The Issue Whether the Florida Department of Transportation (FDOT) properly denied application(s) for an advertising sign permit.
Findings Of Fact On September 27, 2005, Petitioner Lamar submitted two permit applications (Nos. 55595 and 55596) to FDOT for two signs to be attached to one monopole, one sign to be facing north and one sign to be facing south. The applications stated that the proposed location of the monopole is the west side of State Road 85 (SR 85), 200 feet (or .042 miles) south of Barnes Road in Okaloosa County, Florida. SR 85 is a Federal-aid primary highway. (See Stipulated Facts 1 and 4.) The proposed sign structures met the size, height, and spacing requirements of Section 479.07, Florida Statutes. (See Stipulated Fact 3.) The proposed sign location is in an unincorporated area of Okaloosa County, Florida. (See Stipulated Fact 5.) Okaloosa County is the only local entity involved herein. The 42.5 acre parcel of land for the proposed billboard has significant frontage on SR 85, north of Crestview, Okaloosa County. A residence is located on a portion of the parcel. The permit application form used by Petitioner was composed and authorized by FDOT. Petitioner's submitted application was complete, and the appropriate fee was paid to FDOT. (See Stipulated Fact 2.) Upon request, FDOT provides a published "Instruction" pamphlet to assist applicants for outdoor advertising sign permits. Pages 12-13 thereof provide, in pertinent part, as follows: Land Use/Zoning: Outdoor advertising signs must be located in areas where the land use category allows properties which lie within 660 feet of the controlled road and which are within the contiguous land use designation area to be developed with primarily commercial or industrial uses. This information is found in the Land Development Regulations and on the Future Land Use Map of the City or County’s Comprehensive Growth Management Plan. The City or County or other local government must certify that the current zoning (Land Development Regulations) and the Future Land Use Map designation allow for commercial/industrial uses and that outdoor advertising signs are allowed for that designation. When the Land Development Regulations [zoning] or the Future Land Use Map do not specifically designate the parcel as commercial or industrial, but allow for multiple uses on the parcel, including commercial or industrial, a “use test” will be employed to determine whether an outdoor advertising permit may be issued. The use test requires that there be a minimum of three (3) conforming businesses within 1600 feet of each other, and that the sign be on the same side of the highway and within 800 feet of one of the businesses. The Department will not approve an outdoor advertising sign permit when local regulations prohibit outdoor advertising at the proposed location. (Emphasis supplied.) In preparation of Petitioner’s application(s), Chad Pickens, Petitioner’s Lease Manager, read FDOT’s Instruction pamphlet as guaranteeing Petitioner a “use test” if either the County land use map or the zoning for this parcel provided for mixed or multiple uses. He conducted extensive site location and ownership searches; made contacts with the potential lessor; submitted photographs of three businesses within 1600 feet of the proposed outdoor advertising sign location; filled out the permit application; proceeded to the appropriate Okaloosa County government officials for County approval; surveyed and staked out the proposed outdoor advertising sign location; and took photographs of the proposed site. He then submitted this information on FDOT-approved forms, along with a letter of authorization and the application fee. Petitioner Lamar leased the property site from the owner, with no lease payments due from Petitioner to the landowner unless FDOT approved its sign permits. At the time of the application, the three commercial businesses closest to the proposed sign location were: Dogwood Veterinary Clinic - approximately 118 feet south of the proposed sign site. This business specializes in treating house pets. The clinic makes no farm calls, but horses may be treated if brought into the clinic. This business also contains a retail outlet; Billy's Trade Store, approximately 463 feet south of the proposed sign site, is a convenience store; and Plantation Farms Pet Grooming, approximately 780 feet northeast of the proposed sign site. This business, in addition to retail sales of pet items and food, incorporates a section for the grooming and boarding of household pets. This business does not handle livestock. (See Stipulated Fact 9.) These three business establishments, submitted by Petitioner for FDOT’s application of a "use test," were businesses one could actually walk into and purchase goods or services. In addition to information regarding the proposed sign site, the proposed construction on the site, and where the proposed construction was to occur, the permit application required the applicant to secure Okaloosa County’s local certification of the proposed site’s future land use designation and its current zoning, which Petitioner did. Although FDOT requires that local government entities sign off on advertising sign applications to FDOT, the State Agency does not rubber stamp those approvals. Ultimately, FDOT administers State statutes and regulations in conjunction with its Federal agreement. The State is not bound by the County’s permitting of signs. In January, 1972, the State of Florida entered into an agreement with the Federal Highway Administration, in which the State agreed to implement and carry out the provisions of Section 131 of Title 23, United States Code (1965), commonly referred to as "The Highway Beautification Act." Through this agreement, Florida agreed to limit the permitting of outdoor advertising signs adjacent (within six hundred sixty feet of the nearest edge of right-of-way) to Interstate or Federal-aid primary highway systems, to areas which are zoned industrial or commercial or are located in unzoned commercial or industrial areas. Failure of FDOT to comply with the terms of this agreement could result in a loss of 10 percent of federal-aid highway funds. Lynn Holschuh, FDOT Outdoor Advertising Administrator, testified that since the January 1972, agreement with the Federal Department of Transportation, Florida local governments have been required to “zone” all property. Therefore, the 1972 Agreement’s use of the term, “unzoned commercial or industrial areas,” is an anachronism, because all Florida property should now be zoned. Still, the term remains in the Florida Statutes, and FDOT uses this term to grapple with areas where specific land use is not very well defined. Zoning designations arise from county land development regulations, i.e. zoning ordinances. Future land use designations come from a Land Use Plan, adopted by the local entity or entities, pursuant to Chapter 163, Florida Statutes, and placed on a future land use map. The proposed sign location is on a parcel with a land use designation of “Agricultural 1” (AA1). (See Stipulated Fact 6.) In other words, the parcel is zoned for agriculture. Okaloosa County Code 8.02.02 provides that permanent off-site outdoor advertising signs are a permitted use within agricultural areas. (See Stipulated Fact 7.) Counties may allow off-site advertising along county roads, but interstate and federal primary-aid highways, such as SR 85, are within FDOT’s jurisdiction. The applicable Future Land Use Map designates the proposed site for “rural mixed land use” (RMU). (See Stipulated Fact 8.) This multiple use future land use map designation includes residential and non-residential uses. Non-residential uses may include commercial or business uses, although the parcel being designated “rural” suggests otherwise. There is no evidence herein that the terms used in the current zoning or on the future land use map do not comport with the same or similar terms used in Chapter 163, Florida Statutes, or in 23 C.F.R. Section 750.703(a) or 750.708. At all times material, Billy Wayne Strickland, Florida Department of Transportation Outdoor Advertising Senior Agent, processed all outdoor advertising applications, statewide, on behalf of FDOT. He testified that if the current land development regulations (current zoning) and the future land use designation (future land use map) differ, FDOT considers both. If the current zoning and future land use map are both a "mixed use" designation, FDOT performs its own use test, sometimes delegated to an outside consultant. Ms. Holschuh testified that “agriculture” is a “rather specific” zoning term/designation. However, if a zoning category authorizes more than one use, FDOT looks at the current primary uses of the parcel. FDOT’s intent is not to go by the label that has been applied to the zoning category, but “to go beyond the label to determine whether or not the area really has the characteristics of a commercial or an industrial area,” and that with regard to the characteristics of commercial zoning, the use test would be employed to determine if there were bona fide commercial or industrial activities within the specified footage of a proposed sign location. In processing the application(s) in this case, Mr. Strickland accepted the future land use designation “AA1”, for “agricultural,” as certified by Planner Tim Durbin on behalf of Okaloosa County. He also researched Okaloosa County’s land development regulations, which described the permitted uses for property designated "agricultural." The Okaloosa County Land Development Code specifically designated three zoning categories as “Commercial.” They are “Business Retail,” Business General,” and “Business Tourism”. In the Code, commercially zoned areas, under the categories of "Business Retail" and "Business General," states: "[t]his is a Commercial (C) and Mixed Use Development (MU) Future Land Use Map Category." Under the category of "Business Tourism," the Code states: "[t]his is a High Density Residential (HDR), a Commercial (C), and a Mixed Use Development (MU) Future Land Use Map Category." Each of these business categories allows for traditional commercial uses such as retail stores, filling stations, banks, restaurants and mini- warehouses. The Okaloosa County Land Development Code specifically designated two zoning categories as “Industrial.” They are “Protected Industrial Districts” and “Airport Industrial Park Districts.” The Okaloosa County Land Development Code, under “Industrial” uses, has zoning categories of "Protected Industrial Districts" and "Airport Industrial Park Districts." The Code provides: "[t]his is an Industrial (I) Future Land Use Map Category." No similar reference to either “commercial” or “industrial” zoning is made under the zoning for “agricultural” areas. The agricultural zoning does not mention “filling stations.” The Okaloosa County Land Development Code lists the following (with some restrictions not material to these proceedings) in areas zoned “agricultural”: Permitted Principal Uses and Structures: -Dwellings -Commercial and non commercial agricultural [structures] -Sawmills -Places of worship, schools, publicly owned and operated community structures and land, nursing homes, charitable or philanthropic institutions; public or private golf courses; public lands; public or private cemeteries, private lodges and fraternal orders. -Privately operated day nurseries, pre- schools, and kindergartens. -Private airstrips -Private Airports -Public or private fishing clubs, and other similar enterprises. -Recreational areas for public use, campgrounds, travel trailer parks, including golf driving ranges, swimming pools, fishing lakes, and similar recreation uses. -Public or private stables -Commercial kennels and the raising of other small animals for sale -Community residential homes -Radio, television and commercial towers and antennas. -Terminals for petroleum products -Public Utility Structures -Municipal solid waste transfer stations and recycling facilities. Permitted Accessory Uses and Structures: Uses and structures which are customarily accessory and clearly incidental and subordinate to permitted or permissible uses and structures. Home Occupations. Special Exception Uses and Structures: Activities that are agricultural or support agricultural activities and are in keeping with the rural character of the area Public or privately operated gun clubs Borrow Pits Construction and Demolition Debris landfills Prohibited Uses and Structures: Any use or structure not of a character indicated under permitted accessory uses and structures, or permitted as a special exception. Class I, II and III landfills are prohibited, along with other types of solid waste disposal facilities except as identified in Permitted Uses and Special Exceptions. [Boldface in original; underlining supplied] Mr. Strickland opined that a terminal for storing petroleum products, transported to that location in tanker trucks, for use by machinery on a farm, which use is allowed by the County’s zoning code to be located on land zoned agricultural (see Finding of Fact 29), would not be the same as a gas/filling station for cars, permitted under the County’s commercial or industrial classification. Mr. Strickland’s interpretation is reasonable, and it was not credibly refuted by Mr. Durbin, the County’s planner, whose testimony that the County would allow a filling station on the parcel in question did not comport with the clear designations under the County’s zoning. (See Findings of Fact 24-29 and 35-36.) In processing the applications in this case, Mr. Strickland reasonably interpreted the current zoning to permit only commercial uses "tied to agriculture" on this parcel. Mr. Strickland also used the Okaloosa County Tax Appraiser’s records. The County Appraiser listed the parcel whereon the signs were intended to be erected as improved agricultural land containing a single family dwelling for which a homestead exemption was taken/granted. A residential use clearly is not a commercial use. Mr. Strickland took this to mean that the “rural mixed use” for that parcel implied a “residential” use, as opposed to a “non-residential” and potentially commercial use, under the RMU designation on the future land use map. FDOT never permits billboards on residential property unless the parcel is currently zoned commercial and the parcel merely contains a private residence that has been grandfathered- in. On October 18, 2005, FDOT, through Mr. Strickland, issued a Notice of Denied Application stating: Location is not permittable under land use designations of the site [s. 479.111(2), FS] Location does not qualify as unzoned commercial/industrial area [s. 479.01(23), FS] At the same time, FDOT returned Petitioner’s application fee checks. (See Stipulated Fact 10.) At hearing, County Planner, Tim Durbin, testified that based upon Okaloosa County’s current zoning and future land use, the proposed sign site met Okaloosa County standards and would support an outdoor advertising sign. He further testified that the County no longer considers "AA1”, which once referred to parcel size, "to have any significance,” and that the County plans, in the future, “to remove that designation from its Land Development Code.” According to Mr. Durbin, the County now considers all agricultural land to be "AA." However, as of the date of hearing, more than a year after the sign permit application review by FDOT, the County still has not changed its AA1 category. According to Mr. Durbin, Okaloosa County currently would permit the following non-residential uses of the parcel at issue: "small scale agricultural, civil uses of churches and houses of worship, public or private primary or secondary schools, small scale neighborhood commercial or business uses, general commercial uses. Small scale neighborhood commercial and business includes neighborhood-serving offices, neighborhood-serving retail activities.” He opined that any classification that contains “residential” and “non-residential” uses, as do both the AA1 zoning category and the land use map ”RMU-rural mixed uses” designation, may contain commercial projects within the “non-residential” areas. He equated “filling stations” with “terminals for petroleum products." Herein, because the zoning and land-use map designations were not identical, Mr. Strickland did not consider, in making his decision to deny the sign permit, the three businesses listed near the parcel. He did try to discover how the actual parcel in question was currently regarded locally. In doing so, he used reasonable methods. He denied the sign application(s) on the basis of the future land use designation (rural mixed use-residential) and the agricultural zoning current when these applications were submitted and considered between September 27, 2005, and October 18, 2005, (AA1-agricultural). Petitioner has not demonstrated that any change in the zoning or land use designation has occurred since that time. However, when asked at hearing how he would consider those three nearby businesses (a veterinary, a convenience store, and a pet groomer), which had been submitted for a use test, Mr. Strickland testified that he would consider the veterinary and the store to be commercial uses and would consider Plantation Farm Pet Grooming to be not commercial because it contained a family residence with a homestead exemption. Petitioner did not refute that the pet groomer’s building primarily constitutes a residential use.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered ratifying the October 18, 2005, denial of sign application. DONE AND ENTERED this 4th day of April, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 4th day of April, 2007.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The Town of Jupiter and Its Neighbors The Town of Jupiter (Town, Jupiter) is an incorporated municipality located in northeastern Palm Beach County between Interstate 95 (I-95) and the Atlantic Ocean. The Village of Tequesta, the Town of Juno Beach and Jupiter Inlet Colony are adjoining municipalities. Jupiter is also bordered by unincorporated areas of Palm Beach County. The focal point of urban activity in Palm Beach County (County) is the City of West Palm Beach. The dominant community in the County north of West Palm Beach is the City of Palm Beach Gardens, which is south of Jupiter. There is a regional mall, as well as a satellite County Courthouse, in Palm Beach Gardens, both of which are situated on PGA Boulevard. Jupiter is the major center of urban activity north of Palm Beach Gardens. Its market area is sub-regional in scope. Growth in Jupiter: A Brief History The Jupiter of today is much different than the Jupiter of only a few decades ago. In 1960, the Town's population was just 1,058. By 1970, it had increased to 3,136. During the 1970's, the Town more than tripled its population to slightly less than 10,000, but it still was a bedroom community without any significant employment opportunities. This began to change during the next decade. Small businesses, in increasing numbers, started to locate in the Town. They were followed by larger employers. The 1980's saw not only a substantial increase in employment opportunities, but a substantial increase in population as well. The Town now has a population of approximately 28,000 and is becoming a fairly self- sufficient community offering a wide variety services to its residents. There is one existing new car dealership (Dodge) in Jupiter. Two additional new car dealerships (Ford and Cadillac) have been approved and permitted. 2/ Additionally, there are a number of new car dealerships clustered together on Northlake Boulevard in the City of Palm Beach Gardens 3/ less than ten miles from Jupiter to which the Town's residents have access. 4/ There remain only a few tracts of vacant, uncommitted land within the jurisdictional boundaries of the Town. The unincorporated areas surrounding the Town, however, are largely undeveloped. A considerable amount of the growth in Jupiter since the late 1980's can be attributed to the completion of the "missing link" of I-95, a north-south roadway that is the main intra-urban route in South Florida. Until late 1987, I-95 went as far north in Palm Beach County as PGA Boulevard. In late 1987, a new stretch of I-95, from PGA Boulevard to Fort Pierce, including an interchange at Indiantown Road in Jupiter, was opened to the travelling public. The opening of the I-95 interchange at Indiantown Road has enhanced the Town's market potential and contributed significantly to the Town's integration into the broader metropolitan area of greater Palm Beach County. Jupiter does not have a traditional downtown area. Growth has generally occurred along the Town's major roadways, including Indiantown Road, a state roadway which offers the only direct access from I-95 to the Town and therefore serves as the primary gateway to the Town. In recent years, nearly 60 percent of office and other commercial projects in the Town have been located on that segment of Indiantown Road from I-95 to the roadway's eastern terminus at A1A near the coast, a distance of approximately five and a half miles. The initial impact of the fast-paced development on Indiantown Road was to increase traffic congestion and generate complaints that the roadway was becoming a visual eyesore with its "strip commercial" development. At the time, although it was the Town's primary commercial corridor, Indiantown Road had only two lanes, one going east and the other going west. It is now in the process of being widened and transformed into a six-lane, median divided, controlled access roadway. The Planning Process and the Indiantown Road Corridor Study In the fall of 1986, the Town began the laborious process that culminated in the adoption of its Comprehensive Plan more than three years later. During the planning process, the members of the Town Council, Jupiter's governing body, having heard the complaints of residents regarding the negative impact of development on Indiantown Road and the inadequacy of the Town's existing land development regulations to deal with the situation, determined that a study should be undertaken to develop a comprehensive strategy to address these problems. Of particular concern to the Council members were issues relating to traffic and aesthetics. In November, 1988, the Council retained Henry Skokowski, a planning consultant, to conduct such a study. Skokowski was specifically directed by the Council to, among other things, examine the various types of commercial land uses and determine those that should be permitted and those that should be prohibited in the Indiantown Road corridor. Skokowski's initial draft of the results of his study was submitted to the Council in February, 1989. The Town's proposed Comprehensive Plan was transmitted to the Department of Community Affairs for its review and comments in April, 1989. The Council accepted Skokowski's final draft of the results of his study in the latter part of 1989. The final draft was virtually identical in substance to Skokowski's initial offering. In both, he recommended, among other things, that certain commercial land uses, including "auto . . . sales," that he reasonably felt did not mesh with the desired overall character of the corridor, be absolutely prohibited, without exception, throughout the length of the corridor. 5/ This recommendation, from the outset, was the subject of considerable public debate and discussion before the Town Council. Skokowski endorsed a nodular pattern of development for the corridor. Under his plan, the corridor would contain six urban subdistricts, each having as their focal point a major intersection, with the remaining portions of the corridor consisting of parkway subdistricts with suburban characteristics reflecting a less intensive commercial development pattern than found in the urban subdistricts. From west to east, the six urban subdistricts, which constituted nodes of development, were the Central Boulevard District, the Center Street Landmark District, the Maplewood Drive District, the Civic District, 6/ the Alternate A1A District and the US 1 District. Through the creation of a special overlay zone for the corridor and the adoption of regulations restricting the permitted uses of land 7/ and establishing design, landscaping, and signage requirements on a subdistrict by subdistrict basis, Skokowski envisioned that each subdistrict would develop an identity that was not only distinctive and unique, but compatible with, and reflective of, community values unlike the strip commercial development that then existed in the corridor. Throughout the course of his study, Skokowski met regularly with those who were responsible for drafting the Town's Comprehensive Plan. He also met with the Executive Director of the Palm Beach County Department of Planning, Building and Zoning in an effort to obtain input from the County regarding anticipated development on or around Indiantown Road. In response to Skokowski's request, the Department's Executive Director promised to provide the Town with notification of any proposed zoning actions in the unincorporated areas of the County. Skokowski did not meet with any representative of either the Palm Beach County Metropolitan Planning Organization or the Treasure Coast Regional Planning Council prior to the completion of his study. On January 16, 1990, the Town Council adopted the Town of Jupiter Comprehensive Plan. The Department of Community Affairs has determined that the Plan is "in compliance." Contents of the Comprehensive Plan: A General Overview The Town's adopted Comprehensive Plan contains nine different elements: future land use; traffic circulation; housing; infrastructure; conservation; coastal management; recreation; intergovernmental coordination; and capital improvements. Each element has at least one goal 8/ and objective 9/ and has policies as well. 10/ Some elements also contain maps. One such element is the future land use element, which contains a future land use map. The map employs six land use classifications: residential; commercial; industrial; recreation; conservation; and public/institutional. Most of the land area in the Indiantown Road corridor is designated for commercial use on the future land use map. Approximately two-thirds of the total land area in the Town that is designated for commercial use on the future land use map is located in the Indiantown Road corridor. Each of the elements of the Town's adopted Comprehensive Plan was based upon "data inventory and analysis." The Town Council adopted this "data inventory and analysis" as part of the Plan. Contents of the Comprehensive Plan: Goals, Objectives and Policies The following is the lone goal set forth in the Plan's future land use element: Ensure that the future land use pattern maintains the existing low intensity, residential character, recognizes and protects the environmental quality of the Town, and allows the Town to become a full- service community 11/ serving Northern Palm Beach County. Objective 1.1 of the future land use element addresses the subject of "managed growth." It provides as follows: Direct future growth into areas served by urban services that have adequate capacity, as defined by the adopted level of service standards, which shall be incorporated into the Town's development regulations by May 1990. The following are among the policies in the future land use element that further address the subject of "managed growth:" Policy 1.1.1- All development shall be approved only if the level of service standards as set forth in Policy 1.2.1 of the Capital Improvement Element are met concurrent with the impact of the proposed development. These standards shall be integrated into the land development regulations. Policy 1.1.4- Commercial shopping centers in excess of 80,000 square feet should be located only at intersections of major arterials. Policy 1.1.5- Strip or highway commercial development shall be discouraged. Policy 1.1.6- A commercial corridor study of Indiantown Road is to be undertake[n] in 1989. This will result in a coherent, comprehensive strategy for this major roadway 12/ containing streetscape guidelines and site development standards 13/ that will be integrated into the Town's land development regulations. 14/ Policy 1.1.7- Concentrations of commercial offices, and tourist related activities shall be near locations having high accessibility. Policy 1.1.8- Non-residential outdoor storage areas shall be screened and buffered from adjacent residential uses. Policy 1.1.13- The town through its Coastal Construction Code and its future land use map shall minimize the intensity and density of future development within coastal areas vulnerable to hurricane damage. Policy 1.1.14- The impact of land use on water quality and quantity shall be considered in land use planning and regulation. This shall be assured by inclusion of provisions in the Land [D]evelopment Regulations for consideration of the impacts of proposed development on water quality and quantity. These considerations shall include the provisions of Conservation Element Policies 1.4.1-13 for surface water quality, 1.3.1-13 for groundwater quality, Infrastructure Element Policies 1.1.2 for wellfield protection, 1.5.1 for protection of potable water supply and 1.6.1-5 for protection of groundwater quality and quantity. Objective 1.2 of the future land use element addresses the subject of "land use compatibility." It provides as follows: By May 1990 the land development regulations shall contain provisions and standards which ensure that future growth patterns take into consideration topography, soil and other natural and historic resources, the intensities, densities and type of land use activities and relationship to surrounding properties, as well as providing for streetscaping, proper transition of land uses, buffering, and coordination of coastal population densities with the Palm Beach County Hurricane Evacuation Plan. The following are among the policies in the future land use element that further address the subject of "land use compatibility:" Policy 1.2.1- Where there are differences between residential uses in terms of intensity and type of units, adequate transitioning shall be accomplished through provisions such as setbacks, buffers and height limitations. The land development regulations adopted to implement the Comprehensive Plan shall contain such provisions to assure adequate transitioning. Policy 1.2.3- Where existing land use conflicts exist, the Town shall incorporate into its land development regulations provisions that address noise, dust, lighting and aesthetics. The Town shall support increasing the depth of property(s) in areas where existing lots are shallow (less than 150 feet in depth), are situated adjacent to an arterial roadway, have a commercial or industrial land use designation, and abut residentially designated land; however, the land development regulations shall contain adequate buffering and performance criteria for concerns noted above. Policy 1.2.4- Existing land uses which are not compatible with adjacent land uses, the character, natural resources or the future land use plan shall be eliminated upon redevelopment, and until that time may not be expanded. This requirement shall be included in the revision to the local development regulations to be adopted by May 1990. Objective 1.3 of the future land use element addresses the subject of "land development regulations." It provides as follows: The Town shall prepare land development regulations that effectively implement all provisions of the adopted Comprehensive Plan, contain innovative techniques for the production of affordable housing, provide a means to protect environmentally sensitive areas and maintain flexibility in site design. In addition the Town shall encourage the use of innovating land development regulations such as the Town's existing provisions for PUD and other land development techniques. The following are among the policies in the future land use element that further address the subject of "land development regulations:" Policy 1.3.3- Adopt land development regulations that shall contain specific and detailed provisions required to implement the adopted Comprehensive Plan, and which at a minimum address: subdivision of land signage wellfield and aquifer protection drainage and stormwater management periodic flooding open space needs off-street parking environmentally sensitive areas/habitats In addition, these regulations shall ensure that development orders and permits not be issued which result in a reduction of the levels of service for the affected public facility below the adopted level of service of standards as set forth in the Comprehensive Plan. Policy 1.3.4- The concept of an environmental[ly] sensitive area overlay zone will be incorporated into the current Zoning Ordinance. This concept will be folded into the new development code at the time the current Zoning Ordinance and other local development regulations are consolidated into one regulatory document. Policy 1.3.5- The [L]and [D]evelopment Regulation shall include the following non- residential land use categories, and shall incorporate the following location and intensity criteria: Commercial Neighborhood Commercial- Stores offering frequently needed goods and services to nearby residential areas. Typical activities include pharmacy, dry-cleaning, florist, hardware and garden supplies, professional offices, and personal services. Location Criteria: In areas accessible to immediate surrounding neighborhoods; Can be located in conjunction with groups of retail or highway commercial uses to achieve greater consumer volume and multi- purpose trips; When a part of a planned unit development must be situated in the interior of the project and not along an external roadway; In areas where water supply and sewerage facilities services are available. Intensity measures: Site area- minimum 20,000 sq. ft. maximum 2 acres Site coverage maximum- 35% Height limitation- 35 feet/2 stories General Commercial- Consists of a wide range of commercial goods and services serving a community-wide market. A representative sample of activities includes personal services, banking and finance offices, retail stores, nurseries, printing and publishing, auto repair, marine facilities, and medical and dental clinics. Location Criteria: At major intersections, or existing commercial core areas; Central to and/or readily accessible from all residential areas of the community; Preferably grouped with other stores in this category to achieve a combined market draw on multi-purpose trips; Not adjacent to low density, single family neighborhoods; Adjacent to Medium Density Residential areas when proper buffering is provided; Situated preferably on an arterial roadway, but never on a local street; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Office Commercial- Activities that generally do not entail sale or display of goods and do not require high visibility from major roadways. Typical uses include legal, financial, realty, technical and some medical service establishments. May also contain retail uses that directly serve the needs of the office businesses. Location Criteria: Location needs are often determined by type of service (attorney near courthouse, physician near hospital, etc.); Attractive or prestigious setting often desired; suitable for location near multi- family housing to serve as a transitional use between more intensive commercial and industrial uses; In some instances may locate adjacent to low density residential neighborhood only when height is limited to one story, less than 35% of project site utilized for structure(s) and adequate buffering provided; May locate in industrial park however should be located in designated tract of land in park; In areas where water supply and sewerage facilities services are available. Intensity Measures: Lot coverage maximum- 35% Building height maximum- 50 feet unless parking provided under building then 60 feet. Heavy Products Commercial- Activities that sell large or bulk products or maintains large inventories of products. These usually serve a sizeable market area and are often similar to or part of industrial activities. Building materials, heavy machinery and wholesale establishments are typical heavy commercial uses. Location Criteria: Parcels should be accessible from outlying service areas and near primary routes for shipping and receiving goods (highways, rail); Should be spatially separated from residential areas; Should not be located in proximity to other commercial activities, e.g., retail stores, offices; Suitable siting is near or in industrial areas due to similar location and transportation needs; In areas where water supply and sewerage facilities services are available. Intensity Measures: Site coverage maximum- 35% Building height maximum- 35 feet Industrial * * * Conservation * * * Public/Institutional * * * Objective 1.4 of the future land use element addresses the subject of "economic development." It provides as follows: To expand and diversify the economic base through the provision of adequate sites and timely provision of public utilities and services to stimulate such growth. Policy 1.4.1 is among the policies in the future land use element that further address the subject of "economic development." It provides as follows: Higher densities and intensities of development shall be located in areas having high accessibility and a full complement of public facilities (e.g., water, sewer), that have adequate capacity to maintain the adopted levels of service. Policies 1.1.7, 1.1.8 and 1.1.9 of the Plan's intergovernmental coordination element each reference the Indiantown Road corridor study. They provide as follows: Policy 1.1.7- Jupiter shall seek the active involvement by the Florida Department of Transportation (FDOT) in this study to provide input about the State's plans for the roadway, and FDOT shall formally review the resulting development strategy for compatibility with FDOT plans. Policy 1.1.8- Jupiter shall seek the active involvement of the Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO) in the study to provide input about anticipated development along and around the roadway and its impact on traffic circulation and development within Jupiter. The County and MPO shall have formal review of the resulting development strategy to ensure compatibility with County and MPO plans. Policy 1.1.9- Jupiter shall seek the active involvement of the Treasure Coast regional Planning Council in the study to provide technical assistance and informal mediation among the Town, County, MPO and FDOT, if necessary. Immediately preceding these three policies is the statement that "[a] commercial corridor study of Indiantown Road is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway." 15/ Contents of the Comprehensive Plan: Data Inventory and Analysis The goals, objectives and policies of the Town's Comprehensive Plan can be better understood if they are read in conjunction with the "data inventory and analysis" portion of the Plan. For instance, an examination of the following excerpts from the "data inventory and analysis" portion of the Plan provides considerable assistance in understanding what the Town Council meant when it announced in the goal of the future land use element that it desired that the Town "become a full-service community serving Northern Palm Beach County:" Growth Management Philosophy Until the advent of the '80s, Jupiter was one those hidden treasures [i]n the Treasure Coast region. . . . In 1980, Jupiter was basically a "bedroom" community; however, with recent annexations, the Town now contains over 400 acres planned for industrial park usage. Therefore, Jupiter is now evolving into a "total service" community. To maintain a community that maximizes quality of life, the following growth principles and strategies will be the basis for future growth decisions: Land use decisions . . . will be made within the context of the Greater Jupiter Area 16/ since certain uses within the existing Town limits serve a "market area" that extends considerably beyond the present jurisdictional limits. It is anticipated that the Town's employment base will expand significantly in the coming years as the planned industrial parks, and office/ business centers come on line. The residential character of the Town will remain one of low intensity, a more human scale of residential living. Future residential areas will be developed only in areas with adequate human service. 17/ * * * Being the major urban hub of north county, retail and office businesses located in Jupiter depend on a population base that is considerabl[y] larger than just the existing population residing within the present Town limits. Residential areas to the north, especially along Loxahatchee River Road and to the west, primarily from the Jupiter Farms area shop and do business in Jupiter. 18/ * * * Community shopping centers require a wider market area [than neighborhood shopping centers]. 19/ The Jupiter Mall would be an example of such a retail center. Based on the Town's projected 1995 population (46,900), only one such shopping center is justified. However, because Jupiter is a commercial hub serving much of the County, north of Donald Ross Road, another such center might be justified. Prior to any approval, a market study should be required in order to avoid the problem of overcommercialization. The analysis should include all commercial development in north county, not just limited to Jupiter's corporate Town limits. Leading tenants include variety store and small department store. 20/ * * * Historically the Town has had only a minor amount of land utilized for industrial purposes. Until recent years, it has considered itself a residential, bedroom community; however, that philosophy has changed. It now sees itself as a "total" community. This means the creation of a major employment base. 21/ * * * IMPORTANT POLICY ISSUES 1. Town image, e.g., bedroom community, full service town. 22/ The following references to the Indiantown Road corridor are made in the "data inventory and analysis" portion of the Plan: Development in the Indiantown Road corridor can generally be described as uncontrolled strip commercial, often experiencing traffic congestion and presenting a poor visual image to visitors. As Jupiter has grown no definitive urban center has emerged. Growth has occurred generally along the Town's major roadways. Consider as a long-range strategy the creation of a traditional downtown. 23/ * * * Nearly 60% of the commercial/office projects have been located within the Indiantown Road corridor. . . . Over the past decade Indiantown Road (SR 706) has experienced increased periods of traffic congestion. This has occurred as commercial development along this main artery has mushroomed. Lack of lot depth as well as overall size have created a "hodgepodge" commercial development pattern along SR 706 which has lead to a traffic headache, as well as a visual eyesore. The problems of Indiantown Road are compounded since it will serve as Jupiter's major entryway once Interstate 95 is completed and the entrance on SR 706 is opened. 24/ Consideration should be given to a special overlay zone for Indiantown Road. In developing the overlay zone determining what constitutes the Indiantown Road corridor (depth of property along the roadway), establishing the desired character of the corridor, 25/ and preparing a special set of standards e.g., signage, off-street parking, buffering, to control development would be necessary. Although Indiantown Road is the most obvious example of strip commercial development other local roads are afflicted with the same problem, however maybe not to the same degree. Yet, there are several areas in and around Jupiter that are developing more in a node fashion than in a linear commercial strip. Not only is the Town beset by this commercial problem, but has been faced with possible intrusion of commercial into residential neighborhoods. Precautions need to be taken to make sure that neighborhood integrity remains intact. 26/ * * * [S]imilar to the Town's proposed land use designation within the Indiantown Road corridor, the County too, has proposed that commercial development be allowed along this roadway. A concern the Town has is the manner in which it is developed. This is especially important, because the Indiantown Road corridor is the gateway into Jupiter. To date, the development has reflected a rather non-descript, strip commercial pattern. The Town has been sufficiently concerned that it has contracted to have an urban design corridor study completed for this key roadway. 27/ Design recommendations will become a part of the Town's land development regulations. Coordination between the two governing bodies will be needed at the time the local development regulations are prepared. 28/ * * * The majority of land use conflicts occur in those areas where commercial and industrial uses abut residential neighborhoods. This has been a problem along Indiantown Road. The proposed siting of a cement batch plant in the Pennock Industrial Park created considerable controversy over the potential adverse impacts, e.g., noise, dust, light, visual image, and aesthetics. Similar concerns have been voiced over the potential negative impacts generated by strip shopping centers and car dealerships, as well. Much of the development in this major traffic corridor occurred at a time when Jupiter was a much smaller, rural community. Some of the development predates landscape and signage requirements. Because the land along Indiantown Road was subdivided over twenty years ago, many of the lots along the road are very shallow. This causes problems in providing for adequate transition and buffering from adjacent residential uses. The Town has been encouraging combining of lots to create additional depth that can allow for better site design and buffering. Also, the Town has adopted the Indiantown Road Urban Corridor Study, and will be integrating many of its recommendations into updated development regulation[s]. The study has recommended the creation of an "Indiantown Road Overlay Zone." 29 / This district will contain additional provisions related to design guidelines and streetscape standards so that development within the Town's major corridor achieves some logical, overall design. 30/ * * * IMPORTANT POLICY ISSUES . . . 2. Gateway into Town; . . . Depth of commercial along Indiantown Road; Strip commercial development vs. a node policy; . . . 9. Maintaining areas in residential use by eliminating pressures of commercial development; * * * Besides the commercial demands of the local population, [with] the opening of Interstate 95 Exit on Indiantown Road in conjunction with the existing Florida Turnpike exit on Indiantown Road, it can be expected that there will be significant increased demands for interchange commercial uses to serve the traveling public. 31/ Already a number of inquiries have been made to staff regarding the Town's position relative to development around these interchange areas. This will become the gateway to Jupiter. The commercial development pattern that ultimately emerges within the corridor can visually replicate what already exists, or can become a "memorable["] entryway leading into Jupiter. The concept of an overlay zone for the Indiantown Road corridor should be considered. 32/ * * * Most neighborhood and community shopping centers are located on major roadways, primarily at the intersections of designated arterials such as Indiantown Road and Central Boulevard, Indiantown Road and U.S. 1 and Indiantown Road and Alternate A1A. Future siting of shopping centers, especially those with 100,000 leasable floor area and up should be situated at locations having good access and sufficient roadway capacity to maintain the Town's adopted level of service. Further, they should be located so that the only access is from one road. 33/ * * * The existing major roadways identified in the functional classification are shown on Exhibit 1 . . . and are summarized below. . . Principal local arterials 34/ . . . f. Indiantown Road from U.S. 1 to west town limit Collector streets 35/ Indiantown Road from County Road A1A to U.S. 1 36/ * * * The level of service analysis shown on Exhibit 1 indicates severe capacity deficiencies for east/west travel on Indiantown Road. From Center Street to U.S. 1 and west of the Turnpike, this facility operates at Level of Service "E" which is characterized by very long vehicle delay and long traffic queues such that forced vehicular flow conditions exist much of the day. . . . The five-year programs of the Florida Department of Transportation and Palm Beach County will provide relief for some of the congestion presently experienced in Jupiter. As shown on Exhibit 2 . . . , construction is planned to be undertaken within five years to improve Indiantown Road. Indiantown Road is scheduled to be widened to a six-lane cross section from east of Center Street to east of Alternate A-1-A in fiscal year 1989/1990. Indiantown Road from Florida's Turnpike west to Jupiter Farms Road is planned to be widened to four lanes in the fiscal year 1991/1992. . . . The only existing deficiencies not currently "planned" to be improved is the six-laning of Alternate A-1-A south of the Loxahatchee River Bridge to Center Street and Indiantown Road from Alternate A-1-A to U.S. 1 to six lanes. . . . Designing and obtaining right- of-way for the Indiantown Road Intracoastal crossing (Alternate A-1-A to U.S. 1) is also programmed for FY 89/90, 90/91, respectively. The responsibility for improvement of these facilities is primarily that of the Florida Department of Transportation. 37/ * * * Improvements to Indiantown Road will greatly improve the east/west access within the Town. 38/ * * * The future major streets are shown by functional classification on Exhibit 3 . . . and are summarized as follows. . . . Principal local arterials . . . g. Indiantown Road from Alternate A-1-A to I-95. . . Collector streets Indiantown Road from County Road A-1-A to U.S. 1 39/ * * * At buildout the proposed coastal population densities in the surge vulnerable areas in the Town of Jupiter will be 31,5000 residents. This represents a 230 percent increase. The evacuation routes to accommodate evacuation vehicles will have capacities as follows: -Indiantown Road at six lanes 40/ * * * The proper strategy to follow would be to conserve and maintain or in fact upgrade some of the older residential areas in the Indiantown Road/Center Street area. The Town has been implementing such a policy. The Town has had an ongoing series of drainage and road improvement projects. This effort is continuing with the present focus on the area immediately south of Indiantown Road bounded on the east by Old Dixie. . . . The Town has taken steps since the adoption of its present land use plan to eliminate those uses inconsistent with the community's character and proposed future land uses. Some methods that have been employed are the deepening of commercial frontage along Indiantown Road, adding increased depths to buffers between conflicting land uses and not allowing the re-establishment of non- conforming land uses. 41/ * * * Intergovernmental coordination is necessary in order to implement the following policies: POLICY: A commercial corridor study is to be undertaken by 1989 that will result in a coherent, comprehensive development strategy for this major roadway. Issues for coordination/cooperation: Indiantown Road (SR 706) is owned and operated by the State. It is a major arterial for the unincorporated County area west of Jupiter, and development approved along it and in its vicinity can impact traffic conditions within Jupiter to a significant degree. Agencies involved: Florida Department of Transportation Palm Beach County Metropolitan Planning Organization (MPO) Palm Beach County Department of Planning, Building, and Zoning Treasure Coast Regional Planning Council Recommended methods for coordination/ cooperation: FDOT representatives should be involved closely in the study to provide guidance about the State's plans for the roadway, and FDOT should formally review the resultant development strategy for compatibility with FDOT plans. The Palm Beach County Department of Planning, Building, and Zoning and/or the Palm Beach County MPO should be involved closely in the study to provide guidance about anticipated development along and around the roadway and its impacts o[n] traffic circulation and development within Jupiter. The County should have formal review of the resultant development strategy to ensure compatibility with County plans. The Treasure Coast Regional Planning Council should be involved in the study to provide technical assistance and informal mediation among the Town, County, and FDOT, if necessary. 42/ The "data inventory and analysis" portion of the Plan indicates that the future land use plan includes "commercial uses" among its land use categories. It then goes on to give the following definition of such "commercial uses:" Commercial uses- means activities within land areas which are predominantly connected with the sale, rental, consumption, and distribution of products or performances of professional and non-professional services. The Town Council may approve the use of such land areas for residential purposes provided a rezoning to a residential zoning district is approved and the rezoning is implemented by a planned unit development. The following discussion appears under the subheading of "Land Use Performance Standards" in the "data inventory and analysis" portion of the Plan: The land use classification system described allows for flexibility. Specific protection should be developed and included at the time the local development code is revised to bring it into compliance with the Comprehensive Plan. It is recommended that the following criteria serve as the basis for permitting any land use change. These along with other provisions and policies of all Comprehensive Plan elements will have to be met in order to receive a development order. The recommended performance standards are as follows: Compatibility with surrounding land uses Intensity of use Adequacy of facilities -water services -sewer services -roadway access -fire and police service Environmental impact Following the recitation of the foregoing "recommended performance standards," the statement is made that "[i]n evaluating any proposed land use change as well as any other development approval requirement the Town shall take into consideration . . . whether or not the proposed change complies with the [same] location criteria" that are set forth in Policy 1.3.5 of the future land use element. The "data inventory and analysis" portion of the plan gives the following description of the three major categories of land use problems that the Town should strive to avoid or at least minimize through the planning process: Misuse of Land Widely scattered land development results in a pattern which is more costly to provide with essential services; Construction of buildings in flood prone areas results in damage to property, danger to life and added financial burdens on the [Town] for providing flood abatement measures; Land and water resources are destroyed by scattered substandard development; and Less than adequate room for expansion of businesses and industry result in congestion and inharmonious growth. Conflicting Uses of Land Encroachment of business and industrial uses into existing or emerging residential areas results in instability of these residential neighborhoods; and Unplanned mixing of various land uses results in incompatible relationships among various activities which cause deterioration of the overall environment. Overuse of Land Inadequate provision of off-street parking causes encroachment of residential neighborhoods by traffic seeking parking; Strip development along major highways results in reduced traffic capacity and increased traffic congestion; Excessive land coverage by buildings and parking areas results in inadequate open space; and Poorly conceived site and building design standards can result in overuse of land. Ordinances Creating the Indiantown Road Overlay Zoning District In March, 1990, the Town Council adopted a series of ordinances that incorporated, in all respects material to the instant case, the above-described "comprehensive strategy" that Skokowski had devised for the Indiantown Road corridor. These ordinances amended the Town's zoning code by creating the Indiantown Road Overlay Zoning District (I.O.Z.). The I.O.Z. is codified in Section 517 of the code, which describes the I.O.Z.'s purpose and intent as follows: The purpose and intent of this specialized overlay zoning district is to encourage and provide for enhanced property development within the Indiantown Road corridor. Objectives to be attained through the establishment of this district include protection of adjacent residential land uses; enhancement of the commercial status of the corridor; reduction of visual distraction through uniform sign criteria; enhancement of physical appearance through increased landscaping of public and private property; clustering of compl[e]mentary uses throughout various locations along the corridor; provisions of architectural design guidelines within specific locations along the corridor; encourage the construction of pedestrian oriented facilities in both public and private structures; installation of special landscape and architectural features at major intersections; and establish development incentives to accomplish these objectives. Before the Town Council took final action on the matter, the Town's Director of Community Development provided the Florida Department of Transportation (DOT) with a copy of what was to become Section 517 and asked DOT to favor the Town with its comments. DOT, however, declined to do so. The ordinances adopted by the Town to effectuate the creation of the I.O.Z. were Ordinances 14-90, 15-90, 20-90, 21-90, 22-90, 23-90, 24-90 and 25- 90. 61. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 divided the Indiantown Road Overlay Zoning District into parkway subdistricts and five urban subdistricts: the Central Boulevard District; the Center Street/Maplewood Drive District; 43/ the Civic Center District; the Alternate A1A District; and the U.S. Highway One District. Ordinance 14-90 imposed design, landscaping, and signage requirements applicable to these subdistricts. Ordinance 15-90 further restricted the land use activities permitted in these subdistricts. The underlying zoning district of most of the land area in the Indiantown Road corridor is "C-2" (Commercial, General), in which 41 commercial land use activities are permitted, 11 by right and 30, including automobile sales, by special exception. Ordinance 15-90 absolutely prohibits, without exception, anywhere from 11 to 18 of these 41 commercial land activities, depending upon the subdistrict. Automobile sales are absolutely prohibited throughout the corridor. Attachments 1-11 appended to this Final Order show each of the land use activities that were permitted, by right or special exception, in each subdistrict prior to the adoption of Ordinance 15-90 and the changes, if any, made by Ordinance 15-90 to their status as permitted activities. Relationship of the I.O.Z. to the Comprehensive Plan Section 517.3 of the Town's zoning code states that "[t]he establishment of the IOZ [as codified in Section 517] is hereby declared consistent with the Town of Jupiter Comprehensive Plan." It has not been shown that it is beyond reasonable debate that, in making this declaration, the Town Council, which only a couple of months earlier had adopted the Town of Jupiter Comprehensive Plan, was in error. A reasonable argument may be made that the I.O.Z (Section 517 of the Town's zoning code) and its component parts, including the use restrictions imposed by Ordinance 15-90, are compatible with the Plan and take action in the direction of realizing the Town's aspirations, as announced in the Plan, with respect to the Indiantown Road corridor. The I.O.Z. is a "coherent, comprehensive strategy" for the Indiantown Road corridor that employs "the concept of an overlay zone" and a "node policy" of development (as opposed to linear, "[s]trip commercial") and is reasonably designed to allow this roadway to "become a 'memorable' entryway leading into Jupiter." The use restrictions imposed by Ordinance 15-90 are an integral part of this "coherent, comprehensive strategy." They play a role in "establishing the desired character of the corridor." Ordinance 15-90 is not at variance with any of the land use designations made on the Plan's future land use map, including those designating land in the Indiantown Road corridor for commercial use. While the ordinance absolutely prohibits certain land use activities, those that it allows are in keeping with the map's land use designations. For instance, the activities it permits on land designated on the map for commercial use, which is most of the land in the corridor, are indeed "commercial uses," as that term is defined on page I-30 of the "data inventory and analysis" portion of the Plan. Because the ordinance permits these "commercial uses" throughout much of the corridor, it furthers the Plan's vision of the Indiantown Road corridor as an area where commercial development predominates. There is no inconsistency or conflict between Ordinance 15-90 and the goal of the future land use element of the Plan. It has not been demonstrated beyond reasonable debate that the ordinance will prevent the Town from fulfilling its desire, as expressed in the goal of the future land use element, of completing its transformation from a bedroom community to one that offers, in addition to housing, job opportunities and goods and services accommodating the needs of the residents of the Greater Jupiter area that cannot be adequately met by surrounding communities. To become a "total" or "full-service" community Jupiter need not offer every conceivable good and service in the marketplace. Accordingly, it may absolutely prohibit within its jurisdictional boundaries certain commercial land use activities that involve specialized goods and services that are available elsewhere in the region and still reach its goal of becoming a "total" or "full- service" community. Moreover, Ordinance 15-90 applies only to the land area within the Indiantown Road corridor, which, as noted above, contains approximately two- thirds of the Town's commercially designated land. The remaining land area in the Town designated for commercial use is unaffected by the ordinance and unencumbered by its land use restrictions. Therefore, even if, in order to become a "total" or "full-service" community, the Town was required to offer within its jurisdictional boundaries those goods and services that are unavailable in the Indiantown Road corridor as a result of Ordinance 15-90, the Town would still be able to meet this requirement because the ordinance does not preclude the Town from offering these goods and services in commercially designated areas in the Town that are outside of the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.5 of the future land use element of the Plan. While the land use activities absolutely prohibited by Ordinance 15-90 tend to require larger lot sizes, have generally lower traffic generation rates and are less likely to be found in "[s]trip commercial" developments than certain land use activities permitted by the ordinance, it has not been shown that it is beyond reasonable debate that these prohibitions will likely result in the "[s]trip or highway commercial development" that Policy 1.1.5 seeks to discourage. Ordinance 15-90 renders ineffective neither the requirements of the Plan 44/ nor those of the remaining portions of the I.O.Z. designed to combat and prevent "[s]trip or highway commercial development." The ordinance works, not at cross-purposes with these requirements, but in tandem with them, imposing additional, rather than conflicting, restrictions on development in the Indiantown Road corridor. Under the regulatory framework established by the Town through the adoption of the Plan and the I.O.Z., a proposed development that meets the requirements of Ordinance 15-90, but is inconsistent with the anti-strip commercial provisions of the Plan and the remaining portions of the I.O.Z., will not be approved. Accordingly, Ordinance 15-90 will not have the effect of enhancing the potential for the occurrence of "[s]trip or highway commercial development" in the Indiantown Road corridor. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.1.6 of the future land use element of the Plan. As noted above, Policy 1.1.6 references the Indiantown Road corridor study and indicates that this study "will result in a coherent, comprehensive strategy for this major roadway containing streetscape guidelines and site development standards that will be integrated into the Town's land development regulations." While the use restrictions imposed by Ordinance 15-90 are neither "streetscape guidelines" nor "site development standards," Policy 1.1.6 does not mandate that the "coherent, comprehensive strategy" resulting from the Indiantown Road corridor study include only "streetscape guidelines" and "site development standards." Given that use restrictions are typically included in a "comprehensive strategy" for a roadway corridor and that there was considerable public debate preceding the adoption of the Plan concerning Skokowski's recommendation (which was ultimately incorporated in Ordinance 15-90) that certain use restrictions be included in a "comprehensive strategy" for the Indiantown Road corridor, it is reasonable to assume that, had the Town Council intended that such use restrictions not be a part of the "comprehensive strategy" envisioned in Policy 1.1.6, it would have so specified in that policy or elsewhere in the Plan. Its failure to have done so reflects that the Town Council had no such intention at the time it adopted the Plan. There is no inconsistency or conflict between Ordinance 15-90 and Policy 1.3.5 of the future land use element of the Plan. As mentioned above, Policy 1.3.5 directs, among other things, that the Town's land development regulations include, within a commercial land use category, the subcategories of "Neighborhood Commercial," "General Commercial," "Office Commercial," and "Heavy Products Commercial" and it gives a representative sample of activities that would fall into each of these subcategories. In addition, the policy prescribes location and intensity criteria for each of these subcategories. Policy 1.3.5 does not require the Town, in its land development regulations, to permit in areas that meet the location criteria of a particular subcategory all of the commercial land use activities that may fall within that subcategory. Accordingly, as it has done in Ordinance 15-90, the Town may prohibit some of these activities without running afoul of the mandate of Policy 1.3.5. Policy 1.3.5 does impose upon the Town the obligation to permit a "Neighborhood Commercial," "General Commercial," "Office Commercial," or "Heavy Products Commercial" land use activity only in those areas that, according to the policy's location criteria, are suitable for that particular activity. There has been no showing that the various commercial land use activities permitted by Ordinance 15-90 are allowed to take place in areas that do not meet the location criteria prescribed in Policy 1.3.5. If anything, the evidence establishes the contrary. There is no inconsistency or conflict between Ordinance 15-90 and Policies 1.1.7 and 1.1.8 of the intergovernmental coordination element of the Plan. As indicated above, Policies 1.1.7 and 1.1.8 provide that, in the development of the Indiantown Road corridor study, the Town "shall seek the active involvement" [of] the Florida Department of Transportation" (DOT), as well as the "Palm Beach County Department of Planning, Building and Zoning and/or the Palm Beach County Metropolitan Planning Organization (MPO)," to provide appropriate input. In conducting his study of the Indiantown Road corridor, Skokowski sought the "active involvement" of the Palm Beach County Department of Planning, Building and Zoning. He did not seek DOT's input, 45/ but the Town's Director of Community Development, prior to the Town Council's adoption of the I.O.Z., did. Accordingly, in adopting Ordinance 15-90 and the other ordinances that were based upon Skokowski's Indiantown Road corridor study, the Town Council did not act in derogation of the requirements of either Policy 1.1.7 or Policy 1.1.8 of the intergovernmental coordination element of the Plan. Petitioner's Challenge to the I.O.Z.'s Use Restrictions Petitioner owns approximately 680 acres of land in Jupiter, including land situated in the Indiantown Road corridor that is subject to the use restrictions imposed by Ordinance 15-90. It acquired 640 of these 680 acres in 1981 and the remaining acreage in 1987. Petitioner has been developing this property since its acquisition. A golf course and residential community have already been completed. Work has begun on a 40-acre commercial project located in the Maplewood Drive/Indiantown Road area. Petitioner desires to build an auto campus as part of this project, but is unable to do so because Ordinance 15-90 absolutely prohibits automobile sales from occurring on the land. On or around December 10, 1990, Petitioner sent a petition to the Mayor of Jupiter, the body of which read as follows: This petition is submitted on behalf of Restigouche, Inc. [Petitioner] pursuant to Fla. Stat. #163.3213(3) and Rule 9J-24.007 of the Florida Administrative Code. The purpose of this Petition is to challenge the consistency of such portions of [the] Indiantown Road Overlay Zoning District Ordinance, as adopted by the Town of Jupiter under Ordinance 15-90. These portions define permitted uses, uses permitted by special exception and prohibited uses within the IOZ. Section 517 of the Zoning Code was adopted by several ordinances[.] Ordinances 14-90 and 15-90 were adopted March 6, 1990. Ordinances 20-90, 21-90, 22-90, 23-90, 24-90 and 25-90 were adopted March 20, 1990. Ordinance 15-90 reduces the allowable uses of the property owners within the IOZ. The underlying zoning category for Restigouche's property in the Maplewood/Center Street District is C-2. Table 1 of the IOZ contains a list of 41 uses available to property within Zoning District C-2 by right or by special exception. The table shows that the uses for property within the IOZ have been reduced to the extent that those uses designated as "X" have moved from permitted by right or special exception to prohibited uses. Ordinance 15-90, which incorporates this down zoning, is inconsistent with the Comprehensive Plan of the Town of Jupiter as adopted by the Town Council January 16, 1990. The Comprehensive Plan does not allow for the creation of a district along the Indiantown Road Corridor that would limit uses from those as stated in the appropriate underlying zoning district. The Comprehensive Plan recognizes that a study of the development along Indiantown Road was being undertaken at the time of Comprehensive Plan adoption and acknowledges that signage, streetscape and site development criteria to enhance the visual aspects of Indiantown Road would be adopted. The Comprehensive Plan does not state that a new zoning district would be created limiting uses from those already available for the underlying zoning. Policy 1.3.5 states that land development regulation[s] shall include four designated types of commercial zoning as specified in this policy. These are Neighborhood Commercial, General Commercial, Office Commercial and Heavy Products Commercial. Specific description of policies and goals for each of these is stated. There is no policy for the recognition of a land use or zoning category specifically applicable to Indiantown Road. The Petitioner is a substantially affected person by virtue of its ownership since 1981 of property within the Maplewood/Center Street District which is part of the IOZ and is the successor developer of a previously approved Development of Regional Impact. Petitioner has expended millions of dollars in improvements to the property within the Maplewood/Center Street District in the IOZ and has contributed substantial acreage for the construction of a public school, park and fire station. The Petitioner is Restigouche, Inc., its address is 102 Nocossa Circle, Jupiter Florida 33458, telephone number (407)744-4778. The Petitioner's representative at that office is Eileen F. Letsch, Vice-President. Petitioner is represented in this matter by its counsel, Paul B. Erickson of Alley, Maass, Rogers & Lindsay, P.A., 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. The relief sought by Restigouche, Inc. is recognition by the Town of Jupiter that such portions of Section 517 which diminish permissible zoning uses from those allowed in the underlying C-2 Zoning District are void and unenforceable allowing the Application for Special Exception to be considered by the Town of Jupiter. The Town did not grant the relief sought by Petitioner. Accordingly, on or about March 5, 1991, Petitioner submitted a petition to the Department of Community Affairs (Department). The body of the petition read as follows: Restigouche, Inc. ("Restigouche") files this challenge to the consistency of a land development regulation of the Town of Jupiter, Florida. Restigouche is not aware of any Agency file number for this proceeding. Restigouche, Inc. is a Florida corporation. This petition is filed by Eileen F. Letsch, Executive Vice-President, 102 Nocossa Circle, Jupiter, Florida 33458, (407)744-4778. Restigouche is represented in this Petition by Paul B. Erickson, Esq. of Alley, Maass, Rogers & Lindsay, 321 Royal Poinciana Plaza, Palm Beach, Florida 33480 (407)659-1770. Restigouche is the owner of property in the Town of Jupiter, Florida which is within the Indiantown Road Overlay Zoning District ("IOZ") created by the Town under Ordinances 14-90 and 15-90 on March 6, 1990 and applied to Restigouche's property by Ordinance 21-90 on March 20, 1990. These ordinances as enacted create Section 517 of Ordinance 10-88 which is the current zoning ordinance of the Town of Jupiter. Restigouche challenged the consistency of the IOZ with the Comprehensive Plan of the Town of Jupiter by letter to the chief elected official of the Town dated December 12, 1990. A copy of the petition is attached. The Town of Jupiter adopted its Comprehensive Plan January 20, 1990. The IOZ as it was enacted in part by Ordinances 15-90 and 21-90 is a down zoning regulation which reduces the number of permissible uses for Restigouche's property by right or special exception from 41 to 27. The IOZ as enacted in Ordinance 14-90 established landscaping and site development standards for property within the IOZ. The portions of the IOZ as adopted in Ordinances 15-90 and 21-90 are not consistent with the Comprehensive Plan of the Town of Jupiter. The Comprehensive Plan refers to the IOZ as an area of landscaping and site development standards. It does not refer to the IOZ as an area where permissible uses will be down-zoned. The Comprehensive Plan establishes mandatory criteria for the development of commercial uses within the Town in Policy 1.3.5. This does not recognize or allow a separate, restrictive commercial zoning district along Indiantown Road. The IOZ as enacted in Ordinance 15-90 should be declared invalid because it is inconsistent with the Comprehensive Plan. The Department determined that the petition substantially complied with the requirements of Rule 9J-24.007(5) and (6), Florida Administrative Code, and so notified the parties. By letter dated March 22, 1991, the Department requested the Mayor of the Town to furnish it with the following materials: those portions of the Town's land development regulations which discuss or implement the IOZ; the standards for all zoning districts which underlie the IOZ; any supportive studies regarding the IOZ; and those portions of the comprehensive plan which discuss the IOZ or densities and allowable uses in the area in question. The requested materials were furnished on or about March 28, 1991. An informal hearing on Petitioner's challenge to the I.O.Z.'s use restrictions was held in Jupiter on April 12, 1991. Representatives of both Petitioner and the Town participated in the hearing. They presented information and argument for the Department's consideration. Following the informal hearing, the Department gave the parties the opportunity to supplement what they had presented at hearing. Both parties took advantage of the opportunity. In its supplemental submission, Petitioner presented additional written argument, in which it identified with specificity those provisions of the Town of Jupiter Comprehensive Plan with which it claimed the I.O.Z.'s use restrictions were inconsistent. These specifically identified Plan provisions were Goal 1, Objectives 1.2, 1.3 and 1.4, and Policies 1.1.4, 1.1.5, 1.1.6, 1.1.7, 1.1.8, 1.1.13, 1.1.14, 1.2.3, 1.2.4, and 1.3.5 of the future land use element and Policies 1.1.7, 1.1.8 and 1.1.9 of the intergovernmental coordination element. Petitioner also submitted 1) an engineer's report supporting its position that its proposed auto campus "would have significantly less impact upon public facilities" than would a 230,500 square foot retail center constructed on its property, 2) photographs of a model of the proposed auto campus, and 3) site plans of the proposed auto campus. By letter dated April 30, 1991, the Town objected to Petitioner's submission of the engineer's report and asked that it not be considered by the Department because it was generated after the informal hearing and therefore was "not available for discussion . . . at the hearing." On May 10, 1991, following its review and consideration of not only the information, argument and materials with which it had been presented, but of the entire Town of Jupiter Comprehensive Plan as well, which it had on file, the Department issued its written decision finding that "the provisions of the Town of Jupiter Land Development Regulations contained in the IOZ which have been challenged by Petitioners 46/ in this proceeding are consistent with the Town's Comprehensive Plan." The Department explained its determination as follows in Conclusions of Law 2 and 3 of its written decision: The Town of Jupiter's IOZ is not in conflict with the Comprehensive [P]lan because the IOZ is specifically authorized by the Plan, and there are no provisions in the Plan which prohibit the Town from adjusting allowable uses within underlying zoning districts. The uses permitted in the IOZ are certainly within the permissible range of uses for the designation in the plan. The plan does not guarantee a minimal zoning category for properties within the general commercial designation. It only provides that the zoning will effectively include general commercial uses. Further, the IOZ cannot accurately be referred to as a separate zoning category as argued by the Petitioners. The IOZ modifies underlying general commercial zoning districts (which the Petitioners agree are authorized by the Plan). In fact, land development regulations such as the IOZ are considered to be innovative and are encouraged in s. 163.3202(3), F.S. There are no provisions in Chapter 163, F.S., that require comprehensive plans to identify and authorize all implementing land development regulations. Although Policy 1.3.5 lists certain uses which are eliminated or limited within the IOZ, these uses are allowed in commercial zoning districts outside the IOZ. The Petitioners may have cited portions of certain policy statements that, when taken in isolation, seem to suggest potential conflicts with the IOZ. However, the IOZ serves as the implementing solution to a problem area identified in the Plan as being of significant concern. Therefore, the IOZ, on balance, takes action in [the] direction of implementing and furthering substantive portions of the Plan. Further, the lack of recognition in the comprehensive plan of implementing land development regulations does not, by itself, constitute an inconsistency. On May 31, 1991, Petitioner filed a petition with the Division of Administrative Hearings requesting a hearing on its consistency challenge. Petitioner did so in good faith as part of its effort to convince the Town Council that the I.O.Z. should be modified in a manner that would allow Petitioner to construct its proposed auto campus in the Maplewood Drive/Indiantown Road. Petitioner hoped that the Hearing Officer would agree with its position that the I.O.Z.'s use restrictions are inconsistent with the Town of Jupiter Comprehensive Plan and that, after the Hearing Officer found these use restrictions to be inconsistent with the Plan, the Town Council would take action to eliminate them to avoid the sanctions it would face if it did not take such action.
The Issue The issue is whether proposed rules 9J-5.026(3)(d), (7)(b), (7)(c)4. and 6., (8)(a), (9)(a)3., 6., 18., and 19., and 9J- 11.023(2), (4), and (5), and existing Florida Administrative Code Rule 9J-5.003(80) are invalid exercises of delegated legislative authority for the reasons alleged in the Petition for Administrative Hearing to Challenge Proposed Amendments to Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule 9J-5.003(80) (Petition).1
Findings Of Fact Based on the evidence presented by the parties, the following findings are made: The Parties Petitioners are not-for-profit organizations whose members own real property throughout the State. A substantial number of their respective members own real property which could be amassed as one or more areas in the RLSA program. Some members of these organizations have taken steps in an effort to have their land designated as an RLSA. On behalf of their respective members, each Petitioner has a substantial interest in public policy relating to land use planning, growth management, and the protection of agricultural, rural, and conservation lands. Respondent, Department of Community Affairs (Department), has stipulated to the facts necessary to establish standing for each Petitioner. The Department is the state agency charged with implementing the review provisions of the Local Government Planning and Land Development Regulation Act codified in Sections 163.3164, et seq., Florida Statutes. The Original Statute Creating the RLSA Program Because of the complexity of the subject matter, a recitation of the RLSA program's history is appropriate. In 2001, the Legislature enacted Chapter 2001-279, Laws of Florida, codified as Section 163.3177(11)(d), Florida Statutes, which created the RLSA pilot program. The law became effective on July 1, 2001, and stated: It is the intent of the Legislature that rural land stewardship areas be used to further the following broad principles of rural sustainability: restoration and maintenance of the economic value of rural land; control of urban sprawl; identification and protection of ecosystems, habitats, and natural resources; promotion of rural economic activity; maintenance of the viability of Florida's agriculture economy; and protection of the character of the rural areas of Florida. § 163.3177(11)(d)2., Fla. Stat. (2001). While the eligibility criteria and substantive requirements of the RLSA program have been amended several times, the foregoing principles have remained the same. The statute provides an option, not an exception, under the State's growth management laws for local governments to implement innovative planning and development strategies for large, rural parcels. While having many of the attributes of a traditional "transfer of development rights" program, the RLSA planning process provides additional planning and economic incentives as well as flexibility for the local government to implement this program. The program was best summarized by Secretary Pelham at hearing as follows: The RLSA process is an optional planning process which local governments may elect to use in rural and agricultural areas of the state. Essentially it provides incentives to landowners to preserve or conserve environmental and natural resources and agricultural lands by giving them stewardship credits that may be assigned to those lands to be preserved, but which can be used on other lands through a transfer of those credits to the receiving areas. Tr. at 182. The first step in the RLSA planning process is for the local government to "apply to the Department in writing requesting consideration for authorization to designate a [RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the original statute, if the Department chose to authorize a local government to designate an RLSA, it would do so by written agreement with the local government. See § 163.3177(11)(d)4. and (5), Fla. Stat. (2001). Because the original statute was a pilot program, the Department could authorize only five local governments to designate RLSAs. See § 163.3177(11)(d)6., Fla. Stat. (2001). To be eligible for designation as an RLSA under this pilot program, a parcel of land had to be larger than 50,000 acres but not over 250,000 acres; it had to be designated as rural or a substantial equivalent on the future land use map (FLUM); and it had to be located outside the municipal and established urban growth boundaries. See § 163.3177(11)(d)6., Fla. Stat. (2001). For this reason, only counties (and not cities) were eligible to participate in the program. Once it received Department authorization to designate an RLSA, the county was to then propose and adopt a plan amendment designating the RLSA. See § 163.3177(11)(d)6., Fla. Stat. (2001). This plan amendment was to be subject to full review under Section 163.3184, Florida Statutes, for a compliance determination. Also, the plan amendment was required to specifically address the following: Criteria for the designation of receiving areas within rural land stewardship areas in which innovative planning and development strategies may be applied. Criteria shall at a minimum provide for the following adequacy of suitable land to accommodate development so as to avoid conflict with environmentally sensitive areas, resources, and habitats; compatibility between and transition from higher density uses to lower intensity rural uses; the establishment of receiving area service boundaries which provide for a separation between receiving areas and other land uses within the rural land stewardship area through limitations on the extension of services; and connection of receiving areas with the rest of the rural land stewardship area using rural design and rural road corridors. Goals, objectives, and policies setting forth the innovative planning and development strategies to be applied within rural land stewardship areas pursuant to the provisions of this section. A process for the implementation of innovative planning and development strategies within the rural land stewardship area, including those described in this subsection and s. 9J-5.006(5)(l), Florida Administrative Code, which provide for a functional mix of land uses and which are applied through the adoption by the local government of zoning and land development regulations applicable to the rural land stewardship area. A process which encourages visioning pursuant to s. 163.3167(11) to ensure that innovative planning and development strategies comply with the provisions of this section. The control of sprawl through the use of innovative strategies and creative land use techniques consistent with the provisions of this subsection and rule 9J-5.006(5)(l), Florida Administrative Code. Once the plan amendment was in place, the county was then to implement it through land development regulations. Under the original statute, the county by ordinance was to "assign to the [RLSA] a certain number of credits, to be known as 'transferable rural land use credits' . . . ." These credits would then be transferred to designated receiving areas "solely for the purpose of implementing innovative planning and development strategies and creative land use planning techniques adopted by the local government pursuant to this section." See § 163.3177(11)(d)8.b., Fla. Stat. (2001). Once transferable rural land use credits were transferred from a parcel, the underlying land uses would be extinguished, the parcel would be limited to agriculture or conservation, and the transfer would be memorialized as a restrictive covenant running with the land. See § 163.3177(11)(d)8.k., Fla. Stat. (2001). The Department was granted the authority to implement this section by rule in the original statute. However, the Department did not adopt rules. No county applied to participate in this pilot program. Amendments to the RLSA Statute The Legislature substantially amended the statute in 2004. See Ch. 2004-372, Laws of Fla. Although the program had no participants as of that time, the Legislature removed the pilot status of the program and the limitation on the number of local governments that may be authorized to designate an RLSA. See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the requirement for a written agreement between the county and the Department was deleted, the requirement for the county's application and Department's authorization prior to the designation of an RLSA remained. See § 163.3177(11)(d)1. and 4., Fla. Stat. (2004). The minimum acreage for an RLSA was reduced to 10,000 acres and the maximum was removed. § 163.3177(11)(d)4., Fla. Stat. (2004). The statute also explicitly recognized that RLSAs could be multi-county. § 163.3177(11)(d)2., Fla. Stat. (2004). In 2005, the Legislature again amended the statute in several respects, one of which was directed to the stewardship credit methodology. See Ch. 2005-290, Laws of Fla. However, the statute still requires that the total amount of credits is to be tied to the "25-year or greater projected population of the rural land stewardship area." Although the statute was amended again in 2006, those amendments have no bearing on the issues in this case. See Ch. 2006-220, Laws of Fla. Designating an RLSA Under the Statute Collier County has been frequently mentioned as a local government with an RLSA program. However, that County's comprehensive plan provisions regarding rural development were not adopted under the RLSA statute; rather, they were adopted by the County in 1999 as conventional plan amendments that were later approved in 2002 by a final order issued by the Administration Commission. Collier County's rural planning program does, however, have some of the same core attributes found in the RLSA program, including the creation of transferable land use credits to enable development in designated receiving areas. The Department closely examined the Collier County program as part of its "Rural Land Stewardship Area Program 2007 Annual Report to the Legislature" (2007 Annual Report). See Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat. ("[t]he department shall report to the Legislature on an annual basis on the results of implementation of [RLSAs] authorized by the department"). This examination revealed several substantial flaws in the program. First, the Collier County program is extremely complex, with over twenty general attributes that must be examined for every acre of land assigned stewardship credits. This would make it difficult and expensive for small rural counties with limited resources. The Collier County program also assigns the highest stewardship credits to environmentally sensitive lands and appreciably lower values to agricultural land. The result is that development is directed to agricultural areas. For example, eighty-seven percent of the footprint of one receiving area that is currently being developed, known as Ave Maria, was in active agriculture prior to its designation for development. In this respect, the Collier County system is directing development to agricultural lands and not protecting and conserving those lands, which the Department contends contravenes the principles of rural sustainability. Another major concern with the Collier County program is the extent and distribution of receiving areas. The Collier County program does not have any requirements that the receiving area be clustered, thus allowing for the possibility of scattered, sprawling receiving areas throughout eastern Collier County. Also, there appears to be no limit on the footprint of these receiving areas. The original Collier County program envisioned development on only nine to ten percent of the entire area, for a total of approximately 16,800 acres. However, due to the complexity and "flexibility" within the Collier County stewardship credit system, "the maximum development footprint cannot be determined." On September 12, 2006, St. Lucie County adopted plan amendments under the RLSA statute. Later that year, the Department reviewed the amendments and found them to be in compliance. In preparing the 2007 Annual Report, the Department undertook a detailed analysis of the St. Lucie RLSA amendments. Even though the amendments had been previously found to be in compliance, the new analysis revealed several shortcomings in the amendments, including their failure to discuss, analyze, or demonstrate how they further the principles of rural sustainability, a primary focus of the program. Also, the amendments were not supported by an analysis of land use need. Instead of projecting population and need, the RLSA adopted an arbitrary cap of 13,248 dwelling units with "no known planning basis." The St. Lucie RLSA is similar to the Collier County program in two respects: it is very complex, and it places no spacial limits on the footprint of the development area. Due to these shortcomings, the Department has placed little, if any, reliance on the St. Lucie County RLSA amendments as an example of proper planning under the RLSA statute. There is no evidence that any development has occurred under the St. Lucie program, and its most recent Evaluation and Appraisal Report dated October 2008 indicated that none may ever occur. In 2007, Highlands and Osceola Counties both applied for and were granted authorization by the Department to designate RLSAs. However, both counties later notified the Department that they would no longer pursue the RLSAs, and the authorizations were withdrawn by the Department. The Rule Development Process In early 2007, the Department became aware of assertions by some landowners that the RLSA program provides for unlimited development within a stewardship area; that RLSA plan amendments were not subject to the growth management provisions in Chapter 163, Florida Statutes; and that RLSAs were not subject to a needs analysis, as required by the law. At the same time, the Department received numerous inquiries from large landowners and/or their representatives regarding RLSA proposals, some as large as 750,000 acres, and for two "new towns" with 100,000 and 60,000 dwelling units, respectively. It also became aware of concerns and criticisms leveled against the one adopted RLSA program in St. Lucie County and rural planning efforts in Collier County. The main criticism was that the system being used for RLSA planning was too complex, which resulted in an expensive, consultant- intensive process that lacked transparency and was largely incomprehensible. Based on the above concerns and criticisms, the Department began gathering information in early 2007 in preparation for rulemaking. On July 19, 2007, it conducted its first workshop. Two other workshops were held, and the first draft of proposed rule 9J-5.026 was issued in January 2008. That proposed rule set forth the minimum substantive requirements for RLSA planning. In September 2008, the Department issued its first draft of proposed rule 9J-11.023, which sets forth the procedural requirements for a local government to seek authorization from the Department to designate an RLSA. After receiving comments from interested parties, the Department noticed the rules for adoption and conducted a rule adoption hearing. On January 7, 2009, Petitioners filed a Petition challenging most of the provisions in the proposed rules. See DOAH Case No. 09-0048RP. Based upon that challenge, which raised new issues not previously brought to the attention of the Department, the Department withdrew the rules and made substantial revisions to address these concerns. This rendered moot Petitioners' earlier challenge. After the revised rules were noticed for adoption, Petitioners filed their Petition challenging numerous provisions within the proposed rules as well as one existing rule. The Objections As summarized in their Proposed Final Order, Petitioners contend (a) that proposed rules 9J-11.023(2), (4), and (5) are invalid because they exceed the Department's grant of rulemaking authority;4 (b) that proposed rules 9J-5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and 19. enlarge, modify, or contravene the specific provisions of law implemented; (c) that proposed rule 9J-5.026(3) is vague and fails to establish adequate standards for agency decisions; (d) that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that existing Rule 9J-5.003(80) contravenes the specific provisions of law implemented. The remaining allegations have been voluntarily dismissed. a. Does proposed rule 9J-11.023 exceed the grant of legislative authority? Petitioners first contend that subsections (2) and (4) in their entirety and the words "If authorized to proceed" in the first sentence of subsection (5) of proposed rule 9J-11.023 are an invalid exercise of delegated legislative authority because they exceed the Department's specific grant of legislative authority. The challenged subsections of the proposed rule read as follows: 9J-11.023 Procedure for the Designation of a Rural Land Stewardship Area. * * * (2) Pre-Notification Actions. Prior to giving official notification of intent to designate a RLSA to the Department, the county(ies) shall conduct at least one noticed public workshop to discuss and evaluate the appropriateness of establishing a RLSA. The county(ies) shall invite the Department of Community Affairs, Department of Agricultural and Consumer Affairs, Department of Environmental Protection, Department of Transportation, Florida Fish and Wildlife Conservation Commission, affected regional planning council(s), and affected water management district(s) (collectively referred to as the "RLSA Interagency Technical Advisory Team") to participate in the workshop. Potentially affected landowners and other interested parties shall be given notice and invited to participate in the workshop. The workshop shall address: the statutory process for designating a RLSA; the planning issues that are likely to arise; and the technical assistance that will be available from state and regional agencies if the county(ies) proceed to designate a RLSA. The county(ies) shall provide opportunities for broad public participation in the RLSA process, which may include a series of public meetings or workshops. The county(ies), in coordination with the affected landowners, shall host a site visit of the RLSA for the RLSA Interagency Technical Advisory Team in conjunction with the workshop or after the notification of intent to designate pursuant to paragraph (4)(b). * * * Review of Notification of Intent to Designate. The Department will provide members of the RLSA Interagency Technical Advisory Team with a copy of the notification of intent to designate within five days after receipt of the notification. If a site visit was not made prior to the notification of intent to designate, the Department will contact the county(ies) within ten days after receipt of the notification of intent to arrange a site visit of the proposed RLSA and surrounding lands. The county(ies) shall ensure proper coordination with the affected landowners. The Department will coordinate the scheduling of the site visit with the members of the RLSA Interagency Technical Advisory Team and request their participation in the site visit. Members of the RLSA Interagency Technical Advisory Team shall be asked to provide the Department oral and/or written comments on the proposed RLSA within 30 days of the receipt of the notification of intent to designate or the site visit, if it occurs after the notification. The Department may also request meetings with the members of the RLSA Interagency Technical Advisory Team to discuss and evaluate the notification and site visit. The Department may also request a conference with the county's(ies') staff(s) to discuss issues and questions that have arisen as a result of the site visit, comments from members of the Interagency Technical Advisory Team and other stakeholders, and the Department's evaluation of the RLSA proposal. Not later than 60 days following the receipt of the notification of intent to designate or the site visit, whichever is later, the Department shall issue a written notification to the county(ies). The Department's notification shall authorize the county(ies) to proceed with a plan amendment to designate the RLSA or inform the county(ies) of the Department's decision not to authorize. The decision shall be based on the information contained in or gained from the notification, site visit, other agency comments, and other information received. The Department shall authorize the county(ies) to proceed if it determines that the proposed RLSA meets the threshold eligibility requirements of subsection 9J-5.026(4), F.A.C. and that there is a reasonable likelihood that the RLSA will further the principles of rural sustainability. If the Department decides to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the notification will set forth the facts on which the authorization is based, and may include recommendations to the county(ies) regarding the RLSA. The notification will not guarantee that a comprehensive plan amendment(s) to designate a RLSA will be found in compliance by the Department. It will only constitute the Department's authorization to designate a RLSA if the necessary comprehensive plan amendment(s) are adopted and found in compliance pursuant to Section 163.3184, F.S. If the Department decides not to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the agency's notification will explain the reasons for the decision. Amendment to the Comprehensive Plan: If authorized to proceed, the county(ies) may prepare and process a plan amendment(s) that will be reviewed by the Department pursuant to Section 163.3184, F.S. The county(ies) may, in preparing the plan amendment(s), establish a local visioning process to facilitate the development of a RLSA plan amendment. The Department encourages the county(ies) to seek and utilize technical assistance from the members of the RLSA Interagency Technical Advisory Team in preparing a RLSA plan amendment. 33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida Statutes, require that the agency list in the rulemaking notice the purported rulemaking authority for the proposed rule. To comply with this requirement, the Department's rulemaking notice cites Sections 163.3177(9) and (11)(h), Florida Statutes, as the specific authority for adopting the rule and Section 163.3177(11)(d)1., Florida Statutes, as the law being implemented. In its Proposed Final Order, the Department relies on Section 163.3177(11)(h) as the specific statutory authority for rulemaking. It provides that the Department "may adopt rules necessary to implement the provisions of [subsection 163.3177(11)]," including the RLSA provisions found in Section 163.3177(11)(d). On the other hand, the law being implemented is quite lengthy and reads as follows: (11)(d)1. The department, in cooperation with the Department of Agriculture and Consumer Services, the Department of Environmental Protection, water management districts, and regional planning councils, shall provide assistance to local governments in the implementation of this paragraph and rule 9J-5.006(5)(l), Florida Administrative Code. Implementation of those provisions shall include a process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element as predominately agriculture, rural, open, open-rural, or a substantively equivalent land use, as a rural land stewardship area within which planning and economic incentives are applied to encourage the implementation of innovative and flexible planning techniques, including those contained herein and in rule 9J- 5.006(5)(l), Florida Administrative Code. Assistance may include, but is not limited to: Assistance from the Department of Environmental Protection and water management districts in creating the geographic information systems land cover database and aerial photogrammetry needed to prepare for a [RLSA]; Support for local government implementation of rural land stewardship concepts by providing information and assistance to local governments regarding land acquisition and assistance to local governments regarding land acquisition programs that may be used by the local government programs that may be used by the local government or landowners to leverage the protection of greater acreage and maximize the effectiveness of rural land stewardship areas; and Expansion of the role of the Department of Community Affairs as a resource agency to facilitate establishment of [RLSAs] in smaller rural counties that do not have the staff or planning budgets to create a [RLSA]. Proposed rule 9J-11.023 describes in detail the process by which a local government is to request Department authorization to designate a RLSA. At issue here are provisions in subsections (2), (4), and (5) of the rule that require a local government wishing to designate an RLSA to conduct a public workshop; cover particular topics during the workshop; host a site visit with designated agencies; and based on the information gathered from this process to then allow the Department, in its discretion, to either authorize or not authorize the local government to begin to prepare and process an RLSA amendment. The latter decision is based on whether the local government has shown "a reasonable likelihood that the RLSA will further the principles of rural sustainability." Petitioners contend that there is no specific grant of rulemaking authority that authorizes the Department to mandate these procedures in the rule or to prevent a local government from proposing and processing an RLSA plan amendment. Instead, they contend that the enabling statute only allows the Department to promulgate rules that are "necessary" to implement the RLSA program, those being a requirement that the county provide notice to the Department that it intends to propose a RLSA plan amendment and a description of the subsequent review process by the Department to determine whether the amendment is in compliance. Section 163.3177(11)(d)1., Florida Statutes, authorizes the Department to provide "assistance to local governments in the implementation of this paragraph and rule 9J- 5.006(5)(l)." (The cited rule, among other things, encourages "innovative and flexible planning and development strategies" that allow conversion of rural and agricultural lands to other uses.) The statute also includes specific authority to establish a "process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element (FLUE] as predominately agricultural, rural, open, open-rural, or a substantively equivalent land use, as a [RLSA] . . . ." The rule accomplishes this purpose by requiring state agency technical assistance, establishing the process for a workshop and site visit, requiring that the county's notification describe the basis for the designation, requiring broad public participation, and assuring, by approval or disapproval of the county's preliminary proposal, that the proposed RLSA will promote the principles of rural sustainability. Notably, had the Legislature intended this authorization process to be the same as the existing compliance review process for conventional plan amendments, there would be no need for this statutory language. The proposed rule does not exceed the Department's grant of rulemaking authority. b. Do certain provisions within proposed rule 9J-5.026(7) and (9) enlarge, modify, or contravene the law implemented? Petitioners further contend that proposed rules 9J- 5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and enlarge, modify, or contravene the specific provisions of law implemented. The challenged rules read as follows: 9J-5.026 Rural Land Stewardship Area (RLSA) * * * Data and Analysis Requirements. * * * Population Projections and Analysis of Land Use Need. Population projections and analysis of land use need shall be prepared in accordance with Rule 9J-5.006, F.A.C., with the following modifications: The amount and extent of allowable development in the RLSA must be based on the 25-year or greater projected population of the RLSA; the anticipated effect of the proposed RLSA must receiving areas, including any committed catalyst projects, infrastructure improvements, or other projects that would attract and support development; the furtherance of the statutory principles of rural sustainability; and the goals, objectives, and policies of the RLSA plan amendment. * * * 4. Land development and other conversion threats whereby rural resources under threat require more incentives via stewardship credits and less threatened resources require lesser incentives. This includes the future threat of low-density sprawl on lands within and surrounding Eligible Receiving Areas; and * * * 6. Values shall be assigned to all of the land in the RLSA. The highest values shall be assigned to the most environmentally valuable land, and to open space and agricultural land where the retention of such lands is a priority. The assignment of values shall be submitted with the RLSA plan amendment as part of the supporting data and analysis. * * * Stewardship Credit System Criteria. (a) Each credit shall represent a defined number of residential units or a defined amount of non-residential square footage. The credit transferee may decide whether to use the credit for a residential or non- residential use in accordance with the land use standards established for the Designated Receiving Area. * * * Goals, Objectives, Policies, and Map. * * * (a) The goals, objectives, and policies shall include the following: * * * 3. Identification of the innovative planning and development strategies to be used within the RLSA, and a process for implementing the strategies, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. The process shall include provision for the Department's review of a proposed land development regulation to designate a receiving area for consistency with the RLSA plan amendment. * * * 6. A requirement that Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values based on the land values analysis conducted pursuant to paragraph (7)(c). * * * Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RLSA. Provisions to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability. * * * The grant of authority for this rule is cited as Sections 163.3177(9) and (11)(h), Florida Statutes, while Sections 163.3177(2), (3), (6)(a), (8), (10)(e), (11)(a), (b), and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as the laws being implemented. Subsection (2) of the law being implemented provides that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process"; subsection (3) is a lengthy provision requiring that a comprehensive plan include a capital improvements element; paragraph (6)(a) describes in detail the matters that must be contained in the FLUE; subsection (8) requires that all elements of the comprehensive plan be based on data appropriate to the element involved; paragraph (10)(e) generally provides that support data and analysis shall not be subject to the compliance review process, but they must be based on appropriate data; paragraph (11)(a) describes the Legislature's recognition of using innovative planning and development strategies; paragraph (11)(b) expresses the intent of the Legislature to allow the conversion of rural lands to other uses, where appropriate, including urban villages, new towns, satellite communities, area-based allocations, clustering, and open space provisions, mixed-use development, and sector planning; and subparagraphs (11)(d)1., 2., 4., 5., and 6. describe the statutory process for creating an RLSA. Subsection (7) of the proposed rule sets forth the data and analysis requirements that apply to all RLSA plan amendments, including data and analysis of existing conditions (subparagraphs (7)(a)1. through 10.); population projections and analysis of land use (paragraph (7)(b)); and a land values analysis (subparagraphs (7)(c)1. through 6.). A land use needs analysis is an integral part of the planning process. Paragraph (7)(b) requires that an RLSA amendment be supported by population projections and an analysis of land use need such that the amount and extent of allowable development must be based on the 25-year or greater projected population of the RLSA, other items, and the anticipated effect of proposed RLSA receiving areas. Petitioners contend that this language contravenes Section 163.3177(11)(d)6., Florida Statutes, amended in 2005, which provides in part that the total amount of development "must enable the realization of the long- term vision and goals for the 25-year or greater projected population of the [RLSA], which may take into consideration the anticipated effect of the proposed receiving areas." See Ch. 2005-290, Laws of Fla. Paragraph (7)(b) does not contravene the terms of the statute. As expressed in the law being implemented, the rule directs that the need analysis shall be based upon, among other things, "the anticipated effect of the proposed RLSA receiving areas " As a part of the data and analysis to be supplied, paragraph (7)(c) requires that an RLSA amendment be supported by a land values analysis that considers six components described in subparagraphs 1. through 6. This in turn requires a comprehensive analysis of rural resources that exist within the RLSA. Subparagraph 4. requires that the analysis include the development threats to rural resources and that resources under threat of conversion receive more incentives from stewardship credits than resources under less of a threat. Petitioners contend that the rule contravenes Section 163.3177(11)(d)6.j., Florida Statutes, because it requires a greater value to be assigned to resources under threat of conversion and would result in other rural and natural and agricultural resources which may have a higher intrinsic value being assigned fewer credits. Specifically, the cited statute requires that "the highest number of credits per acre" should be "assigned to the most environmentally valuable land, or, in locations where the retention of open space and agricultural land is a priority, to such lands." The purpose of the rule is straightforward: to protect those resources that are under the greatest threat and those that are most susceptible to harm over time through land development or other changes, including urban sprawl. Contrary to Petitioners' assertion, the overall analysis does in fact consider all forms of rural resources in determining how the credits will be assigned. The rule implements the statutory directive of attaining the principles of rural sustainability. Subparagraph (7)(c)6. requires, among other things, that the local government submit as a part of the data and analysis supporting the plan amendment "the assignment of values" of all lands in the RLSA. Petitioners contend that assigning values at the time of the amendment "locks in these values" and would require a subsequent plan amendment in contravention of Section 163.3177(11)(d)6., Florida Statutes, which Petitioners argue contemplates the creation of credits after the adoption of the plan amendment. At hearing, however, the Department explained that because conditions will obviously change over time, the land values analysis will be periodically updated and can be changed without a new plan amendment. In their Proposed Final Order, Petitioners concede that given this interpretation of the rule, it "would not be an invalid exercise of delegated legislative authority." See Petitioners' Proposed Final Order, par. 73. Paragraph (8)(a) of the proposed rule requires each stewardship credit to represent either a defined number of residential units or non-residential square footage. Once the credits are created in sending areas, they can be transferred to designated receiving areas to be used to enable development that is consistent with the RLSA goals, objectives, and policies. Petitioners contend that the rule will prohibit mixed-use development in contravention of Section 163.3177(11)(d)4.c., Florida Statutes, which requires that the RLSA goals, policies, and objective provide for a "functional mix of land uses." There is no prohibition of a mix of land uses. In fact, the opposite is true. As clarified by a Department witness, "a mix is essentially required, as you can see from [sub]paragraph (9)(a)17., which describes that a mix of use must be addressed." Tr. at 273. The rule does not contravene the statute. Subsection (9) of the proposed rule generally requires that the RLSA plan amendment contain goals, objectives, policies, and a map. Subparagraphs (9)(a)1. through 21. require that the goals, objectives, and policies identify the innovative planning and development strategies to be used in the RLSA process, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. Petitioners allege that subparagraphs 3., 6., 18., and enlarge, modify, or contravene the law implemented. Subparagraph 3. requires "implementing plan amendments" because the Department recognized the fact that the RLSA planning process will consume years or even decades and will require implementing plan amendments to accomplish its purpose. This is especially true here as the RLSA process involves the development of large tracts of land (as much as 100,000 acres or more) that will take years or decades to fully implement and build out. At a minimum, under current law, the "implementing plan amendments" will include a capital improvements element annual update; water supply planning, and the designation of new towns. Except for the requirement that an implementing plan amendment designate a new town pursuant to existing Rule 9J-5.003(80), Petitioners agree that the proposed rule is valid. Because the cited existing rule has been determined to be valid, Petitioners' contention is rejected. See Findings 62-65, infra. Subparagraph 6. provides that the goals, policies, and objectives shall contain "a requirement that the Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values on the land values analysis conducted pursuant to paragraph (7)(c)." Petitioners contend that this provision limits the flexibility of local governments to determine the best location for Eligible Receiving Areas and therefore contravenes the provisions in various parts of Section 163.3177, Florida Statutes, that emphasize flexibility. The rule implements the principles of rural sustainability contained in Section 163.3177(11)(d)2., Florida Statutes. Only by directing development to land with the lowest environmental, agricultural, and rural resource value will an RLSA protect ecosystems, habitat, natural resources, and the agricultural economy. The rule does not contravene this statute. Subparagraph 18. requires an RLSA plan amendment to include policies for "new towns," including a requirement that a new town be designated on the FLUM. Petitioners contend that the requirement to designate a new town on the FLUM contravenes Section 163.3177(11)(4)(d)4., Florida Statutes, which provides for the implementation of the innovative planning and development strategies included in existing Rule 9J-5.006(5)(l) through zoning and land development regulations. At hearing, Petitioners narrowed their argument to this one feature in the rule. Because the Department may lawfully require that new towns be designated on the FLUM, subparagraph 18. is consistent with the statute implemented. See Findings 62-65, infra. Subparagraph 19. requires that RLSA plan amendments contain goals, objectives, and policies "to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability." Petitioners contend this provision contravenes Section 163.3177(11)(d)6., Florida Statutes, because it "impinges on existing land use rights which is contrary to one of the statutory principles of rural sustainability, namely the 'restoration and maintenance of the economic value associated with rural lands.'" The rule, however, furthers the principles of rural sustainability, as required by Section 163.3177(11)(d)1., Florida Statutes, since it requires that all lands within an RLSA, whether or not in a Designated Receiving Area, be developed in a manner that furthers those principles. It does not contravene the cited statute. Petitioners also contend that subparagraph 19. contravenes Section 163.3161(9), Florida Statutes, which requires, among other things, that all programs be applied "with sensitivity for private property rights and not be unduly restrictive." Petitioners surmise that the rule may operate to displace underlying density within the RSLA regardless of the use of the RLSA credit system. However, the rule does not displace any underlying density; it only requires that underlying rights be exercised consistent with the RLSA. More specifically, existing densities may be used in any manner that furthers the principles without displacing any of those densities. The rule does not contravene either statute. Is proposed rule 9J-5.026(3) vague and does it have inadequate standards for agency decisions? Petitioners next contend that subsection (3) of proposed rule 9J-5.026, and specifically certain words within the definition of the term "greenbelt," are vague and fail to establish adequate standards for agency decisions. That provision reads as follows: 9J-5.026 Rural Land Stewardship Area (RSLA) * * * (3) Definitions * * * (d) "Greenbelt" means a border of permanently undeveloped land sufficient in size to effectively preclude the expansion of urban development into the surrounding rural lands and to provide an effective buffer to protect the surrounding rural resources from development impacts. A greenbelt is an undeveloped area that surrounds an urban area, a new town, or other urban development and is meant to separate the urban developed area from the surrounding area to provide a border that protects surrounding rural lands from urban development. Petitioners contend that the use of the adjectives "sufficient," "effectively," and "effective" to describe the greenbelt buffer are vague and lack standards to guide agency determinations. In common usage, the word "sufficient" means that the greenbelt is sufficient in size to accomplish its purpose of precluding the expansion of urban development into the surrounding rural lands. Similarly, the word "effectively" means that the use or creation of a buffer to protect urban encroachment on rural lands will be accomplished in an effective manner. Likewise, the word "effective" simply means that the greenbelt achieves the purpose of creating a buffer. These phrases are easily understood by persons of ordinary intelligence, particularly when read in context with other provisions of the rule. See, e.g., Cole Vision Corp., et al. v. Dept. of Bus. and Prof. Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). Petitioners contend, however, that the rule fails to explicitly include the standard that site-specific data would be considered in determining the "sufficiency" of a buffer. However, this level of detail is not needed since site-specific information is typically considered and applied by the local government and Department through the planning process and might include, for example, the nature of the urban area, the potential impacts if the urban area is extended, the nature of the surrounding land, and other similar factors. The rule is not so vague or lacks sufficient standards as to be invalid. Is proposed rule 9J-5.026(9)(a)18. arbitrary? Petitioners further contend that subparagraph (9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule reads as follows: 18. Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RSLA. As noted earlier, this rule sets forth the requirements for policies in the RLSA plan amendment that are applicable to new towns. Petitioners contend that the rule is arbitrary because it "selectively emphasizes" a new town as only one of several innovative and flexible planning strategies set forth in existing Rule 9J-5.006(5)(l). To be arbitrary, a rule must not be supported by logic or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here, the more persuasive evidence shows that new towns are much larger development types; they are more intense than other development forms; and they will likely generate greater impacts. In an RLSA, they take on even more significance since the planning goal is to further the principles of rural sustainability. Collectively, these factors form a sufficient basis and rationale for giving new towns different treatment than other development forms that are smaller, have fewer uses, are less intense, and are more likely to have lesser impacts. The proposed rule is not arbitrary. e. Does existing Rule 9J-5.003(80) contravene the specific provisions of law implemented? Finally, Petitioners have challenged existing Rule 9J- 5.003(80), which became effective in 1994, on the ground that it contravenes the specific provisions of law implemented. That rule defines the term "new town" as follows: (80) "New town" means a new urban activity center designated on the future land use map and located within a rural area, distinct and geographically separated from existing urban areas and other new towns. A new town is of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns include basic economic activities; all major land use categories; and a centrally provided full range of public facilities and services. New towns are based on a master development plan. The specific authority for the rule, when adopted, was Section 163.3177(9) and (10), while the law being implemented was identified as Sections 163.3177 and 163.3178, Florida Statutes. Because Section 163.3178 involves coastal management, and a new town would probably not be located in a coastal zone, it has marginal relevance to this proceeding. The Department relies principally on Section 163.3177(6)(a), Florida Statutes, which requires, among other things, that "various categories of land use shall be shown on a land use map or map series."6 The existing definition provides, in part, that a new town will include "all major land use categories, with the possible exception of agricultural and industrial." Because they include numerous land use categories, new towns are by definition a mixed-use land use category. See Fla. Admin. Code 9J-5.006(4)(c). Mixed-use land use categories must be designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The future land use plan may designate areas for future planned development use involving combinations of types of uses"). As noted above, a new town is recognized in existing Rule 9J-5.006(5)(l) as an innovative and flexible planning option. Because the Legislature referenced this rule provision with approval four times in the RLSA statute, it must be presumed that the Legislature was expressing approval of the existing definition with the mapping requirement. See §§ 163.3177(11)(d)1. (two separate references); 163.3177(11)(d)4.c.; and 163.3177(11)(d)4.e. The rule does not contravene the statute being implemented.
The Issue Whether Palm Beach County Ordinance 2018-031 (“Ordinance”) is internally inconsistent with Palm Beach County’s 1989 Comprehensive Plan (“Comprehensive Plan”), and is, therefore, not “in compliance” with section 163.3177(2), Florida Statutes (2018); and whether the Ordinance fails to establish meaningful and predictable standards for the use and development of land or for the content of more detailed land development and use regulations as required by section 163.3177(1), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioner is a Florida limited liability corporation. Petitioner submitted written comments, recommendations, or objections to the County on October 30, 2018, during the period of time between the transmittal hearing and the adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167. The County exercises land use planning and zoning authority throughout unincorporated Palm Beach County. The Ordinance is a countywide, County-initiated Comprehensive Plan Text Amendment that would revise the FLUE to modify provisions for residential future land use designations. On July 13, 2018, the County Planning Commission conducted a properly noticed public hearing to review the proposed Plan Amendment and made recommendations to the Palm Beach County Board of County Commissioners (the “Board”) pursuant to chapter 163, Part II. One member of the public spoke in support of the amendment. The staff report that contained staff analysis regarding consistency with the Comprehensive Plan was made available to the Planning Commission prior to its deliberation. On July 20, 2019, Petitioner served a letter regarding the proposed Plan Amendment on Melissa McKinlay, Mayor and member of the Board. July 20, 2019, was three days prior to the date of the transmittal hearing for the proposed Plan Amendment. There was no evidence that the comments were received by Respondent on or after the date of the transmittal hearing. The July 20, 2019, letter stated that Petitioner “represents property owners located within the Palm Beach Farms plat in communities known as the Pioneer Road Neighborhood, the Gun Club Road Neighborhood, Monmouth Estates, and the Ranchette Road Neighborhood . . . . [Petitioner] has been active since early 2011 seeking to preserve the rural character of these communities.” Despite the foregoing, there was no competent substantial evidence adduced at the hearing to substantiate that Petitioner represented owners of property in any neighborhood other than the Pioneer Road neighborhood. On July 23, 2018, the Board conducted a public hearing to review the recommendations of the Planning Commission, and authorized transmittal of the proposed Plan Amendment to the state land planning agency and review agencies pursuant to chapter 163, Part II. The Board further directed staff to work with residents in the rural enclaves and to return with stronger language at the adoption hearing. Ten members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments at the transmittal hearing in opposition to the Plan Amendment. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. The state land planning agency issued a letter dated August 31, 2018, stating that the Agency “identified no comment related to important state resources and facilities within the Department’s authorized scope of review that would be adversely impacted by the amendment if adopted.” There were no other state agency comments received regarding the Plan Amendment. Subsequent to the transmittal public hearing, County staff worked with representatives from the Pioneer Road neighborhood and revised the language of the Residential Future Land Use amendment. On October 29, 2018, Petitioner sent a letter regarding the proposed Plan Amendment to Mayor McKinlay, service of which was apparently accepted by Denise Neiman, County Attorney. The evidence suggests that service was made on October 30, 2018, prior to the adoption of the Plan Amendment. On October 31, 2018, the Board adopted the Ordinance. The staff report and analysis regarding consistency with the Comprehensive Plan was made available to the Board prior to its deliberation. Five members of the public spoke in support of the Plan Amendment. There was no evidence that Petitioner, or any other person, spoke or presented written comments in opposition to the Plan Amendment, other than the October 29, 2018, letter described above. Existing Conditions The Pioneer Road neighborhood is approximately 550 acres of mostly Rural Residential property, interspersed with properties used for non-intensive commercial uses, such as plant nurseries and landscaping services. The Pioneer Road neighborhood contains between 175 and 220 developed home sites, many of which engage in light-scale personal agricultural uses (e.g., fruit trees, gardens, chickens, etc.). The neighborhood is served by private potable water wells and septic tanks. The Pioneer Road Area includes the Pioneer Road neighborhood, the Gun Club Road neighborhood, and surrounding low density Rural Residential enclave neighborhoods, and is but one of several neighborhood areas potentially affected by the Plan Amendment. Other rural neighborhood areas affected by the Ordinance include the State Road 7/Lantana Road Area and the Hyopluxo Road Area, each of which include a number of rural enclaves. The Plan Amendment The Plan Amendment is intended to revise the FLUE to modify provisions for the Future Residential Land Use designations. The Amendment, as described in the staff Final Report, is designed to: Recognize that there are Rural Residential areas within the Urban Suburban Tier that provide a valuable contribution to the housing diversity and lifestyle choices in the County. Establish that Agricultural Residential zoning is consistent with the urban residential future land use designations in the County. Recognize and support agricultural operations within residential future land use designations, including supporting the cultivation of agriculture and keeping of livestock. Provide additional specificity on the non- residential use location requirements in residential land use designations to ensure protection of residential neighborhoods. Allow Residential Multifamily Zoning on parcels with Medium Residential, 5 units per acre, future land use for properties using the Transfer of Development Rights or Workforce Housing Programs. The Plan Amendment applies countywide, and not to any specific neighborhood or property. Current neighborhood plans are considered when there are site-specific amendments. As related to Rural Residential enclaves, the Plan Amendment “will establish policy statements to direct growth away from those areas, or towards their edges,” and “will establish that the AR Zoning district is consistent with the urban residential zoning districts.” The Plan Amendment is also designed to “[r]ecognize and support agricultural operations within residential future land use designations, . . . including in the Urban Suburban Tier,” and restrict commercial vehicle activity and more intensive non-residential uses in residentially zoned areas except along major thoroughfares. Petitioner’s Challenge In its Amended Petition, Petitioner stated that the following amendments to the Comprehensive Plan “appear to recognize the existence and offer protection for the continuation of these Rural Residential Enclaves”: REVISE Policy 2.2.1-p: Rural Enclaves in Urban Service Area Application of Rural Standards. The County recognizes that there are long established rural residential enclave communities and homesteads in locations within the Urban/Suburban Tier that have Low Residential future land use designation. The County supports the continuation of those rural areas in order to encourage a high quality of life and lifestyle choices for County residents. In addition, within these areas In the Urban/Suburban Tier, the County may apply the ULDC standards for rural residential development as follows: in low density areas in Urban Residential future land use categories; on parcels presently used for agricultural purposes; or on parcels with a Special Agricultural future land use category. NEW Policy 2.2.1-w: The County shall adopt specific overlays in the Comprehensive Plan and/or Unified Land Development Code to protect the character of rural enclaves identified though the neighborhood planning process.[2/] Comprehensive Plan Policy 2.2.1-j, which is unchanged by the Plan Amendment, provides that: Table 2.2.1-j.1 establishes the consistent residential zoning and planned development district for the Residential Future Land Use Designations. In addition, within the Urban/Suburban Tier of the Glades Tier, the Agricultural Residential and Agricultural Production zoning districts are consistent with all residential future land use designations. As amended, Table 2.2.1-j.1 provides as follows: Table 2.2.1-j.1 Residential Future Land Use - Zoning Consistency1 Future Land Use Designation Consistent Zoning Zoning District Planned Development Agricultural Reserve AGR AGR-PUD Rural Residential AR4, RE5 RR-PUD, MHPD, RVPD Western Communities Residential AR PUD Low Residential AR4, RE, RT, RTS, RS PUD, TND, MHPD Medium Residential AR4, RE, RT, RS, RTU, RM/RH2 PUD, TND, MHPD High Residential AR4, RE, RT, RS, RM, RH PUD, TND, MHPD Congregate Living Residential3 RM PUD, TND, TMD, MUPD, MXPD3 The disputes raised in the Amended Petition were in “[t]he footnotes and caveats” to Table 2.2.1-j.1, which “will permit significant increases in future density, intensity and designs in a manner that will permanently and negatively alter the historic rural and unique character of these neighborhoods.” As pled, “the following three provisions completely undermine any effort to preserve the Rural Residential Enclaves”: REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 2 (RM District): The RM district is consistent with the MR-5 designation only for those areas properties that were zoned RM or RH prior to the Plan’s August 31, 1989 adoption or are 3+ acres utilizing the Transfer of Development Rights and/or Workforce Housing Program. REVISE Table 2.2.1-j.1 Residential Future Land Use – Zoning Consistency: Note No. 4 (AR Zoning) A lot with AR that was legally subdivided shall be considered a conforming lot. Properties with AR zoning with a residential future land use designation in the Urban/Suburban Tier are not required to rezone when subdividing for a residential use provided that the newly subdivided density is a maximum of 1 unit per acre, or when developing a non-residential use that is allowed in AR. Policy 2.2.1-n Non-Residential Uses Criteria. NEW Subsection (5). More intense non-residential uses may be allowed in residential zoning districts along major thoroughfares and roadways that are not residential streets. In addition to the foregoing, Petitioner alleged that the following deletion renders the Ordinance inconsistent with the Comprehensive Plan, and inconsistent with the Plan Amendment: 4. DELETE Language from FLUA Regulation Section Land Development Regulations in the Urban Service Area, Urban/Suburban Tier. The County may apply the ULDC standards for rural residential areas in the Urban/Suburban Tier in low density areas in the Residential future land use designations which are used for agricultural purposes, or on parcels with a Special Agricultural (SA) land use category. Areas within the Urban Service Area/Suburban Tier may be suitable for agricultural use throughout the implementation period of the Plan. It is not the intent of the Plan to encourage premature urbanization of these areas; however, agricultural uses are expected to convert to other uses consistent with the Plan when those agricultural uses are no longer economically viable. Agricultural uses permitted in the residential land use designation must be compatible with the protection of the residential lifestyle and quality of life. Table 2.2.1-j.1, footnote 2 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 2, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. As amended, revised Table 2.2.1-j.l, footnote 2, applies only to “RM/RH” zoning districts, and provides that “[t]he RM district is consistent with the MR-5 [Medium Residential/5 units per acre] designation only for those properties that were zoned RM [Residential Multifamily] or RH [Multifamily Residential High Density] prior to the Plan’s August 31, 1989 adoption, or when properties of 3 or more acres in size within an MR-5 designation qualify for a higher density through the Transfer of Development Rights and/or Workforce Housing Program density bonus programs.” The plain language of revised Table 2.2.1-j.l, footnote 2, establishes that it applies only to the MR-5 future land use designation, and only to properties that were either zoned as RM or RH before August 31, 1989, or that qualify for the listed density bonus programs. The three-acre threshold was established to prevent single lots in established MR-5 neighborhoods from increasing density out of character with the neighborhood. Prior to the amendment of footnote 2, if a property owner proposed new development on property with an MR-5 land-use designation and more than three acres of land and proposed to utilize Transfer of Development Rights or the Workforce Housing Program for a density increase, the property owner was limited to a Planned Unit Development (PUD). The amendment allows the application of the density bonus in an RM zoning district. Revised Table 2.2.1-j.l, footnote 2, is designed to foster infill development on MR-5 designated parcels that may be too small to be developed as a PUD. Furthermore, footnote 2 does not bypass the requirements of the Land Development Code Article 5 Density Bonus Programs, and applicants are still required to comply with those application review and approval processes. Finally, Petitioner’s expressed concern is the effect of the Plan Amendment on AR designated rural enclave communities such as the Pioneer Road neighborhood. Amended footnote 2 does not apply to AR zoning districts. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 2, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, or that it improperly increases density. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 2’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Table 2.2.1-j.1, footnote 4 In its Amended Petition, Petitioner alleged that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policies 2.2.1-w and 2.2.1-p of the Plan Amendment. However, in his testimony, Mr. Crosby focused exclusively on the alleged inconsistency with Policy 2.2.1-w, not mentioning or otherwise offering evidence regarding inconsistency with Policy 2.2.1-p. Petitioner argues that the footnote allows property owners to immediately subdivide their property to one unit per acre without review, rezoning, or going through the typical process if they are in the AR zoning district. As to the alleged inconsistency with new Policy 2.2.1-w, neither footnote 4, nor any other provision of the Plan Amendment, creates a specific overlay that can be compared for consistency with the authority for, but not the implementation of, the creation of future overlays. Petitioner failed to demonstrate, through competent, substantial evidence, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with new Policy 2.2.1-w of the Plan Amendment. As to the alleged inconsistency between revised Table 2.2.1-j.l, footnote 4, and new Policy 2.2.1-p, the evidence demonstrated that the County implemented the Managed Growth Tier System to protect viable existing neighborhoods and communities, and to direct the location and timing of future development within five geographically specific Tiers -- Urban/Suburban, Exurban, Rural, Agricultural Reserve, and the Glades. Table 2.2.1-g.l of the FLUE establishes maximum density for Residential Future Land Use Designations. The lowest density designation in the Urban/Suburban Tier is Low Residential, one unit per acre (LR-1) designation, which allows up to one unit per acre. According to existing Table 2.2.1-j.l, the AR zoning district is not currently consistent with Low Residential (LR), Medium Residential (MR), and High Residential (HR) Future Land Use Designations. As set forth in Table III.C, LR, MR, and HR Future Land Use Designations are allowed within the Urban/Suburban and Glades Tiers. Through a review of County records, it was determined that there were thousands of acres of land currently zoned AR in the Urban/Suburban Tier. Thus, under the existing tiered land use designations, those AR zoned parcels were inconsistent with the Comprehensive Plan. Accordingly, the Plan Amendment revised Table 2.2.1-j.l to add AR zoning districts as being allowable in LR, MR, and HR Future Land Use Designations, thus making AR zoning districts consistent in the Urban/Suburban Tier. Revised Table 2.2.1-j.l, footnote 4, applies to AR zoning districts within the Rural Residential (existing), and the LR, MR, and HR Future Land Use Designations (added). The requirement for AR zoned properties to rezone with a maximum LR-1 density of one unit/acre is eliminated because such properties, with the proposed Plan Amendment, will be consistent with LR, MR, and HR Future Land Use Designations within the Urban/Suburban Tier and, thereby, maintain their agricultural residential uses. Proposed Policy 2.2.1-p recognizes that there are established rural residential enclaves within the Urban/Suburban Tier that have an LR Future Land Use Designation, and affirms the County’s support of the continuation of those rural areas. Allowing properties with LR Future Land Use Designations to subdivide up to one unit/acre does not increase density, as the LR Future Land Use Designation currently allows up to one unit/acre without the Plan Amendment. Policy 2.2.1-p is unchanged in establishing that the County may apply its Uniform Land Development Code (“ULDC”) standards for rural residential development in low density and agricultural future land use categories. Petitioner failed to prove, beyond fair debate, that revised Table 2.2.1-j.l, footnote 4, is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w, that it improperly increases density, or that any existing County subdivision regulations would not apply. Furthermore, Petitioner, having failed to offer any evidence as to revised Table 2.2.1-j.l, footnote 4’s, inconsistency with revised Table 2.2.1-p, failed to meet its burden with regard to that element of its Amended Petition. Policy 2.2.1-n.5. Revised Policy 2.2.1-n.5. is designed to direct more intense non-residential uses allowed in residential areas to properties “along major thoroughfares and roadways” and away from residential streets. In its Amended Petition and Mr. Crosby’s testimony, Petitioner alleged that revised Policy 2.2.1-n.5. is inconsistent with new policy 2.2.1-w regarding the adoption of specific overlays to protect “the character of individual rural enclaves identified through the neighborhood planning process.” As indicated previously, the Plan Amendment did not create a specific overlay to compare for consistency with the authority for, but not the implementation of, the creation of future overlays. Revised Policy 2.2.1-n.5. is designed to direct allowable non-residential uses to the periphery of residential communities “along” the major thoroughfares, which is not the same as “in proximity” to major thoroughfares. Pursuant to proposed Policy 2.2.1-n.5., local residential streets are not to be subject to commercial vehicle activity (other than home businesses), and more intense non-residential uses in residentially-zoned areas will be limited to those with access to major thoroughfares. The more restrictive language is intended to protect residential neighborhoods in any Managed Growth Tier. Revised Policy 2.2.1-n.5. cannot be read in isolation from other provisions of Policy 2.2.1-n, including the existing requirements that non-residential uses, when being permitted, be consistent with the Comprehensive Plan, and that their density and intensity be comparable and compatible with the adjoining residential area, and revised Policy 2.2.1-n.6., which requires conditions of approval of the non-residential uses “to ensure compatibility with surrounding residences.” Petitioner failed to prove, beyond fair debate, that revised Policy 2.2.1-n.5. is inconsistent with the Comprehensive Plan, including new Policy 2.2.l-w. Deleted Language Petitioner failed to offer any evidence as to the language deleted from the FLUA Regulation Section to demonstrate that it rendered the Plan Amendment inconsistent with the Comprehensive Plan. Petitioner therefore failed to meet its burden with regard to that element of its Amended Petition. County’s Evidence The County introduced competent, substantial testimonial and documentary evidence that the Plan Amendment is consistent with the Comprehensive Plan FLUE, Section I.C. “County Directions,” paragraphs 1, 2, 4, 5, and 15. The Plan Amendment promotes the protection of established neighborhoods, fosters agriculture uses, establishes that existing rural neighborhoods within the Urban/Suburban Tier cannot be replaced, and will manage growth in a manner to protect these areas. The County demonstrated that the Plan Amendment is designed and intended to direct growth towards activity nodes and centers and along major thoroughfares, and promote redevelopment and urban infill in appropriate areas of the County. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.1 “Managed Growth Tier System” by maintaining a variety of housing and lifestyle choices, enhancing existing communities, protecting land for agriculture, and providing opportunities for agriculture. The County introduced competent, substantial testimonial and documentary evidence that the proposed Plan Amendment is consistent with the Comprehensive Plan FLUE, Section II., Objective 1.2 “Urban/Suburban Tier - Urban Service Area,” Policy 1.2-a by protecting the character of rural enclaves through the promotion of agriculture and home-based commercial uses that are compatible with the neighborhoods, while directing increased density away from the center of rural neighborhoods.
Conclusions For Petitioner: Benjamin Crosby, Qualified Representative Palm Beach Farms Rural Preservation Committee, LLC 7425 Wilson Road West Palm Beach, Florida 33413 Troy W Klein, Esquire Law Office of Troy W. Klein, P.A. Suite 1B, Barristers Building 1615 Forum Place West Palm Beach, Florida 33401 For Respondent: Kim Phan, Esquire Jason Tracey, Esquire Palm Beach County Attorney's Office Suite 359 300 North Dixie Highway West Palm Beach, Florida 33401
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Palm Beach County as Ordinance 2018-031, on October 31, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes; and that Petitioner’s challenge was not brought for an improper purpose as defined in section 120.569(2)(e), Florida Statutes, or section 120.595(1), Florida Statutes. DONE AND ENTERED this 8th day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th 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 Whether the amendment to the Wakulla County Comprehensive Plan adopted by the Board of Commissioners of Wakulla County in Ordinance No. 2002-28 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact Wakulla County Wakulla County sits on the western side of the Big Bend, an area of Florida that joins its panhandle to the state's peninsula separating the Gulf of Mexico and the Atlantic Ocean. Bounded on the north by Leon County, on the east by Jefferson County, on the west by Franklin and Liberty Counties, and on the south by the Gulf, more than 67 percent of the land area of Wakulla County is in public ownership. The bulk of publicly owned lands is in the Apalachicola National Forest. The land area of the County under public ownership is designated Conservation on the County's Future Land Use Map (the FLUM). Under the County's Comprehensive Plan only publicly- owned lands may be designated Conservation. The publicly-owned land lies mostly in the western portion of the County although it extends into the eastern half at the County's southern edge along the coast. Accordingly, almost all of the land area available for development to serve the population, including the City of Crawfordville, lies within the eastern portion of the County. There are two Urban designations under the County's Comprehensive Plan: Urban-1 and Urban-2. There are three areas in the eastern half of the county that have received Urban designations: Panacea and Shell Point, on the coast, and an area in and around the City of Crawfordville. Viewed on a percentage basis, Wakulla County has emerged recently as one of the fastest growing counties in the state. Professionals and retirees account for some of this growth and have served to increase the demand for new subdivisions with homes larger than traditional homes in the county. Geomorphology One of the most distinctive aspects of the County is its geomorphology. It lies entirely within the Gulf Coastal Lowlands physiographic province described by Florida Geological Survey's Bulletin No. 60 as: . . . characterized by generally flat, sandy terrain [that] extends from the coast inland to approximately the 100 foot contour line. In the panhandle of Florida, the east-west trending Cody Scarp forms the boundary between the Gulf Coastal Lowlands and the topographically higher Tallahassee hills to the north. In Wakulla County, the Gulf Coastal Lowlands include the poorly-drained pine flatwoods, swamps, and river basins that extend from the Gulf north into Leon County . . . . [T]he Gulf Coastal Lowlands are locally divided into a series of geomorphic subzones. (Petitioners' Ex. 60, p. 4). A geomorphic subzone that occupies almost all of the eastern half of Wakulla County is the Woodville Karst Plain. The Woodville Karst Plain With extensions into southern Leon County and western Jefferson County, the Woodville Karst Plain takes up almost all of the eastern part of Wakulla County, that is the portion of the county east of the Apalachicola National Forest. It is described by the Florida Geographical Survey, (FGS) an entity within the Department of Environmental Regulation as follows: East of a line drawn roughly north-south through the towns of Crawfordville and Panacea, the topography is comprised of an essentially flat veneer of sand overlying karstic limestone bedrock. Elevations average less that 35 feet above [mean sea level]. * * * The Woodville Karst Plain comprises the entire eastern portion of Wakulla County. Bounded on the west by the Apalachicola Coastal Lowlands, it extends eastward into Jefferson County and north to the Cody Scarp. A surface veneer of generally less than 20 feet of quartz sand lies on the karstic St. Marks Formation and Suwannee Limestone. The result is a topography of low sand dunes and sinkholes sloping gently towards the coast. Vegetation patterns on the plain vary with the degree of drainage. High and well-drained relict sand dunes at the north edge of the plain support a flora of pines, black-jack, and turkey oak trees. In contrast, wetter areas to the south are populated by cypress and bay trees . . . . Id., p. 7. The distinctiveness of the geomorphology of eastern Wakulla County is due to the Woodville Karst Plain's numerous karst features. Karst Features Karst features result when the limestone bedrock has been eroded by acidic rain water. If the erosion is sufficient to dissolve through the limestone sub-strata in a vertical fashion, there occur sinkholes or "Karst windows," a direct connection between the surface water and the aquifer. A wetland may be a karst feature, as well, although geologic tests are necessary to confirm whether a wetland is, in fact, a karst feature. A karst aquifer like the one below the Woodville Karst Plain is a limestone aquifer where extensive dissolution of limestone has occurred as the result of the acidic water interacting with it. If one were to examine the plain from above with the perspective of seeing the holes in the rock that lead to the aquifer, the plain would look like Swiss cheese. Because of the scattering of karst windows, sinkholes, caves and other features that give Karst topography a resemblance to Swiss cheese, Karst topographies like the Woodville Karst Plain are "typically highly vulnerable to contamination." Id. In karst settings where the aquifer is unconfined, as in the case of the Woodville Karst Plain, common contaminants such as fertilizers or household chemicals that reach or are deposited on the land surface are rapidly recharged to the aquifer through percolation or overland flow to a sinkhole. The Woodville Karst Plain's nature as an area of high recharge to the Floridan Aquifer is also promoted by its thin layer of clean sand that overlies the limestone. There are karst features, such as sinkholes, caves, springs and wetlands associated with these features throughout the State of Florida. These features put the state in a "fairly unique position." (Tr. 365). Among the prominent karst features in the Woodville Karst Plain that were the subject of evidence at the hearing are three: Wakulla Springs, the Spring Creek series of submarine spring vents, and Swirling Sink, the sinkhole into which Lost Creek flows at its termination not far from the Property at issue in this proceeding. Wakulla Springs A prominent feature of the Woodville Karst Plain, Wakulla Springs is a system of caves or conduits through which underground water flows before reaching the surface. It is located to the northeast of the Property at issue in this proceeding. Pollutants affecting Wakulla Springs come from the City of Tallahassee upgradient from the Springs. The contamination "stems from storm events, rain events, and runoff from the City of Tallahassee." (Tr. 391). The evidence in this proceeding did not establish that development on the Property will create adverse impacts to Wakulla Springs because the Property is downgradient from Wakulla Springs. There is another set of springs at issue in this proceeding for which the evidence leads to different conclusions: the fresh water springs the waters of which flow from Spring Creek through Karst features to discharge into the salt waters of the Gulf. Spring Creek Springs The Spring Creek submarine group, a series of seven spring vents that discharge fresh water into the Gulf of Mexico, begin at Spring Creek, five or six miles to the southeast of the property. Like Wakulla Springs, water flows through caves and conduits before emerging. Unlike Wakulla Springs in which the water flows only to the surface of land, waters from the Spring Creek group flow into the Gulf of Mexico. Freshwater springs in the state of Florida are estimated to number nearly 600. A first magnitude spring is one that "produce[s] the greatest amount of water." Petitioners' 54, p. 9. Of Florida's 33 first magnitude springs, the Spring Creek submarine group is the largest. The Spring group, therefore, is also the largest spring of the 600 or so in our State, the totality of which "may be the largest concentration of freshwater springs on Earth." Id., at 1. "Florida's Springs, Strategies for Protection and Restoration," prepared for the Secretary of the Department of Environmental Regulation and the Citizens of the State of Florida, by The Florida Springs Task Force in November of 2002, was data available to the County and DCA when the Amendment was considered. It states: A spring is only as healthy as its recharge basin . . . The groundwater that feeds springs is recharged by seepage from the surface through direct conduits such as sinkholes. Because of this, the health of spring systems is directly influenced by activities and land uses within the spring recharge basin. (Petitioners' Ex. 54, p. 11). The Florida Geological Survey is in the Division or Resource Assessment and Management in the Department of Environmental Protection. Its Special Publication No. 47 (the Special Publication), is entitled "The Spring Creek Submarine Group, Wakulla County, Florida," and is dated 2001. It states that "[g]round-water flow in the karst drainage system of the upper Floridan aquifer system of the Woodville Karst Plain is likely controlled in part by the fracture (lineament) pattern in the carbonate bedrock . . . ." Petitioners' No. 61, p. 10. A lineament is a "geologic term for a linear fracture or fault that typically is observed either in the field or through photographic analysis." (Tr. 395). The question "would . . . karst features be part of what caused a geologist to conclude that a lineament was present," elicted this response from Tim Hazlett, Ph.D., an expert in hydrogeology: Yes. The karst features and the lineaments typically coincide in karst environments because the lineaments provide preferential pathways for flows, so you'll get sinkholes, for example, that line up along a lineament. That's very typical in a karst situation. Id. The narrative in the Special Publication refers to Figure 7 which shows the fracture pattern of lineaments that run along Lost Creek and then continues in a southeasterly direction to Spring Creek. The Figure indicates "[p]ossible underground flow from Lost Creek to Spring Creek." Petitioners' No. 61, p. 11. The Special Publication states that "[b]ased on the predominant ground-water pattern of the Woodville Karst Plain, and the trend of the lineaments associated with both Lost Creek and Spring Creek, it is postulated that the upgradient source of groundwater supplying the Spring Creek springs is, at least in part, the surface water from Lost Creek. Lost Creek Originating in the Apalachicola National Forest just north of the county line, Lost Creek flows to the southeast. After crossing the Leon County line, it rambles roughly nine miles through forested lands in Wakulla County. The creek terminates when it turns underground into Swirling Sink, a sinkhole at a point southwest of the center of Crawfordville. As Intervenor Suber states in review of Petitioner Lambou's testimony, "Lost Creek is a surface stream that flows from Leon County, southeast through western Wakulla County to the western edge of the Woodville Karst Plain, where it disappears underground approximately a mile west of Crawfordville at a bridge at U.S. 319." Intervenor's Proposed Recommended Order, Para. 53, p. 15. When Lost Creek floods, waters to the southeast of the point at which the creek "disappears" form a sump or bowl in an area of low elevation that is contained within the bounds of State Road 319, State Road 98 and Rehwinkle Road. Also contained within these bounds and in the midst of the sump is the site of that with which this proceeding is concerned: the Property. The Property The Property is a 266-acre undeveloped tract located in the County off of Rehwinkel Road southeast of the City of Crawfordville. Formerly owned by St. Joe Timber Company, it is now owned by David F. Harvey, Rhonda K. Harvey, and L. F. Young. The timber company had used the Property for silviculture. The owners intend to sell it to Brad Suber for development purposes. The Property is bisected by a bay/cypress wetland. It occupies "on the order of 85 . . . [to] 86 acres" (tr. 580) of the Property. The wetland is described by others including Intervenor Suber as "large" (Suber PRO, p. 4, para. 13). The acreage it occupies on the Property will be referred-to in this order as the "Large Wetland." A report entitled "Environmental Report on Vegetation Communities, Wetlands, Protected Species and Wildlife on Rehwinkel Road Parcel Wakulla County, Florida" was prepared by Florida Environmental & Land Services, Inc., at the request of Intervenor Suber. On page 3 of the report, the Large Wetland is described: AREA 5 - Large bay/cypress wetland through center of parcel. This area comprises approximately 85 acres of the parcel. The swamp characteristics were similar throughout the swamp (except in AREA 9). Dominant tree species include bald cypress, black gum, red maple, sweetbay magnolia, and swamp tupelo. Many of the titi individuals were large enough to consider in the canopy layer. There were few shrubs other than titi and young individuals of the canopy species. There was essentially no groundcover layer because of long inundation periods, the winter sampling and a closed canopy. The trees showed evidence of long periods of inundation such as lichen lines, buttressing, hummocking, and stained trunks. There was heavy inundation within the access roads. No flows were evident. Joint Ex. 2, p. 367, (e.s.) The reference to the acreage of the Large Wetland was not intended to be a "definitive wetland delineation," rather "it was intended to just give an idea of [the] size . . . of the [Large] [W]etland . . . " (Tr. 859). Other evidence of record, however, establishes that the approximation was quite accurate. (See paragraphs 56 and 57, below). The Large Wetland occupies at least 85 acres of the Property. A delineation using an acceptable current methodology could yield a figure significantly more than 85 acres. Portions of the Large Wetland are within the 100-year flood plain and are subject to flooding. The Large Wetland extends roughly from the east side of the Property to the west where it connects with the Lost Creek watershed. The Property also contains a portion of an isolated cypress swamp and numerous small wet depressional areas, each less than two acres in size, on the Northern Portion of the site. The acreage of wetlands in the Northern Parcel is not included in any reference in this order to the acreage of the Large Wetland. The Property does not currently contain any significant residential or non-residential development or structures. Near-by Land Uses The Property is contiguous to land with the following FLUM designations: Urban-1 and Agriculture to the north; Rural- 1 and Rural-2 to the east and southeast; and Agriculture to the southwest and west. Lands located to the north, east and southeast of the Property are developed with scattered low density residential uses or are vacant. These lands include nearby agricultural land and a 1,100-acre tract recently re-designated Rural-1 from Agriculture. Land use bordering the property on the south, southwest and west is Agriculture. There is also a golf course to the south. The designation of use of the land bordering the Property on the southeast is Rural-2. Rural-1, Rural-2, and Agriculture Rural-1, also referred to by the Wakulla County Comprehensive Plan (the Plan) as "Agriculture/Rural Fringe," is a conventional agriculture and low density residential designation. Residential densities in the Rural-1 future land use category are one unit per five acres on paved County or state roadways, or one dwelling unit per ten acre on unpaved roadways. Rural-2, the designation of twenty of the acres of the Property re-designated by the Ordinance, is described in the Plan: Description - This designation provides for development of rural areas near emerging urban areas with a range of agricultural, residential, and supporting limited commercial activities. In addition, this classification includes some existing subdivisions. Specific areas for residential and commercial development in this designation are not shown on the map but are governed by the policies in this section which include criteria for the different kinds of development. (Joint Ex. 3, FLUE-8). The description states that existing rural enclaves, those "isolated from traditional rural or urban services such as central water and sewer service" (id.), are also identified by the Rural-2 designation. Industrial uses are prohibited in Rural-2. Commercial development on arterial and collector roads subject to conditions is permitted. Public land use including schools subject to certain conditions is permitted. Residential development is permitted, as are "[g]eneral agriculture and forestry activities . . . along with accessory activities." Id. The density limitations for residential in Rural-2 are "up to one (1) unit per two (2) acres with central water service or one (1) dwelling unit per five (5) acres without." Id., at FLUE-8 and 9. Actual density permitted, however, is based on access: Where average lot sizes (exclusive of open space in cluster or PUD developments) are less than (5) acres, each lot shall have frontage on a paved public road or on a private road maintained by an owners association and meeting the standards of Traffic Circulation Element Policy 2.3. Where average lot sizes . . . are greater than five (5) acres but less than ten (10) acres, each lot shall have frontage on a public road or on a private road meeting [certain standards]. Where average lot sizes . . . are ten (10) acres or more, access shall be provided. Id., at FLUE-9. The Plan has requirements for calculating residential density in areas that are wetlands or habitats for threatened or endangered species or wetlands. Habitat density is "maintained at the residential land use density for that land use designation." Id. Wetland density is "at an overall density of one (1) unit per twenty (20) acres." Id. Agriculture is also referred to in the Plan as "Primary Agriculture." Description - This designation is designed to address large scale timber industry and/or farming activities on privately owned property, along with limited non- agricultural uses. Joint Ex. 3, p. FLUE-4, Future Land Use Policy 1.2.2.(1). Uses allowed include forestry and agricultural uses and processing activities, including ancillary processing uses such as sawmills, residential uses at a maximum overall density of one unit per 20 acres, and public uses. Id., Policy 1.2.2.(2) and (3). Application for a Map Amendment The process that led to the Ordinance's passage in October of 2002 commenced on December 28, 2001, with the submission of the Owners' application for a comprehensive plan map amendment. The Owners applied for an amendment that changed all 266 acres, the 246 acres of Agriculture and the 20 or Rural- 2, to Urban-1. Urban-1, is also referred to in the Plan as "Urban Fringe." Description - This designation provides for higher density development in rural areas which are near urban areas or which are intended to become urban during the planning period. When full urban services are in place, an area designated for Urban-1 shall be converted to Urban-2 through the plan amendment process. This designation also accommodates existing clusters of development not strictly consistent with the Rural designation. Joint Ex. 3, p. FLUE-10, Future Land Use Element Policy 1.2.5.(1). Permitted uses under Urban 1 include residential and commercial development. Public uses including schools are permitted under certain circumstances. Light industrial and manufacturing uses may be permitted subject to location and compatibility standards. Among the density/intensity limitations in 1.2.5 of the Plan are residential at one unit an acre where no central sewer is available and at two units an acre where soil tests determine suitability for septic tanks and where central water is available. Under the proposed amendment, therefore, the maximum density allowable on 266 acres of Urban-1 would be 524 units. As explained elsewhere in this order, however, only 202 acres were re-designated Urban-1, making 404 units the maximum density pursuant to the re-designation. Transmission to DCA The proposed map amendment and two proposed text amendments were transmitted to DCA for review on May 6, 2002, with copies to various review agencies. Included in the plan amendment transmittal package was a copy of a recorded agreement entered by the property owners and Wakulla County entitled "A Development Agreement Restricting the Density of a Comprehensive Plan Amendment." Joint Ex. 1, p. The agreement restricts development on the 266-acre property "to facilitate the Owner's request" to "residential density maximum of one dwelling unit to the acre of uplands and developed on central sewer and water" Joint Ex. 1, p. 65. The restriction "shall run with the land and permanently restrict the use of the said land." Id. p. 66. Despite the maximum density allowable under the Amendment of 404 units, the Development Agreement restricts maximum density to 202 units. Development Agreements are data. Nonetheless, as explained by Charles Gauthier, the DCA's Chief of the Bureau of Local Planning, The review of future land use map amendments needs to be based on the maximum development potential available through the comprehensive plan. Development agreements, while important information, are outside the plan, so the level of development or other commitments in a development agreement aren't part of the direct plan or review, but its important information to understand the specific development agreement that's occurring. (Tr. 118, 119). This testimony is taken to mean that DCA review of a Comprehensive Plan Amendment must be conducted on the basis of maximum allowable density under the Amendment even if that density is restricted by the Development Agreement. Other data in the agreement, however, such as data related to provision of public services is relevant to a "compliance" determination. Regional Planning Council Objection On June 13, 2002, the Apalachee Regional Planning Council (RPC) issued its report. The RPC objected to the map amendment proposed by the Owners on four grounds, each followed by a recommendation. The first three objections related to density, commercial use and access. The RPC recommended density of no more than one unit per acre, retention of square footage policies concerning commercial development and provision of additional access. The fourth objection and recommendation concerned wetlands and floodplain areas: Objection 4: Of the 266 acres proposed to be changed to Urban 1, approximately 100-110 acres are wetland and 130-140 acres are within the 100 year floodplain. Recommendation: Do not include the wetland and floodplain areas in the land use change. Joint Ex. 2, p. 204. State Agencies Other Than DCA The Department of Environmental Protection (DEP) reported its review of the proposed change in a letter dated June 18, 2002. It provided comments and recommendations, also expressing concern about wetland and flood plain area protection: As indicated in the site assessment reports provided, a significant portion of the Rehwinkel Road Parcel is located within Flood Zone A on the Wakulla County Flood Insurance Rate Map, Panel #120315 0250 B (1983). The flood plain wetlands at the center of the site contain drainage soils (primarily Lakeland, Otela and Ortega sands). The uplands to the north also contain numerous wet depressional areas - likely karstic sinkhole features. The Department recommends that the proposed residential development be limited to upland areas outside of Flood Zone A and that wetland/floodplain areas be given a conservation designation to prevent encroachment after initial construction. Prior to finalizing infrastructure development plans for the subject parcel, delineation and state verification of the landward extent of wetlands should be obtained, in accordance with the guidelines of Rule 62-340, F.A.C. Because the proposed development would be located on highly- permeable soils adjacent to seasonally inundated areas, we recommend that the applicant consider a full range of planning strategies to buffer wetlands/floodplain, limit impervious surfaces and treat stormwater to protect groundwater and nearby surface water resources. The proposed central water and sewer systems will reduce potential water quantity and quality impacts from potable water well withdrawals and septic tank system contamination. Early coordination of project plans with the Department's Northwest District Branch Office in Tallahassee is recommended to facilitate infrastructure design and prevent future permitting problems. Joint Ex. 2, p. 205. The Department of State reported that an archaeological site is recorded as a "general vicinity" site adjacent to the Property and that "aboriginal 'house' sites" are reported throughout the area. Id., p. 192. It stressed the "county's responsibility to ensure its historic sites and properties are considered when land use changes occur" and recommended "that the county sponsor a systematic survey of this parcel before allowing any changes in land use which will increase its density or intensity." Id. The Department of Transportation (DOT) had no objections, comments or recommendations as of its June 4, 2002, communication by letter with DCA. The communications from the RPC, DEP, Department of State, and DOT were reviewed by DCA prior to its issuance of an ORC Report. ORC Report Issuance of an "Objections, Recommendations and Comments" Report (an ORC) by the Department of Community Affairs is done whenever DCA has problems with a comprehensive plan amendment that could lead to a finding that the amendment was not in compliance if left unresolved. An ORC was issued to Wakulla County for the proposed FLUM amendment. The ORC, under cover of a letter to the Chairman of the Wakulla County Board of Commissioner dated July 18, 2002, stated the following: Objections, Proposed Amendment 3: The proposed map amendment does not demonstrate the suitability of this site for development considering the extensive wetlands and floodplains in the areas that are proposed for conversion to the Urban-1 Future Land Use Category. The proximity to the water table to the land surface, existing karst sinkhole features, extensive wetlands and 100 year floodplain indicate a high potential for water quality degradation and ground water contamination. Development of the southwestern portion of the site would require constructing road access through extensive wetlands and would place the singe access road within the 100 year floodplain. Potential isolation of this site during floods creates the potential for public safety, emergency management and evacuation problems. The proposed amendment is not consistent with Rule 9J-5.006(2)(b)1. and (2)(e), FAC, concerning site suitability; Rule 9J-5.-- 6(3)(b)4, requiring protection of natural resources; Chapter 163.3178(d)(d) concerning public evacuation during natural disasters; and Rule 9J-5.006(2)(c) and Chapter 163.3177(6)(a) concerning need analysis. Recommendations: The land use change should be limited to the northern parcel with road access. The large, contiguous areas of wetlands and floodplain areas and the southern isolated parcel should not be included in this proposed land use change to the Urban-1 Future land Use Category at this time. Designation of the wetland areas as Urban on the FLUM implies a development potential. Wetlands and floodplains should be designated appropriately on the FLUM to prevent encroachment from incompatible land uses. Currently, the Conservation Future Land Use Category as written in the County's comprehensive plan is intended only for publically [sic] owned lands. This category could be amended to also afford protection to environmentally sensitive, privately owned land. A needs analysis of the Urban 1 and 2 areas of Crawfordville should be done to support the need for the proposed land change. Consistency with Chapter 187, Florida Statutes. The proposed amendment is not consistent with the following provisions of Chapter 187, FS: !87.201(10), FS, [sic] concerning the protection of ecological systems such as wetlands. 187.201(16), FS, concerning direction development to areas that can accommodate growth in an environmentally acceptable manner and the separation of urban and rural uses. By addressing the objections noted in Section I., these inconsistencies with Chapter 187, FS, can be addressed. Joint Ex. 2, p. 223-4. An ORC Report provides an opportunity for DCA to raise questions about a proposed plan amendment and seek additional information. If the local government rejects DCA's recommendation, that does not necessarily mean that a plan amendment will be found not in compliance. Response to the ORC In response to the ORC, the County left 64 acres of the Large Wetland under the Agriculture designation. It did so after determining the Large Wetland to constitute 63.8399 acres of the Property. In computing the size of the Large Wetland, the County did not follow DEP's recommendation that it use the delineation methodology prescribed by Rule 63-340, Florida Administrative Code. Instead, the County used a Florida Land Use, Cover and Forms Classification System map, (the FLUCCS), the source of which was "FDEP," that shows the Large Wetland to be "63.8399 acres," (Joint Ex. 2, p. 196, 197), or slightly less than 64 acres. No data other than the FLUCCS was used by the County in determining the size of the wetland. The 64 or so acres identified on the FLUCCS was omitted from the proposed land use change and was left under the pre-amendment Agriculture designation as suggested by DCA in its ORC. Other available data, existing at the time of the Amendment, such as an orthoquad aerial depiction, demonstrate that the Large Wetland is significantly larger than 64 acres. Using soil maps and a planimeter, as explained by Petitioners' witness Craig Diamond: . . . generated large[] numbers. The flood plain is far greater than the wetlands on site, and the soils maps . . ., includes some . . . soils that are saturated or that exhibit moderate constraints with regard to drainfields. You . . . end up with number greater than 85 acres . . ., it's up in the hundred acre-plus range. (Id.) The decision of the County to leave only 64 acres of the Large Wetland was not based on the best available data. Use of available data existing at the time of the Amendment and that is better than the FLUCCS, such as aerial photography, soil maps, topographical maps and floodzone maps would have yielded a much higher number of acres than 64, just as did the approximation submitted with the proposed plan amendment by Mr. Suber. The size of the Large Wetland is at least 85 to 86 acres, and may be significantly greater. The Future Land Use Map Amendment On October 21, 2002, Wakulla County amended its Future Land Use Map (the FLUM). The Amendment was accomplished with the passage of Ordinance Number 2002-28, (the Ordinance) by the Board of County Commissioners of Wakulla County. The Amendment is described in the body of the Ordinance in technical terms: Future Land Use Map: Herein adopts the FLU Map revision as shown on the FLU Map dated October 21, 2002, consisting of: A revision or modification resulting from the adoption of the proposed County FLU Map Amendment Application Number CP01-05 of Amendment Cycle 2002-02, as cited in the ORC report by the Department of Community Affairs, from Agriculture and Rural-2 to Urban-1 Land Use Designation; Joint Ex. 1, Ordinance Number 2002-28, Amendment Ordinance, Page Three, Section 2. In essence, the Amendment changed to Urban-1, two FLUM designations of the Property in Eastern Wakulla County. The designations were changed from Rural-2 as to 20 acres of the Property and from Agriculture as to 182 acres of the Property. The 64 acres of the property not re-designated as Urban-1 remained designated as Agriculture. Given the configuration of the 64 acres of the Property left under the Agriculture designation, there are three separate parcels in the Property that were re-designated Urban- One is a portion on the Property north of the parcel (the Northern Parcel) that contained the 20 acres that had been Rural-2, as well as acres that had been agriculture. The second is a small portion to the northwest of the property (the Sliver) that is surrounded, for the most part by the Large Wetland. The third is a portion on the Property south of the Large Wetland (the Southern Parcel). Transmission to DCA, Review and an "In Compliance" Determination The Map Amendment was transmitted to DCA for review on November 1, 2002. On December 11, 2002, DCA issued its Notice of Intent to find the adopted Map Amendment in compliance. On January 30, 2002, the Apalachee Regional Planning Council approved a recommendation from its staff that the Amendment was consistent with the Apalachee Strategic Regional Policy Plan. In the meantime, on January 2, 2003, DCA received the petition for formal administrative hearing that initiated this proceeding. The Parties Petitioners Robert Alessi, Ronald Capron, Chad Hanson, Victor Lambou, and David Westmark are all residents of Wakulla County and owners of property in the county. Alessi and Capron live adjacent to the site of the FLUM Amendment that is the subject of this proceeding. All five of the Petitioners submitted written or oral comments to Wakulla County during the period of time between transmittal of the Amendment to the Department for review and final adoption of the Amendment by Wakulla County. Wakulla County (the County) is a local government subject to the provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The County adopted the Amendment found "in compliance" by DCA that is the subject of this proceeding. The Department of Community Affairs (DCA or the Department) is the state land planning agency. It has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (the Growth Management Act). Among its responsibilities is the review of local government comprehensive plans and amendments pursuant to the Growth Management Act. The Department's Notice of Intent to find the contested Amendment "in compliance" is the agency action that is at issue in this proceeding. Intervenor Brad Suber is a resident of Wakulla County. He is the developer and contract vendee of the property that is the subject of this proceeding. Mr. Suber's contract with the Property's Owners obligates him to pursue the Amendment, zoning and permits for development of the property at his sole expense. Mr. Suber hired experts necessary to prepare and process the plan amendment application. Like the Petitioners, he also submitted written and oral comments to the County during the period of time between transmittal of the Amendment to DCA and final adoption of the Amendment by Wakulla County. The parties agree that the Petitioners and Intervenor Suber are affected persons as defined by the Growth Management Act with standing to participate in this proceeding. Petitioners' Challenge Petitioners raise issues that fall into seven categories: (1) failure to protect wetlands and other environmental resources; (2) lack of water and sewer; (3) flooding (4) lack of supporting data and analysis; (5) urban sprawl (6) lack of need for the amendment; and, (7) internal inconsistency with the existing Wakulla County Comprehensive Plan. Wetlands and Environmental Resources The County requires protection of the 100-year flood plain, prohibits disturbance of wetlands except to avoid a taking, requires that predevelopment water quality of wetlands be maintained, and requires that the water quality of Wakulla County's groundwater resources be maintained at or above state standards. Development is allowed in flood plains under the County's Plan, and flood plains are common throughout the eastern part of the County. The Comprehensive Plan's Objectives and Policies mitigate the impacts of a future land use map amendment. They do not excuse, however, an FLUM amendment that is based on data that is convincingly incorrect. The DRASTIC Maps referred to in Infrastructure Element Policy 1.3.1(2), show that all of eastern Wakulla County is in one of the environmentally sensitive categories. The Plan allows the use of septic tanks in these areas because if septic tanks were prohibited in environmentally sensitive areas, the limitation on development in eastern Wakulla County would be severe. The applicant submitted an environmental assessment of the property with the original plan amendment application. Figure 3 in the environmental report identifies the soil types and soil distribution on the property based on the U.S. Department of Agriculture's Soil Survey of Wakulla County, Florida, the data source referenced in Future Land Use Element Policy 5.12. Table 8 in the Soil Survey indicates whether the various soil types have slight, moderate, or severe constraints for the use of septic tanks for various types of buildings. The southern parcel is comprised of Lakeland sand and Otela fine sand. Both are considered upland soil types with only slight constraints for the use of septic tanks for dwellings without basements. The northern parcel consists of several soil types with the following constraints for use of septic tanks for dwellings without basements: 21 Lakeland Sand (predominant type) slight 17 Ortega fine sand slight 14 Ridgewood fine sand moderate 7 Otela fine sand slight 35 Rutledge severe Each of the above soil types is considered to be an upland soil, except for Rutledge soil located in the flood plain portion of the northern parcel. In addition, Plummer soil with severe constraints for use of septic tanks are located on the small area to the west of the northern parcel. These are not large areas compared to the remaining property and are not proposed for development in Mr. Suber's conceptual site plan. Soils with severe constraints are subject to state and local permitting standards at the development stage to insure that groundwater is not adversely affected. The Urban-1 future land use category authorizes residential uses at a density of two units per acre where soil tests determine suitability for septic tanks and where central water is available. The use of septic tanks on the property could adversely affect water quality by increasing the level of nitrates in the groundwater. The Wakulla County Comprehensive Plan contains the following objectives and policies related to septic tanks and water quality: OBJECTIVE 5: Development activities shall ensure the protection of natural and historic resources, and shall be limited where severe topographical and/or soil conditions exist. The land development codes shall be revised to implement this objective and the following policies: Policy 5.12: Proposed development in areas of severe soil limitations or topographic conditions, as identified in the U.S. Department of Agriculture, Soil Conservation Service, Soil Survey of Wakulla County, Florida (dated March 1991), shall be subject to density limitations and performance standards. The land development regulations shall establish these limitations and standards, including, but not limited to, the requirement that all development not served by sewer systems meet Florida Department of Health and Rehabilitative Services (HRS) standards for septic systems, Rule 10D-6, F.A.C., and requirements that certification of soil suitability be submitted for the technical review process prior to permitting of commercial buildings. Policy 7.5: All development in areas without central sewer services shall be governed by the provisions of section 381.0065, F.S., regulating on-site sewage disposal systems, and Chapter 64E-6, F.A.C., which regulates the installation of individual sewerage disposal facilities, unless otherwise specified. (Joint Ex. 3, pp. FLUE-23, 26, 28, Future Land Use Element.) OBJECTIVE 1.3: The County will implement mandatory requirements for inspections, operations and maintenance of on-site wastewater treatment systems. Policy 1.3.1: Use of on-site wastewater treatment systems shall be limited to the following conditions: * * * (2) Use of septic tank systems or alternative systems for new development will be allowed subject to modification in areas that are environmentally sensitive based on FDEP's "DRASTIC" map and other sources deemed appropriate. Policy 1.3.3: Issuance of all development orders or permits will be conditioned upon demonstration of compliance with applicable federal, state and local permit requirements for on-site wastewater treatment systems. (Joint Ex. 3, pp. IE-3, 4, Infrastructure Element.) Findings related to Wetlands and Natural Resources are in paragraphs 6-26 and 28-33, above. Sewer and Water Currently, there are no water or sewer services at the site of the Property. Subject to amendment of the City of Sopchoppy's Comprehensive Plan, water to the Property can be provided by City of Sopchoppy Water, as stated in the plan amendment application and as relayed to the County Planning Commission and Board of County Commissioners by Mr. Suber's engineer. County sewer lines are located within one or two miles of the Property in two locations. Although the provision of sewer services to the Property is the responsibility of Wakulla County, any sewer lines run to the Property will be constructed at the expense of the owners or developer. The lines will be conveyed to the County. Joe Richey, the County's Director of Community Development, testified that Wakulla County is the sewer provider, and that capacity is available to serve development of the subject property. Capacity is a term that relates to the size of the sewer plant. The existence of "capacity" does not mean the County has a plan or intends to provide sewer lines. Department staff recommended that DCA not find the amendment in compliance in part because there was no corresponding amendment to the capital improvements schedule setting out the time frame for when public facilities would occur, who was going to pay for them and who was responsible for maintaining them. While the County may not have a plan, the developer would be responsible for running sewer lines to the property and would turn the lines over to the County under the Development Agreement between the County and the property owners. The agreement reflects the commitment of both that the subject property be served by central sewer. There is no requirement that a local government have a future conditions map for water and sewer facilities. At some time before development on the subject property occurs, the County's Plan should be amended to reflect the provision of sewer services to the property if it is developed on sewer. It is not necessary, however, that Wakulla County amend its Capital Improvement Element of its Plan to reflect the provision of sewer service to the property concurrent with the subject future land use map amendment. The plan amendment application, the Development Agreement and the testimony at hearing reflect that the Property will be developed with central water and sewer. Flooding Department staff testified there was not enough information provided by the County on flooding problems associated with the Amendment: great deal of Wakulla County is in various hurricane evacuation zones . . . because of the limitations of the site being in a hundred-year flood plain and in a wetlands system, . . . if a hurricane or a storm event came through and the property was flooded, there would be difficulty evacuating the residents from that property. [DCA Staff] felt like the County had not provided us information to refute that. (Tr. 91, 92). But Joe Blanchard, Director of Wakulla County Emergency Management, testified that there is adequate road capacity on Rehwinkel Road to evacuate residents of 404 units, the maximum allowed under the Amendment. Director Blanchard also testified that if 404 units were built on the Property and were to be evacuated in the event of flooding, that there is not currently capacity to shelter them but that there is hope to have adequate shelter soon: We probably do not [have adequate shelter for 404 new units at the Property] . . . [T]hrough a grant hopefully we will have the Shadeville School very soon approved. It is now approved as a shelter, it just doesn't have the shutters in place. Once the Shadeville School is complete, we will have a surplus of shelter space. (Tr. 1089). He was not asked a question about current capacity to shelter residents of the 202 units to which the Property is restricted by the Development Agreement. "Storm surge is the abnormal rise in water level caused by the wind and pressure forces of a hurricane or tropical storm. Storm surge produces most of the flood damage and drownings associated with storms that make landfall or that closely approach a coastline." Petitioners' Ex. 21, Introduction. Most of the Property would be inundated by storm surge during a Category 2 Hurricane, a hurricane with less force and storm surge than a Category 3. (See Petitioners' Ex. 21, Plate No. 5. Petitioners offered no evidence at hearing, other than Mr. Blanchard's reference to evacuation in the event of a Category 3 hurricane, of the contents of an applicable county or regional hurricane evacuation plan. Data and Analysis Following the staff recommendation, DCA determined that "the data was somewhat weak and the analysis was weak, but . . . relevant, and given the nature of the amendment, ultimately appropriate." (Tr. 117). The data concerning the size of the Large Wetland was not merely weak. It was incorrect. It was also determined above the staff level at DCA that "there was a lack of adequate issues . . . adverse impacts to find the amendment not in compliance . . . essentially . . . there was a lot of smoke but no real fire with the amendment . . . [because] the staff recommendation was more based on the incomplete analysis." (Tr. 120, 121). From this record, it appears that with regard to wetlands incorrect data was used by the County. This data was not corrected when DCA conducted its review that led to its finding of "in compliance." Furthermore, the analysis conducted after the staff recommendation did not include available data and analysis that indicate adverse impacts to natural resources related to the Large Wetland. It must be recognized that each future land use category in the County's Plan that allows residential use contemplates that wetlands will be included in the category and limits densities in those wetlands. Furthermore, there is no express statutory or rule prohibition against including wetlands in a land use category that authorizes development, and the County's Plan, which does just that, has been found in compliance. That is not to condone, however, an amendment that is founded on incorrect data or incomplete analysis. This record demonstrates that the amendment designated at least 21 acres of the Large Wetland as Urban-1 and that the designation poses a potential for pollution to groundwater and surface waters. The amendment is not supported by available data and analysis concerning the wetlands and the impact development could have on natural resources. The County did not react to available data with regard to the wetlands and natural resources in an appropriate way when it designated 202 acres of the Property Urban-1. Need Both Intervenor's expert land use planner and the County's Director of Community Development testified that there is a need for the map amendment. The opinion of Intervenor's expert is generally based upon the location of the property adjacent to the urbanizing Crawfordville area; the fact that the number of units potentially authorized by the map amendment is largely offset by urban lands acquired by the state and federal governments in the Coastal High Hazard Area (CHHA) that are no longer available for urban development; continuing state acquisition efforts in environmentally sensitive areas; the relatively few future land use map amendments for residential uses that have occurred since Plan adoption; and an analysis of population projections compared to the residential development potential of the various future land use categories under the County's Comprehensive Plan. Rule 9J-5.006(2)(b) provides: (2) Land Use Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. * * * An analysis of the character and magnitude of existing vacant and undeveloped land in order to determine its suitability for use, including, where available: 1. Gross vacant or undeveloped land area . . . . Wakulla County has not tracked development and does not have information available on undeveloped land. Since Rule 9J-5.006(2)(b)1. expressly requires an analysis of vacant or undeveloped land area only if the data is available, the amendment cannot be found not "in compliance" for failure to comply with Rule 9J-5.006(2)(b)1. Rule 9J-5.006(2)(c) requires: An analysis of the amount of land needed to accommodate the projected population, including: The categories of land use and their densities or intensities of use; The estimated gross acreage needed by category; and A description of the methodology used. The Property is located immediately adjacent to the City of Crawfordville urban area and other lands designated Urban-1 on the County's Future Land Use Map. The Courthouse in Crawfordville is the center of the County and is approximately 1.2 miles from the property. Crawfordville is the County seat where public buildings and services are located. It is the County's employment center, with banks, grocery stores, beauty salons, and other businesses, all within a few miles of the property. The only other areas of the County designated for urban development are in Panacea and Shell Point. Both of these areas are within the CHHA. The County's Comprehensive Plan contains policies to discourage high-density growth in the CHHA, direct population concentrations away from the CHHA, and limit public expenditures that subsidize development in the CHHA. It is more appropriate to encourage development adjacent to the growing Crawfordville area than in the CHHA or other areas of the County. In 1999, the State of Florida acquired 41 acres in the CHHA in Panacea for conservation and recreation land uses. This land is designated Urban-2 on the County's Future Land Use Map. The maximum potential residential density on the 41 acres acquired by the State was 164 dwelling units. In 2001, the federal government acquired 90+ acres near Shell Point for a wildlife refuge. This property is also in the CHHA and is designated Urban-1 on the County's Future Land Use Map. The maximum potential residential density on this 90+ acre acquisition is at least 180 dwelling units. Wakulla County is in the process of preparing a plan amendment to change the use of land for all government acquisitions of land that have occurred in the County. Based on the Future Land Use Map, all such acquisitions are redesignated to the Conservation future land use category, which is consistent with the public purposes for which the lands are acquired. The Amendment at issue in this case will result in a maximum potential increase of 375 residential units on the property, based strictly on the density limitations in the future land use categories. The combined maximum potential density on the properties acquired by the State and federal governments is 344 residential units. If the maximum development potential on the subject property is offset by the maximum development potential of the recently acquired public lands, the Amendment will increase the overall maximum potential residential density in Wakulla County by only 31 dwelling units. The analysis of Intervenor's expert contained a number of computational errors. These errors did not affect the offset of the loss of residential land purchased by government. Urban Sprawl When taken as a whole, the Amendment does not contribute to urban sprawl. The property abuts urban areas near the "downtown" section of Crawfordville. It is within a development corridor for the County. It is a relatively small parcel of land. Internal Inconsistency Petitioners contend that the Amendment produces an internal inconsistency because policies of the conservation element relied upon for protection against adverse impacts to wetlands and natural resources have not been implemented by the County through the adoption of land development regulations. The Department responded with an explanation of its scope of review of amendments to comprehensive plans: [DCA's] assumption and . . . review [is] based on the policies in the plan, and [the] premise that these polices were followed through on. The Department does not have any direct purview over land development regulations or development permits . . . [I]f third parties believe the County had not put land development regulations in place or had in place inconsistent regulations or was issuing inconsistent development permits, Chapter 163 offers different challenge mechanisms for those matters. [DCA] review is . . . based on the corners of the plan and the policies of the plan . . . (Tr. 178, 179).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the amendment to the Future Land Use Map of Wakulla County's Comprehensive Plan passed by Ordinance 2002-28 of the Board of Commissioners of Wakulla County be determined to be not "in compliance." DONE AND ENTERED this 11th day of July, 2003, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of July, 2003. COPIES FURNISHED: Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100 Terrell K. Arline, Esquire 3205 Brentwood Way Tallahassee, Florida 32308-2705 Debra A. Swim, Esquire 1323 Diamond Street Tallahassee, Florida 32301 Donna Biggins, Esquire 515 North Adams Street Tallahassee, Florida 32301 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Sherry A. Spiers, Esquire Law Offices of Robert C. Apgar, P.A. 320 Johnston Street Tallahassee, Florida 32303
The Issue The issue in this case is whether comprehensive plan future land use map amendment (FLUMA) 07-L25, adopted by Marion County Ordinance 07-31 on November 20, 2007, which changed the FLUM designation on 378 acres of Urban Reserve and on 17.83 acres of Rural Land to Medium Density Residential, is "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The parcel that is the subject of the FLUMA at issue (the Property) is approximately 395.83 acres in size. The existing FLUM designation for 378 acres of the Property is Urban Reserve, and the remaining 17.3 acres are designated as Rural Land. Both designations allow a maximum of 1 dwelling unit per 10 acres. The FLUMA would change the designation of the entire parcel to Medium Density Residential (MDR). MDR generally allows up to four dwelling units per acre. However, Future Land Use Element (FLUE) Policy 12.5.k, which also was adopted as part of County Ordinance 07-31, limits the maximum density on the Property to two dwelling units per acre. FLUE Policy 12.5.k also requires: that development on the Property "be served by central potable water and central sanitary sewer services available concurrent with development" and be a Planned Unit Development "to address site design, buffering, and access issues"; and that NW 90th Avenue be reconstructed from U.S. Highway 27 north to the north-eastern corner of the Property and that all traffic facility improvements needed at the NW 90th Avenue/U.S. 27 intersection, including signalization if approved by the Florida Department of Transportation, be constructed prior to the issuance of any certificates of occupancy for the Property. Finally, with respect to the 17.3 acres formerly designated as Rural Land, FLUE Policy 12.5.k defers compliance with the County's Transfer of Development Rights (TDR) Program until application for assignment of a zoning classification for the land. Petitioners' Challenge Intervenors own the Property. Petitioners own property nearby in Marion County. Intervenors and Petitioners commented on the proposed FLUMA between transmittal to DCA and adoption by the County. Petitioners contend: The FLUMA is not consistent with the stormwater drainage, retention, and management policies contained in Policies 1.1.a. and 1.1.d. of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Comprehensive Plan. MDR is not suitable or compatible with existing and planned development in the immediate vicinity, as required by FLUE Policy 12.3 of the Comprehensive Plan. The Board of County Commissioners failed to evaluate the FLUMA's impact on “the need for the change” as provided in FLUE Policy 12.3 of the Comprehensive Plan. The FLUMA fails to take into account its impact on “water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding,” as required by Section 187.201(15)(b)6., Florida Statutes. The FLUMA is not consistent with Transportation Policy 1.0 of the Comprehensive Plan, which states: "Marion County shall create and maintain transportation facilities that operate in a safe and efficient manner within an established level of service." The FLUMA is not consistent with the State's Comprehensive Plan in that it does not "ensure that new development is compatible with existing local and regional water supplies," as required by Section 187.201(7)(b)5., Florida Statutes. The FLUMA does not direct development away from areas without sediment cover that is adequate to protect the Floridan Aquifer and does not prohibit non-residential uses within 200 feet of a sinkhole, solution channel, or other karst feature, in violation of FLUE Policy 4.2 of the Comprehensive Plan. The FLUMA does not comply with Section 187.201(7), Florida Statutes, concerning the protection of surface and ground water quality in the State. Recharge Sub-Element Policy 1.1.a. and d. Policy 1.1 of the Natural Groundwater Aquifer Recharge Sub-Element of the Infrastructure Element of the Marion County Comprehensive Plan provides in part: The County’s land development regulations shall implement the following guidelines for stormwater management consistent with accepted engineering practices by October 1, 2007: Stormwater retention/detention basin depth will be consistent with the water management district's storm water requirements for Karst Sensitive Areas so that sufficient filtration of bacteria and other pollutants will occur. Avoidance of basin collapse due to excessive hydrostatic pressure in Karst Sensitive Areas shall be given special consideration. * * * d. Require the use of swales and drainage easements, particularly for single family residential development in Karst Sensitive Areas. These are requirements for land development regulations (LDRs); they do not apply to comprehensive plan amendments. In any event, the evidence did not prove that the site is unsuitable for the density allowed under the adopted FLUMA due to karst features. The admissible evidence presented by Petitioners regarding stormwater management in karst topography generally related to flooding problems on the property contiguous to the Property, and to a karst feature referred to as the “63rd Street Sinkhole,” which is located in the general vicinity of the Property. Fay Baird, an expert hydrologist called by Petitioners, testified that the 63rd Street Sinkhole allows stormwater run- off to enter the upper aquifer. Ms. Baird testified generally of the problems and concerns regarding development and stormwater management systems in karst topography. She testified that the Property should be properly inventoried, that specific karst features should be identified, and that any stormwater system designed or developed should take into account karst features to protect against groundwater contamination and flooding. She testified that she had not been on the Property, had not seen or reviewed core borings or other data to determine the depth and nature of the sub-surface, and was not in a position to provide opinions as to whether or not a particular stormwater management system would or could adequately protect against her concerns. Intervenors’ expert, Richard Busche, testified that a stormwater management plan like the one recommended by Ms. Baird was being developed. Compatibility under FLUE Policy 12.3 FLUE Policy 12.3 provides in pertinent part: Before approval of a future land use amendment, the applicant shall demonstrate that the proposed future land use is suitable, and the County will review, and make a determination that the proposed land use is compatible with existing and planned development in the immediate vicinity . . . . Petitioners argued that the proposed MDR development of the Property is incompatible with surrounding agricultural uses. Actually, the Property is surrounded by a mixture of agricultural and residential uses, including residential subdivisions, a golf course, and scattered large-lot residential and equestrian uses. The properties immediately to the south and east of the Property are developed residential properties and are designated MDR. Before the FLUMA, most of the Property was designated Urban Reserve under the County's Comprehensive Plan. Such land "provides for expansion of an Urban Area in a timely manner." FLUE Policies 1.24.B and 2.18. "For an Urban Reserve Area to be designated an Urban Area, it must be compact and contiguous to an existing Urban Area, and central water and sewer must be provided concurrent with development within the expanded area." FLUE Policy 2.18. The Property is compact and is contiguous to existing Urban Area designated MDR. This indicates that the County already has planned for timely conversion of the Urban Reserve land on the Property to urban uses, including MDR. It also means that the County already has determined that at least certain urban uses, including MDR, are compatible with adjacent agricultural uses. The Property is in the receiving area under the County's Farmland Preservation Policy and TDR Program in FLUE Objectives 13.0 and 13.01 and the policies under those objectives. This means that the County already has determined that residential density can be transferred to the Property from the Farmland Preservation sending areas to increase residential density up to one dwelling unit per acre. See FLUE Policy 13.6. This would constitute Low Density Residential, which is an urban use under the County's Comprehensive Plan. See FLUE Policy 1.24.A. By establishing the Farmland Preservation Policy and TDR Programs, the County already has determined that Low Density Residential is compatible with adjacent Rural Land. In addition, Low Density Residential clearly is compatible with MDR. Although not raised in the Petition, Petitioners argued that the Urban Reserve and Farmland Preservation eastern boundary was improperly moved west to NW 90th Avenue. However, that change was made prior to the adoption of Ordinance 07-31 and the FLUMA at issue in this case and is not a proper subject of this proceeding. Demonstration of Need under FLUE Policies 13.2 and 12.3 FLUE Policy 13.2 provides: The Transfer of Development Rights program shall be the required method for increasing density within receiving areas, unless, through the normal Comprehensive Plan Amendment cycle, an applicant can both justify and demonstrate a need for a Future Land Use Map (FLUM) amendment. FLUE Policy 12.3 provides: Before approval of a future land use amendment, . . . the County . . . shall evaluate its impact on: The need for the change; The availability of facilities and services; The future land use balance; and The prevention of urban sprawl as defined by Rule 9J-5.006(5)(g), Florida Administrative Code. The evidence proved that the County interprets FLUE Policy 12.3 to require need and future land use balance to be assessed within the planning districts it has established. There is no need for additional MDR in the County's Planning District 5, where the Property is located. To accommodate the projected population increase in Planning District 5 by 2010, which is the planning horizon for the County’s Comprehensive Plan, an additional 644 dwelling units are needed. There are 1,893 vacant acres of MDR available in Planning District 5. At four units per acre allowed in MDR, the County has an available supply of 7,572 MDR dwelling units in Planning District 5. In the absence of a need in Planning District 5, the County relied on a need demonstration prepared for the Intervenors by Fishkind and Associates.6 Besides being a County-wide analysis instead of a planning district analysis, the Fishkind analysis assumed a planning horizon of 2015, rather than the 2010 horizon established in the Comprehensive Plan. Finally, the Fishkind analysis applied an allocation factor to the total projected need for residential use, most of which already is supplied, resulting in a projection of residential far in excess of the incremental need for additional residential land by 2015, much less by 2010. The result of the Fishkind approach was to allocate enough land for residential use to meet the County-wide projected incremental need for additional residential land use for approximately 45 years, which is five times the calculated incremental need for 2015. Even assuming that a County-wide demonstration of need complied with Marion County's Comprehensive Plan, this is much too high an allocation ratio to use to meet the incremental need projected for a 2015 plan, much less for a 2010 plan. The expert for Intervenors, Stanley Geberer, defended the Fishkind analysis in part by stating that it was comparable to demonstrations of need accepted by DCA in other cases. However, there was no evidence that the facts of those other cases were comparable to the facts of this case. Mr. Geberer also asserted that holding the County to its 2010 planning horizon would make it impossible for the County to plan for the future. However, nothing prevents the County from revising its Comprehensive Plan to plan comprehensively for a longer timeframe. There was no evidence of any other circumstances that would demonstrate a need for the FLUMA at issue in this case. State Comprehensive Plan Policy 187.201(15)(b)6. Petitioners did not prove that the FLUMA fails to take into account its impact on "water quality and quantity, the availability of land, water and other natural resources to meet demands, and the potential for flooding." To the contrary, the evidence was that those items were taken into account as part of the FLUMA. (However, as to the FLUMA's impact on the availability of land to meet demands, see "Demonstration of Need under FLUE Policies 13.2 and 12.3," supra.) Transportation Element Objective 1.0 Transportation Element Objective 1.0 provides: Marion County shall create and maintain transportation facilities that operate in an efficient and safe manner within established levels of service. Petitioners presented no expert testimony or admissible evidence that the FLUMA will change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. Intervenors presented the testimony of Jonathan Thigpen, an expert traffic engineer, who prepared and submitted to the County a Traffic Impact Study and testified that the FLUMA would not change established levels of service or result in transportation facilities operating in an unsafe or inefficient manner. The ultimate need for transportation improvement, such as turn lanes and traffic lights to mitigate the impacts of development under the FLUMA, will be determined at later stages of development. Petitioners suggested that the FLUMA will result in delays caused by additional traffic, frustrate drivers waiting to turn east on U.S. 27, and induce large numbers of them to seek an alternative route to the north through agricultural areas, some of which have inadequate slag roads. However, Petitioners failed to prove that this result is likely. State Comprehensive Plan Policy 187.201(7)(b)5 Petitioners presented no evidence that the designation of MDR on the Property is incompatible with existing local and regional water supplies. The evidence was that adequate local and regional water supplies exist. Even if they did not exist, the consequence would be less development than the maximum allowed by the FLUMA. FLUE Policy 4.2 FLUE Policy 4.2 provides in pertinent part: In order to minimize the adverse impacts of development on recharge quality and quantity in high recharge Karst sensitive and springs protection areas, design standards for all development shall be required and defined in the LDRs to address, at a minimum, the following: * * * f. Directing development away from areas with sediment cover that is inadequate to protect the Floridian [sic] Aquifer. * * * h. Prohibiting nonresidential uses within 200 feet of a sinkhole, solution channel, or other Karst feature. This policy sets forth requirements for the content of LDRs, not FLUMAs. Petitioners presented no evidence that sediment cover on the Property is inadequate to protect the Floridan Aquifer or that any non-residential uses would be constructed within 200 feet of a sinkhole, solution channel, or other karst feature under the FLUMA. Marion County has adopted amendments to its Comprehensive Plan to protect springs and karst features.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department determine the FLUMA at issue in this case to be not "in compliance" and take further action as required by Section 163.3184(9)(b), Florida Statutes. DONE AND ENTERED this 4th day of February, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2009.
The Issue The issue in this case is whether the Small Scale Comprehensive Plan Amendment No. 2003-03 adopted by Escambia County (County) through enactment of Ordinance No. 2003-40 (Plan Amendment) is "in compliance," as that term is defined by Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties Petitioner, Gregory L. Strand, resides in Escambia County, Florida. Petitioner submitted oral written comments to the County at the adoption hearing on August 7, 2003, regarding the Plan Amendment and Ordinance No. 2003-40. The parties agree that Petitioner has standing in this proceeding. The County is a political subdivision of the State of Florida. The County adopted a Comprehensive Plan (Plan) which has been subjected to a sufficiency review by the Department of Community Affairs (DCA), and found "in compliance." The Property T. Riley Shipman, Sandra I. Shipman, and Betty J. Shipman (Shipman's) own the 8.98-acre parcel (parcel) that is the subject of the Plan Amendment. The total contiguous land owned by the Shipmans is approximately 12.7 acres. The parties stipulated that the legal description of the property attached to Ordinance No. 2003-40 contains less than 10 acres. The parcel extends 850 feet east of, and parallel to, the right of way of Blue Angel Parkway, and north of Sorrento Road, but does not front on Sorrento Road. The future land use designation of the 250-foot width of the property that fronts Blue Angel Parkway is Commercial, with only approximately 150 feet outside of the road right-of-way. Two single-family homes, a mobile home, and a storage building are located on the parcel. A Wal-Mart Super Store is at the intersection of Blue Angel Parkway and Sorrento Road, across Blue Angel Parkway from the parcel. Approximately 3,300 acres across Blue Angel Parkway west of the parcel is managed by the State of Florida's Board of Trustees of the Internal Improvement Trust Fund, and preserved as part of the Pitcher Plant Prairie. Two man-made lakes are located on the parcel. Wetlands likely exist on the parcel. The parcel is surrounded by LDR future land use, and proximate to Commercial future land use to the west. The zoning for the parcel is Commercial (C-1). The County's Comprehensive Plan In 1993, the County adopted its Comprehensive Plan and associated FLUM. The Plan established an area of Commercial future land use following Blue Angel Parkway from just south of Sorrento Road and Dog Track Road. The area is approximately 450 feet to 500 feet wide, and centers on and curves with the road. The result is a future land use of Commercial for the 250 feet of the subject parcel fronting on Blue Angel Parkway, with approximately 150 feet outside of the road right-of-way. The balance of the property is LDR. The Small Scale Development Application On or about May 28, 2003, the Shipman's agent filed a "Future Land Use Map Amendment Application" with the County. The application requests a change in the FLUM category or designation for the 8.98-acre parcel from LDR to Commercial. In part, the change was sought so that the property could be used for ". . . small businesses that could be represented in an area where large businesses already have been permitted." The application was reviewed by the County's Department of Growth Management staff and presented to the Escambia County Planning Board (Planning Board). Staff prepared a "Memorandum" which recites, in part, a positive staff recommendation. A Staff Analysis was prepared which analyzes the existing and proposed land uses in and around the parcel which is described above. The Staff Analysis also favorably evaluates infrastructure availability, such as potable water, sanitary sewer, solid waste disposal, stormwater management, traffic, and recreation and open space. Comprehensive Plan consistency is also discussed. The "Impact on Natural Environment" is also discussed in the Staff Analysis. The Shipman's agent provided the County with a study prepared by Billy H. Owen, MPA, Coastal Zone Management Consultant, which "examines potential effects that recent, environmental, land use, regulatory, changes might have upon the future use, of a tract of land owned by Riley Shipman." The study is mentioned in the Staff Analysis. Mr. Owen performed on-site investigations of the parcel from April 24 through April 30, 2003. Mr. Owen used a "test- site" which "constitutes approximately two of a total of thirteen, or so, acres, and is situated directly adjacent to Blue Angel Parkway." Mr. Owen discusses, in part, the nature of wetlands on the parcel, whether these wetlands are jurisdictional wetlands (he concludes they are not), and provides an assessment of a two-acre parcel regarding "vegetation, soil, and hydrology." He states, in part: "The surface of this area has a patchy cover of similar sandy clay soil material as is found in the reclaimed fishpond region. Where the sandy clay fill is thin, that is less than one inch thick or not present, scattered collections of white pitcher plants, Sarracenia Leucophylla, an endangered plan [Rule 5B- 40.0055(1)(a) 165, F.A.C.], were noted. Thin patches of Large- leaved Jointweed, Polygonella macrophylla, a rare vascular plant, were present in this site, which is dominated by wiregrass." See Fla. Admin. Code R. 5B-40.0055(1)(a)334 and (1)(b)73. The Staff Analysis refers, in part, to Comprehensive Plan Policy 11.A.2.6.c and d, see Finding of Fact 27, and states: NESD Staff reviewed the consultant's study submitted by the Agent and provided input to Growth Management Staff regarding the potential wetlands impacts on the subject property. A subject matter expert from NESD Staff is available for specific comments if requested. Of note is the current policy that requires the degree of hydrological or biological significance to be determined prior to applying to the Florida Department of Environmental protection (FDEP) and/or the Corps of Engineers for permits. Without an exemption as recommended by the Agent's consultant in his study, the owners will be required to apply to the relevant agencies for mitigation if impacts to the wetlands are proposed. Furthermore, enforcement of the "Wetlands Ordinance" (Ordinance 2003-9, Attachment "C") will assure clustered development with wetland buffers outside any wetland portions on the site, as well as compliance with Comprehensive Plan Policy 11.A.2.6. County staff also discuss "changed conditions and development patterns," and noted that while "[l]arge portions of this area are now designated as Pitcher plant Prairie Preserve," "uplands within this area, especially at or near the intersection of main roads, are ripe for development. To further protect the wetlands from development impacts, commercial development should be clustered at these intersections. The intersection of Blue Angel Parkway and Sorrento Road is designated as a 'commercial node' in the draft Southwest Area Sector Plan currently being completed by EDAW. This amendment will further increase the concentration of commercial uses near the intersection, defining a sizable commercial node and reducing the potential for strip commercial development along Blue Angel Parkway." In the conclusion to the Staff Analysis, staff stated: The requested Future Land Use amendment from Low Density Residential to Commercial follows a logical plan for development. A re-survey of the parcels is recommended to clearly define the subject area and to delineate potential wetland impacts. Understanding that wetland mitigation or, alternatively, a re- survey of the property may be necessary to reduce potential wetland impacts, Staff recommends that the future land use of the designated areas within the subject parcels be changed from Low Density Residential to Commercial. On July 16, 2003, the Planning Board considered the Plan Amendment. County growth management staff, including the Director of the Growth Management Department and the Escambia County Neighborhood and Environmental Services Department (NESD), provided the Planning Board with information during the hearing. Petitioner, a Planning Board member, raised several concerns, including whether the proposed FLUM amendment was inconsistent with Plan Policy 11.A.2.6.d. The Planning Board recommended the approval of the Plan Amendment by a vote of four to one (Petitioner). The matter was presented to the Board of County Commissioners of Escambia County (Board). The Board was presented with, among other documents, the Memorandum and Staff Analysis mentioned above. After a properly noticed public hearing, the Board approved the Plan Amendment on August 7, 2003, in Ordinance 2003-40. The Plan Amendment, as a future land use designation on the FLUM is not a development order. The Plan Amendment does not authorize development on or of the parcel, which includes any wetlands on the parcel. Internal consistency Petitioner contends that the Plan Amendment is inconsistent with Plan Goal 11.A, Objective 11.A.1, Policy 11.A.1.2, Policy 11.A.2.6.d, and Policy 11.A.2.7, because the Plan Amendment re-designates the parcel from a LDR future land use to a Commercial future land use, notwithstanding that the parcel has "wetlands that have a high degree of hydrological or biological significance." Petitioner also contends that the Plan Amendment in inconsistent with Section 163.3177(6)(a), Florida Statutes, because the County approved the Plan Amendment without utilizing "its own surveys, studies, or data regarding the property, including the character of the undeveloped land." See Petitioner's Proposed Recommended Order, pp. 12-13. The County adopted Chapter 11 of the Comprehensive Plan Coastal Management and Conservation Element. Material here and under the heading "Coastal Management," Goal 11.A. provides: "Protect people and property by limiting expenditures in areas subject to destruction by natural disasters and by restricting development activities that would damage or destroy coastal resources." (Emphasis added.) Objective 11.A.1, "Coastal and Upland," provides: "Continually, the county shall protect, conserve and enhance coastal ecosystems, environmentally sensitive areas, wetlands, water resources, living marine resources, remaining coastal barriers and wildlife habitats by monitoring these areas and implementing Policies 11.A.1.1 through 11.A.1.7, among others, upon adoption of this ordinance (reference Section 15.01)." Policy 11.A.1.2, "Future Land Use Element Resource Protection Policies," provides: "Limit the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, wildlife habitats, living marine resources or other natural resources." (Emphasis added.) Policy 11.A.2.6, "Wetland Development Provisions," provides: Development in wetland areas as defined by the FDEP shall be subject to the following provisions: Where sufficient uplands exist to locate the proposed development in the upland portion of the site, the county may allow the transfer of development at the future land use densities established on the future land use map from the wetlands to the upland portion of the site. The transfer of density may occur provided all other plan provisions regarding upland and floodplain resource protection, compatibility of adjacent land use, stormwater management, airport environs, etc., are met. Development in wetlands shall not be allowed unless sufficient uplands do not exist to avoid a taking. In this case, development in the wetlands shall be restricted to allow residential density use at a maximum density of one unit per five acres or to the density established by the future land use map containing the parcel, whichever is more restrictive, or one unit per lot of record as of the date of this ordinance if the lot of record is less than five acres in size. (Lots of record do not include contiguous multiple lots under single ownership). Prior to construction in wetlands, all necessary permits must have been issued by the Florida Department of Environmental Protection, and/or the U.S. Army Corps of Engineers, as required by the agency or agencies having jurisdiction and delivered to the county. With the exception of water-dependent uses, commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: Wetlands that are contiguous to Class II or Outstanding Florida Waters; Wetlands that are located in the 100-year floodplain; Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Conservation Commission or Florida Natural Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site. Also, see Policies 7.A.5.7, 7.A.5.8 and 11.A.1.7.1 (Emphasis added.) Policy 11.A.2.7, "LDC and Wetlands," provides: "The county shall implement the land use categories shown on the future land use maps by inclusion of the appropriate regulations within the LDC. Such implementation will ensure the protection of environmentally sensitive land adjacent to the shoreline and near any wetlands." Objective 7.A.2. of the Plan dealing with "Future Land Use and Natural Resources" provides "Amendments to future land uses will be required to demonstrate consistency with the appropriate topography, soil conditions and the availability of facilities and services." Policy 7.A.4.7 provides future land use categories, including the low density residential category that is, in part, "intended to provide for the protection of important natural resources." Policy 7.A.4.7.c. Neighborhood commercial uses that are not a part of a predominantly residential development or planned unit development are allowed when they meet locational and other criteria of Plan Policy 7.A.4.13(A). Policy 7.A.4.7.c. Furthermore, "[r]ezonings and future land use map amendments to categories allowing higher densities will be discouraged consistent with Policy 7.A.4.3." Policy 7.A.4.7.c.(4). Policy 7.A.4.1 requires that all new development be consistent with the Comprehensive Plan. In his testimony at the final hearing, Richard Duane, P.E., Director of Planning and Engineering for the County, stated that when a land use change is sought as here, "[t]here is a policy to know what's on there [regarding wetlands]," but "[t]here is not a policy to delineate specific wetlands on future land use maps" nor whether they are high quality, bio- diverse wetlands. He further stated that the policy of Planning and Engineering "is to let the Land Development Code dictate to the Wetlands Ordinance [Section 7.13.00, "Wetlands and environmentally sensitive lands," Escambia County Land Development Code (Wetlands Ordinance)] through the development process." He discussed this policy with Keith T. Wilkins, Director of the Neighborhood Environmental Services Department (NESD) of the County.2 Mr. Duane stated that this is not an official policy of the Board of County Commissioners. But see Policy 7.A.5.8, Endnote 1. Mr. Duane stated that the reason for the policy is that a ". . . future land use map will not impact any wetlands on any site. Only through the development of the site will any impact to any site be made, and those impacts will be mitigated or determined through the development and review process." (The parties stipulated that "Escambia County has a Wetlands Ordinance in its Land Development Code that governs development in areas that have wetlands present.") Mr. Duane testified that the provision in Comprehensive Plan Policy 11.A.2.6.d would be met at the Development Review Committee (DRC) phase when wetlands would be delineated by the NESD staff. He also stated that this provision would not "impact his decision involving the small scale amendment." However, he did not ignore this provision; he discussed it with Mr. Wilkins and thought the wetlands should be reviewed through the Land Development Code. J. Taylor Kirschenfeld, now Senior Water Quality Scientist and formerly (as of two weeks before the final hearing) Senior Environmental Scientist in the NESD of the County, was requested by the Growth Management Department to review Mr. Owen's study. (Carol Heileman, Planning Board Coordinator provided the study to Mr. Kirschenfeld.) After reading the study, Mr. Kirschenfeld opined "that there are wetlands on the property." Mr. Kirschenfeld did not personally verify or view the conditions on the parcel. Mr. Kirschenfeld testified that the applicant's consultant's (Mr. Owen) report listed species of plants that would only occur in wetland areas, and in his opinion, there are wetlands on the property, which is consistent with the parties stipulation - "Wetlands likely exist on the property." Mr. Kirschenfeld sent an e-mail to Ms. Heileman that the parcel would meet the wetland definition in Section 3 of the County's Land Development Code and would be jurisdictional to the County, and, as such, Policy 11.A.2.6.d would apply to the parcel and the Plan Amendment. The e-mail was not provided to the Planning Board or to the Board of County Commissioners. On cross-examination by the County, Mr. Kirschenfeld testified that Policy 11.A.2.6.b refers to development of the wetlands and provides: "Development in wetlands shall be restricted to allow residential density use. . . ." He further stated that this provision does not refer to commercial density use or industrial density use. It simply talks about development in the wetlands being restricted to allow residential density use. He further stated that Policy 11.A.2.6.d ". . . talks about the exception of the water- dependent uses" and again states: "commercial [and] industrial land uses will not be located in wetlands." He then stated that the provision further talks about high degree of hydrological or biological functions. Upon further questioning of Mr. Kirschenfeld on cross- examination, Mr. Kirschenfeld stated that he understood that his supervisors believe that the NESD staff responsibility is to do wetlands review during the DRC process. However, he stated further that, particularly subparagraph d refers to land uses, making him think of zoning and future land uses, not just development.
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 FLUM Plan Amendment No. 2003- 03, adopted by the Board of County Commission of Escambia County in Ordinance No. 2003-40, is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 23rd day of December, 2003, 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 23rd day of December, 2003.
The Issue Whether the amendment to the Land Use Plan Map of the Miami-Dade County Comprehensive Development Master Plan (CDMP), adopted by Ordinance No. 12-109 on December 4, 2012, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Miami-Dade County (the County) is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. The County adopted the challenged Plan Amendment under the expedited State-review process codified in section 163.3184(3), Florida Statutes. Petitioners Robert and Sylvia Kemp own property and reside at 11021 East Golf Drive, Miami, Florida. The Kemps submitted oral or written comments concerning the Plan Amendment to the County at the transmittal hearing. Petitioner Gregory Samms owns property and resides at 11200 West Golf Drive, Miami, Florida, and submitted oral and written comments concerning the Plan Amendment to the County during the transmittal hearing. Intervenor, Westview, is the owner of the property which is the subject of the challenged Plan Amendment. Westview, through its counsel, submitted comments in support of the amendment at the various public hearings. The Subject Property The property subject to the Plan Amendment is the site of the former Westview Country Club, a private club, with golf course, which is now closed (Property). The Property is approximately 196 gross acres, and is currently designated on the Land Use Plan Map (LUP Map) as Parks and Recreation (191.6 gross acres) and Low-Medium Residential (4.4 gross acres). It is currently zoned for residential development, mostly single- family, although there is some frontage along Northwest 119th Street zoned for limited business. The Property is curvilinear and approximately one- quarter mile wide. The site is mostly vacant, the former clubhouse having been demolished, although two maintenance buildings and a single-family home remain on the Property. There is a continuous vegetative buffer along the boundary of the Property. Under the existing future land use designation and zoning category, the Property could be developed at a maximum of 1,736 single- and multi-family residential units. The Property is surrounded on all sides by a residential neighborhood, generally known as Westview, in which Petitioners reside. Westview is an older, established community, consisting mostly of single-family residences with some multi-family development on the western edge. East and West Golf Drive, both local roads, surround the property boundary, providing internal access within the Westview neighborhood. The Property, as well as the surrounding neighborhood, is bisected north to south by Northwest 119th Street (also known as Gratigny Parkway), a major east-west arterial providing access to other regional corridors such as State Road 826/Palmetto Expressway to the west and Interstate 95 to the east. Beyond the immediately adjacent residential neighborhood, the Property is bounded by Northwest 22nd Avenue on the east and Northwest 27th Avenue on the west; and by Northwest 107th Street on the south and Northwest 134th Street on the north. To the west, across Northwest 27th Avenue, is the Miami-Dade County Community College North Campus, an institutional use, and a concentration of industrial uses known as the Northwest 27th-37th Avenue Industrial Corridor. East of 22nd Avenue is mostly low-density residential development, with pockets of low-medium residential development and a business-and- office corridor on either side of Northwest 119th Street. Development to the south is a mix of single- and multi-family residential. The future land use designations of the surrounding properties are institutional and industrial to the west, medium- density residential to the south, low- and medium-density to the east (with a business-and-office corridor along Northwest 119th Street), and low-density residential to the north. The Property is located inside the County’s Urban Growth Boundary (UGB), outside of which development is strictly limited in order to protect environmentally sensitive and agricultural lands, as well as limestone mining activities. The County only accepts proposals to change the UGB every two years and requires a supermajority vote of the County Commission to approve a change. The Property is also located within the Urban Infill Area (UIA), the major urban core of the County. The UIA boundary follows Interstate 95 from the northern County line, goes west along the Palmetto Expressway, and south along the Palmetto to 77th Street. The CDMP encourages development and redevelopment within the UIA, prioritizing development on sites within the UIA over sites outside the UIA. The Amendment Ordinance No. 12-109 changes the future land use designation of approximately 148 acres of the Property to Industrial and Office, and the remaining 47 acres to Business and Office (Plan Amendment). The owner of the Property plans to develop or cause to be developed on the Property the Westview Business Park, with a mix of Office and Industrial uses. Under the proposed land use designations, without any additional restrictions, the Property could be developed at an intensity of up to 3,012,174 square feet of industrial use on the Properties designated for Industrial and Office, and 733,550 square feet of retail use or 2,886 multi-family residential units on the areas designated Business and Office. In this case, the Plan Amendment has been adopted with a binding Declaration of Restrictions. These development restrictions are incorporated as text into the CDMP Land Use Element Restrictions Table. The Declaration restricts development of the Property as follows: Limits Industrial development to 1.6 million square feet of light industrial, warehouse, and flex space, and further limits warehouse/distribution space to no more than 700,000 square feet. Limits Business and Office development to a maximum of 400,000 square feet of retail and service uses. Limits Residential development to areas designated for Business and Office use, and a maximum of 2,000 units. Limits total site development to generation of a maximum of 3,297 net external PM peak-hour vehicle trips. Ensures development of a mix of uses by limiting construction of Industrial and Office to no more than 800,000 square feet prior to issuance of the first Certificate of Occupancy within the Business and Office parcels. Prohibits the re-zoning of the Industrially-designated portions to the IU-3 zoning district and development of any use allowed in the IU-3 Industrial zoning district. Prohibits all uses allowed in the IU-2 zoning district, except that storage and distribution of cement and clay products is allowed. Prohibits most uses allowed in the IU-1 zoning district. Requires the developer to improve the existing vegetative buffer between the Property and East and West Golf Drive to a sixty-foot landscaped buffer including a seven-foot masonry wall, opaque fence, or berm, with trees planted at a minimum height of 12 to 14 feet and not farther than twenty-five feet on center. Limits vehicular access to the Property exclusively from Northwest 119th Street, except that the Industrial and Office portions will have one access directly from Northwest 22nd Avenue.3/ Prohibits direct vehicular access between the Property and the surrounding residential neighborhood. Limits height of any hotel or motel use to 50 feet. Commits the developer to work with the Florida Department of Transportation, Miami-Dade County, and the Miami-Dade County Expressway Authority to make improvements on Northwest 119th Street, including extension of an existing westbound travel lane and construction of an eastbound turn lane. Requires the developer to: Incorporate Transportation Demand Management (TDM) Strategies, pedestrian access and connectivity in the including Business and Office developments, pedestrian access to transit stops, and construction of transit shelters. Direct all lighting away from adjacent residential uses, require sound deadeners for any metal work or welding-related uses, and prohibit outdoor speaker systems within the Industrial and Office designation. Dedicate a five-acre parcel for a public recreational facility and develop a multi-purpose jogging, biking, and pedestrian track within the rights of way of East and West Golf Drive. Offer to dedicate vacant land within the Property for a police substation or similar police use. Work with the Public Works Department and the Golf Park Homeowners’ Association to develop traffic calming devices and neighborhood identification signage for the residential neighborhood immediately adjacent to the Property. Make reasonable efforts to employ applicants who are residents of the zip code in which the Property is located, use local businesses and the local workforce in construction of the Project, utilize minority-owned businesses for construction contracts, and maintain non-discriminatory hiring practices. In addition to establishing binding restrictions on the development of the Property which run with the land, the Restrictions can only be modified by amendment to the CDMP, pursuant to section 163.3184, Florida Statutes, and applicable procedures of the Miami-Dade County Code. Petitioners’ Challenge Petitioners challenge that portion of the Plan Amendment which re-designates approximately 148 acres of the Property from Parks and Recreation to Industrial and Office. Petitioners do not challenge that portion re-designating approximately 46 acres from Parks and Recreation to Business and Office. Petitioners challenge the Plan Amendment as not “in compliance” on the basis of inconsistency with both the CDMP and the Community Planning Act, part II, chapter 163, Florida Statutes. Petitioners’ concerns center on the question of the compatibility between the proposed land use and the existing residential neighborhood. Compatibility Petitioners maintain that the proposed designation of the Property for Industrial development is inherently incompatible with the adjoining residential use. Petitioners rely on the following two CDMP provisions to support this argument: Policy LU-4B. Uses designated on the LUP map and interpretive text, which generate or cause to generate significant noise, dust, odor, vibration, or truck or rail traffic shall be protected from damaging encroachment by future approval of new incompatible uses such as residential uses. From the Textual Description of Industrial and Office Category:4/ In general, the typical residential development is incompatible with major industrial concentrations and shall not occur in areas designated as ‘Industrial and Office’ on the LUP map to avoid conflicts and for health and safety reasons. The cited provisions support a finding that Industrial development is generally incompatible with residential development. That fact was admitted by the County in its Staff Report on the proposed Plan Amendment. Neither of the cited provisions prohibits the Plan Amendment from being approved. Following these policies, the County would be justified in denying an application for new residential development within an area designated for Industrial and Office. It does not follow, however, that the County must deny a plan amendment allowing some industrial development adjacent to residential development. As explained by Intervenor’s expert, Thomas Pelham, in a highly-urbanized area like Miami-Dade County’s central core, it is unrealistic, if not impossible, to follow a Euclidean zoning approach, where different uses are dispersed and separated from one another. Compatibility in such a concentrated urbanized area must be judged by assessing the potential impacts of the proposed development and determining whether those impacts can be mitigated. “‘Compatibility’ means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. Petitioners allege the Plan Amendment is inconsistent with the following group of policies which speak to compatibility among uses in close proximity (emphasis in original): GOAL PROVIDE THE BEST POSSIBLE DISTRIBUTION OF LAND USE AND SERVICES TO MEET THE PHYSICAL, SOCIAL, CULTURAL AND ECONOMIC NEEDS OF THE PRESENT AND FUTURE POPULATIONS IN A TIMELY AND EFFICIENT MANNER THAT WILL MAINTAIN OR IMPROVE THE QUALITY OF THE NATURAL AND MAN- MADE ENVIRONMENT AND AMENITIES, AND PRESERVE MIAMI-DADE COUNTY’S UNIQUE AGRICULTURAL HERITAGE. * * * Objective LU-4Miami-Dade County shall, by year 2015, reduce the number of land uses, which are inconsistent with the uses designated on the LUP map and interpretive text, or with the character of the surrounding area. Policy LU-4A. When evaluating compatibility among proximate land uses, the County shall consider such factors as noise, lighting, shadows, glare, vibration, odor, runoff, access, traffic, parking, height, bulk, scale or architectural elements, landscaping, hours of operation, buffering, and safety, as applicable. Policy LU-4C. Residential neighborhoods shall be protected from intrusion by uses that would disrupt or degrade the health, safety, tranquility, character, and overall welfare of the neighborhood by creating such impacts as excessive density, noise, light, glare, odor, vibration, dust or traffic. Policy LU-4D. Uses which are supportive but potentially incompatible shall be permitted on sites within functional neighborhoods, communities or districts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Policy LU-8E. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objectives and Policies of all elements, other timely issues, and in particular the extent to which the proposal, if approved would: * * * iii) Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; . . . . Petitioners argue the County cannot find the uses compatible because it did not consider all the possible negative impacts to the existing residential development from the adjoining industrial development, as required by Policy LU-4A, and because the Plan Amendment does not protect the character of the Westview neighborhood, as required by Policies LU-4C, LU-4D, and LU-8E(iii). The Declaration of Restrictions is critical to the County’s determination that the uses, as proposed in this application, are compatible. County staff originally identified LU-4G and LU-8E as policies which “could be impeded” by the Plan Amendment application. However, the written staff analysis was not amended after the Declaration of Restrictions was finalized. The developer proposed different iterations of the Declaration of Restrictions as the application progressed through the process. The final Restrictions are the most stringent. Mr. Woerner testified that his opinion that the Plan Amendment is compatible is based on the dedication of the final Restrictions. The County considered noise impacts, as evidenced by Restrictions which prohibit outdoor speaker systems, require sound deadeners for metal work uses, and require that all air compressors be of radial (silenced) design. Further, the Restrictions require the developer to submit a site plan at re- zoning which incorporates noise-reduction techniques, such as traffic calming devices and wing walls surrounding loading bays. Petitioners complain that these Restrictions are meaningless because they contain no measurable standard, such as a maximum decibel level. However, Petitioner offered no evidence that a prohibition on outdoor speaker systems, sound deadeners, and radial (silenced) design of air compressors were meaningless or unenforceable standards. Lighting is addressed in the Restrictions, which require lighting to be directed away from the adjoining residential areas. Petitioners complain that the Restriction is meaningless because it contains no measurable standard, such as maximum lumens or brightness. However, Mr. Woerner testified that the Restriction gives direction to the County staff at site plan review to ensure that appropriate lighting is incorporated. The Restrictions also evidence the County’s consideration of traffic issues by limiting access to the Industrially-designated areas via two access points –- one on Northwest 119th Street and one from 22nd Avenue –- both of which are major arterial roadways. Further, the Restrictions require the developer to construct eastbound right-turn lanes and an extension to the existing fourth westbound travel lane on Northwest 119th Street to serve the Property. Finally, the Restrictions prohibit all internal traffic access between the proposed development and the residential neighborhood. The County conducted a traffic study and evaluated a traffic study submitted by the applicant in this case. The studies form the basis for many of the access and traffic provisions incorporated into the Restrictions. Buffering is directly incorporated into the Restrictions, which require a 60-foot landscaped buffer between the residential property and the proposed development, as more particularly described above. The landscape plan for the buffer area must be submitted to the surrounding property owners for review and comment prior to the public hearing on the re-zoning application for the Property. In addition to the landscaping plan for the buffer area, landscaping is further addressed in the Restrictions, which require street trees of at least 12 feet along all roadways abutting the Property at a spacing of 25 feet on center. Runoff is addressed in the Restrictions by requiring the developer to obtain a conceptual surface water permit from the County prior to issuance of any building permit for the Property. Petitioners fault the County for excluding from the Restrictions maximum height limits for warehouse and other industrial uses, while including a height limit for hotel and motel development. However, the County and Intervenor offered uncontroverted evidence that the County’s zoning code contains height limitations which will govern the industrial development. In the Restrictions, the height of hotel and motel development is limited beyond any regulation in the County’s zoning code. Petitioners likewise fault the County for not specifically including provisions addressing odor, vibration, and other potential negative impacts on the residential area as anticipated in Policy LU-4A. The best evidence that the County considered the myriad impacts from industrial development on the neighboring residential areas is the prohibition of the majority of typically allowable industrial uses. The Restrictions prohibit all uses allowed in the IU-3 Industrial Unlimited zoning district. Further, the Restrictions prohibit the following uses allowed in IU-2, the Industrial Heavy Manufacturing zoning district: Asphalt drum mixing plants which produce less than one hundred fifty (150) tons per hour in self-contained drum mixers. Rock and sand yards. Manufacturing of cement and clay products, such as concrete blocks, pipe, etc. Soap manufacturing, vegetable byproducts, only. Railroad shops. Sawmills. Petroleum products storage tanks. Dynamite storage. Construction debris materials recovery transfer facility. Finally, the Restrictions also prohibit most of the 90 uses allowed in IU-1, the Industrial Light Manufacturing zoning district.5/ Eliminating the uses prohibited by the Restrictions, the Property may be developed for the following uses: auditoriums, automobile rentals/storage and wholesale distribution, bakeries (wholesale only), banks, bottling plants, caterers, cold storage warehouses and pre-cooling plants, contractors’ offices (not yards), engine sales, food storage warehouse, hotel and motel, laboratories, leather goods manufacturing (except tanning), locksmiths, office buildings, pharmaceutical storage (subject to conditions), police and fire stations, post offices, radio and television transmitting stations and studios, restaurants, salesrooms and storage show rooms (retail subject to limitations), schools for aviation and electronic trades, physical training schools such as gymnastics and karate, ship chandlers, telecommunications hubs (subject to conditions), telephone exchanges, vending machine sales and service, truck and bus stations and terminals, as well as the storage and wholesale distribution of concrete, clay or ceramic products, and novelty works. By prohibiting the myriad uses typically allowed within an Industrially-designated area, the Restrictions eliminate the sights, sounds, odors, vibrations, glare and other potential adverse impacts associated with those uses. The Restrictions protect the neighborhood from noise, light, glare, odor, vibration, dust and traffic, as required by Policy LU-4C. A preponderance of the evidence supports a finding that the County considered the proximity of the neighborhood to the proposed Industrial and Office designation, and approved the designation only with severe limitations on allowable uses and with restrictions designed to mitigate negative impacts and protect the health, safety, and character of the adjoining neighborhood. The Restrictions are designed to buffer the neighborhood from potentially incompatible elements of the adjoining industrial uses, as required by Policy LU-4D. Neighborhood safety and quality of life are additionally addressed by specific provisions of the Restrictions. The developer is required to construct a multi- purpose jogging, bicycle, and pedestrian track along the perimeter of the property; offer to dedicate and improve a 5-acre public recreational facility; and offer to dedicate property for a police substation or similar police use. Further, the developer is required to include pedestrian access improvements across Northwest 119th Street between the Business and Office parcels. These improvements are designed to increase pedestrian access between the two sections of the neighborhood currently divided by Gratigny Parkway. Petitioners cite to the following additional provisions in support of their argument that the Plan Amendment is inconsistent with the CDMP: Policy LU-5B. All development orders authorizing new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goals, objectives and policies of the CDMP including the adopted LUP map and accompanying ‘Interpretation of the Land Use Plan Map’. Objective LU-8 Miami-Dade County shall maintain a process for periodic amendment to the Land Use Plan map consistent with the adopted Goals, Objectives and Policies of this plan, which will provide that the Land Use Plan Map accommodates projected countywide growth. Policy LU-8A. Miami-Dade County shall strive to accommodate residential development in suitable locations and densities which reflect such factors as recent trends in location and design of residential units; a variety of affordable housing options; projected availability of service and infrastructure capacity; proximity and accessibility to employment, commercial and cultural centers; character of existing adjacent or surrounding neighborhoods; avoidance of natural resource degradation; maintenance of quality of life and creation of amenities. Density patterns should reflect the Guidelines for Urban Form contained in this Element. Policy LU-8D. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstrated to be viable. From the Textual Description of Parks and Recreation Category: Unless otherwise restricted, the privately owned land designated as Parks and Recreation may be developed for a use or a density comparable to, and compatible with, surrounding development providing that such development is consistent with the goals, objectives and policies of the CDMP. The cited provisions are wholly inapplicable to the Plan Amendment at issue. Policy LU-5B applies to development orders. The Plan Amendment at issue is not a development order. See § 163.3164(14) through (16), Fla. Stat. Policy LU-8A applies to evaluation of LUP map amendments to accommodate residential development. The Plan Amendment at issue does not designate property for residential use. LU-8A requires the County to follow the Guidelines for Urban Form in evaluating residential designations. While this policy applies to both new and existing residential development, it does not apply to the Plan Amendment at issue. Policy LU-8D speaks to factors for considering urban expansion. The Plan Amendment at issue is urban infill, not urban expansion. The textual description excerpted from the Parks and Recreation category is likewise inapplicable because it limits development on lands designated Parks and Recreational without a change to another land use category. In the case at hand, a map amendment is sought, rendering those limitations inapplicable. Urban Infill and Economic Development Miami-Dade County maintains that the proposed Plan Amendment is consistent with, and furthers, a number of other CDMP provisions, as follows: LU-1C. Miami-Dade County shall give priority to infill development on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facilities are projected to have capacity to accommodate additional demand. LU-10A. Miami-Dade County shall facilitate contiguous urban development, infill, redevelopment or substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed-use projects to promote energy conservation. LU-12. Miami-Dade County shall take specific measures to promote infill development that are located in the Urban Infill Area as defined in Policy TC-1B or in a built-up area with urban services that is situated in a Community Development Block Grant-eligible area, a Targeted Urban Area identified in the Urban Economic Revitalization Plan for Targeted Urban Areas, an Enterprises Zone established pursuant to state law or in the designated Empowerment Zone established pursuant to federal law.[6/] The proposed use of the Property is for infill development and redevelopment of an underdeveloped parcel in a highly urbanized area. Petitioners’ expert, Mr. Henry Iler, questioned whether the proposed use of the Property is infill development. He argues that urban infill is traditionally higher-density residential on small vacant sites within urban areas, explaining that “Infill development a lot of times are quarter acre parcels or it could be an acre inside of some development.”7/ Mr. Iler’s argument is not persuasive because it is the location of the development, rather than its size or use, that defines it as urban infill. The Property represents a unique, if not unprecedented, opportunity in Miami-Dade County –- almost 200 acres of vacant land within the UIA, with ready access to major transportation corridors for moving goods throughout Florida and beyond. County staff estimates the project would create 2,000 direct jobs and up to 3,500 direct and indirect jobs combined. Industrially-zoned property within the minor statistical area (MSA) in which the Property is located, along with the closest adjacent MSA, is projected to be depleted by the year 2017. The designation of the Property for Industrial would add over nine years’ supply of Industrial land within the two combined MSAs. The Plan Amendment includes a functional mix of land uses, and the Restrictions ensure that a mix of uses actually develops. The Property is located within a quarter-mile of a future rapid transit corridor, and partly within the North Central Urban Community Center, which is planned for intensified mixed-use development along the Northwest 27th Avenue and Northwest 119th Street transit corridors. The site is currently served by three Metrobus routes, one of which is programmed for improvements in 2012. The Restrictions require the developer to improve existing transit stops along Northwest 119th Street. As summarized by Mr. Pelham, the Plan Amendment fits Policy LU-10A “like a glove.” Concepts The CDMP Future Land Use Element contains a list of 14 long-standing concepts which are embodied in the CDMP. Mr. Woerner testified that the Plan Amendment is consistent with a number of those concepts, including: Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and character to provide economies of scale and efficiencies of transportation and other services for both public and private sectors. 11. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. 13. Avoid excessive scattering of industrial or commercial employment locations. Mr. Woerner testified that the Plan Amendment furthers concept 8 by encouraging infill and a mix of land uses, furthers concepts 9 and 13 by its location in relation to the nearby Northwest 27th-37th Avenue Industrial Corridor and access to major transportation routes, and furthers concept 11 by fulfilling the need for industrial land in the two adjoining MSAs. Petitioners counter with concept 7, “Preserve sound and stable residential neighborhoods,” arguing that the Plan Amendment is contrary to this long-standing concept. Mr. Woerner testified that the Plan Amendment protects the Westview neighborhood through the extensive Restrictions, eliminating myriad uses otherwise allowed in Industrially-designated areas and requiring mitigation of anticipated negative impacts. Petitioners maintain that the Restrictions do not afford the neighborhood the protection required under the CDMP because the Restrictions are not binding, or otherwise enforceable, and can be changed in the future by the County Commission. Petitioners’ argument is not well-taken. The competent substantial evidence supports a finding that the Declaration of Restrictions is incorporated into the Future Land Use Element of the CDMP and can only be changed pursuant to the public notice and hearing provisions of the County ordinances and the Community Planning Act. If, as Petitioners speculate, the owner seeks to permit an IU-3 use on the Property in the future, it will require a future Plan Amendment to revise the Declaration of Restrictions as if it were another land use amendment. Further, such amendment is subject to a super-majority vote of the County Commission. Summary Petitioners failed to establish beyond fair debate that the challenged Plan Amendment is not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the Miami-Dade County Plan Amendment adopted by Ordinance No. 12-109 on December 4, 2012, is in compliance. DONE AND ENTERED this 1st day of August, 2013, 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 1st day of August, 2013.
The Issue The issue in this case is whether Brevard County's 1999 Comprehensive Plan Amendments B.12, B.13, and B.14 (the Plan Amendments) are "in compliance."
Findings Of Fact General Besides the introduction of the Plan Amendments themselves and a few other documents, Petitioners case-in-chief consisted of examination of Susan Poplin, a Planning Manager for DCA, as an adverse witness, and the testimony of Petitioner, Charles F. Moehle. Most of Poplin's testimony was directly contrary to the positions Petitioners were seeking to prove. Moehle's testimony consisted primarily of conclusions and statements disagreeing with the Plan Amendments. Petitioners provided no data or analysis in support of Moehle's statements and conclusions. Often, Moehle's testimony did not identify specific errors allegedly made by the County. Much of Moehle's presentation was disjointed and difficult to understand. Petitioners also challenged several items which should have been challenged following prior amendments to the County's Plan. For example, Poplin testified that all of the wetland provisions in the challenged Conservation Element B.12 amendments were part of a prior plan amendment and were not changed by the Plan Amendments. See Findings of Fact 7-8, infra. Standing Petitioners' allegations of standing are in paragraph 6 of the Amended Petition for Formal Review: EFFECT ON PETITIONERS' SUBSTANTIAL INTERESTS Petitioner, MODERN owns property in Brevard County, the value of which will be reduced by THE AMENDMENT. Additionally, petitioners MODERN and MOEHLE own property in Brevard County and pay property taxes in Brevard County. Additionally, THE AMENDMENT will cause property tax receipt's of Brevard County to decline because of the reduction in value caused to MODERN'S, MOEHLE'S, and other similarly situated property in the county. Additionally, THE AMENDMENT will cause MODERN'S and MOEHLE'S property taxes to increase due to the additional government employees required to implement and enforce THE AMENDMENT and due to the fact that the property taxes imposed upon property which are not effected [sic] by THE AMENDMENT will necessarily increase in order to offset the loss of property tax revenue from private property which is devalued as a result of THE AMENDMENT. MOEHLE and MODERN have appeared before the Brevard County Board of County Commissioners at public meetings and hearings as well as communicating (verbally and in writing) with their growth Management/Planning & Zoning Departments concerning these matters for several years. In an attempt to prove Petitioners' standing, Moehle testified that he has been a resident of Brevard County since 1958. He also testified that he is President of and owns a substantial interest in Petitioner, Modern, Inc. He testified that both he himself and Modern own real property in Brevard County, and that, as such, both are taxpayers. Moehle also testified that he is "affected by these regulations." He gave no specifics as to how he is affected. He also did not testify that Modern was affected. Before concluding his brief testimony on standing, Moehle asked the ALJ if he had to "ramble on some more" about standing and was asked whether he submitted "oral or written comments, comments, recommendations or objections to the County between the time of the transmittal hearing for the Plan amendment and the adoption of the Plan amendment." Moehle answered: I submitted during the whole period of this - I attended a number of hearings that I knew about during this whole process and I would say that, yes, I did, but not all hearings. Some were questionable - some of my problems or some of the meetings that the action was taken on. So they do have my comments, they've had my comments from me on various issues complete back before and including the Settlement Agreement. The evidence was that all hearings and meetings relating to the "Settlement Agreement" to which Moehle referred in his testimony occurred prior to the transmittal hearing for the Plan Amendments at issue in this case on November 30, 1999. The referenced "Settlement Agreement" was the Stipulated Settlement Agreement entered into in May 1997 to resolve DOAH Case No. 96-2174GM. The County amended its Comprehensive Plan to implement the Stipulated Settlement Agreement on August 24, 1999, by Ordinance 99-48. By Ordinance 99-52, adopted October 7, 1999, the remedial amendments were clarified to include the correct Forested Wetlands Location Map. Ordinance 99-49 and 99-52 both state that the plan amendments adopted by them "shall become effective once the state planning agency issues a final order determining the adopted amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(9), or until the Administration Commission issues a final order determining the amendment to be in compliance in accordance with Florida Statutes, Section 163.3184(10)." The stated "Justification" for Policy 5.2 of the B.12 Plan Amendments at issue in this case was: "The above language was part of a stipulated settlement agreement between DCA and the County. This agreement became effective after the transmittal of the 99B Plan Amendments." Apparently for that reason, the B.12 Plan Amendments at issue in this case, specifically under Objective 5 and Policies 5.1 and 5.2, underlined the wetland provisions previously adopted by Ordinance 99-48. This underlining may give the misimpression that these wetlands provisions were being amended through adoption of Ordinance 2000-33. To the contrary, those amendments already had been adopted, and all hearings on those amendments already had occurred prior to transmittal of the Plan Amendments at issue in this case. Other than testifying that he attended hearings and made submittals "before and including the Settlement Agreement," Moehle did not specify when he attended, or what if anything he said or submitted. Nor did he offer any testimony or evidence that he appeared on behalf of Modern. No minutes or other evidence were produced for the record showing his appearance or comments, recommendations or objections. To the contrary, Petitioners' evidence indicates that Moehle was not one of the individuals who offered public comment at either the transmittal hearing on November 30, 1999; the Land Use Citizens Resource Group meeting on November 4, 1999; or the Local Planning Agency Adoption Meeting on May 15, 2000. Paragraph 6 of the Amended Petition, also alleged: that the value of property owned by Modern will be reduced; that the Plan Amendments will cause property tax receipts to decline because of a reduction in the value caused to Petitioners' property; and 3) that the Plan Amendments will cause Petitioners' property taxes to increase due to additional government employees required to implement and enforce the Plan Amendments and due to an increase in taxes for properties not directly affected by the Plan Amendments. None of these allegations were supported by record evidence. Notice Petitioners' allegation of improper notice is contained in paragraph 7.I. of the Amended Petition: Petitioners allege that THE AMENDMENT is subject to the notice requirements of Florida Statute subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2), and or 125.66(4) and that Respondent COUNTY has failed to comply with said statutes. (Several other paragraphs of the Amended Petition also allege inadequate notice. See Findings of Fact 19, 28, 44, 50, 54, 63, 65, and 76, infra.) Petitioners filed copies of the applicable advertisements. Moehle testified that the type was "wrong" and the size was "wrong" - the exact nature of the alleged error was not stated. But review of the advertisements for the transmittal and adoption hearings reveals that both are two columns wide, and the headline appears to be in a very large, bold type. Other than Moehle's general complaint about the type being "wrong," there was no testimony or other evidence that the type is not 18-point. Other aspects of the advertisements do not appear to be challenged by Petitioners. The advertisements themselves show that the transmittal hearing was held on November 30, 1999 (a Tuesday) and that the advertisement was run on November 22, 1999, eight days prior to the day of the hearing. They also show that the adoption hearing was on May 16, 2000 (a Tuesday). The advertisement for the adoption hearing was run on May 10, 2000, six days prior to the meeting. The proof of publication shows that the advertisements were not in a portion of the newspaper where legal notices or classified ads appear and that the Florida Today is a newspaper of general circulation. The evidence also included advertisements for local planning agency hearings and meetings relating to the Plan Amendments other than the transmittal and adoption hearings. These other advertisements appear to have been published in legal ad sections, and the type is smaller than that used for the transmittal and adoption hearings. It appears that Moehle was referring to these advertisements when he said the type and size was "wrong." Species and Wetlands Preservation Versus Promoting Infill Development Paragraph 7.IV. of the Amended Petition alleges: The challenged provisions of the THE AMENDMENT, as set forth herein below, violate the legislative intent and spirit of Fl. Stat. Ch. 163, Part II because they place species and wetland preservations over the stated policy goal of promoting infill and development in areas which have concurrency and infrastructure available. The challenged provisions promote leap frog development by making the development of parcels of private property which have concurrency and appropriate infrastructure but also have any quantity of listed species habitat or wetlands unusable. Fl. Stat. Sections 163.3177(10)(h), 163.3177(11). No evidence was offered supporting the claim that species and wetland preservation were "placed over" the goal of promoting infill. Nor was there any evidence provided by Petitioners to show that leapfrog development or urban sprawl was caused by protecting wetlands. To the contrary, Poplin's testimony discussed urban sprawl and leapfrog development in terms of impacts to services and facilities. She clearly stated: "[T]here are no set priorities. We look at each individual local government on a case by case basis. . . . So . . . [it] depends on the context in which its based [sic] in the plan." Poplin also testified that the County had levels of service in place for facilities and services pursuant to Rule 9J-5.0055(1)(a), and that the County's Plan and the subject Plan Amendments have level of service standards which meet the requirements of Rule 9J- 5.0055(2). Poplin also testified that the County had a Capital Improvements Element which was in compliance with Rule 9J- 5.0055(1)(b). She also testified that there was coordination of the various comprehensive plan elements as required by Section 163.3177. Thus, she concluded, the conservation and capital improvements (infrastructure) elements interacted properly. There was no evidence to the contrary. Section 163.3177(10)(h) states that it is the intent of the Legislature to provide public services concurrently with development. Section 163.3177(11) discusses the legislative intent to have innovative planning to address urbanization, protection of environmentally sensitive areas, land use efficiencies in urban areas and conversion of rural land uses. No evidence of any kind was presented regarding these provisions. Certainly, no data and analysis showing failure to meet these statutory provisions were presented by Petitioners. Listed Species Definition Paragraph 8.I.A.2 of the Amendment Petition states: Listed Species definition - pg 11. This change should not be made because the updated Glossary of the Comprehensive Plan was not made available timely for public review and public comments per the hearing and notice requirements of Fl. Stat. Sections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and or 125.66(4). Prior to the Plan Amendments, the Conservation Element had a Directive entitled "Wildlife." The "Wildlife" directive stated in part: "Development projects should avoid adverse impacts to species listed as endangered, threatened, or species of special concern." The directive also included a definition of the term "listed species": "those species which are listed as either endangered, threatened or as species of special concern." The Plan Amendments deleted these provisions. The stated Justification for deleting the first provision was: "Objective 9 embodies the intent of this directive." The stated Justification for deleting second provision was: "'Listed species' have been defined in the updated Glossary of the Comprehensive Plan." As in several other places in the Amended Petition, Petitioners complain about lack of notice and an opportunity for a hearing as to the updated Glossary. Actually, it appears that the Glossary was not updated along with the Plan Amendments. For that reason, there were no Glossary changes to be noticed. Although the Glossary was not updated to provide the definition of the phrase "listed species," as indicated in the Justification for deleting it from the Directives, the phrase is commonly used to refer to species are listed as threatened or endangered under various state and federal regulations. Rule 9J-5.013(1)(a)5. requires identification and analysis of natural resources including "species listed by federal, state, or local government agencies as endangered, threatened or species of special concern." Species that are federally listed as endangered or threatened (50 C.F.R., Section 17.11) fall under the jurisdiction of the U.S. Fish and Wildlife Service in accordance with the Endangered Species act of 1973, as amended (16 U.S.C. Section 1531, et. seq.). Listed and unlisted bird species, other than waterfowl and game birds, are also federally protected by the Migratory Bird Act (16 U.S.C. Section 703 et. seq.). The bald eagle has additional federal protection under the Bald and Golden Eagle Protection Act (16 U.S.C. Section 668- 668d). Marine animals (including whales, dolphins, and the West Indian Manatee) are also protected by the Marine Mammal Protection Act of 1972 (16 U.S.C. Section 1361 et. seq.) In addition, 24 species of vertebrates are listed by the State as endangered, threatened or species of special concern and are under the jurisdiction of the Florida Fish and Wildlife Conservation Commission, Chapter 39, Florida Administrative Code. Both snook and Atlantic sturgeon receive further state protection under Chapter 46, Florida Administrative Code. The Florida Endangered and Threatened Species Act, 1977, also protects species listed as endangered, threatened or species of special concern under Chapter 372, Florida Statutes (2000). Chapter 372, Florida Statutes (2000), provides additional protection for the American alligator as defined in the Alligators/Crocodilla Protection Act. Sea turtles and the West Indian manatee are further protected by the State through the Marine Turtles Protection Act (Chapter 327, Florida Statutes (2000)) and the Florida Manatee Sanctuary Act (Chapter 327, Florida Statutes (2000)). Petitioners did not prove beyond fair debate that the phrase "listed species" cannot be understood without a specific definition within the comprehensive plan. Conservation Element Policy 8.5, Protection Of Vegetative Communities Paragraph 8.I.B. of the Amended Petition states: Policy 8.5 - pg 41. This change should not be made because the justification is not correct. These referenced lists were not made available to the public at the relevant public hearing for review and comment in violation of the requirements of Fl. Stat. Section 163.3184. The modification goes beyond the stated intent to merely improve readability and clarify the existing policy in that it actually modifies existing policy. . . . (The last clause was stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. Before the Plan Amendments, Policy 8.9 of the Conservation Element provided that the County would develop a program for the protection of vegetative communities from inappropriate development by 1992. The former provision was replaced with Policy 8.5, which revises the action date to 2002 and states that the County shall protect vegetative communities from inappropriate development. G1 and G2 vegetative communities, as contained in the Florida Natural Areas Inventory, were added to S1 and S2 communities (which were already in the Plan) for consideration for protection. Poplin testified that the G1 and G2 categories were defined by the Florida Natural Areas Inventory and were synonymous with the S1 and S2 categories which were already defined in the Plan. The adopted "Justification" for new Policy 8.5 itself indicates that the addition of the G1 and G2 categories "did not add additional vegetative communities that may be considered for protection." In other words, nothing actually changed as to the vegetation (or types of vegetation); only the nomenclature or titles of categories changed. Conservation Element, Objective 9 and Policy 9 Species of Special Concern, Crucial/Critical Habitat Paragraph 8.I.C.,D., and E. of the Amended Petition states: Objective 9 and Policy 9, including sub- sections A, B, C, D, E, of 9.2 (species of special concern, crucial/critical habitat) - pg 43. Species of special concern should not be added. It was discussed at a properly advertised public hearing and its addition was rejected. It was added back at a subsequent and not properly noticed workshop meeting and did not allow proper public input. It is unjustifiably onerous to the regulated public as added, in violation of Fl. Stat. 120.52(8)(g). Crucial habitat should not be allowed to [be] substituted for critical habitat because the new glossary of definitions was not completed timely to allow public review and comment. The resource maps to be used are not identified or indicated that they have been created beyond "draft" status or had proper notice, public review or comment. The reduction from 5 acres to 1 acre in 9.2.C was improperly added at a workshop subsequent to the properly noticed public hearing at which this item was disposed of with public hearing and comment and leaving the size of 5 acres. The provision that the "acquisition of land by the Brevard County Environmentally Endangered Lands Program shall be voluntary, and shall not include the use of eminent domain" should not be removed in Policy 9.4 (pg. 45). These new provisions do not meet the requirements of Fl. Stat. Sections 120.58(8) and 120.525, Fl. Stat. Sections 163.3161(18), Fl. Stat. Sections 163.3181, Fl. Stat. Sections 163.3184(15), Fl. Stat. Sections 125.66(2), and or Fl. Stat. Sections 125.66(4). (The identified sentence and references were stricken. See Preliminary Statement.) Again, there were no changes to the Glossary to be noticed for hearing. As to "crucial habitat," amended Policy 9.2 of the Conservation Element requires that an ordinance be developed by 2002 requiring a "crucial habitat" review at the pre-application stage of certain projects. Previously, the plan required development of an ordinance in 2004 requiring a "critical habitat" review in those situations. Apparently, "critical habitat" was defined in the pre-amendment Glossary. (Neither the Glossary nor the rest of the County's Comprehensive Plan prior to the Plan Amendments was put in evidence.) No regulations regarding "crucial habitat" were in effect as of final hearing. A definition of the term "crucial habitat" might well be desirable. (Apparently, an amendment to the Glossary to include such a definition is being considered by someone--it is not clear from the evidence by whom.) But it is possible to use dictionary definitions of "crucial" and "habitat" to derive a useful meaning of the term "crucial habitat" used in Policy 9.2 of the Conservation Element. Petitioners did not prove beyond fair debate that the term "crucial habitat" cannot be adequately understood without a specific definition in the comprehensive plan. "Species of special concern" is a phrase used by Rule 9J-5.013(1)(a)5. in describing natural resources to be identified and analyzed in a local government's conservation element. The "resource maps" mentioned in paragraph 8.I.C., D., and E. of the Amended Petition are not new to the County's Comprehensive Plan. Prior to the Plan Amendments, Policy 10.2.A. stated that the County's Office of Natural Resources Management must "develop resource maps showing potential areas for critical wildlife habitat for threatened and endangered wildlife species." Amended Policy 9.2.A. requires that Office to "use resource maps which show potential areas of crucial wildlife habitat for threatened and endangered wildlife species and species of special concern." While the descriptions of these maps were changed by the amendment, the general manner in which they are identified is the same. It was not proven beyond fair debate that the amendments cannot be adequately understood without identification in a more specific manner or reference to maps already completed. Petitioners' next complaint in paragraph 8.I.C., D., and E. of the Amended Petition was that the threshold for required crucial habitat review in Policy 9.2.C. of the Conservation Element should not have been changed from five-acre projects to one-acre projects. Petitioners' primary argument was that the County discussed this change at a workshop. The only evidence in support of this argument was Moehle's testimony: "[T]he changes that show up in here were rejected in those previous hearings so the public has the impression well, that item is done and settled. Then all of a sudden at a workshop it shows up when nobody - they are not necessarily -- you can't obtain the advance agenda for that and you find a notice in the paper from time to time." In fact, the workshops were noticed in the newspapers. In addition, the transmittal and adoption hearings were noticed. See Findings of Fact 12-14, supra. As for Petitioners' request for reinstatement of the language regarding voluntary acquisition of environmentally endangered lands, former Policy 10.4 addressed development of an acquisition program; amended Policy 9.4 addresses a continuation of that program. The Justification explains that the amendments were "intended to reflect the achievement of this policy as a result of the EELs [Environmentally Endangered Lands] Program." There was no evidence to support the argument that removal of the voluntary acquisition language in any way changes the EELs Program or creates a compliance issue. Conservation Element Policy 9.13, Species of Special Concern Paragraph 8.I.G. of the Amended Petition stated: Policy 9.13 - species of special concern, habitat rarity, pg 48. This change is inconsistent with the same Florida Statutes and for the same reasons as I.C, I.D, I.E (A, B, C, E, E) and I.F above. Policy 9.13 contains a requirement to develop model management plans for species of special concern dependent on habitat rarity and loss rates. The amendment to former Policy 10.13 merely changes the target date (from 1990 to 2002) and adds "species of special concern" to the other resources sought to be addressed by the model management plans. The provision does not establish new regulations. It merely calls for future action in the development of model management plans. Again, there was no evidence to support the argument that these changes created a compliance issue. See Findings of Fact 32-33, supra. Scrub Habitat Map Paragraph 8.I.H. of the Amended Petition stated: Appendix - List of Maps, pg 52. The Scrub Habitat Map should not be included because it is part of the Scrub Habitat Study done in Brevard County which was not adopted/accepted as a final map by the Brevard County Board of County Commissioners. The map is a "draft" map done over 5 years ago, not finalized, and not accurate. Objections at public meetings, with Brevard County Staff, and with the outside consultants preparing the map have never been addressed on the map. Among the inaccuracies are hundreds (maybe thousands) of acres on government lands. The map is wholly deficient and incorrect to become an official map representing the scrub habitat of Brevard County. It doesn't come close to accurately depicting the scrub situation of Brevard County. The map is not supported by competent substantial evidence, has not been officially adopted by the County Commission, the requisite public notices have not been held. Any policy or regulation based upon the map would be equally erroneous and would result in unnecessary regulatory costs, and would be arbitrary or capricious and would be based upon inadequate standards. At final hearing, Moehle testified: "The scrub habitat map as included in the amendments does not include the best available information which information has been available for a number of years." But the Scrub Jay Habitat map Petitioners sought to use to prove this contention (Petitioners' Exhibit 6) was not admitted into evidence because it was not authenticated. The Scrub Habitat Map apparently added to the Appendix of Conservation Element maps through the B.12 Plan Amendments does not appear to map scrub on federal lands. (At least, no scrub is indicated in the extensive federal lands on the map.) But there was no competent evidence as to the significance of the failure to map scrub habitat on federal lands. (Nor did Petitioners cite to any authority for the proposition that excluding federal lands outside the County's jurisdiction is a violation of Chapter 163 or Rule 9J-5.) While Petitioners never clearly articulated their concerns about the Scrub Habitat Map, it appeared that they might have had concerns about the impact of the map on protection of scrub jays. Specifically, Petitioners seem to contend that some scrub jays will not be protected as a result of the map's omission of scrub on federal lands. But, in that regard, amended Conservation Element Policy 9.2. in the B.12 Plan Amendments provides for the development of an ordinance by 2002 that would provide, among other things, that if any endangered or threatened species or species of special concern are found on a project site, or there is evidence that such a species is onsite, the relevant state and federal agency permits would have to be obtained and documented prior to issuance of a building or construction permit. Once adopted, these regulations would protect scrub jays wherever the birds exist. Another apparent concern was that the Scrub Habitat Map allegedly was over 5 years old. Meanwhile, other maps allegedly have been or are in the process of being developed. But Petitioners' evidence was insufficient to prove beyond fair debate that the Scrub Habitat Map was not the best available data at the time of adoption of the Plan Amendments. Land Use Element, Administrative Policies Paragraph 8.II. of the Amended Petition states: Comprehensive Plan Amendment 1999B.13 The Administrative Policies 1 thru 8 (pg iv) which have been proposed for inclusion in the future Land Use Element by the County Attorney and added by a April 29, 2000 workshop were not timely provided for public review and comment by a properly noticed hearing in violation of the notice requirements of Florida Statutes subsections 163.3161(18), 163.3181, 163.3184(15), 125.66(2) and 125.66(4). They are over- broad, too general in nature, vague, and fail to establish adequate standards for county staff decisions, and vest unbridled discretion in the county staff in violation of Florida Statute 120.54(8). Detailed examples of this include: In Administrative Policy 1 - Brevard County zoning officials, planners and the director of planning and zoning should not be arbitrarily, capriciously, and without adequate defined standards be recognized as expert witnesses. Standards with detailed qualifications should be developed and included for each category of expert before this provision is considered for adoption. In Policy 2 (page iv) county staff recommendation should not automatically be considered expert testimony without qualifications. Page 1 under DIRECTIVES. The Future Land Use paragraph should not be deleted until sufficient emphasis has been placed in the requirement to ensure that sufficient land uses are available to support the anticipated population. It has not been at this time, in violation of Florida Statutes subsections 163.3177(2), 163.3177(3)(a), 163.3177(6)(a) and 163.3177(6)(f). As to 8.II.A., the evidence indicated that the advertisements were published in the time frames required and according to the standards set out by statute. See Findings of Fact 12-14, supra. Furthermore, Petitioners failed to establish that the Administrative Policies 1-8 were unavailable at the public hearing or that the Board of County Commissioners was not authorized to consider those policies. The language of the last sentence of paragraph 8.II. should have been stricken with similar provisions at the beginning of the final hearing because of its reliance on Section 120.54(8), which addresses rulemaking activities and not the compliance requirements of Chapter 163. There was no competent, substantial evidence to support any of the other allegations in paragraph 8.II.A. As to 8.II.A.(iii), there was only Moehle's statement regarding the lack of land availability while he was questioning Poplin. Poplin testified that the County should provide an adequate amount of different land uses to accommodate a variety of people and activities. She also testified that the County had provided more than enough residential land to accommodate projected populations. Poplin noted that the County's EAR (Evaluation and Appraisal Report) included or referenced several sources indicating that the County has more than enough land to meet their residential and non-residential needs through the planning time frame. In fact, she testified that land allocated for residential use is over 170 percent of the land necessary for the County's projected population. In explaining the "right-sizing" undertaken in the Plan Amendment, Poplin testified that two major changes have occurred since the adoption of the original County Plan. First, the County sold a substantial amount of land to the water management district; this land is now designated as Conservation. Secondly, some developments have been built to less than their full potential. Poplin testified: "My understanding of the County's actions is that this right sizing is to recognize areas that have developed and maybe have developed at lower densities. So by revising the densities on the map, they're recognizing this." Finally, Poplin testified that the future land use map (FLUM) and the policies proposed in the subject Plan Amendment are consistent with previous actions, previous development patterns, and previous purchases that have occurred within the County. As for Section 163.3177(2), cited by Petitioners at the end of paragraph 8.II.A.(iii) of the Amended Petition, the statute requires coordination of the land use elements. Poplin testified that the County has adequate facilities and services to provide for the land use plan proposed in its FLUM. Section 163.3177(6)(f) requires a housing element. There was no evidence that these elements do not exist in the County's comprehensive plan. Land Use Element Policy 1.1, Residential Land Use Designations Almost all of Paragraph 8.II.B. of the Amended Petition was stricken. See Preliminary Statement. Only the title and last sentence remained: Residential Land Use Designations, Policy 1.1 (reduced densities - pg 14). Property owners (including PETITIONERS) whose land use/zoning classification is no longer in compliance with the comprehensive plan amendment have not been notified as required by Florida Statutes subsection 125.66. Petitioners themselves provided evidence establishing that the statutory notice was properly given. See Findings of Fact 12- 14, supra. Land Use Element Policy 1.2, Public Facilities and Services The last sentence of Paragraph 8.II.C. of the Amended Petition was stricken. See Preliminary Statement. The remaining allegation was: Public Facilities and Services Requirements, Policy 1.2 (page 15). In subsection E, the prohibition by use of the words "shall not" are too harsh, restrictive, and confiscatory and should be replaced "shall not be required at the expense of the County." But the language of Criterion F under Future Land Use Element (FLUE) Policy 1.2 already states what Petitioners seek. Simply stated, Petitioners want the policy to state that private parties were not prohibited from building additional public facilities. The second sentence of the policy states: "This criterion is not intended to preclude acceptance of dedicated facilities and services by the county through . . . other means through which the recipients pay for the service or facility." Finally, the language of Criterion F under Policy 1.2 existed elsewhere in the Comprehensive Plan prior to the Plan Amendments; it is not new. The Plan Amendments simply changed the location of the language in the Plan. Land Use Policies 1.31 and 1.4 Paragraph 8.II.D. of the Amended Petition stated: Residential 30, Policy 1.31 and Residential 15, Policy 1.4 (pgs. 16, 18). In subsections 1.31.A.1.3 and 1.4.A. respectively, the limitation of this designation to east of Interstate 95 is arbitrary, capricious and is not supported by substantial evidence. It imposes excessive regulatory costs upon regulated property owners. It is confiscatory and fails to recognize the vested rights of property owners. There are areas west of Interstate 95 just as suitable and qualifying as areas east of Interstate 95. This policy fails to recognize existing or new infrastructure which services areas west of I-95 and is therefore inconsistent with other policies. New policy 1.4 is similar and related and also limits densities west of Interstate 95 under all circumstances. This change and any other related restrictions to all areas west of I-95 should be eliminated. FLUE Policies 1.3 (the proper number, not 1.31) and 1.4 deal with residential densities. Pertinent to Petitioners' complaint, Residential 30, allowing up to 30 units per acre, is located east of Interstate 95; generally, maximum residential density west of Interstate 95 is 15 units per acre in Residential 15, except where "adjacent to existing or designated residential densities of an equal or higher density allowance." Petitioners presented no evidence in opposition to these residential densities or designations or the data and analysis supporting them. To the contrary, Poplin testified that there was adequate data and analysis to support the changes. See Finding of Fact 47, supra. The other issues raised, such as excessive regulatory costs, relate to Section 120.52, Florida Statutes (2000), standards and are not at issue in the proceeding. Land Use Policy 2.8, Community Commercial Designation Paragraph 8.II.E. of the Amended Petition stated: Locational and Development Criteria for Community Commercial Uses, Policy 2.8 (pg 38). Subsection B regarding community commercial complexes should not be limited to 40 acres at an intersection for properties that have existing land use or zoning designations compatible to the new Community Commercial designation. The same is true for the limitations of subsections, C, D, and E. These new limitations are confiscatory, fail to recognize existing land use and zoning and vested rights of property owners, are arbitrary, capricious, are not supported by competent substantial evidence, enlarge existing regulations without justification. They impose additional regulatory costs on regulated property owners when the goal of Florida Statutes Chapter 163 could be met by less restrictive and costly regulatory alternatives. Other provisions of Policy 2.8, Table 2.2, Policy 2.9, Policy 2.10 that exceed the present regulation of properties having existing land use or zoning designations or actual use should not be allowed for the same reasons. Additionally, many of these amendments were added at a April 29, 2000 workshop without complying with applicable public notice requirements. Public review and input as to these elements was therefore lacking. The plain language of Criterion B under FLUE Policy 2.8 demonstrates that the restrictions have been relaxed, not increased. Previously, Criterion C under Policy 2.8 stated: "Sites for community commercial complexes should not exceed 20 acres." The letter designation of the criterion was changed, and the criterion was amended to read: "Community commercial complexes should not exceed 40 acres at an intersection." The Justification for the change states: "Site size has been enlarged to 40 acres maximum at an intersection. Previously, this criterion could be interpreted to permit a maximum of 80 acres at an intersection (20 acres at each corner). Forty acres has been chosen as this is the DRI threshold for commercial development." On its face, the purpose of amended Criterion B under Policy 2.8 was twofold: to enlarge the site size restriction from 20 to 40 acres; and to clarify that the restriction (now 40 acres) was meant to apply to all community commercial regardless whether they are located at intersections; locating a project on different sides of the street at an intersection was not supposed to double, triple, or even quadruple the maximum site size. Petitioners' position that amended Criterion B under Policy 2.8 shrinks maximum allowable the site size is based on Moehle's assumption that 80-acre projects were permitted at intersections under prior to amended Criterion B under Policy 2.8. But there was no competent, substantial evidence to support Moehle's assumption. Petitioners also seem to contend that the phrase "at an intersection" is imprecise, leading to uncertainty that undermines the required residential allocation analysis. But it is at least fairly debatable that no more precise definition is necessary. Contrary to Moehle's speculation, it is not reasonable to construe the phrase "at an intersection" to also mean "at an indeterminate distance away from an intersection." Petitioners also took the position that "folding" previous land use classifications into Community Commercial greatly expanded the practical effect of the acreage limitation in amended Criterion B under Policy 2.8. Petitioners' evidence did not explain their position in any detail or specificity. It is possible that they had reference to Criterion D under Policy 4.5 prior to the Plan Amendment, which allowed "regional commercial centers to incorporate up to 100 acres." If so, under the B.13 Plan Amendments, amended Policy 2.12 addresses regional commercial centers by requiring their location in a new Development of Regional Impact (DRI) future land use designation. The Justification for this change was: "With the proposed establishment of a Development of Regional Impact (DRI) land use category, regional uses will no longer be permitted in a commercial future land use designation. Review in accordance with Chapter 380, F.S. standards is intended to simplify readability and maintain consistency with state statutes." Reading amended Criterion B under Policy 2.8 together with amended Policy 2.12, commercial complexes larger than 40 acres are not prohibited under the Plan Amendment; they just have to be developed in a DRI land use category under Chapter 380 DRI standards. The reasonableness of these amendments is at least fairly debatable. Meanwhile, Poplin specifically testified that the data and analysis provided by the County were adequate to support the residential and nonresidential changes, including Community Commercial and Neighborhood Commercial changes. No contrary evidence was provided. Policies 2.9 and 2.10 allow minimal extensions of commercial boundaries. No evidence was presented addressing these items. The clear evidence was contrary to Petitioners' claim of notice violations. See Findings of Fact 12-14, supra. Transitional Commercial Activities Paragraph 8.II.F. of the Amended Petition states: Transitional Commercial Activities - Community Commercial - General Tourist Commercial (TU-1) - Highway Transient Tourist (TU-2). Existing properties with Mixed Use Land Use Designations and General Tourist Commercial (TU-1) and Highway Transient Tourist (TU-2) zoning classifications have not been protected with their existing regulation constraint in the transformation into the new Neighborhood Commercial and Community Commercial Regulations as has been asserted by the COUNTY in the revised objective and policies in the provisions covering these classifications as asserted by the COUNTY. Either proposed changes should conform or the changes should not be made. The same objections and changes are made for the new confiscatory provisions of the COUNTY for existing Industrial Land Use Designations and Zoning classifications under Industrial Land Uses (Objective 3, Policy 3, pg 55). The same objections and challenges are made for new confiscatory provisions of Agricultural Land Uses (pg 67) for existing Land Use Designations and densities of lands including reductions of densities to 1 unit per 5 acres by changes from a residential classification (including existing recorded subdivision plats). Many new items of the above were made at the April 29, 2000 workshop and proper public notices, review, and comment was not available. Petitioners failed to demonstrate any impact on actual development as a result of these future land use designation changes. No defect in notice was established by the evidence. Rather, the evidence indicated that all advertising requirements were met. See Findings of Fact 12-14, supra. Finally, Poplin testified that the majority of land uses remained the same based on existing uses, and that all changes were supported by data and analysis. Future Land Use Maps Update Paragraph 8.III.A. of the Amended Petition states: Comprehensive Plan Amendment 1999 B.14. The Future Land Use Maps Update Report - The Geographic Information Systems (GIS) maps are not consistent with the existing FLUM and RDG maps. There are corrections and amplifications needed before they are acceptable. The COUNTY did not either have available or make available to the public for review and comment the map(s) as transmitted to DCA at any properly noticed Public Hearing. It was asserted by the COUNTY that no Land Use Designations, Zoning, or Density Allocation changes, were being made to property owners. That is not true. Some specific examples are Sections 3 & 15, located within Township 22 South, Range 34 East, which were changed from Residential to Agriculture Use (density from 1 unit per acre to 1 unit per 5 acres) and Sections 1, 2, 11, 12, 13, 14 within Township 22 South, Range 34 East, from density of 1 unit per acre to 1 acre per 2.5 acres. The FLUM Report explains that the FLUM series was converted from graphic format to computerized geographic information system (GIS) format; as a result, the Residential Density Guidelines (RDG) map series could be combined with the FLUM series. Petitioners failed to establish any facts demonstrating that the new GIS FLUM series was not available or discussed at properly noticed public hearings. As to notice, see Findings of Fact 12-14, supra. There was no evidence of errors on the GIS maps. Petitioners complained that the GIS maps are unusable because they are too hard to read, especially because they were black and white. But actually the FLUM series is in color. There was no competent, substantial evidence that the color maps were too hard to read or unusable. Petitioners generally complained about residential density reductions but failed to present any competent, substantial evidence as to what supposedly was wrong with those reductions. Petitioners seem to believe that they should be able to obtain all information regarding their property from the Comprehensive Plan. There is no regulation cited by Petitioners requiring that the maps be of sufficient detail to enable someone to determine all possible uses of property based solely on a review of the maps. As a practical matter, additional site-specific information is nearly always necessary. In addition, GIS maps are computerized maps which are merely referenced by the Plan. The GIS system must ultimately be consulted regarding site-specific information. Poplin testified that the GIS updating of the FLUM and RDG map series was done primarily to streamline and consolidate the two previously separate maps. Contrary to Petitioners' assertions, Poplin testified that the conversion from two graphic maps to the GIS maps was a very positive change. Mixed Use District Conversion Paragraph 8.III.B. of the Amended Petition stated: Under the MIXED USE DISTRICT CONVERSION (pg 1) - Mixed Use District (MUD) land use designation and zoning classification of General Tourist Commercial (TU-1) or Highway Tourist Commercial (TU-2) existing classifications were not listed as being reclassified (to be designated as Community Commercial). Petitioners base this contention solely on the FLUM Update in the B.14 Plan Amendments. Petitioners' contention ignores FLUE Policy 2.7 in the B.13 Plan Amendments, one of the operative policies relating to the conversion from MUD. Policy 2.7 states which uses are allowed under the Community Commercial designation. Subparagraph "c" lists "Tourist Commercial uses" as being a use under Community Commercial. In their response to the motion for involuntary dismissal, Petitioners finally acknowledged Policy 2.7 but still maintain that it cannot be determined whether TU-1 and TU-2 zoning will be classified as Community Commercial or as Neighborhood Commercial. In making this argument, Petitioners ignore FLUE Policy 2.5, another operative policy in the B.13 section of the Plan Amendment, relating to the conversion from MUD. Policy 2.5 lists "[d]evelopment activities which may be considered within Neighborhood Commercial" and omits any "tourist commercial" development activities. Based on the evidence, it seems clear that both TU-1 and TU-2 zoning will be classified as Community Commercial, and not as Neighborhood Commercial. Petitioners' allegations that they were omitted from the MUD conversion are incorrect. More About the Glossary Paragraph 8.I.V. of the Amended Petition stated: Glossary, Definitions, Thresholds, Maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14. Revised Glossary. A new Glossary and definitions was never completed and made available to the public before any properly noticed Public Hearing to properly allow public review, input, comment, etc. Incomplete or inaccurate data on thresholds and maps relating to Comprehensive Plan Amendments 1999 B.12, 1999 B.13 and 1999 B.14 were also not available. As previously found, the Glossary was not amended, and it would be inappropriate to advertise the Glossary for changes. There is no requirement that a glossary be included in a comprehensive plan. When a glossary is included, not every word in a comprehensive plan must be included. Forested Wetlands Location Map At final hearing, Petitioners asserted that the Forested Wetlands Location Map referred to and incorporated by reference in Policy 5.2.F.3. of the Conservation Element was not the best available data. This issue was not raised in the Amended Petition, and consideration of the merits of the assertion has been waived. In addition, as previously found, the language of Policy 5.2.F.3. was adopted prior to the Plan Amendments at issue in this case. See Finding of Fact 8, supra. On the merits of the argument, three forested wetlands maps were offered into evidence (as Petitioners' Exhibits 2, 3, and 4.) Only Petitioners' Exhibit 2 was admitted into evidence. Petitioners' Exhibit 2 reflects the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan. Without Petitioners' Exhibits 3 or 4 being in evidence, or any other evidence on the issue, Moehle's testimony was insufficient to prove beyond fair debate that the Forested Wetlands Location Map incorporated by reference as part of the County's comprehensive plan was not the best available data at the time of incorporation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order dismissing the Amended Petition and finding that Brevard County's Plan Amendments B.12, B.13, and B.14 are "in compliance." DONE AND ENTERED this 21st day of May, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2001. COPIES FURNISHED: Eden Bentley, Esquire Brevard County Attorney's Office 2725 St. Johns Street Viera, Florida 32940 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Charles F. Moehle Modern, Inc. Post Office Box 321417 Cocoa Beach, Florida 32932 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
