendment is to allow property owners to apply for a change is unreliable hearsay evidence, later contradicted by his own testimony that the Commission could have approved a land use amendment to that effect prior to adoption of the instant Plan Amendment. Mr. Jones’s testimony is rejected as unreliable and unpersuasive. The preponderance of the evidence supports a finding that the Plan Amendment is not supported by any relevant data or an analysis thereof. Urban Sprawl Petitioners’ final contention is that the Plan Amendment fails to discourage urban sprawl as required by section 163.3177(6)(a)9. That section lists 13 “primary indicators” that a plan amendment does not discourage the proliferation of urban sprawl. Of those, Petitioners allege the Plan Amendment meets the following primary indicators: Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are suitable for development. Promotes, allows, or designated urban development in radial, strip, isolated, or ribbon patterns generally emanating from existing urban developments. * * * Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. Fails to maximize use of existing public facilities and services. * * * Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. * * * Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. In support of this allegation, Petitioners presented the testimony of Christian Wagley, who was accepted as an expert in sustainable development and environmental planning. Mr. Wagley testified that the Plan Amendment will allow a forty-fold increase in density of development allowed in the largely rural, agricultural northern county area (i.e., the increase in density between that allowed in the Agricultural category: 1du/20 acres--and that allowed in RC: 2du/acre), and significantly diminish available Agricultural lands and increase demand for urban services outside the urban area. Mr. Wagley’s testimony is based on the assumption that the County will actually approve, in the future, new RCs in the largely agricultural northern portion of the County. That assumption is insufficient to form the basis of a finding of fact in the instant case. The Plan Amendment does not convert any Agricultural lands to the RC category. It does not “promote, allow, or designate” urban development in the rural areas of the County; “promote, allow, or designate” development in a radial, strip, or isolated pattern; fail to maximize use of existing public facilities and services, or allow for land use patterns which disproportionately increase the cost of providing and maintaining public facilities and services; fail to provide a clear separation between rural and urban uses; or discourage or inhibit infill development or redevelopment. Petitioners introduced a map depicting the United States Department of Agriculture prime soils overlayed on the Agriculturally-designated lands in the County. While this map demonstrates that prime farmland is plentiful in the northern agricultural area of the County, it does not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. The preponderance of the evidence does not support a finding that the Plan Amendment fails to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is not “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of January, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2020.
The Issue The issues in this case are (1) whether the City of Panama City's (the City) Small Scale Comprehensive Plan Amendment No. 04-20S adopted by Ordinance No. 1985 (the Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes, and (2) whether the petition challenging the Plan Amendment should be dismissed as untimely.
Findings Of Fact The Parties Robert E. Moore owns a home and resides at 1310 Kristanna Drive, Panama City, Florida. The northwestern property line of Mr. Moore's home is adjacent to the northeastern corner of the Property. JE 7; PE 98-B at RM.2 There is an approximate 100-foot-wide Bay County maintained canal or drainage ditch (canal) that forms the northern boundary of the Property, see Endnote 1 and PE 50 at 7, which runs in an east-to-west direction at the northern portion of his home. This canal eventually leads to North Bay to the west.3 Goose Bayou is located south of the Property. Mr. Moore taught respiratory care at Gulf Coast Community College for approximately 23 years and is retired. His residence was affected by a hurricane which passed through the area in September 2004. He noticed water appearing half-way up his driveway, which is not on the canal. He is concerned with the placement of additional homes in this area in light of his experience with the water level after the recent storm event. (Generally, Mr. Moore stated that there is a two- foot difference between low and high tide in this area. T 133, 137.) Mr. Moore, as well as the other Petitioners, made oral and written comments to the City Commission during the Plan Amendment adoption hearings. See City's Unilateral Pre-Hearing Stipulation at 5, paragraph E.4.; T 213. The St. Andrews Bay Resource Management Association (RMA) was established in 1986 and is a citizen's organization devoted to the preservation of the quality of St. Andrews Bay and its surrounding ecosystems. T 194. (St. Andrews Bay is a larger body of water which includes North and West Bay and Goose Bayou. See generally JE 12, Map 1.) The RMA has approximately 100 members. The RMA uses, but does not own, an office on the Panama City Marine Institute campus located within the City. The RMA occasionally conducts seminars or conferences and offers several programs for citizens, e.g., sea turtle nest watch, a water sampling program (Baywatch), and a sea grass watch program. The RMA meets every month except during the summer. T 195-196. The RMA opposes the Plan Amendment, in part, because of concerns with the effect of development on what Ms. Shaffer characterized as the "pine islands." Linda Anne Yori owns and resides in a house at 908 Ashwood Circle, Panama City, Florida, which is "just off Kristanna" Drive and to the east. See PE 98-C at the blue X. She teaches middle school science at a local public school. She has observed the Property, and generally described the Property, and vacant property to the north, as "upland hammock with salt marsh." T 209. In general, Ms. Yori opposes the Plan Amendment because she "believe[d] the environmental impact would be too great." Mary Rose Smith owns and resides in a house on Ashwood Circle, Panama City, Florida, two houses away from Ms. Yori's residence. Ms. Smith regularly jogs throughout the neighborhood. She believed that there are approximately 400 homes in Candlewick Acres and six vacant lots remaining. T 214- 215. As a result of recent hurricanes in the area, she observed flooding approximately half-a-mile upland along Kristanna Drive from the west-end to the east (half a mile to the turn off to Ashwood). PE 98-D at the blue 1/2 designation and blue line. While she cannot say for certain where the water came from, she believed the water "came from the bay or the bayou." T 220. The Bay County Audubon Society (BCAS) conducts membership and board meetings within the City limits and also owns a piece of property in the City. BCAS has approximately 400 members. Members live within the City. BCAS is concerned with the environment and with "the density of the proposed development" and "access to the pine islands." T 409-411. The City is the local government unit responsible for approving the Plan Amendment at issue in this proceeding. § 163.3187(1)(c), Fla. Stat. The Application, Review, and Adoption of the Plan Amendment On or about May 11, 2004, James H. Slonina, P.E., the president of Panhandle Engineering, Inc., filed an application on behalf of Robert H. and Barbara B. Hansman, requesting the City to annex "approximately 9.9 acres including lots, paved roadways and bridged drives" and further requested a land use designation to allow proposed residential development." The Property, see Endnote 1, is designated on a Bay County parcel map. A flood zone map is also included, but lacks clarity. The Property is vacant. JE 13. The purpose of the annexation and request for land use designation "is to accommodate the development of a 13+/- lot single-family residential waterfront development adjacent to North Shore Subdivisions." The application also stated: To support the residential home sites, there are adequate adjacent public roadways and utilities. Due to the unique physical configuration of the property, traditional RLD lot standards may not [sic] applicable. While we would prefer to pursue an RLD-1 designation, the application is submitted contingent upon confirmation of an appropriate land use designation and an approval of the proposed project. If another course of action is available, which would allow for the development of 13+/- single-family residential lots on 9.9 acres, please advise. JE 13. (It is represented throughout this record that the land use designation is requested for approximately 6.8 acres rather that approximately 9.9 acres. See, e.g., JE 7 at 1; JE 11 at 12-13.) The application was reviewed, in part, by Mr. Thomasson. JE 7. The staff report4 dated July 30, 2004, stated that the request is to amend the City's FLUM from Conservation (as previously designated by Bay County) to RLD with a Zoning District classification of RLD-1. (The staff report referred to several permitted uses under RLD-1. JE 7 at 2. The permitted uses for RLD-1 are those contained in the City's "Comprehensive Planning and Land Development Regulation Code (LDRC)" at section 4-6.1.2.a. JE 4 at IV:8-9. However, the propriety of the RLD-1 Zoning District classification for the Property is not at issue in this proceeding. T 266.) The staff report also stated that the Property "is currently zoned conservation, abuts property to the North that is designated conservation Land Use category in the County and is just North of an existing Special Conservation Treatment Zone," which is indicated on a map on page 1 of the staff report. JE 7 at 1. The staff report stated that "[w]ater and sewer infrastructure and other urban services are available to this property." See T 286-287, 301-303, 307-308; JE 7 at 1. Under the background section, it is stated that "[t]he property has been seen as environmentally significant and has been the object of an effort to purchase for perpetual protection by a local land trust organization. It is adjacent to an existing development to the East." Id. The Plan provides that an RLD land use district "is intended to provide areas for the preservation of development of low-density neighborhoods consisting of single-family dwelling units on individual lots" with a density of "[n]o more than five dwelling units per acre." The allowed intensity is "[n]o more than 40% lot coverage as determined by dividing the impervious areas by the gross area of the site or lot." JE 3 at 1-2. The staff report contained findings of fact with citations to the Plan, including the Future Land Use Element, the Coastal Management Element, and the Conservation Element. References to the LDRC are also provided. See also T 285-311, 315-317, 320-321; JE 7 at 2-3. Thereafter, specific findings are made: Staff finds that this property, as a part of the St. Andrews estuary, serves as a breeding, nursery, feeding and refuge are for numerous marine creatures, birds and upland wildlife. The three pine and oak hammacks [sic] are a few of a rare estuarian resource. The marsh throughout the area serves as home for seagrass and other marine organisms that are integral with the biodiversity of the estuary. There also exists a [sic] archaeological sites [sic] consisting of an ancient Indian midden that has already been classified by the Director of the Florida State Division of Historical Resources as deservant [sic] of mitigation and potentially eligible for the National Historic Registry (see attached documentation). The site overall has a biotic community of nearly 90% of it [sic] total area. Staff findings are that this proposed Land Use Amendment is inconsistent with the above listed mandates of the Comp Plan. Staff also finds that the proposed Land Use is inconsistent with the LDR Code, in that it is not in harmony with the Comp Plan (Subsection 2-5.5.6.e. above), as well as the requirements of the environmental protection standards of Section 5-5. This decision hinges on the whether the City intends to enforce it's [sic] environmental protection standards of the Comp Plan and the LDR Code and if the site is seen as environmentally significant. JE 7 at 4 (italics in original). Ultimately, staff recommended approval only with the following conditions: 1.) that the fullness of the subject property be designated as a Conservation Special Treatment Zone [CSTZ][5] and that the pine and oak hammacks [sic](as referred to as "Pine Islands" in the Bay County Comp Plan) are prohibited from being developed; and 2.) that the area of the subject property that is beyond the mean high tide of the mainland portion, which specifically means the marshes/wetlands and the oak and pine hammacks [sic], shall be placed in a conservation easement and dedicated to either the City, or a third-party land trust or conservancy. JE 7 at 4. (Mr. Hammons, the City Manager, disagreed with the staff report, in part, because there was no data to support several findings. T 119-124.) On August 9, 2004, the Planning Board of Panama City met in regular session to consider the application. The request was to approve a small scale land use amendment to the FLUM of the Plan from Conservation (under the Bay County Comprehensive Plan) to RLD with a zoning classification of RLD-1 for the Property. JE 11 at 2. But see Finding of Fact 15. Mr. Fred Webb and Dr. Frasier Bingham were present on behalf of the applicant. Mr. Webb advised that the Bingham's and the Webb's owned the property which consisted of approximately 6.5 acres of uplands. But see Finding of Fact 29 regarding the ownership of the Property. In part, Mr. Webb stated that the grass beds would not be impacted and that there was no legitimate environmental complaint. Dr. Bingham stated that he is an ecologist, specializing in shallow water ecology. JE 11 at 3. He said his family had purchased the upland property in 1948 and the submerged land in the 1960s. Beginning in 1991, Dr. Bingham stated he tried to get the government to purchase the property, but to no avail. He also recounted attempts to obtain permits from DEP and the United States Army Corps of Engineers (Corps). See, e.g., PE 60, 63-64.6 He believed that the bridge problem, identified by the Corps had been solved. JE 11 at 3 and 13. (There is no persuasive evidence in this record that the Corps has approved any permits for development of the Property.) Mr. Webb stated that all maintenance to the bridges and other utilities would be the responsibility of the association (for the developed Property) and not the City and that the City would only be responsible for police and fire. Id. at 4. Mr. Thomasson addressed the Planning Board. JE 11 at The staff report previously mentioned is incorporated in the minutes. Staff felt that the CSTZ designation would be the most appropriate designation due to the environmental issues and that the RLD-1 designation would be the least intense land use available under the Plan. Board member Pritchard inquired whether the application was incomplete "as it doesn't address the environmental issues." Mr. Thomasson stated the applicant did not believe there would be any environmental impact, while staff believed the property to be environmentally significant. JE 11 at 8. Dr. Bingham again addressed the Planning Board to refute the staff's findings of fact. Dr. Bingham said that "the wetlands would not be impacted, the grass beds would not be impacted, and the stormwater runoff already goes into the grass beds, which are, in his opinion, fine grass beds" and that "that 13 houses would not have any significant impact." He indicated that soils were not at issue and that the "property is sandy, not special." Id. at 9. Mr. Webb indicated that "they had evaluated the environmental aspects and added the raised bridges, swales, etc." JE 11 at 9. Numerous individuals spoke in opposition to the request. Apparently, by a show of hands "a large majority of those present were in opposition to the request." JE 11 at 12. It appears that two persons spoke in favor of the request. Id. at 9-11. Mr. Webb confirmed that the application requested approval of the land use designation and annexation for 6.8 acres. JE 11 at 12. He also advised that a limited liability corporation owned the 6.8 acres, while there are different owners of other parcels. Mr. Webb indicated that "only the uplands on the islands were being annexed," although "he was not sure the properties were 'islands' in legal terms." Id. at 13. Mr. Webb indicated that he was willing to indemnify the City against any legal expenses arising from this request. Id. The requested land use change was approved by a vote of three to two. Id. at 14. On September 28, 2004, the City Commission considered Ordinance No. 1985 pertaining to the requested land use designation change and Ordinance No. 1995 pertaining to the annexation of the Property. These Ordinances were read by title only as a first reading. JE 10 at 293-294. During this meeting, the minutes (JE 10) reflect that Mr. Webb stated that they would only be developing the upland islands and proposed to use bridges, which he says "the environmental regulatory community has considered to have almost no environmental impact. He said that the addition of thirteen single family residential homes to an area that has seven hundred homes will not materially affect level of service." JE 10 at 289. Several of the people who appeared before the Planning Board also appeared opposing the application for annexation and land use designation change. JE 10 at 290. Mr. Martin Jacobson, Planning and Zoning Manager for Bay County filed a formal letter of objection to the annexation. Id. Mr. Fred Beauchemin opposed the annexation and responded to eleven items which were discussed by Mr. Webb and Dr. Bingham during the Planning Board meeting, including representations of impacts to grass beds, wildlife resources, and soils. JE 10 at 290-292. Mr. Webb continued to feel that there would not be any destruction of the marshes. Id. at 292. Dr. Bingham again noted that he is a shallow water marine ecologist and felt that he was informed about the environmental situation on the Property. Id. at 293. After brief discussion by some of the Commissioners, Ordinance Nos. 1985 and 1995 were approved by a vote of three to two. JE 10 at 293-294. By a letter dated November 9, 2004, Daniel Shaw, A.I.C.P., memorialized the October 5, 2004, Bay County Commission's unanimous decision to contest the potential annexation of and land use change to the Property, referring to several provisions of the Bay County Comprehensive Plan. T 228; PE 69. Mr. Shaw opined that "[c]learly, development proposed for the annexed Pine Islands violates the County's Comprehensive Plan." PE 69 at 2. He further stated: What's more the proposed annexation also violates the City's Comprehensive Plan. City Policy 5-5.2, 5-5.3 related to preservation of Environmentally Significant Resources would prohibit the proposed development. The property is a part of the St. Andrews estuary, and serves as a breeding/refuge area for numerous marine creatures, birds and wildlife. The three pine and oak hammocks are a truly rare estuarine resource for Bay County and for the State of Florida. The marshlands contain valuable sea grass beds and are home to numerous marine creatures, which are integral to the biodiversity of the estuary. Finally, the property contains valuable archeological sites, consisting of ancient Indian middens that are classified by the State Division of Historical resources, and potentially eligible for the National Historic Register. I would concur with staff's memorandum of August 9, 2004, which cites numerous other examples of where the development would violate the City's plan. PE 69 at 2 (emphasis in original). Mr. Shaw also stated that the Property is located in the coastal high hazard area, within a "V" zone for flood regulations.7 He stated that "[t]hese designations argue for prohibiting development for public safety and infrastructure investment purposes." Again, Mr. Shaw stated that Bay County opposed the potential annexation and subsequent land use reclassification. PE 69 at 3. Mr. Shaw also testified during the final hearing and reaffirmed his prior position. T 232-245. Mr. Shaw stated that the Property, prior to annexation by the City, was designated Conservation under the Bay County Comprehensive Plan, which allows for limited residential use and the preservation of pine islands (an outright prohibition).8 He was not qualified, however, to make a determination whether any portion of the Property is a pine island. T 247. Mr. Shaw thinks that Bay County allows up to 15 units per acre in the coastal high hazard area. T 254. On November 9, 2004, the City Commission met and considered a final reading of Ordinance Nos. 1985 and 1995. Several people appeared opposing both ordinances including Mr. Moore, Ms. Smith, Ms. Yori, and others. JE 8 at 3-14; JE 9 at 3-5. Mr. Webb again addressed the City Commission and stated, in part, that "nothing in the marsh would be touched." He also indicated that he would fully indemnify the City in the event of a lawsuit. JE 8 at 14-21; JE 9 at 5. Dr. Bingham also addressed the Commission. JE 8 at He stated that he has designed an environmentally friendly community of 13 home sites. He indicated that he had a Ph.D. in shallow water marine ecology and attended Florida State University and the University of Miami. He said that he was thoroughly familiar with the Panama City area and had worked with a large list of groups as an ecologist. He reiterated that the homes sites will take up 6.8 acres and will be entirely uplands and no marshes or swamps. He said that he is trying to use one fifth of the property that he owns and "there are no wetlands involved in this particular operation that will be damaged." JE 8 at 23. He also indicated that there will be raised bridges constructed on the Property, and according to him, were suggested by the Corps. Id. After brief comments by several Commissioners, the Commission approved the annexation and land use designation change by a vote of three to two. JE 8 at 26-27, 30-31. Toward the end of the November 9, 2004, hearing, the City Attorney, Rowlett Bryant, advised that the minutes of the September 28, 2004, Commission meeting would be included with the minutes of the November 9, 2004, public hearing. In other words, the November 9, 2004, Commission meeting was the public hearing held on the application for the annexation and the land use designation change. JE 8 at 27-30. Mr. Bryant also noted that the Ordinance No. 1985, related to the land use designation, would be RLD-1 and that the prior reference to Special Treatment Conservation Zone in the title of Ordinance No. 1985, considered on September 28, 2004, was a recommendation of staff and was deleted from Ordinance No. 1985, which was approved by the City Commission on November 9, 2004. JE 8 at 31-32. Ordinance No. 1985, in fact, changed the land use designation of the Property (approximately 6.8 acres) "from Conservation (a Bay County Land Use designation) to Residential- Low Density-1 as described in Small Scale Amendment 04-S20." JE 1 at 2. However, Petitioners and the City agree that "[t]he city assigned a future land use map designation to the parcel of Residential Low Density in Ordinance No. 1985." See T 11, lines 10-23; Petitioners' Prehearing Stipulation at 2, IV.2. Data and Analysis As more fully discussed in the Conclusions of Law, "[t]he 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; the projected population of the area; the character of undeveloped land; the availability of public services; the need for redevelopment, including the renewal of blighted areas and the elimination of non-conforming uses which are inconsistent with the character of the community; the capability of uses on lands adjacent to or closely approximate to military installations; and, in rural communities, the need for job creation, capital investment, and economic development that will strengthen and diversify the community's economy." § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.006(2) provides for "land use analysis requirements" and requires, in part, that the future land use element "be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2) F.A.C." Subsection 9J-5.006(2)(b) requires "[a]n analysis of the character and magnitude of existing vacant or undeveloped land in order to determine its suitability for use, including where available: 1. Gross vacant or undeveloped land area, as indicated in paragraph (1)(b); 2. Soils; 3. Topography; 4. Natural resources; and 5. Historic resources." Further, "all goals, objectives, policies, standards, finding and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a)(emphasis added). "Data are to be taken from professionally accepted existing sources, such as the United States Census, State Data Center, State University System of Florida, regional planning councils, water management districts, or existing technical studies. The data shall be the best available existing data, unless the local government desires original data or special studies." Fla. Admin. Code R. 9J-5.005(2)(c). Petitioners question whether the record contains relevant and appropriate data, which was existing and available on or before November 9, 2004, to support the Plan Amendment. Petitioners further question whether the analysis of that data is adequate. The application, JE 13, requested approval of annexation of and a change in the land use designation for, as amended, approximately 6.8 acres. Aside from identifying the parcel in question, in relation to Goose Bayou and the subdivision to the east, the application does not contain adequate data and analysis to support the Plan Amendment. Mr. Slonina, a professional engineer and expert in civil engineering, testified during the final hearing as to the due diligence he and his firm performed in support of filing the application with the City. T 424. Mr. Slonina has been on the Property many times. T 456. As part of the due diligence, Mr. Slonina analyzed the area proposed for development on the Property, which are the upland areas, and, in part, stated that these areas are primarily free draining sands and have fairly high percolation rates. T 425, 453. He also characterized upland areas as fairly clean sands and satisfactory for development in this area based on his experience. He also examined the upland and wetland soils to determine suitability for a "post and beam timbered bridge system" that would be pile supported over the wetlands bridging upland areas. He opined that the soils on the uplands were nothing unique and were suitable for low density residential and suitable to support the bridge system he described. T 428, 442, 458-459. See also P 50, Attachment A. Regarding utilities which might be available to the Property, during the due diligence phase, he identified, from utility maps, the location of the closest water and sewer which could serve the Property, adjacent to the Property to the east. He also analyzed the ability of fire protection to be provided to the Property and concluded that it was feasible. T 428-432, 460-461. See also JE 7 at 1 regarding "utility and other urban services availability" and P 50 at 14-16 for a discussion of "utilities." Mr. Slonina also opined that a stormwater system could reasonably be designed for the Property and that it was feasible to design a stormwater system that would capture stormwater runoff before it went into the bayou. T 432-435. Mr. Slonina examined flood zone information and determined that the Property was "very typical" and that the flood zone information available would not preclude residential development on the Property. T 434-435, 450. But see Endnote 7. From a traffic concurrency standpoint, he examined traffic engineering data on trip generation for 13 single-family homes and determined that there was adequate capacity for that additional loading on "the only roadway that connects to the [P]roperty." His traffic impact analysis was limited "through the residential streets." T 435-436, 439-441. Mark O. Friedemann, is the executive vice-president at the Phoenix Environmental Group, Inc., an environmental consulting firm. T 466. Mr. Friedemann was retained on or about January 7, 2005, by the City's counsel for the purpose of "doing a basic assessment of the property and whether it was suitable for some type of development, residential in particular." T 474-475. Prior to conducting a survey of the Property, aerial photographs, data from the Florida Natural Areas Inventory, and various maps were reviewed. Id. Mr. Friedemann and an assistant conducted a field survey of the Property on January 12, 2005. They collected basic water quality data, observed wildlife, conducted several soil observations pits, looked for scat, and examined the vegetative community on the Property. T 476. For the purpose of the survey, the Property was divided into areas 1 through 4, which are labeled on CE 5, Figure 2. T 478. These upland areas were the major focus of the assessment along with the interior (wetland/marsh) areas. T 478, 565. CE 5 at 2, Figure 2. Mr. Friedemann and his assistant arrived on the Property at approximately 9:00 am on January 12, 2005, during low tide. They left the Property as the tide was starting to return. T 517, 532, 548. Area one is a rectangular portion of the Property, which runs north to south and forms most of the eastern boundary of the Property and is adjacent to Candlewick Acres. Area two is another upland area which is in the northwest portion of the Property and west of area one. Area three is in the southwest portion of the Property and southwest of area two. Area four is a small upland portion, which is almost due south of area one in the southeastern portion of the Property. CE 5 at 2, Figure 2; see also Endnote 6. Mr. Friedemann accessed area two from area one by walking along a path/spoil pile, which runs east to west and forms part of the northern boundary of the Property (the approximately 100 foot canal is north of and adjacent to the path/spoil pile). He walked to area three by stepping across a small rivulet of no more than a foot in width. He walked to area four from area three, stepping over another small tidal- influenced rivulet that passed between areas three and four. He approached area one from area four walking across "a rather high area." Mr. Friedemann "did not get the impression that area two was surrounded" by wetlands, salt marsh, or tidal mud flats. T 479-481, 500, 517, 556-557. He stated that area three would be surrounded, but was unsure about area four. T 556-559. Some of the areas photographed would be potentially inundated during high tide. T 521-525. Mr. Friedemann's report also contained, in part: water quality data taken on January 12, 2005; and a list of species seen on the same date; a recent undated aerial of the Property and surrounding area, downloaded from the DEP website, which was also magnified; and several aerials (dated 1953, 1962, 1967, 1974, 1978, and 1986) of the Property including the surrounding areas. Mr. Friedemann opined, based on his review of aerials, that there may have been a timber operation ongoing on the Property in the past although he would not hazard a guess. T 540. The report also included several photographs taken of the four areas, during the site visit on January 12, 2005. CE 5 at x-xxii. Although he did not "review any set of plans," or have any opinion regarding any specific development proposal, Mr. Friedemann opined that based on his observations in the field, "there is a viable project that could be built on this parcel."9 T 482, 501-502, 511, 520. Mr. Friedemann provided an analysis of the Property by and through his testimony regarding photographs taken of the Property during his site visit. From a biological or ecological perspective, he did not observe anything on the Property which would preclude residential development. He further opined that what he observed was not unique in the panhandle of Florida. T 501-502. Mr. Friedemann did not conduct a wetland delineation of the Property. T 556. However, the record contains an infrared Conceptual Site Plan dated October 22, 2002, indicating vacant land to the north of the Property, and residential areas to the east of the Property and east of the vacant parcels to the north. This particular site plan provided for the approximate wetland boundaries of the Property identified as south parcel (4). PE 98-D and PE 50 at Exhibit 1. Mr. Friedemann indicated that he had not observed the Property during a hurricane, during periods of high wind, or during periods of a combination of high wind and high tide. He agreed that the tides in the United States can be lower during the winter than they are during the spring and that the highest tides may be experienced during the spring called neap tides. T 532-533. Mr. Friedemann was also referred to a December 30, 2004, document apparently prepared by Panhandle Engineering, Inc., sheet number 2 of 4, CE 16, which delineated 13 lots. T 533. See Endnote 6. (City Exhibit 16 was admitted into evidence as an authentic document; however, there was no testimony regarding the preparation of this document. T 535-537.) Comparing sheet 2 of 4 with Figure two of CE 5, area two is depicted as being surrounded by rush marsh and connected to area one and area three by drawn-in bridges. Compare PE 50, Attachment E, Sheet 1 of 2, dated July 31, 1998, depicting the Property with 13 lots configured, interspersed with a "conservation area" designation and Attachment A, Figure 4., Project Base Map, depicting upland areas on the Property, interspersed with a "marsh" designation with PE 98-D south parcel (4) and "approximate wetland boundary. See also Endnote Mr. Friedemann stated that the indication of rush marsh on sheet number 2 of 4 did not comport with his observations of the Property during his site visit. He was unaware of this drawing. T 534-538. Gail Easley, A.I.C.P., an expert in urban and regional planning, opined that the Plan Amendment was consistent with various provisions of the City's Plan, the State Comprehensive Plan, and the West Florida Regional Strategic Policy Plan. She also opined the Plan Amendment was supported by data and analysis regarding the suitability of the Property for the RLD land use designation. In support, Ms. Easley stated in part: Understanding that the amendment is not really permitting the use, but understanding that the amendment establishes the uses that are allowed as I testified earlier, the suitability data that is available in addition to the data and analysis here in the Comprehensive Plan includes the information from Panhandle Engineering about, more specifically about the availability of facilities and services and the suitability of soils for use of residential low density, as well as the analysis contained in Mr. Friedemann's report regarding environmental issues and the suitability of this site for residential low density. So I found plenty of evaluation of suitability. T 586. See also T 610-611. Ms. Easley also opined that the Plan Amendment does not threaten coastal and natural resources in violation of Florida Administrative Code Rules 9J-5.006, 9J-5.012, and 9J- 5.013, and Sections 163.3177 and 163.3178, Florida Statutes, because she considered the data and analysis in the Plan, "as well as the suitability and capability [sic] analysis that were submitted by Panhandle Engineering and Mr. Friedemann demonstrated that there was not a violation of these provisions." T 617. Ms. Easley also stated that there was adequate data to support a need for residential (RLD) development on the Property. See, e.g., T 584-585, 621-622, 629-630, 632-634. See also JE 3 at Future Land Use Data, 1-1 - 1-10. During cross-examination, Ms. Easley was asked to identify the particular Panhandle Engineering report which she reviewed to support her opinion. The report is not in evidence. However, Ms. Easley stated: "It was a report that they prepared that addressed issues of suitability of the site with regard to the availability of water, the availability of sewer, the capacity for water and sewer, soil conditions on the site, and traffic situations on the site. I'm sorry, I do not recall the date of that particular suitability analysis, but it was prepared by Panhandle Engineering, and I reviewed it as a part of my analysis." T 626. Ms. Easley was also asked to provide the source of her data and analysis about environmental conditions on the site and she replied: "Two places, there is information in the City's data and analysis with regard to the vacant land analysis, as well as general environmental conditions in or around the City, I reviewed that data and analysis that I mentioned earlier. I also saw information specific to this parcel from Mr. Friedemann's report." T 627. Ms. Easley indicated that there was no specific data and analysis contained in the City's Plan about the Property, although the Plan referenced areas adjacent to the City. T 628. Ms. Easley reiterated that natural resources are considered during the plan amendment process. It also occurs during permitting. T 642. She again stated: "The suitability analysis was contained in two different reports. As I testified earlier, Mr. Slonina's report from Panhandle Engineering addressed soils and soil suitability. And Mr. Friedemann's report looked at other kinds of environmental issues. I reviewed both of those reports and determined that suitability analysis had been preformed to support the plan amendment." T 643. According to Ms. Easley, if there were environmental reasons creating an inconsistency with Rule 9J-5, then such reasons could serve as a basis for denial. T 643. (Ms. Easley also opined that a land use change to the FLUM "is an assignment of a land use category and the associated density and intensity, it is not a development activity." See T 587, 651.) Mark Llewellyn, P.E., is the president of Genesis Group. In October 2002, Genesis Group completed a planning and engineering analysis (Genesis Report)10 for Chandler and Associates, who, in turn, had a contract with the DEP to prepare an appraisal report for the Goose Bayou Marsh Property.11 The Goose Bayou Marsh Property included four parcels, including the south parcel (4), which is the Property in question, two north parcels (2 and 3), and the middle parcel (1), which is north and northeast of and adjacent (the west one- third) to the Property. All the parcels are vacant. See PE 98- D, which also appears at PE 50, Exhibit 1. Mr. Llewellyn identified three peninsular islands on the Property (south parcel 4)(PE 98-D at the blue X's), which roughly correspond with areas one and two in Mr. Friedemann's report at CE 5 at 2, Figure 2. T 160-161. See also Endnote 6. The two eastern peninsular islands (area one) are connected to the upland to the east, Candlewick Acres. The third peninsular island, located in the northwest corner of the Property, can be accessed, according to Mr. Llewellyn, by a berm or other geographical feature to the north of the Property and south of the drainage canal. Id. See also T 397. There is one larger upland island and a smaller upland island toward the southwest and southern portions of the Property, which appear to be surrounded by wetlands, waters of the state, salt marsh, or tidal mud flats. T 160-164. Each peninsular island and upland island is less than 20 acres. Mr. Llewellyn's analysis is consistent with the approximate wetland boundaries identified in the Conceptual Site Plan, PE 98-D. Mr. Llewellyn opined that the Property could be developed as a single-family development without having an impact on the Property if it is designed and maintained properly. T 157, 172. See also Endnote 6. The Genesis Report provided an analysis of the four parcels. Apparently the south parcel (4), the Property, contained approximately 16.2 acres as follows: wetlands 9.8+/- acres; upland islands 3.5+/- acres; peninsula uplands 2.9+/- acres; or 6.4+/- acres of total uplands. T 163; PE 50 at 12. Parcels 1-4 are analyzed in light of several factors, including but not limited, to the Bay County Future Land Use and Comprehensive Plan. The following is an analysis of the Bay County Future Land Use and Comprehensive Plan as applied to the north parcels (2 and 3): The Bay County Comprehensive Management Plan identifies the North Parcel's Future Land Use Designation as Conservation. The purpose of this land use is to identify public and private lands held for conservation of natural features. Allowable uses for this designation are natural resource protection, flood control, wildlife habitat protection, passive of recreation, silviculture and residential densities up to 2DU/acre. Commercial development is prohibited for properties with this land use designation. Additionally, the upland islands located on these parcels fit the definition for "Pine Islands" as defined in the Bay County Comprehensive Plan. A Pine Island is defined as a small upland area generally 20 acres or less, usually characterized by typical pine flatwood vegetation, which are surrounded by waters of the State, wetlands, salt marsh, or tidal mud flats. The Bay County Comprehensive Plan prohibits development on any "Pine Island". This means that it will be extremely difficult to develop the upland areas located on this parcel. PE 50 at 2. See also PE 50 at 2 (II.B.) and 13 (IV.B.) regarding the Panama City Future Land Use. (The Genesis Report was prepared approximately two years prior to the City's annexation of the Property. The City did not annex the vacant land to the north (parcels 1-3), which is part of the subject of the Genesis Report.) Regarding the analysis of parcels 1, and 4, the Property, and referring to the Bay County Future Land Use and Comprehensive Plan, it is noted that "[t]he same issues apply to this parcel." PE 50 at 7 and 13. The Genesis Report discussed wetlands on the Property: The wetlands within the property consist of estuarine salt marshes, which are connected to Goose Bayou and West Bay. According to an environmental assessment prepared by Biological Research Associates (BRA) the marshes are tidally influenced and dominated by black rush. Other species include seaside goldenrod, seashore dropseed grass, sea purslane, glasswort, salt grass, marsh hay cord grass, sea lavender, Chinese tallow, saw grass, cork wood, and saltbrush. Additionally, the salt marsh is habitat for two listed bird species; the snowy egret and the little blue heron (see Attachment A). As previously stated, a wetland delineation has been completed for this parcel and accepted by FDEP and ACOE. PE 50 at 13. The Genesis Report also provided a brief discussion of flood plain and cultural resource considerations, and also provided an analysis of site planning and engineering, including access, utilities, owner site plan/lot lay out, and probable development costs. PE 50 at 13-15. Regarding south parcel 4, the Property, the Genesis Report concluded, in part, that "[t]his parcel has limited development potential." A cost estimate is provided. It is also concluded that water and sewer could be provided without incurring significant increases in development costs. "Development of the upland islands would require bridges, which significantly increases the development cost. There is no guarantee that the development within the wetlands would be permitted at this time." PE 50 at 16. The Genesis Report also included a report prepared by Biological Research Associates, which appears as Attachment A to PE 50. Mark Andrew Barth, vice president/senior ecologist for Biological Research Associates, was one of the two signatories to a section of the Genesis Report and also testified during the final hearing. T 175; PE 50, Attachment A. He reiterated that they prepared a preliminary environmental assessment for a proposed acquisition by a State agency. T 176, 180. (While unclear, it appears that his study area included the approximate western one-third of the Property, see, e.g., T 189; PE 50, Attachment A, Figures 1, 3-4, although other portions of the Property were studied. See, e.g., Finding of Fact 93.) Referring to PE 98-C and the Property (outlined in black) and the vacant land to the north outlined in red, Mr. Barth testified that they are "mainly comprised of salt marsh and scattered pine dominated islands." According to Mr. Barth, the term "pine islands," "describes isolated upland patches within the salt marsh." T 177. The salt marshes consist of vegetation that extends beyond the water level usually in very shallow water. T 178. The Property is part of an estuary system, Goose Bayou, for example. Id. See also T 381; JE 12 at IV-14-16 and Map 1. The salt marsh is inundated by saline or marine water as opposed to fresh water. T 178. One of the most significant features of an estuary system "is providing nursery grounds and habitat for marine and estuarine fish and wildlife." T 179. Mr. Barth considered the Property, south parcel 4, PE 98-D, to be environmentally sensitive in light of the combination of estuarine and upland areas which are undisturbed. T 185-186. Mr. Barth did not have enough information to assess specific impacts to the surrounding salt marsh and water in light of a proposed development on the Property. He felt it depended on the type of development. T 182. "Middens" have been found on the south side of the Property, in and around area 3 (CE 5 at 2, Figure 2). See, e.g., T 558-559; PE 50, Genesis Report at 13 and Attachment A at 6-7 and Attachment E, Figure 4, Project Base Map and Figure 5, PBY139 Base Map. Ultimate Findings of Fact Regarding Adequacy of Data and Analysis Ultimately, whether the Plan Amendment is based upon relevant and appropriate data and analysis is a close question. This is particularly true here where critical portions of Mr. Friedemann's analysis are based on information, e.g., Mr. Friedemann's photographs, collection of water quality samples, and observations of the Property (species seen and terrain), which post-dated the City's adoption of the Plan Amendment on November 9, 2004. As a result, his analysis of this information has been disregarded, notwithstanding the lack of an objection to the admissibility of his report, CE 5. See Conclusions of Law 110-114. (Mr. Friedemann also provided several aerials of the Property and surrounding area which pre-date the date of adoption of the Plan Amendment and have been considered along with his analysis of this data.) Also, to the extent that Ms. Easley relied on Mr. Friedemann's report (CE 5) and the post- adoption information collected by Mr. Friedemann and his analysis of that information, her opinions have also been disregarded. Nevertheless, Petitioners have the burden to prove, by a preponderance of the evidence that the Plan Amendment is not based upon relevant and appropriate data and analysis, which Petitioners have not done. Accordingly, based on a review of the entire record in this proceeding, it is ultimately concluded that the Plan Amendment is based on relevant and appropriate data and analysis, except as otherwise stated herein. See § 163.3177(6)(a), Fla. Stat.; Fla. Admin. Code R. 9J-5.005(2), 9J-5.006(2), and 9J-5.012-.013. Consistency with the City's Plan, the West Florida Strategic Regional Policy Plan, the State Comprehensive Plan, and the City's Comprehensive Planning and Land Development Regulation Code Petitioners contend that the Plan Amendment is inconsistent with several provisions of the City's Plan: Future Land Use Element Policy 1.1.1.10; Coastal Management Element Goal 1, Objective 5.1, and Policies 5.1.1 and 5.1.3.3, and Goal 3; and Conservation Element Goal 1, Policies 6.6.2, 6.6.2.3, and 6.6.2.4. Petitioners contend that the Plan Amendment is inconsistent with several provisions of the LDRC: subsections 2- 5.5.6, 5-5.1, 5-5.2, 5-5.3, and 5-5.6.3.e. Petitioners also contend that the Plan Amendment is inconsistent with Section 187.201, Florida Statutes, and the West Florida Strategic Regional Policy Plan. The Plan Amendment changes the land use designation on the Property to RLD. The Plan Amendment is not a development order. See Strand v. Escambia County, Case No. 03-2980GM, 2003 WL 23012209, at *4 (DOAH Dec. 23, 2003; DCA Jan. 28, 2004), aff'd, 894 So. 2d 250 (Fla. 1st DCA 2005). It does not authorize any development to occur on the Property. Further, a special treatment zone, as used in the City's Plan, is not a FLUM land use district. Based on the plain and ordinary meaning of the various Plan provisions at issue, the Plan Amendment does not alter or interfere with the City's ability to maintain the quality of coastal resources; restrict the City's ability to maintain regulatory or management techniques intended to protect coastal wetlands, water quality, wildlife habitat, and living marine resources, for example, or prohibit the construction of docks, piers, wharves, or similar structures; interfere with the City's ability to provide for or have available adequate areas for public waterfront access or to provide the circumstances necessary for the conservation, protection, and use of natural resources; or interfere with the City's ability to enforce guidelines in its LDRCs related to, for example, the protection and conservation of the natural functions of existing soils, wetlands, marine resources, estuarine shoreline, stormwater management, wildlife habitat, or flood zones. Petitioners did not prove that the Plan Amendment is inconsistent with cited portions of the City's Plan, the State Comprehensive Plan, and the West Florida Strategic Regional Policy Plan. Further, the Plan Amendment need not be consistent with the City's LDRCs because it is not the subject of "in compliance" review.12
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 concluding that the Plan Amendment, adopted by the City of Panama City in Ordinance No. 1985, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 6th day of October, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 2005.
The Issue The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
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.
