The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Amended Petition to Establish the Palm Coast Park Community Development District (Amended Petition) dated October 13, 2004. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 25th day of August, 2006.
The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2019.
The Issue Whether the proposed amendment to the St. Johns County 2015 Future Land Use Map (FLUM), adopted by Ordinance No. 2002-31, is "in compliance" with the relevant provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part, II, Florida Statutes. A second issue raised by St. Johns County (County) and The Estuaries Limited Liability Company (Estuaries) is whether, if the proposed amendment is not "in compliance," it is nevertheless valid and authorized pursuant to Chapter 70, Florida Statutes, the Bert J. Harris, Jr., Private Property Rights Protection Act.
Findings Of Fact The Parties Petitioner, Julie Parker, resides in St. Augustine, Florida, less than one and one-half miles from the proposed project site. Parker also owns other property in St. Johns County. Parker submitted oral comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM Amendment and Ordinance No. 2002-31. The parties agreed that Parker has standing in this proceeding. The County is a political subdivision of the State of Florida. The County adopted its Comprehensive Plan in 1990. The County proceeded with the evaluation and appraisal report process in 1997 and 1998. This process ultimately resulted in the adoption of the 2015 Comprehensive Plan Amendment, Goals, Objectives, and Policies, and Adopted EAR-Based Comprehensive Plan Amendment in May 2000 (May 2000 EAR-Based Plan Amendment), which was subjected to a sufficiency review by the Department and found "in compliance." Estuaries owns the 9.99 acres (the Property) that is the subject of the FLUM Amendment. Estuaries also owns approximately 8.5 acres outside, adjacent to, and west of the Property. The 8.5 acres are subject to a Conservation Easement, which prohibits any development activity thereon. (The total contiguous land owned by Estuaries is approximately 18.5 acres.) The parties stipulated that the legal description of the Property attached to Ordinance No. 2002-31 contains less than 10 acres. Estuaries submitted comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM amendment. Estuaries has standing to participate as a party in this proceeding. The Property The Property is part of a larger tract owned by Estuaries, i.e., approximately 9.9 acres out of a total tract of approximately 18.5 acres. The entire 18.5 acre tract is located on Anastasia Island, a barrier island, which extends from the St. Augustine Inlet to the Matanzas Inlet. According to the 2000 Census, there are approximately 12,000 dwelling units on Anastasia Island. This includes condominium units and single-family units. The approximately 18.5-acre site is also located in the Coastal High Hazard Area under the County May 2000 EAR-Based Plan Amendment. The Property is part of Butler Beach (bordering the Atlantic Ocean), which is an historic area because it was settled in the early 1900's by black citizens and provided them with access to the beach, which was previously unavailable. However, no historic structures or uses have occurred on the Property. The entire 18.5 acre tract is located on the south side of Riverside Boulevard. The Property is located approximately 300 feet west of Highway A1A South (A1A runs north and south). The Intracoastal Waterway and the Matanzas River are west and adjacent to the 18.5 acres. The Estuaries site is also located adjacent to the Guana Tolomato Matanzas National Estuarine Research Reserve (NERR). The Property is vacant, partially wooded, and also consists of undeveloped wetlands. Of the 9.99 acres, approximately 6.7 acres are uplands and developable, and 3.29 acres are wetlands. As noted, the remaining approximately 8.5 acres of the Estuaries' property, and to the west of the Property, is subject to a Conservation Easement in favor of the County. The properties adjacent to the Property include the following: Single-family residential units are located along and on the north side Riverside Boulevard. The existing FLUM designations for this area are Residential Coastal Density A and C, with the existing zoning of open rural (OR). (Residential Coastal Density C permits 2.0 to 4.0 units per acre.) The Intracoastal portion of Butler State Park is to the south of the Property, with a FLUM designation of parks and open space and existing zoning of OR and is not in a conservation area. To the east of the Property is a utility substation site, Butler Avenue, various commercial uses, Island House Rentals or Condominiums (three-story oceanfront condominiums), and the Mary Street Runway. There is another condominium called Creston House, directly south of the Butler Park (ocean portion) area (distinguished from the Butler State Park), consisting of three stories. (Butler Park and Creston House are located east of A1A and southeast of the Estuaries property.) The existing FLUM designations are Coastal Residential Coastal Density A and C, and have existing zoning designations of Residential General (RG)-1 and Commercial General (CG). There are no Residential Density D FLUM land use designations in the contiguous area. In short, the Property is proximate to a state park, a densely developed area comprised of small residential lots of 25 by 100 feet lots, and the two three-story condominiums, which were built prior to the adoption of the County's 1990 Comprehensive Plan. The County's Comprehensive Plan and EAR-Based Amendments On September 14, 1990, the County adopted a Comprehensive Plan-1990-2005, with amendments (the 1990 Plan). Under the 1990 Plan, the Property was assigned a Residential Coastal-A land use designation under the existing FLUM, which meant that residential development was restricted to no more than one residential unit per upland (non-wetland jurisdictional) acre. Under this designation, approximately seven units could have been built on the Property. The zoning on the Property was and is RG-1. According to the County, at least as of a June 11, 1999, letter from the County's principal planner, Timothy W. Brown, A.I.C.P., to Kevin M. Davenport, P.E., the total units which would be allowed on the Property were 116 multi-family units, derived after making a detailed density calculation based in part on using 40 percent of the wetlands used for the density calculation. In May 2000, the County adopted the EAR-Based Plan Amendment, with supporting data and analysis, which the Department of Community Affairs found to be "in compliance." As required by Chapter 163, Part II, Florida Statutes, this would have included data and analysis for the Future Land Use Element (FLUE), which was adopted as part of these plan amendments. This is part of the data and analysis which supports the FLUM Amendment at issue in this proceeding. The May 2000 EAR-Based Plan Amendment continued the Residential Coastal A land use designation of the Property, which allows 0.4 to 1.0 units per acre. (Residential Coastal B allows 2.0 units per acre; Residential Coastal C allows 2.0 to 4.0 units per acre; and Residential Coastal D allows 4.0 to 8.0 units per acre.) The Residential Coastal A designation authorizes residential and non-residential uses, such as schools, public service facilities, police, fire, and neighborhood commercial. Restaurants and banks without drive-thru facilities, gasoline pumps, and professional office buildings are examples of neighborhood commercial uses. The May 2000 EAR-Based Plan Amendment does not limit the lot size, subject to limitations on, for example, impervious surface ratios, which do not change regardless of whether the land use designation is Residential Coastal A or D. Also, any development would also have to comply with the textural provisions of the May 2000 EAR- Based Plan Amendment, including the coastal and conservation elements. The Circuit Court Litigation There are many documents in this case which pertain to the litigation between Estuaries and the County. The civil action was filed in the Circuit Court of the Seventh Judicial Circuit, in and for St. Johns County, Florida, and styled The Estuaries Limited Liability Company v. St. Johns County, Florida, Case No. CA-00271. On February 11, 2000, Estuaries filed a Complaint against the County "relating to certain representations made by the County in connection with the development of certain real property located south of St. Augustine Beach in St. Johns County, Florida." A Second Amended Complaint was filed on or about May 30, 2001. Estuaries claimed that County staff made representations to Estuaries, which resulted in Estuaries having a vested right to develop its Property up to a maximum of 116 multi-family residential units. (The County took the position that Estuaries could build no more than 25 units on the Property.) Estuaries claimed that it had vested rights based upon a claim of equitable estoppel against the County. (One of Estuaries' claims was brought pursuant to the Bert Harris, Jr., Private Property Rights Protection Act, Chapter 70, Florida Statutes.)1 After discovery and the denial of motions for summary judgment, the parties entered into a "Settlement Agreement and Complete Release" (Settlement Agreement). The "General Terms of Settlement" in the Settlement Agreement provided in part: Estuaries shall prepare and file an application to amend the future land use map of the St. Johns County Comprehensive Plan to amend the designation of only that portion of the Property such that Estuaries may build 56 multi-family residential units on the Property and such that the amendment be a "Small-scale Amendment" as defined by the Local Government Comprehensive Planning Act. Estuaries agrees on behalf of itself, its successors and assigns to build not more than 56 units on the Property. County will waive or pay the application fee and will expedite its processing. The parties will forthwith prepare and submit to the Court a joint motion for the approval of this Agreement pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act, §70.001(4)(d)2. During the review and consideration of the amendment application, the County will expeditiously process the Estuaries' revised construction plans and, in connection therewith, the construction codes in effect as of November 13, 2001 (to the extent the County may do so without violating county, state or federal law), the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land Development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply. In all other respects, the revised construction plans shall comply with all other Comprehensive Plan and County ordinances and regulations. On or about November 16, 2001, counsel for the parties signed a Joint Motion, requesting the circuit court to approve the Settlement Agreement pursuant to Section 70.001(4)(d)2., Florida Statutes. On November 16, 2001, Circuit Judge John Michael Traynor, entered an "Order Approving Settlement Agreement pursuant to Bert J. Harris, Jr. Private Property Rights Protection Act." Judge Traynor stated in part: The central issue in this litigation has been the number of dwelling units that would be permitted on the Property. The issues in the case are legally complex and, although the credibility of the testimony and authenticity of the exhibits expected to be introduced was not expected to be substantially in dispute or challenged, the meaning of the testimony and the meaning and inferences to be drawn from such evidence was very much in dispute. The issues included the extent of vested rights, the extent to which estoppel may be applied to the County, contractual liability, and potential liability under the Bert J. Harris, Jr. Private Property Rights Protection Act . . . and the relief requested included the request for a declaration that the Plaintiff is entitled to build up to 116 dwelling units on the Property and damages against the County. Judge Traynor also "Ordered and Adjudged," in part: Pursuant to Florida Statute § 70.001(4)(a) & (c) and applicable law, this Court finds that proper notice of a Bert Harris Act claim was timely provided to the County, and other governmental entities, and the County did make a written settlement offer to the Plaintiff, in accordance with the Bert Harris Act, that was accepted by Plaintiff. Florida Statute § 70.001(4)(c) permits, inter alia, for an adjustment of land development provisions controlling the development of a plaintiff's property; increases or modifications in the density, intensity, or use of areas of development; the transfer of development rights; conditioning the amount of development or use permitted; issuance of a development order, a variance, special exceptions, or other extraordinary relief; and such other actions specified in the statute. While the parties may dispute whether an amendment is necessary to the County's Comprehensive Plan, the parties have agreed that the Plaintiff shall submit a small-scale amendment to the County for consideration and approval pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act. . .; without waiver of either party's rights to contest and defend the necessity of submitting such an amendment, in light of this Court's approval of the settlement agreement pursuant to the Bert Harris Act and applicable law. The Court finds that the Settlement Agreement and Complete Release is fair, reasonable and adequate; is in the best interests of the parties and protects the public interest served by the Local Government Comprehensive Planning and Land Development Regulation Act. . .; and is the appropriate relief necessary to prevent the County's regulatory efforts from inordinately burdening the Property with regard to density, impact on public services, the environment and the public health, safety and welfare of the community and the rights of individuals to reasonably utilize their property and to rely on the representations of government, taking into consideration the risks that both parties had in this litigation. This litigation has been ongoing for more than 18 months, and substantial discovery and record has been presented to the Court that provides ample basis for this Court's approval of this settlement as being fair, reasonable and adequate and appropriate under the Bert Harris Act. There is no evidence before the Court that would suggest that the proposed settlement is the result of any collusion among the parties or their counsel. In fact, the record is to the contrary, whereby counsel on both sides have aggressively and zealously pursued the interests of their respective clients. . . . Judge Traynor directed the parties to implement the terms of the Settlement Agreement, "subject to the right of the public to comment at an appropriate public hearing pertaining to the above referenced small scale amendment to the County's Comprehensive Plan, and shall cooperate to accomplish in good faith the responsibilities under the Settlement Agreement and Complete Release." There is no evidence that Judge Traynor's Order has been rescinded or otherwise modified. There is no statutory authority to collaterally attack Judge Traynor's Order in this proceeding nor is there any authority which provides that this Order can be ignored. Also, this is not the appropriate proceeding to determine whether Estuaries has, in fact, vested rights. Accordingly, Judge Traynor's Order, approving the Settlement Agreement, is accepted as binding authority. The Small Scale Development Application In compliance with Judge Traynor's Order and the Settlement Agreement, on March 26, 2002, Estuaries filed a "Small Scale Amendment Comprehensive Plan Amendment Application Form" with the County. Estuaries requested a change in the Property's FLUM designation from Residential Coastal A, Zoning RG-1 to Residential Coastal D, Zoning RG-1. Estuaries represented, in part, that the Property consisted of 9.99 acres of vacant land, including 3.2 acres of wetlands and approximately 6.7 acres of developable land (uplands) "which will be developed into a 56 unit Multi-Family Condominium." County staff reviewed the application and recommended approval. As part of the agenda item for consideration by the St. Johns County Board of County Commissioners, County staff, in light of the criterion of "Consistency with the Goals, Objectives and Policies of the Comprehensive Plan, State Comprehensive Plan and the Northeast Florida Regional Policy Plan," stated: "[t]he approved Settlement Agreement was filed pursuant to Chapter 70.001." With respect to "Impacts on Public Facilities and Services," County staff stated: "The project has received a Certificate of Concurrency addressing the impacts on transportation, water, sewer, recreation, drainage, solid waste and mass transit. The Certificate of Concurrency is based on impacts of 84 multi-family dwelling units. Pursuant to the Settlement Agreement, the project contains 56 multi-family dwelling units. St. Johns County provides central water and sewer." With respect to "Compatibility with Surrounding Area," County staff stated: "The area is developed with a mixture of residential, commercial, park (Butler Park), and vacant land of various zoning." According to Mr. Scott Clem, the County's Director of Growth Management Services, County staff felt that there were adequate public facilities for a 56-unit project, because Estuaries had previously demonstrated that facilities were available for an 84-unit project. However, County staff expressly noted in the Planning Department Staff Report submitted to the Planning and Zoning Agency that "[t]here are no development plans included in the Application. However, all site engineering, drainage and required infrastructure improvements will be reviewed pursuant to the Development Review Process to ensure that the development complies with all applicable federal, state and local regulations and permitting requirements. No permits shall authorize development prior to compliance with all applicable regulations." At this point in time, County staff were "analyzing the potential for 56 units to be on the property. It was a site specific analysis at that point." On April 18, 2002, the Planning and Zoning Agency unanimously recommended approval of the FLUM amendment. After a properly noticed public hearing, on May 28, 2002, the County approved the FLUM Amendment in Ordinance 2002- 31. In Ordinance 2002-31, the County approved the FLUM Amendment at issue, which changed the FLUM land use classification of the Property from Residential Coastal A to Residential Coastal D. Ordinance 2002-31 also provided: "The Land Uses allowed by this Small Scale Comprehensive Plan Amendment shall be limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height." The Challenge Parker filed an Amended Petition challenging the lack of data and analysis to support the FLUM Amendment; challenging the increase in density of the Property located in a Coastal High Hazard Area; challenging the internal consistency of the FLUM Amendment with the May 2000 EAR-Based Plan Amendment; challenging the decision by the County to process the application as a small scale development amendment; and challenging the failure to provide Parker with adequate notice of a clear point of entry to challenge Ordinance No. 2002-31. Notice The County provided notice, by newspaper, of the Board of County Commissioners' meeting of May 28, 2002. Before this meeting, a sign was placed on the Property, providing notice of the meeting. Parker personally attended the May 28, 2002, meeting and addressed the Commission regarding the FLUM Amendment. Ordinance No. 2002-31 provided: "This ordinance shall take effect 31 days after adoption. If challenged within 30 days after adoption, this ordinance shall not become effective until the state land planning agency or the Administration Commission issues a final order determining the adopted small scale amendment is in compliance." This Ordinance does not advise a person of the right to challenge the Ordinance pursuant to Chapter 120, Florida Statutes, the Uniform Rules of Procedure, or Section 163.3187(3)(a), Florida Statutes. This type of notice is not required for the reasons set forth in the Conclusions of Law. Does the FLUM Amendment, covering 9.99 acres, involve a "use" of 10 acres or fewer, pursuant to Section 163.3187(1)(c)1., Florida Statutes? "A small scale development amendment may be adopted only [if] [t]he proposed amendment involves a use of 10 acres or fewer." Section 163.3187(1)(c)1., Florida Statutes.2 In the Amended Petition and in her Prehearing Stipulation, Parker contends that the "use," which is the subject of the FLUM Amendment, relates to more than the 9.99 acre parcel and, therefore, the FLUM Amendment is not a small scale development amendment defined in Section 163.3187(1)(c)1., Florida Statutes. Parker contended that because the FLUM Amendment authorizes a maximum of 56 residential units to be developed on the Property, and the maximum density under the Residential Coastal D and RG-1 zoning designations is 42.12 units, using the on-site wetlands density bonus, that Estuaries "must be using the off-site wetlands that are contained within the 18.5 acre parcel to obtain the density credit necessary to reach 56 units for the site under" the FLUM Amendment. The 56 residential unit maximum was the product of the circuit court litigation and Settlement Agreement, as approved by Judge Traynor, which resolved the differences between the County and Estuaries regarding the maximum residential density which could be authorized on the Property. Parker also contended that because Estuaries may use a proposed lift station owned by the County off-site, that this causes the proposed "use" of the Property to exceed 10 acres. It appears that at some prior time in the "vesting rights" chronology of events, Magnolia S Corporation, in order to downscale the project, agreed to sell a 40' by 80' parcel to the County, located adjacent to the Property and in the northeast portion, to expand the existing County lift station on Riverside Boulevard. There is a lift station adjacent to the Property that serves as "a repump station that serves the development along Riverside [Boulevard] west of the lift station and serves all the development in St. Johns County on the island south of Riverside Boulevard." It is proposed that sewage effluent from development on the Property would be deposited on site and then pumped into an adjacent force main which eventually ends up in the station. According to Mr. Kevin Davenport, Estuaries' civil engineer, "56 units added to that pump station would be extremely miniscule in the overall amount of sewage that goes through it." Thus, Estuaries anticipates having their own on-site lift station, which "would be pumped through a pipe to the Riverside right-of- way, where it would connect to an existing county-owned pipe which currently goes to the lift station." Mr. Clem stated that "[u]tilities are very commonly done off site where water or sewer distribution or transmission lines are constructed to the site." This would include the use of off- site lift stations. However, the proposed use of the lift station does not necessarily compel the conclusion that the FLUM Amendment exceeds 9.99 acres. If this were so, any proposed use of any off-site utilities would cause a pro rata calculation and increase of the size of the site providing the service, then be added to the 9.99 acres. This is not a reasonable construction of Section 163.3187(1)(c)1., Florida Statutes. Parker also claimed that when the Estuaries granted the County a Conservation Easement for the approximately 8.5 acres (out of 18.5 acres) of wetlands adjacent to the Property, Estuaries "used" this property to secure the FLUM Amendment, and therefore, exceeded the 9.99 acres. The Conservation Easement precludes development activity on the approximately 8.51 acres. ("The purpose of this Conservation Easement is to assure that the Property will be retained forever in its existing natural condition and to prevent any use of the Property that will impair or interfere with the environmental value of the property." Prohibited uses include "[a]ctivities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or fish and wildlife habitat preservation.") The "use" of the 8.51 acres as a potential visual amenity for potential residents on the Property is not a "use" within a reasonable reading of Section 163.3187(1)(c)1., Florida Statutes. Parker also suggested that Estuaries will need to improve Riverside Boulevard (paving and drainage) and the public right-of-way consisting of approximately 1.51 acres, which is not owned by Estuaries. It appears that Riverside Boulevard is already open, improved, and paved. Also, Mr. Clem stated that it is common to have off-site improvements associated with a project, which might include intersection or roadway improvements that are not on or within the project site. Mr. Clem opined that while these improvements would be required for the project, they would have been off-site. Some improvements, such as improvements to Riverside Boulevard, would most likely benefit the general public, and not be limited to the future residents on the Property. It is common for local governments to require improvements to public infrastructure as a condition of development. These off-site improvements do not necessarily make the "development activity" larger than the size of the landowner's site, here the Property. Data and Analysis Parker contended that the FLUM Amendment is not supported by appropriate data and analysis. As noted herein, Estuaries sought approval of a FLUM Amendment for its Property, i.e., a land use change to the FLUM. No text (goals, objectives, and policies) changes to the May 2000 EAR-Based Amendment were requested nor made. This is normal for a "site-specific small scale development activity." Section 163.3187(1)(c)1.d., Florida Statutes. Consideration of the FLUM Amendment in this proceeding is unusual for several reasons. First, the necessity for the FLUM change arose as a result of the Settlement Agreement, approved by Judge Traynor, which resolved the differences existing between the County and Estuaries regarding the number of units which could, as a maximum number, be developed on the Property. Second, the data and analysis, which normally is presented to the local government, here the County, at the time the plan amendment is adopted, is not in its traditional format here, largely, it appears, because of the manner in which consideration of the FLUM Amendment arose. Nevertheless, this situation is not fatal for, under existing precedent, see, e.g., Conclusion of Law 96, data, which was in existence at the time the FLUM Amendment was adopted by the County, may be considered in determining whether there is, in fact, adequate data supporting the FLUM Amendment. The data relied on by the County and Estuaries to support the FLUM Amendment was compiled and initially presented to the County on or about July 6, 1999, when Estuaries sought authorization from the County for a proposed project to construct 84 multi-family residential units on the same general area as the Property. This started the County's development review process. Estuaries began the process at this time, believing that it had "vested rights" to develop the Property. Mr. Clem explained that the development review process is "extremely detailed. It involves 11 or 12 different programs within the [C]ounty, looking at everything from the actual site plan itself, water and sewer provision, for all the things that would go into site construction, roadway design, the environmental considerations. We basically look at how this site will be developed in accordance with the land development code and any other regulations. We ensure that the water management district permits are obtained, if applicable, or other state agencies." This record contains County Department comments which pertain to a host of issues, including but not limited to, drainage, traffic, fire services, urban forestry (trees and landscape on-site), utilities, zoning (e.g., buffers, setbacks), concurrency requirements, etc. County staff raised questions (identified as submittals) on at least four separate occasions followed by written responses by the applicant on at least three occasions. However, not all issues were resolved. A July 1999, Land Development Traffic Assessment, prepared by Beachside Consulting Engineers, Inc., was submitted to the County as part of the request for a concurrency determination. The analysis "indicates that the roadway segments within the impact area will continue to operate at an acceptable LOS through the construction of this project." The "Summary" of the assessment states: "This project meets traffic concurrency standards, as defined by the St. Johns County Concurrency Management Ordinance, for all roads within the traffic area." "Stormwater Calculations" for the 84-unit, multi-family housing development were also provided in a report dated July 7, 1999. The applicant also furnished the County with a "geotechnical report," which analyzed the soil conditions related to storm water ponds and to the placement of the buildings and the support of the buildings on the site. Soil borings and other testing revealed the capabilities of the soil for, for example, percolation rates for the storm water ponds. There is no evidence that there are any specific historic buildings or geological or archeological features on the Property. In July 1999, the applicant submitted an application for concurrency. At that time, County staff analyzed this information to ensure that public facilities and services were in place to serve the project. This application was reviewed in relation to the County's concurrency management provisions of the County's Land Development Code. On September 3, 1999, the County's Planning Department prepared a report regarding this application and recommended "approval of a Final Certificate of Concurrency with Conditions for the development of 84 residential condominium units." (Staff made findings of fact, which included a discussion of traffic, potable water/sanitary sewer, drainage, solid waste, and mass transit.) On September 8, 1999, the Concurrency Review Committee met and adopted the Staff's Findings of Fact with conditions, including but not limited to, the applicant providing a copy of the Department of Environmental Protection permits "necessary for connection to central water and wastewater service prior to Construction Plan approval," and "[t]he applicant receiving approval of construction/drainage plans from the Development Services Department prior to commencement of construction." The Final Certificate of Concurrency with Conditions was issued on October 1, 1999, and was due to expire on September 8, 2001. However, the Settlement Agreement provided, in part, that "the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply." (Emphasis added.) (Ms. Teresa Bishop's (County Planning Director) November 7, 2001, letter indicated, in part, that Estuaries' request for "tolling [of the Final Certificate of Concurrency] cannot be reviewed until the outcome of the pending litigation is known. . . . After the litigation is concluded, your request for tolling may be resubmitted for review." The Settlement Agreement post-dates this letter.) In evaluating a small scale plan amendment, County staff evaluates the availability of public services which, according to Mr. Clem, is "one of the major components," and County staff "is looking at virtually the same issues that [the County] would look at in concurrency to evaluate and make recommendations on small scale amendments." Mr. Clem also advised that the County's analysis of the 84-unit project did not involve, and was not based on, "a specific site plan with buildings at a certain location or parking in a certain location. It was more an 84- unit project with certain data and analysis associated with that site or project." By letter dated October 4, 1999, the Department of Environmental Protection indicated that it had received a "Notification for Use of the General Permit for Construction of an Extension to a Drinking Water Distribution System" submitted for the Estuaries project. The Department stated further: "After reviewing the notice, it appears that your project will have minimal adverse environmental effect and apparently can be constructed pursuant to a general permit as described in Chapter 62-555, F.A.C." The permit expires on October 4, 2004. This permit allows the applicant to demonstrate that it will offer a central water service, available to be served through the County's utility department. This would ensure that there is sufficient potable water available. By letter dated October 6, 1999, the Department of Environmental Protection also issued a permit for the construction of a sewage collection/transmission system (domestic waste). By letter dated November 11, 1999, the St. Johns Water Management District issued a "formal permit for construction and operation of stormwater management system." This permit authorized "[a] new stormwater system with stormwater treatment by wet detention to serve Estuaries Multi-family Development, a 5.88 acre project to be constructed as per plans received by the District on 7/12/1999." This permit did not relieve the applicant "from the responsibility for obtaining permits from any federal, state, and/or local agencies asserting concurrent jurisdiction over this work." Mr. Clem believed that this permit was evidence that "the state agencies ha[d] considered the environmental issues relating to storm water and all the issues that they deal with in issuing a permit." The Property is located in a "development area boundary" as indicated on the FLUM, which means that these areas allow "development potential." Other areas, such as rural silviculture and agricultural lands, are outside the development area and only limited and low density development is allowed. Conservation areas are also designated on the FLUM. Given the location of the Property within the development area boundary, the County thereby eliminated the necessity of producing some of the data normally required.3 Mr. Clem explained: So by being within a development area boundary it's in essence already had rights to develop, depending on the classification what those rights are, whether it's residential, commercial, industrial. So by virtue of the fact that this site [the Property] was already in the developmental boundary, we didn't deal with issues such as need, which is a big issue in the county when we add developmental boundary. Is there need for additional residential units, and so forth. So that is one part of the answer. The other part is when we're looking at changing from one residential classification to another, we're not dealing with the same issues we might have if it was going from residential to commercial or residential to industrial. So in the context of a plan amendment like this, we're looking at what can this land support in terms of density and are there public facilities available? Is it generally compatible with the surrounding area? What are the potential impacts to natural resources? So those things are still analyzed, but they're done in a probably more confined context. And then the other factor is this being a small scale amendment further reduces the amount of data that is typically done. And if it was a major amendment, there's a whole new range of issues when we deal with major amendments. By definition, they can cause more of an impact. For Mr. Clem, the data and analysis which was generated during the concurrency process for the proposed 84-unit project was significant and would be applicable to a proposed 56-unit project. Mr. Clem opined that the data for this small scale amendment was "[f]ar in excess of anything [he had] seen in the county." Environmental Impacts of the FLUM Amendment The area on and around the Estuaries' property is an area of tidal marsh intermixed with upland scrub. Many wildlife species have been seen utilizing the wetlands on and adjacent to the Estuaries' site (the 18.5 acre parcel). These include woodstorks, snowy egrets, roseate spoonbills, little blue herons, tri-colored herons, white ibis, and ospreys. Owls, foxes, raccoons, opossums, fiddler crabs, clams, fish, shrimp, and turtles also frequent the area. Parker's environmental scientist and ecologist, Mr. Robert Burks, testified to the environmental effects of any development of the Property subject to the FLUM Amendment. Mr. Burks has worked with American Institute of Certified Planners (A.I.C.P.) designated planners, providing them with opinions with respect to environmental issues. But he is not an expert in land use planning. The National Estuarine Research Reserve (NERR) is a program of the National Oceanic and Atmospheric Administration, a federal program administered by the Department of Environmental Protection. It is a program to do research and education on estuarine systems. The estuarine ecosystem composed of the Guana, Tolomato, and Matanzas Rivers has been designated as a NERR. There is testimony that development and increases in population in the area, in general, have been responsible for, for example, the decline and closure of shell-fishing and decline of water quality in the area. Conservation Goal E.2 provides: The County shall conserve, utilize, and protect the natural resources of the area, including air, water, wetlands, water wells, estuaries, water bodies, soils, minerals, vegetative communities, wildlife, wildlife habitat, groundwater recharge areas and other natural and environmental resources, insuring that resources are available for existing and future generations. Objective E.2.2 provides: Native Forests, Floodplains, Wetlands, Upland Communities, and Surface Water The County shall protect native forests, floodplains, wetlands, upland communities, and surface waters within the County from development impacts to provide for maintenance of environmental quality and wildlife habitats. Policy E.2.2.5.(a)(1)(b) provides: The County shall protect Environmentally Sensitive lands (ESLs) through the establishment of Land Development Regulations (LDRs) which address the alternate types of protection for each type of Environmentally Sensitive Land. Adoption and implementation of the Land Development Regulations shall, at a minimum, address the following issues: For Wetlands, Outstanding Florida Waters (OFW), and Estuaries: establish and modify buffers between the wetlands/ OFW/ estuaries and upland development as stated in the County's Land Development Regulations (LDRs), and as follows: * * * Except a minimum of a 50 ft. natural vegetative upland buffer shall be required and maintained between the development areas and the St. Johns, Matanzas, Guana and Tolomato Rivers and their associated tributaries, streams and other interconnecting water bodies. Policy E.2.2.13(b)(6) provides: By December 1999, the County shall develop and adopt guidelines and standards for the preservation and conservation of uplands through various land development techniques as follows: (b) The County shall recognize the following vegetative natural communities as Significant Natural Communities Habitat. Due to the rarity of these vegetative communities, a minimum of 10 percent of the total acreage of the Significant Natural Communities Habitat (excluding bona fide agriculture and/or silviculture operations) shall be preserved and maintained by the development. * * * (6) Scrub. Where on-site preservation of the native upland communities are not feasible, the County as an alternative shall accept a fee in lieu of preservation or off-site mitigation in accordance with the County Land Development Regulations. Mr. Burks opined that "generally," and if Goal E.2 is read "literally", the FLUM Amendment did not meet this Goal and afford protection for wetlands, vegetative communities, estuaries, wildlife and wildlife habitat. He perceives that "[a]nytime there's a development there will be impacts to the estuarine--the water bodies because of surficial runoff from the parking lots, from the impervious surfaces, and it will carry pollutants into those areas. And that includes soils also. . . . As far as upland habitat, when you develop an area like this, unless you leave certain parts, the upland habitat will be negatively impacted obviously. There won't be the trees there, the vegetation that was normally there before the development." For Mr. Burks, any development of the Property would generally be inconsistent with the Plan provisions recited above. But, his opinion is specifically based on how each system or plan for the site, or here, the Property, is actually designed--"it would depend on the design of the housing structures themselves and where they were placed. If you design anything in a manner which is going to protect that buffer and literally protect the water quality and the runoff in that area, then you may--it may not violate it." For example, if the Property were developed with 25-foot buffers instead of 50-foot buffers, Mr. Burks says that, from an ecology standpoint, there would be insufficient protection for wildlife, including threatened and endangered species. He offered the same opinion if the FLUM Amendment did not require a minimum ten percent set aside of the total acreage for significant natural communities habitat on the Property, such as, scrub of approximately 6.7 acres, a protected vegetative community existing on the upland portion of the Property. Furthermore, Parker introduced into evidence proposed site plans for the Property dated May 24, 2002, which show, in part, a 25-foot buffer, not a 50-foot buffer.4 Parker contends that these site plans are the best available data and analysis regarding whether the FLUM Amendment is "in compliance." However, the purpose of this proceeding is to determine whether the FLUM Amendment is "in compliance," not whether specific draft, and not approved, site plans are "in compliance" with the May 2000 EAR-Based Plan Amendment or the LDRs. If site plans are approved and a development order issued by the County, Parker, and any other aggrieved or adversely affected party may file a challenge pursuant to Section 163.3215, Florida Statutes. But, this is not the appropriate proceeding to challenge proposed site plans. This is not to say that proposed site plans cannot be considered data and analysis; only that they are not incorporated in the FLUM Amendment and are not subject to challenge here. See The Sierra Club, et al. v. St. John County, et al., Case Nos. 01- 1851GM and 01-1852GM (Recommended Order May 20, 2002; Final Order July 30, 2002). Internal Consistency Parker contended that the FLUM Amendment is inconsistent with several provisions of the May 2000 EAR-Based Plan Amendment. Some of these issues have been discussed above in Findings of Fact 68 to 80, pertaining to environmental considerations. Another issue is whether the FLUM Amendment, which changes the maximum density on the Property, is inconsistent with Policy E.1.3.11 which provides: "The County shall not approve Comprehensive Plan Amendments that increase the residential density on the Future Land Use Map within the Coastal High Hazard Area." See also Policy A.1.5.6 which offers almost identical language. The FLUM Amendment changes the land use designation of the Property, and allows a land use "limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height," and thus allows a potential increase in the density of the Property, located in the Coastal High Hazard Area. This resulted from the Settlement Agreement. In Policy A.1.11.6, [t]he County recognizes that the Plan's Objectives and Policies sometime serve to support competing interests. Accordingly, in such instances, and in the absence of a mandatory prohibition of the activity at issue, it is the County's intent that the Plan be construed as a whole and that potentially competing Objectives and Policies be construed together so as to render a balanced interpretation of the Plan. It is the further intent that the County interpretation of the Plan, whether by County staff, the Planning & Zoning Agency, or the Board of County Commissioners, shall be afforded appropriate deference. County interpretations of the Plan which balance potentially competing Objectives and Policies shall not be overturned in the absence of clear and convincing evidence that the County interpretation has misapplied the Plan construed as a whole. The May 2000 EAR-Based Plan Amendment Goals, Objectives, and Policies must be read in their entirety and individual provisions cannot be read in isolation. Objective E.1.3 requires the County to engage in "post disaster planning, coastal area redevelopment, and hurricane preparedness. The County shall prepare post-disaster redevelopment plans which reduce or eliminate the exposure of human life and public and private property to natural hazards." Mr. Clem opined that Policy E.1.3.11, see Finding of Fact 81, expressed "the general intent of limiting population increases that would result in adverse impacts to hurricane evacuation of the coastal areas," and, in particular, the "barrier islands." (Policy E.1.9.5, under Objective E.1.9 Hurricane Evacuation Time, provides: "St. Johns County shall attempt to limit the density within the Coastal High Hazard Area as allowed by law.") Mr. Clem further stated that the FLUM Amendment, which restricted the Property to a maximum of 56 residential units, from a possible 116 unit maximum, was consistent with the Policy which restricts density within the coastal hazard zone. In rendering his opinions, Mr. Clem balanced the above- referenced Policies with Objective A.1.16, pertaining to "private property rights." When these May 2002 EAR-Based Plan Amendment provisions are read together, it appears that Mr. Clem's interpretations are not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Community Affairs concluding that the FLUM Amendment adopted by St. Johns County in Ordinance No. 2002-31 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida. 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 17th day of December, 2002.
The Issue The issue to be determined in this case is whether the City of St. Augustine’s proposed amendment to its Comprehensive Plan, adopted via Ordinance 2015-03, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact Petitioner is an individual who owns property and resides in the City near the property that is the subject of the proposed amendment. Respondent City of St. Augustine is a municipality in St. Johns County, which has adopted a comprehensive plan pursuant to chapter 163, which it amends from time to time. Intervenor St. Augustine Lighthouse and Museum, Inc., is a not-for-profit Florida corporation, which owns approximately 6.5 acres of property located at 100 Red Cox Drive, St. Augustine, upon which the historic St. Augustine Light Station is located. St. Johns County, which previously owned the lighthouse property, conveyed the property to Intervenor in 2014. The lighthouse property was zoned “Government Use” while the County owned the property, which is a zoning category that requires government ownership. When the property was conveyed to Intervenor, it became “non-conforming” because it is now privately owned. Under the City’s Land Development Code, additions, modifications, reconstruction, and repairs of non-conforming structures and uses are restricted. These restrictions are an inconvenience and impediment to the periodic reconstructions and repairs required to maintain and improve the lighthouse tower and its associated historic structures. To remove the non-conforming status of the lighthouse property, Intervenor considered various options for rezoning the property. The best zoning district match was determined to be “Maritime Use” because it included “maritime museum” among the allowed uses. The Maritime Use zoning district is listed as an implementing zoning district under the future land use designation Medium Density Residential Mixed Use in the Comp Plan. Therefore, Intervenor applied for a small-scale (under ten acres) comprehensive plan amendment to amend the FLUM to change the land use designation for the lighthouse property from Recreation/Open Lands to Medium Density Residential Mixed Use. The amendment includes a number of special limitations that restrict the kind of development that can occur on the lighthouse property, including: (a) limiting the use of the property to maritime museum; (b) maximum 20 percent lot coverage; maximum individual building footprint of 7,500 square feet; large building setbacks, including setbacks of up to 190 feet to protect the Maritime Hammock in the southwestern corner of the property and a 120-foot-deep “viewshed” in front of the lighthouse tower; (e) review of any development proposal by the State Historical Preservation Officer (SHPO) and finding of “no adverse effect” by the SHPO as a condition precedent to any City development approval; and (f) a reverter of title to the County if Intervenor ceases to use the property for historic preservation. Petitioner expressed concern about the number of properties in his neighborhood that are still on septic tanks. However, whether the City should extend its sewer lines to serve Petitioner’s property is an issue that is irrelevant to the validity of the proposed amendment. To the extent Petitioner attempted to tie the existing septic tanks to the issue of whether the proposed amendment is consistent with public infrastructure provisions of the Comp Plan, he failed to show an inconsistency. The lighthouse property is already served by the City’s wastewater system. Furthermore, the proposed amendment would reduce the uses allowed under the existing land use designation for the lighthouse property, which reduces potential future demand on the wastewater system. Petitioner is also concerned about the lack of sidewalks, “traffic controls,” and stormwater management capacity. However, Petitioner did not demonstrate that the proposed amendment increases the need for sidewalks, traffic controls, and stormwater management. The more persuasive evidence shows the opposite, that the proposed amendment and its development restrictions reduce the need. For example, the proposed amendment eliminates residential densities allowed under the current FLUM designation. There is parking provided on the lighthouse property and visitors to the lighthouse are not allowed to park on adjacent streets. Signage at the lighthouse property directs departing visitors away from Petitioner’s neighborhood and the nearby elementary school. As an educational exhibit on the lighthouse property, small traditional wooden boats have been built by volunteer craftsmen using only hand tools. Petitioner contends this is an industrial use, which is not allowed under the proposed land use designation. However, construction by handcraft in this manner is not an industrial activity. It is an appropriate use in conjunction with a maritime museum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that the City of St. Augustine Plan Amendment 2015-03 is in compliance. DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 2015. COPIES FURNISHED: Edward Ruben Anderson 60 Magnolia Drive St. Augustine, Florida 32080 (eServed) Ralf G. Brookes, Esquire Ralf Brookes Attorney 1217 East Cape Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Sidney F. Ansbacher, Esquire Upchurch, Bailey and Upchurch, P.A. 780 North Ponce de Leon Boulevard St. Augustine, Florida 32084 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact Background This case involves the designation of six contiguous parcels located in the southern half of the City of St. Petersburg Beach (City), which is located on a barrier island sheltering the southern tip of the mainland of Pinellas County from the Gulf of Mexico. As a whole, the six parcels are bounded by the Gulf of Mexico to the west, 37th Avenue to the south, Gulf Boulevard to the east, and other privately owned property to the north. The southern boundary of the parcels is about 330 feet north of the Don Cesar Hotel and the Pinellas Bayway, which connects the City to the mainland of Pinellas County,. Gulf Boulevard in the area of the parcels is a four-lane arterial paralleling the beach. The northernmost of the six parcels measures about 61 feet by 290 feet and extends from Gulf Boulevard to the Gulf. The northernmost parcel, which contains apartments, is also known as Lot 33, Bellvista Beach, as recorded in Plat Book 7, Page 34, Public Records of Pinellas County, Florida. Immediately south of the northernmost parcel lies the parcel on which the Shalimar Motel is located. This irregularly sized parcel measures roughly 158 feet along Gulf Boulevard, 110 feet on its south boundary, 120 feet on its north boundary, and 175 feet on the west boundary. The Shalimar Motel has been in operation on this parcel since no later than 1962. The remaining four parcels6 separate the Shalimar Motel from the Gulf. Each parcel measures about 50 feet wide and 175 feet deep. A narrow road or access easement runs in a north- south direction between these parcels and the Shalimar Motel. Three of the 50-foot parcels are developed as singled family residences. The second parcel from the south is vacant. The four 50-foot parcels plus the Shalimar Motel parcel are also known as Block G, Don Cesar Place, as recorded in Plat Book 13, Pages 15-20, Public Records of Pinellas County, Florida. Including the interior road or easement, the six parcels contain about 61,508 square feet or about 1.41 acres. The northernmost parcel is about 17,739 square feet or about 0.41 acres, and the remaining parcels are about 43,769 square feet or nearly one acre. Photographs produced at the hearing depict a dune that is well covered by vegetation to the south of the six parcels. No significant vegetation and little dune remains immediately north of the parcels. Hardly any dune protects the northernmost parcel, whose seawall is several feet landward of the adjoining seawalls. A small area of dense vegetation has developed in the corner of the inset seawall and the northern face of the seawall of the northernmost of the four 50-foot parcels. The dune and accompanying vegetation begin to develop toward the southern end of the northernmost of the four 50-foot parcels. It is difficult to determine the location of the dune line relative to the west boundaries of the four 50-foot parcels. The dunes appear to have widened recently and, in the process, are covering some permanent improvements evidently at the extreme westerly end of the parcels. However, the evidence fails to establish the precise location of the west boundary of the four 50-foot parcels relative to the dune line. The vacant 50-foot parcel is posted as the private property of the Shalimar Motel. A narrow portion of dune and vegetation on the vacant parcel has been eliminated by pedestrian traffic using a paved sidewalk running toward the motel from just behind the dune line. A considerable amount of sand has been swept by the wind through the pathway. Much of the sand has been deposited against a small metal shed lying behind the dune where it reforms to the north of the pathway. The dune and vegetation begin to increase in size along the southernmost of the four 50-foot parcels. The band of vegetation doubles in width at the west end of 37th Avenue and maintains this width as it proceeds to the south. The City adopted its revised local comprehensive plan on November 7, 1989 (Plan). Except for the westerly 30 feet of the northernmost parcel, which was designated Recreation/Open Space, the future land use map (FLUM) designates all-of the six parcels as Low-Medium Density Residential,7 which allows residential development at densities up to 10 units per "net" acre (10:1). All land to the west of the Coastal Construction Control Line is designated Preservation. Medium Density/Tourist Residential allows residential development at densities up to 15 units per "gross" acre (15:1) and tourist development at densities up to 30 units per "gross" acre (30:1). Recreation/Open Space is for "recreational uses." The Department of Community Affairs (DCA) issued a Notice of Intent to find the revised plan in compliance. No affected person filed a petition challenging the determination or plan. By Ordinance No. 90-29, which became effective December 6, 1990, the City adopted the plan amendment that Petitioners challenge. The plan amendment incorrectly recites that the Plan, prior to amendment, designates all of the subject parcels as Low-Medium Density Residential. In any event, the plan amendment designates all six parcels, in their entirety, as Medium Density/Tourist Residential. Data and Analysis Density and Compatibility The data and analysis report that the population of the City was 9354 persons in 1980. Based on data-supplied by the Bureau of Economic and Business Research of the University of Florida, the data and analysis note that the population of the City increased at an average annual rate of 1.77% from 1972 to 1986, falling to a rate of 1.08% during the last seven years of the period. The data and analysis disclose that tie City is almost entirely built out. Only 33.5 acres, or 2.5%, of the City remains vacant. About one-third of the vacant land has been platted into 45 residential lots. Except for about seven acres designated commercial, the remainder of the vacant land in the City has been designated residential at densities ranging from 7.5 to 15 units per acre. A lengthy discussion in the data and analysis considers various methods for projecting the future population of the City during the planning timeframe. The data and analysis recommend that [a]fter consideration of the character of the community, the amount and character of vacant land remaining in the City, the desires of the residents to limit population growth, and the distaste for further high density/high rise residential construction, it was determined that for purposes of this Comprehensive Plan, the City . . . would be identified as a built-out community. As such, no population projections would be made beyond the carrying capacity of the land of 10,465. Future Land Use Element (FLUE), page 21. The data and analysis assume that 1.94 persons will occupy a permanent dwelling unit and 2.5 persons will occupy a transient or tourist dwelling unit, such as a motel room. After adjustment for the considerable number of nonresidents who own residences within the City, as well as applicable vacancy rates, the seasonal population was determined to be 2534 persons residing in permanent housing and 6071 persons residing in transient tourist facilities. When these seasonal populations are added to the permanent population of 10,465, the total projected population is 19,070 persons throughout the planning period. Expanding on the discussion of the preferences of residents and the built-out condition of the City, the land use analysis states: it can be assumed that any development on the remaining vacant land will be in keeping with the density and intensity of the surrounding residential properties. Any deviation from this would be counter to the direction under which this Element was prepared. FLUE, page 40. Acknowledging that no part of the City is blighted or in need of redevelopment, the analysis notes: There have been complaints regarding the development of multifamily projects adjacent to commercial tourist accommodations and, to a lesser degree, general commercial establishments. The problem is most pronounced along the Gulf side of Gulf Boulevard, in the Tourist District. Due to the purpose of this area, intense development is in keeping with its character. Although little can be done to correct the problems created by past development, amendments to' the City's land development regulations could afford additional buffering and lessen future incompatibility. With regard to redevelopment within the Tourist District, local officials are of the opinion that little change will occur in the motel/hotel density. Recent projects have resulted in the demolition of preexisting establishments and the erection and consolidation of a single new business. An example of this would be the Trade Winds Resort, where one motel was enlarged through the demolition and consolidation of three adjacent ones. FLUE, pages 40-41. The data and analysis recognize distinct neighborhoods divided by 37th Avenue. South of 37th Avenue and north of 32nd Avenue, the data and analysis identify the "Don Cesar Area" as follows: Primarily residential in character with both low density and medium density uses (single- family detached and multifamily). It is also a noteworthy area in that it contains the historic landmark Don Cesar Hotel which separates the residential Pass-a-Grille area from the more intense commercial and tourist facilities to the north. FLUE, page 6. Describing the neighborhood to the north, the data and analysis identify the "Gulf Boulevard Tourist District (Gulf Boulevard between 37th and 64th Avenues)": The most intense land use area, this district is linear in shape. It is comprised of general commercial, high density multifamily residential and commercial tourist accommodations adjacent to Gulf Boulevard. It is the one area of the City that can be considered to contain inconsistent land uses, i.e., multifamily adjacent to commercial tourist accommodations. Id. Two blocks separate the subject parcels from the Don Cesar Hotel to the south. A narrow road runs north-south through both blocks, and the lots within these two blocks are smaller than the lots constituting the six subject parcels. The dominant existing land use in these blocks is residential, with many single family dwelling units. The Plan designates the Gulf side of these two blocks as Low Density Residential and the Gulf Boulevard side as Medium Density Residential. A strip about 60 feet deep divides the Gulf side lots from the Gulf and is designated Recreation/Open Space. The west boundary of the 60- foot strip is the Coastal Construction Control Line. Thirty-Seventh Avenue is the last road connecting Gulf Boulevard to the beach for about 4300 feet to the north. After a second such road just to the north of the first, no road intersects Gulf Boulevard from the west for another 3600 feet. Except for one large parcel designated Recreation/Open Space, the land to the north of the six parcels is exclusively designated Medium Density/Tourist Residential for 3600 feet. At this point, a parcel somewhat smaller than the combined size of the six parcels is designated Medium Density Residential and two very small areas are designated Recreation/Open Space. The remaining land between Gulf Boulevard and the beach is designated Medium Density/Tourist Residential for almost one mile north of the Medium Density Residential parcel, except for a smaller parcel designated Residential/Office/Retail and two more strips of Recreation/Open Space just to the north of the Medium Density Residential parcel. The City contains about 1303 acres with about 813 acres, or 62%, devoted to existing residential uses, according to the data and analysis. About 138 acres, or 11%, of the City is devoted to existing commercial uses. The City contains no existing industrial or agricultural uses. About 57 acres, or 4.4%, of the City is in existing recreation/open space uses, and 260 acres, or 20%, is in existing public facility uses. Determining that, in 1987, 131 acres in the City were in commercial use, the land use analysis concludes that, based on a formula obtained from a publication of the Urban Land Institute, the City had 250% of the commercial acreage that it needed, based upon its population. Identification and Analysis of Dunes and Floodplain Concerning beaches and dunes, the data and analysis state in part: In the 1950s the beaches along the City of St. Petersburg Beach were narrow but there was a rather large accumulation of sand on the north end of the island, just south of Blind Pass. By the early 1970s this had changed somewhat. The beach width had increased over most of the island and erosion had occurred at the north end. The beach growth is primarily the result of nourishment projects but some may be due to erosion near the north end of the island and subsequent southerly littoral transport. The most recent nourishment along this barrier island was completed during the summer and fall of 1986. Historically, the barrier island in which St. Petersburg is located provided for the establishment of dune vegetation in the City's predevelopment days. Today, very little remains of what was once a unique ecosystem. Although the natural system has disappeared there has been a substantial effort put forth by the City to build a new dune system. Most natural sand dunes and vegetation had been eliminated and replaced by seawalls in the past. Today, the City encourages dune restoration and the construction of walkover structures. The beach area normally supports a community of salt-tolerant plants including sea oats, railroad vine and sea grapes. A few plants can still be found today scattered throughout the area. Protection or restoration of the valuable dune vegetation is necessary to maintain dune systems which in turn provide protection from high energy storm events add prevent property damage, while stabilizing the beach as well as promoting wildlife habitat areas. The City's active involvement in restoration programs has helped to alleviate many of the aforementioned problems. Coastal and Conservation Element (Coastal Element), pages 20-21. Elsewhere, the data and analysis add: Most natural sand dunes and vegetation have been eliminated by urban development. In many cases urban development can be designed to be compatible with the natural environment. However, the majority of urbanization that has occurred in the City has had a negative impact on the environment. Both natural and man-made destruction of natural dune systems and water courses has weakened the shoreline and caused erosion. Only scattered, isolated areas of marine vegetation can be found on the upland areas of the community. Due to their small size and location on private property, no attempt was made at calculating their acreage. * * * The Gulf dune systems and corresponding beach areas have also been designated as conservation areas. FLUE, page 11. Concerning the sandy beach, the data and analysis state: The entire sandy beach area is recognized as open space because it provides scenic amenities and recreation. Those portions of the beach which are privately owned (those lands lying above the mean high water line) have been recognized as municipal open space. The designation of privately owned beach lands as open space in the plan is a functional designation of how the land is used by the general public. FLUE, page 10. The data and analysis describe the protective function of the beach and dune system as follows: The beach and shoreline . . . is the City's largest and most important resource both economically and aesthetically . Management of this resource must receive a continuing effort and not be a periodic correction measure. As a result of the destruction of almost the entire dune line along the length of the Gulf beach, the potential for severe property damage during heavy or tropical storms has been significantly increased. The sand along this beach is an invaluable non-living resource which is subject to loss from wind and water, and man-made encroachments. FLUE, page 15. The data and analysis concede that the "need to preserve open space in the City . . . is critical." Recreation/Open Space Element, page 9. The relationship between open space and hazard mitigation is neatly summarized by the data and analysis as follows: Lands designated for open space and. recreational uses in high risk areas substantially reduce the amount of property at risk, leading to a reduction in future losses from hurricanes and storms. . . Coastal Element, page 56. As to the City's plan regarding recreation open space, the data and analysis state: "Currently, there are approximately 54.35 acres in [the City] dedicated to recreation open space. These areas should be protected from development and adequately maintained." Id. at page 16. The Recreation Facilities and Water-Dependent/Water-Related Facilities Map, which is part of the data and analysis included in the Recreation/Open Space Element, purportedly depicts the 57.35 acres of "recreation open space" in the City. Id. at page 9. This map, which is Map 11, inexplicably omits many parcels that the FLUM designates as Recreation/Open Space. Beginning about two blocks south of the Don Cesar Hotel, Map 11 shows the Preservation area Conservation Open Space, but fails to designate similarly any of the considerable amount of Recreation/Open Space that the FLUM depicts between the Preservation and various residential designations. In fact, except for the Preservation area seaward of the Coastal Construction Control Line and a couple of parcels designated as Conservation Open Space, Map 11 fails to depict as recreation or open space any of the land designated as Recreation/Open Space in the FLUM in the southern half of the City north of the Don Cesar Hotel. The land use analysis acknowledges that the entire City falls within the 100-year floodplain. FLUE, page 42. Recognizing that elevations range from sea level to 10 feet with about two-thirds of the City at or below an elevation of five feet, the analysis concedes that "the City is highly vulnerable to the dangers of flooding." FLUE, page 36. The 100-year floodplain is also known as the "Hurricane Vulnerability Zone." Coastal Element, page 45. Coastal High Hazard Area and Hurricanes The data and analysis identify the City's coastal high hazard area (CHHA) as "that portion of the City projected to receive the most severe damage from hurricanes and coastal storms." Coastal Element, page 44. The CHHA is the land seaward of the Coastal Construction Control Line set by the Florida Department of Natural Resources and within the V-Zone depicted in the Flood Insurance Rate Map (FIRM) used in the National Flood Insurance Program. The FIRM divides the 100-year flood zone into A-Zones and V-Zones. The V-Zones require stricter protections because they are not only vulnerable to the storm surge up to the 100-year flood level, but are also subject to the "devastating effects of velocity wave action." Coastal Element, page 47. The Coastal Construction Control Line "define[s] that portion of the beach-dune system which is subject to severe weather fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Coastal Element, page 44 (quoting Section 163.053(1), Florida Statutes.) The data and analysis report that existing land uses within the coastal high hazard area are "primarily recreation and open space and seawalls." Coastal Element, page 45. According to the data and analysis, the FLUE maintains or lowers the density of residential use (overall density to a maximum of 10 units per acre, unless development as a Planned Unit Development . . . in which a 15 unit per acre ceiling shall be established) occurring within the hurricane vulnerable section of the City. This reduction is consistent with the need to reduce the risk from hurricane evacuation and response. Id. The data and analysis devote considerable attention to hurricane evacuation times and shelters, partly in recognition that the Tampa Bay Region is "one of the most hurricane-vulnerable areas in the United States with the potential for large scale loss of life." Coastal Element, page 30. The data and analysis promote hurricane preparedness due to the location of the City on a barrier island and the large number of aged persons who may require added evacuation assistance. The City is in the "most hurricane-vulnerable area" and is divided into two evacuation zones. Coastal Element, page 33. Persons residing north of 46th Avenue will be directed to cross the Corey Causeway, and persons residing south of 46th Avenue will be directed to cross the Pinellas Bayway. The approaches to these bridges, as well as the Howard Franklin Bridge, which all City residents and most Pinellas County residents must use to reach I-4, are low-lying and will be susceptible to early flooding. Breaking down hurricane evacuation times into prelandfall hazards times and clearance times the data and analysis note that the Pinellas Bayway was one of two roadway links that, in a 1984 study, was identified as critical with 15 hours required for clearance. Two years later, another study suggested that the clearance time was reduced by four hours on a base run simulating an average evacuation level. Subsequent road improvements to the Pinellas Bayway reduced the clearance time by an additional two to nine hours. Analysis of hurricane shelters assumes a need of 10 square feet of space for emergency refuge, 20 square feet for overnight shelter, and 40 square feet for extended periods. The analysis notes various demographic factors that must be considered in calculating the amount of shelter space needed, including the "shadow evacuation" phenomenon in which nonvulnerable residents evacuate to public shelters. Deriving three rates of utilization of hurricane emergency shelters, the analysis concludes that, using the 10 square foot standard, secured public shelter Space will be exhausted if more than 14.5% of the evacuating population seeks public shelter. The assumed low rate of utilization is 15%. At the low rate, therefore, secondary shelter must be opened. With this space, Pinellas County can meet the projected demand in the event of the assumed medium rate of utilization. The analysis concedes that there is "considerable debate" over the adequacy of the 10 square foot standard. The rationale for adopting this standard is not so much a justification of the 10-foot standard as it is an acknowledgement that sufficient shelter simply does not exist: [C]onsidering the densely populated coastline in Pinellas County, the 20 square foot standard must be considered a long range objective with the ten square [foot standard] (medium demand) an intermediate standard. Given the projected demand from future growth in the City as well as the County coastal and mobile home populations, the Red Cross, County School Board, and the County Department of Civil Emergency Services will be seeking additional facilities to accommodate the future demand for public shelter in the event of a hurricanes. . . Coastal Element, page 37. The City has participated actively with the Federal Emergency Management Agency (FEMA) and Federal Insurance Administration in the National Flood Insurance Program. By letter received May 24, 1991, FEMA announced that the City's achievements in this regard earned its residents a five percent reduction on new or renewed flood insurance policies, as of October 1, 1991. Identification of Historic Resources The data and analysis disclose only two historic resources in the City. One is the Don Cesar Hotel, which was built in 1926 and is listed on the National Register for Historic National Landmarks. The second historic resource is the Pass-a- Grille Beach Church, which was built in 1913 and is now used as a private residence. The FLUE data and analysis discuss an area between 1st and 15th Avenues and Gulf and Pass-a-Grille Ways that contains about 125 buildings dating from the turn of the century. The City has applied to the federal government to include the 15- block area, which is in the southern end of the City, on the National Register of Historic Places. Goals, Objectives, and Policies FLUE Objective 1.1 is to maintain the "integrity and quality of life in existing residential neighborhoods through the maintenance of low to medium densities." FLUE Policy 1.1.5 is to use land development regulations to "[protect] existing residential areas . . . from the encroachment of incompatible activities . . . FLUE Objective 1.4 is for the City to "enhance and protect the City's existing character through redevelopment which ensures an orderly and aesthetic mixture of land uses." FLUE Policy 1.4.2 is for the City to use land development regulations to "encourage opportunities for the rehabilitation and/or revitalization of the existing residential structures" in order to "ensure the continued maintenance of [the City's] beach residential character." FLUE Objective 1.6 is: "As of the effective date of this Comprehensive Plan, development activities shall ensure the protection of historic and architecturally significant resources." FLUE Objective 1.7 is: "As of the effective date of this Comprehensive Plan, development activities shall ensure the protection of natural resources." Coastal Element Objective 2.2 is: "As of the effective date of this Comprehensive Plan, the City shall direct population concentrations away from the designated Coastal High Hazard Area." FLUE Policy 2.1.9 is for the City to "minimiz[e] development in high risk areas, such as the hurricane velocity zone, by full support of Coastal Construction Zone limitations." Coastal Element Objective 2.3 is: "As of the effective date of this Comprehensive Plan, the City shall maintain or reduce hurricane clearance times." Coastal Element Objective 2.4 is: "As of the effective date of this Comprehensive Plan the City shall reduce the risk of exposure of human life and . . . property to natural disasters through preparedness planning and implementation of hazard mitigation measures." The measure by which attainment of Objective 2.2 is evaluated is "[p]opulation density within the Coastal High Hazard Area." The measure by which attainment of Objective 2.3 is evaluated is "Hurricane Evacuation Clearance Times." The measures by which attainment of Objective 2.4 is evaluated are "[d]evelopment of City Hurricane Plan [and] [i]mplementation of Policies." Regional Plan Policy 16.5.1 of the Regional Policy Plan of the Tampa Bay Regional Planning Council (Regional Plan) states: Residential areas shall be located and designed to protect life and property from natural and man-made hazards such as flooding, excessive traffic, subsidence, noxious odors and noise. Regional Plan Policy 16.5.3 provides: Existing residential areas shall be protected from the encroachment of incompatible activities . Regional Plan Policy 16.6.1 states: Commercial land uses shall be located in a manner which ensures compatibility with the type and scale of surrounding land uses and where existing or programmed public facilities will not be overburdened. State Plan Goal 9 of the state plan is: to ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Policies 6 and 9 of Goal 9 are to: 6. Encourage land and water uses which are compatible with the protection of sensitive coastal resources. 9. Prohibit development and other activities which disturb coastal dune systems, and ensure and promote the restoration of coastal dune systems that are damaged. Section 187.201(9). Ultimate Findings of Fact Supporting Data and Analysis Petitioners have failed to establish, to the exclusion of fair debate, that the new designation given the six parcels is not supported by data and analysis in terms of densities and residential protection. The six parcels constitute 1.41 acres. The old designation allowed a density of ten units per net acre (10:1), which yields no more than 14 dwelling units. 8/ The new designation allows a density of 15 units per gross acre (15:1), which yields 21 permanent dwelling units, and a tourist density of 30 units per gross acre, which yields 42 transient or tourist dwelling units. The data and analysis support these increases in density and intensity outside of the CHHA, as are the six parcels in their entirety, and in the absence of urban sprawl considerations, which are highly unlikely due to the small, already-urbanized area involved. The original designation supported no more than 27 persons, and the new designation supports 105 persons. Even ignoring the reduced impact from actual tourist occupancy rates, the difference here is only 78 persons, which represents only 0.4% of the projected total population. The incompatibility questions are amply addressed by the establishment of 37th Avenue as a fair and practical boundary between less dense and intense uses to the south and more dense and intense uses to the north. Petitioners have failed to establish, to the exclusion of fair debate, that the new designation causes the plan, as amended, to fail to identify properly the coastal high hazard area (CHHA). To the contrary, the V-Zones shown in the FIRM, as well as the land seaward of the Coastal Control Line, are depicted within the CHHA in the vicinity of the six parcels and are properly designated as Preservation. Petitioners have failed to prove that any part of the six parcels falls within the CHHA established by the Plan or that the CHHA should be expanded. Petitioners have failed to establish, to the exclusion of fair debate, that the new designation is not supported by the analysis of existing hurricane evacuation times and hurricane shelter space for the reasons noted above in connection with population densities. Although the analysis itself suggests that the emergency-refuge standard selected for hurricane shelter space may be insufficient, the addition of another 78 persons, or 0.4% of the City's projected total population, will not have a measurable effect on the use of such space. Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not supported by the data and analysis identifying all historic resources. The data and analysis do not compel the designation of the Don Cesar Place subdivision, rather than merely the Don Cesar Hotel, as an historic resource. Moreover, the evidence does not establish that the new designation will adversely affect the neighborhood surrounding the Don Cesar Hotel. Although the five parcels south of the northernmost parcel were originally platted as part of the Don Cesar Place subdivision, the historic value is derived more from present conditions than the area platted decade ago. Thirty-Seventh Avenue serves as an effective boundary dividing land uses of differing intensity and density and thereby protecting the Don Cesar Hotel, as well as its neighborhood. Petitioners have failed to prove, to the exclusion of fair debate, that the new designation is not supported by data and analysis identifying all environmentally sensitive areas, such as dunes and the 100-year floodplain. The evidence fails to establish that the greater intensity and density allowed on the subject 1.41 acres will have a measurable effect upon the functions of the already-disturbed floodplain, which encompasses the entire City. Likewise, the evidence fails to establish that the existing dunes are incorrectly identified. It is at least fairly debatable that the existing dunes are located to the west of the subject parcels. However, Petitioners have proved to the exclusion of fair debate that the new designation accorded the 30-foot strip of the northernmost parcel is unsupported by data and analysis. The data and analysis, although sufficient to support increased density and intensity for land originally designated as Low- Medium Density Residential, offer no support whatsoever for increasing the density and intensity of land originally designated as Recreation/Open Space. The redesignation of the 30-foot strip defies the land use suitability analysis, which repeatedly emphasizes the importance of open space and the critical protective role of the beaches and dunes. Thus, the redesignation requires additional data and analysis, which the City failed to provide because it was unaware that the six parcels included any area designated Recreation/Open Space. Consistency with Miscellaneous Minimum Criteria Petitioners have failed to establish, to the exclusion of fair debate, that the plan fails to contain an objective directing densities away from known or predicted CHHA's. The plan amendment does not repeal Coastal Element Objective 2.2, which addresses this issue. Petitioners have failed to establish, to the exclusion of fair debate, that the plan fails to contain an objective mitigating natural The plan amendment does not repeal Coastal Element Objectives 2.3 and 2.4, which address this issue. Internal Consistency For the reasons set forth above, Petitioners have failed to establish, to the exclusion of fair debate, that the new designation conflicts with plan provisions protecting existing residential neighborhoods, protecting historic resources, reducing or maintaining hurricane evacuation times, engaging in hazard mitigation measures, and directing population concentrations away from the CHHA. The question is closer as to the consistency of the new designation with FLUE Objective 1.7, which requires "development activities [to] ensure the protection of natural resources." The redesignation of the 30-foot by 61-foot strip from Recreation/Open Space to Medium Density/Tourist Residential may impede the protection of natural resources, but Petitioners have not established such a fact to the exclusion of fair debate. Specifically, Petitioners failed to prove by the requisite standard that development of the strip would jeopardize the beach or dune system. Consistency with Regional Plan For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation conflicts with Regional Plan Policies 16.5.3 and 16.6.1, which involve the compatibility of residential and commercial uses, and Policy 16.5.1, which involves the protection of residential areas from natural and man-made hazards. Consistency with State Plan For the reasons set forth above, Petitioners have failed to prove, to the exclusion of fair debate, that the new designation conflicts with State Plan Goal 9 or Policies 6 and 9, which are to ensure that coastal area development does not endanger public safety or important natural resources.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs submit the Recommended Order to the Administration Commission for entry of a final order determining that the City's plan amendment is not in compliance because the redesignation of the 30-foot westerly tip of the Lot 33, Bellvista Beach, from Recreation/Open Space to Medium Density/Tourist Residential is not supported by the data and analysis. ENTERED this 13th day of December, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this on of day of December, 1991.
Findings Of Fact W. B. Johnson Properties, Inc., Petitioner, is the owner of the 428- room Holiday Inn Surfside located on Clearwater Beach. This hotel was constructed in 1981 on land zoned CTF-28 for commercial tourist facilities. The tract of land on which the hotel is situated is approximately ten acres and the maximum density of 42 rooms per acre is utilized. This hotel is currently in conformity with all building and zoning regulations. Holiday Inn Surfside has decking around its swimming pool which is capable of accommodating only 120 to 150 deck chairs for the guests of the hotel. Additional chair space, if needed, must be obtained by using the undecked area of the beach in front of the hotel. The occupancy rate for this hotel from the beginning of 1983 to date has been 80 percent. Petitioner owns the entire beach fronting its property, a distance of some 340 feet. Prior to the passage of Clearwater Ordinance No. 3075-83, the western setback line for this property was 50 feet from-mean highwater (MHW). Ordinance 3075-83 made the Coastal Construction Control Line (CCCL), as established by Section 161.063, Florida Statutes, as the western setback line for property located on Clearwater Beach. This is now the Coastal Control setback line. The Coastal Construction setback line as it crosses Petitioner's property is 338 feet from MHW of the Gulf of Mexico. Prior to the passage of Ordinance No. 3075-83, Petitioner could have constructed decking up to the then setback line, 50 feet from MHW. Petitioner is one of the few property owners on Clearwater Beach that has undisputed ownership of the beach fronting its property seaward of the CCCL. This area of Clearwater Beach in the vicinity of Holiday Inn Surfside is the widest part of the beach between the CCCL and MHW. Exhibit 7, which was submitted as a late-filed exhibit, clearly shows the beach north of Petitioner's property is not as wide as is the beach fronting Petitioner's property, and much of the property on the beach south of Petitioner's property is owned by the City. Solely by having ownership of more beachfront property seaward of the CCCL, Petitioner is more adversely affected by Ordinance No. 3075-83 than are other property owners. Petitioner has signs restricting the use of the decking around the pool to hotel guests. Petitioner also has a patio bar in the vicinity of the pool which is accessible from the beach and from the hotel. Drinks are served to the public at this patio bar. By extending the deck 28 feet seaward of the OCCL, Petitioner would be able to provide decking for an additional 150 to 170 chairs for the use of hotel guests. With an 80 percent occupancy rate there is insufficient deck space to accommodate all of the hotel guests who desire to use these facilities. Currently the excess place their deck chairs in the sand seaward of the CCCL. Those who testified in opposition to the variance requested did so on the grounds that the increased deck facilities would bring more people to the patio bar, thereby increasing the traffic and parking problems on the beach, that the hotel did not adequately restrict the use of the existing deck to guests of the hotel, and that if this application is granted it will open the doors to others who would like to construct a deck seaward of the CCCL. None of these grounds is deemed particularly meritorious. Many factors could increase the patronage of the patio bar and more adequate decking would not be a significant one, particularly in view of Petitioner's contention that the deck was reserved for guests of the hotel, albeit not strictly enforced during periods of low occupancy.
The Issue The issue in this case is whether the City of South Daytona Beach plan amendment adopted by Ordinance No. 94-05 on May 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, City of South Daytona Beach (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. Petitioner, Resolution Trust Corporation (RTC), is a federal agency now acting as the receiver for Commonwealth Federal Savings & Loan Association, a banking institution taken over by that agency and which owned the property affected by the City's plan amendment. As the owner of property within the City, RTC is an affected person within the meaning of the law and thus has standing to bring this action. The Nature of the Dispute On October 29, 1993, the City received an oral request, which was later confirmed in writing, from Thomas J. Wetherall on behalf of various residential property owners to make an amendment to the City's comprehensive plan to change certain nearby vacant land owned by RTC from a general commercial designation to residential density 1. Under the request, the City would change the use on the eastern part of RTC's 5.6 acre tract of land from commercial to single-family residential use. The specific amendment involves a change in the Future Land Use Map (FLUM). Rather than treating the change as one initiated by a property owner, the City elected to have its city manager file the application on its own behalf. Public hearings were held on the plan amendment on January 19 and February 16, 1994. A transmittal hearing was then conducted by the City on February 22, 1994, and despite objections by RTC, final adoptive action occurred on May 24, 1994, through the enactment of Ordinance No. 94-05. Thereafter, on July 1, 1994, the DCA issued a notice of intent to find the amendment in compliance. On August 5, 1994, RTC filed a petition for an administrative hearing challenging the plan amendment on the ground it was inconsistent with the law in various respects. As clarified at hearing, petitioner contends the amendment (a) violates certain provisions within Section 163.3177, Florida Statutes, (b) is inconsistent with policies 2-1, 2-4, 2-6 and 7-3 of objective 2 of the Future Land Use Element (FLUE) of the plan, and (c) is not supported by adequate data and analysis. The Plan Amendment Petitioner is the owner of a rectangular shaped tract of vacant land more commonly known as the Halifax Center. The land, which totals approximately 5.6 acres, lies between South Ridgewood Avenue (U. S. 1) to the west, Palmetto Avenue to the north, and Palmetto Circle to the east. The property being redesignated (2.6 acres) is the eastern part of the parcel and measures approximately 105 feet deep by 864 feet long. If found to be in compliance, the plan amendment would change the FLUM to redesignate the 2.6 acres of the property from general commercial to residential density 1. This means that instead of having its entire tract of property with a single designated commercial use, RTC would have a split designation, with roughly the eastern half designated as residential. Therefore, the eastern part of the tract could only be subdivided for a few substandard, medium to lower-end, single-family residential homes on lots 105 feet deep. Even then, the amendment does not give consideration to setback and buffer requirements needed between the newly created residential lots and the commercial land directly abutting their rear. Because of this, and the fact that its remaining commercial property has been reduced to a depth of 170 feet, petitioner complains that the value of its property has been substantially reduced, a concern not relevant here, and that the amendment does not conform to the requirements of the law. To the east of the subject property and across Palmetto Circle lie a string of large, single-family lots with upscale homes fronting on the Halifax River. It is this group of property owners who are responsible for the amendment. To the west of the property and across U. S. 1 is found a tract of vacant land designated for professional office land use. To the north of the property is found a combination of multi-family (8-10 units per acre) and general commercial uses. In crafting the amendment, it may be reasonably inferred that the City simply drew an arbitrary line down the middle of RTC's property, leaving what it believed to be was the bare minimum amount of commercial land necessary to comply with the plan. Although the City contended that one of the purposes of the amendment was to further its goal of increasing the amount of single-family housing in the City, it can be reasonably inferred that the true purpose of the amendment was to protect the value of homes located across Palmetto Circle by placing a buffer between their property and the commercial property to the west. Indeed, a City memorandum sent to the City's Land Development Regulation Board on January 12, 1994, stated that the purpose of the change was to "provide a buffer between (the) Ridgewood Avenue commercial zone and existing housing along Palmetto Circle." Is the Plan Amendment in Compliance? The City's comprehensive plan is broken down into elements which conform to the statutory requirements of Chapter 163, Florida Statutes. Under each element are found goals, objectives and policies. As is relevant here, the goal for the FLUE is to "(p)rovide for a well-rounded community as described in the overarching goal." Objective 2 of the FLUE is to: (l)ocate commercial and industrial land uses where transportation access is adequate and conflicts with other land uses can be minimized. Petitioner contends that the plan amendment conflicts with four of the policies which implement objective 2. These are policies 2-1, 2-4, 2-6 and 7-3, which read as follows: 2-1: Locate major commercial and industrial land uses along primary arterials. 2-4: Commercial districts along principal arterials shall be made deep enough to provide options to typical strip development. 2-6: Provide adequate commercial/industrial land for development or redevelopment which will result in a 15 percent increase in taxable value over the next ten years. 7-3: New development shall be required to be compatible with existing development by the arrangement of land use and/or the provision of adequate buffering. As noted earlier, petitioner's tract of land lies between U. S. 1 to the west and Palmetto Circle to the east. Because the western part of petitioner's property lies along Ridgewood Avenue (U.S. 1), a principal arterial road, and will continue to remain general commercial, the amendment is deemed to be consistent with policy 2-1. In other words, that portion of petitioner's property which retains a general commercial designation will be located "along primary arterials," in conformity with policy 2-1, while the remaining portion of the property which fronts on a local road (Palmetto Circle) will be designated residential. The purpose of policy 2-4 is to ensure that commercial districts along principal arterials such as U. S. 1 are deep enough to provide options to typical strip commercial development patterns. This type of development is defined as one or more buildings that are parallel to and facing the primary street with no circulation around the back. Petitioner contends that the plan amendment violates this policy since the remaining portion of its land designated general commercial will only be 170 feet deep in relation to U. S. 1, thereby severely limiting its development options. By reducing the depth of property, as will be done here by the City, the flexibility and creativity for developing petitioner's parcel will be substantially reduced. While respondents' experts opined that the site will be deep enough to accommodate some types of commercial development other than the typical strip pattern, such as freestanding buildings, a restaurant, or even two or three office buildings, the more persuasive evidence shows that anything less than 200 feet in depth eliminates virtually all meaningful development options except a strip shopping center. Since the remaining commercial land along U. S. 1 will not "be made deep enough to provide options to typical strip development," the amendment is inconsistent with policy 2-4. Under policy 2-6, the City's goal is to increase its tax base 15 percent by the year 2000. Since the overall plan went into effect in 1990, the City's tax base has increased approximately 14.5 percent. Petitioner contends that the plan amendment will substantially reduce the value of its property, and the concomitant tax base, and thus the plan amendment is inconsistent with the policy. But even if a reduction in value will occur, there is insufficient evidence to demonstrate that the City's taxable value will not increase by an additional half percent during the next five years. Accordingly, the undersigned finds the amendment to be consistent with policy 2-6. Finally, Policy 7-3 requires that new development be compatible with existing development by the arrangement of land use and/or adequate buffering. Under the proposed plan amendment, the City has created a more integrated residential neighborhood along Palmetto Circle. Also, the redesignated land will serve as a form of buffer between the residential development on the east side of Palmetto Circle and the commercial development on the west side of Palmetto Circle. Although the City asserts that the change in land use should reduce the potential amount of traffic on the local road (Palmetto Circle) that would otherwise increase through commercial development, this assertion is questionable given the fact that no access to the commercial property from Palmetto Circle now exists. Finally, if the amendment becomes operative, the property would be the only single-family residential property on the corridor east of U. S. 1 and west of Palmetto Circle. Collectively, these considerations support a finding that the plan amendment's consistency with policy 7-3 is fairly debatable. Property appraisals are not appropriate data or analysis upon which to base future land use designations. In other words, property values should not control planning decisions. If they did, future land use maps would reflect only high intensity uses, not a balanced community. Except to the limited extent it bears on policy 2-6, evidence presented by petitioner that the plan amendment would decrease the value of the Halifax Center from $610,000.00 to less than $359.000.00 has little, if any, probative value on the other relevant issues. Although petitioner raised other contentions in its initial petition, including one that the plan amendment is not supported by adequate data and analysis, these issues have been deemed to be irrelevant, abandoned, or not supported by sufficient evidence to make a finding in petitioner's favor. In determining whether a plan amendment is in compliance, the DCA looks to consistency with the plan as a whole rather than isolated parts. Therefore, an amendment may be inconsistent with the plan in certain respects, but still be in compliance as a whole unless the inconsistency is determined to be "very important." It may be reasonably inferred from the evidence that the City's policy of discouraging "typical strip development" is an important ingredient in its overall plan. To summarize, the evidence fails to show to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6 and 7-3 of objective 2 of the future land use element of the plan. As to policy 2-4, however, it is found that the City's determination of compliance is not fairly debatable, and thus the amendment is not in compliance in that respect.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of South Daytona Beach comprehensive plan amendment to be not in compliance. DONE AND ENTERED this 19th day of April, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5182GM Petitioner: Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 4. 4-6. Rejected as being a conclusion of law. 7. Partially accepted in finding of fact 9. 8. Partially accepted in finding of fact 8. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 16. 11-12. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially accepted in finding of fact 14. Partially accepted in finding of fact Rejected as being irrelevant since not Rejected as being a conclusion of law. Partially accepted in finding of fact 16. raised as an 13. issue. 19. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Rejected as being irrelevant. Partially accepted in finding of fact 17. Rejected as being irrelevant. Respondent (DCA): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in findings of fact 4, 6 and 7. 5-6. Partially accepted in finding of fact 10. 7-10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. 12-13. Partially accepted in finding of fact 13. 14. Partially accepted in finding of fact 14. 15. Partially accepted in finding of fact 15. 16. Partially accepted in finding of fact 17. Respondent (City): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5. 8. Covered in preliminary statement. 9. Partially accepted in finding of fact 12. 10-11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 15. 13-14. Rejected as being irrelevant. 15. Partially accepted in finding of fact 16. 16. Covered in preliminary statement. 17-18. Partially accepted in finding of fact 17. 19. Covered in preliminary statement. 20. Partially accepted in finding of fact 16. 21. Partially accepted in finding of fact 12. 22. Partially accepted in finding of fact 14. 23. Partially accepted in finding of fact 15. 24-26. Partially accepted in finding of fact 16. 27-28. Partially accepted in finding of fact 9. 29. Partially accepted in finding of fact 17. 30. Covered in preliminary statement. 31. Partially accepted in finding of fact 19. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 19. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Maureen A. Arago, Esquire 1411 Edgewater Drive Suite 203 Orlando, FL 32804 Karen A. Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Scott E. Simpson, Esquire 595 West Granada Boulevard Suite A Ormond Beach, FL 32174
The Issue The issue is whether the City of Panama City's small scale development amendment adopted by Ordinance No. 2055.1 on February 8, 2005, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Creekstone is a limited liability corporation and presumed to be the owner of a 3.212-acre tract of land at 305 East Beach Drive, Panama City.3 (The record does not show when or if Creekstone actually purchased the property; when the application for a land use change on the property was filed with the City, Creekstone was a contract purchaser. In its Proposed Recommended Order, however, the City states that Creekstone "recently acquired" the property.) The property lies at the northwest edge of a residential area known as The Cove and is just south of the central business district of the City. The Cove is separated from the business district by a small waterbody known as Massalina Bayou (Bayou), which is spanned by the Tarpon Bridge (Bridge) at one of the Bayou's most narrow points. The 225-foot Bridge provides the most direct and easiest access between the two areas of the City. For many years, and beginning before the City adopted its Plan, Tibbetts Boat Works, Inc. (Tibbets) occupied the site and was engaged in the boat repair business, consisting of hull repair, engine maintenance, other mechanical services, and boat bottom painting, a legal but nonconforming use under the City's land development code. Photographs of the area suggest that the business is no longer active, presumably because the property has been sold. On or about December 8, 2004, SFB Investment Company, LLLP (SFB), who then owned the property but had a contract to sell it to Creekstone, filed an application with the City Planning Board seeking a change in the land use and zoning on the property. At the Planning Board meeting on January 10, 2005, the staff noted that the proposed change would "allow an encroachment of commercial into a predominately residential area" and recommended denial of the application on the ground that the change "is inconsistent with the LDR and the Comp Plan."4 By a 3-1 vote, the City Planning Board rejected the staff recommendation and recommended that the application be approved. On February 8, 2005, by a 4-1 vote, the City accepted the recommendation of the City Planning Board and adopted Ordinance No. 2055.1, which amended the FLUM by reclassifying the land use designation on the property from MU to GC for the purpose of allowing the owner to "develop [a] multi-family project on [the] property." (Simultaneously with that change, the City also changed the zoning on the property from Mixed Use- 3 to General Commercial-2, which allows a wide range of activities, including residential, professional office and services, low-intensity commercial, public/institutional/ utilities, and high-intensity commercial.) The MU land use classification "is intended to provide areas for medium to high density residential development and low intensity commercial development," allows a density of "not more than twenty (20) dwelling units per acre," and an intensity of "[n]o more than 75% lot coverage as determined by the size of the lot compared to the amount of impervious roof and driveway/ parking lot surface." On the other hand, the GC district is "intended to provide areas for high intensity commercial development, including retail sales and services, wholesale sales, shopping centers, office complexes, and other similar land uses." There are no density restrictions, but intensity is limited to "[n]o more than 90% lot coverage." Thus, while the two land uses are similar in some respects, the highest and best use on the property will now be "high intensity commercial development," such as shopping centers and office complexes, a much more intensive use than is presently permitted under the MU land use category. To address this concern, witness Harper indicated that SFB has filed a restrictive covenant on the property which includes a shoreline buffer, as well as use, height, and setback restrictions. At the Planning Board meeting on January 10, 2005, however, the staff stated "that a covenant would not be enforceable." Under the existing land use (MU), the owner can construct up to 64 residential units on the property. That number is derived by multiplying the size of the property (3.212 acres) times the allowed density (20 units per acre). However, the current zoning on the property (which is apparently tied to the MU land use category) prohibits the construction of buildings which exceed 65 feet in height. Because of this height restriction, which limits the number of residential units that can be constructed on the property, the owner has requested a change in the land use (and zoning) so that it can develop a multi-family residential condominium project (nine stories in height) with approximately 77 units. On March 10, 2005, Mr. Cooper filed his Petition challenging the small-scale amendment. He later filed an Amended Petition on April 21, 2005. Mr. Cooper resides and owns property one-half block south of the subject property (in an area designated as a special historical zone of the City) and submitted objections to the amendment during the adoption process. As such, he is an affected person and has standing to file this challenge. Joint Exhibit 9 reflects that Creekstone is a "contract purchaser" of the subject property. It also reflects that it appeared through counsel at the adoption hearing on February 8, 2005, and offered comments in support of the plan amendment. As such, Creekstone is an affected person and has standing to participate in this case. In the parties' Pre-Hearing Stipulation, Mr. Cooper (through his former counsel) identified numerous issues, many of which were not raised in his Amended Petition. At hearing, however, he contended only that the GC land use is incompatible with the character of the surrounding area, and that the amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the Future Land Use Element (FLUE) of the Plan. All of the objectives and policies relate to the compatibility issue. In all other respects, Petitioner agrees that the plan amendment is in compliance. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Subject Property West Beach Drive runs in a northwest-southeast direction through the downtown business portion of the City until a few blocks north of the Bridge, where it changes to East Beach Drive. The roadway continues south across the Bridge and in a southerly direction along the eastern edge of St. Andrews Bay, a much larger waterbody which lies between the City and Panama City Beach. Approximately one-half mile south of the Bridge, East Beach Drive takes a 90-degree turn to the east. Most, if not all, of the peninsula south of the Bayou and Bridge and continuing until East Beach Drive turns to the east is known as The Cove, a part of which has been designated by the City as a historic special treatment zone because of its historical significance. The predominate character of The Cove is older, single-family homes. As noted above, the Bayou separates The Cove from the central business district and serves as a natural barrier between the two areas. The property is an odd-shaped parcel which sits just east of the southern terminus of the Bridge and fronts on the Bayou. (The central business district lies directly across the Bayou to the north and northwest, is classified as General Commercial or Public/Institutional, and includes a wide array of offices, government buildings, restaurants, and other commercial and public uses.) The western side of the property faces East Beach Drive. Immediately across East Beach Drive to the west (and facing St. Andrews Bay) is the Cove Harbor Condominium, a nine-story, multi-family residential condominium which was apparently constructed under MU standards, which apply to that parcel. Immediately to the east of the property is a single- family residence and then a two-story townhouse complex. The southern boundary of the property (which appears to run approximately 325 feet or so) faces East Second Court, a local road which begins on East Beach Drive and runs eastward until Watson Bayou (perhaps a mile or so away). Although a map of the historical district was not introduced into evidence by the parties, the northern and western reaches of the special treatment zone appear to begin just east of the intersection of East Second Court and East Beach Drive since the homes at 114 and 122 East Second Court are designated as having historical significance. See Respondent's Exhibit 4. These two homes appear to lie directly across the street from the southern boundary of Creekstone's property. Except for a two-story, multi-family structure (Cedar Cove Townhouses) which sits across East Second Court facing the southwest corner of the subject property, the remainder of the southern boundary of Creekstone's property faces four single-family homes. Several other multi-family structures are scattered throughout the area to the south and east, while the remainder of the neighborhood extending for at least one-half mile to the south and all the way to Watson Bayou on the east is predominately single-family residences. Finally, a condominium is located about one-half mile south of the property on the waterfront where East Beach Drive makes a 90-degree turn to the east. Except for Tibbets' activities, there is no commercial encroachment (by non-conforming use or land use classification) in the immediate area south of the Bridge and Bayou. The current FLUM shows that, with three exceptions, the entire area south of the Bridge and the Bayou to the end of the peninsula, and extending east at least a mile to Watson Bayou, is either classified as Mixed Use or Residential Low Density. (Perhaps a mile or so to the southeast there is one parcel classified as Recreation, another as Public/Institutional (which is probably a school), and a smaller adjoining parcel classified as General Commercial.) Thus, if the change is approved, the subject property will be the only parcel south of the Bridge and Bayou (except for the above exceptions which lie around a mile away) which is classified as commercial; the remainder is either mixed use or residential. Over the years, Tibbets has been the subject of City code enforcement actions, investigations by City code enforcement personnel, and investigations by the Department of Environmental Protection (DEP). It has also caused chronic environmental problems in the area. On August 27, 2002, DEP and Tibbets executed a Consent Order to resolve certain violations. Also, on April 10, 2001, Mr. Paul L. Benfield, who apparently either owned Tibbets or was associated with it in some manner, entered into a Consent Order with DEP because of his unlawful filling of 0.114 acres of jurisdictional wetlands on the site. It is fair to describe the subject property as blighted, unsightly, and in disrepair. Photographs received in evidence suggest that the business is no longer active. The parcel is fenced on three sides, and, besides an older structure which apparently housed Tibbets' office, the property contains a mixture of empty storage crates, pilings, and various pieces of equipment that were once used in the boat repair business. There are also several docks or small piers extending into the Bayou from the northwestern corner of the site. Finally, it appears that much of the eastern half of the parcel contains wetlands and is largely undeveloped. Although the staff report dated December 31, 2004, recommended denial of the application, noting that it would allow "an encroachment of commercial into a predominately residential area," it acknowledged that "[a]llowing this request can make a case for helping to rid this area of a problematic non- conforming use." See Joint Exhibit 6, page 2. Petitioner's Objections As narrowed at hearing, Mr. Cooper contends only that the plan amendment is not compatible with the character of the adjoining land in The Cove and is thus internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the FLUE. He also relies upon Policy 2.5.5(6)(e) of the City's Land Development Code. However, plan amendments do not have to be consistent with land development regulations in order to be in compliance. See § 163.3184(1)(b), Fla. Stat. Objective 1.1 requires that the City maintain a FLUM "which coordinates future land uses with . . . [compatibility]5 of adjacent land uses." Policy 1.1.1, which furthers that objective, provides in part that the City will regulate land uses through the designation of land use districts on a FLUM, and that the "location and extent of development within the City" should be "consistent with . . . compatibility of adjacent land uses." Under this objective and policy, then, land use districts on the FLUM should be located in a manner which assures compatibility with adjacent land uses. Objective 1.4 provides that the City shall "maintain procedures for the elimination or reduction of land uses inconsistent with the character of the City and the future land uses designated in the Plan." In furtherance of that objective, Policy 1.4.1 requires that the City "restrict proposed development which is inconsistent with the character of the community." Taken literally, the objective encourages the City to reduce or eliminate land uses that are inconsistent with the character of the surrounding area or other land use districts. In the same fashion, the policy requires that the City prohibit development that is not consistent with the character of the adjoining area. Finally, among other things, Policy 1.2.1 requires that the City "administer land development regulations for implementation of the Comprehensive Plan" in such a manner as to "ensure the compatibility of adjacent land uses." (The City has adopted such regulations for this purpose.) Because the implementation of land development regulations is not in issue, the provision does not appear to be relevant. According to the City's Director of Public Works, The Cove, or at least that part which lies in the area around Creekstone's property, is considered to be a part of the central business district since the two areas are "contiguous," and therefore the extension of the commercial land use district across the Bayou would be consistent with the character of the immediate area. The same view was also expressed by witness Grey. However, the two areas are physically separated by a waterbody (the Bayou) and are connected only by a 225-foot bridge which spans the Bayou at one of its most narrow points. At the same time, the land uses in the two areas are distinctly different: the business district contains a wide array of commercial and public/institutional uses while the predominate character of The Cove is single-family residential, with a scattering of multi-family residential dwellings such as townhouses and a condominium. The fact that the City interprets its GC district (presumably through its zoning regulations) as allowing certain residential uses does not change this dichotomy in character. Therefore, it is inappropriate to consider The Cove and the central business district as being contiguous, or to base a finding of compatibility on the fact that commercial uses are now found across the Bayou in the business district. The commercial land use classification has never been extended into the residential neighborhood south of the Bayou. If the change becomes effective, the new land use would be incompatible with the Residential Low Density and Mixed Use land uses which now make up the entire neighborhood. It would also be incompatible with the historic special treatment zone, which lies directly across the street from Creekstone's property. Finally, the creation of a commercial district in this area of The Cove would change the character of the neighborhood, and it is fair to infer that, even if SFB's covenant is enforceable, it would still lead to, and justify, the reclassification of other nearby parcels into commercial uses. Given these considerations, the proposed land use is internally inconsistent with the City's objective and policy that there be "[compatibility] of adjacent land uses," see Objective 1.1 and Policy 1.1.1, and Plan provisions encouraging the elimination of land uses and associated development which are inconsistent with the "character of the community." See Objective 1.4 and Policy 1.4.1. The minutes of the two meetings which culminated in the adoption of Ordinance No. 2055.1 reflect that the City's (and Planning Board's) principal rationale for the reclassification of the property was to eliminate an unsightly nonconforming use (boat repair business) which occupied the site. While it is true that the City's Plan encourages the revitalization and redevelopment of blighted areas, and provides that developers should be given "flexibility" when seeking to revitalize blighted areas, see Objectives 1.3 and 1.15 of the FLUE, there is no evidence that these objectives are intended to override (and trump) the provisions of the Plan which require that adjacent land uses be compatible with one another and preserve the character of the neighborhood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2055.1 is not in compliance. DONE AND ENTERED this 19th day of August, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2005.
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.
