Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Relinquishing Jurisdiction and Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY F LORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA 11-GM-143 CERTIFICATE OF FILING AND SERVICE LLL ETULIENG AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished by U.S. Mail to each of the persons listed below on this YY] day of aula Ford Agency Clerk Department of Community Affairs 2555 Shumard Oak Blvd Tallahassee Florida 32399-2100 By U.S. Mail The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Catherine D. Reischmann, Esq. Debra S. Babb-Nutcher, Esq. Gregg A. Johnson, Esq. Brown, Garganese, Weiss & D’agresta, P.A. 111 N. Orange Ave., Ste. 2000 Orlando, Florida 32802 creischmann@orlandolaw.net dbabb@orlandolaw.net gjohnson@orlandolaw.net Marcia Parker Tjoflat, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 mpt@papmet.com M. Lynn Pappas, Esq. Pappas, Metcalf, Jenks & Miller, P.A. 245 Riverside Ave., Ste. 400 Jacksonville, Florida 32202 Ipappas@papmet.com Linda Loomis Shelley, Esq. Fowler White Boggs & Banker, P.A. P.O. Box 11240 Tallahassee, Florida 32302 Ishelley@fowlerwhite.com Lynette Norr, Esq. Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Lynette.Norr@dca.state.fl.us FINAL ORDER NO. DCA 11-GM-143
The Issue The issue in this case is whether the land development regulations (LDRs) adopted by Respondent, City of Sunny Isles Beach (City), by Ordinance No. 2002-165 on December 10, 2002, as amended, are in compliance.
Findings Of Fact Based upon the record presented by the parties, the following undisputed findings of fact are determined: The City sits between the Intracoastal Waterway and the Atlantic Ocean in northern Dade County just south of the Town of Golden Beach (Town) and just north of the City of Bal Harbour. It was incorporated in 1997. As required by Section 163.3161, Florida Statutes, on October 5, 2000, the City adopted its first Comprehensive Plan. See Exhibit E. The Plan was amended by Ordinance No. 2002-147 on January 17, 2002. See Exhibit B. The Plan's Future Land Use Map contains a land use category known as Mixed Use-Resort/High Density (MU-R), which is "designed to encourage development and redevelopment within the area east of Collins Avenue for resort style developments catering to tourists and seasonal residents (hotel, hotel/ apartments, vacation resorts and resort style apartments) as well as high quality residential apartments." The category also allows associated retail uses such as restaurants and conference facilities that are internal and accessory to hotel/resort development. Pertinent to this dispute is Policy 15B of the Future Land Use Element (FLUE), which establishes density and intensity standards for the MU-R land use category. More specifically, the policy provides the following standards: This category allows an as-of-right density of a maximum one hundred (100) hotel- apartment units per acre and fifty (50) dwelling units per acre for apartments and a floor area ratio (FAR) intensity of 2.5. The allowable number of hotel rooms is controlled by floor area ratio. Additional residential density and FAR intensity may be permitted for developments that comply with bonus program requirements. Residential densities with bonuses may not exceed eighty (80) units per acre for solely apartments and one hundred twenty five (125) units per acre for hotel- apartments, exclusive of lockout units. (Emphasis added) Under the foregoing policy, a maximum density of 100 units per acre is allowed for hotel-apartment units, a maximum density of 50 units per acre is allowed for apartments, and a floor area ratio (FAR) intensity of 2.5 has been established. However, the underscored portion of the policy authorizes a bonus density and intensity program which allows a developer to exceed the prescribed density and intensity standards for developments "that comply with bonus program requirements." If the bonus density program requirements are satisfied, the policy establishes a cap for the density bonus at 125 hotel-apartment units per acre and 80 residential units per acre. While the policy does not establish a similar cap for the intensity bonus, it essentially defers the amount of the intensity cap and the details of the bonus program to the LDRs, which are to be adopted at a later time. Objective 8 of the Plan provides that the City "shall adopt, maintain, update and enhance development regulations and procedures to ensure that future land use and development in the City of Sunny Isles Beach is consistent with the Comprehensive Plan." Objective 15 of the Plan provides that the "land use densities, intensities and approaches [contained in Policy 15B] shall be incorporated in the Land Development Regulations." Finally, Section 163.3202(1), Florida Statutes, requires that local governments, within one year after submission of their comprehensive plans, "adopt or amend and enforce land development regulations that are consistent with and implement their comprehensive plan." On December 10, 2002, the City approved Ordinance No. 2002-165, which adopted a comprehensive set of LDRs to implement the Plan. See Exhibit C. In 2003, the LDRs were further amended in minor respects by Ordinance Nos. 2003-167, 2003-171, 2003-173, and 2003-178. See Exhibit D. In sum, the LDRs consist of more than one hundred pages of regulations, and except for one of these, Section 703.8.4(i)3, none of the other LDRs directly relates to this dispute. Section 703.8.4(i)3 implements Policy 15B by outlining the criteria and requirements necessary to qualify for additional intensity or FAR through the bonus program. It also establishes a cap on FAR intensity. If the bonus program requirements are satisfied,3 the regulation allows a maximum intensity bonus of 1.5 FAR, or a potential total FAR of 4.0, which exceeds the 2.5 FAR contained in Policy 15B. (Intensity bonuses to increase the FAR can also be obtained through the transfer of development rights under Section 515 of the LDRs. However, those bonuses are not in issue here.) Petitioners include a group of twelve City residents; the Town, which lies adjacent to, and just north of, the City; and two Town residents. There is no dispute that Petitioners will be substantially affected by the LDRs and thus they have standing to bring this challenge. In their Cross-Motion, which essentially tracks the allegations in their Amended Request for Hearing, Petitioners assert that they, and not the City, are entitled to a summary final order in their favor for three reasons. First, they argue that it is beyond fair debate that all of the LDRs, including Section 703.8.4(i)3, are inconsistent with Policies 4A and 4C of the Intergovernmental Coordination Element of the Plan because the City failed to solicit comments from the Town prior to the adoption of the LDRs. Second, they argue that it is beyond fair debate that the City violated Florida Administrative Code Rule 9J-5.005(2)(g) when it adopted Section 703.8.4(i)3. Finally, they contend that it is beyond fair debate that in order to achieve consistency with the Plan, the LDR must not establish a FAR that is beyond the intensity standard (2.5) established in the Plan. Policies 4A and 4C of the Intergovernmental Coordination Element provide as follows: 4A. The City will notify and solicit comments from adjacent jurisdictions and the School Board of any requests for land use amendments, variances, conditional uses or site plan approvals which impact property within 500 feet of a public school or within 500 feet of the boundaries of an adjacent jurisdiction. 4C. The City will notify and solicit comments from adjacent jurisdictions and the School Board of its existing standards or proposed regulations being considered for problematic or incompatible land uses. Nothing in the two policies requires that the City solicit comments from adjacent jurisdictions when adopting the LDRs being challenged here. Rather, these policies specifically address notice and comments as to "land use" changes, not the adoption of LDRs, or to "regulations being considered for problematic or incompatible land uses." Even assuming arguendo that the two policies require some type of prior notice, Petitioners do not dispute the fact (as set forth in the Department's Determination) that prior to the adoption of the LDRs, "the City notified the Town both in writing and orally". (Determination, Finding of Fact 6). Florida Administrative Code Rule 9J-5.005(2) contains general data and analyses requirements for comprehensive plans. Paragraph (2)(g), which Petitioners assert was violated by the City when it adopted Section 703.8.4(i)3, provides as follows: (g) A local government may include, as part of its adopted plan, documents adopted by reference but not incorporated verbatim into the plan. The adoption by reference must identify the title and author of the document and indicate clearly what provisions and edition of the document is being adopted. The adoption by reference may not include future amendments to the document because this would violate the statutory procedure for plan amendments and frustrate public participation on those amendments. A local government may include a provision in its plan stating that all documents adopted by reference are as they existed on a date certain. Documents adopted by reference that are revised subsequent to plan adoption will need to have their reference updated within the plan through the amendment process. Unless documents adopted by reference comply with paragraph 9J-5.005(2)(g), F.A.C., or are in the F.S., the F.A.C., or the Code of Federal Regulations, copies or summaries of the documents shall be submitted as support documents for the adopted portions of the plan amendment. This rule sets forth the manner in which local governments may adopt and incorporate by reference documents into their comprehensive plans. If they choose to do so, they must identify the title and author of the document being incorporated by reference, the edition of the document, and the specific portion of the document relied upon. Whenever an amendment or change to the incorporated document occurs at a future time, the local government must readopt those changes in order for them to be valid and effective. On its face, the rule applies exclusively to the use of incorporated documents in comprehensive plans, or plan amendments, and has no application to LDRs. In the case of Town of Golden Beach et al. v. City of Sunny Isles Beach et al., No. 03-472AP (Fla. 11th Cir.Ct., Appellate Division, June 15, 2004), a copy of which has been submitted as Exhibit G, Petitioners unsuccessfully sought by petitions for writ of certiorari to quash a City Resolution which granted Intervenor's application to construct a condominium at 19505 Collins Avenue, Sunny Isles Beach. The application sought approval of a site plan for the condominium and approval of the use of the property as a receiver site for the transfer of 38,847 square feet of transfer development rights in accordance with the City's LDRs. In that proceeding, Petitioners contended that they were denied due process because the City failed to provide proper notice to neighboring property owners under Section 515.7 of the LDRs; and that the City violated the essential requirements of the law by improperly transferring development rights and additional floor area ratio through bonuses to the developer, in excess of the 2.5 FAR expressly permitted by the City's Plan and LDRs. The court ruled in favor of the City on both issues. The parties agree, however, that a motion for rehearing of that decision has been filed by Petitioners, and the decision is not yet final. Further, the decision does not clearly indicate whether the same consistency arguments raised here were adjudicated in that matter. The notice issue is not the same.
Findings Of Fact On January 13, 1983, Respondents Donia and Bobowski filed with Monroe County petitions for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The property on which the roads are proposed to be constructed consists of two lots, each 1.09 acres in size. The lots are contiguous to each other and are located on Sugarloaf Key, Monroe County, Florida. Respondents Bobowski and Donia represented in their petitions for special use approval that they owned or were in the process of purchasing the subject property. Respondent Bobowski submitted with his application a contract for sale to him of both 1.09-acre lots which specified the sale was to be closed by March 25, 1982. Ms. Donia included with her petition a letter stating that Mr. Bobowski was in the process of deeding a portion of his land to her. On January 26, 1983, Respondent Bobowski filed a Complaint for Specific Performance against James Knox Julian, Jr., owner of record of the property for which Bobowski and Donia submitted applications for special use approval. As of September 10, 1984, Julian had filed a motion to dismiss that Complaint on grounds that there had been no pleadings filed or action taken by Bobowski for a period of more than one year. There is no evidence that James Julian authorized Respondents Donia or Bobowski to submit the applications for special use approval on his behalf. Respondents Donia and Bobowski have been sent copies of pleadings in this case. The Monroe County records containing Donia's application for special use approval indicate that Catherine Donia is now Catherine Bobowski. Ms. Bobowski participated in a telephonic conference call between the parties and the undersigned in which she was specifically advised of the scheduled final hearing in this case and of the necessity for her and Thomas Bobowski to appear to present their evidence in support of their applications. Neither she nor Mr. Bobowski, nor any representative of theirs, appeared at the final hearing. On January 20, 1983, Respondents McDonald and Allen filed an application for special use approval to deposit fill and construct an access driveway within the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The McDonald/Allen property is a 2.9 acre parcel on Sugarloaf Key in Monroe County Florida. The proposed driveway runs from State Road 939A through a tidally inundated black mangrove community to a dune ridge and tropical hardwood hammock fronting the Atlantic Ocean. The driveway project described in the original application involved the deposit of 433 cubic yards of limerock fill to construct an access driveway 325 feet long, 12 feet wide, and 4 feet deep. Six culverts twelve inches in diameter were to be placed at 50-foot intervals along the access driveway. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to replace the twelve-inch diameter culverts with four box culverts three feet by eight feet. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The McDonald/Allen property is located on the southern shoreline of Sugarloaf Key in an area referred to as Sugarloaf Beach. The foreshore or foredune fronting the Atlantic Ocean consists of a beach and berm rising to a dune crest approximately 30 feet from the ocean. The sandy beach is approximately 6 to 15 feet in width. The dune top extends landward from the dune crest for approximately 100 to 125 feet before descending to the back dune and the wet land and transitional areas. The transitional area continues landward approximately 60 feet before descending into the wetlands. The wetlands run landward approximately 300 feet to the property boundary on State Road 939A. The foreshore or foredune of the McDonald/Allen property is covered by sea oats, sea purslane and cord grass assemblage. The entire dune top from the dune crest to the back dune is covered by a mature, climax tropical hardwood association. Species present include: torchwood, white stopper, inkwood, blolly, gumbo-limbo, blackbead, Spanish stopper, Jamaican dogwood, seven-year apple, sapodilla, coconut palm, short-leaf fig, gray nicker, wild lantana, buttonwood, snowberry, prickly pear cactus, bay cedar, and spider lily. The vegetation displays a stratified structure with a high canopy composed of very large, tall trees an indication of a very mature system. The transitional wetland community found on the back dune consists of saltwort, sea daisy, railroad vine, and seagrape. The wetlands-are characterized as submergent wetlands containing black mangroves. The black mangrove community is inundated year round with water depths measured between 6 and 12 inches over the majority of the property. The black mangroves reach heights of 15 feet, with large trees located over the southern extent of the wetlands (adjacent to the upland ridge). Attaining heights of 25 to 30 feet, these larger mangroves form a hammock with an open understory in a dense canopy. The mangrove area is a productive, healthy system. The wetlands of the McDonald/Allen property are a part of a larger area of healthy wetlands approximately 10 acres in extent, bounded by State Road 939A on the north, the dune ridge to the south, an unculverted fill road to the west, and a culverted fill road to the east. Wildlife present on the property include marsh rabbits, raccoons, black crown night herons, little blue herons, Louisiana herons, white crown pigeons, blue crabs, fiddler crabs, mosquito fish, killy-fish, sailfin mollies, and sheepshead minnows. On February 1, 1983, Respondent Stage filed an application for special use approval to deposit fill and construct an access driveway in the shoreline protection zone of Monroe County as designated by Chapter 4, Monroe County Code. The Stage property is a 0.64-acre lot on Big Pine Key in Monroe County, Florida. The proposed driveway runs from Long Beach Boulevard through a wet land area to a dune ridge and hammock fronting the Atlantic Ocean. The driveway project described in the original application called for the deposit of limerock fill to construct an access driveway 100 feet long, 12 feet wide, and 2-3 feet deep along the east side of the lot. Two culverts 12 inches in diameter were to be placed 50 feet apart. When the State of Florida Department of Environmental Regulation indicated disapproval of a fill permit as the project was originally proposed, the project was amended to locate the access driveway through the center of the lot and to replace the 12-inch diameter culverts with two 36-inch diameter culverts to be placed at the base of the access drive. The proposed access road is to lead to a proposed turnaround and a proposed single-family residence on the back dune or dune ridge of the Stage property. The application for special use approval does not include a request to fill a turnaround area or a pad for a single-family residence, does not include a final set of building plans or a final selection of a house site, and does not seek approval for the placement of a septic tank system. Rather, the application for special use approval seeks permission for the driveway portion of the construction project only. The Stage property is located on the southern shore of Long Beach on Big Pine Key. The natural systems of the Stage property are similar in many respects to those of the McDonald/Allen property. The foreshore or foredune fronting the Atlantic Ocean has a shoreline consisting of a dense mangrove fringe. The foredune rises to a dune crest approximately 28 feet landward from the shoreline. The dune top extends landward from the dune crest approximately 100 feet before descending to the back dune and wetland area. The back dune runs landward 40 feet before descending into the wetlands. The wetlands run landward approximately 10 feet to a filled area approximately 75 feet deep fronting Long Beach Boulevard. Landward of the mangrove fringe on the foredune is a dense growth of night shade, behind which the hardwood hammock vegetation begins, at approximately 10 feet from the shoreline. The understory of the hammock has a very rich growth of wild bamboo. Trees in the hammock community include blolly, spider lily, Jamaican dogwood, Keys bamboo, gumbo-limbo, darling plum, seven-year apple, wild dilly and coconut palm. The area along the lower back dune displays transitional vegetation consisting of blackbead, limber caper, sea grape, bay cedar, sea daisy, and remnant black and white mangroves. At lower elevations of the property below the back dune and abutting the roadside fill area are found buttonwood, black mangrove without pneumatophores, saltwort, red mangrove, black mangrove, white mangrove, and sea purslane. The wetland and red mangrove area is about 10 to 15 feet in size, healthy, and of high productivity. The transitional vegetation is productive in that it has a very high value to the organisms that are feeding upon it in that particular area, although its productive value is lower than that of the red mangrove system. Wildlife found on the property include marsh rabbit, raccoon, Key deer, and hermit crabs. Other species expected to be found are the eastern indigo snake the red black snake, and the silver rice rat, all species listed by the federal government as threatened. Both the McDonald/Allen and Stage properties are located in the Florida Keys in Monroe County, which has been designated an area of critical state concern. The Florida Keys is the only tropical area in the entire continental United States. The uncontroverted testimony of witnesses for the Respondents and Petitioner was that virtually every natural feature found there is unique. The Long Beach and Sugarloaf Beach coastal dune structures are particularly significant natural systems because of the scarcity of these sandy beaches and dune systems in the Florida Keys. Such systems have been estimated to represent only 2 percent of the land mass of the Florida Keys. They are even more scarce when considered in reference to the land mass of the United States because there are no comparable natural systems in North America. The dune systems on Sugarloaf Beach and Long Beach are storm berms or storm beaches, which are created when near source material is driven by storm effect onto the beach and ridge. These beaches are stable when highly vegetated and undisturbed. The plant communities found on the dune system have adapted to resist the impact of storms, both wind and wave. Seagrape trees, for example, diminish the shearing effect of the wind by absorbing wind energy. Many of the plant species are deeply rooted and essentially adapted to the intermittent effects of storms. When the natural systems and vegetative communities are altered, the dune system loses its resistance to storm and is subject to instability and erosion. Many of the plant and animal species present in the Florida Keys and on the McDonald/Allen and Stage properties are only found in the Keys. They are endemic species which have deviated from the mother populations on the mainland, and they are of particular interest to the scientific community. The McDonald/Allen property, in particular, is unique because it combines a very mature hardwood system with the coastal dune structure. Maturity of the hardwood hammocks is evidenced by the large dimensions of the trees, especially the gumbo-limbos and inkwood, and the height and structure of the tree canopy. The mangrove wetland areas on the McDonald/Allen and Stage properties could also be called unique by virtue of their location in the Florida Keys, though they are similar to other mangrove wetland areas. They are both productive, healthy systems. Such mangrove systems are considered to be one of the most important natural resources in Southern Florida. They provide shoreline protection, build up land areas, provide nutrients to the marine environment, and serve as nurseries for marine species and wildlife habitat for reptiles and wading birds such as herons, egrets, white crown pigeons and gray king birds. Transitional areas may have lower productivity than the wetland areas, but they still have a very high value to organisms feeding upon them. A community of animals will still be dependent upon the transitional vegetation, and removal or stress to that vegetation will also stress the dependent animal elements. On April 22, 1983, the Zoning Board of Monroe County denied the McDonald/Allen application for special use approval to deposit the fill and construct the access road. Reasons for the denial were that the project failed to comply with Sections 19-75(2)a, 19-111, and 19-59(6), Monroe County Code. Section 19-75(2)a requires a determination of the effect of the change under review on that particular property and on surrounding properties. Section 19- 111(a)(4) requires that all applications for a permit in wetland areas consider the natural biological functions, including food chain production, general habitat, nesting, spawning, rearing and resting sites for aquatic or terrestrial species, the physical aspects of natural drainage, salinity and sedimentation patterns, and physical protection provided by wetland vegetation from storm and wave action. Section 19-59(6) requires consideration of the project's compliance with the County's Comprehensive Plan. The Zoning Board was particularly concerned about the fact that the project was contrary to the policy expressed in the County's Comprehensive Plan to prohibit new construction that would threaten the stability of dune ridges, and about the cumulative impact on the wetland areas and on the dune system of several nearby projects for which applications had been submitted. On August 5, 1983, the Board of County Commissioners reversed the denial of the McDonald/Allen application for special use approval by adopting Resolution No. 233-1983. The Resolution authorizes the deposit of fill and construction of the access driveway as requested by the McDonald/Allen application. The Resolution makes no finding that the project meets the requirements of the Monroe County Code or Monroe County Comprehensive Plan. The Resolution also fails to specify any conditions or protective measures that should be met by the applications in regard to design, construction activities or coordination with adjoining land owners to reduce the impacts of the proposed development. No evidence was introduced at the final hearing in this cause to show that the Board of County Commissioners considered these items or any provision for them. An employee of Petitioner was present at the Monroe County Board of County Commissioners meeting on August 5, 1983, when a vote was taken on the McDonald/Allen application. However, Petitioner did not receive a written copy of the Resolution reducing that action to writing until October 14, 1983, when Monroe County transmitted the Resolution by hand-delivery. On August 25, 1983, the State of Florida Department of Environmental Regulation (hereinafter "DER") issued a permit to McDonald/Allen to deposit 433 cubic yards of fill for an access road with four box culverts three feet by eight feet. The permit is based upon Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, jurisdiction and therefore only evaluates impacts on water quality. It does not address impacts on storm surge abatement; marine and wildlife resources habitats; suitability of the proposed project in regard to its location, site characteristics and intended purpose; the effect of the proposed project on surrounding properties (including cumulative impacts of several projects in close proximity of each other); or compliance with the Monroe County Code or Monroe County's Comprehensive Plan. On July 29, 1983, the Zoning Hoard of Monroe County denied the Stage application for special use approval to deposit fill and construct an access road. One of the items considered by the Zoning Board was the permit issued to Respondent Stage by DER on July 13, 1983, to deposit approximately 62 cubic yards of crushed limerock fill for an access road with two 36-inch diameter culverts. The DER permit addressed only impacts to water quality as specified by Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. As was the case with the permit issued to McDonald/Allen, the determination by DER to issue the permit did not include the analysis required by the Monroe County Code and the Monroe County Comprehensive Plan of impacts to natural systems. Reasons cited by the Zoning Board for the application's denial are the project's failure to meet the requirements of the Monroe County Code regarding the Suitability of the use in regard to its location, site characteristics, and intended purpose; and the project's failure to comply with the County's Comprehensive Plan encouraging protection of wetlands to the maximum extent possible and prohibiting new construction that would threaten the stability of dune ridges. On October 28, 1983, the Monroe County Board of County Commissioners reversed the denial of the Stage application for special use approval by adopting Resolution No. 296-1983. Again, there are no protective or limiting conditions specified in the Resolution in regard to construction of the road or its relationship to the remainder of the project. The access road proposed by the McDonald/Allen application will eliminate approximately 4,000 square feet of high-quality submerged mangrove wetlands. This, in turn, would eliminate high-quality habitat used by a variety of large birds such as herons, ibises, little blue herons; gastropods; species of small fish such as killifish, sheepshead minnow, sailfin, mosquito fish; blue crabs, fiddler crabs and Saltwater snakes. The proposed fill road would also present a 325-foot long barrier to the existing tidal flow, thereby impeding the natural flow of water, particularly during a storm event when even very large culverts are blocked by vegetation and other debris. A fill road would also provide a substrate for colonization by exotic vegetation, to the detriment and possible exclusion of native vegetation. In addition, the evidence indicates that at least four more fill roads are proposed in immediate proximity to the proposed McDonald/Allen fill road, within the same 10-acre wetland area. If approved, the cumulative impacts of several roads would be significantly greater than the one road. There would be a significant increase in the direct removal of vegetation and wildlife habitat and an even greater impact on tidal flow through the area with each additional road (even ignoring the fact that each road is merely a portion of the real project). This is because each barrier to tidal flow placed downstream from the source water diminishes the ability of the tidal water to reach other areas even further downstream. The essence of Respondents McDonald/Allen's testimony and exhibits in regard to cumulative impacts is that with proper planning only one access road need be built in the 10-acre wetland area in which the McDonald/Allen property lies. No evidence was submitted to show that such planning efforts exist or are likely to be fruitful. There is no reasonable assurance that only one access road will be sought or constructed in that area; rather, the evidence is to the contrary. Respondent Stage's proposed access road would eliminate a small amount of productive red mangroves and would eliminate transitional wetlands of somewhat lower productivity, thereby exacerbating the existing stresses to the transitional community on the Stage property. The road would also be subject to blockage during a storm event, which would further diminish the existing tidal flow. Current intended use of both the McDonald/Allen and Stage properties is for a single-family residence, although neither applicant has finalized any design for that residence. Construction and occupancy of even a single-family residence in the tropical hardwood hammock on the dune back or dune top of either property can be expected to produce a typical range of impacts to the natural systems. The most significant is the removal of hardwood hammock trees and understory vegetation. At a minimum, clearing is required for a house pad, a turnaround (and parking) area, a septic tank and drain field, and a surrounding area sufficient to accommodate construction equipment and workers. Additional clearing can be anticipated by occupants of a single-family residence who seek to take advantage of ocean breezes and view and who create pathways to the beach. Any opening of the hammock's tree canopy or understory would increase exposure of the lower forest to the drying effects of wind and salt and upset the hammock's microclimate, causing progressive destruction of vegetation. Clearing also provides conditions which make the site conducive to colonization by exotic species. Additional impacts customarily associated with single-family residence occupancy are the introduction of pets who are natural predators of endangered species, of noxious chemicals used for spraying insects, and of intrusion into the habitat of wildlife which now utilize the area and are not tolerant of human activity in immediate nesting and feeding areas. Several dwellings constructed on a dune ridge would cumulatively impact and even further threaten destruction of the hardwood hammock and dune system. Once in place and occupied, a single-family home will create impacts that are extremely difficult to prevent or mitigate and which are uncontrolled by any County ordinance or State regulations. The current and future owners of both the McDonald/Allen and Stage properties have access to that property since either a state-- or county-- maintained road borders one entire side of each of those properties. Accordingly, neither proposed driveway is necessary to provide access to the property. Since the special use approvals given by Monroe County to McDonald/Allen and Stage are not conditioned upon the obtaining of permits for the construction of the now-intended dwelling structure, the actual use of the driveways remains speculative. Although the Stage property may be zoned exclusively for a single-family residence, the McDonald/Allen parcel appears to be in an area of Monroe County in which single-family residences are only one of the uses allowed. Additionally, several years ago Respondent Stage, without first obtaining a permit, has placed fill on his property which covers the width of his property along Long Beach Boulevard. Although Respondent Stage eliminated a wetlands area 100 feet by 75 feet by placing fill therein, he has not been required to remove that fill, and it is speculative as to whether any agency with the authority to require the removal of that fill would do so since no mitigation has yet been required of him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a final order be entered denying the applications of Respondents McDonald/Allen, Donia, Bobowski, and Stage for special use approval. Pursuant to the requirements of Section 380.08(3), Florida Statutes (1983): There are no changes in the proposal by Respondent Donia that would entitle her to receive the special use approval requested herein; There are no changes in the proposal by Respondent Bobowski that would entitle him to receive the special use approval requested herein; Respondents McDonald and Allen could make their driveway application eligible for a special use approval by altering the design of the driveway to piling or boardwalk construction rather than fill construction; and, Respondent Stage can make his driveway application eligible for a special use approval by altering the project design so that the primary structure utilizes the portion of his property which was previously filled. It is further, RECOMMENDED THAT each application for special use approval submitted herein remain ineligible to receive such approval until such time as it can be demonstrated, such as through the issuance of all necessary permits, that the intended primary use--residential construction--will not degrade or destroy the tropical hardwood hammock, dune ridge, or other natural systems located on or surrounding Respondents' properties. DONE and RECOMMENDED this 8th day of April, 1985 at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1985. COPIES FURNISHED: Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301 John T. Herndon, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 Sheri Smallwood, Esquire County Attorney, Monroe County 310 Fleming Street Key West, Florida 33040 James Hendrick, Esquire Albury, Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 Catherine Donia Post Office Box 502 Big Pine Key, Florida 33043 Thomas Bobowski Post Office Box 502 Big Pine Key, Florida 33043 Sarah E. Nall, Esquire C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue is whether a development order adopted by Respondent City of Marathon by Resolution PC00-09-04 is consistent with the comprehensive plan, land development regulations, and statutes.
Findings Of Fact Respondent City of Marathon (Marathon) was incorporated on November 30, 1999. It adopted as its land development regulations (LDR) the LDRs of Monroe County in effect at the time of Marathon's incorporation. Marathon is within The Florida Keys Area of Critical State Concern. This case involves a development order that Marathon issued to Respondent Banana Bay of Marathon, Inc. (BB). As Planning Commission Resolution 00-09-04, the development order authorizes BB to add 12 motel rooms to an existing motel in return for imposing certain restrictions on the use of wet slips at its adjacent marina that is part of the same motel/marina development. The restrictions require the removal of cable television connections from 12 slips and limitation upon vessels using these 12 slips to those without plumbing facilities. For the remaining wet slips at the marina, the development order requires BB to limit their use to no more than 18 vessels at one time and to provide mandatory sewage pumpout for these vessels. At various points in the record and this recommended order, references to a "transfer" of 12 marina slips for 12 motel rooms refer to the conditions set forth in this paragraph. BB owns 7.39 acres of upland and 2.67 acres of adjacent bay bottom in Marathon at mile marker 49.5 (Subject Property or, as developed, Banana Bay). The Subject Property runs from U.S. Route 1 to the water. The Subject Property contains 60 motel rooms in two buildings, a conference room, a motel office, support buildings, three apartments suitable for employee use, and a marina. The marina includes 40-50 slips, depending upon the size of the moored vessels. The Subject Property is zoned Suburban Commercial (SC) and Mixed Use (MU). About 2.4 acres (104,544 square feet) running about 350 feet from U.S. Route 1 is SC. About 4.99 acres (217,364 square feet) is zoned MU. The additional 2.67 acres of adjacent bay bottom are also zoned MU, although the submerged acreage is unimportant for reasons discussed below. Twenty-five of the motel rooms are in SC, and 35 of the motel rooms are in MU, although the distinction between zoning districts is also unimportant for reasons discussed below. LDR Code Section 9.5-267 authorizes ten "rooms" per ”acre" as "allocated density" for motel uses in SC and MU and 15 "rooms" per "buildable acre" as "maximum net density" for motel uses in SC and MU. (There is no difference between "hotels" and "motels" in this case; all references to "motels" include "hotels.") Three fundamental questions emerge concerning the application of these two density limitations to this case. The first is whether BB must satisfy both the "allocated density" and "maximum net density" limitation. This is not a difficult issue; BB's proposal must satisfy each of these density limitations. The second question is what is included in the areas under each of these density limitations. Notwithstanding the use of "gross acres" in the "allocated density" formula, it is necessary to net out certain areas--just less than is netted out in the "maximum net density" formula. The third question is what constitutes a "room." When applied to marine-based units, the definition of a "room" presents a difficult and important issue. As a whole, the LDRs imply that no marine-based dwelling units should count as "rooms," but one provision specifically requires the inclusion of "live-aboard" units in density calculations. The first question requires little analysis. As noted below in the discussion of the two types of areas, "allocated density" and "maximum net density" provide two separate measures of the intensity of use of land. The allowable density for "maximum net density" is never less than the allowable density for "allocated density" because "maximum net density" is a safeguard to ensure that, after netting out from the parcel those areas reserved for open space, setbacks, and buffers, the intensity of use will not be excessive. Nothing whatsoever in the LDRs suggests that Marathon may issue a development order for a proposal that satisfies the "maximum net density," but not the "allocated density." These two densities limitations operate in tandem, not in the alternative. The calculation of the "allocated density" requires consideration of the second and third questions identified above. The issue of area seems straightforward. LDR Code Section 9.5-4(D-3) defines "density or allocated density" as "the number of dwelling units or rooms allocated per gross acre of land by the plan." LDR Code Section 9.5-4(D-4) defines "maximum net density" as "the maximum density permitted to be developed per unit of land on the net buildable area of a site, as measured in dwelling units or rooms per acre." LDR Code Section 9.5-4(G-4) defines "gross area" as "the total acreage of a site less submerged lands and any dedicated public rights-of-way." LDR Code Section 9.5-4(N-4) defines "net buildable area" as "that portion of a parcel of land which is developable and is not open space required by section 9.5-262 or 9.5-343 or required minimum bufferyard under article VII division 11 or required setbacks under section 9.5-281." The area of land involved in determining "allocated density" is greater than the area of land involved in determining "maximum net density." But the area of land involved in determining "allocated density" is itself a net amount. The LDRs expressly require reducing the gross areas by any submerged land and dedicated public rights-of-way. However, any reasonable application of the LDRs also requires reducing the gross areas used for the motel "allocated density" calculation by the minimum areas required to support other uses on the Subject Property. If the only use of the Subject Property were motel rooms, the "allocated density" limit of ten units per acre (10:1) would allow 73.9 rooms. But the Marathon Planning Commission Staff Report dated September 18, 2000, correctly netted from the Subject Property the land areas required to support the commercial aspects of the hotel and the commercial apartments. These reductions leave a total of 5.86 acres available to support the motel rooms. At a density of 10:1, the Subject Property could therefore support a total of 58 motel rooms. The Planning Commission incorrectly used the 15:1 ratio for "maximum net density" in concluding that the Subject Property could support a total of 67.65 motel rooms. Evidently, the Planning Commission used the "maximum net density" because it was not using "gross area" or "gross acres" (the terms are synonymous under the Code) in calculating the area. The netting reduction necessary to calculate whether BB's proposal satisfies the "maximum net density" limitation would require the calculation of the area of the Subject Property that must be devoted to open space, setbacks, and buffers. The Planning Commission probably undertook this step in calculating the "maximum net density" for the Subject Property, as its figures seem to include unstated deductions for the 20 percent open space plus another factor, probably for setbacks and buffers--all of which are discussed in its report. However, the Planning Commission erroneously neglected to apply the "allocated density" limitation to the "gross acres," exclusive of submerged land, public rights-of-way, and the minimum land required to support the other upland uses. As noted above, doing so would have yielded no more than 58 motel rooms. At present, the Subject Property contains 60 hotel or motel rooms. The Subject Property therefore cannot support the addition of another 12 hotel or motel rooms, given its "allocated density" of only 58 rooms. In general, BB justifies the addition of 12 rooms to the front motel by arguing that it is only transferring these units from the 12 existing wet slips. It is unnecessary to determine whether a transfer under these facts is lawful when, if these 12 slips count as units, the Subject Property is already 14 units over its "allocated density." The resolution of the third question--what constitutes a "room"--dispenses with this argument. Thirty of the existing 40-50 boat slips in the marina have water, electric, and cable hook-ups and are presently used for some form of habitation. Most vessels berth at the marina for two or three days, although the average stay is slightly over one month. The average stay at the 30 slips offering utilities, though, is two to three months. Typically, two persons use a vessel berthed at the marina for more than a couple of days. BB seals the discharge ports of all vessels mooring at the marina for any appreciable period of time. BB provides a sewage pumpout service for these and other vessels. The wastewater from the marina operations goes to a septic tank, in contrast to the wastewater from the motel operations, which goes to an onsite package plant. Persons mooring at the marina for at least two months normally obtain telephone service and may obtain cable television service, in addition to the potable water and electrical services provided by BB. The marina also provides rest rooms, laundry facilities, showers, a bar, limited food service, and a mail box. However, BB rules require that all persons berthing at the marina register a permanent address because the slips are "not considered permanent housing." At the request of the Florida Keys Aqueduct Authority and the Monroe County Planning Department, BB has limited rental agreements at the marina to a maximum of one month, although some persons enter into back-to-back rental agreements. Persons staying more than one week often have cars. Contrary to BB's contentions, none of these slips provides additional density for the Subject Property, and therefore the 12 slips are not available for transfer to the motel. For the same reason, as discussed below, the proposed transfer of the 12 units would also violate the Rate of Growth Ordinance (ROGO). In two respects, the record reveals that the conversion of marine-based residential uses to upland residential uses might facilitate the achievement of important land use planning objectives. First, the wastewater collected from the marina is directed to a septic tank, and the wastewater collected from the motel is directed to a package plant. Absent a significantly reduced flow from the marine-based residential use, the upland residential use would therefore impact the adjacent waters to a lesser extent. Second, marine-based residential users may be more reluctant to evacuate for an approaching hurricane than upland residential users. Absent a significantly greater number of visitors during hurricane season if the 12 units were taken from the marina slips and added to the motel, the upland residential use might therefore facilitate timely hurricane evacuation of the vulnerable Keys. However, the record was relatively undeveloped on these two points, and these possible advantages to the conversion of marine-based residential uses to upland-based residential uses do not override the LDRs. The LDRs may treat the more intense residential use associated with "live-aboards" differently than the less intense residential use associated with other moored vessels. Although the LDRs' treatment of "live-aboards" may not be entirely consistent, any inconsistency is irrelevant in this case because the moored vessels at the Banana Bay marina do not qualify as "live-aboards." As stipulated for the purpose of this case, LDR Code Section 9.5-4(T-4) defines a "transient residential unit" as "a dwelling unit used for transient housing such as a hotel or motel room, or space for parking a recreational vehicle or travel trailer." LDR Code Section 9.5-4(D-31) defines a "dwelling unit" as "one (1) or more rooms physically arranged to create a housekeeping establishment for occupancy by one (1) family with separate toilet facilities." LDR Code Sections 9.5-4(D-23) through 9.5-4(D-30) identify the various types of dwellings that may contain "dwelling units.” These dwellings are, respectively, detached zero-lot-line dwellings, multifamily apartment dwellings, attached dwellings, detached individual dwellings, duplex dwellings, commercial apartment dwellings, rooftop dwellings, and townhouse dwellings. The frequent references to "open yards" in these definitions precludes the application of these definitions to moored vessels, even "live- aboards." The exclusion of all moored vessels, including "live-aboards," from density calculations is also suggested by two other portions of the LDRs. As is typical, LDR Code Section 9.5-120.1 provides that the mechanism for enforcing density limitations is in the issuance of building permits, but this enforcement mechanism is of doubtful use in regulating vessel moorings, which do not typically involve the issuance of a building permit. Also, the density definitions discussed above both refer to the development of various types of residential uses on "land." Moreover, none of the zoning districts established in Marathon's LDRs measures the intensity of marina uses, including vessels moored for extended periods as live-aboards, by imposing some sort of marine density limitation, either by including the moored dwelling units or the submerged acreage. Because the LDRs did not intend to include such marine-based uses in density calculations, LDR Code Section 9.5-267, which is a table setting forth "allocated densities" and "maximum net densities," covers only upland-based uses, including recreational vehicle or campground spaces per acre, and does not extent to marine-based uses, such as live-aboard marina slips. However, two provisions in the LDRs require density calculations to include "live-aboards." LDR Code Section 9.5-308, which seems to be an older provision in the LDRs, provides that "each live-aboard shall count as a dwelling unit for the purpose of calculating density limitations in the district in which it is permitted." Better incorporated into the present regulatory scheme of the LDRs, LDR Code Section 9.5-120.1 defines a "residential dwelling unit" as a "dwelling unit," including a "transient rental unit," as defined in LDR Code Section 9.5-4(T-3), and "live-aboard vessels," as defined in LDR Code Section 9.5-4(L-6). However, LDR Code Section 9.5-4((L-6) states that a "live-aboard vessel" is "any vessel used solely as a residence or any vessel represented as a place of business, a professional or other commercial enterprise, or a legal residence." The record does not suggest that any of the moored vessels were used "solely" as a residence, as distinguished, for instance, from a vessel used for residential and recreational purposes, or that any of the mixed-use vessels served as the occupants' legal residence. Absent a finding that the moored vessels constitute "transient residential units," ROGO does not support this proposed transfer of residential uses from marine-based to upland-based. LDR Code Section 9.5-123(f)(3) authorizes the transfer of an existing "residential dwelling unit" from one site to another within the same subarea. However, LDR Code Section 9.5-122 defines a "residential dwelling unit" to extend only to "live-aboards." For the reasons already discussed, the less intense residential uses associated with the vessels moored at Banana Bay's marina preclude their treatment as "residential dwelling units" eligible for transfer to the motel. Petitioner has proved that the development order is materially inconsistent with the LDRs. LDR provisions governing the density and intensity of residential development go to the heart of effective land use planning, especially in an area as sensitive as the Keys. For these reason, it is unnecessary to consider the consistency of the development order with the more general provisions of Marathon's comprehensive plan, on which Marathon's LDRs are based.
Recommendation It is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying the request of Banana Bay of Marathon, Inc., to approve the transfer of 12 slips to 12 rooms in a motel on the Subject Property. DONE AND ENTERED this 7th day of December, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of December, 2001. COPIES FURNISHED: Barbara L. Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Mitchell A. Bierman Weiss Serota 2665 South Bayshore Drive Suite 420 Miami, Florida 33133 James S. Mattson James S. Mattson, P.A. Post Office Box 586 Key Largo, Florida 33037
The Issue The main issue in this case is whether the Town of Marineland's Comprehensive Plan Amendments adopted by Ordinance 2005-1 on August 18, 2005,1 are "in compliance," as defined by Section 163.3194(1)(b), Florida Statutes (2005).2 Another issue is whether Petitioners have standing.3
Findings Of Fact Background The Town of Marineland is unique. Its history is not only interesting but helpful to an understanding of why the Plan Amendments may or may not be "in compliance," and also why Petitioners may or may not have standing. Marineland originated as the Marine Studios, which was created so that oceanic life would exhibit natural behavior that could be filmed for feature Hollywood films. The Marineland Attraction (Attraction) followed, and the new word "Oceanarium" was coined. The Attraction was the first marine theme park and served as the model for those that followed. The Town of Marineland was created in 1940 essentially to provide support services for the Attraction. Eventually, the Attraction's founding members died, and the property was sold to a group of St. Augustine investors, with the new entity being called Marineland, Inc. The investors looked at the property as a real estate investment, and the 1992/2005 Plan reflects this vision, calling for a community of 1500 persons and 600 dwelling units. The Town and the Attraction remained interdependent, with the Attraction being the entity that generated revenue and provided for most of the financial needs of the Town. As the face of Florida tourism changed during the 1970's and 1980's, fewer and fewer people came to Marineland, opting instead for the high profile attractions in the Orlando area. Rather than being a profit center for the investors that allowed them leisure to develop the rest of the land at their convenience, the Attraction became a money sink and required the investors to put money in each year to keep the facility going. This was an untenable situation in the long run and ultimately Marineland, Inc., sold its holdings to Marineland Ocean Resort (MOR), which split off another entity, the Marineland Foundation, to manage the Attraction. The Marineland Foundation operated under the umbrella of the Town of Marineland and not specifically as part of MOR. As this was happening, the Town of Marineland found itself having to be self-sufficient for the first time in 55 years. It needed to assume all the trappings of a municipal government and deal with matters that had previously been handled in whole or part by Marineland, Inc. During all these changes various attorneys examined different aspects of the Town's operation and found certain deficiencies. The most serious for land use planning was that the Town had not followed through after adoption of the 1992/2005 Plan and adopted any sort of land development regulations (LDRs). Simultaneously, MOR was considering how to develop the land it had bought. Its model was timeshares, and it considered turning the two oceanfront hotels into timeshare units, building an additional oceanfront timeshare hotel, selling timeshare campground slots, selling timeshare marine slips, and building timeshare units along the riverfront in the maritime hammock. Since the town had no LDRs, MOR would have had a free hand to build anything it pleased. To remedy this deficiency as quickly as possible the Town passed: Ordinance 97-1, which adopted the Flagler County development code provisions for signage, storm water and drainage, wetlands, tree protection, road construction and coastal construction; Ordinance 97-2 to adopt various standard codes relating to amusement devices, buildings, fire prevention, gas, grading, housing, mechanical, plumbing and swimming pools; and Ordinance 97-3 establishing zoning districts and providing for zoning regulations. Ordinance 97- 3 allowed for medium-density housing at four units per acre in the disturbed and cleared areas and at two units per acre in the the partially-disturbed maritime hammock. The intention was to prevent the rest of the maritime hammock, a rapidly disappearing environment throughout Florida and an environment of special concern, from being cleared for river-view timeshare units along the Intracoastal Waterway (ICW). The Town wished to balance the need to preserve important lands with the need to rebuild the town and regain lost population. It was not clear from the evidence how many units of residential development would be allowed under Ordinance 97-3, but it would be less that under the 1992/2005 Plan or under the Plan Amendments. Shortly after these ordinances were passed, MOR, which had been struggling financially and unable to realize any of its development plans, filed for bankruptcy and sale of their holdings. Its attorneys expressed great concern about the effect of the town ordinances on the pending bankruptcy and sale, and pointed out that when MOR filed, the court froze the status quo, preventing the Town from amending the 1992/2005 Plan's future land use map (FLUM) to reflect Ordinance 97-3. The Trust for Public Land (TPL) was successful in purchasing the MOR holdings from the bankruptcy proceedings. The result was a substantial reshaping of the land ownership within the Town. Approximately 90 acres of the most vulnerable lands were purchased from TPL with grant money from Florida Communities Trust (FCT)and set aside for conservation. The University of Florida's Whitney Marine Lab purchased additional land to double its holdings, and Jacoby Development, Inc. purchased about 40 acres of the disturbed lands for development. Concurrent with these activities, DCA awarded two planning grants to the Town under the Remarkable Coastal Place Program. The purpose of the grants was to enable the Town to take advantage of state experts in various aspects of community planning who could help the Town reorganize itself, recover its lost population, and rebuild itself from the ground up. It became apparent during this work that the Town would need a new comprehensive plan, not simply an update to the existing plan, in order to reflect the different structure of land ownership and to support the vision that the stakeholders had created during the planning process of a sustainable community that would be a center of science, education, recreation, and ecotourism. This was begun while state expertise was still available to the town, and once again incorporation of Ordinances 97-1, 97-2, and 97-3 into the existing comprehensive plan and FLUM was put on the back burner, since a new set of LDRs would have to be written to support the new comprehensive plan work in progress. Existing Uses The Town's existing land uses are distributed into two major categories: those found within and those found outside the River-to-Sea Preserve. The Preserve Approximately 89 acres of the total 151+ acres of the Town is off-limits to development through protection in the River-to-Sea Preserve. The River-to-Sea Preserve is undeveloped and vegetated with maritime hammock, coastal strand, beaches, dunes, and approximately eight acres of salt marsh within the Town's boundaries. The land has experienced significant disturbance in some areas. However, the majority of the site consists of native forested and non-forested vegetative communities. Lands covered with coastal scrub growth dominated by saw palmetto are located along the barrier dunes and to some extent to the west along the southern border of the Town but mostly seaward of the Coastal Construction Control Line regulated by Florida Department of Environmental Protection. This is a rapidly-disappearing community, and some sites harbor numerous endangered species. For that reason, it is one of three which has been designated by the Florida Fish and Wildlife Conservation Commission (FFWCC) as a "Rare and Unique Upland Community" within Florida. Development to the south of the Town has left these scrublands as an isolated remnant of the former community. The Preserve protects approximately seven acres of the coastal scrub community located in the Town. The Preserve protects three-fourths (32.6 acres) of the coastal hammock community located in the Town. The coastal hammock community also has been designated as a "Rare and Unique Upland Community" by the FFWCC. This community provides valuable cover and feeding areas for migratory songbirds in fall and spring as they migrate down the Atlantic Coast. Running the length of the Town along the Atlantic Ocean are 8.9 acres of beach area, an area of unconsolidated material that extends landward from the mean low water line to the primary dune system. The north and south ends of the beach are in the Preserve. Outside the Preserve Development in the Town, outside the Preserve, includes the existing Oceanarium facilities, the Whitney Lab, and the presently closed marina facility. Approximately 2.2 acres in the northeastern portion of the Town between A1A and the Atlantic Ocean contain the two original Oceanarium tanks of Marineland and has been included in The National Register of Historic Places. The Marine Park of Flagler has purchased the MOR property and intends to revitalize these areas. The Whitney Lab consists of the Whitney Laboratory for Marine Bioscience and the Marine Education Building, all operated by the University of Florida. These facilities occupy approximately 10 acres and are used for educational and research purposes. The Whitney Lab has broken ground on a new Center for Marine Studies and has plans for a Center for Marine Animal Health. The marina facility is located in the northwestern part of the Town adjacent to the ICW. It is 3.4 acres in size. The marina has been closed due to the deteriorating facilities. There is a plan to redevelop the Marina as a "Clean Marina." A smaller (0.74 acre) parcel is located adjacent to the Preserve on the west side of A1A and is the location of the Guana Tolomato Matanzas National Estuarine Research Reserve (GTMNERR) Administrative Offices, classroom, lab, and research facilities. Besides the beach, undeveloped urban lands outside the Preserve consist primarily of an approximately 47-acre, privately-owned parcel located in the center of the Town west of A1A. It is surrounded on three sides by already-developed areas within the Town. It includes approximately 10.3 acres of the Temperate Hardwood Hammock. Adjacent Lands The Flagler County/St. Johns County line passes through the northern tip of the Town so that the Town is primarily located in Flagler County. Flagler County is a fast-growing county having five incorporated municipalities. Land to the north of the Town, located in St. Johns County, consists of undeveloped coastal scrub and dune, saltwater marshes, and single-family houses along the barrier dune and in the vicinity of Summer Haven, a small unincorporated community located on the south side of the Matanzas Inlet. To the south, in Flagler County, there are large areas of coastal scrub and temperate hammock. A residential development called Matanzas Shores is being constructed. This development was permitted by Flagler County after Development of Regional Impact (DRI) review by the RPC. Immediately to the south of this development is the Washington Oaks Gardens State Park. To the west of the Town are saltwater marshes associated with Pellicer Creek, which is designated an Outstanding Florida Water (OFW), and the Matanzas River, which is part of the ICW. Pine flatwoods and temperate hammock are on the mainland shore. The Princes Place Preserve, Faver Dykes State Park, and St. Johns River Water Management District lands along Pellicer Creek serve as a 19,000-acre buffer between the ICW and the U.S. 1/I-95 corridor to the west. Two islands located in the Matanzas River estuary have been purchased through the FCT program and are owned by the Town. The southern island is located directly across from the Marineland marina on the west bank of the ICW and on the Flagler/St. Johns County boundary. The north island is on the west side of the ICW just south of the Matanzas Inlet in St. Johns County. The Florida Park Service will manage the islands. Although owned by the Town, these islands have not been annexed into the Town boundaries. It is the intent of the Town to annex these islands and incorporate them into long-term research, education and protection. Density8 On several fronts, Petitioners take issue with the density of development allowed by the Plan Amendments. They point to the designation of the Coastal High Hazard Area (CHHA), as well as data and analysis concerning erosion, topography (ground elevations), hurricane frequency and severity (or intensity), hurricane evacuation and shelter concerns, and effects on the sensitive environment of the Town and vicinity. CHHA In accordance with the law at the time, the Town's 1992/2005 Plan designated the CHHA to be seaward of the Town's coastal dune. In compliance with Rule 9J-5.012(3)(b)6., which required (and still requires) coastal management elements of plans to contain one or more specific objectives which "[d]irect population concentrations away from known or predicted coastal high-hazard areas," the Town's 1992/2005 Plan included Coastal/Conservation Element (C/CE) Objective E.1.6, which provided: Marineland shall direct population concentrations away from known or predicted high-hazard areas and shall ensure that building and development activities outside high-hazard areas are carried out in a manner which minimizes the danger to life and property from hurricanes. Development within Coastal High-Hazard Areas shall be restricted and public funding for facilities with[in] Coastal High-Hazard Areas shall be curtailed. Marineland shall provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding. In addition, the Town's 1992/2005 Plan did not allow residential (or any other) development in the designated CHHA. In 1993 the Florida Legislature amended the definition of the CHHA mean the Category 1 hurricane evacuation zone. See Section 163.3178(2)(h), Fla. Stat. See also Rule 9J-5.003(17) (defining the CHHA to mean the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study). Rule 9J-5.002(8) requires a local government to "address" rule changes in the next cycle of amendments. Since the entire Town is in the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study, the Plan Amendments designate the entire Town as the CHHA. The Plan Amendments allow residential development west of the ocean dune in what is now the CHHA. The Plan Amendments also replace Objective E.1.6 with a new C/CE Objective E.1.6, Hazard Mitigation, which requires the Town to "ensure that building and development activities areas [sic] are carried out in a manner which minimizes the danger to life and property" and "provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding." A series of policies follow the new objective. The question under these circumstances is whether the Plan Amendments adequately address the change in CHHA definition and comply with Rule 9J-5.012(3)(b)6. As the following findings explain, it is found that they do. Petitioners contend that they do not and that the Town was required to keep the 1992/2005 C/CE Objective E.1.6, which arguably would prohibit any residential development in the Town. This also would be the result if Rule 9J- 5.012(3)(b)6. were construed to require the Town to direct all population away from the CHHA. At least some Petitioners candidly would prefer that result, and Petitioners make a seemingly half-hearted initial argument that allowing any residential development in the Town (i.e., in the CHHA) would be inappropriate and not "in compliance." But it is clear that such a result is not mandated by the statute or rules. To the contrary, DCA interprets the statutes and rules as not even requiring a re-evaluation or "down-planning" of land uses (in particular, a reduction in residential densities) allowed under an existing comprehensive plan when a local government "addresses" the change in definition of the CHHA by increasing its size. DCA has not required such a re- evaluation anywhere in the State. Rather, DCA interprets the statutes and rules to prohibit the local government from increasing density in the CHHA above the density authorized by its existing comprehensive plan. In this case, the Town not only has designated the new CHHA but also has conducted a re-evaluation and revised its comprehensive plan. Under the rather unusual circumstances here, where the CHHA covers the entire Town, changing residential densities in various parts of the Town is not significant in determining whether population concentrations are directed away from the CHHA. Rather, what is important is the total residential development allowed in the Town as a whole. The Town contends, along with DCA and Centex, that the Plan Amendments reduce residential density in the Town. Petitioners, on the other hand, contend first of all that the density allowed by the Plan Amendments cannot be compared to the 1992/2005 Plan because the existing plan did not establish residential density standards, as required by Section 163.3177(6)(a), Florida Statutes ("[e]ach future land use category must be defined in terms of uses included, and must include standards to be followed in the control and distribution of population densities"). Instead, Petitioners contend that the 1992/2005 Plan was written in terms of "vague and standardless" design criteria and a policy direction for the Town to adopt LDRs consistent with the design criteria. Primarily for that reason, Petitioners contended that the density allowed by the Plan Amendments had to be compared to the residential density established by Ordinance 97-3 to determine whether the Plan Amendments increased residential density. Regardless of the way it was written, the 1992/2005 Plan was found to be "in compliance." In addition, while the policies in the Future Land Use Element (FLUE) of the 1992/2005 Plan were written in terms of average gross acre lot sizes, maximum lot coverage, and maximum floor area ratios characteristic of design criteria, it is nonetheless possible to calculate (albeit not without difficulty and with room for minor differences in results depending on the approach taken and assumptions made) the residential density allowed under the 1992/2005 Plan. The adopted FLUM depicted the various residential land use categories, as required by Section 163.3177(6)(a)("[t]he proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series"), and a summary of the total allowable residential land uses was included in data and analysis that accompanied the 1992/2005 Plan,9 making it possible to calculate residential density. Contrary to Petitioners' argument, it is not necessary to use Ordinance 97-3 to determine the residential density allowed under the 1992/2005 Plan, and there is no other plausible reason, or any precedent, for using land development regulations in that manner. As represented in the data and analysis summary for purposes of calculating the land requirements for housing, the 1992/2005 Plan allowed a maximum of 427 residential dwelling units on 37.7 acres, including apartments above retail uses, which are not depicted on the FLUM but are allowed under Housing Element (HE) Policy C.1.1.2 to provide affordable housing. This maximum of 427 assumed 98 apartments above retail uses although more arguably would be allowed under the 1992/2005 Plan. In addition, the 1992/2005 Plan's HE Policy C.1.1.1 allowed "out-buildings" as "ancillary structures to the rear of lots containing single family dwellings." Like the apartments over retail, these dwelling units are not depicted on the FLUM but are allowed as of right and theoretically could result in 176 additional dwelling units on a total of 37.6 acres. To arrive at the residential density allowed under the 1992/2005 Plan, DCA's expert added 12 of the approximately 12-20 dwelling units not shown in the summary but mentioned in the data and analysis of the 1992/2005 Plan as being either existing or allowed on the Whitney Lab's 5.4 acres, bringing the total theoretical maximum under the 1992/2005 Plan to 615 residential units on 43 of the Town's 151 acres, at various densities ranging from 2.2 units per acre at the Whitney Lab to 28.8 units per acre for apartments above retail uses, for an average residential density of 14.3 units per acre.10 Centex's expert took a different tack. First, for the apartments over retail uses, he assumed two units per retail use, for a total of 198 units (while also pointing out that there was no cap on these units in the 1992/2005 Plan). Second, he did not include any units for the Whitney Lab because they were not grounded in Plan policies. Using this approach, he arrived at a total of 704 residential units allowed under the 1992/2005 Plan. While he maintained the validity of that calculation, he pointed out that eliminating the units (both residential units and associated "out- buildings") allowed on land now included in the River-to-Sea Preserve would lower the total to 611 units. The Town's expert did not count apartments above retail uses or the units at the Whitney Lab and arrived at a total of approximately 421-425 dwelling units allowed under the 1992/2005 Plan. When he eliminated the units (residential units with associated "out-buildings") allowed on land now included in the River-to-Sea Preserve, he decreased his total to 275 units. The reason for the differences in his calculation was not clear from the record. Turning to the Plan Amendments, although more typical residential density standards are used, the experts still disagree on exactly what residential density the Plan Amendments allow and achieve. Most development under the Plan Amendments will occur in the Sustainable Mixed Use (SMU) future land use category, which allows a maximum of 241 residential units, a maximum of 50,000 square feet of commercial uses, and accessory residential units for affordable housing. Centex's expert determined that, under the Plan Amendments, the maximum theoretical number of dwelling units that could be developed in the Town, including the SMU category, is 565 units. It is not reasonable to conclude that 565 dwelling units would actually be developed, because this number includes 241 affordable accessory units, one for each residential unit. However, the Town concluded there is only a need for 39 such units. Centex's expert found that 13 of the 39 affordable housing units needed in the Town will be provided in FLUM categories other than SMU--namely, Institution Research (the Whitney Lab) and Conservation. It is more reasonable to expect that only the remaining 26 accessory units needed to address affordable housing will be developed in the SMU category to meet the 39-unit affordable housing need, instead of 241, and that 350 units actually will be built under the Plan Amendments. In his analysis, DCA's expert did not count any affordable housing units in the SMU category in reaching the conclusion that a 315 residential units are allowed under the Plan Amendments. Adding the theoretical maximum of 241, his total maximum theoretical number of residential units would be 553. The record is not clear as to why his numbers differ somewhat from the Centex expert's. The Town's expert somehow arrived at the conclusion that the Plan Amendments allow a total of 279 residential units. Like the DCA expert, he apparently did not count affordable housing units in the SMU category. The reason for other differences in his calculation are not clear from the record. It may be that he did not count residential units in the Tourist/Commercial category, while the others counted 35 units because there is a possibility that 35 condominium units could be developed there instead of 70 hotel rooms. Differences may also involve how he assessed and counted the possibility for residential units in the Institutional Research and Conservation categories. Despite these computational differences, it is clear that the Plan Amendments allow fewer residential units in the Town than the 1992/2005 Plan did, even assuming no residential development under the 1992/2005 Plan in what became the River- to-Sea Preserve. The density allowed under the Plan Amendments is comparable to densities authorized by comprehensive plans north and south of the Town, as well as the actual development that has occurred and is occurring in those areas. Since the entire Town is within the new CHHA, the Plan Amendments can be said to result in a reduction in population concentration within the CHHA by comparison to the 1992/2005 Plan. This also is reflected in the population projections on which the two plans were based. The 1992/2005 Plan was based on a projected total 2005 population of 1,551 people, including 900 permanent and 651 seasonal. The Plan Amendments are based on a projected 2015 population of 630, including 386 permanent residents and 244 seasonal residents and university students living in dormitories at the Whitney Lab. While reluctantly conceding that some residential growth in the Town (i.e., in the CHHA) is appropriate, Petitioners contend that growth must be limited to what is allowed under Ordinance 97-3 because any more growth than that would increase residential density in the CHHA. They argue that Ordinance 97-3 should be the benchmark because the 1992/2005 Plan did not establish residential density but instead relied on Ordinance 97-3 to do so. However, as reflected above, this argument was not supported by the evidence. Under the unusual circumstances of this case, while the Plan Amendments do not include an objective that parrots the words in Rule 9J-5.012(3)(b)6.--"[d]irect population concentrations away from known or predicted coastal high- hazard areas"--they do have goals, objectives, and policies which do so, as well adequately address the new CHHA definition. Data and Analysis Under the proposed findings in the section of their PRO entitled "Data and Analysis," Petitioners argue that there was a: "Failure to prove need for proposed density." The basis for the argument appears to be that: "[n]o professional methodology was utilized"; that the Town's population estimate was based on the "desires of the stakeholders," i.e., the "property owner investors"; and that the "desire of the stakeholders was for 'approximately 241 dwelling units,' not the at least 565 dwelling units authorized by the Amendments." Petitioners' PRO, at ¶61. But Petitioners did not prove that no professional methodology was used or that the population estimate was based solely on the "desires of the stakeholders." In addition, while the Plan Amendments state that the visioning effort undertaken by the Town for developing the Town's Master Plan under Florida's Remarkable Coastal Place program identified "approximately 241 dwelling units . . . as a target for meeting the permanent residential population of the Town," it also stated that "approximately 315 dwelling units were identified as a target for meeting the sustainability goal of the Town." Joint Exhibit 2, pp. A-14, C-11. Finally, there is no requirement that data and analysis "prove need for proposed density," but only that they support allocations of land for various uses. See § 163.3177(6)(a), Fla. Stat. ("future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth"). Accommodating need for affordable housing on the same land allocated for other residential and commercial development does not run afoul of this data and analysis requirement. See Fla. Admin. Code R. 9J-5.006(2)(c). No witness for Petitioners opined that the population projection for the Plan Amendments was not supported by data and analysis. To the contrary, several witnesses for the other parties opined that the data and analyses supporting the Plan Amendments were surprisingly comprehensive for a local government the size of the Town and were more than adequate. Land Use Suitability Petitioners' PRO contends: "The data and analysis concerning Town erosion, the low elevation of the Town, increased hurricane frequency and severity, inadequacy of hurricane evacuation time and shelter capacity, the adverse impacts of the land use designations on shellfish beds, estuarine nursery areas, the Tropical Hardwood Hammock, the designation of domestic waste water treatment and discharge facilities in the River to Sea Preserve, and water pollution resulting from foreseeable flooding establishes that the density of the Amendments is unsuitable for the Town land." Petitioners' PRO, ¶63. Erosion and Elevation It is clear that the Town of Marineland, due to its location and low elevation (generally 5-6 feet NGVD west of A1A), has been, is, and will continue to be vulnerable to beach erosion and flood damage from a major hurricane. Several hundred years ago, there was a navigable tidal pass north of the Town. The pass closed naturally through sand and sediment accretion but in recent years the area has been suffering significant erosion, resulting in State Road A1A having to be rerouted and access to homes along the old A1A being severely limited. In 1999, when Hurricane Floyd was 100-150 miles east of the Town in the Atlantic Ocean, significant erosion occurred within the Town, including the waters and sand of the Atlantic Ocean overtopping A1A in the north end of the Town, along with flooding the Town. As a result, the Town was a declared a disaster zone, and FEMA awarded two separate redevelopment grants. The Town's shoreline has been critically eroded, but is stable at this time. Notwithstanding these characteristics of the Town, which contribute to its designation as a CHHA, and as previously discussed, the evidence is clear that the Town is not considered unsuitable for development. To the contrary, the development allowed by the Plan Amendments is considered acceptable. Petitioners also cite evidence that sea level is expected by some to rise approximately 20 inches in the next 100 years. But no qualified witness opined that, for planning purposes, the Town should be considered unsuitable for development for that reason. Hurricane Frequency and Intensity Petitioners also contend that the Town is unsuitable for development in light of data and analysis concerning hurricane frequency and intensity. Indeed, there is persuasive evidence that hurricane frequency and intensity is cyclical and that in about 1995 a period of heightened hurricane frequency and intensity that usually lasts 10-20 years probably began. The evidence was clear that DCA does not consider the frequency and intensity of hurricanes to be relevant data and analysis in evaluating whether comprehensive plan development density and intensity are "in compliance." Rather, this is considered to be a matter to be addressed by the Legislature. So far, there has been no legislation to either further enlarge the CHHA or further restrict development in the CHHA.11 Hurricane Evacuation and Shelter Study Petitioners allege that the Town did not undertake adequate hurricane evacuation planning in connection with the Plan Amendments. Specifically, their PRO cites Section 163.3178(2)(d), Florida Statutes, which requires a comprehensive plan's coastal management element to include: "A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element in the event of an impending natural disaster." They also cite Rule 9J-5.012(2), which addresses the requirement that the coastal element be based on the following data and analysis, among others: (e) The following natural disaster planning concerns shall be inventoried or analyzed: 1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped, hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times. They point out that Rule 9J-5.003(57) defines Hurricane Vulnerability Zone (HVZ) as "the areas delineated by the regional or local hurricane evacuation plan as requiring evacuation" and that it also requires the HVZ to "include areas requiring evacuation in the event of a 100-year storm or Category 3 storm event." Finally, they cite Rule 9J- 5.012(3)(b)7., which requires one or more specific Coastal Element objectives which: “Maintain or reduce hurricane evacuation times.” The evidence was that these planning requirements were met. There are no mandatory state, regional, or local evacuation clearance times. The 1992/2005 Plan included C/CE Objective E.1.5., which provided: "The time period required to complete the evacuation of people from flooding of vulnerable coastal areas prior to the arrival of sustained gale force winds shall be maintained at less than 12 hours." The Plan Amendments replaced that objective with C/CE E.1.5., which now provides: "Evacuation clearance time should be maintained or reduced to less than 12 hours." This complies with Rule 9J-5.012(3)(b)7. The Plan Amendments were based on appropriate data and analysis. Because the entire Town is in the CHHA, the Town population must evacuate in a Category 1 and all higher storm categories. Evacuation routes for the Town are S.R. A1A north to S.R. 206 in St. Johns County, and S.R. A1A south to Palm Coast Parkway in Flagler County. The best and most current evidence, based on a 2005 update to the RPC's 1998 Regional Hurricane Evacuation Study, indicates that evacuation clearance times for St. Johns County are estimated to be 11 hours for Category 1 hurricanes, 14 for Category 2 hurricanes, 16 hours for Category 3 hurricanes, and 16.75 hours for Category 4 through 5 hurricanes; evacuation clearance times for Flagler County are estimated to be 7.75 hours for Category 1 and 2 hurricanes and 12 hours for Category 3 through 5 hurricanes. The Flagler clearance times are lower than those estimated in a 1998 version of the study, even though based on a higher population, primarily because the widening of the Palm Coast Parkway to four-lanes has been completed. The evidence does not demonstrate that the evacuation clearance times in St. Johns County increased under the 2005 Study. Clearance times are based on the worst bottleneck in a county, where traffic is metered to derive the actual clearance times. Evacuation of Town residents under the Plan Amendments will not impact the bottlenecks in either St. Johns County or Flagler County. For that reason, evacuation of Town population would be expected to be take less time than the clearance times calculated for those counties in the RPC's 2005 study; conversely, evacuation of Town residents under the Plan Amendments will have no effect on the overall clearance times in either St. Johns County or Flagler County. Assuming a maximum additional population (resulting from the addition of 829 dwelling units) under the Plan Amendments, 652 cars would be added to an evacuation during high tourist occupancy season (which includes the summer tourist season, which generally corresponds to hurricane season). This would increase traffic during the worst theoretical hour of the Town's evacuation (i.e., during which 30 percent of the Town's traffic would try to enter the evacuation road network) by 8.7 percent heading north from the Town on A1A and by 13 percent heading south of the Town on A1A. Based on a comparison of maximum theoretical densities under the 1992/2005 Plan and under the Plan Amendments, the number of evacuating vehicles added to the road network is reduced under the Plan Amendments. By comparison, assuming a maximum additional population (resulting from the addition of 565 dwelling units) under the 1992/2005 Plan, 922 cars would be added to an evacuation during high tourist occupancy season. This would increase traffic during the worst theoretical hour of the Town's evacuation by 12.3 percent heading north from the Town on A1A and by 18.4 percent heading south of the Town on A1A. Likewise, based on a comparison of maximum densities under the 1992/2005 Plan and the Plan Amendments, the Plan Amendments result in a reduced demand for shelter space. Obviously, since the entire Town is in the CHHA and must evacuate in a Category 1 and all higher storm categories, there is no requirement for the Town itself to provide hurricane shelter. Similar to most Florida counties, St. Johns and Flagler Counties have deficits in shelter space that are expected to increase as the population increases. According to DCA's Division of Emergency Management (DEM), in 2004 Flagler County had hurricane shelter spaces for 4,267 persons and a deficiency of 2,401 shelter spaces. This deficiency is expected to almost double (be 4,020) by 2008. According to DCA's DEM, in 2004 St. Johns County had hurricane shelter capacity for 7,320 persons, and a hurricane shelter demand of 9,829 people, resulting in a deficiency of 2,509 spaces. In 2009, the St. Johns County shelter demand is projected to be 11,564, “leaving an anticipated shelter deficit of 4,244.” However, the evidence was not clear that the shelters to which Town residents would be assigned are either over capacity or under capacity. In addition, it was not clear that future development would not include the construction of facilities that may serve as shelters. Finally, there was no clear evidence why these anticipated shelter deficits should restrict development in either county, or in the Town, so as to make the Plan Amendments not "in compliance." Natural Resources Petitioners contend that the Plan Amendments are not "in compliance" because of effects on various natural resources in the Town and vicinity, including shellfish harvesting areas, important estuarine nursery for juvenile fish and invertebrates, and the Town's high-quality oak hammock area (also referred to as a maritime hammock, a coastal temperate hammock, or a tropical hardwood hammock.) Petitioners' main argument regarding adverse effects on shellfish harvesting and nursery areas was that flooding during hurricane events will cause household chemicals and other pollutants stored inappropriately at ground level to be released into the environment, probably at a time when juvenile fish are present in the estuarine nursery areas. But there also was persuasive evidence that chemicals released during these kinds of flood events would be substantially diluted by the massive volume of water associated with them, which would greatly reduces any deleterious effects on nursery and shellfish areas. Through C/CE Policies E.1.3.4 and E.1.3.5 in the Plan Amendments, the Town has chosen to impose OFW standards that substantially exceed those that would otherwise be imposed by the St. Johns River Water Management District. OFW standards prohibit degradation of water below ambient conditions and typically require the design of stormwater systems that provide 1.5 times the level of treatment that otherwise would be provided for stormwater. There was evidence that shellfish harvesting has declined in the waters of the GTMNEER to the north of the Town over the recent past as the land near these waters has been developed. The evidence was not comprehensive as to the reason(s) for the decline, but poorer water quality generally is thought to be the primary cause. Some shellfish harvesting areas still are productive, including some near the Town where Mr. Cubbedge has an oyster and clam lease. Petitioners presented no testimony related to the temperate hardwood hammock. Centex's expert in environmental analysis observed that portions of the hammock areas have been altered or disturbed and that the higher-quality areas have been placed in the River-to-Sea Preserve where they are protected from development. Much of the natural vegetative communities in the Town are within the Conservation future land use category and not subject to development. To protect 10.3 acres of oak hammock located on land that is subject to development, the Plan Amendments impose a Maritime Hammock Overlay. In addition to otherwise applicable density and intensity standards, development within the Overlay is subject to numerous restrictions on adverse impacts on natural vegetation. Amendment FLUE Policies A.1.8.3. and A.1.8.4. allow only 50 percent of single-family and multi- family parcels to be cleared of trees, understory, and groundcover, and only 25 percent of the tree canopy to be removed. Petitioners also argue that the designation of the "Public Facilities" future land use category in the River-to- Sea Preserve in Amendment Policy A.1.4.2 is unsupported by data and analysis and "fairs [sic] to show the extend [sic] of the category as required by Section 163.3177(6)(a), Fla. Stat., and it does not estimate the gross acreage of the category as required by Rule 9J-5.006(2)(c)." Actually, the statute cited requires the FLUE to designate the "extent of the uses of land," and the rule requires an "analysis of the amount of land needed to accommodate the projected population, including: . . . 2. The estimated gross acreage needed by category . . . ." There was no testimony or other adequate evidence to support these arguments, and it was not proven that the Plan Amendments are not "in compliance" for any of these reasons. Conclusion It was not proven that data and analysis concerning the above matters establish that the density of the Plan Amendments is unsuitable for the Town land. Meaningful and Predictable Standards Similar to the Amended Petition and Petitioners' Statement of Position in the Prehearing Stipulation, Petitioners' PRO lists numerous objectives and policies in the Plan Amendments and contends that they are not "in compliance" because they do not provide meaningful and predictable standards. One expert called by Petitioners (Ms. Owen) testified in general that the Plan Amendments contain objectives and policies "which do not contain meaningful and predictable standards" or "that are not measurable or provide any standards or specificity." (T. 359). She also initially testified that the Plan Amendments (at her request) incorporated into data and analysis OFW water quality standards for discharges into the ICW but that "their goals, objectives and policies, as drafted, do not provide specific enough standards to be able to measure that"; later, she conceded that C/CE Policy E.3.5 incorporated OFW water quality standards. Another expert for Petitioners (Mr. Johnson) testified, "I think there's not enough detail in these policies and standards by which somebody could measurably allow growth to occur and measurably predict that it's not going to have an effect, a negative effect, on the environment." Otherwise, Petitioners put on no expert testimony to explain why the objectives and policies in the Plan Amendments do not provide meaningful or predictable standards, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." Another expert for Centex (Dr. Dennis) testified specifically that incorporation of the OFW standards in the C/CE and other goals, objectives, and policies were adequate to protect the waters of the ICW and its natural resources and the River-to- Sea Preserve even with the development allowed by the Plan Amendments. Rule 9J-5.005(6) provides in pertinent part: "Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. This chapter does not mandate the creation, limitation, or elimination of regulatory authority for other agencies nor does it authorize the adoption or require the repeal of any rules, criteria, or standards of any local, regional, or state agency." Rule 9J-5.003 sets out definitions, including: (52) "Goal" means the long-term end toward which programs or activities are ultimately directed. (82) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress toward a goal. (90) "Policy" means the way in which programs and activities are conducted to achieve an identified goal. Properly understood, these Rules require that an objective's "intermediate end" be specific and measurable in the sense that it can be determined when the "intermediate end" is reached. They do not mean that objectives must eliminate all possibility ambiguity or be amenable to quantitative measurement. They only require that objectives provide "meaningful guidance" and be enforceable in that sense. All of the objectives and policies listed by Petitioners have been reviewed. The evidence does not prove beyond fair debate that any of the listed objectives and policies are inconsistent with the cited Rule provisions, properly understood. Petitioners complain that several of the listed objectives and policies require the adoption of LDRs without including meaningful and predictable standards. In some cases, the objectives and policies themselves provide meaningful and predictable standards. But it is not necessary for comprehensive standards to be included in each such objective or policy. Rather, when required, meaningful and predictable standards to guide the LDR adoption process can be placed elsewhere in the comprehensive plan, as is often the case with the Plan Amendments. (In addition, not all plan directions to adopt LDRs are required by statutory and rule mandatory criteria, and it is possible that all of them may not be required to include meaningful and predictable standards if superfluous.) As they did elsewhere in their PRO, Petitioners contend that FLUE Policy A.1.4.2 does not "state what is the areal extent of the 'Public Facilities' land use category as required by Section 163.3177(6)(a), Fla. Stat. or estimate the gross acreage of the 'Public Facilities' land use category as required by Rule 9J-5.006(2)(c)." They also characterize the alleged failing as a lack of meaningful and predictable standards. But as previously mentioned, the Plan Amendments are not inconsistent with that statute and rule. See Finding 73, supra. Petitioners also argue that a listed objective and several listed policies fail to provide meaningful and predictable standards because they do not contain a percentage distribution of mixed uses.12 Actually, these are two different issues. As already indicated, it was not proven beyond fair debate that the objectives and policies fail to provide meaningful and predictable standards. As for the separate issue of percentage distribution of mixed uses, Rule 9J-5.006(4)(c) provides: Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use. (Emphasis added.) Petitioners put on no expert testimony to explain why the objective and policies in the Plan Amendments do not meet the requirements of this Rule, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, as already mentioned, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." On the evidence presented, it was not proven beyond fair debate that the Plan Amendments do not contain policies with "[an]other objective measurement" of the distribution among the mix of uses in the SMU, General Commercial, and Tourist Commercial land use categories established in FLUE Policy A.1.4.2. H. Petitioners' Other Issues The Amended Petition and Prehearing Stipulation raised other issues that were not included in Petitioners' PRO. Some of these were addressed in the parts of Centex's PRO, which the Town and DCA joined, including financial feasibility, planning timeframes, and deletion of a policy requiring habitats of listed species to be designated Conservation. To the extent that these other issues have not been abandoned by Petitioners, it is found that they were not proven. Petitioners' Standing All of the Petitioners submitted oral or written comments, recommendations, or objections to the Town during the period of time beginning with the transmittal hearing for the Plan Amendments on March 31, 2005, and ending with their adoption on August 18, 2006. None of the Petitioners own property or reside in the Town or own real property abutting real property in the Town. The Hamilton Brothers Brothers George William (Bill) Hamilton, III, and Patrick S. Hamilton live in Crescent Beach, which is four to five miles north of the Town in St. Johns County. Together (along with their wives), they own and operate Homecomers, Inc., which does business as Southern Realty of St. Augustine and Crescent Beach (Southern Realty), and as Southern Horticulture, which is located in Crescent Beach or St. Augustine (the evidence was not clear which). Patrick operates the real estate brokerage, which has offices in St. Augustine and in Crescent Beach, and Bill operates the retail garden and landscaping business. The brothers also own part of Coastal Outdoor Center, which is located in Crescent Beach at S.R. 206 and features kayak tours of the Matanzas River, mostly south to Pellicer Creek. The Hamilton family also has oyster and clam leases in St. Johns County. It appears that the vast majority of the brothers' business activities are conducted in St. Johns County north of the Town. However, over the years, some limited business has been conducted in the Town. In 1993 Patrick Hamilton twice brokered the sale of land from Marineland, Inc., one parcel to an private individual and the other to the Whitney Lab. In 1995 he procured a contract for the sale of Marineland, Inc. (and, with it, essentially the entire Town) for a fish farm operation for approximately $10 million; when the contract was breached, Southern Realty got part of the forfeited $100,000 binder. In 1998 Hamilton was authorized by MOR to sell its holdings in the Town for a ten percent commission. Hamilton was successful in efforts to arrange for it to be purchased by FCT and the Trust for Public Lands (TPL) through the bankruptcy court in Jacksonville, and some of the land was immediately resold at a profit to Mr. Jacoby. When Hamilton pursued payment of Southern Realty's brokerage commission through the bankruptcy court, he learned that TPL had indemnified MOR for the brokerage commission. At that point, Southern agreed to accept an $18,000 fee from TPL and drop its bankruptcy claim for ten percent on the overall purchase. In 2002, Hamilton paid for and prepared grant applications for the Town's purchase of two islands that were outside the Town's municipal boundaries but which the Town intends to annex. In September 2004 he wrote an offer on behalf of a trustee of the Whitney Lab to purchase a small parcel of land TPL still owned in the Town and donate it to the Lab. However, no contract was reached, and Southern Realty received no commission. In 2005 Phil Cubbedge asked Hamilton to represent him in the sale of his oyster and clam lease to Centex but then backed out when Centex proposed to deal directly with Cubbedge without Southern Realty's involvement. Southern Horticulture used to do business with the Marineland Attraction but has not done any business in the Town in nine years, since the Attraction went into receivership and did not pay a Southern Horticulture bill in full. The Town never has required the Hamiltons or their businesses to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 Southern Realty applied and paid for and obtained an occupational license to "engage in the business of real estate." This was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. On several occasions over the years, the Hamilton brothers have engaged in various civic activities pertaining to the Town. Most of these activities have been Patrick's. These have included: participation on the management advisory group for the GTMNERR and efforts in the early to mid-1990s to have its Administrative Office established in the Town; efforts in 2000 or 2001 related to the designation of A1A as a scenic highway in St. Johns County, with a segment being in the Town; subsequent work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County; advocacy related to the St. Johns County Comprehensive Plan; service on the Board of Trustees of the Whitney Lab; and financial contributions to and fund-raising for the Whitney Lab. The brothers do these things out of a sense of civic duty and for the good of the community and their vision for it. However, they also believe these activities provide a benefit for their business, particularly the real estate and outfitting businesses. It is found, based primarily on the activities of Southern Realty, that the Hamilton brothers own or operate a business within the Town. Florida Wildlife Federation FWF is a not-for-profit Florida corporation with approximately 50,000 members and supporters. No FWF members reside or own property in the Town, and FWF does not have an office in the Town. One member (Mr. Cubbedge) has an oyster and clam lease in the Town. Cubbedge, the Hamilton brothers, and Dr. Michael Greenberg, who works and has his office at the Whitney Lab in the Town, are the only members who have a connection to the Town, according to the evidence. In April 2004, FWF established a regional office in St. Johns County outside the Town for the primary purpose of reviewing comprehensive plan amendments, focusing on natural resource protection. FWF monitors growth management and habitat protection during the development stages of the Town, focusing on the draft of the goals, objectives and policies for the comprehensive plan. In furtherance of this effort, FWF’s planning advocate (Ms. Owen) has attended and participated in meetings of the Remarkable Coastal Place work group stakeholder meetings, where they reviewed drafts of comprehensive plan amendments; has talked with elected officials to educate them on FWF (and FOM) concerns; and has attended meetings of and made presentations to the South Anastasia Community Association, a civic organization that holds its meetings in the Town. Through the Post Office and its website, FWF publishes a newsletter with information about FWF’s activities in the state, including fundraising. No evidence was presented that the newsletter is distributed in the Town. FWF’s regional office held a fundraiser in St. Augustine in February 2006 to raise money to pay attorney’s fees and expert witness fees for this proceeding. The Town never has required FWF to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 FWF applied and paid for and obtained an occupational license "to engage in the business of monitoring growth management and habitat protection." As with Southern Realty, this was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. Based on the evidence, it is found that FWF owns or operates a business within the Town. Friends of Matanzas FOM is a not-for-profit Florida corporation established in 2001 to preserve and protect the estuary and its watershed, and to maintain the rural beach community, particularly on South Anastasia Island and in southern St. Johns County to Marineland. FOM has 34-44 members. No FOM members reside in the Town, but at least two of them--its current president, Dr. Greenberg, and Maureen Welsh--work at the Whitney Lab. The Hamilton brothers also are members. FOM itself does not have an office in the Town. However, Dr. Greenberg is its president, and he may keep some FOM records and documents in his office at the Whitney Lab. There was no evidence that FOM ever has had a Town occupational license, or that the Town ever has required it to have one. In part (if not primarily) through the activities of the Hamilton brothers, FOM has been involved in: efforts in the mid-1990s to have the Administrative Office of GTMNERR established in the Town; efforts, including production of a video in 2000 or 2001, related to the designation of A1A in St. Johns County, including within the Town, as a scenic highway; and work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County, including within the Town. There also was evidence that FOM holds annual meetings in the Town. Based on the evidence, it is found that FOM does not own or operate a business within the Town.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006.
Findings Of Fact Background 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.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A. Filed January 21, 2011 10:24 AM Division of Administrative Hearings DCA Order No. DCA11-GM-007
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT'S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies haye been furnished by U.S. Mail or Electronic May to each of the persons listed below on this day of January, 2011. / a Paula Ford Agency Clerk By U.S. Mail The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 By Electronic Mail Amy Taylor Petrick, Esquire Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, Florida 33401 Gary K. Hunter, Esquire Vinette D. Godelia, Esquire Hopping Green & Sams 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 33301 Richard Grosso, Esquire Robert N. Hartsell, Esquire Everglades Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 DCA Order No. DCA11-GM-007
The Issue The issue in this case is whether certain amendments to the City of Miami Beach Year 2000 Comprehensive Plan are "in compliance," as defined in Section 163.3184(1), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Kent Harrison Robbins, is a resident of the City of Miami Beach. Mr. Robbins owns real property located within the boundaries of the City of Miami Beach. Petitioner, Altos Del Mar Development Corporation (hereinafter referred to as the "Development Corporation"), is a corporation. The Development Corporation is owned by Mr. Robbins. Respondent, the City of Miami Beach (hereinafter referred to as the "City"), is a political subdivision of the State of Florida. The City is located in Dade County, Florida. Respondent, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Standing. Mr. Robbins owns real property (hereinafter referred to as the "Robbins Property") in the City. The Robbins Property is located west of Collins Avenue between 76th Street and 77th Street. The Robbins Property is located across Collins Avenue from one of the areas which is the subject of this proceeding. The Robbins Property is also located a few blocks from other areas which are the subject of this proceeding. Mr. Robbins made oral comments before the City at public hearings on the amendments which are at issue in this proceeding. Development Corporation is owned by Mr. Robbins. Development Corporation is the contract-purchaser of the Robbins Property. Mr. Robbins and Development Corporation have standing to institute this proceeding. The Department and the City have standing to participate in this proceeding. General Description of the City and the North Shore Area of the City. The City is a group of barrier islands located along the southeast coast of Florida. The City is 99 percent developed. The City is bounded on the east by the Atlantic Ocean and on the west by Biscayne Bay. The area at issue in this proceeding is located in an area of the City generally referred to as "North Shore." North Shore is heavily urbanized, as is the City generally. Within North Shore are located North Shore Open Space Park, North Shore Park, Altos Del Mar Historic Preservation District, and the Harding Townsite/South Altos Del Mar Historic District. North Shore Open Space Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 79th Street, and south of 87th Street. North Shore Park is located east of Collins Avenue, west of the Atlantic Ocean, north of 72nd Street and south of 73rd Street. The Altos Del Mar Historic Preservation District (hereinafter referred to as "Altos Del Mar") is an area of the City that was designated an historic district in January 1987. Altos Del Mar consists of the area bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 79th Street, and on the south by 77th Street. The Erosion Control Line is a line that runs generally north-south along the eastern boundary of the City and the Atlantic Ocean. The Erosion Control Line marks the western boundary of the area of the shoreline in which efforts to stop or slow erosion of the beaches have been directed. The Harding Townsite/South Altos Del Mar Historic District (hereinafter referred to as "Harding Townsite") was designated an historic district in October 1996. Harding Townsite is bounded on the west by Collins Avenue, on the east by the Erosion Control Line, on the north by 77th Street, and on the south by 73rd Street. The City's Comprehensive Plan. The City adopted the City of Miami Beach Year 2000 Comprehensive Plan (hereinafter referred to as the "Plan"), on September 7, 1989. The Plan was found to be "in compliance" as defined in the Act in December 1992. Part II of the Plan establishes goals, policies, and objectives of the Future Land Use Element. Objective 1, Policy of the Future Land Use Element of the Plan establishes, in relevant part, the following land-use categories, land-use intensities, and land-use densities: Recreation and Open Space, including Waterways, or "ROS," which is described as: as: Purpose: To provide development opportunities for existing and new recreation and open space facilities, including waterways. Uses which may be Permitted: Recreation and open space facilities, including waterways. Single Family Residential, or "RS," which is described Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and new single family residential development. Uses which may be Permitted: Single family detached dwellings. Density Limits: 7 residential units per gross acre. Parking, or "P," which is described as: Purpose: To provide development opportunities for existing and new parking facilities. Uses which may be Permitted: Parking facilities and commercial uses when located on frontage opposite a land use category that permits commercial use. Public Facility, or "PF," which is described as: Purpose: To provide development opportunities for existing and new government uses including convention center facilities. Uses which may be Permitted: Government uses and convention facilities. Low Density Multi Family Residential, or "RM-1," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new low density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings and multiple family dwellings. Base Density Limits: 34 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 90 dwelling units per gross acre, inclusive of base density. Medium Density Multi Family Residential, or "RM-2," which is described as: Purpose: To provide development opportunities for and to enhance the desirability and quality of existing and/or new medium density multi family residential areas. Uses which may be Permitted: Single family detached dwellings, single family attached dwellings, townhouse dwellings, multiple family dwellings, apartment hotels and hotels. Other uses which may be permitted are adult congregate living facilities, day care facilities, nursing homes, religious institutions, private institutions, public institutions, schools, commercial parking lots and garages and non-commercial parking lots and garages. Base Density Limits: 56 dwelling units per gross acre. Large Lot and Urban Design Bonus Density Limits: 136 dwelling units per gross acre, inclusive of base density. The Plan contains all of the elements required by the Act, including a Future Land Use Element, a Recreation and Open Space Element, and a Conservation/Coastal Zone Management Element. The Plan also contains a Future Land Use Map. Adoption and Review of the Plan Amendments. On or about January 21, 1994, the City transmitted amendments to its Plan to the Department for review. The amendments were adopted generally to "down-plan" the City and to encourage the redevelopment of the Altos Del Mar neighborhood. In an effort to "down-plan" the City, the amendments provided for a reduction of the overall amount of residential development allowed in the City pursuant to the Plan. In an effort to promote redevelopment of the Altos Del Mar neighborhood, the amendments replaced the dual single-family residential and recreation and open space land-use classifications of property in Altos Del Mar and classified the area as single-family residential; and reclassified under- utilized parking areas and medium density multi-family properties as low density multi-family. The Department designated the amendments as Amendment 94-1, reviewed the amendments, and issued its Objections, Recommendations, and Comments Report on April 1, 1994. On June 2, 1994, the City enacted Ordinance Number 94-2928 adopting the amendments (hereinafter referred to as the "Proposed Amendments"). The Proposed Amendments were submitted to the Department for review under the Act. The Department reviewed the Proposed Amendments and found that they were not "in compliance." The Department issued a Notice of Intent to find the Proposed Amendments not in compliance on July 28, 1994. The Department filed a Petition for Formal Administrative Hearing challenging the Proposed Amendments with the Division of Administrative Hearings on August 16, 1994. Following negotiations between the City and the Department, a Compliance Agreement was entered into on September 19, 1996. Pursuant to the Compliance Agreement, the City adopted remedial amendments. On December 5, 1996, the Department published a Cumulative Notice of Intent finding the amendments, as modified by the remedial amendments (hereinafter referred to as the "Adopted Amendments"), "in compliance" with the Act. Petitioners' Challenge. Petitioners filed a Petition for Administrative Hearing with the Department challenging the determination that the Adopted Amendments were "in compliance." On January 16, 1997, the Department dismissed the petition by Order Dismissing Petition with Leave to Amend. Petitioners filed an Amended Petition with the Department on February 4, 1997. The Amended Petition was filed by the Department with the Division of Administrative Hearings on February 14, 1997. On June 9, 1997, Petitioners moved to further amend the Amended Petition. Petitioners' request was granted. The Challenged Amendments. There are three changes to the Plan in the Adopted Amendments that have been challenged in these proceedings. Those changes involve modifications to the Future Land Use Map (hereinafter referred to as the "FLUM"), and textual changes pertaining to the geographic areas at issue in this proceeding. The relevant changes to the FLUM were designated FLUM Changes 14, 16a, 16b, and 16c (the areas which are the subject of changes 14, 16a, 16b, and 16c are hereinafter referred to respectively as "Area 14," "Area 16a," "Area 16b," and "Area 16c"; the areas are collectively referred to as the "Subject Areas"). Petitioners have challenged Changes 14, 16a, and 16b (hereinafter referred to as the "Challenged Amendments"). The Subject Areas are located within Altos Del Mar and/or the Harding Townsite. With regard to Change 14, Petitioners have alleged generally that the amendment is not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning future land use, conservation, coastal management, and recreation and open space elements. Petitioners have argued generally that Area 14 may only be used for recreation and open space because the area is in effect a park or open space; there is a dune located on the property; the use of the property for single-family residential will negatively impact wildlife and plant life; and the use of the property for single-family residential will negatively impact historic resources. With regard to Changes 16a and 16b, Petitioners have alleged generally that the amendments are not "in compliance" because the amendments are inconsistent with the requirements of the Act and the rules promulgated thereunder concerning the coastal management, recreation and open space, and housing elements. Petitioners have argued generally that Changes 16a and 16b will negatively impact public access to beaches and inappropriately reduce public parking. In Petitioners' proposed recommended order, Petitioners attempted to raise issues which were not alleged in their Second Amended Petition. Petitioners contended that the Department's original notice that the Proposed Amendments were not in compliance was defective; that the Adopted Amendments were not necessary to meet projected demands for residential land uses in the City; and that the Adopted Amendments were not consistent with coastal planning objectives. These issues were not properly raised is this case. The City and Department had no opportunity to present evidence to address these issues because Petitioners had not raised the issues until they filed their proposed order. Nor, to the extent these issues may have been properly raised before this forum, did the evidence support Petitioners' allegations. Area 14 and FLUM Change 14. Area 14 is bounded on the south by 76th Street, on the north by 79th Street, on the west by Collins Avenue, and on the east by the Atlantic Ocean. The Robbins Property is located adjacent to Area 14, on the west side of Collins Avenue between 76th Street and 79th Street. Area 14 is bounded on the north by North Shore Open Space Park. Area 14 consists of Blocks 5, 6, 7, 10, 11, and 12. Area 14 is located in Altos Del Mar or Harding Townsite. There are 36 individual platted lots in Area 14. Twenty-two of the lots are currently owned by the State of Florida. The rest are in private ownership. Area 14 consists of approximately 11 total acres. Area 14's designated land-use classification on the FLUM prior to the adoption of the Challenged Amendments was "Recreation and Open Space" and "Single Family Residential." This dual land-use classification is identified on the FLUM as "ROS/RS." Pursuant to the dual land-use classification of Area 14, property located within Area 14 could be permitted for single-family dwellings or it could be used for recreation and open space. Petitioners' have alleged that FLUM Change 14 "change[s] the designation of [Area 14] from recreational open space to single family residential." This allegation is not supported by the evidence in this case. FLUM Change 14 eliminates the dual land-use classification of Area 14. Pursuant to FLUM Change 14, Area 14 is designated for use as Single Family Residential only. The dual land-use classification was eliminated to encourage reinvestment of single-family residential development in the area. I. Current Use of Area 14. Area 14 currently includes vacant lots, lots with boarded-up structures, and several single-family residences. There are more vacant and unused lots than there are lots with single-family residences. The 22 lots owned by the State are not all contiguous. The largest area of contiguous state-owned lots is located between 76th and 77th Streets. This area is located adjacent to the Robbins Property. Eleven of the twelve lots between 76th and 77th Streets are owned by the State. There is one privately-owned lot located just north of 76th Street. The State also owns two lots just north of 77th Street. The lots in Area 14 north of 77th Street are primarily owned in a checker-board fashion. Some of the lots north of 77th Street have existing single-family residences located on them. The rest of the lots are vacant or have boarded-up buildings located on them. Because of the proximity of Area 14 to the Atlantic Ocean and the accessibility of the beach from the area, the public uses the open areas of Area 14 for recreational purposes from time to time. The area is generally open, there is grass, pine trees, and sea grapes on some lots, and there is a public shower located at the east end of 77th Street. The trees and other vegetation offer shaded areas. There is public parking available in the area on side streets off of Collins Avenue and a public parking lot just to the south of 76th Street. There are several access points to the beach along Area 14, including an access point at the east end of 77th Street. There is a rock fence at the end of 77th Street. The rock fence is typical of fences that were placed at the ends of streets in the City that led to the beach. The fences were erected to prevent vehicular traffic entering the beach while allowing pedestrian access. The public has used the open areas of Area 14 for some time for picnicking, walking their pets, playing games, barbecuing, and other outside recreational activities. The evidence failed to prove the extent of this use. The evidence presented by Petitioners was not gathered in any organized fashion and was unconvincing. The 22 lots owned by the State in Area 14 were originally acquired with the intent of creating a park at some time in the future. The State had intended to acquire all of Area 14 for this purpose. The lots were acquired by the State as part of the Save Our Coast Park Expansion Program. When the State's efforts to acquire all of Area 14 failed, the State decided not to acquire any more lands. The lots the State had acquired in Area 14 were designated as "excess lands." The State intends to sell the lots it owns in Area 14. In 1994, after the State abandoned its plan to acquire all of Area 14, the City and State, through the Board of Trustees of the Internal Improvement Fund, entered into a lease (hereinafter referred to as the "Lease"). Pursuant to the Lease, the State leased North Shore Open Space Park and the publicly- owned lots in Area 14 to the City. Although the period of the Lease was twenty-five years, the Lease provided that it was entered into "upon an interim basis" while negotiations concerning transfer of fee title of the property to the City were ongoing. During this "interim" period, the Lease provides that the property is to be used exclusively for recreational purposes. The City agreed to manage the property as a public park. The City does manage North Shore Open Space Park as a public park. Despite any requirement to the contrary under the Lease, the City has not created, or operated, a park in Area 14. Neither the City or the State actually created a park out of any part of Area 14. Nor has the City or State used any part of Area 14 as a park. Area 14 has not been included by the City in its Recreational and Open Space inventory. Consequently, Area 14 and any use by the public was not considered by the Department in the determination that the City's Recreation and Open Space Element of the Plan is in compliance. Petitioners' Assertion that Area 14 Must be Used as a Park. Petitioners attempted to prove that Area 14 must be used for recreational purposes or as open space. Petitioners based this argument on their assertion that the character of Area 14 is suitable for, and has historically been used as, a park or open space; the State and City planned and managed Area 14 as a park; the data and analysis relied upon by the City in adopting FLUM Change 14 contains an alleged incorrect statement concerning the current use of the area; and there is a need in the City for additional recreation and open space property. Petitioners have proposed a relatively large number of findings of fact to support this position. While those findings of fact are generally accurate when considered standing alone, they are not relevant to the determination of whether the Challenged Amendments are in compliance and, therefore, have not been included in this Recommended Order. Petitioners failed to prove that Area 14 is used as a "park." Even if they had, nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area can be developed only in a manner that is consistent with its historical use. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in the manner in which the property was used informally by the public. Nothing in the Plan, the Act, or the rules of the Department requires that a comprehensive plan must provide that a geographic area must be used only in a manner that is consistent with a use which the State or local government may have considered appropriate for the area at some time in the past. Finally, there are no provisions in the Plan, the Act, or the rules of the Department that require that a comprehensive plan be consistent with the terms of a lease agreement, especially where the lease agreement was expressly entered into on an interim basis. Alleged Error in the Data and Analysis Concerning the Use of Area 14. The data and analysis in support of the Adopted Amendments indicates that "[t]he area encompassed by Future Land Use Map 14 is NOT now used for recreational purposes and it is not counted in the recreation facility inventory in the Recreation and Open Space Element." Petitioners cited part of the foregoing sentence from the data and analysis, and argued that the statement is not accurate. The evidence failed to support Petitioners' position. Petitioners' citation of part of the sentence quoted in finding of fact 66 fails to consider all of the data and analysis considered by the City in adopting the Challenged Amendments. Petitioners' argument is also based upon the unsupported conclusion that the common use of parts of Area 14 by the public constitutes "recreational purposes" as those terms are used in the data and analysis. When read in context, it is clear that the terms are being used in a technical, land-use planning sense. In their technical, land-use planning sense, the sentence is accurate. The evidence failed to prove that the data and analysis relied upon by the City in adopting the Challenged Amendments are not professionally reliable or that the data and analysis do not support the Challenged Amendments. The Need for Additional Recreation and Open Space. Petitioners have asserted generally that the amendments relating to Area 14 are not in compliance because of the need for additional recreation and open space in the City. Petitioners failed to prove this assertion. The evidence failed to prove that the Challenged Amendments relating to Area 14 somehow will cause a deficit in the Recreation and Open Space inventory of the City or that such a deficit already exists. Further, had Petitioners been able to prove that there is a need for additional parks in the City, such proof would only support a finding that the Recreation and Open Space Element of the Plan is inadequate. It would not, however, necessarily follow that the City would be required to correct the inadequacy through the use of Area 14 as a park. Finally, Petitioners have failed to prove how FLUM Change 14, which does not authorize any use of Area 14 that is not already authorized without the change, will have the suggested effect on the City's recreation and open space inventory. The National Recreation and Park Association's minimum level of service standard for recreation and open space is ten acres per one thousand permanent and seasonal residents. The City has adopted this level of service for recreation and open space in the City. The City meets this standard without consideration of Area 14 or any part thereof. Data and analysis, unrefuted by credible evidence from Petitioners, indicates that FLUM Change 14 will not adversely effect the level of service standard for recreation facilities: [R]emoval of the ROS designation will not per se reduce the recreation level of service. The re designation [sic] of site to Single Family Residential will create a small additional residential development potential, thus putting more demand on existing recreation facilities. However, the additional demand will not result in the city failing to meet its recreation level of service since it is an inconsequential amount and since it will be more than balanced by the net reduction in permitted residential development which will result from the cumulative effect of all of the proposed Future Land Use Map changes. The recreation level of service is established by Policy 2.1 of the Recreation and Open Space Element at ten (10) acres of recreation and open space per one thousand permanent and seasonal residents with 20 percent of seasonal residents counted. The Recreation space inventory shown in Table VIII-1 of the Recreation and Open Space element will still have the 1,156 acres shown therein after the 94-1 Future Land Use Map change (including change number 14) is effectuated. The 2002 population projection reported in Tables I-2 and I-3 of this element will remain at 98,965 permanent and 70,000 seasonal because it is based on trend lines not individual development sites. The 98,965 permanent population plus 20 percent of the 70,000 seasonal population produces a population of 112,965 for purposes of the recreation level of service standard. Then, 1,156 acres of existing recreation land/(112,965 people/1,000 people) equals a level of service of 10,233 acres per 1,000 population. The evidence failed to prove that FLUM Change 14 will adversely impact the City's ability to meet its adopted recreational level of service. The City has made commitments to upgrade existing recreational facilities, including improvements to North Shore Open Space Park. Included in the City's inventory of Recreational and Open Space property is La Gorce Country Club. La Gorce Country Club makes up 144.28 acres of the total 1,156 acres of recreational property relied upon by the City to meet its level of service standard. The La Gorce Country Club's inclusion in the Recreational and Open Space inventory was reviewed and approved in 1992. It played no part in the Challenged Amendments. Petitioners attempted to prove that the La Gorce Country Club should not be included in the Recreational and Open Space inventory. The evidence in this case failed to prove Petitioners' assertion. The La Gorce Country Club is a private country club. It is, however, available to the public for some recreational activities. It is, therefore, acceptable to include it as recreational property under the Department's rules. Additionally, even if the evidence had proved that La Gorce Country Club should not be considered in determining whether the City's level of service standard has been met, there is no requirement in the Act, the Department's rules, or the Plan that Area 14 must be included to make up the resulting deficit. Even if there were such a requirement, the inclusion of the 11 acres of Area 14 in substitution for the 144.28 acres of the La Gorce Country Club would not correct the deficit. Petitioners also suggested that Area 14 is qualitatively better recreational property than La Gorce County Club. This argument, and the facts offered to support it, are not relevant. The evidence failed to prove that the City has not adopted an adequate level of service in its Recreation and Open Space Element, or that the City is not meeting its level of service. The evidence also failed to prove that FLUM Change 14 is inconsistent with City's Recreation and Open Space Element Goal: Develop and Maintain a Comprehensive System of Parks and Recreational open Spaces to Meet the Needs of the Existing and Future Population by Maximizing the Potential Benefits of Existing Facilities and Open Space While Encouraging the Preservation and Enhancement of the Natural Environment. In light of the fact that Area 14 has never been treated as a park by the City, the evidence failed to prove that the City is not meeting its Recreation and Open Space Element Goal without regard to the land-use classification of Area 14. Archaeology of Area 14. Prior to March of 1927 there was a United States Federal Life Saving Station, known as the "Biscayne House of Refuge," located somewhere in the vicinity of Area 14. The Biscayne House of Refuge was one of six similar buildings located on the east coast of Florida. The buildings were used to provide refuge for shipwrecked sailors. The original Houses of Refuge were authorized by President Ulysses S. Grant in the late 1800's. The Biscayne House of Refuge was stocked with provisions and was managed by a keeper. The keeper's duties included, among others, burying bodies that washed up along the coast. Several of the keeper's children were also buried somewhere near the Biscayne House of Refuge. The evidence failed to prove, however, where any bodies are buried. It is believed that the Biscayne House of Refuge was destroyed following damage to the structure during a hurricane in March of 1927. The exact location of the Biscayne House of Refuge has not been determined. The best information available indicates it was located east of Collins Avenue, and either between 73rd and 77th Streets, or between 72nd and 76th Streets. There is also some information to suggest that the Biscayne House of Refuge was located on a site that is already developed for the City's library. The Florida Department of State, Division of Historical Resources, reported that its Historical Preservation Review of the Adopted Amendments had determined that the 22 proposed changes to the City's FLUM "should have no adverse effects on the city's historic resources since the areas appear to contain no sites listed on the Florida Site Files or the national Register of Historic Places." The evidence concerning the location of the Biscayne House of Refuge presented by Petitioners was speculative, at best. The evidence failed to prove that the Challenged Amendments will have any impact on the Biscayne House of Refuge or any significant archaeological resources. The evidence also failed to prove that FLUM Change 14 is inconsistent with the historic designations of Altos Del Mar or Harding Townsite. Natural Dunes. In its original state, the beaches of the City may have had extensive barrier reef dune systems along the Atlantic Ocean. To the extent that such systems existed, however, they have been radically altered by development and the impact of tides and winds on the dunes. The natural dune system of the City today has essentially been destroyed or so altered as to no longer be considered a significant dune system. The protection normally afforded by a dune system is now provided, not by a natural dune system, but by the man-made dunes east of the Erosion Control Line. Petitioners attempted to prove that there is an existing dune system in Area 14. The evidence failed to support Petitioners' contention. The evidence proved that, at best, there may be remnants of dunes along the eastern boundary of Area 14. One such feature is approximately four feet to four and a half feet in height, twenty feet wide, and a hundred to one hundred fifty feet in length. The evidence failed to prove, however, whether the piles of sand that do exist along Area 14 should be considered as dunes. The character of the coastline of the City, including Area 14, has been drastically altered by hurricanes, including the 1927 hurricane that destroyed the Biscayne House of Refuge. Erosion has eliminated much of the City's shoreline, in some cases eroding the beach to bulk heads. The construction of the dunes east of the Erosion Control Line also may have impacted any existing dune system in Area 14. The construction of the dunes involved a significant amount of grading. The evidence failed to prove what impact, if any, construction of the dunes had in forming the piles of sand that now exist along Area 14. The evidence also proved that, to the extent that any remnants of natural dunes may exist near Area 14, their function as a dune system has been substantially, if not completely, replaced by the man-made dune system along the Erosion Control Line. The Erosion Control Line was established as part of a beach renourishment project of the United States Army Corps of Engineers. The project lasted from 1975 through 1981 and cost approximately $60 million. The efforts of the United State Army Corps of Engineers included the expansion of the beach and the construction of a dune system that runs the entire length of the City's Atlantic Ocean shoreline. The constructed dunes have also been vegetated through a separate grant of approximately $4.5 million. The Erosion Control Line is owned by the State of Florida, managed by Metro-Dade County, and protected by the City. The evidence also failed to prove that, if a dune system did exist along Area 14, the Challenged Amendments allow any different impact on the dunes than was already allowed under the Plan. The Challenged Amendments do not authorize the development of Area 14 in a manner that was not allowed without the Adopted Amendments. Petitioners relied upon a United States Department of Agriculture, Soil Conservation Service, Soil Survey for Dade County prepared in 1957; a 1914 historical map of the City; and aerial photographs and contour maps prepared in 1975 by the United States Army Corps of Engineers to support their argument that significant dunes exist in Area 14. They attempted to bring these documents up-to-date largely through recent visual observations of the area. This evidence was not persuasive. The evidence proved that Area 14 is typical of the City's shoreline before extensive development. The evidence also proved that the remaining piles of sand may very well be a remnant of a dune system that existed at some time in the past. What the evidence failed to prove, however, is that the piles of sand are in fact part of a dune system that once existed in the area or that, if they are in fact part of a former dune system, the piles of sand should still be considered to be functioning as a dune system. Petitioners also have argued that the City mischaracterized the type of soils in Area 14 in the data and analysis as "fill." Petitioners argue that, had the City properly characterized the soils in Area 14, the City would have known that there was a natural dune. The evidence failed to support this argument. What the City actually indicated in the data and analysis is that "[t]he entire island is essentially 'madeland' except for the sand along the ocean beach." Petitioners' argument concerning this statement is not persuasive. First, the statement relied upon by Petitioners recognizes that there are areas that are not "made-land." What the data "along the ocean beach" means could be clearer or more precise, but the statement does not support a finding that the City simply dismissed the possibility that a dune may exist along Area 14. Additionally, Petitioners have simply taken a statement intended to apply to the entire City, and attempted to apply it to an 11-acre area. Petitioners have also argued that the City mischaracterized the nature of soils by stating in the data and analysis that "[t]he entire island consists of fill (shell and muck) together with sand." Petitioners argue that this statement is incorrect and that, if the City had properly taken into account the nature of the soils in Area 14, the City would have recognized that there were dunes. Again, Petitioners have taken the statement out of context. Petitioners have only considered the use of the term "fill," ignoring the fact that the statement also specifically states that the City is an "island" and that the fill exists "together with sand." Finally, the evidence failed to prove that provisions of the Plan and the City's Land Development Regulations dealing specifically with the protection of dunes are not adequate to protect any dunes that may exist in Area 14: Objective 1, Policy 1.4 of the Future Land Use Element provides for compatibility of uses of property adjacent to dunes and provides for the conservation of beach lands designated on the FLUM and the Conservation Element; Objective 1, Policy 1.2 of the Future Land Use Element designates dune locations on the Atlantic Coast as Conservation Protected "C" and permits only open space uses of these areas. It also provides for protection of such areas from the encroachment of development; Objective 1 of the Conservation/Coastal Zone Management Element provides that there will be "zero man-made structures which adversely impact beach or dune system(s)"; Objective 1, Policy 1.2 of the Conservation/Coastal Zone Management Element requires vegetation of, and elevated footpaths over, dunes to minimize pedestrian impacts; Objective 1, Policy 1.4, and Objective 10, Policy 10.1 of the Conservation/Coastal Zone Management Element discourage non-water oriented activities and development on beach-front parks, new beach areas, and dunes by designating the beach as a Conservation Protected Area on the FLUM; Objective 3, Policy 3.4 of the Recreation and Open Space Element provides that the City will inform Metro-Dade County and the United States Army Corps of Engineers when maintenance or renourishment of the beach is necessary; and The City's Land Development Regulations provide protection through the Dune Overlay Regulations. The evidence failed to prove that the alleged dune in Area 14 has "archeological significance." Impact on Wildlife and Vegetative Communities. The evidence presented by Petitioners concerning the use of Area 14 by birds and vegetative communities was anecdotal and unpersuasive. Practically the entire length of the City's boundary with the Atlantic Ocean is used for nesting by the Atlantic Loggerhead Turtle, Leatherback Turtles, and Green Turtles. All are threatened or endangered species. Nesting of turtles in the immediate vicinity of Area 14 has been moderate to low. Greater nesting activity takes place along the more urbanized South Beach area. Coastal development has contributed to the endangered status of sea turtles. A number of factors, some related to development, may influence whether a turtle will nest in an area, including the amount of artificial light and noise, how hard the sand is, and the presence of people. These factors may cause turtles to abandon attempts to nest after coming ashore. Artificial light may also disorient hatchlings, causing them to head away from the ocean. Despite the possible impact of artificial light on turtle nesting and hatchlings, turtles continue to successfully nest in developed areas, including the highly developed South Beach area. Data and analysis relied upon by the City in support of the Challenged Amendments identified the status, habitat, and reasons for concern for turtles. Turtles usually nest within 50 feet of the ocean's edge. Therefore, the evidence failed to prove that it is likely that turtles will enter the portion of Area 14 where single- family structures may be built. Petitioners failed to prove that turtles are likely to cross over the dunes constructed east of the Erosion Control Line to reach Area 14. The City is involved in efforts to protect nesting turtles. The area which turtles use to nest in is owned by the State of Florida. Metro-Dade County manages the area for the State of Florida. Metro-Dade County maintains a staffed facility at 79th Street and Collins Avenue for the maintenance and protection of turtle nests. The City has also designated the area where turtles generally nest as a Conservation Protection Area. Protections are also provided for wildlife and vegetative communities which may exist west of the Erosion Control Line. Land Development Regulation 15, Dune Overlay Regulations, provides protection for wildlife and vegetative communities west of the Erosion Control Line and east of the edge of the pool deck, if one exists, or the old Miami Beach Bulkhead Line by limiting permanent structures other than pedestrian crossovers of dunes. The evidence in this case failed to prove that the modification of the land use classification of Area 14 will have a negative impact on wildlife, including turtles, or vegetation. First, Petitioners failed to prove that single-family use of Area 14 will in fact result in an adverse impact or that potential adverse impacts cannot be mitigated. Additionally, Petitioners failed to prove that FLUM Change 14 allows any use of Area 14 which is not already allowed. Prior to the adoption of FLUM Change 14, Area 14 could be used for recreational or open space and/or for single-family development. The evidence also failed to prove that the Plan's Conservation Element, Recreation and Open Space Element, or Coastal Management Element, are not in compliance as a result of Challenged Amendments relating to Area 14. Finally, the evidence failed to prove that the Challenged Amendments cause the City's inventory of existing coastal uses, habitat, vegetative communities, and wildlife to be inadequate. Neither the Act nor the Department's rules require a separate inventory map for each parcel of property impacted by a plan amendment. Required Use of Funds from the Sale of Lots in Area 14. Included in the data and analysis in support of the FLUM Change 14 is the following statement: "It is envisioned that proceeds from the sale of lots will be allocated to a fund for the enhancement of North Shore Open Space Park." In the Second Amended Petition, Petitioners challenged this statement as lacking commitment. Petitioners ignore the amendment to Policy 7.2 of the Conservation/Coastal Zone Management Element which provides that "the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline." This amendment imposes a mandatory requirement for the use of any funds that may be realized, and it has not been challenged by Petitioners. Whether there will in fact be any proceeds from the sale of the lots in Area 14 that are publicly owned is not relevant to the question of whether FLUM Change 14 is in compliance. There is no requirement in the Act or the rules of the Department that mandates that the proceeds from the sale of the lots be used for recreation purposes. Municipally-Owned Shoreline. Policy 7.2 of the Conservation/Coastal Zone Management Element of the Plan provides that the City will "not decrease the amount of municipally-owned shoreline available for public use" except under certain specified circumstances. Petitioners have asserted that FLUM Change 14 is inconsistent with this provision because the Area 14 property owned by the State is "essentially 'municipally owned' land." Petitioners argument is rejected. First, Petitioners failed to raise this argument in the Second Amended Petition. Secondly, even if the argument had been properly raised, the evidence failed to prove that any of Area 14 is "municipally- owned." In fact, none of the property in Area 14 is owned by the City. Finally, Policy 7.2 of the Conservation/Coastal Zone Management Element was amended to add the following exception to the prohibition against the City decreasing the amount of municipally-owned shoreline: 2) where municipal or other public acquisition is incomplete and there is not possibility for complete public acquisition of a usable portion of shoreline, or 3) in order to upgrade other public shoreline sites and facilities. Petitioners have not challenged the newly adopted exceptions to Policy 7.2's prohibition against decreasing municipally-owned shoreline. Petitioners have also failed to prove that the exceptions do not apply in this case. More precisely, Petitioners have failed to prove that, should the City acquire ownership of any of the State-owned Area 14 shoreline, that the exceptions will not apply. 7.2: The City also added the following language to Policy The development of the Altos del Mar area for single family residential use rather than for Recreation and Open Space as designated on the previous Future Land Use Map is specifically identified hereby as conforming to this policy (Policy 7.2) subject to the following conditions: the sites now owned by state agencies are sold for private single family residential development in a coordinated manner based on an overall neighborhood plan and a private development agreement that enhances the quality of life for those existing privately owned residences which are interspersed throughout the publicly owned sites; and 2) the proceeds from the sale are reserved for the enhancement of adjacent and/or nearby public shoreline. Petitioners did not challenge the provision quoted in Finding of Fact 126. Nor did Petitioners prove that the provision will not apply. Areas 16a and 16b, and the Changes Thereto. Area 16a consists of approximately 11 acres. Area 16b consists of approximately 2 acres. Areas 16a and 16b are bounded on the south by 79th Street, on the north by 87th Street, and on the east by Collins Avenue. Area 16b is located between 81st and 82nd Streets. To the east of Collins Avenue and Areas 16a and 16b is the North Shore Open Space Park. Area 16a consists of blocks 12 through 17 and 19 through 20. Area 16b consists of block 18. Areas 16a and 16b are part of Altos Del Mar. Blocks 12 and 18 are owned by the City. The remaining blocks are owned by the State. Located to the west of Areas 16a and 16b is Area 16c. Although FLUM Change 16c has not been challenged, the FLUM changes to Areas 16a, 16b, and 16c are related. The designated land use of Area 16a on the FLUM prior to the adoption of the Challenged Amendments was "Parking." This designation is identified on the FLUM as "P." The designated land use of Area 16b prior to the adoption of the Challenged Amendments was "Public Facility." This designation is referred to on the FLUM as "PF." The designated land use of Area 16c prior to the adoption of the Challenged Amendments was "Medium Density Multi Family Residential." This designation is identified on the FLUM as "RM-2." FLUM Changes 16a and 16b changes the current designations of Areas 16a and 16b to "Low Density Multi Family Residential." This designation is referred to on the FLUM as "RM-1." FLUM Change 16c changes the current designation of Area 16c to "Low Density Multi Family Residential." The modification of Area 16 to Low Density Multi Family Residential classified land is part of the City's overall plan to "Down Plan" the City. The Adopted Amendments include several FLUM changes which, when considered together, result in a net reduction in the allowable residential densities in the City. These modifications were intended to reduce the intensity of development allowed under the Plan in the City, help the City to meet its level of service standards for public facilities and services, and maintain the character of the City. FLUM Changes 16a, 16b, and 16c are part of that overall effort. Current Use of Areas 16a and 16b. Areas 16a and 16b are currently used as public parking lots. The parking lots are sparsely used, however. A fee of twenty-five cents per fifteen minutes is charged for parking in the lots. The State has declared the lots that it owns as excess lands. The lots are to be sold. The parking lots are used for access to the North Shore Open Space Park, a/k/a, the North Shore State Recreational Area (hereinafter referred to as the "Park"). The Park consists of approximately thirty-seven acres. The Park is surrounded by a fence. Access to the Park is through an entrance gate. Availability of Parking in the City and Public Beach Access. The data and analysis utilized by the City in support of the Adopted Amendments indicates that there are "numerous access points to the ocean." The City recognizes, however, that the "principal constraint [on access] is not the number of access points but the parking to serve them as well as nearby commercial and residential uses." The impact of FLUM Changes 16a and 16b will eliminate the parking lots and the parking spaces now available at those lots. This will result in a loss of approximately 270 paved and metered parking spaces, and other potential spaces that are not now used for parking on some of the lots. There will also be an increase in residential use of Area 16, which will require parking. Data and analysis in support of FLUM Changes 16a and 16b provides the following committment: These two changes contain a total of eight blocks devoted to surface parking, two owned by the City of Miami Beach and six owned by the State of Florida. The parking is sparsely used even though it is available for the general public, including visitors to North Shore Open Space Park. The Department of Environmental Protection, Division of State land has determined that the state-owned blocks should be sold to Miami Beach which will make them available for a combination of public parking and private residential development. These uses may be accommodated by placing parking at grade on some or all of the blocks and constructing residential units in air rights above or they may be accommodated by placing public parking structures on one or more of the blocks of the blocks and developing the others for residential use. To the extent necessary, the public parking will be sized to accommodate beach access via North Shore Open Space Park and/or other functions which might be appropriate. . . . Policy 3.1 of the Conservation/Coastal Zone Management Element of the Plan provides following: Those public access areas including street ends, municipal parking facilities and municipal parks along coastal waters will be maintained (See Figures VII-2 and VII-5 in the Recreation and Open Space Element) or redesigned to provide greater public access to Biscayne Bay and the Atlantic Ocean beach area regardless of the land use designation of those areas. An example of the type of redesign envisioned is that planned for the parking lost on blocks located to the west of the North Shore Open Space Park. It is envisioned that there blocks will be redeveloped with public access beach parking at grade level and residential in air rights above and/or with parking decks on one or more blocks and with residential on the other blocks. While the specific manner in which the parking spaces now available in Areas 16a and 16b will be replaced are not established, Policy 3.1 specifically requires that all municipal parking "be maintained." The Policy then provides an example of when existing parking will "be maintained" and that example is the modification of Areas 16a and 16b. This policy is sufficient to prevent the elimination of parking that Petitioners argue will occur as a result of FLUM Changes 16a and 16b. The evidence failed to prove that access to beaches or the Park will be reduced as a result of FLUM Changes 16a or 16b. The evidence also failed to prove that FLUM Changes 16a and 16b are dependent upon use of the proceeds from the sale of land in these areas to enhance the Park. See findings of fact 119 through 121.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order finding the Adopted Amendments in compliance and dismissing the Second Amended Petition. DONE AND ENTERED this 30th day of October, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1997. COPIES FURNISHED: Stephen T. Maher, Esquire Stephen T. Maher, P.A. 201 South Biscayne Boulevard Suite 1500 Miami, Florida 33131 Richard Grosso, Esquire Post Office Box 19630 Plantation, Florida 32318 Colin M. Roopnarine, Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Max T. Holtzman, Assistant City Attorney City of Miami Beach Office of the City Attorney 1700 Convention Center Drive Fourth Floor Miami Beach, Florida 33139 Earl G. Gallop, Esquire Teresa J. Urda, Esquire Earl G. Gallop and Associates, P.A. Post Office Box 330090 Coconut Grove, Florida 33233-0090 The Honorable Seymour Gelber Mayor, City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, General Counsel Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue At issue in this proceeding is whether development orders (building permits) issued by Monroe County to John F. Myers are consistent with the Monroe County Comprehensive Plan and land development regulations.
Findings Of Fact Findings based on parties' stipulations John F. Myers is the owner of real property known as Lot 43, Block 3, Lower Matecumbe Beach subdivision, Lower Matecumbe Key, in unincorporated Monroe County, Florida. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders which are the subjects of this proceeding. Petitioner Department of Community Affairs is the state land planning agency with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and regulations promulgated thereunder; and with authority to appeal any development order issued in an area of critical state concern to the Florida Land and Water Adjudicatory Commission. Sections 380.031(18), 380.032, 380.07(2), Florida Statutes. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development. Section 380.0552(7), Florida Statutes, formerly Chapter 27F-8, F.A.C. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Department in Chapter 9J-14, F.A.C., and by the Administration Commission in Chapter 28-29, F.A.C. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (MCC). On December 10, 1993, Monroe County issued to Respondent Myers seven (7) building permits, each numbered 9230005763, for development of a 4,418 square foot single-family residence with 1,363 square feet of porches, and a 2,300 square foot ground slab. The permits also authorize development of a 183 square foot retaining wall, 38 pilings, and a "dock 183 sq. ft x 8ft." on the subject property. The permits were rendered to the Department on December 14, 1993. The open water shoreline on the subject property has accreted. Included in the environmental standards of the Monroe County land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * b. No beach-berm material is excavated or removed and no fill is deposited on a beach berm; * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach on Lower Matecumbe Key, including that portion of the beach which fronts on Mr. Myers' property, is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, it is not generally possible to determine whether turtles have nested on a particular lot. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Myers' property is properly designated as "disturbed lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5-345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no structure may be located within fifty (50) feet of any portion of the beach-berm complex which is known to serve as an active nesting area of marine turtles. Section 9.5-4(B-3), Monroe County Code, contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. According to the Monroe County Comprehensive Plan, the biota characteristic of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane (Sesuvium portulacastrum), Railroad Vine (Ipomoea pescaprae), Beach Grass (Panicum amarulum), Sea Oats (Uniola paniculata), Sea Lavender (Tournefortia gnapholodes), Coastal Ragweed (Ambrosia hispida) Bay Cedar (Suriana maritma), Cenchrus and Chamaesyce. On most Keys beaches this association occurs only at the base of the berm since the beach zone is very narrow. These plants also occupy the most seaward portion of the berm and continue some distance landward. * * * The next zone, "strand-dune" association begins with a steep and distinct increase in slope upward from the beach. This sloping portion of the berm receives the effects of the highest spring tides as well as storm-generated wave wash. The berm may be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generally considered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. On September 11, 1986, Monroe County issued building permit no. 20360 to John Brockway, Respondent Myers' predecessor in title, for development of a single-family residence on the subject property. The permit was issued prior to the effective date of the current Monroe County comprehensive plan and land development regulations, and prior to adoption of the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, which is the subject of this proceeding. The Department of Community Affairs did not challenge the Brockway permit. In 1990, the Board of Trustees of the Internal Improvement Trust Fund issued to John and Patricia Brockway a deed for sovereignty submerged lands adjacent to the subject property. The County-approved site plans for the subject permits indicate that excavation for a stormwater swale will occur seaward of the proposed residence. Mr. Myers has no intent to excavate a stormwater swale seaward of the proposed residence. The subject building permits and approved plans shall be revised to eliminate the stormwater swale and demonstrate the means by which stormwater runoff will be addressed, as required by the Monroe County Code. Based upon this agreement, the Department will not pursue its allegation that the permits are inconsistent with section 9.5-345(0)(3)b., Monroe County Code, and considers that issue to be resolved by this agreement. The parties agree that that portion of the subject permits which authorizes development of a dock on Lot 43 is acceptable, and a dock may be developed on Lot 43, so long as the permits are amended to specify that (a) the dock shall be developed adjacent to Lot 43 on an existing dredged channel and not on the jetty or open water shoreline, and (b) development of the dock is conditioned upon the Owner obtaining permits for a principal use. Findings based on evidence at hearing The subject property is generally triangular in shape. It fronts on a cul-de-sac on the northeast side. Along the west side of the property is a dredged channel and a jetty or riprap revetment. Along the south side the property fronts on the Atlantic Ocean. On the east side of the property is a single-family residence. The subject property is undeveloped except for a fill pad or fill pile established some time ago around the cul-de-sac to the western side of the property. The purpose of the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, is to provide a habitat buffer to protect marine turtles from direct and indirect impacts of development, such as lighting impacts, noise, and clearing activities behind structures when people use their back yards. Buffers are a commonly used planning technique for both planning purposes and environmental purposes. The beach berm on the subject property has not moved over time. The shoreline has accreted in recent years and therefore the mean high tide line has moved seaward. This accretion provides additional habitat for marine turtles and affects the setback measurement when it is expressed as a number of feet from mean high water, as both parties have done in this case. However, the fact that a shoreline is either accreting or eroding is not relevant to a determination of the location of the beach berm. The parties agree that the berm is identified, at least in part, by a visual assessment of the increase and decrease in elevation of the property. A berm is essentially a rise in elevation which, moving landward from the water, rises up to a high point then begins to drop back off gradually until one reaches the adjacent grade or the natural grade beyond the berm. When the grade flattens out, that is generally the landward extent of the berm. The greater weight of the evidence shows that the landward extent of the beach berm complex on Respondent's property, and the area commonly utilized by marine turtles as nesting habitat are each approximately 50 feet landward of the mean high water line depicted on the June 1994 survey of Respondent's property. Expressed as a measurement from mean high water, the setback required by Section 9.5-345(o)(3)f., Monroe County Code, on Respondent's property is approximately 100 feet. A variance from the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, is not authorized. However, a variance from the front yard setback may be available to Respondent if he wishes to develop the particular single-family residence shown on the plans approved with the subject permits. The Monroe County comprehensive plan, Vol. I, Background Data Element, Section (3) entitled "Community Character," provides: A principal focus of growth management is the protection and enhancement of quality of life. Community character is a fundamental element of the circumstances described as quality of life. Community character refers to the nature of an area and can be described in terms of both the natural and the built environment. For example, the character of an undeveloped area is determined by the natural environment and is characterized by extensive open space and other environmental values. In contrast, the character of a city is defined by the built environment and the quality of life depends upon the design and effect of buildings. * * * . . . . In the Keys there are readily identifiable community characters that can be defined by the nature and extent of various land uses per community. These community character types are: Native, Sparsely Settled, Sub-Urban, Urban Transition and Urban. The comprehensive plan goes on to describe each type of community character, and includes a lengthy discussion of the criteria for determining community character. These criteria include land use, design of man-made elements including intensity of buildings and the nature of open spaces, landscaping, and social interactions and experiences. Setbacks are not mentioned in the list of criteria for determining community character or in the descriptions of the various community character types. Regardless of whether other homes in the neighborhood meet the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, requiring Respondent to do so will not affect the community character of the neighborhood as defined in the Monroe County comprehensive plan.
Recommendation Based upon the foregoing it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying permission to develop under Monroe County building permits no. 9230005763 as issued on December 10, 1993. It is further RECOMMENDED that the final order state that Respondent will become eligible for permits if his development plans are modified as provided in paragraph 40 of the Conclusions of Law. DONE AND ENTERED this 15th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1 through 7: Accepted. Paragraph 8: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 9 through 14: Accepted. Paragraphs 15 and 16: Rejected as statements of position or legal argument, rather than proposed findings of fact. (The statements in these paragraphs are essentially correct, but they are not proposed findings of fact.) Paragraphs 17 through 20: Rejected as further statements of position or legal argument, rather than proposed findings of fact. (To the extent necessary, the parties' positions are addressed in the conclusions of law portion of this Recommended Order.) Paragraph 21: Accepted. (This is a stipulated "fact".) Paragraphs 22 through 24: Accepted, with some minor clarification. Paragraphs 25 through 34: Rejected as subordinate and unnecessary details. (Most of the details proposed in these paragraphs are supported by the evidence and all were considered in the formulation of the ultimate findings of material fact, but none of these details need to be included in the findings of fact in this Recommended Order. The findings proposed in paragraph 33 are rejected for the additional reason that they are supported only be uncorroborated hearsay evidence.) Paragraphs 35 and 36: Accepted in substance. Paragraph 37: Rejected as a statement of position, rather than a proposed finding of fact. Paragraphs 38 and 39: Accepted. Paragraph 40: Rejected as constituting argument, rather than proposed findings of fact. Paragraph 41: Accepted. Paragraphs 42 and 43: Rejected as constituting argument, rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1 through 14: Accepted. (These are all stipulated facts.) Paragraph 15: Accepted. Paragraph 16: Rejected as subordinate and unnecessary details. Paragraph 17: First and last sentences rejected as irrelevant. Middle sentence accepted. Paragraph 18: First sentence accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 19: Most of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Some portions are rejected as not fully supported by persuasive evidence. Paragraph 20: First sentence rejected as too broadly worded to be meaningful. The last sentence is rejected as being a conclusion that is not warranted by the evidence. Paragraph 21: Accepted. Paragraph 22: First three sentences rejected as subordinate and unnecessary details. Last sentence accepted. Paragraph 23: First sentence rejected as not fully supported by the evidence. The berm line is, in general, a gentle curve that for the most part runs parallel to the gentle curve of the shore line. Second sentence is rejected as irrelevant or as unduly repetitious. Paragraph 24: Second sentence accepted. The remainder of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Paragraph 25: The first sentence is rejected as not fully supported by the persuasive evidence; the evidence is too vague to support the use of the word "immediately" in this context. The second sentence is rejected as irrelevant. The third, fourth, fifth, and sixth sentences are rejected as being contrary to the greater weight of the persuasive evidence. Paragraph 26: The first four sentences are rejected as subordinate and unnecessary details because the greater weight of the evidence is consistent with the version put forth by the Petitioner's witnesses. Greater confidence has been placed in the measurements by the Petitioner's witnesses than in the conflicting measurements described by Respondent's expert witness. The fifth sentence is accepted in substance. The sixth and seventh sentences are rejected as consisting of arguments or of conclusions that are contrary to the greater weight of the evidence. Paragraphs 27 and 28: Rejected as subordinate and unnecessary details. Paragraph 29: First two sentences rejected as argument. Third and fourth sentences rejected as contrary to the greater weight of the evidence and as apparently based on testimony that has been taken out of context or has been misunderstood. Fifth sentence rejected as argument. Sixth sentence rejected as an over-simplification. Seventh sentence rejected as an argument or conclusion that is contrary to the greater weight of the evidence. Paragraph 30: Rejected as unnecessary summaries of testimony, rather than proposed findings of fact. Further, these summaries are, for the most part, either not fully supported by persuasive competent substantial evidence or are contrary to the greater weight of the evidence. Some of these summaries also emphasize details that are apparently based on a misunderstanding or misinterpretation of selected portions of the evidence and ignore the greater weight of the evidence. Paragraph 31: First sentence rejected as not supported by persuasive competent substantial evidence. (To the contrary, it appears to be based on a misunderstanding or a misinterpretation of Mr. Metcalf's testimony.) The second, third, and fourth sentences are rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. Paragraph 32: Rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 32301-1859 Chris Haughee, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 Post Office Box 10555 Tallahassee, Florida 32301 Randy Ludacer, Esquire Fleming Street Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Bob Bradley, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
The Issue The issue in this case is whether the Florida Land and Waiter Adjudicatory Commission should grant or deny the petition filed under Chapter 190, Florida Statutes, for the establishment of the Tampa Palms Open Space and Transportation Community Development District.
Findings Of Fact The following findings constitute a summary of the evidence, and are based upon the presentation and testimony presented at the public hearing, as well as Exhibits A through L of the petition and Exhibits 1 through 3 presented at the public hearing: On June 23, 1989, a petition for creation of the Tampa Palms Open Space and Transportation Community Development District was filed with the Secretary of the Florida Land and Water Adjudicatory Commission. After staff review of the petition, the Secretary determined that it satisfied all requirements of Section 190.005(1)(a) and (b), Florida Statutes, and forwarded the petition to the Division of Administrative Hearings for assignment of a Hearing Officer to conduct a local public hearing, pursuant to Section 190.005(1)(d), Florida Statutes. The Secretary's letter of transmittal to the Division of Adminstrative Hearings constitutes certification that the petition addresses all those elements required by Section 190.005(1)(a), including a metes and bounds description of the district, written consent to the establishment of the district by owners of the property to be included in the district, a designation of five persons to be initial members of the board of supervisors, the proposed name of the district, a map showing major trunk water mains and sewer interceptor and out falls currently in existence on the property, proposed time tables for construction and related estimates of costs, a proposed master plan for the district and abutting property, and an economic impact statement. There was no dispute at the public hearing concerning the sufficiency of the petition, or the payment of all required fees. The date of September 15, 1989, was established for the local public hearing by Notice of Hearing issued on July 25, 1989. Notice of the local public hearing was published in The Tampa Tribune on August 17, 24, 31 and September 7, 1989, and was also published in the Florida Administrative Weekly on August 18, 1989. No persons filed written statements in support of, or in opposition to, the petition as authorized by Rule 42-1.012(3), Florida Administrative Code. Neither the City of Tampa nor Hillsborough County conducted a public hearing under Section 190.005(1)(c), Florida Statutes. Therefore, this recommendation and report is based solely on the testimony, presentation, and exhibits received at the local public hearings including the petition. The Petitioner has proposed the creation of the Tampa Palms Open Space and Transportation Community Development District to provide the major transportation network and open space improvements to certain designated properties, composed of approximately 5,200 acres located in the City of Tampa's northeast annexation area, and bounded on the east by County Road 581 and Interstate 75, and on the west by Interstate 275. A community development district is a local unit of special purpose government. Over a fifteen year period, this district is proposed to develop into a community with approximately 8,700 dwelling units, and approximately 22 million square feet of office and commercial development. The proposed development constitutes a planned mixed use development of regional impact. This newly proposed district will lie adjacent to, and overlap a portion of, an existing district known as the Tampa Palms community Development District which was created in 1982. The overlapping areas were referred to as Tracts 3 and 4, and constitute approximately 2,000 acres of the new district's total acreage. To the southwest of these overlapping tracts, are Tracts 1 and 2 of the existing district, and to the northeast of these overlapping tracts is an area to be included in the new district comprised of about 3,200 acres which has been acquired subsequent to the creation of the existing district, and therefore, is not included within the current district boundaries. Since its creation in 1982, the Tampa Palms community Development District has issued bonds, to be repaid through special assessments, for the immediate installation of. infrastructure and landscaping that otherwise would likely have taken the developer longer to complete on a less financially advantageous basis. In Tracts 1 and 2, infrastructure is being completed in advance of home building. The existing district has also undertaken maintenance functions for its open spaces. Special assessments made in Tracts 1 and 2 will not be made by the existing district in Tracts 3 and 4, the overlapping tracts, if this new district is created. Instead, special assessments in Tracts 3 ands 4, as well as the remaining areas of the new district, will be made through this new Proposed district. Thus, the existing Tampa Palms Community Development District will not levy special assessments in the overlapping area if the Tampa Palms Open Space and Transportation Community Development District is approved. This will be done in the overlapping area through the new district so that those residents and property owners in this overlapping area will not be subject to special assessments by two different districts. However, residents in the overlapping area will be subject to ad valorem taxes by both districts, although the ad valorem assessments by the new district would only be for district administration and not for maintenance. Thus, the ad valorem assessments of the new district in the overlapping area are expected to be nominal, and the representatives of property owners present at the public hearing expressed no objection to this. The Petitioner intends to apply to extend the boundaries of the existing district in the future to include the entirety of the new district, if created. When this occurs, the Tampa Palms Community Development District will have all operation and maintenance functions, and all special assessments will be made through the Tampa Palms Transportation and Open Space Community Development District. The district which is here at issue will then be phased out over a twenty year period, and only the Tampa Palms Community Development District will remain to operate the total acreage. The existing district is better suited to have on-going maintenance functions because it already has a maintenance facility, vehicles and equipment, and a staff of maintenance workers, and thus, the costs associated with establishing a second maintenance unit can be avoided. The initial board of supervisors for this proposed district are shown as Exhibit D to the petition, to include: William I. Livingston, Chairman Tampa Palms Development Corporation 5209 Tampa Palms Boulevard Tampa, FL 33647 James W. Apthorp, Vice Chairman Gulfstream Development Corporation 5209 Tampa Palms Boulevard Tampa, FL 33647 Charles Davis, Sr. Davis Brothers Insurance Agency, Inc. 4401 West Kennedy Boulevard Tampa, FL 33602 Steven J. Kuzma Ernst & Whinney 1 Tampa City Center, Suite 2000 Tampa, FL 33602 Joseph House United Services Automobile Association Southeast Regional Home Office 5505 West Cypress Street Tampa, FL 33607 Based upon the representation of counsel for the Petitioner who prepared the petition, the absence of any dispute among those persons in attendance at the local public hearing, and upon review and consideration of said petition and evidence presented at the public hearing, it is found that statements contained therein are true and correct, as required by Section 190.005(1)(e)1, Florida Statutes. The creation of the district is found to be consistent with the State and City of Tampa Comprehensive Plans, as required by Section 190.005(1)(e)2. A specific analysis is as follows: State Comprehensive Plan Natural Systems and Recreational Lands (Section 187.201(10)(a),(b)10-13, Florida Statutes) -- The proposed district will provide residents of the Tampa Palms community with recreational opportunities which would not otherwise be available. Residents of the existing Tampa Palms Community Development District have three parks, jogging and bike paths, as well as sidewalks throughout the community. These parks also provide a means of preserving environmentally sensitive lands and protected species habitat. Similar natural systems and recreational lands will be provided in the proposed district. Land Use (Section 187.201(16)(a),(b)1, Florida Statutes) -- The location of this proposed district has been designated as a regional activity center in the City of Tampa and Regional Comprehensive Plans. Thus, this is an area which has been recognized as appropriate for growth. The lands within the proposed district are subject to an existing development order that was approved prior to the City's adoption of its North Tampa Transportation Network, and which is currently under review in order to approve a change in alignment of the transportation network to match the network within the community with the City's proposed network. The City has constructed a major sewer force main along County Road 581 through the proposed boundaries of the district, and therefore, approval of this district will maximize the City's investment by encouraging planned growth in an area in which the City has a considerable investment. Public Facilities (Section 187.201(18)(a), (b)3, 4,6,7,9, Florida Statutes) -- The planning and financing mechanisms available to the district for providing public facilities are consistent with this goal and policies. Bonding capabilities provide an innovative but stable source of revenue, and the benefit-allocation analysis which will be performed as part of the bond validation process will ensure that costs incurred will be allocated to those who will benefit from available facilities. Since private investment will be required to finance part of the improvements, a partnership between the private and public sectors will be formed, with costs allocated to those who benefit from the resulting improvements. Transportation (Section 187.201(20)(a), (b)13,14, Florida Statutes) -- The transportation network within the proposed district will be aligned with the North Tampa Transportation Network, and thereby provide a coordinated approach to transportation improvements. Financing mechanisms and private-public sector financing partnerships will provide the means by which the district will be able to acquire dedicated rights-of-way prior to commencement of development, and this will result in lower costs for the district. Government Efficiency (Section 187.201(21)(a), (b)1, 2,5,13 Florida Statutes) -- This proposal would create an independent special taxing district, and will promote cooperation in governmental activities between the City of Tampa, Hillsborough County and the Petitioner. Neither the City nor County expressed any opposition to this petition at the public hearing. It is reported that residents within the existing Tampa Palms Community Development District have stated at public hearings held for two bond issues, that they support the added costs for services which the existing district provides. The Petitioner intends to negotiate the terms of an agreement with local government which will set forth the plan for development of the district's proposed transportation network in order to ensure that the district constructs those facilities which the City believes will be compatible with its long-term plans. City of Tampa Comprehensive Plan Recreation and Open Space Element -- The City of Tampa northeast annexation area, which is the area in which the proposed district is located, has been designated as an area which will have a major impact upon future recreational needs, requiring at least 48 acres of neighborhood park space to be established through a cooperative use agreement with the property owners within the annexation area. One of the purposes informing this district is to provide residents of Tampa Palms with recreational opportunities which would not otherwise be available. The existing Tampa Palms Community Development District provides residents with three parks, including playground, picnic, volleyball, tennis and restroom facilities, as well as jogging and bike paths, and sidewalks. While these existing recreational facilities were established jointly by the developer and the existing district, the district has ongoing maintenance responsibilities which will continue even after development activities have ceased. Similar open space and recreational uses are proposed for this new district. Land Use Element -- The establishment of this district will provide a means of financing the construction of the transportation network set forth in the Transportation and Capital Improvement Elements of the City's Plan. Additional financing sources are needed to fund the network for already approved development, and the district will be able to issue bonds, which special assessments will be pledged to repay. Since the Tampa Palms area has been designated as a regional activity center in the City and Regional Comprehensive Plans, this area is recognized as appropriate for growth. Approval of this district is consistent with this designation, and will encourage growth in an area in which the City has a substantial capital investment, having constructed a major sewer force main along County Road 581 through the district's boundaries. Capital Improvement Element -- With additional planning and financing mechanisms available to the District, such as the issuance of bonds, a stable source of revenues and financing will be provided which will allow those who benefit from the facilities which will become available to pay their share of the costs of improvements. The district proposes to provide, and finance, needed transportation and open space facilities in an area designated for growth within the City. Thus, approval of the district is consistent with the City's stated capital improvement goal. The land within the proposed district encompasses approximately 5,200 acres, is contiguous and compact, and includes an area which has undergone review as a development of regional impact under Chapter 380, Florida Statutes. When fully developed, it is proposed that the district will contain 8,700 dwelling units and over 20 million square feet of office and retail uses in a type of urban village. According to Toxey A. Hall, P.E., of the civil engineering firm of Heidt and Associates, Inc., the area of the land within the proposed district is of sufficient size, compactness and contiguity to be developed as one functional interrelated community, as required by Section 190.005(1)(e)3. The creation of this district will allow the transportation and open space requirements of this community to be addressed without having to wait for local governments to finance infrastructure, and would avoid the usual situation where growth occurs before services are available resulting in significant traffic congestion, and the lack of other basic services for residents. The lands in this district are primarily under one ownership and one master plan. The Petitioner has prior experience with the Tampa Palms Community Development District. Therefore, the Petitioner has the knowledge and ability to carry out organized, efficient and planned growth and development which will match the size and cost of facilities needed to actual development in the district. The creation of this district will result in the availability of lower financing costs than would otherwise be available to a private developer. The presently forecasted interest rate which would be available to the district is nine and one-half per cent, whereas for private developers the forecasted rate is one and a half to two per cent over the prime rate of ten and one-half to eleven per cent. Additionally, the rate available to the district is fixed, while for private developer's it is an adjustable rate. The formation of this district presents a way by which capital infrastructure can be delivered in an area appropriate for growth without overburdening local government and taxpayers. Thus, the district is the best alternative available for delivering community development services and facilities to the area to be serviced by the district, as required by Section 190.005(1)(e)4. The development within the proposed district is governed by Chapter 380, Florida Statutes. Previously, development orders were issued for Tampa Palms and a portion of the proposed new district known as Tampa Tech. These two development orders are now being combined into one development order, and it is represented that local, regional and state governmental agencies regulating developments of regional impact have reviewed and approved the level of development planned, including the plans for infrastructure. The City of Tampa's comprehensive plan has been approved by the Department of Community Affairs, and, as found above, the creation of this new district will be consistent with major elements of the City's Plan. Thus, the proposed services and facilities of this district will be compatible with the services and uses of existing local and regional community development services and facilities, as required by Section 190.005(1)(e)5. The residents within the existing Tampa Palms Community Development District have attended numerous meetings and public hearings of the district at which they have confirmed their willingness to pay additional taxes to receive an increase in public services. They have experienced the quality of open space maintenance and the effectiveness of the transportation network in the existing district, and it is represented that the residents support the increased costs associated with the district as long as infrastructure is provided in advance of development. The Petitioner has established that this is an area which is amenable to separate special-district government, as required by Section 190.005(1)(e)6, and in fact, the City of Tampa has designated this specific area as one for which a community development district would be a viable alternative.
Recommendation Based upon the foregoing, it is recommended that the Florida Land and Water Adjudicatory Commission grant this Petition and establish the Tampa Palms Open Space and Transportation Community Development District in accordance with Section 190.005(1)(f), Florida Statutes, with those boundaries set forth in the legal description contained at Exhibit B of the Petition, and with those initial members of the board of supervisors shown at Exhibit D of the Petition. RESPECTFULLY SUBMITTED AND ENTERED this 18th day of October, 1989 in Tallahassee, Florida. DONALD D. CONN 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 18th day of October, 1989. COPIES FURNISHED: Cynthia Henderson, Esquire 5209 Tampa Palms Boulevard Tampa, FL 33647 John Dixon Wall, Esquire Assistant County Attorney 725 East Kennedy Boulevard Tampa, FL 33602 Jeffrey T. Shear, Esquire Assistant City Attorney Fifth Floor, City Hall 315 East Kennedy Boulevard Tampa, FL 33602 Patty Woodworth, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor The Capitol, PL-05 Tallahassee, FL 32399-0001 Information Copies to Persons In Attendance: Gordon J. Schiff, Esquire P.O. Box 1531 Tampa, FL 33601 Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350 Tampa, FL 33602 Richard D. Eckhard, Esquire P.O. Box 1288 Tampa, FL 33601
