The Issue Whether the City of Fernandina Beach (“City” or “Respondent”) Future Land Use Map Amendment, adopted by Ordinance 2019-08 (“FLUM Amendment”), qualifies as a small scale development amendment to the City Future Land Use Map (“FLUM”); and, if so, whether the FLUM Amendment is “in compliance” as that term is used in section 163.3187(5)(a), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing ATC is a not-for-profit Florida corporation with a substantial number of members who reside in, own property in, or operate businesses in the City. ATC is an affected person under chapter 163, part II. ATC’s Petition for Administrative Hearing was timely filed. Members of ATC submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Sierra Club is a national nonprofit organization with 67 chapters, including the Nassau County Sierra Club Group with a substantial number of members who reside in, own property in, or operate businesses in the City. Sierra Club participates in activities and outings on the Egans Creek Greenway (“Greenway”) for its members and the general public and has organized and participated in the removal of invasive species in the Greenway. Sierra Club is an affected person under chapter 163, part II. Sierra Club’s Petition for Administrative Hearing was timely filed. Members of Sierra Club submitted oral and written comments on the FLUM Amendment to the City prior to and at the adoption public hearing. Petitioners have standing to maintain these proceedings because they are affected persons and presented (or had their attorney or representative present) comments at the adoption hearing of the proposed FLUM Amendment. The City is a municipal corporation of the State of Florida with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. The City provided timely notice to the parties and followed the plan amendment procedures required by the City’s codes and chapter 163, part II. The subject property is located within the City’s jurisdiction. Amelia Bluff is a Florida limited liability company conducting business in the City. By virtue of its ownership of the property that is subject to the FLUM Amendment and this dispute, Amelia Bluff is affected by the challenge to the FLUM Amendment and has standing to intervene in this proceeding. The Subject Property The Property is part of a larger parcel of approximately 15.07 acres (the “School Board Property”) that was previously owned by the School Board of Nassau County (the “School Board”). The School Board Property was essentially undeveloped, though it had been used as outdoor classroom space for the high school. The School Board Property is located on the east side of Citrona Drive and is bounded on the west by Fernandina Beach High School/Middle School. The School Board Property is bounded on the south by the Hickory Street right-of-way, which is an access to the Greenway. Across from the Hickory Street right-of-way is Shell Cove, a residential subdivision that, according to the City Staff Report, is zoned R-2 with a Medium Density Residential FLUM designation. Shell Cove, which is completed, is of greater density than the proposed Amelia Bluff subdivision. The School Board Property is bounded on the north by a tract of undeveloped property. According to the City Staff Report, the property to the north is zoned R-1 with a LDR FLUM designation. The School Board Property is bounded on the east by 200 to 400 feet of publicly-owned, predominantly wetland property. That property merges into the western edge of the main channel of Egans Creek. The Egans Creek Greenway then extends eastward from the western edge of Egans Creek. The School Board Property includes a relatively steep bluff running generally from the northwest corner of the Property at Citrona Drive, diagonally to the southeast to the Hickory Street right-of-way. The elevation of the upland portion of the School Board Property, which is the portion proposed for development, is from 18 to 20 feet above sea level at its northwest corner, to 11 to 12 feet above sea level at its southeast corner. Roughly 3.76 acres of the School Board Property at and east of the toe of the bluff consists of jurisdictional wetlands, dominated by wetland vegetation, at an elevation of 1 to 2 feet above sea level. The upland portion of the School Board Property includes the 10.29 acres of the proposed subdivision. Those uplands were, at the time of the June 2016 purchase by Amelia Bluff, fully wooded with predominantly hardwood species, interspersed with pine, holly and other species. The 10.29 acres of the proposed subdivision are appropriately zoned R-1 for low-density residential development. The Property that is the subject of the FLUM Amendment consists of approximately 6.40 acres of uplands within the 10.29 acres of the proposed subdivision. The Property is designated on the FLUM as Conservation. The remainder of the proposed subdivision is designated on the FLUM as LDR. The evidence indicates that there is no difference in the nature of the tree cover in the 6.4 acre Property and in the remaining acreage of the proposed subdivision. Maritime Forest/Maritime Hammock There was a good deal of testimony directed to the issue of whether the trees on the Property constitute a “maritime forest” or an imperiled “maritime hammock.” The tree cover on the Property, as established by the tree survey, consists largely of live oak, laurel oak, and water oak, interspersed with magnolia, pine, red maple, and other species. Ms. Jetton described the cover of the Property as maritime forest, and stated that “maritime forest” is identified as an imperiled community in the Florida Natural Areas Inventory (“FNAI”) and designated in the Egans Creek 2015 Greenway Management Plan (“Greenway Management Plan”) as such. Although a “maritime hammock” is designated as an imperiled vegetative community, a “maritime forest” is not. Ms. Jetton later clarified her testimony, stating that “I probably shouldn't have said ‘hardwood hammock.’ I'm accustomed to using that term in the Florida Keys. I know this is a maritime forest, but it is composed of hardwood trees, live oak trees, pine trees.” When asked about the terms “maritime forest” and “maritime hardwood hammock,” she stated that “it was a faulty use of my words. I should have stuck with ‘maritime forest.’” There was little to suggest that the Property contains a “maritime hammock,” which is a specific type of imperiled vegetative community identified in the FNAI and the Greenway Management Plan. Mr. Gerald indicated that it did not. Rather, Mr. Gerald indicated that the type of “maritime forest” that exists on the Property, i.e., a forest on a barrier island, is “very common throughout the mainland, throughout Nassau County, Duval County, St. Johns, Clay, all the way out through pretty much all of North Florida.” It is not an imperiled or unique community, as is a maritime hammock. The Ecological Assessment of Egans Creek Greenway indicates that maritime hammock communities associated with the Greenway “are located along the eastern part of the Greenway,” with another near an indeterminate stretch of Jasmine Street and bisected by a wide and deep canal that is not surficially connected to Egans Creek, and a third set at the southern portion of the Greenway that appear to be adjacent to a beach dune community. There is nothing in the Ecological Assessment to suggest that a maritime hammock community exists to the west of the Greenway. The evidence is insufficient to support a finding that the Property contains an imperiled “maritime hammock” as described in the FNAI and the Ecological Assessment of Egans Creek Greenway. There is little question that the Property is a beautifully wooded tract. However, the issue is not whether the Property merits preservation, but whether the FLUM Amendment, that will allow for the development of the Property as the Amelia Bluff subdivision, is inconsistent with the Comprehensive Plan. Egans Creek Greenway The Greenway is a system of approximately 317 acres of publicly-owned waterways, marshes, and wetlands that extends in a north-south direction through Amelia Island, separating the City’s beaches from its downtown and commercial areas. Egans Creek is not an Aquatic Preserve or Outstanding Florida Water. Egans Creek flows into the Amelia River and the Fort Clinch State Park Aquatic Preserve. The Greenway is a regional drainage facility that receives untreated stormwater from areas including part of the original plat of the City. Water quality in Egans Creek is degraded, though the creek is not designated as “impaired.” The City’s Greenway Management Plan provides that “[t]he primary purposes of the project are to protect this sensitive natural area from development,” and that “[a]ll of the property encompassed in this project will be designated as recreational/wetlands and protected in the City’s future land use plan.” The Greenway extends from the western bank of the Egans Creek channel eastward. The Greenway is separated from the Property by 200 to 400 feet of publicly-owned, predominantly wetland property, the first hundred feet or so of which is dense willow/wax myrtle/Chinese tallow shrub, and then brackish march to the Egans Creek channel. Procedural History of the Amelia Bluff Subdivision In June 2016, Amelia Bluff entered into a contract to purchase the 15.07-acre School Board Property from the School Board. The School Board Property includes the 6.4-acre Property. Amelia Bluff proposed to develop the upland portion of the School Board Property, including a significant portion of the Property, for the proposed subdivision. On September 27, 2016, the School Board filed an application to vacate a 60-foot right-of-way known as Gum Street extending through the School Board Property in connection with the School Board’s intent to sell the School Board Property to Amelia Bluff, memorialized as City Planning Advisory Board (“PAB”) Resolution 2016-24. On August 10, 2017, the School Board, Amelia Bluff, and the City executed a Memorandum of Understanding (“MOU”), which memorialized the parties’ understanding of the conditions of the City’s agreement to vacate a portion of Gum Street extending through the School Board Property. The MOU stipulated that Amelia Bluff would (i) provide access to the abutting properties owned by the Florida Department of Transportation (“FDOT”) located on the eastern boundary of the School Board Property through the creation of a City right-of-way to connect Hickory Street to the property owned by the FDOT; (ii) transfer the wetlands portion of the School Board Property to the City for conservation; and (iii) donate $115,000 to the City for land conservation efforts, to be paid at the conclusion of all legal challenges and/or appeals for all subdivision approvals. On August 15, 2017, the City adopted: (i) Ordinance No. 2016-40, which vacated a portion of Gum Street; and (ii) Resolution 2017-123, which approved the MOU. On November 29, 2017, the School Board conveyed the School Board Property to Amelia Bluff. On February 16, 2018, Amelia Bluff filed an application for preliminary plat approval for the subdivision. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed to the City approximately 3.76 acres of jurisdictional wetlands in two parcels (3.63 acres and 0.13 acres in size) and dedicated to the City approximately 0.917 acres for the right-of-way connection between Hickory Street and the FDOT property. The City accepted the conveyance of wetlands and dedication of right-of-way on March 20, 2018, pursuant to Resolutions Nos. 2018-39 and 2018-40, respectively. On April 11, 2018, the PAB reviewed the application for preliminary plat and issued a recommendation of approval. On May 1, 2018, the Commission approved the preliminary plat for the Amelia Bluff subdivision. On May 10, 2018, the City’s Technical Review Committee (“TRC”) reviewed and approved the preliminary plat for technical completeness and issued a compliance letter on May 14, 2018 (SPR 2017-09), authorizing the commencement of subdivision infrastructure improvements. In August 2018, Amelia Bluff commenced work on subdivision infrastructure improvements. On October 18, 2018, Amelia Bluff applied for final subdivision plat approval. The City and Amelia Bluff determined that the Property was designated Conservation under the Comprehensive Plan and would require a Comprehensive Plan amendment to change the FLUM designation of the Property from Conservation to LDR. On November 15, 2018, Amelia Bluff filed the application for the FLUM Amendment to change the Conservation designation of the Property. City professional staff reviewed the FLUM Amendment application and determined that the FLUM Amendment sought by Amelia Bluff was consistent with the Comprehensive Plan and Land Development Code, and furthered the objectives of the Comprehensive Plan. The determination was memorialized in a Staff Report prepared for consideration by the PAB prior to the PAB’s regular meeting on January 9, 2019. On January 9, 2019, the PAB reviewed the applications for the FLUM Amendment and final plat and issued recommendations of approval for the FLUM Amendment (PAB 2019-01) and final plat (PAB 2018-26). On February 19, 2019, the Commission approved the FLUM Amendment on first reading. On February 21, 2019, Amelia Bluff stopped work on the subdivision infrastructure improvements pursuant to the City’s request. On April 16, 2019, the Commission adopted: (i) Ordinance No. 2019-08, which approved the FLUM Amendment to change the FLUM designation of the Property from Conservation to LDR, allowing up to four residential dwelling units per acre; and (ii) Resolution 2019-57, which approved the final subdivision plat. Because of Petitioners’ pending challenge, the effective date of Ordinance No. 2019-08 is delayed. The Ordinance provides: “If challenged within 30 days after adoption this Ordinance may not become effective until the state land planning agency or the Administration Commission, respectively, issues a final order determining that the adopted ordinance is in compliance pursuant to Section 163.3187, Fla. Stat.” Similarly, Resolution 2019-57 provides “[t]his Resolution shall become effective on the same date as Ordinance 2019-08 (a small scale Future Land Use Map Amendment that becomes effective pursuant to Section 163.3187, Fla. Stats.)” Thus, development may resume without any further action by the Fernandina City Commission if the FLUM Amendment becomes effective. Other Governmental Authorizations On December 28, 2017, the St. Johns River Water Management District (“SJRWMD”) issued Amelia Bluff an Environmental Resource Permit, No. 151737-1 (“ERP”), which notice was recorded in Official Records Book 2177, Page 1100 of the Public Records of Nassau County, Florida on February 15, 2018. On May 14, 2018, the Florida Department of Environmental Protection (“FDEP”) issued Amelia Bluff Permit No. 0003152-107-DWC, which authorized Amelia Bluff to construct a domestic wastewater collection/transmission system on the site, and accepted Amelia Bluff’s Notice of Intent to Use the General Permit for Construction of Water Main Extensions for PWSs. The Proposed Subdivision The proposed subdivision consists of 30 lots, designed with two entrances from Citrona Drive, and two cul-de-sacs. The legal description for the final plat approved on April 16, 2019, in Resolution 2019-57, describes the proposed subdivision as containing “10.29 acres more or less.”3/ In addition to the property conveyed to the City or dedicated to the city as right-of-way, the final plat depicts Tract “C” (0.25 acres) as a “recreation/open space tract” that is removed from development. The proposed subdivision was initially designed with stormwater detention ponds near the front of the subdivision, near Citrona Drive and away from the bluff. However, placement at that location would have required extensive grading and tree clearing to direct the flow of water against its natural flow direction. After discussion with City staff, the decision was made to reconfigure site drainage so that stormwater would be directed via overland flow and drainage structures from northwest to southeast, generally following site topography. Stormwater from lots, sidewalks, and streets will be directed to two dry detention ponds located at the southeast portion of the subdivision, and adjacent to the bluff. By allowing stormwater to follow the natural topography, grading and clearing for stormwater purposes will be minimized. The two dry detention ponds are connected by a 12-inch pipe approximately 100 feet in length that is designed to equalize water levels in the ponds. The ponds have a discharge structure in the southernmost pond that is designed to discharge treated stormwater after a 25-year storm to the bottom of the bluff. Efforts were made to design utilities, the stormwater system, and the roadways and associated structures to avoid particular specimen trees within the rights-of-way. In addition, Tract “C” located near the northwest corner of the subdivision, as well as portions of Tract “A” in the vicinity of the dry detention ponds were preserved due to an abundance of trees at those locations. The subdivision is designed with a 25-foot wetland buffer that prohibits removal of native vegetation or other disturbance within 25 linear feet of the jurisdictional wetlands. The buffer encompasses the entirety of the bluff. It was noted during the hearing that the buffer terminates near the southwest corner of the proposed subdivision. It was explained, credibly, that the 25-foot buffer is to buffer wetlands, and that there were no wetlands within 25 feet of the southwest corner that required a buffer. It was also noted that several lot lines extended into the wetland buffer. The buffer will be marked and restrictions recorded. Much of the evidence offered by Petitioners was directed to concern that the disturbance of the Property and removal of trees would destabilize the “relic dune” upon which the proposed subdivision is to be built. The testimony regarding that issue was conclusory, and not based on site- specific studies. However, Dr. McPhillips noted that there is residential development up and down the Greenway, and that the adjacent Shell Cove subdivision had experienced no evidence of dune collapse. Work Completed to Date In June 2016, after Amelia Bluff contracted to purchase the School Board Property, the owner representative, Wirt Beard, met with City planning staff to engage in preliminary discussions regarding the development of the proposed subdivision. At that time, Amelia Bluff and the City planning staff noted that the Property was subject to a Conservation designation on the FLUM. The planning director at the time, Marshall McCrary, indicated that it was his opinion that the FLUM Conservation designation was a “scrivener’s error,” and that it would be taken care of. Considerable discussions regarding the abandonment of the Gum Street right- of-way then commenced, and the Conservation designation was essentially disregarded. Nonetheless, there is no question but that Amelia Bluff knew and understood at that time that the Property was not designated for development. Amelia Bluff’s decision to proceed with development planning and construction was not taken without considerable support by the City. Despite the fundamental issue of whether the proposed subdivision could go forward in light of the unresolved Conservation designation, the City proceeded with a number of actions that would have led Amelia Bluff to the reasonable conclusion that the matter was, in fact, being “taken care of.” As set forth previously, the City entered into the MOU with Amelia Bluff and the School Board that required Amelia Bluff to establish a City right-of-way through the Property to connect Hickory Street to FDOT property and to transfer roughly 3.76 acres of wetlands on the Property to the City for conservation, upon which the City would vacate a portion of Gum Street extending through the Property. Ordinances approving the MOU and vacating the Gum Street right-of-way were adopted on August 15, 2017. The sale of the School Board Property to Amelia Bluff was then closed on November 29, 2017. On March 9, 2018, in accordance with the MOU, Amelia Bluff conveyed the 3.76 acres of jurisdictional wetlands to the City, and dedicated 0.917 acres for the FDOT right-of-way. The City accepted both by resolution on March 20, 2018. On February 16, 2018, Amelia Bluff filed its application for preliminary plat approval. On April 11, 2018, the PAB reviewed the application for preliminary plat and recommended approval, which was approved by the Commission on May 1, 2018. On May 10, 2018, the TRC issued a compliance letter authorizing the commencement of subdivision infrastructure improvements. Amelia Bluff commenced work on infrastructure improvements for the Project in August 2018. When work was suspended on February 21, 2019, pursuant to the City’s request, the stormwater collection system was substantially complete, stormwater ponds had been cleared and constructed, and the stormwater collection system had been installed. In addition, roads had been cleared and curbs installed. City Commission FLUM Amendment Meetings The undersigned viewed and listened to every minute of the City Commission meetings of February 19, 2019; March 19, 2019; and April 16, 2019. The exclusive theme of those meetings was whether the Conservation designation of the Property was a “scrivener’s error.” The staff presentations were directed solely to the historic zoning and land use designations of the Property. Aerial photographs going back to 1943, and plats going back nearly as far, formed the temporal starting point of the presentations. Charts, maps, and plans were presented and discussed that showed the Property to be subject to a residential “zoning map” designation starting in 1961 and extending through the 1990 FLUM. The Property then became subject to a Wetlands Protection zoning map designation in 1993 and FLUM designation in 1997. In 2005, the Property appeared with a LDR designation in the City GIS FLUM Map. The Property was then made subject to the Conservation designation in 2006, a designation that was adopted by City ordinance. Regardless of how the Property became subject to the Conservation designation, that is its official designation, adopted by ordinance, reviewed by the state land planning agency, and not subject to any timely challenge. The staff presented little or no “data and analysis” as to the compliance of the FLUM Amendment itself with the Comprehensive Plan for consideration by the Commission. The discussion of the FLUM Amendment by the Commissioners involved the alleged “scrivener’s error,” the cost associated with litigating a Bert Harris Act “takings” claim if the FLUM Amendment was denied, the cost of acquiring the Property from Amelia Bluff and the source of funds to do so, and nothing more. Though the evidence establishes that the Commission had “data and analysis” as to the compliance of the FLUM Amendment to the Comprehensive Plan, there was not a whisper of acknowledgment or direct evidence of consideration. Several Commissioners, and particularly Mr. Chapman and Mr. Kreger, made statements that their votes to approve the FLUM Amendment were driven solely by the assumption that the Conservation designation was an error, with Commissioner Chapman discussing the cost of buying the Property in lieu of other sensitive lands in the community, stating that “I cannot justify giving up . . . 452 acres of land for six, I just can’t do it,”4/ and Vice-Mayor Kreger stating explicitly at the April 16, 2019, meeting that “to me, this is a mapping error, . . . I made the motion and I will vote yes on this.”5/ The undersigned is convinced that, at least as to the public discussions of the issue, little consideration was given to whether the FLUM Amendment was consistent with the Comprehensive Plan. If the issue in this case was whether the Commission actually considered available data and analysis supporting consistency, the evidence would suggest the answer is “no.” However, the issue in this de novo proceeding is whether data and analysis that was available to the Commission at the time of the adoption of the FLUM Amendment, and whether that data and analysis, together with any subsequent analysis, establishes that the FLUM Amendment is “in compliance” with the Comprehensive Plan under a “fairly debatable” standard. Available Data and Analysis Section 163.3177(1)(f) requires all plan amendments to be based upon relevant and appropriate data and an analysis by the local government that may include, but is not limited to, surveys, studies, and other data available at the time of adoption of the plan amendment. Section 163.3177(2) requires the elements of the Comprehensive Plan to be supported by data and analysis. Likewise, section 163.3177(6)(a)8. requires FLUM amendments to be based upon an analysis of data. Section 163.3178(2) states that a local government’s coastal management element of its Comprehensive Plan must be based upon studies, surveys, and data. When the application for the FLUM Amendment was filed, Amelia Bluff provided the City with a substantial volume of information for consideration by City staff, and to which the Commission had access at the time it voted to approve the FLUM Amendment. The surveys, studies, and data included: a site survey prepared by Manzie & Drake Land Surveying; engineering plans for the proposed subdivision, including water and sewer design and stormwater system design prepared by Gillette & Associates, Inc.; a wetland delineation, wetland survey, and documents conveying all wetlands to the City; a topographic survey; preliminary and final plats which include a depiction of the upland/wetland buffer; stormwater modeling data and site drainage calculations prepared by Gillette & Associates, Inc.; the SJRWMD ERP; a geotechnical and soils report for the stormwater model and roads prepared by AGES of Jax, Inc.; a tree survey with input from an arborist; and a wildlife assessment prepared by LG2 Environmental Solutions, Inc. Challenges to the Plan Amendment Small Scale Development Amendment Section 163.3187 applies to “small scale development amendments,” which may be adopted when “[t]he proposed amendment involves a use of 10 acres or fewer.” Petitioners allege that the FLUM Amendment is not a small scale development amendment since the 6.4 acre FLUM Amendment is part of a use, i.e., the proposed subdivision, that is greater than 10 acres in size. The FLUM Amendment is designed to change the land use category on the 6.4-acre Property. Both Ms. Gibson and Mr. Teeple testified credibly that the size of a FLUM amendment application is the acreage of the property on which the land use category is to be changed. Mr. Teeple testified that, in his extensive experience, he was unaware of any instance in which the 10-acre threshold was applied to the applicant’s total acreage, on the size of a “parent parcel,” or on the overall size of a development of which a FLUM amendment parcel was a part. Ms. Jetton testified on behalf of Petitioners that the Amelia Bluff subdivision is the “use,” which includes “the lots, the driveways, the stormwater ponds, the entire use,” although only the land use designation on the 6.4 acres would be amended. She asserted that the FLUM Amendment “should have been for the Conservation land with an explanation along with it that it would be part of a use that includes” the entire proposed subdivision. Her opinion as to “use” notwithstanding, Ms. Jetton testified that if the FLUM Amendment had occurred prior to the plat approval, “and they only offered the Conservation land as a small scale amendment, then that would have met the statute,” and the FLUM Amendment would properly be for the 6.4 acres for which the land use category change was being sought. Ms. Jetton, and Petitioners, rely exclusively on St. George Plantation Owners Association, Inc. v. Franklin County, Case No. 95-5124GM (Fla. DOAH Feb. 13, 1997; Fla. ACC Mar. 27, 1997). That case will be discussed in the Conclusions of Law herein. The preponderance of the evidence demonstrates that it is the established and accepted practice of the City and the regional council to base the determination of whether an amendment is a small scale amendment on the size of the property subject to modification. That determination is consistent with the plain language of the statute and is accepted as reflecting an accurate application of the standards for a small scale FLUM amendment. Internal Inconsistency In the Joint Pre-hearing Stipulation, Petitioners identified the specific goals, objectives, and policies of the Comprehensive Plan that they assert render the FLUM Amendment inconsistent with the Comprehensive Plan. Each of those goals, objectives, and policies is addressed as follows: Policy 5.07.09. The City shall prohibit any development activity that would potentially endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to existing drainage structures and natural drainage patterns. Ms. Gibson testified that the City applied this policy and found that it was met as evidenced by modifications to the original stormwater system design and the permitting of the stormwater system by the city and the SJRWMD. As originally configured, the stormwater system would have required significant regrading and virtual clear-cutting of the entire Property to allow stormwater to flow against the natural topography of the land to the front of the proposed subdivision adjacent to Citrona Drive. With input and direction from the City, the system was redesigned to direct stormwater generally from the high point of the property to its low point at the southeastern corner, following the natural topography of the proposed subdivision. All stormwater is to be directed to the permitted stormwater facility. The 25-foot upland buffer is not designed or intended to treat stormwater. The stormwater system consists of dry detention ponds, which are preferred by the SJRWMD. The vertical percolation rate is calculated at 42.8 feet per day. The horizontal percolation rate was calculated at 0.6 feet per day. Mr. Gillette testified that the stormwater system was designed to manage 100 percent of the stormwater from a 25-year storm event, which exceeds the City requirement of a system capacity to handle a 10-year storm event. The treatment volume does not include infiltration and percolation of stormwater. Mr. Desilet reviewed the drainage plans and calculations and determined that they were in compliance with the City Land Development Code. He further confirmed that Amelia Bluff received a stormwater permit from the SJRWMD as required by the Local Development Order. The system is designed and engineered such that flow from the proposed subdivision in its post-development state does not exceed flow from the proposed subdivision in its pre-development state. The system is designed to hold and treat stormwater on site from a 25-year storm. After that, stormwater will be allowed to “pop-off” to the stormwater drain and culvert. Nonetheless, the preponderance of the evidence establishes that any water leaving the site will be treated stormwater, meeting both permitting and water quality standards. Mr. Gillette testified that the modeling performed in support of the stormwater system indicates that for a mean storm event (5.4 inches of rain), pre-development stormwater outfall from the proposed subdivision is 3.8 cubic feet per second (“CFS”), while post-development outfall is expected to be 0.67 CFS. For a 25-year storm event, pre-development stormwater outfall from the proposed subdivision is 16 CFS, while post- development outfall is expected to be 5.6 CFS. Mr. Desilet testified that the engineered stormwater system proposed by Amelia Bluff “addresses water quality by providing the minimum required treatment volume and infiltration under [SJRWMD] guidelines.” As such, he testified that under rules governing the SJRWMD, “[i]f the specified volume required by the pervious area of the site is provided, and it's shown that it infiltrates in the system and it meets other site criteria in the [SJRWMD] code, it is presumed to meet state water quality standards.” Consistent with Mr. Desilet’s testimony, Florida Administrative Code Rule 62-40.432(2)(a), which is applicable to the SJRWMD, provides that “[w]hen a stormwater management system complies with rules establishing the design and performance criteria for such systems, there shall be a rebuttable presumption that the discharge from such systems will comply with state water quality standards.”6/ The stormwater system complied with the applicable rules, thus leading the SJRWMD to issue a stormwater permit to Amelia Bluff. There was no persuasive evidence introduced to rebut the presumption that state water quality standards would be met. The City reviewed Amelia Bluff’s stormwater plans for compliance with the City’s Land Development Code and determined that water quality was addressed, and that the data and analysis regarding stormwater from the proposed subdivision was compliant with the Comprehensive Plan. The evidence offered to establish that the stormwater system designed for the proposed subdivision would “endanger lives and/or harm property, water quality, and quantity or any other valued environmental system resulting from an alteration to . . . natural drainage patterns” was not persuasive. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.09. Policy 5.07.12. The City shall require low-impact development strategies or conservation-based landscape planning and installation, water efficient irrigation, and appropriate measures that promote conservation of water resources and reduction of non-point source pollution as part of sustainable water management for new public and private development. New waterfront development shall be designed so that stormwater runoff and erosion are retained on-site or are channeled so as not to degrade water quality of adjacent waters. Ms. Gibson testified that the City required Amelia Bluff to apply low-impact development strategies, including its dedication of all wetlands to the City; the requirement of the 25-foot, naturally vegetated wetland buffer; modifications to the stormwater system to account for the natural topography of the land; and modification and realignment of infrastructure to preserve significant trees. Mr. Teeple testified that the proposed density of less than three units per acre is less than the four units per acre allowed under the LDR designation, thus supporting his opinion that Amelia Bluff applied a low-impact development strategy. Petitioners’ alternatives to the low-impact development strategies identified by Ms. Gibson included clustering all development onto that portion of the proposed subdivision currently designated as LDR, requiring swales in lieu of a “focused” drainage pattern, and increasing the width of the buffer. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its low-impact development policy was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. There are different ways to measure the effectiveness of low-impact development strategies, and people may -- and do -- disagree as to the appropriate means to accomplish the policy. The issue is not, however, which strategies should be implemented, but whether the City’s decision to accept Amelia Bluff’s strategy was beyond fair debate. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Policy 5.07.12. Objective 5.08. - Wetlands Protection and Preservation Petitioners assert that the FLUM Amendment is inconsistent with Objective 5.08. of the Comprehensive Plan, which provides as follows: The City shall direct incompatible land uses away from wetlands, and shall protect and preserve wetlands from physical and hydraulic alterations, in order to maintain the following functions: natural biological functions . . . natural drainage systems impacting sedimentation patterns, salinity distribution, flushing characteristics . . . shielding other areas from wave action, erosion, or storm damage; storage areas for stormwater and flood waters; natural recharge areas; and natural water filtration processes that serve to purify water. Objective 5.08. is implemented through the City’s wetland Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.08.05. The City shall continue to ensure the protection and mitigation of wetlands, consistent with existing state and federal regulations, and shall ensure the following: Land uses which will have little or no adverse impact on wetlands; Standards and criteria for wetlands which possess significant functional value; and Activities that would provide direct public benefits and that would exceed those benefits lost to the public as a result of the degradation or destruction of wetlands. Policy 5.08.06. The City shall protect wetlands from impacts of adjacent development, and shall ensure through regulations included in the Land Development Code: Proper siting of development structures and infrastructure, including clustering of development away from wetlands; Location of buffer zones of native vegetation around wetlands and surface water bodies to prevent erosion, retard runoff, and provide habitat; and Setback of buildings and other structures from wetlands and water bodies. Policy 5.08.08. In instances in which development is proposed that is adjacent to a wetland, the boundary of a wetland transition area shall be established by an on-site field survey . . . . The City shall maintain land development regulations which ensure that the transition area provides a buffer between wetlands and upland development. Such buffer shall ensure existing vegetation is not disturbed; where new vegetation is required, plants or ground cover native or appropriate to a wetlands transition area shall be used. The data and analysis established clearly that the Property encompassed by the FLUM Amendment includes no wetlands, and that the proposed subdivision will result in no direct degradation, destruction, or impact to wetlands. Ms. Gibson testified that the Wetlands Protection and Preservation objective and policies were advanced in several ways, including the dedication of all wetlands on the School Board Property to public ownership so as to protect and preserve the wetlands, the creation of the wetland buffer between wetlands and the upland development, and the requirement -- enforced through the plat and engineering documents, Homeowners’ Association covenants, and City code provisions -- that native vegetation be maintained in the buffer. Petitioners argued that wetlands are adjacent to the proposed subdivision, that stormwater can drain from the proposed subdivision to the wetland, and that, ipse dixit, there will be an adverse affect on the wetlands. That allegation was not proven, and is inconsistent with the SJRWMD stormwater permit creating a presumption that the stormwater system complies with water quality standards. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wetland protection and preservation objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.08., or Policies 5.08.05, 5.08.06, or 5.08.08. Objective 5.10. - Wildlife Planning. The City shall encourage development and management of resources in a manner which sustains local wildlife, their habitat and the ecological services of the land, and shall protect significant habitats of populations of threatened or endangered species in accordance with the provisions of the Endangered Species Act (ESA) 16 USC 1531, and Florida Administrative Code Division 68A. Objective 5.10. is implemented through the City’s wildlife management Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policies: Policy 5.10.01. When reviewing development proposals for public or private development, the City shall take into account the following strategies: * * * Preserve native vegetation and habitat types; Preserve forested areas, the understory and native soil associations; and Avoid activities that dehydrate landscape features or alter seasonal water flows or duration of inundation to wetlands, hammocks or water bodies. Policy 5.10.02. The City shall protect significant habitats for native wildlife and vegetation in areas of known environmentally sensitive habitats, including habitats of endangered species. The Land Development Code shall be updated with regulations to ensure that prior to the issuance of development permits in such areas, detailed inventories and assessments of impacts of development shall be conducted. If on-site habitat will be disturbed by new development, the habitat shall be relocated or the impacts mitigated, if viable by virtue of its size, configuration, and connecting habitat. . . . Mr. Teeple testified that the donation of wetlands and the efforts taken, as described herein, to minimize impacts to trees on the Property, is consistent with the Comprehensive Plan. When confronted with the fact that the proposed subdivision will not “preserve the forested areas, the understory, and the native soil associations,” Mr. Teeple testified credibly that Policy 5.10.01 “doesn't say ‘preserve all native vegetation and all habitat types.’ It's incongruous with the nature of development.” The data and analysis demonstrate that Amelia Bluff made efforts to preserve native vegetation and forested areas on the property, as described herein, though it is without question that the Property will be subject to the normal impacts of low- density development. Compliance with the stormwater standards is sufficient to demonstrate that there will be no adverse water quality or water quantity impacts from the stormwater collection and management system, and that the system will not alter seasonal water flows or duration of inundation to wetlands, hammocks, or water bodies. Dr. McPhillips testified as to her concern that the buffer vegetation on the northern -- and more elevated -- side of the proposed subdivision will be desiccated, and that the vegetation on the southern -- and lower -- side near the dry detention ponds will, from time to time, become saturated. Her concern was that trees at the buffer would not be able to generate interfacial friction between the roots and soil to stabilize them under any appreciable wind load. However, Dr. McPhillips was not familiar with the adjacent Shell Cove subdivision, which has similar characteristics, or the requirements of the SJRWMD and the calculations required for a stormwater permit. Her opinions were not supported by specific facts as to how the site will hold or drain water, and were more in the nature of “pure opinion” testimony based on her admittedly extensive professional education and experience. The data and analysis was adequate to establish that the stormwater management system would not result in adverse impacts resulting from the system, including dehydration of landscape features. As to Policy 5.10.02, the evidence indicated that the City Land Development Code required detailed inventories and assessments of impacts of development. As part of the data available to the City, Amelia Bluff provided a wildlife survey. The survey established that the Property contained no environmentally sensitive habitats, including habitats of endangered species. The known environmentally sensitive habitats in the form of wetlands have been protected through conveyance to public ownership and the establishment of naturally vegetated buffers to protect off-site habitat. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with its wildlife planning objective and policies was supported by data and analysis, and was a legislative decision to accept the plans and specifications as being in compliance with the Comprehensive Plan. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 5.10., or Policies 5.10.01 or 5.10.02. Objective 5.11. - Tree Preservation and Urban Forestry. The City shall commit to preservation of community trees and the urban forest to improve air quality, community health, quality of life, aesthetics, and energy conservation. Objective 5.11. cannot be read in isolation from the policies adopted to implement the objective. Those policies include Policy 5.11.09., which requires the City’s Land Development Code to “protect and retain existing trees and require replacement of trees lost to land clearing,” with the objective of “achiev[ing] no net loss of trees per development site,” as well as “[m]aintenance of a Tree Fund for payments in lieu of replanting or mitigation of protected trees.” Mr. Platt testified that the City’s objective has been met through a number of strategies and policies applied to Amelia Bluff. Mr. Platt and Ms. Gibson testified that individual lots will be required to submit a land clearing application at the time of the single-family home permit, and the lot grading and tree removal associated with each individual lot will be reviewed on a parcel-by-parcel basis at that time. The City's Land Development Code has provisions for the protection of noninvasive, healthy trees larger than five inches in diameter at breast height (“DBH”) within five feet of a home footprint. For any tree in the protected class that must be removed, the City has a mitigation and minimum planting ordinance which requires that any tree planted as part of mitigation be a noninvasive, native tree, at a minimum of two and a half inches DBH and eight feet in height. In addition to the foregoing, the City Land Development Code has a provision that allows for up to 50 percent of on-site mitigation to be accomplished through an “inch-for-inch” payment to a tree mitigation fund. That provision is, according to Mr. Platt, rarely used, though it is consistent with Policy 5.11.09 described above. As indicated previously, Amelia Bluff set aside several areas of the proposed subdivision, both within the Property and within the remaining generally indistinguishable acreage, for protection of both important specimen trees and clusters of trees, most notably Tract “C” (0.25 acres) near the northwest corner of the proposed subdivision, areas around the dry detention ponds (0.17 acres), and tree “islands” in the cul- de-sacs. In addition, Amelia Bluff worked with the City to realign roadways and utilities to avoid particular trees. Petitioners assert that Objective 5.11. has not been met because the overall forest will be altered, not only through the installation of infrastructure, but also through the clearing that will be necessary for homes and driveways. Petitioners argue that the inevitable thinning of the forest and damage caused through construction activities will weaken the remaining trees, and diminish the storm protecting qualities of an unbroken forest. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 5.11. was supported by data and analysis, including the tree survey and the retention/removal plan. It was a legislative decision to accept the plans and specifications, when considered in conjunction with the related policies and the City’s Land Development Code, as being in compliance with the Comprehensive Plan. People clearly, and in good faith, disagree as to the best means of preserving the urban forest. Development, even of low density, by its very nature entails a modification of the natural state. However, the issue is whether the City’s determination that the FLUM Amendment, including protections proposed by Amelia Bluff, was, beyond fair debate, in error. The evidence does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Tree Preservation and Urban Forestry Objective 5.11. Objective 6.05. - Open Space. Open spaces shall be protected within urbanized areas for their aesthetic, health, environmental, and economic benefits. The City shall continue to maintain standards in its land development regulations for the provision and maintenance of open space in the community, including in private developments and publicly owned lands. Objective 6.05. is implemented through the City’s open space Comprehensive Plan policies. Petitioners allege that the proposed FLUM Amendment is inconsistent with the following policy: Policy 6.05.03. Privately-owned open space, such as those within subdivisions or PUD developments, which consist of a conservation future land use or contains environmentally sensitive lands, shall be protected through the acquisition of conservation easements. There was surprisingly little or no testimony offered by anyone other than Ms. Gibson and Mr. Teeple regarding the consistency of the FLUM Amendment with this objective and policy. Mr. Teeple testified to the difficulty in applying Policy 6.05.03 -- despite the provision that open space “within subdivisions or PUD developments, which consist of a conservation future land use . . . shall be protected through the acquisition of conservation easements” -- due to “the out- of-sequence process that we're going through by dealing with land use last.” Had the FLUM Amendment been considered “in- sequence,” there would have been no subdivision to which Policy 6.05.03 would have applied. Several witnesses testified that had the sequence of events not been skewed by Mr. McCrary’s ill- advised statement that the “scrivener’s error” would be taken care of, a number of issues created as a result of the amendment of the FLUM after plat approval would not have been problems. This appears to be one. It does appear that Policy 6.05.03. was designed to apply to open space lands within a developed subdivision, ensuring through a conservation easement that such designated open space lands would not be encroached upon. That scenario does not present here. The evidence establishes that all of the “environmentally sensitive lands” on the School Board Property were conveyed to the City. Though the Property is forested, it is of a nature common throughout north Florida, and not imperiled “maritime hammock.” Amelia Bluff conveyed all wetlands on the Property to the City. Amelia Bluff also placed 0.25 acres into “recreation/open space, preserved significant stands and individual trees, and donated $115,000 to the City for land conservation efforts. The City’s decision to accept Amelia Bluff’s proposed subdivision as consistent with Objective 6.05. and Policy 6.05.03. was supported by data and analysis as described above. Though a facially credible argument can be made that the Property is land designated as Conservation within a “subdivision”, under the specific -- and peculiar -- facts of this case, the legislative decision to adopt the FLUM Amendment as being consistent with the Comprehensive Plan, when considered in conjunction with the related policies and the City’s Land Development Code, was fairly debatable. Objective 6.10. - Egans Creek Greenway. The City shall protect Egans Creek Greenway for its value as a recreational asset, for its significance as an outstanding natural resource, and for its role in providing wildlife habitat. The Amelia Bluff subdivision does not front onto the Egans Creek Greenway. Rather, the easternmost edge of the Property is from 200 to 400 feet removed from the Greenway. The Greenway was protected by the dedication of all wetlands that were part of the School Board Property to the City. The Greenway is further protected by the establishment of the 25-foot naturally vegetated upland buffer. As established herein, any stormwater discharged from the dry detention ponds is not reasonably expected to result in the violation of water quality or water quantity standards established by the SJRWMD or the City. While recognizing the value of the Egans Creek Greenway, the evidence does not demonstrate that the proposed subdivision will impair the Egans Creek Greenway’s value as a recreational asset, its significance as an outstanding natural resource, or its role in providing wildlife habitat, and does not establish beyond fair debate that the FLUM Amendment is inconsistent with Comprehensive Plan Objective 6.10. Policy 1.02.04. Decision on amendments to the FLUM shall be based on an analysis of the suitability and compatibility of the proposed use, based on the following factors: Type and density or intensity of surrounding uses; Zoning districts in the surrounding area; Demonstration of adequate water supply and water supply facilities; Appropriateness of the size of the parcel compared to the proposed use; Physical condition of the site, and the suitability of soils and topography for the proposed use; Suitability of the site based on the presence or absence of natural resources, environmentally sensitive lands, flood zones, or historic resources; Compatibility factors; Impact on adopted levels of service standards and quality of service standards; and Location in a Coastal Upland Protection Zone (CUPZ). Petitioners’ argument on this point is essentially that the FLUM Amendment is not supported by relevant data and analysis in the form of the assessments called for in the policy. That argument is separate and apart from the issue of whether the FLUM Amendment creates an internal inconsistency with the policy. As set forth herein, the data available to the City, and the analysis of that data, met the substantive requirements of Policy 1.02.04. Thus, the record does not support a finding that the FLUM Amendment is inconsistent with Policy 1.02.04. Data and Analysis Petitioners’ last argument is, as expressed in section II.a.(3) of the Joint Pre-hearing Stipulation, the FLUM Amendment is inconsistent with various provisions of section 163.3177, including that the proposed FLUM Amendment be based on “accurate” data and analysis. In that regard, section 163.3177(1)(f) provides that: All . . . plan amendments shall be based upon relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available at the time of adoption of the . . . plan amendment. (emphasis added). Section XI of the Joint Pre-hearing Stipulation then identifies the following issues as remaining for disposition: Whether the [FLUM] Amendment is based upon appropriate data and analysis including the character of the undeveloped land, soils, topography, natural resources, and suitability of the property for the proposed use in accordance with Section 163.3177(6), Florida Statutes. Whether the development . . . ensures the protection of natural resources and the compatibility of adjacent land uses as required under Section 163.3177(3). Whether the development . . . directs future land uses that are incompatible with the protection of wetlands and wetland functions in violation of section 163.3177(6), Florida Statutes. Whether the development . . . will adversely impact water, wetlands, wildlife, habitat, soils, native vegetative communities, existing natural preserve areas, and other natural and environmental resources pursuant to Section 163.3177(2), (6), Florida Statutes. (emphasis added). Ms. Gibson testified that the FLUM Amendment is supported by information described in paragraph 73, and described in further detail throughout these Findings of Fact. The availability of the data was corroborated by Mr. Platt, Mr. Desilet, Mr. Gillette, and Mr. Gerald. Though there was little evidence that the data and analysis was fully considered by the Commission,7/ the evidence established that there was substantial data “available at the time of adoption of the . . . plan amendment,” and that the data was, at a minimum, analyzed and considered by City staff. Consistency of the FLUM Amendment with section 163.3177(2), (3), and (6) has been addressed in conjunction with the specific Comprehensive Plan objectives and policies set forth in detail herein. Based thereon, Petitioner did not prove beyond fair debate that the FLUM Amendment is not based upon relevant and appropriate data and analysis, or are otherwise inconsistent with section 163.3177(1)(f), (2), (3), and (6). Conclusion In analyzing the consistency of the FLUM Amendment with the Comprehensive Plan, the undersigned gave full attention to not only the witnesses and evidence produced by the parties, but also to the public comment taken during the evening of July 15, 2019. This project has clearly evoked a great deal of justifiable passion from people who are concerned, invested, and involved in their community. However, the burden applicable in proceedings of this nature -- beyond fair debate -- is substantial. The decision that was made by the City officials was, as discussed herein, a legislative decision. Regardless of the extent that their attention may have been misdirected to the issue of whether the adopted and valid Conservation designation was a “scrivener’s error,” the data and analysis in support of the FLUM Amendment was available. Under the specific facts of this case, the decision of the elected City officials to approve the FLUM Amendment, regardless of their publicly stated reasons, was one that reasonable persons could differ over, and was therefore “fairly debatable.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the City of Fernandina Beach Comprehensive Plan FLUM Amendment adopted by Ordinance No. 2019-08 on April 16, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of September, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2019.
The Issue The issue in this case is whether Ft. Myers' comprehensive plan, as amended, is not in compliance for the reasons set forth in the prehearing stipulation, as amended during the final hearing.
Findings Of Fact Background The City of Ft. Myers, (Ft. Myers) adopted its comprehensive plan on February 13, 1989. The Department of Community Affairs (DCA) issued a Notice of Intent to find the plan not in compliance. Among other things, DCA alleged that the plan improperly omitted the Mid-Point Bridge and was inadequate in terms of intergovernmental coordination, at least with regard to the bridge. The City of Cape Coral (Cape Coral) and Lee County filed petitions to intervene. The petitions challenged the Ft. Myers plan based on its omission of the Mid-Point Bridge. DCA and Ft. Myers subsequently reached a settlement. On August 20, 1990, Ft. Myers adopted plan amendments pursuant to the settlement agreement. The plan, as amended, will be referred to as the Plan. DCA issued a Notice of Intent to find the plan amendments in compliance, but Lee County and Cape Coral, finding the plan amendments unsatisfactory, continued to prosecute their challenge to the Plan. Ft. Myers and Cape Coral are two of the three municipalities located in Lee County. /2 The two cities are divided by the Caloosahatchee River, which forms the western end of the Okeechobee Waterway. This waterway links the Gulf of Mexico to Lake Okeechobee, via the Caloosahatchee River, and Lake Okeechobee to the Atlantic Ocean. In the eastern part of Lee County, the Caloosahatchee River runs from east to west. In this area, the river is spanned by the State Road 31 Bridge and, further downstream, the Interstate 75 bridge. In the vicinity of Interstate 75, about two miles northeast of the city limits of Ft. Myers, the river widens, makes a slow turn, and takes a northeast-to-southwest course. Except for a railroad bridge about one mile downstream from the Interstate 75 bridge, the next bridge is the Edison Bridge, which is about 5 1/2 miles downstream from the Interstate 75 bridge. The Edison Bridge serves old U.S. 41. The southern landfall of this bridge runs into the northern end of the central business district of Ft. Myers. The Edison Bridge, which is presently two lanes, is planned to be widened to six lanes in the near future. About 1/2 mile downstream of the Edison Bridge is the Caloosahatchee Bridge, which serves new U.S. 41. The southern landfall of the Caloosahatchee Bridge, which is sometimes called the 41 Bridge, also runs into the central business district of Ft. Myers. The Caloosahatchee Bridge is four lanes. About seven miles downstream from the Caloosahatchee Bridge is the Cape Coral Bridge, which is the last bridge before the mouth of the river. The Cape Coral Bridge was recently expanded to four lanes. The proposed Mid-Point Bridge would be located 3.4 miles upstream from the Cape Coral Bridge and 3.8 miles downstream from the Caloosahatchee Bridge. At this point, the river runs more in a north-to-south direction. The bridge would connect central Cape Coral with south Ft. Myers. The Mid-Point Bridge project would include an east-west road corridor on both sides of the river. The corridor would connect Everest Parkway on the Cape Coral or west side of the river with Colonial Boulevard on the Ft. Myers or east side of the river. Everest Parkway is presently only about 12,000 feet long. The corridor would connect Everest Parkway with Miracle Parkway to the west, turn north at Malatcha Pass (the western boundary of Cape Coral), and extend to New Burnt Store Road. Everest Parkway and most of Miracle Parkway are four-lane divided collectors for which Cape Coral has jurisdiction. Colonial Boulevard is an arterial consisting of six lanes from McGregor Boulevard east to U.S. 41 and four lanes from U.S. 41 east to Interstate 75. The State had jurisdiction over all of Colonial Boulevard, but the County now has jurisdiction over the segment between McGregor Boulevard and U.S. 41. The west terminus of Colonial at McGregor Boulevard is about one- quarter mile east of the river. About 2000 feet east of McGregor is Summerlin Road. The next major intersection is U.S. 41, which is about 4000 feet east of Summerlin and less than 1.2 miles east of McGregor Boulevard. The Edison Mall, which is a major regional shopping mall, is less than one-half mile north of this intersection on the east side of U.S. 41. The next major intersection on Colonial is Metro Parkway, which is 1.3 miles east of U.S. 41. A little over 3.1 miles east of Metro Parkway is Interstate 75 where an interchange exists. From west to east, the major north-south roads are McGregor Boulevard, for which capacity improvements are constrained by historic and scenic factors; U.S. 41, which crosses the Caloosahatchee Bridge; Fowler Street and Evans Avenue, which are a one-way pair between the Edison Bridge and Colonial; Metro Parkway, which is proposed to be extended north to cross the proposed Metro Bridge; and Interstate 75, which is considerably east of the downtown area. Cape Coral is a relatively new community whose predominant land uses are residential. The relevant road network in Cape Coral consists of two major east-west roads: Pine Island Road, which is about four miles north of Everest, and Cape Coral Parkway, which is about three miles south of Everest. The major north-south roads are, from east to west, Del Prado Boulevard (at which point Everest presently ends), Country Club Boulevard, and Santa Barbara Boulevard. In contrast to Cape Coral, Ft. Myers has been more or less continuously occupied since the construction of a fort by the same name in 1850 between the Second and Third Seminole Wars. In 1887, Thomas A. Edison built his home alongside the Caloosahatchee River between the central business district and what is now Colonial Boulevard. Edison's home is located on McGregor Boulevard, which is attractively lined by Royal Palm trees. Aided by the arrival of Henry Plant's Coast Railroad in 1904 (and presumably a bridge to go with it), Ft. Myers began to grow rapidly in the early 1900's. The Colonial Boulevard area was not developed until the Florida land boom in the 1920's. Although the structures of historical interest are north of Colonial Boulevard, seven sextant structures on Rio Vista Way were constructed during the 1920's and 1930's and exemplify the prevailing Mediterranean revival architectural style. Running toward the river, Rio Vista Way intersects McGregor Boulevard about 250-500 feet of north of the western end of Colonial Boulevard. Data and Analysis February, 1989, Data and Analysis At the time of the adoption of the plan, Ft. Myers prepared a 45-page volume entitled "Traffic Circulation Data and Analysis." The document was dated August, 1988, and revised February, 1989. This document will be referred to as the 1989 Data and Analysis. The 1989 Data and Analysis reviews the city's current situation with respect to transportation facilities, especially roads. Table 1 of the document is a chart of daily traffic volumes based on Florida Department of Transportation traffic estimates issued April 10, 1987 Table 1 projects the peak hour level of services for various road segments for 2010. According to Table 1, by 2010, all of U.S. 41 is projected to be at level of service F, except for a segment south of downtown that is projected to deteriorate only to level of service D. All of Colonial Boulevard is projected to be at level of service F, except for the short segment between McGregor Boulevard and Summerlin Road, which is projected to deteriorate only to level of service C. McGregor Boulevard and Fowler Street are projected to be level of service F, except for the segment of Fowler Street beginning at the river, which is projected to be level of service E. Among the road segments already exceeding level of service standards are Colonial Boulevard west of U.S. 41 (level of service E) and McGregor Boulevard (level of service F). The 1989 Data and Analysis notes that the "intensified urbanization of Fort Myers will continue, and congestion problems will worsen." 1989 Data and Analysis, page 7. The 1989 Data and Analysis summarizes the "three major areas of major capacity deficiencies" as follows: Firstly, Fort Myers' downtown is the economic hub of Lee County and development attracts approximately 38,800 daily trip ends. [Fort Myers Downtown Plan, July 1986.] Second, the Edison Mall area which due to the major regional shopping mall is a main attractor of traffic congestions. Finally, McGregor Boulevard, the renowned historic and scenic highway, has capacity constraints. Id. at page 9. Map B in the 1989 Data and Analysis depicts future roadways and classifications. In addition to the existing Interstate 75, railroad, Edison, and Caloosahatchee bridges, the map shows the Metro Bridge. This bridge, which will be located just over one mile upstream from the Edison Bridge, will allow Metro Parkway to cross the river and intersect with Interstate 75 in north Lee County. According to the Future Land Use Map (FLUM), Metro Parkway presently extends from south of Colonial Boulevard to about two miles north of Colonial. Map B depicts Metro Parkway as continuing north until it meets the proposed landfall of the southern end of the proposed Metro Bridge. The proposed alignment of Metro Parkway between its present northern terminus and the proposed bridge takes it through economically distressed areas east of the railroad tracks and central, downtown area. Map F in the 1989 Data and Analysis depicts graphically travel desires lines for 1980 and 2010. The travel desires map shows the general direction and approximate volume of trips between 13 centroids for 1980 and 2010. The centroids aggregate up to 396 travel analysis zones. The 1989 Data and Analysis explains that the travel desires map "was produced as part of the MPO 2010 Needs plan update . . .." 1989 Data and Analysis, page 19. The 1980 travel desires line signifying the greatest number of trips runs in at northeast-southwest direction between south Ft. Myers near the river to north Ft. Myers a couple of miles inland. Other major 1980 travel desire lines cross the river in the vicinity of the Caloosahatchee, Edison, and proposed Metro Bridges cross the river between the center of Cape Coral and north Ft. Myers and connect north Ft. Myers to a point well east of Interstate 75 in the area of Lehigh Acres. The projected travel desires lines signifying the most travel in 2010 are the above-described line between south and north Ft. Myers and a line between south Ft. Myers and a point about six miles due south. The latter travel line depicts considerably less traffic in 1980. Compared to the two most significant 2010 travel lines, the travel lines crossing the river are projected to increase at a lesser rate. Table 3 in the 1989 Data and Analysis contains 1987 Traffic Counts. The table, which is derived from Lee County data, projects when various road segments will deteriorate to seasonal level of service E. Table 3 projects that Colonial Boulevard between Summerlin Road and U.S. 41 and Colonial east of Metro Parkway will deteriorate to peak season level of service E by 1988 and 1992, respectively. McGregor was already at an average level of service of E by 1987. Segments of Metro Parkway south and north of Colonial are projected to reach level of service E by 1991 and 1989, respectively. Also, U.S. 41 at the river is projected to deteriorate to level of service E by 1992. Other relevant segments are projected to be at seasonal level of service D or better. Map G in the 1989 Data and Analysis graphically depicts 1980 and 2010 levels of population and employment by area. In general, Map G shows that, in 1980 and 2010, Cape Coral experienced and is projected to continue to experience considerably greater population than employment opportunities. North and south Ft. Myers' figures show a much better balance between population and jobs. Addressing Map B in, the 1989 data and Analysis, which depicts future roadways, the 1989 Data and Analysis states: The City's Major Thoroughfare Plan (Map H[)] /4 has been developed to coordinate with the Metropolitan Planning Organization, State and County plans to the greatest extent possible. The most significant deviations from these plans are the terminus of the Evans/Fowler one-way pair and the exclusion of a "mid- point bridge." The proposal by other agency plans of a "mid-point bridge," at its current proposed location, conflicts overwhelmingly with other goals, objectives, and policies of the Comprehensive Plan. Conflicts with Land Use, Historic, and Community Appearance elements and internal conflicts with the Traffic Circulation element precludes the City from supporting the proposed bridge alignment. The present and future land use pat1terns have been coordinated to the greatest extent feasible with the Major Thoroughfare Plan. 1989 Data and Analysis, page 36. The 1989 Data and Analysis does not explain how the Major Thoroughfare Plan ``coordinates'' with the plans of the Metropolitan Planning Organizations' State, and County plans. Maps A and B of the 1989 Data and Analysis depict, respectively, present and future roads. Tables in the 1989 Data and Analysis following the Major Thoroughfare Plan--2010 list transportation projects included in the list of one organization or entity but excluded from that of another. Mentioning the Mid-Point Bridge and approaches, Table 12 states "The City of Fort Myers is adamantly opposed to this project on the basis of it being inconsistent with the City's Comprehensive Plan." The 1989 Data and Analysis concludes with a discussion of "issues and opportunities." This discussion mentions the maintenance or provision of "adequate road capacity for future traffic needs" and the preservation and protection of the "quality of residential areas, major activity centers, and recreation and environmental resources." Nothing in the 1989 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. Setember, 1990, Data and Analysis An updated version of the 1989 Data and Analysis was issued. The new version bears the date, "August 1988," but also states that it was "updated September 1990." This document will be referred to as the 1990 Data and Analysis. Table I in the 1990 Data and Analysis is based on the same Florida Department of Transportation estimates issued April 10, 1987, on which Table 1 in the 1989 data and Analysis was based. The above-noted segments are all projected to reach the same level of service, except that all segments of U.S. 41 are projected to reach level of service F by 2010. Other differences between the 1989 Data and Analysis and 1990 Data and Analysis appear fairly minor. /6 Table IV updates the 1987 Traffic Counts in the 1989 Data and Analysis with 1988 Traffic Counts, which are, also from Lee County. The differences as to when relevant road segments are projected to deteriorate to peak season level oil service E are as follows: Colonial Boulevard east of Metro Parkway, which is now projected to reach level of service E in 1993 instead of 1992; Metro Parkway north and south of Colonial, which are no longer "projected" to deteriorate to level of service E in 1988; and Colonial Boulevard just west of U.S. 41, which is now projected not to reach level of service E within the applicable timeframe instead of reaching it in 1988. There is no difference in the discussions in the 1989 Data and Analysis and 1990 Data and Analysis concerning the differences between the road network portrayed by the Major Thoroughfare Plan--2010 and the road networks portrayed by the plans of the Metropolitan Planning Organization, State, /7 and County. The conflict concerning the Mid-Point Bridge and corridor remains unresolved. Nothing in the 1990 Data and Analysis expressly incorporates by reference other sources of data or analysis in support of the plan's treatment of the Mid-Point Bridge or any approach. The MPO Plans and Environmental Fact Statement Other sources of data and analysis existing in February, 1989, pertain to the Mid-Point Bridge and transportation planning issues. Much of these data nd analysis are associated with the work of the Lee County Metropolitan Planning Organization (MPO) and of Lee County and its consultants in the preparation of an environmental impact statement for the Mid-Point Bridge and corridor. When adopting the Plan, Ft. Myers representatives were aware of the data and analysis used or prepared by the MPO and the data and analysis used to prepared by Lee County and its consultants in connection with the environmental impact statement. Required by federal law, a metropolitan planning organization coordinates transportation planning in areas governed by more than one local jurisdiction to ensure that federal and state transportation funds are spent effectively. The MPO consists of 12 voting members: five Lee County Commissioners, the Mayor and two City Council members of Ft. Myers, the Mayor and two City Council members of Cape Coral, and the Mayor or a City Council member of Sanibel. The MPO is also served by a Technical Advisory Committee (TAC), which consists largely of planning and engineering employees of each of the member jurisdictions. The TAC analyzes data and presents to the MPO for consideration. The MPO prepared its initial transportation plan in 1974. The MPO first included the Mid-Point Bridge in its 1978 transportation plan. The MPO later dropped the Mid-Point Bridge project, but reinstated it in 1983. The Mid-Point Bridge remained in the MPO's transportation plans until March, 1991. At an early stage, Lee County was opposed to the bridge, but later reversed its position. The positions of Cape Coral and Ft. Myers appear to have remained constant. In 1987, the MPO began to run computer simulations of various transportation improvements. These modeling runs, or assignments, were integral to the preparation of the MPO 2010 Needs Plan (Needs Plan) and MPO 2010 Financially Feasible Plan (Financially Feasible Plan). Although some text is associated with these plans, they generally consist of two maps of road networks with indications as to the number of lanes and type of facility (e.g., freeway or collector). The Needs Plan depicts the system needed "to accommodate projected travel demand efficiently and conveniently at acceptable levels of service, but unconstrained by cost considerations." Financially Feasible Plan. Based upon cost-benefit analyses, the Financially Feasible Plan prioritizes the facilities shown in the Needs Plan. It is arguable whether the Financially Feasible Plan depicts road improvements that are, in fact, financially feasible. The plan concedes that the MPO has proposed improvements whose cost nearly doubles projected available revenues: The estimated $993 million cost of the Financially Feasible Plan, while $442 million less than that of the 2010 Needs Plan, still exceeds projected financial resources from traditional or existing Sources by -some $313 million. In order to pay for the implementation of the Financially Feasible Plan, a number of options for raising additional revenue available under current Florida law have been identified. Financially Feasible Plan. Although a number of the revenue options involve Ft. Myers, such as through the use of impact fees or local option gas taxes and infrastructure sales taxes, the proposed Mid-Point Bridge and corridor would not Ft. Myers to contribute directly to its cost. The record does not address whether the commitment of Lee County to the project prevents the County from sharing in other transportation expenses otherwise borne to a greater extent by Ft. Myers. Lee County intends to pay for the Mid-Point Bridge and the corridor between Del Prado-Boulevard and Interstate 75. The Lee County schedule of capital improvements, which are contained in the Lee County plan, includes the $168.4 million cost of the Mid-Point Bridge and corridor from Del Prado to Interstate 75. The capital improvement schedule identifies the revenue source as toll revenue bond proceeds. Cape Coral intends to pay for the corridor west of Del Prado Boulevard. The Cape Coral schedule of capital improvements includes $17.8 million for the design and construction of the east-west expressway from Del Prado to Santa Barbara and includes another $6.9 million for related right-of- way acquisition. The Cape Coral plan, as amended August 27, 1990, identifies impact fees and gas taxes as sources for the needed revenue, although later amendments identify other sources as well. In running computer simulations, the MPO used the Florida Standard Model to process socioeconomic data inputs and project levels of service for various network alternatives. The TAC validated the modeling by comparing projections to current travel conditions. The MPO or TAC approved the model after reviewing the validation results. After approving the model, the MPO and TAC unanimously approved the socioeconomic data in December, 1986. In addition to the specified transportation network, the data inputs include such socioeconomic data as projected populations, numbers of housing units by type, pp categories by type, and school enrollments. Generally, each TAC member supplied the socioeconomic data for the jurisdiction represented by that member. Decisions concerning the evaluation of data were by majority vote. The TAC and its outside consultant, Wilbur Smith and Associates, selected alternatives to test, although it appears that the TAC had considerable discretion in `the choice of alternatives. The socioeconomic data were correlated to applicable land uses, which were derived from land use plans then in effect for the various jurisdictions. None of these land use plans contained the comprehensive revisions required by the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (the Act). By running traffic simulation models, Wilbur Smith and Associates determined the relationship of population to employment for 1980 and projected the relationship to 2010. This work was reflected in Map G of the 1989 Data and Analysis and 1990 Data and Analysis. Wilbur Smith and Associates then simulated the travel projected to occur in the area and the routes to accommodate such travel. This work eventually was incorporated into the travel desires map, which, is Map F of the 1989 Data and Analysis and 1990 Data and Analysis. The modeling process is iterative. The first network model led was the existing and committed road network, as of February, 1987. This system, as expected, was grossly inadequate to handle projected growth through 2010. The existing and committed network consisted of, the following committed projects: the Edison Bridge six-laning, the cape Coral Bridge four-laning, an extension of Colonial Avenue, and multi-laning of State Road 80. The next network modelled was the MPO 2000 Long Range Transportation Plan. The predecessor to the 2010 Needs Plan, the 2000 Long Range Transportation Plan, which included the Mid-Point Bridge, provided an ample road network. A total of 15 assignments were run prior to the preparation and adoption of the Needs Plan. The computer modelling represents the first time that the MPO undertook such work on its own or with an outside consultant. By the latter half of 1987, the TAC and Wilbur Smith and Associates had prepared Assignment D, which included much of what was eventually included in the Needs Plan. Assignment D became a base against which other alternatives were tested. At the request of Ft. Myers, the TAC and Wilbur Smith and Associates ran an assignment without the Mid-Point Bridge. This assignment included the Iona Cove Bridge expanded to four lanes and served by a freeway. /8 As ultimately adopted in the Needs Plan, the Iona Cove Bridge and Southern Corridor would consist of a two-lane bridge downstream from the Cape Coral Bridge and about 2 1/2 miles upstream from the mouth of the Caloosahatchee River. On the Cape Coral side, the Southern Corridor would connect indirectly to the Cape Coral Parkway well west of the Cape Coral Bridge. On the Ft. Myers side, the Southern Corridor would be a new four-lane expressway in south Lee County that, from west to east, would intersect Metro Parkway and then Interstate 75. As a two-lane expressway, the Southern Corridor would turn north, passing south of the regional airport, and teirminate at Lehigh Acres in east Lee County. The simulation without the Mid-Point Bridge was Assignment G. Due to faulty data inputs, 9 possibly concerning one or more developments of regional impact in south Lee County, the MPO reran the requested alternative as Assignment J. Assignment J is the only valid assignment excluding the Mid-Point Bridge except for the initial run of the base network. Table A-I of Technical Report 3, which was prepared by Wilbur Smith and Associates, compares projected traffic volumes on various road segments based on Assignment D and Assignment J. In Assignment D, the Iona Cove Bridge would be a two-lane facility with expressway approaches, rather than freeway approaches. Treating the Edison, Caloosahatchee, and Metro Bridges as a single corridor with a capacity of 138,000 trips per day, Table A-I projects that these bridges would handle, under Assignment D, 142,864 trips per bay and, under Assignment J, 153,605 trips per day. The respective volume to capacity ratios are 1.04 and 1.11. The Mid-Point Bridge in Assignment D would have a capacity of 76,000 trips per day and would carry 36,542 for a volume to capacity ratio of 0.48. The Cape Coral Bridge, with a capacity of 33,600, is projected to serve 34,565 trips per day under Assignment D and 43,778 trips per day under Assignment J. The respective volume to capacity ratios are 1.03 and 1.30. Table A-I considers a group of three north-south roads in Ft. Myers, including U.S. 41, in three segments as they travel south from the river. The range of volume to capacity ratios, under Assignment D, from 0.76 to 1.00 and, under Assignment J, from 0.84 to 1.06. Table A-I reports the results for 18 other segments in Cape Coral or Ft. Myers. All but four of these segments are below a volume to capacity ratio of 0.95 under Assignment D. With Assignment J, eight segments exceed 1.0 and two more exceed 0.95. The MPO adopted the Needs Plan on January 21, 1988. After running 14 more assignments, the MPO adopted the Financially Feasible Plan on November 17, 1988. The more elaborate Needs Plan contains a four-lane Metro Bridge with Metro Parkway as, a divided six-lane arterial south of the bridge and a four-lane expressway to U.S. 41 north of the bridge. The Caloosahatchee Bridge remains four lanes, as would be the proposed Mid-Point Bridge. To the west, Everest Parkway is a four-lane freeway to Del Prado Boulevard, then Everest turns into a four-lane expressway as it is extended west to join the existing Miracle Parkway. As the new expressway turns north toward New Burnt Store Road, it is reduced from four to two lanes. To the east of the Mid-Point Bridge, the Needs Plan converts Colonial Boulevard to a four-lane freeway with a pair of one-way service roads and elevated interchanges at Summerlin Road, U.S. 41, and Metro Parkway. The one-way service roads continue east to the vicinity of Interstate 75, but Colonial becomes a four-lane expressway east of Metro. The Financially Feasible Plan retains the four- lane Metro Bridge, but reduces the capacity of the adjoining corridor to the north. Mid-Point Bridge remains four lanes, but, on the Cape Coral side, the expressway is reduced from four lanes to two lanes at Santa Barbara Boulevard rather than at New Burnt Store Road. To the east of the Mid-Point Bridge, Colonial remains unchanged from the Needs Plan. The Financially Feasible Plan eliminates the Iona Cove Bridge and the eastern half of the Southern Corridor. The southern half of the expressway is shown, but is reduced to two lanes and ends west of Interstate 75. Another important source of data and analysis relating to the Mid- Point Bridge and approaches is a draft environmental impact statement prepared by Lee County for the Mid-Point Bridge and corridor. The Draft EIS considers the proposed Mid-Point Bridge in the context of two alternatives: "no action" and the construction of the Iona Cove Bridge and Southern Corridor. Exhibit 7 of the Draft EIS /10 portrays the Colonial corridor east of the Mid-Point Bridge. Consistent with the MPO Needs Plan's depiction of elevated interchanges at Summerlin, U.S. 41, and Metro Parkway, Exhibit 7 also shows overpasses at McGregor, Fowler, Evans, and the railroad track. By the summer of 1987, Lee County had retained Greiner, Inc. as a consultant to assist in the preparation of the Draft EIS. Cape Coral, which joined Lee County in proposing the project, hired Kimley-Horn & Associates, Inc. to assist in projecting transportation planning impacts west of Del Prado Boulevard. The Coast Guard, which served as the lease agency, approved the final environmental impact statement in September, 1990 (EIS). Greiner retained Wilbur Smith and Associates as a subconsultant to perform traffic modeling for roads east of Del Prado, and Kimley Horn performed modeling for Cape Coral for roads west of Del Prado. Either Griner or Wilbur Smith and Associates prepared Exhibit 5 /11 in the Draft EIS. Exhibit 5 identifies various existing and proposed river crossings, supplies actual 1986 traffic volumes, and projects traffic volumes for 2010 if no action were taken, if the Mid-Point Bridge were constructed, and if the Iona Cove Bridge and Southern Corridor were built. For 2010 projections, Exhibit 5 presumed that the Edison Bridge would be six lanes, Caloosahatchee Bridge would be four lanes, Cape Coral Bridge would be four lanes, and Metro Bridge would be added. For 1986, Exhibit 5 shows the Edison Bridge as handling 19,700 trips daily for a level of service of E, the Caloosahatchee Bridge as handling 45,800 trips daily for a level of service of D, and the Cape Coral Bridge as handling 45,400 trips daily for a level of service F. If no action were taken, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 59,400 and C; Caloosahatchee Bridge 59,500 and E; and Cape Coral Bridge (which was widened after 1986) 65,950 and If the Mid-Point Bridge were built and the Iona Cove Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 53,140 and B; Caloosahatchee Bridge 52,400 and D; Mid-Point Bridge 47,400 and C; and Cape Coral Bridge 41,870 and C. If the Iona Cove Bridge were built and the Mid-Point Bridge were not, Exhibit 5 projects that, by 2010, average daily trips and levels of service will be: Edison Bridge 56,427 and C; Caloosahatchee Bridge 56,250 and D; Cape Coral Bridge 45,740 and D; and Iona Cove Bridge 34,600 and B. Composite Exhibit 4 of the Draft EIS /12 projects average annual daily traffic for over 100 road links /13 mostly on the Ft. Myers side of the river and bounded on the east by Interstate 75 and the south by the Southern Corridor. The projections address alternatives of no-action, the Mid-Point Bridge, and the Iona Cove Bridge. Twenty of the Ft. Myers links most directly affected the addition or deletion of the Mid-Point Bridge yield 537,398 trips under the no-action alternative, 614,280 trips under the Mid-Point Bridge alternative, and 522,425 trips under the Iona Cove Bridge alternative. /14 With the Mid-Point Bridge, the new elevated freeway is projected to receive about one-third and two-thirds more traffic than Colonial presently experiences just west of Metro Parkway and just west of U.S. 41, respectively. With the Mid-Point Bridge, the projected number of trips on these two links are, respectively, 40,900 and 52,700. Just west of Summerlin, the traffic volume on Colonial increases from 6400 to 43,300 trips. Even if the three Colonial links are excluded from the 20 links, the total volume remains greatest under the Mid- Point Bridge and corridor alternative, which is projected to have 477,380 trips. For the remaining 17 links, the no-action alternative generates 469,038 trips and the Iona Cove Bridge and Southern Corridor alternative generates 455,345 trips. Analyzing the same data, Transportation Planner and Engineer Marty Wells, who is an employee of Gorove-Slade, testified on behalf of Ft. Myers that he examined the links identified by the Draft EIS that are in the City limits. These links yield the following volumes under the three alternatives: no action--1.84 million trips; Mid-Point Bridge and corridor-- 2.1 million trips; and Iona Cove Bridge and Southen Corridor-- 1.8 million trips. May 15 Transcript, pages 29 et seq. Using existing data, Mr. Wells also calculated the capacities for these links. Based on the volumes in the preceding paragraph, the overall volume-to-capacity ratios for Ft. Myers' links are as follows for the three alternatives: no action--0.60; Mid-Point Bridge and corridor--0.68; and Iona Cove Bridge and Southern Corridor--0.59. In other words, the Mid-Point Bridge and corridor, if built, would mean that overall traffic would absorb 68% of the capacity of Ft. Myers links most affected by the proposed project. The no-action alternative, on the other hand, would mean that overall traffic would absorb only 60% of the capacity of the same links. Table 415 of the Draft EIS reports other variables among the three alternatives. The first is that total daily river crossings in 2010 are greatest if the Mid-Point Bridge is built. The Mid-Point Bridge alternative generates 196,110 river crossings daily. The Iona Cove Bridge alternative generates 193,020 daily river crossings, and the no-action alternative generates only 186,090 daily river crossings. Under total vehicle hours of operation, Table 4 projects for 2010 the following figures: no-action alternative-- 656,902 hours; Mid-Point Bridge alternative--638,433 hours; and Iona Cove Bridge alternative--660,483 hours. Total vehicle miles are projected as follows: no-action alternative--14,466,600; Mid-Point Bridge alternative--14,437,100; and Iona Cove Bridge alternative--15,013,456. Table 5 of the EIS compares the Mid-Point and Iona Cove alternatives. These data were available by February, 1989. The Mid-Point Bridge and corridor would require 8.8 miles of corridor and 1.5 miles of bridge over the river, reduce vehicle miles traveled from the no-action alternative, by 30,000 daily, bypass wetlands, cost about $170 million, and require the relocation of 100-350 residences, 2' 6-56 businesses, and 1-4 nonprofit operations. The Iona Cove Bridge' and Southern Corridor would require 19.3 miles of corridor and 2.4 miles of bridge over the river, increase vehicle miles traveled from the no-action alternative by 550,000 daily, require the removal of 10-30 acres of wetlands, cost about $266 million, and require the relocation of 317-361 residences and 10 businesses. Table 5 of the EIS concludes that the Mid-Point Bridge would result in "more efficient distribution of traffic across combined bridges," and the Iona Cove Bridge would result in "[s]omewhat less efficient distribution of traffic across combined bridges." Table 5 reports that the "Mid-Point Bridge alternative "[c]omplies with existing land use plan; supports existing business communities," and the Iona Cove Bridge alternative would be "[non-compliant with land use plan; bypasses existing business communities." The Draft EIS concludes that the Iona Cove Bridge alternative is not a "reasonable or feasible" alternative to the Mid-Point Bridge alternative. The, EIS later cautions, however, that the Iona Cove Bridge alternative may have a role in the "very long term" transportation network. After rejecting the Iona Cove Bridge alternative, the Draft EIS reports that the "`No Action' Alternative is the base caste against which the [Mid Point Bridge project) is compared in order to determine the benefits and impacts of the project." The EIS reveals more of the analysis undertaken by the Coast Guard in reaching its latter conclusion that the no- action alternative "is not a reasonable alternative." EIS, page 171. To the extent that any data are implicit in such analysis, the data were available in February 1989. Offering a somewhat `expanded version of a discussion of community impact contained in the Draft EIS, the EIS notes that the State of Florida has designated as an "historic highway" McGregor Boulevard from U.S. 41 to College Parkway, which leads to the Cape Coral Bridge. The EIS acknowledges that Lee County and Ft. Myers have ordinances similar to state law with one key difference. The County ordinance specifically allows construction of an overpass for the Mid-Point Bridge corridor, and the City ordinance specifically prohibits such crossings. The EIS observes that litigation is pending over the controversy concerning the McGregor overpass, which would require the removal of about seven Royal Palms along McGregor according to the EIS. EIS, page 2-41. In a similar vein, the EIS reports that the Colonial corridor would mean, due in large part to the existing Colonial arterial, little community- disruption from "proximity" effects, such as "air and noise pollution, visual impacts, access changes, and other considerations." EIS, page 2-37. The EIS anticipates that 75 acres would be required for additional right-of-way along Colonial Boulevard. Id. at page; 2-38. The EIS considers in some detail the impact of noise pollution. The corridor would result in noise levels in excess of those set for residential use and would affect 26 dwelling units along the Colonial corridor. EIS, page 4-56 and Tables 35 and 36. Sound barriers are not technically feasible for the road surface between the river and McGregor and Summerlin and U.S. 41. EIS, page 4-57. For the remainder, cost barriers are implicitly deemed cost ineffective. The EIS envisions a 288'-330' right-of-way along Colonial Boulevard. The right-of-way would be within about 150' of Rio Vista Way. The corridor would be elevated 22'-24'. Turning to the Cape Coral side of the project, the EIS states: It is envisioned that a direct east-west roadway corridor [on the Cape Coral side of the river would enhance future residential development in the area. EIS, page 4-2. The EIS generally fails to address any need for the development in Cape Coral of commercial, industrial, recreational, or institutional uses. The EIS contains detailed comments from Ft. Myers' counsel with an appendix containing, among other things, comments from Ft. Myers' transportation consultant, Gorove-Slade Associates, Inc. Ft. Myers' counsel submitted these comments to the Coast Guard on September 22, 1989, and the EIS also contains the Coast Guard's undated responses. One suggestion of the Gorove-Slade representative is that reversible lanes on the existing bridges could accommodate the present and future demand. The Gorove-Slade letter suggests that reversible lanes are feasible as long as the directional imbalance on a bridge is "normally 2:1 to 3:1." The Gorove-Slade letter asserts that the imbalance is 67/33, which is of course within the above-stated range. Rejecting the suggestion of reversible lanes, the Coast Guard first erroneously concludes that the 67/33 split is not greater than 2:1. Then the Coast Guard states that the more recent directional imbalance is 58/42. The source of the Coast Guard's data is undisclosed. However, the evidence is abundant that the cross-river traffic is at least 2:1 toward Ft. Myers on weekday mornings and 2:1 toward Cape Coral on weekday afternoons. Even Lee County's witness, Ronald Talone, who was formerly employed in the Lee County Planning Department, testified to a 67/33 split based on data that Lee County had collected./ 16 The Coast Guard response also relies upon "potential shifts in land use patterns [in connection with) land use plans, which were the basis for [the Draft EIS] analysis. The results show an overwhelming need for the Midpoint Bridge Corridor." EIS, page 151. The basis for this statement apparently is the work of Lee County's consultant, who replicated future land uses under the settlement agreement between DCA and Lee County. However, this work was "unofficial" and offered only "initial results." EIS, page 159. The EIS notes that the settlement between Lee County and DCA required the county to reduce densities in outlying areas, such as those served by the Southern Corridor proposed by Ft. Myers. The reductions reportedly were as much as 10,000 percent, "further reducing the travel production/attraction base in those areas." EIS, page 160. The consultant also considered the plans of "cities in the region." EIS, page 146. However, it is unlikely that the consultant considered the plans adopted pursuant to the Act. It is difficult to determine the extent to which any traffic modeling in this case was informed by the future land use designations contained in the plans of Lee County, Cape Coral, and Ft. Myers under the Act. If not done, it is impossible to determine the impact of changed future land uses, which could result in large changes in the distributions of new residents. /17 However, later modeling--presumably incorporating changed future land uses--reportedly did not generate significantly different traffic volumes, at least for the various river crossings. Such later modeling includes that performed by Gorove- Slade for Ft. Myers. Focusing directly on land use planning concerns, the Coast Guard explains one of the reasons why it did not oppose the Mid-Point Bridge proposed by Lee County and Cape Coral: The concept of intentionally prohibiting construction of a bridge to force development on one side of a river is inappropriate and contrary to urban development concepts. In this instance, the no-bridge alternative would not stimulate development, given the interdependent nature of the Lee County economy. EIS, page 151. Lee County did not attempt to tell the city governments to change their Future Land Use elements, as the Fort Myers comments suggest that Cape Coral be instructed to do. * * * Alternative land use planning is not the purview of the transportation planner and is outside the scope of the project to plan this single bridge crossing. Instead, a project such as this is required to accept the adopted land use plans and the projected travel demand based on them. EIS, pages 169 and 171. Alluding to the land-use planning responsibilities placed upon local governments by the Act, the Coast Guard notes: Since the publication of the [Draft EIS], an important event has taken place in regard to this specific issue, rendering [a fatteners'] comment obsolete. The top state land planning agency, the Department of Community Affairs, found the Fort Myers' Comprehensive Plan to be non-compliant with state land planning guidelines because it prohibited the Midpoint Bridge, which is include in the plans of the county, the region, /18 and the City of Cape Coral. Administrative hearing procedures were scheduled to settle the issue but, instead of defending its opposition to the bridge, the city elected to remove the wording obstructing the project from the Comprehensive Plan. Instead, the city agreed to enter binding arbitration on the issue. Id. at page 153. Specifically addressing urban sprawl, the Coast Guard response states: Lee County Future Land Use plans since 1984 have aimed at containing urban sprawl through encouraging compact development patterns. The 1984 Lee Plan was based upon an urban service area concept, which focused future growth on the existing urbanized areas and their environs through a combination of land use categories, density allocations, infrastructure policies, and environmental protection standards. The 1989 Lee Plan continued to stress the importance of existing and permitted urban areas as the focal points for more intensive future growth. The major existing and permitted urban areas in Lee County, in terms of size, are clearly Cape Coral, Fort Myers (including its Urban Reserve area for future growth), and Lehigh Acres. . . . Both the 1984 and 1989 Lee Plans recognized these three major urban areas as givens, where preexisting investments and governmental approvals dictated the need for public services and infrastructure. Together, they constitute a tier of urban areas extending across the northern central part of the county, which is served by the east-west alignment of the Midpoint Bridge Corridor as extended to connect with Lee Boulevard in Lehigh Acres, as shown on the [Financially Feasible Plan]. The logic of connecting the population concentrations of Fort Myers and Cape Coral, the two largest urban areas in the County, with a primary east-west route is clear; with the extension to Lee Boulevard in Lehigh Acres, the logic of the Midpoint Bridge is even stronger. EIS, page 168. Summarizing its findings as to the planning decisions made by Lee County, the EIS concludes: The 1989 Lee Plan builds upon the 1984 Lee Plan. It was adopted as a result of the mandatory process of participation and review. It contains a responsible strategy for managing the large and rapid growth of the county. It sets forth numerous policies for providing the infrastructure necessary to support future populations, for projecting the sensitive natural environment, for paying for future public facilities, for maintaining a reasonable and compact, future land use pattern, and for buildings the necessary transportation network to allow its citizens to move efficiently between their homes, work, recreation, and shopping destinations. It is not a utopian document based upon unsubstantiated opinions, but a practical guide to development based upon the best available data and information. Following the amendments from the Stipulated Agreement, [the 1989 Lee Plan) will be fully consistent with Florida law and an even more effective guide for future development, in terms of reducing sprawl, protecting the environment, maintaining desirable land use patterns, and providing orderly expansion of roads and infrastructure. EIS, pages 169-70. Other Sources of Data and Analysis The Regional Comprehensive Policy Plan of the Southwest Florida Regional Planning Council (Regional Plan) contains land use analysis. Prepared no later than May 21, 1987, when the current version of the Regional Plan was adopted, the land use analysis was in existence at the time of the adoption of the Plan. In its analysis of the regional issue of Balanced and Planned Development under Land Use, the Regional Plan notes: The growth that has occurred [during the recent period of rapid growth that the region has experienced] can also", be considered "imbalanced." This imbalance is of two natures: inadequate development of certain common aspects of urban areas and inadequate distribution of certain types of urban areas. A lack of manufacturing is sometimes considered an indication of the urban inadequacies. More commonly, the problem is described as a lack of suitable jobs within industrial, office, education, and research facilities. The uneven distribution of urban uses is best (but not solely) depicted by an aerial view of the Region's major subdivisions, entire townships devoted to residential uses. Such areas have only limited commercial uses, few of the necessary public use site's, and high demand for transportation improvements for access to other areas. This lack of diversity is the result of private sector planning, namely large development projects, and traditional zoning techniques which discourage the use of planned unit developments by making them special exceptions and by segregating uses into separate zoning categories instead of using a performance zoning approach. Regional Plan, page 16-2. Another source of data and analysis is the Cape Coral comprehensive plan. Both the operative provisions and data and analysis provide a potential source of data and analysis in support of the Ft. Myers Plan. Adopted on February 13, 1989, the Cape Coral plan was in existence when the Ft. Myers plan was adopted. Amended August 27, 1990, the Cape Coral plan amendments were likely available, given noticed and public participation requirements, when Ft. Myers amended, its plan one week earlier. Cape Coral's Transportation Data and Analysis discloses that the city's strategy through 2000 is to direct future growth into the Infill and Transition areas. The Infill Area is located in Cape Coral's southeast quadrant, which has historically served as the growth center from which new growth emanated. The eastern two miles off Everest Parkway run through the Infill Area, dividing its northern third from its southern two-thirds. The Transition Areas is a band of land north and west of the Infill Area. Although Everest Parkway presently ends at the west limit of the Infill Area, the southern end of the Transition Area encompasses about 1 1/3 miles of the proposed Everest Parkway extension. Cape Coral's Transportation Data and Analysis rejects the MPO data concerning population projections for Cape Coral. The differences are significant. Rejecting the MPO projection as "lack[ing] any credibility, and . . . of no value as a planning tool," Cape Coral projects that its population would reach 100,000 persons by 2000, not 2010. Transportation Data and Analysis, pages 6-7. Cape Coral also contests other important socioeconomic data on which the MPO models rely, such as where Cape Coral residents actually reside or will reside. The MPO study "projected" that about 70% of-the population "lives" in the Infill and Transition Areas. The Cape Coral existing land use map provides that at least 90% of the population lives in these two areas. Cape Coral's Transportation Data and Analysis notes that the present location of commercial/office and other employment activities in Cape Coral is generally along the most heavily traveled roads, especially the Del Prado Boulevard, Cape Coral Parkway, and the Downtown Business District. This "strip commercial development" has engendered traffic congestion along these critical arterials. Without its own data or analysis as to employment trends, Cape Coral adopts the MPO data and analysis concerning, employment trends. This includes a projection that total employment within Cape Coral will increase from an estimated 8000 persons in 1980 to over 27,000 persons, presumably by 2000. Also, the ratio of Cape Coral residents to jobs in Cape Coral is expected to decrease from 4.2:1 in 1980 to 3.7:1 in 2000. The data and analysis add: "If the City commercial acreage estimates are realized, however, an even more favorable ratio would result." Transportation Data and Analysis, page 9. In any event, "Employment growth is expected to increase twice as fast as residential growth." Id. at page 8. Cape Coral's Transportation Data and Analysis acknowledges a clear directional flow or modal split of cross- river traffic: Until [the Cape Coral Bridge) is widened to four lanes (scheduled by the County for 1989), mile long traffic queues will continue to exist on the Cape Coral side of the bridge during the morning peak period and on the Fort Myers side during the afternoon peak. Transportation Data and Analysis, page 20. Through 2000, the destination of tries will remain largely outside the City of Cape Coral. Lacking "high intensity employment centers, airports or other facilities that attract County residents [to Cape Coral], the prime reason for travel into Cape Coral by nonresidents is to provide services, such as construction. Transportation Data and Analysis, page B-2. But this factor is relatively insignificant, as the data and analysis predict that, by 2000, there will be twice the number of trips to points outside the city than to points within the city. Transportation Data and Analysis, page 44. In the meantime, however, intensive growth will outstrip the capacity of Cape Coral's internal parkway system, id. at page 49, and Cape Coral's strategy in "road programming has been to the major roads into the two new proposed County Bridges". Id. at page 60. The Cape Coral plan contains operative provisions that, to some extent, address the historic absence of employment and regional shopping opportunities in the city. These provisions generally involve the attempt to deal with vacant, platted land and promote a mixture of uses in the city. /19 The Lee County plan was most recently amended on September 17, 1990. Based on the above mentioned notice and participation requirements, it is likely that all provisions were in existence when Ft. Myers adopted its amendments on August 20, 1990. The Lee County plan contains a number of provisions encouraging the development and redevelopment of mixed uses. /20 Lee County's traffic circulation element policy 21.1.1 adopts the Financially Feasible Plan with five minor changes. /21 Policy 21.1.3 is for the county's current Thoroughfare Alignment Project to reexamine the transportation model used to generate the MPO plans. Concerning the Mid-Point Bridge and associated corridor, the Lee County traffic circulation element states in relevant part: GOAL 24: MAJOR INTRA-COUNTY TRANSPORTATION CORRIDORS. To provide for efficient intra- county vehicular traffic by planning an integrated system of transportation corridors, possibly of limited access design, that connect urban centers within the county. OBJECTIVE 24.1 MID-POINT CORRIDOR. Create a new east-west transportation corridor, possibly of limited access design, across central Lee Counts in order to alleviate existing congestion of traffic crossing the Caloosahatchee River. POLICY 24.1.1: The county will continue the planning, feasibility determination, and environmental impact assessment for the Mid-Point Bridge. POLICY 24.1.2: The construction of this east-west transportation corridor will be coordinated through the Metropolitan Planning Organization to ensure system-wide continuity. POLICY 24.1.3: Due to the public need to provide this critically important corridor so as to solve roadway deficiencies affecting most of Lee County, and due to the admitted impossibility of devising any alignment, which would not generate at least some negative impacts, it is declared as the policy of Lee County that once the best alignment is selected this policy shall preempt any other perceived conflicting portion of the Lee Plan and such conflicts, real or perceived, shall not be construed so as to require or justify blocking the construction of this facility. POLICY 24.1.4: Because of the high priority Lee County placed on the planning and construction of this transportation corridor, permitting efforts shall be initiated by the year 1989, if feasible, and construction shall begin, if possible, by the year 1993. * * * The Lee County intergovernmental coordination element provides, in relevant part: GOAL 28: INTERGOVERNMENTAL COORDINATION. Lee County shall participate in and share the leadership of all necessary and desirable programs in coordinating the transportation planning and improvements of routes within or affecting Lee County. OBJECTIVE 28.1: PLANNING. Lee County will continue to plan cooperatively with its municipalities, surrounding counties, and FDOT. POLICY 28.1.1: The county will participate in the MPO and Regional Planning Council planning processes for system-wide facility needs. POLICY 28.1.2: The County will use informal mediation whenever possible to resolve disputes before other formalized processes are pursued. * * * Various other sources of data and analysis were in existence when the Plan was adopted. As Colonial proceeds east of McGregor, the prevailing and planned land uses are predominantly commercial, and the existing commercial uses are dependent upon direct access to Colonial Boulevard. The addition of an elevated freeway or expressway would tend to reduce business for some of these roadsides commercial uses due to, among other factors, the presence of one-way service roads in place of two-way traffic, less on-site parking, and less visibility from the road. However, the record establishes no more than a temporary reduction in commercial property values. It is unclear whether, in the longer term, commercial uses, especially the older ones along the western part of Colonial, would be impaired by a freeway. The record does not preclude the possibility that the corridor could lead to commercial revitalization, especially at the Summerlin, U.S. 41, and Metro Parkway interchanges. The existing and planned land uses on both sides of McGregor north and south of Colonial are low density residential. The record establishes that the elevated freeway would, through noise and visual impact, have a negative impact upon these and possibly other residential areas. However, the record does not establish the extent of such an impact. The record does not establish that the freeway would impair access between points within the affected area. Presently, motorists, pedestrians, and bicyclists must cross Colonial, which is an at-grade six-lane arterial west of U.S. 41. Accessibility with the Mid-Point Bridge corridor would depend upon a variety of factors, such as the design of the service roads and three interchanges, the sign of the other overpasses, the traffic on the service roads, and the traffic on the north- south roads in the vicinity of the corridor. Provisions of Ft. Myers Plan Traffic Circulation Element (TCE) Objective 1 is "To meet the transportation needs of the incorporated area through a balanced system of roadway, rail, air, boating, public transportation, and bicycle and pedestrian facilities." TCE Objective 2 is, "To maintain or provide adequate road capacity to meet present and anticipated future traffic needs." TCE Policy 2.4 is: "New roadway corridors will be provided when justified by needs where feasible, and when exiting corridors cannot meet the need. TCE Policy 2.6 is: "The City will obtain traffic counts and intersection studies to determine current service levels." Standard 2.6.3 mentions capacity constraints on McGregor Boulevard and all roads in the downtown area; for those, the peak hour, peak season acceptable level of service is "Maintain and improve." The downtown area is limited to the immediate vicinity of the Caloosahatchee and Edison Bridges. TCE Objective 5 is: "To preserve the integrity and quality of residential areas, major activity centers, and recreational and environmental resources." TCE Policy 5.1 is: "Proposed transportation improvements will be coordinated with existing land uses and the Future Land Use Map." TCE Action 5.1.1 is: "Changes to the Future Functional Classification Map (Map F) that would change proposed rights-of-way requirements, will be developed in accord with adjacent land uses as well as bin accord with the City's overall needs." TCE Action 5.1.2, which was amended at least to add the language concerning the Mid-Point Bridge, states: No new transportation corridors or improvements will be permitted which could preclude those indicated on the Major Thoroughfare Map (Map G)--unless, with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. Any proposed amendment to the Thoroughfare Plan must be consistent with all Traffic Circulation policies as well as other Comprehensive Plan Elements. TCE Policy 5.2 is: "Any transportation improvements proposed for McGregor Boulevard shall consider its qualities as a special historic and scenic corridor." Action 5.2.1 provides that, except under certain conditions, there shall be no new street connections, road connections, road intersection, or the widening of any existing, intersections and no overpasses or underpasses, made either with, under, or over McGregor Boulevard or any alteration of the physical dimensions, appearance, or location of this corridor . . . However, new street connections, road connections, road intersections, or widening of any existing intersections and overpasses or underpasses may be made either with, under, or over McGregor Boulevard or alteration of the physical dimensions, appearance, or location of this corridor with respect to the Mid-Point Bridge and elevated limited access expressway system proposed by Lee County and Cape Coral, if the result of the binding conflict resolution process described in the Goals, Policies and Objectives of the Intergovernmental Coordination Element is that the Bridge should be constructed. At least the language following the ellipses is the result of a plan amendment. TCE Policy 5.3 is: "Transportation improvements proposed in or near residential arenas will contain appropriate mitigation measures." TCE Objective 6 is: "To obtain the cooperation and active participation of all responsible governments in the coordinated implementation of the metropolitan transportation plan." TCE Policy 6.1 is: "All proposed major transportation improvements, including all improvements which extend beyond the limits of the City, will be coordinated with the other affected jurisdictions prior to City approval of the improvement." TCE Action 6.1.1 is: "The City will participate in the committees of the Metropolitan Planning Organization to ensure that this policy is met." TCE Policy 6.2 is: "The City will actively participate in the development and review of transportation improvements proposed by other jurisdictions." TCE Action 6.2.1 is: "The City will participate in the County's Planning Technical Advisory Committee to ensure that this policy is met." Intergovernmental Coordination Element (ICE) Goal 2, which, together with its objectives and policy, was added by amendment, states in its entirety: It is the goal of the City of Fort Myers to resolve the conflict with Lee County. and the City of Cape Coral concerning the Mid-point Bridge through ban independent, objective, equitable, efficient and binding process as an alternative to the litigation in Lee County vs. City of Fort Myer, Circuit Court Case No. 88-5598 CA-RWP pending in the 20th Judicial Circuit for Lee County, that will ensure that all relevant factors and concerns are fairly and objectively evaluated. Objective 1. In order to achieve the City's goal of resolving the conflict over the proposed Mid-Point Bridge, it is the objective of the City of Fort Myers to abate the pending litigation between the County and the City in regard to the Mid-Point Bridge and to enter into a binding conflict resolution process that will provide a balanced determination of the need for and appropriateness of the proposed Mid-Point Bridge in terms of the following factors: county-wide transportation needs; the comparative effectiveness and cost benefit of reasonable alternative transportation solutions; social, cultural economic and environmental impacts on the City of Fort Myers and Lee County; and long-term financial feasibility and cost-effectiveness. Policy 1.1 It is the policy of the City of Fort Myers in regard to the conflict over the proposed Mid-Point Bridge to submit the conflict to a conflict resolution process that contains the, following elements: An objective, independent decision maker who has substantive, and/or technical familiarity with land use and transportation issues; A fair and reasonable opportunity for all affected persons including the City of Fort Myers to submit substantive information in regard to the merits of the proposed Mid- Point Bridge; A resolution of the conflict and the merits of the proposed Mid-Point Bridge based on the following principles: the proposed Mid-Point Bridge should not be constructed if it can be reasonably demonstrated that implementation of the comprehensive plans of Lee County, the City of Fort Myers and the City of Cape Coral will result in a shift in land use patterns, transportation management systems, or increased modal splits that will reduce the projected number of rivers crossings so that there is no need for the proposed Mid-Point Bridge; the proposed Mid-Point Bridge should not be constructed if peak hour levels of service on existing and committee river crossings, with or without operational improvements such as reversible lanes, will provide an acceptable level of service; the proposed Mid-Point Bridge should not be constructed if there are reasonable alternatives that have the following characteristics: reduced or equal costs; equal or superior transportation capacity too serve county wide transportation needs; arid reduced social, cultural, economic or environmental impacts on the residents of the City of Fort Myers. For the purposes of this paragraph, reasonable alternatives Shall include, but not be limited to, river crossings at other locations, a county-wide beltway or circumferential road system and non-geometric improvements such as transportation management systems, reversible lanes and the like. 4) Any determination-of fact shall be based on a standard of preponderance of the evidence. The Future Land Use Element (FLUE) Objective 1 is: "Coordinate land development with the public and private provision of community services and facilities, soil suitability, and topography." FLUE Objective 2 is: "Protect distinct functional areas from intrusion and encroachment of incompatible uses." FLUE Objective 3 is: "Protect significant natural and historic resources from intrusion and encroachment of incompatible uses." FLUE Objective 4 is: "Ensure a balanced distribution and allocation of the various land uses in newly developing areas." FLUE Objective 5 is: "Revitalize declining areas through rehabilitation, redevelopment, and infill strategies as appropriate." Map C, which accompanies the FLUE, designates the following corridors as part of the "corridor improvement strategy": U.S. 41 on both sides of Colonial, Evans Avenue north of Colonial to the river, Fowler south from the river but only about halfway to Colonial, and three east-west routes including Palm Beach Boulevard, which runs along the river, from Interstate 75 to the proposed landfall of the Metro Bridge. Map C designates the following corridors as part of the "corridor conscious" development strategy. Less in need of redevelopment than those named in the preceding paragraph, the corridor conscious corridors include Colonial Boulevard, Winkler Avenue, Summerlin Road south of Colonial Boulevard, Metro Parkway north and south of Colonial and in the vicinity of the Metro Bridge, and Palmetto, Marsh and Ortiz Avenues on both sides of Colonial. FLUE Policy 5.2 is for the central business district to be "redeveloped as the pre-eminent regional center." Provisions of Regional Plan Goal 19, Regional Issue B, of the Regional Plan concerns transportation and growth management. Policy 1 is: All regional transportation systems should be designed, upgraded or maintained to enable roadways to operate at, or above, a service level acceptable to the agency with land use authority, with operational maintenance responsibility, and with the affected surrounding local government, when such standards incorporate the minimum standards set by the agency having operational, and maintenance responsibility for that public facility, unless designated a special transportation area by those agencies and governments. Policy 3.d. is that transportation improvements are to be "related to seasonal and area needs in order to minimize disruption of the existing road network during periods of highest use." Policy 6 is: "Transportation plans should preserve, to the greatest extent possible, the integrity of residential areas." Policy 9 is: `"Transportation investments should be directed in such a way so that they contribute to efficient urban development." Goal 20, Regional Issue A, of the Regional Plan addresses intergovernmental coordination. The policies suggest the improvement of intergovernmental coordination through the use of interlocal agreements, technical assistance, and solicitation of review and comments. Regional Issue D speaks in stronger terms, but only requires, by 1996, that "each jurisdiction will have enacted the appropriate administrative arrangement to ensure coordination occurs." Pursuant to this Issue, Policy D states: "Mediation of jurisdictional disputes should be pursued by local governments as a first alternative to judicial action." Goal 16 of the Regional Plan concerns land uses. Regional Issue A relates to balanced and planned development. The first policy is: "The plans of all jurisdictions should promote balanced and planned development." Policy 3.e. suggests that comprehensive plans "ensure existing urban areas are protected from the adverse impacts of future growth." Policy 3.i. suggests that plans "provide for effective intergovernmental coordination methods for siting public and private locally unpopular land uses." Policy 3.1. suggests that plans "provide for new central business districts, as needed by urban growth." Policy 9 states: Comprehensive plans and land development regulations should provide incentives to develop and redevelop land downtown including allowing mixed uses, higher densities, shared parking, and improved vehicular access. Regional Issue C, which concerns the problem of already-platted, vacant lands in the region, contains Policy 3, which states: "Additional urban uses and protection of threatened resources within existing platted areas should be pursed through reassembly or other techniques." Policy 8 adds: "Each local government should provide alternatives to traditional development of platted lands." The Regional Plan does not recommend the construction of the Mid- Point Bridge. Map IV-10 of the volume entitled, "Description of the Region," identifies the bridge and corridor as a regional roadway "not yet constructed." Neither the map nor the surrounding text suggests that the Regional Planning Council has determined that the bridge and corridor should be built. /22 Ultimate Findings of Fact Sorting Data and Analysis TCE Policies 5.1, 5.2, and 5.3, and the implementing actions thereunder, prohibit the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. Lee County is unwilling to agree to the conditions set forth in ICE Goal 2. The refusal is justified because, for reasons set forth below, the offer to arbitrate contains an unreasonable condition. The Plan's treatment of the Mid-Point Bridge and corridor can be characterized as an intentional omission of these improvements from any road network for the city, and the Plan's offer to arbitrate, in effect, leaves the resolution of the Mid-Point Bridge dispute to the courts or voters. However, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the omission of the Mid-Point Bridge and corridor from the Plan is not supported by data and analysis. The data and analysis contained in the 1989 Data and Analysis and 1990 Data and Analysis are sparse in terms of support for the omission or inclusion of the bridge and corridor. Ft. Myers failed to incorporate into its data and analysis, verbatim or by reference, the best "available existing data, which were those generated by Lee County bin preparing the EIS, especially Composite Exhibit 4 of the EIS. However, the 1989 Data and Analysis and 1990 Data and Analysis contain analysis in support of the omission of the Mid-Point Bridge and corridor. The analysis consists mostly of consideration of the effect of the proposed project on various provisions of the Plan and the conclusion that the project would be inconsistent with these provisions. The Ft. Myers' planning strategy emphasizes more than the preservation of the historic and aesthetic values of McGregor Boulevard and nearby Rio Vista Way. The analysis justifies the omission of the ride and corridor by at least implicitly construing the Plan as part of an urban containment strategy that, if successful, benefits the region by promoting existing, close-in commercial uses and promoting the attractiveness of Ft. Myers as a place to live. This analysis finds some support in the data concerning the noise and visual impact of the corridor upon nearby residential areas. The most important sources of data and analysis in support of the omission of the Mid-Point Bridge and corridor are the Draft EIS and EIS, especially Composite Exhibit 4. Although Ft. Myers was aware of these data, it failed to include and analyze them, in the 1989 Data and Analysis or 1990 Data and Analysis. The most likely explanation for this omission is that the exclusion of the bridge and corridor was a foregone conclusion at the beginning of the planning process, and, until plan litigation became imminent Ft. Myers felt no need to explicate its opposition to the project. However, for reasons set forth in the Conclusions of Law, the sources of data and analysis available to support the plan are not limited to those identified or even actually relied upon by Ft. Myers in the plan-adoption process. The data and analysis contained in the Draft EIS and EIS support the exclusion of the Mid-Point Bridge and corridor because this project would tap, to some degree, latent travel demand and would result, to , a significant extent, in more traffic on Ft. Myers' roads. The corridor would also displace, at least in the short term, viable commercial uses whose proximity to downtown Ft. Myers and nearby residential areas is useful in maintaining a mixture of uses in Ft. Myers. The data and analysis do not, however, address the possibility of renewed commercial development along the corridor. It is therefore impossible to determine if the data and analysis suggesting the possible displacement of existing commercial uses are offset by data and analysis indicative of a possible revitalization of aging commercial uses. In short, data and analysis exist to support a decision by Ft. Myers to omit the bridge and corridor, and data and analysis also exist to support a decision by Ft. Myers to include the bridge and corridor, had it wished to do so. Little, if any, data and analysis exist that comprehensively net the benefits of the Mid-Point Bridge alternative against the benefits of the no-action or Iona Cove Bridge alternative. In large part, the conflict is between transportation and land use strategies whose competing sets of underlying data and analysis have not been evaluated in a process designed to identify the superior data and analysis from an appropriately broad perspective. In such a proceeding, no deference could be given to the planning preference of any individual local government. This is the first shortcoming of the EIS process in which due deference to the prerogative of local governments in local land use planning provided a procedural advantage to the proponents of the project, Lee County and Cape Coral. In any event, the conclusions of the EIS are supported by its data and analysis to the extent that the Coast Guard concludes that the decision of Lee County and Cape Coral to build the bridge is reasonable. The conclusions of the EIS that the other alternatives, especially the no-action, are unreasonable from a regional perspective, if even relevant to the present case involving only Ft. Myers' Plan, are based predominantly upon transportation considerations. These conclusions clearly are not based upon a comprehensive, objective, and informed review of comprehensive land use strategies, of which transportation strategies are a part. To the extent that the EIS concludes that the no-action alternative is an unreasonable land use strategy, such a conclusion is unsupported even by the data and analysis contained in the EIS. To some extent, Lee County and especially Cape Coral, although responsible for preparing nearly all of the relevant data in this case, have not sufficiently focused their data and analysis so as to justify a finding that the Plan's omission of the bridge and corridor is not supported by the data and analysis. The Lee County and Cape Coral data and analysis supporting the Mid-Point Bridge and corridor justify a transportation strategy linking more efficiently the bedroom communities to the east and west with each other and to shopping and jobs. By contrast, the omission of the bridge and corridor is based on more comprehensive land use planning considerations. Data and analysis supporting the exclusion of the Mid-Point Bridge and corridor address an overall land use strategy, to which transportation planning is properly subordinated. To some extent, the differing emphases reflect that Ft. Myers is a more established community than the fast- growing Cape Coral and Lee County. To some extent, the increased emphasis upon overall land use planning by Ft. Myers, as opposed to the focus upon transportation planning by Cape Coral in particular, may reflect varying planning philosophies. Cape Coral has suffered from the lack of an effective land use strategy to overcome the burdens of urban sprawl, which has engendered a monolithic land use dominated by low-density residential. The Cape Coral plan and data and analysis point to some improvement dealing with this problem. But to meet the burden of showing that the Ft. Myers strategy, which excludes the bridge and corridor, is supported by data and analysis, Cape Coral must offer data and analysis more effectively addressing land use planning issues, rather than merely transportation planning issues. Cape Coral cannot meet its burden in this case by presenting data and analysis supporting a transportation strategy of linking its internal parkways to bridges and building more bridges. Although such data and analysis may support Cape Coral's planning solutions, they are not so compelling as to displace the data and analysis presently supporting Ft. Myers' land use strategy of preserving a viable mixture of uses. The support for Ft. Myers' land use strategy excluding the Mid-Point Bridge and corridor is not overwhelming in terms of data and analysis. The increased traffic on city roads, noise pollution, and the visual impact support the decision. Other factors, such as impaired physical accessibility, commercial decline, and the extent of the negative impact upon residential integrity, do not so clearly support the decision. Even if present conditions clearly were to support the decision to exclude the bridge and corridor, changing conditions could later deprive Ft. Myers' decision of support from the data and analysis. New developments, such as Omni Park, could leave Colonial and nearby collectors, as well as McGregor, choked in traffic during nonpeak season, nonpeak hours. The decline of commercial uses along the western part of Colonial may in time require revitalization through redevelopment If so, imaginative planning solutions may :,"identify corridor-connected uses whose scale and type promote, rather than threaten, Ft. Myers' status as a viable mixed-use center. If sufficiently compelling under then-existing conditions, such solutions may even compel a bridge and corridor. But the data and analysis do not portray these conditions presently. Internal Consistency Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Action 5.2.1 is inconsistent with FLUE Objective 1. TCE Action 5.2.1 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant to the binding arbitration described in ICE Goal 2. FLUE Objective 1 is, to coordinate land development with the adequate provision of facilities, which include roads. FLUE Objective 1 and its policy cluster require adequate levels of service for facilities (presumably for which concurrency is required), the availability of land for public facilities, development patterns that maximize, the use of existing public facilities, and coordination with Lee County and the Florida Department of Transportation regarding tide intensity of land uses and their location relative to collectors and arterials. There is nothing inherently contradictory between TCE Action 5.2.1 and FLUE objective 1. FLUE Objective 1 does not require the construction of the Mid-Point Bridge and corridor, just as it does not require that downtown segments of U.S. 41 or Fowler be widened to 12 lanes if there is sufficient traffic demand. FLUE Objective 1 does not requiring reducing the planning exercise to promising invariably to widening existing roads or building new roads in urban areas upon the identification of traffic congestion. Taking a wider view, FLUE Goal 1 is to ensure the achievement of acceptable "general patterns and relationships (distribution, allocation, and intensity) of all land uses" in the city. The record does not establish that the omission of the Mid-Point Bridge and corridor is inconsistent with FLUE Objective 1. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1, on the one hand, are inconsistent with TCE Objective 6, Policy 6.1, Auction 6.1.1, Policy 6.2, and Action 6.2.1, on the other hand. TCE Objective 5, Policy 5.1, Actions 5.1.1 and 5.1.2, Policy 5.2, Action 5.2.1, ICE Goal 2, Objective 2, and Policy 1.1 will bet referred to as Modified TCE Objective 5. Modified TCE Objective 5 prohibits the construction of the Mid-Point Bridge and corridor unless this alternative is selected pursuant tot the binding arbitration described in ICE Goal 2. ICE Goal 2, Objective 2, arc Policy 1.1 set the conditions of such arbitration. With one exception, these conditions are reasonable. The goal to obtain a fair, objective, and binding resolution of the bridge dispute outside of court is salutary. The objective is also reasonable, assuming that the reference to the socioeconomic and environmental, impacts on Ft. Myers and Lee County includes Cape Coral. Policy 1.1 establishes specific conditions. The first calls for an objective, disinterested decision-maker with expertise in land use and transportation planning. The second condition ensures that all parties have a chance to be heard. The fourth condition provides that the standard of proof is the preponderance of the evidence. These conditions are obviously reasonable. The substantive guidelines for the decision-maker are set forth in ICE Policy 1.1(3). The first guideline prohibits the bridge if the land use plans of Cape Coral, Ft. Myers, and Lee County can be implemented so as to reduce the number of river crossings by shifting land use patterns, introducing or expanding transportation management systems, or increasing modal splits. The second guideline prohibits the bridge if existing and committed river crossings will provide an acceptable level of service regardless of operational improvements such as reversible lanes. In general, these conditions are reasonable. The effectiveness of transportation management systems and operational improvements, especially reversible lanes, should be considered as relatively inexpensive alternatives to the construction of a new bridge and corridor. Changing land use patterns presumably requires each local government to address through comprehensive planning any deficiencies that it may suffer in terms of a lack of mixed land uses. The guideline does not specify the extent to which a local government must remediate a lack of mixed uses. For example, it might be effective but prohibitively costly for Cape Coral to solve its mixed land use problems by purchasing and reassembling vacant and developed platted land suitable for commercial or industrial development. The reasonableness of the guideline of changing land use patterns depends upon its interpretation. The third guideline, prohibits the construction of the Mid-Point Bridge if "reasonable" alternatives exist at reduced or equal costs, with equal or superior transportation capacity to serve County-wide transportation needs, and with reduced socioeconomic and environmental impacts on Ft. Myers residents. The factors of reduced or equal costs and equal or superior transportation capacity are reasonable and address regional concerns. The guideline focusing on the socioeconomic and environmental impacts of Ft. Myers' residents exclusively undermines the viability of ICE goal 2 and Ft. Myers' putative "offer" to submit to binding arbitration. Just as it is reasonable for Ft. Myers to concern itself exclusively with the socioeconomic and environmental welfare of itself and its residents, so it is reasonable for Lee County and Cape Coral to concern themselves with the socioeconomic and environmental welfare of themselves and their residents. This guideline is unreasonable and effectively relegates the parties to whatever judicial or political solutions that may be available. Notwithstanding the failure of the offer to arbitrate, Modified Objective 5 is not inconsistent with TCE Objective 6 and its policies and actions. The latter provisions do not preclude the judicial option for this longstanding dispute. TCE Objective 6 is to obtain the cooperation of all governmental entities in the implementation of MPO plan. Except for TCE Policy 6.1, the policy and actions under this objective require merely participation in transportation planning processes. The arbitration process described in Modified TCE Objective 5 does not preclude participation in transportation planning processes; Modified TCE objective 5 merely identifies one approach to resolving disputes not resolved by normal transportation planning processes. Policy 6.1 requires the "coordination" of "major transportation improvements" with other affected governmental entities. The simple resolution of this issue is that the policy requires coordination only of projects that Ft. Myers proposes to undertake, not of projects sponsored by other entities that Ft. Myers proposes to ignore or resist. Even if the omission of a project sponsored by others triggers the coordination requirement of Policy 6.1, Modified TCE Objective 5 is not inconsistent with such a requirement. Coordination does not require the successful achievement of a consensus for each transportation project that each local government or regional entity may propose. "Coordinate" means: To place in the same order, class, or rank. To arrange in the proper relative position. To harmonize in an action or effort. American Heritage Dictionary. In this case, Ft. Myers participated in the normal transportation planning processes. Consensus was reached as to a considerable number of road projects, although the Mid-Point Bridge and corridor are extremely large projects in the County. "Coordinate" does not mean "approve," and Ft. Myers is not required by TCE Policy 6.1 to obtain the approval of all other governmental entities for projects proposed by Ft. Myers or to give its approval for projects proposed by any or even all of the others. The facts of this case do not reveal a series of disputes involving numerous proposed road projects. The three local governments have not had systemwide impasse that defeats their ability to design and implement a coordinated transportation network. Although the Mid-Point project is of considerable magnitude, the Major Thoroughfare Plan--2010 does not prevent the transportation plans of Lee County and Cape Coral from working. The size of a project proposed by a majority of area local governments does not alone compel a lone opponent to capitulate to attain intergovernmental coordination. Neither does the inclusion of the Mid-Point Bridge and corridor in the financially Feasible Plan compel Ft. Myers to accede to the project or risk inconsistency with the intergovernmental coordination provisions of its Plan. The MPO's data and analysis support its adoption of the Mid-Point Bridge and corridor. But the purpose of the MPO is not to restate the positions of its constituent members and, even if they are supported by data and analysis, thereby compel dissenters to conform their plans to the plans of the majority. The MPO has served a valuable purpose in this case by collecting and disseminating important data and providing the parties with a forum in which to exchange their data and analysis; inform and, if necessary, revise their positions; and, if possible, form a consensus. Like Lee County and Cape Coral, Ft. Myers participated in this process in good faith and thereby engaged in intergovernmental coordination. The unreasonableness of requiring local governments invariably to conform their plans to those of the MPO is illustrated by another factor in this case. The Financially Feasible Plan describes a road network that is financially feasible only if existing available revenues are nearly doubled. The present facts do not support a construction of intergovernmental coordination that mandates strict compliance with a Financially Feasible Plan that requires local governments to raise additional revenues. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 1. TCE Objective 1 is to meet the city's transportation needs through a "balanced system" of road, rail, air, boat, bicycle, pedestrian, and public transportation. For the reasons set forth above, the preclusion of the Mid-Point Bridge and corridor does not preclude the attainment of such a balanced system. Lee County and Cape Coral have failed to prove to the exclusion of fair debate that Modified TCE Objective 5 is inconsistent with TCE Objective 2, Policies 2.4 and 2.6, and Standard 2.6.3. TCE Objective 2 is to "maintain or provide adequate road capacity to meet present and anticipated future needs." Policy 2.4 is to construct new roadway corridors when existing corridors cannot meet the need. Policy 2.6 is for the city to "pursue acceptable level of service standards for its roadways, and coordinate the standards with Lee County and the Florida Department of Transportation." Standard 2.6.3 acknowledges constraints on capacity improvements for McGregor and the central business district and adopts a peak season, peak hour level of service for these roads of "maintain and improve." The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with these provisions. The evidence shows that traffic would actually increase on city roads with the Mid-Point Bridge. Consistency with Regional Plan Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the TCE, in omitting the Mid-Point Bridge and corridor, is not consistent with the Regional Plan. The record fails to establish that the omission of the Mid-Point Bridge and corridor is inconsistent with the Regional Plan considered as a whole. The Plan's treatment of the bridge and corridor is consistent with provisions in the Regional Plan regarding balanced land uses and intergovernmental coordination. Consistency with Other Minimum Criteria For the reasons set forth above, Lee County and Cape Coral have failed to prove by, a preponderance of the evidence that the Plan is not consistent with the criterion of, "to the maximum extent feasible as determined by the local government," analysis compatible with the plans of the Florida Department of Transportation and MPO, as well as the criteria of analysis of projecting levels of service for roads based on the FLUM, the need for new roads, and the adopted level of service standards and plans of the Florida Department of Transportation and MPO. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that TCE Policies 5.1, 5.2, and 5.3, with their implementing actions, in omitting the Mid-Point Bridge and corridor, are not consistent with the criteria of an objective coordinating transportation planning with the metropolitan planning organization and a future traffic circulation map showing the location of arterial and limited access facilities. The issue of coordination has already been addressed. The Major Thoroughfare Plan--2010 is consistent with the latter criterion. Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the FLUE or TCE Action 5.2.1 is not consistent with the criterion of discouraging the proliferation of urban sprawl. The strategy of urban containment is not limited to planning for undeveloped or underdeveloped areas. The maintenance of existing mixed-use centers also assists in deterring urban sprawl. By preserving and enhancing close-in residential areas, some of the pressure toward urban sprawl may be alleviated. The omission of the Mid-Point Bridge and corridor may be viewed as part of a reasonable planning strategy designed to promote the mixture of uses presently characterizing the city. For the reasons set forth above, Lee County and Cape Coral have failed to prove by a preponderance of the evidence that the ICE is not consistent with the criteria of establishing principles and guidelines to be used in attaining coordination with the plans of adjacent municipalities and the county, ensuring coordination in setting level of service standards for public facilities with any governmental entity with operational or maintenance responsibility for such facility, and resolving conflicts with other local governments through the Regional Planning Council's informal mediation process.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a final order determining that the Ft. Myers plan, as amended, is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. ENTERED this 7 day of January, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7 of January, 1992.
The Issue The issue in this case is whether the City of South Daytona Beach plan amendment adopted by Ordinance No. 94-05 on May 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, City of South Daytona Beach (City), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. Petitioner, Resolution Trust Corporation (RTC), is a federal agency now acting as the receiver for Commonwealth Federal Savings & Loan Association, a banking institution taken over by that agency and which owned the property affected by the City's plan amendment. As the owner of property within the City, RTC is an affected person within the meaning of the law and thus has standing to bring this action. The Nature of the Dispute On October 29, 1993, the City received an oral request, which was later confirmed in writing, from Thomas J. Wetherall on behalf of various residential property owners to make an amendment to the City's comprehensive plan to change certain nearby vacant land owned by RTC from a general commercial designation to residential density 1. Under the request, the City would change the use on the eastern part of RTC's 5.6 acre tract of land from commercial to single-family residential use. The specific amendment involves a change in the Future Land Use Map (FLUM). Rather than treating the change as one initiated by a property owner, the City elected to have its city manager file the application on its own behalf. Public hearings were held on the plan amendment on January 19 and February 16, 1994. A transmittal hearing was then conducted by the City on February 22, 1994, and despite objections by RTC, final adoptive action occurred on May 24, 1994, through the enactment of Ordinance No. 94-05. Thereafter, on July 1, 1994, the DCA issued a notice of intent to find the amendment in compliance. On August 5, 1994, RTC filed a petition for an administrative hearing challenging the plan amendment on the ground it was inconsistent with the law in various respects. As clarified at hearing, petitioner contends the amendment (a) violates certain provisions within Section 163.3177, Florida Statutes, (b) is inconsistent with policies 2-1, 2-4, 2-6 and 7-3 of objective 2 of the Future Land Use Element (FLUE) of the plan, and (c) is not supported by adequate data and analysis. The Plan Amendment Petitioner is the owner of a rectangular shaped tract of vacant land more commonly known as the Halifax Center. The land, which totals approximately 5.6 acres, lies between South Ridgewood Avenue (U. S. 1) to the west, Palmetto Avenue to the north, and Palmetto Circle to the east. The property being redesignated (2.6 acres) is the eastern part of the parcel and measures approximately 105 feet deep by 864 feet long. If found to be in compliance, the plan amendment would change the FLUM to redesignate the 2.6 acres of the property from general commercial to residential density 1. This means that instead of having its entire tract of property with a single designated commercial use, RTC would have a split designation, with roughly the eastern half designated as residential. Therefore, the eastern part of the tract could only be subdivided for a few substandard, medium to lower-end, single-family residential homes on lots 105 feet deep. Even then, the amendment does not give consideration to setback and buffer requirements needed between the newly created residential lots and the commercial land directly abutting their rear. Because of this, and the fact that its remaining commercial property has been reduced to a depth of 170 feet, petitioner complains that the value of its property has been substantially reduced, a concern not relevant here, and that the amendment does not conform to the requirements of the law. To the east of the subject property and across Palmetto Circle lie a string of large, single-family lots with upscale homes fronting on the Halifax River. It is this group of property owners who are responsible for the amendment. To the west of the property and across U. S. 1 is found a tract of vacant land designated for professional office land use. To the north of the property is found a combination of multi-family (8-10 units per acre) and general commercial uses. In crafting the amendment, it may be reasonably inferred that the City simply drew an arbitrary line down the middle of RTC's property, leaving what it believed to be was the bare minimum amount of commercial land necessary to comply with the plan. Although the City contended that one of the purposes of the amendment was to further its goal of increasing the amount of single-family housing in the City, it can be reasonably inferred that the true purpose of the amendment was to protect the value of homes located across Palmetto Circle by placing a buffer between their property and the commercial property to the west. Indeed, a City memorandum sent to the City's Land Development Regulation Board on January 12, 1994, stated that the purpose of the change was to "provide a buffer between (the) Ridgewood Avenue commercial zone and existing housing along Palmetto Circle." Is the Plan Amendment in Compliance? The City's comprehensive plan is broken down into elements which conform to the statutory requirements of Chapter 163, Florida Statutes. Under each element are found goals, objectives and policies. As is relevant here, the goal for the FLUE is to "(p)rovide for a well-rounded community as described in the overarching goal." Objective 2 of the FLUE is to: (l)ocate commercial and industrial land uses where transportation access is adequate and conflicts with other land uses can be minimized. Petitioner contends that the plan amendment conflicts with four of the policies which implement objective 2. These are policies 2-1, 2-4, 2-6 and 7-3, which read as follows: 2-1: Locate major commercial and industrial land uses along primary arterials. 2-4: Commercial districts along principal arterials shall be made deep enough to provide options to typical strip development. 2-6: Provide adequate commercial/industrial land for development or redevelopment which will result in a 15 percent increase in taxable value over the next ten years. 7-3: New development shall be required to be compatible with existing development by the arrangement of land use and/or the provision of adequate buffering. As noted earlier, petitioner's tract of land lies between U. S. 1 to the west and Palmetto Circle to the east. Because the western part of petitioner's property lies along Ridgewood Avenue (U.S. 1), a principal arterial road, and will continue to remain general commercial, the amendment is deemed to be consistent with policy 2-1. In other words, that portion of petitioner's property which retains a general commercial designation will be located "along primary arterials," in conformity with policy 2-1, while the remaining portion of the property which fronts on a local road (Palmetto Circle) will be designated residential. The purpose of policy 2-4 is to ensure that commercial districts along principal arterials such as U. S. 1 are deep enough to provide options to typical strip commercial development patterns. This type of development is defined as one or more buildings that are parallel to and facing the primary street with no circulation around the back. Petitioner contends that the plan amendment violates this policy since the remaining portion of its land designated general commercial will only be 170 feet deep in relation to U. S. 1, thereby severely limiting its development options. By reducing the depth of property, as will be done here by the City, the flexibility and creativity for developing petitioner's parcel will be substantially reduced. While respondents' experts opined that the site will be deep enough to accommodate some types of commercial development other than the typical strip pattern, such as freestanding buildings, a restaurant, or even two or three office buildings, the more persuasive evidence shows that anything less than 200 feet in depth eliminates virtually all meaningful development options except a strip shopping center. Since the remaining commercial land along U. S. 1 will not "be made deep enough to provide options to typical strip development," the amendment is inconsistent with policy 2-4. Under policy 2-6, the City's goal is to increase its tax base 15 percent by the year 2000. Since the overall plan went into effect in 1990, the City's tax base has increased approximately 14.5 percent. Petitioner contends that the plan amendment will substantially reduce the value of its property, and the concomitant tax base, and thus the plan amendment is inconsistent with the policy. But even if a reduction in value will occur, there is insufficient evidence to demonstrate that the City's taxable value will not increase by an additional half percent during the next five years. Accordingly, the undersigned finds the amendment to be consistent with policy 2-6. Finally, Policy 7-3 requires that new development be compatible with existing development by the arrangement of land use and/or adequate buffering. Under the proposed plan amendment, the City has created a more integrated residential neighborhood along Palmetto Circle. Also, the redesignated land will serve as a form of buffer between the residential development on the east side of Palmetto Circle and the commercial development on the west side of Palmetto Circle. Although the City asserts that the change in land use should reduce the potential amount of traffic on the local road (Palmetto Circle) that would otherwise increase through commercial development, this assertion is questionable given the fact that no access to the commercial property from Palmetto Circle now exists. Finally, if the amendment becomes operative, the property would be the only single-family residential property on the corridor east of U. S. 1 and west of Palmetto Circle. Collectively, these considerations support a finding that the plan amendment's consistency with policy 7-3 is fairly debatable. Property appraisals are not appropriate data or analysis upon which to base future land use designations. In other words, property values should not control planning decisions. If they did, future land use maps would reflect only high intensity uses, not a balanced community. Except to the limited extent it bears on policy 2-6, evidence presented by petitioner that the plan amendment would decrease the value of the Halifax Center from $610,000.00 to less than $359.000.00 has little, if any, probative value on the other relevant issues. Although petitioner raised other contentions in its initial petition, including one that the plan amendment is not supported by adequate data and analysis, these issues have been deemed to be irrelevant, abandoned, or not supported by sufficient evidence to make a finding in petitioner's favor. In determining whether a plan amendment is in compliance, the DCA looks to consistency with the plan as a whole rather than isolated parts. Therefore, an amendment may be inconsistent with the plan in certain respects, but still be in compliance as a whole unless the inconsistency is determined to be "very important." It may be reasonably inferred from the evidence that the City's policy of discouraging "typical strip development" is an important ingredient in its overall plan. To summarize, the evidence fails to show to the exclusion of fair debate that the plan amendment is inconsistent with policies 2-1, 2-6 and 7-3 of objective 2 of the future land use element of the plan. As to policy 2-4, however, it is found that the City's determination of compliance is not fairly debatable, and thus the amendment is not in compliance in that respect.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the City of South Daytona Beach comprehensive plan amendment to be not in compliance. DONE AND ENTERED this 19th day of April, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5182GM Petitioner: Partially accepted in finding of fact 3. Partially accepted in finding of fact 7. Partially accepted in finding of fact 4. 4-6. Rejected as being a conclusion of law. 7. Partially accepted in finding of fact 9. 8. Partially accepted in finding of fact 8. 9. Partially accepted in finding of fact 7. 10. Partially accepted in finding of fact 16. 11-12. Rejected as being unnecessary. Rejected as being a conclusion of law. Partially accepted in finding of fact 14. Partially accepted in finding of fact Rejected as being irrelevant since not Rejected as being a conclusion of law. Partially accepted in finding of fact 16. raised as an 13. issue. 19. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Rejected as being irrelevant. Partially accepted in finding of fact 17. Rejected as being irrelevant. Respondent (DCA): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4. Partially accepted in findings of fact 4, 6 and 7. 5-6. Partially accepted in finding of fact 10. 7-10. Partially accepted in finding of fact 11. 11. Partially accepted in finding of fact 12. 12-13. Partially accepted in finding of fact 13. 14. Partially accepted in finding of fact 14. 15. Partially accepted in finding of fact 15. 16. Partially accepted in finding of fact 17. Respondent (City): 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5. 8. Covered in preliminary statement. 9. Partially accepted in finding of fact 12. 10-11. Partially accepted in finding of fact 14. 12. Partially accepted in finding of fact 15. 13-14. Rejected as being irrelevant. 15. Partially accepted in finding of fact 16. 16. Covered in preliminary statement. 17-18. Partially accepted in finding of fact 17. 19. Covered in preliminary statement. 20. Partially accepted in finding of fact 16. 21. Partially accepted in finding of fact 12. 22. Partially accepted in finding of fact 14. 23. Partially accepted in finding of fact 15. 24-26. Partially accepted in finding of fact 16. 27-28. Partially accepted in finding of fact 9. 29. Partially accepted in finding of fact 17. 30. Covered in preliminary statement. 31. Partially accepted in finding of fact 19. 32. Partially accepted in finding of fact 17. 33. Partially accepted in finding of fact 19. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Maureen A. Arago, Esquire 1411 Edgewater Drive Suite 203 Orlando, FL 32804 Karen A. Brodeen, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Scott E. Simpson, Esquire 595 West Granada Boulevard Suite A Ormond Beach, FL 32174
The Issue Whether the subject activities of Charles River Laboratories, Inc. (CRL) constitute development within the meaning of Chapter 380, Florida Statutes. Whether the challenged after-the-fact building permit is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan (Comprehensive Plan), and the Monroe County Land Development Regulations (LDRs). Whether the Department of Community Affairs (DCA) is barred by the Doctrine of Equitable Estoppel from challenging the after-the-fact permit issued by Monroe County. Whether the DCA and Curtis Kruer are barred by the Doctrine of Collateral Estoppel from challenging the after-the-fact permit. Whether the action by the DCA is consistent with prior agency practice.
Findings Of Fact THE PARTIES Petitioner is the state land planning agency that administers the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing permits for construction in unincorporated Monroe County. Monroe County issued Permit 95100012145, the permit that is the subject of this appeal, on December 1, 1995. Monroe County did not actively participate at the formal hearing. Charles River Laboratories (CRL) is the applicant for the permit that is the subject of this appeal. Paul Schilling, D.V.M., has been the director of CRL's monkey breeding activities in the Keys since 1983 and signed the application for the permit on behalf of CRL. CRL applied to Monroe County for an after-the-fact building permit for certain work that had been completed on Raccoon Key and Key Lois. The building permit subsequently issued by Monroe County and challenged in this proceedings authorized certain work done on three feeding stations on Raccoon Key and certain work done on a field cage on Key Lois. The field cage is used as a breeding pen for monkeys. Michael C. Coppola signed the application as the general contractor of record. Mr. Coppola did not participate in this proceeding. Intervenor, Curtis Kruer, moved to the Florida Keys in 1977. He resides on Big Pine Key and maintains an office on Summerland Key. Mr. Kruer is a recreational fisherman and a licensed fishing guide and boat captain. He earns a portion of his livelihood as a fishing guide and has, in the past, chartered trips to the shallow waters surrounding Key Lois and Raccoon Key. In recent years, he has stopped fishing these areas because of what he perceives to be diminished fish population caused by degraded water quality and less seagrass extent and quality. Mr. Kruer is also of the opinion that there has been a diminution of the aesthetic character of the islands. Mr. Kruer attributes these negative impacts to CRL's use of the islands. In addition to commercial fishing activities, Mr. Kruer has fished the waters of both islands for recreation. He has reduced his recreational fishing around Key Lois because of the environmental degradation, but he continues to fish for recreation around Raccoon Key. Mr. Kruer has shown that he has been impacted by the activities of CRL on Key Lois and Raccoon Key and that he will be further impacted if those activities continue. He established that he has the requisite standing to intervene in this proceeding. AREA OF CRITICAL STATE CONCERN 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 found at Section 380.0552(7), Florida Statutes. THE MONROE COUNTY COMPREHENSIVE PLAN The Monroe County Comprehensive Plan was adopted by the Monroe County Commission on February 28, 1986, and became effective on September 15, 1986 (Comprehensive Plan). The Comprehensive Plan complies with the Principles for Guiding Development and has been approved by the Petitioner and by the Administration Commission. The Monroe County Comprehensive Plan is implemented by and through its adopted land development regulations (LDRs), codified primarily in Chapter 9.5, Monroe County Code (M.C.C.). Although there have been subsequent amendments to the Comprehensive Plan, those amendments have not been shown to be relevant to this proceeding. CRL's use of these islands predated the adoption of the Comprehensive Plan. Prior to the adoption of the Monroe County Comprehensive Plan, all pertinent permitting agencies, including the Department of Community Affairs, were aware of CRL's activities on these two islands. In the 1980s Dr. Schilling met with representatives of the Department of Community Affairs and with Monroe County staff, including the Monroe County biologist. Dr. Schilling was not told during any of these meetings that the Department of Community Affairs objected to its operations on these two islands. The actual uses CRL was making of these two islands at the time the Comprehensive Plan was adopted was not incorporated into the Comprehensive Plan. In 1984, Jim Murley was employed by the Department of Community Affairs, but not as its director, the position he currently holds. Mr. Murley advised CRL's attorney in 1984 that CRL should insure its continued use of the two islands by writing itself into the comprehensive plan so that there is no conflict with its use of the two islands and the adopted plan. Despite that advice, CRL did not file anything with Monroe County in an effort to write its use of the two islands into the Comprehensive Plan. CRL's use of these islands has not been registered with Monroe County as nonconforming use. Although the Monroe County Code provides for such registration, the evidence established that Monroe County has never undertaken the task of registering nonconforming uses in the county. THE PROPERTY CRL owns Key Lois and Raccoon Key, two offshore islands in the general vicinity of Cudjoe Key and Summerland Key that are within the Florida Keys Area of Critical State Concern. Key Lois, formerly known as Loggerhead Key, is located within the Florida Keys Marine Sanctuary approximately two miles south of Cudjoe Key in Hawk's Channel, which is in the Atlantic Ocean. CRL owns approximately 57 acres on Key Lois above the mean high water line. Raccoon Key is located in the Great White Heron National Wildlife Refuge, which is also within the Florida Keys National Marine Sanctuary and lies approximately three miles north of Cudjoe Key in the Gulf of Mexico. 1/ CRL owns approximately 100 acres on Raccoon Key that is above the mean high water line. CRL breeds reheus monkeys (Macaca mullata) on these two islands and also utilizes a land base on Summerland Key as part of its monkey farming operation. The monkeys that are bred on these two islands are either kept for future breeding or are sold for medical research related to human health. These monkeys are an important resource for medical research. The islands were selected, in part, because it would enable CRL to keep the monkeys isolated from diseases. Monkey breeding is properly considered a commercial activity as opposed to an agricultural activity. CRL began its monkey breeding operations on Key Lois in 1973 and on Raccoon Key in 1976. When they were first introduced to the Keys, the monkeys on both islands were not confined so that each monkey had free-range of its island. As a result of a dispute with the Florida Department of Environmental Regulation (FDER), CRL has agreed to a scheduled reduction of the monkeys' access to both islands. 2/ CRL has agreed to eliminate all free ranging monkeys from Key Lois by the year 2003 and to eliminate all free ranging monkeys from Raccoon Key by the year 2008. The monkey population reached its zenith in 1983 about the time Dr. Schilling assumed his responsibilities as the director of CRL's monkey breeding activities in the Keys. At that time the monkey population on Key Lois was approximately 2,000 and the monkey population on Key Raccoon was approximately 4,000. Since that time there has been a steady decline in the monkey population on both islands and, at the time of the formal hearing, there were approximately 200 monkeys on Key Lois and 1,000 monkeys on Raccoon Key. CRL supplies food and water to the monkeys on a daily basis. THE STRUCTURES The structure at issue on Key Lois is a field cage which was reconstructed from a former holding pen with solid walls to a structure whose sides and ceiling is chain link fencing. In the permit that is at issue in this proceeding, the structure is referred to as Field Cage 7. The structure was formerly referred to as Compound III. A permit for the former holding pen (then referred to as Compound III) was issued by the Army Corps of Engineers (ACOE) on June 22, 1983. Compound III was described by that ACOE permit as follows: "96' x 48' x 12', galvanized sheet metal and chain link fencing with pipes set in concrete. Used for feeding, watering and trapping monkeys. Construction date 1972." The former pen was initially used as a temporary holding pen for newly acquired animals. CRL now uses this structure as a breeding pen. Glen Boe and Associates prepared the sketches that were attached to CRL's permit application to Monroe County. The sketch depicted the basic structure 3/ of Field Cage 7 as being 50 feet in width and 100 feet in length, which is slightly larger than the description on the ACOE permit. Despite those differences, the footprint of the basic structure has not been enlarged. The discrepancy between the ACOE permit and the Boe drawing is an error. In addition to the basic structure, the Boe drawings also depict two small holding pens on either end of the cage. These holding pens are approximately 10' x 15' on one end and 10' x 20' on the other end. These holding pens facilitate the handling of monkeys and were added to the structure, without a permit, in 1988. The floor of Field Cage 7 is sand. The walls and top are supported by galvanized pipe on ten foot centers. These pipes are sunk in concrete footers. The walls, gates, and top of the structure are constructed of the same materials that are used for a typical chain link fence, with galvanized pipe being used for the framework. The solid walls were removed because they were corroding, they were too hot, and they were not keeping the monkeys confined. The chain link material provides a more suitable cage for the monkeys and is less wind resistant than solid walls. During spring high tides, all of Key Lois is typically inundated with water except for a narrow sand berm. In some years, this sand berm has been partially inundated. The three feeding stations on Raccoon Key were designed to be a feeding station that could also be used to trap and confine adult monkeys. Each of these structures is an octagon that is 32 feet in length and 32 feet in width with an open top, gates, and chain link fencing at the bottom of the walls. The wall above the chain link portion is constructed of smooth sheet metal, which prevents the monkeys from climbing over the top of the structure when the doors are closed for the purpose of trapping and confining monkeys. The three feeding cages on Raccoon Key are located in areas that flood during spring tides Both Raccoon Key and Key Lois are vulnerable to hurricanes. These islands would likely be inundated and the structures obliterated if a major hurricane were to strike them. DEVELOPMENT The activity authorized by the building permit is "development" as defined in the Monroe County land development regulations and Chapter 380, Florida Statutes. The building permit is a "development order" within the meaning of Chapter 380, Florida Statutes. See Section 9.5-4(D-8), Monroe County Code, and Section 380.04, Florida Statutes. 4/ CRL argues that these should be construed to be temporary structures and that the building activity associated with those temporary structures does not require a building permit. CRL did not establish that these structures, which are expected to remain in place for over a decade, are exempt from permitting requirements as temporary structures. THE SUBJECT PERMIT CRL has received permits from different permitting agencies for various structures, a marina, and a dock facility. It has also received letters advising that certain activities did not require a permit. There are structures on both islands that were constructed by CRL without the benefit of a building permit. CRL applied for the subject building permit after Curtis Kruer complained to Monroe County staff that there had been building activity on the two islands that had not been permitted. Thereafter, CRL was contacted by Monroe County staff. Dr. Schilling testified that CRL did not believe that a building permit was required since the structures have no roofs and were constructed either in the same footprint as prior structures or were moved at the direction of the FDER. Rather than argue with Monroe County's staff, Dr. Schilling caused an application to be filed that resulted in the challenged building permit. The application, filed October 11, 1995, was for permits for three feeding cages on Raccoon Key, a field cage (Field Cage 7) on Key Lois, and fencing. The permit application does not refer to any agency agreements, identify any other structures on the islands, indicate whether these structures replace or relocate other structures, or identify any habitat types or areas. The permit application contains drawings that reflect that the structures are more than fifty feet from the waters that surround the two islands. The permit that was subsequently issued was for the three feeding cages and the field cage only. The fencing was not permitted. This permit constitutes a development order. The Department of Community Affairs routinely reviews development orders issued in the Florida Keys Area of Critical State Concern. The Department timely filed its appeal of this development order. There was insufficient evidence to establish that the Department's appeal of this development order was inconsistent with prior agency practice. Monroe County typically requires a habitat analysis and a computation reflecting that a project satisfies the open space requirements contained in LDRs. The county biologist usually conducts a site inspection. In this case, Monroe County did not require a habitat analysis, an open space computation, or a site visit by the county biologist because it viewed these structures as reducing a nonconforming use. The staff considered CRL's use of the entire islands to be the nonconforming use that was being reduced. Monroe County has adopted an official "existing conditions map" that should show the vegetation, natural features, and developed land in the county. 5/ If the existing conditions map does not show a habitat designation, the habitat should be determined by field verification. The existing conditions map reflects the habitat for Raccoon Key, but it does not designate the habitat of Key Lois. THE LAND USE DISTRICT Section 9.5-202 establishes the different land use districts for Monroe County 6/ , including a land use designated as "Offshore Island District (OS)", the designation in which Raccoon Key and Key Lois fall. Section 9.5-212 pertains to the purpose of the "Offshore Island District (OS)" designation and provides as follows: The purpose of the OS district is to establish areas that are not connected to U.S. 1 as protected areas, while permitting low intensity residential uses and campground spaces in upland areas that can be served by cisterns, generators and other self-contained facilities. Section 9.5-231 pertains in general to the permitted uses in the different land use districts and provides, in pertinent part, as follows: No structure or land in Monroe County shall hereafter be developed, used or occupied unless expressly authorized in a land use district in this division. . . . Section 9.5-241 lists the uses that are permitted as of right in the Offshore Island District and the uses that are permitted as major conditional uses. The use CRL makes of the two offshore islands involved in this proceeding is not included as an "of right use" or as a "major conditional use." The use CRL makes of these two islands is inconsistent with the OS designation. That use is of greater impact than those contemplated by the OS designation. NONCONFORMING USES AND NONCONFORMING STRUCTURES Prior to the building activity at issue in this proceeding, the Field Cage 7 on Key Lois and the three feeding stations on Raccoon Key were nonconforming structures. 7/ CRL's use of both islands are nonconforming uses. Article V of the LDRs pertains to nonconforming uses. Section 9.5-141 provides, in pertinent part, as follows: The purpose of this article is to regulate and limit the continued existence of uses and structures established prior to the enactment of this chapter that do not conform to the provisions of this chapter. Many nonconformities may continue, but the provisions of this article are designed to curtail substantial investment in noncon- formities and to bring about their eventual elimination in order to preserve the integrity of this chapter. Section 9.5-143 pertains to "nonconforming uses" and provides, in pertinent part, as follows: Authority to Continue: Nonconforming uses of land or structures may continue in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair to permit continuation of registered nonconforming uses may be performed. Extensions: Nonconforming uses shall not be extended. This prohibition shall be construed so as to prevent: Enlargement of nonconforming uses by additions to the structure in which such nonconforming uses are located . . . Relocation: A structure in which a nonconforming use is located may not be moved unless the new use thereafter shall conform to other limitations of the land use district into which it is moved. Change in Use: A nonconforming use shall not be changed to any other use unless the new use conforms to the provisions of the land use district in which it is located. Section 9.5-144 pertains to "nonconforming structures" and provides, in pertinent part, as follows: Authority To Continue: A nonconforming structure devoted to a use permitted in the land use district in which it is located may continue in accordance with the provisions of this section. Ordinary Repair and Maintenance: Normal maintenance and repair of registered nonconforming structures may be performed. Enlargements and Extensions: Noncon- forming structures which are used in a manner conforming to the provisions of this chapter may be enlarged or extended provided that the nonconformity is not further violated. Relocation: A nonconforming structure . . . shall not be moved unless it thereafter shall conform to the regulations of the land use district in which it is located. . . . ACTIVITY WAS NOT REPAIR AND MAINTENANCE The building activity on Raccoon Key involved new construction as opposed to repair and maintenance of existing nonconforming structures. These structures were abandoned or razed and the three new structures with a different design and constructed of different materials in a different footprint were built. The building activity on Key Lois was new construction as opposed to repair and maintenance of an existing nonconforming structure. The former structure, with the exception of the two holding pens that were added in 1988 without a permit, should be considered to be a nonconforming structure. The structure was dismantled to its foundation and a completely new structure was erected. With the exception of the holding pens on either end, the new structure was constructed in the footprint of the previous, nonconforming structure. A building permit from Monroe County was required for the building activity at issue in this proceeding. OPEN SPACE REQUIREMENTS An open space ratio is defined in Section 9.5-4(0-4) as ". the percentage of the total gross area of a parcel that is open space." There are two different open space ratios applicable to the subject permit. One is based on the land use district designation and the other is based on the type habitat on the property. In the instance where a land use district open space ratio and a habitat open space ratio are different, the higher open space ratio applies. The open space ratio requirement for the Offshore Island land use designation is found at Section 9.5-262, M.C.C., and requires that 95 percent of the area be left as open space. Section 9.5-343, M.C.C., contains the open space ratios designed to protect habitat. These open space ratios vary depending on the land type depicted on the Existing Conditions Map, which has been adopted and shows vegetation, natural features, and developed lands. On Raccoon Key, these three designations are depicted on the Existing Conditions Map: "fringing mangroves", "saltmarsh and buttonwood associations", and "speciality farms". Much of the island consists of fringing mangroves. A portion along the eastern shoreline is designated saltmarsh and buttonwood. Five areas in which CRL had placed structures are designated as speciality farms. The southernmost of the feeding stations on Raccoon Key at issue in this proceeding and Field Cage 7 on Key Lois are in fringing mangrove areas, a designation that has an open space requirement of 100 percent. Section 9.5- 345(m), M.C.C., authorizes the construction of piers, docks, utility pilings, and walkways in mangroves. The feeding station and the field cage are not the type structures that can be built in mangroves. The other two feeding stations on Raccoon Key at issue in this proceeding are in areas with 95 percent open space ratios. Dr. Schilling performed an open space analysis by which he concluded that all structures on both islands at issue in this proceeding met the applicable open space requirements. The southernmost feeding station on Raccoon Key and Field Cage 7. Key Lois do not comply with the open space ratio requirement. As to the other structures, the Department of Community Affairs established that Dr. Schilling's analysis was flawed. The evidence failed to establish whether the remaining structures meet the open space requirements. SETBACK REQUIREMENTS Section 9.5-286(b) pertains to shoreline setback requirements and provides as follows: (b) All buildings other than docks, utility pilings, walkways, nonenclosed gazebos and fences and similar structures shall be set back fifty (50) feet from natural water bodies with unaltered shorelines or unlawfully altered shorelines, measured from the landward limit of mangroves, if any, and where mangroves do not exist, from mean high tide line. The Monroe County staff relied on the drawings attached to the application in concluding that the structures comply with setback requirements. These drawings erroneously reflect that Field Cage 7 is more than 50 feet from the water and they do not reflect the landward extent of mangroves. The shoreline on Key Lois is unaltered. Field Cage 7 is obviously within 50' of the shoreline. Field Cage 7 does not comply with the setback requirement found in Section 9.5-286(b), M.C.C. The shoreline on Raccoon Key is unaltered. All three of the feed stations at issue in this proceeding are within 50' of the landward extent of mangroves. These three feed stations do not comply with the setback requirement found in Section 9.5-286(b), M.C.C. ADVERSE ENVIRONMENTAL IMPACTS Despite the food that is provided, the free roaming monkeys have destroyed mangroves on the two islands. In the process of pulling leaves off the mangroves, the monkeys strip bark and break branches from the mangroves. The adverse impact on the mangroves is evident, with dead mangroves being observed in large quantities on both islands. Because Key Lois is a sand key, the absence of mangroves to stabilize its shorelines and to break or absorb wave energy has contributed to erosion. Nutrients from fecal waste and food reach the nearshore waters of both islands. The excessive nutrient loading has contributed to algal blooms and the degradation of those nearshore waters. PRIOR DISPUTES In the 1980s, a dispute developed between CRL and the FDER regarding CRL's activities on these two islands. As a result of that dispute and after several years of negotiation, CRL and the FDER settled their dispute by the execution of two consent orders, one pertaining to Key Lois and the other pertaining to Raccoon Key. The Department of Community Affairs was not a party to that dispute and did not participate in the negotiations. In 1986, CRL filed a civil action in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, against the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to determine the mean high water line for the purposes of delineating the boundary between the lands owned by CRL and the sovereign submerged lands held in trust by the State of Florida. The case number assigned to that proceeding was 86-190-CA-13. That civil action was settled, with the consent agreements between CRL and FDER being incorporated by reference. The Department of Community Affairs was not a party to the suit between CRL and the Board of Trustees and did not participate in the negotiations that resulted in the settlement agreement. 8/ The settlement agreement between CRL and the Board of Trustees was approved by the circuit judge presiding over the civil action and was incorporated by reference in the court's "Consent Final Judgment" entered in Case No. 86-190-CA-13. The court's order provided in part, that the ". . .terms and conditions contained in [the Settlement Agreement] shall govern the parties' conduct and define their respective duties and obligations." By its settlement agreement with the Board of Trustees, CRL agreed to cease its operations on Key Lois and convey title to Key Lois to the State of Florida no later than December 31, 2012. It also agreed to cease its operations on Raccoon Key and quitclaim its ownership of Raccoon Key to the United States for inclusion in the National Wildlife Refuge System no later than December 31, 2024. The consent agreements with the FDER requires CRL to obtain all governmental permits that are necessary to effectuate the terms of the agreements. Those provisions require CRL to obtain any necessary building permits. The settlement agreement between CRL and the Board of Trustees also included the following: ". . . [H]usbandry practices will be changed to reduce the free-ranging population. Nonproductive animals will be intensely culled; selective breeders will be replaced and juveniles will be confined in corral gang-type caging similar to that used by many zoos." The provisions of the consent order between CRL and FDER for Key Lois included the scheduled reduction of the free-range population of animals, to culminate with the elimination of all free-ranging monkeys during the year 2003, and the restoration of the previously damaged mangrove areas on the island. "Holding Compound III," now referred to as Field Cage 7, was identified on a location map. The following comment reflected the future plans for this structure: "This compound will be renovated and turned into the first breeding corral." The provisions of the consent order between CRL and FDER for Raccoon Key also provided for the scheduled reduction of the free-range population of animals , to culminate with the elimination of all free-ranging monkeys during the year 2008, and the restoration of the previously damaged mangrove areas on the island. Five feeding stations were identified on the location map. The following comments reflected the future plans for these structures: "Three 48' x 24' wire structures are used to feed and trap the free ranging animals. FS I will be relocated to near (sic) Compound II. FS V will be dismantled and not replaced. FS II, III and IV will remain in use as long as free range animals are on the island." The structures referred to by the consent order as FS II, FS III, and FS IV are referred to by the development order issued by Monroe County as feeding stations 1, 2, and 3, respectively. These three feeding stations were moved short distances to less environmentally sensitive areas at the direction of FDER, but they remain in the approximate location as they were prior to the adoption of the Comprehensive Plan. The feed stations on Raccoon Key were also redesigned by CRL so that they could be better suited for trapping adult monkeys. In reliance on the consent orders with the FDER and with the settlement with the Board of Trustees, CRL has expended over $197,000 in lease fees and administrative fees to the FDER, spent some $120,000 on refoliation, $90,000 on fencing, $15,000 in feed stations, $125,000 in breeding and holding pens, and $200,000 for water treatment plants, for a total of $747,000. CRL contributes approximately one million dollars per year to the local economy in salaries and purchases. MODIFICATIONS There was no evidence of modifications to the structures that would render them consistent with the Comprehensive Plan. VARIANCES The Monroe County Code makes provision for the issuance of variances in appropriate circumstances. Section 9.5-523, M.C.C., pertains to variances and provides, in pertinent part, as follows: Variances may be granted to the requirements contained in divisions 10, 9, 4, 11, and 14, article VII, pursuant to the standards and procedures set forth in subparagraph (e) of this section, but only if a variance is not otherwise available as part of the conditional use approval process. Variances may be granted from the open space ratio requirements of section 9.5-182 according to the standards and procedures set forth in subsection (e) of this section. However, no variance shall be granted under this section if such variance would result in an open space ratio less than that required by section 9.5-343. * * * An application for a variance shall be submitted to the development review coordinator in a form prescribed by the planning director. The development review coordinator shall schedule a hearing on the variance upon receipt of a completed application. The notice requirements shall be those described in section 9.5-45. All applications for variances under this section shall be heard and decided by the planning commission at a regularly scheduled public hearing. Appeals may be filed by an owner, applicant, adjacent property owner, any aggrieved or adversely affected person as defined by section 163.3215(2), Florida Statutes; or any resident or real property owner may request an appeal of the planning commission's variance decision under the hearing officer appellate article of these regulations [Section 9.5-535, et seq.] by filing the notice required by that article within thirty (30) days of the date of the written variance decision of the planning commission. The planning commission, in granting or denying a variance under this section, shall consider whether the following conditions are met: A showing of good and sufficient cause; Failure to grant the variance would result in exceptional hardship to the applicant; A determination that the granting of the variance will not result in additional threats to public expense which would not otherwise occur; create a nuisance; or cause fraud or victimization of the public; Unique or peculiar circumstances or conditions which apply to the property but which do not apply to other properties in the same land district; The granting of the variance would not confer upon the applicant any special privilege denied by these regulations to other properties in the same land district. The planning commission, in determining whether the foregoing conditions for a variance are met, shall consider the following factors relevant: Physical characteristics of the proposed construction for which a variance is requested; Whether it is possible to use the property without the variance; The increased or decreased danger to life and property if the variance is or is not requested; The importance to the community of the services to be provided if the proposed variance is granted; The compatibility of the proposed variance in light of existing and permitted development in the immediate area; The safety of access to the property for ordinary and emergency vehicles if the variance is or is not granted; The additional or lessened costs of providing governmental services if the variance is or is not granted. The issues pertaining to the issuance of variances for these structures are not identical to the issues litigated in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FLAWAC enter a final order that adopts the findings of fact and the conclusions of law contained herein. It is further recommended that the final order find that the subject permit is inconsistent with the Monroe County Comprehensive Plan and Land Development Regulations. It is further recommended that FLAWAC order that the structures can remain in place until CRL has had a reasonable opportunity to apply to Monroe County for variances for the subject structures and for an amendment to the Monroe County Comprehensive Plan. Should CRL not apply for variances or an amendment to the comprehension plan within a reasonable time established by FLAWAC, or should those applications be denied, the subject structures should be ordered removed. DONE AND ORDERED this 16th day of December, 1996, in Tallahassee, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1996.
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.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Amended Petition to Establish the Palm Coast Park Community Development District (Amended Petition) dated October 13, 2004. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue in this case is whether the subject plan amendment, which changes the future land use designations of parcels owned by each of the Petitioners, is not in compliance for the reasons set forth in the petitions.
Findings Of Fact The Parties Each Petitioner submitted oral or written objections during the review and adoption proceedings culminating in the adoption of the plan amendment at issue. Petitioner Wilson owns about 2.5 acres on the north 1/ side of State Route 524 and east side of Westminster Drive. The Wilson parcel, which is vacant, contains about 300 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. Petitioner Tompkins owns about 3.5 acres on the north side of State Route 524 and west side of Westminster Drive. The Tompkins parcel, which is vacant, contains about 600 feet of frontage on State Route 524 and about 250 feet on Westminster Drive. The Wilson and Tompkins parcels lie between State Route 524 and Cocoa North, which is a large residential subdivision. The existing land uses near the area, which is a growth center in Cocoa, are largely low density residential, and there remains considerable vacant land. There are no commercial uses within the Cocoa North subdivision. The only access to Cocoa North is by way of State Route 524, using Westminster Drive or one of two other roads. The nearest convenience store is about two-thirds of a mile east of Westminster Drive on State Route 524. An I-95 interchange lies about 1.8 miles to the west of Westminster Drive on State Route 524. The nearest property to the west designated Commercial is at the northwest corner of the Tenzel property, which is discussed below. The Commercial parcel on the Tenzel property is about one and one-quarter miles from Westminster Drive. Petitioner Messiah Church owns about 2.3 acres on the east side of U.S. Route 1 about 300 feet north of Michigan Avenue. Petitioner Fountain owns about 0.72 acre on the east side of U.S. 1 about 1200 feet north of the Messiah Church's property. The Messiah Church parcel contains a church. The Fountain parcel is vacant. The Messiah Church and Fountain parcels lie between U.S. Route 1 and a wide strip of existing low density residential uses bordered on the east by the Indian River. The narrower strip containing the Messiah Church and Fountain parcels is located in an underutilized area characterized by a mix of existing commercial uses. For example, a flea market occupies the west side of U.S. Route 1 across from the Messiah Church parcel. Respondent Department of Community Affairs (DCA) is the state land planning agency charged with the responsibility of reviewing plans under Chapter 163, Part II, Florida Statutes. Respondent the City of Cocoa (Cocoa) is a local government required to adopt a revised comprehensive plan under Sections 163.3164(12) and 163.3167, Florida Statutes. History of Cocoa Comprehensive Plan Cocoa adopted its comprehensive plan and transmitted it to DCA on October 4, 1988. DCA issued a notice of intent to find the plan in compliance. A petition was filed challenging the determination of compliance and requesting a hearing under Section 163.3184(9), Florida Statutes. Following an administrative hearing, an order recommended that DCA forward the case to the Administration Commission for entry of a final order determining the plan not to be in compliance. The parties then negotiated a settlement agreement. Pursuant to the agreement, the Administration Commission entered a final order and later an amended final order determining the plan not to be in compliance and identifying the remedial amendments necessary to attain compliance. The designations challenged by Petitioners are part of a set of plan amendments consisting of the remedial amendments ordered by the Administration Commission, amendments required to settle a federal court action in which Cocoa was a defendant, and amendments having nothing to do with either legal proceeding. The challenged designations fall in the last category. The Future Land Use Map (FLUM) in the original plan adopted in 1988 designated as Commercial a strip of land containing the Wilson and Tompkins parcels. The entire strip runs 2700 feet along State Route 524, which is a two lane undivided minor arterial, and extends about 250 feet deep. The Wilson and Tompkins parcels constitute about 40% of the strip and are located at its extreme western end. State Route 524 operates at a level of service C and is projected to remain at this level of service though 1997. The FLUM designated as High Density Residential a strip of land containing the Messiah Church and Fountain parcels. The entire strip, which is generally quite shallow, runs about 3400 feet along U.S. Route 1, which is a four lane divided principal arterial. The Messiah Church and Fountain parcels constitute about 20% of the strip and are located in its northern half. U.S. Route 1 is operating at level of service D and is projected to be operating at level of service E by 1992 and level of service F by 1997. Transmittal and Adoption Process On October 30, 1989, the Planning and Zoning Board, which acts as the local land planning agency (LPA), conducted a public meeting at which it discussed at length new public participation procedures that it was considering adopting. Specific provisions were prepared following the meeting, circulated at the next LPA meeting on November 13, discussed, revised somewhat, and finally adopted. On November 21, 1989, the LPA met to discuss remedial amendments necessary to comply with the requirements of the Amended Final Order of the Administration Commission. Pursuant to a contract with Cocoa, the East Central Florida Regional Planning Council (Regional Planning Council) had prepared a draft set of amendments for review by the LPA. At the beginning of the November 21 meeting, the city attorney stated that the purpose of the meeting was to obtain information and comments from the public. He explained that he and city staff recommended that the LPA defer any formal action on the proposed amendments until their next scheduled meeting on November 27. A representative of the Regional Planning Council was in attendance to assist in the discussion. The proposed amendments drafted by the Regional Planning Council did not change the designations of the parcels owned by any of the Petitioners. In fact, according to the minutes, none of the four parcels nor either of the two strips containing the parcels was even mentioned at the November 21 meeting. Following a very short meeting on November 27 to discuss remedial amendments, the LPA next met on November 30. By this time, the Regional Planning Council had prepared a "final draft" of proposed remedial amendments. Following discussion, the LPA voted to recommend the proposed amendments to City Council. Toward the end of the meeting, the Vice Chairman moved that the strip containing the Messiah Church and Fountain parcels be designated Low Density Residential. The motion passed. At a regular meeting on November 28, the City Council adopted Resolution 89-37, which provides for public participation procedures in connection with the comprehensive planning process. The ordinance calls for advertising of transmittal and adoption hearings in accordance with applicable law, the encouragement of oral or written public comment, and responses from the City Council or its designee. At a special meeting on December 5, the City Council considered the proposed amendments that had been recommended by the LPA. At this meeting, the City Council voted to change the designations for both strips, including all of Petitioners' parcels to Low Density Residential. The vote on the strip containing the Messiah Church and Fountain parcels was unanimous. The vote on the strip containing the Wilson and Tompkins parcels was four to one. Neither DCA nor Cocoa staff originally suggested the new designations for Petitioners' parcels. The new designations were not prompted by any changes to the original data and analysis. It does not appear that the Regional Planning Council, which also assisted in the preparation of the original plan, proposed that the parcels originally be designated Commercial, but it does not appear that the Regional Planning Council made the suggestion for a change in designation. At a special meeting on December 11, the City Council considered the proposed amendments, including the new designations for Petitioners' parcels, as well as the amendments to settle the pending state and federal litigation. No one appeared on behalf of any of the Petitioners to object to the proposed designations. However, in response to the objections of an owner of other property on the south side of State Route 524, whose property was also proposed for redesignation as Low Density Residential, representatives of Cocoa explained that the redesignation on both sides of State Route 524 was based on Cocoa's recent experience with DCA on unrelated plan amendments involving what is known as the Tenzel property. The city attorney indicated that staff was concerned that the objections lodged by DCA to the plan amendments involving the Tenzel property, which Cocoa was at the same time annexing, could possibly be made against the Commercial designation along both sides of State Route 524. The city manager also mentioned his concern that the plan be internally consistent. The Tenzel property consists of 157 acres on the south side of State Route 524 about one mile west of Westminster Drive. Cocoa transmitted the proposed Tenzel amendments to DCA on March 13, 1989. The proposed amendments designated 60 acres, including its entire State Route 524 frontage, Commercial and the remainder Industrial. Cocoa was planning to annex the Tenzel property, which was at the time of the transmittal in unincorporated Brevard County. In its Objections, Recommendations, and Comments (ORC) dated July 6, 1989, DCA objected that, among other things, the proposed designation was inconsistent with Future Land Use Element (FLUE) Policy 1.2, which is to discourage new linear commercial development. Instead, DCA recommended that new commercial uses should be clustered. DCA also complained that the designation was not supported by data and analysis and the portion of the FLUM covering the Tenzel property did not depict natural resources. On September 6, 1989, Cocoa annexed the Tenzel property and amended its plan. The adopted plan amendments designated only 10 acres Commercial and the remaining 147 acres Residential. 2/ The property designated Commercial was limited to only about half of the available frontage and was restricted to the northwest corner, which is farthest from the Tompkins and Wilson parcels and closest to the I-95 interchange at State Route 524 to the west. The adoption package contained considerable data and analysis concerning the newly annexed property. DCA issued its notice of intent to find the plan amendment in compliance on October 25, 1989. Notwithstanding the Tenzel-related concerns expressed at the December 11 hearing of the City Council, an owner of about 2.5 acres of land on Westminster Drive near State Route 524 objected to the redesignation of his land from Commercial to Low Density Residential. He argued that the land was unsuitable for residential uses due to traffic and other factors. In response, the city manager stressed the possibility of conflict with the plan if strip commercial were "proposed." 3/ With one member changing his vote as to the strip containing the Wilson and Tompkins parcels, the City Council voted three to two to transmit to DCA the proposed amendments, including the new Low Density Residential designations for the two strips containing the four parcels of Petitioners. The sole issue concerning the advertisements for the transmittal hearings of December 5 and 11 is their failure to identify the Wilson and Tompkins parcels as the subject of proposed land use changes. The advertisement for the December 11 hearing states in bold, capital letters at the top: "Notice of Change of Land Use and Comprehensive Plan." Following a brief paragraph announcing the time and place, the first item to be discussed is: "Proposal to change the use of land within the areas shown on the map below." Immediately below this sentence is a map of the entire city. Beside the map in one block is the statement: "Landuse changes to the future landuse map." A second block below the first states: "Black shaded areas to low density residential." The shading covers the High Density Residential strip including the parcels owned by the Messiah Church and Fountain, but omits the Commercial strip including the parcels owned by Wilson and Tompkins. The map for the December 11 hearing was published on December 4. The change of designation for the Wilson and Tompkins parcels was first proposed at the City Council hearing the following day. By letter dated March 22, 1990, DCA transmitted its ORC on the proposed plan amendments. The ORC informed Cocoa that DCA had no objections, recommendations, or comments on the transmitted amendments. Following receipt of the ORC, the LPA met on May 2, 1990, to review staff's response. During the meeting, the LPA discussed the Wilson parcel with her attorney, who objected that the Commercial designation would render the property useless due to its shallow depth. The attorney pointed out that a residential designation was impractical at that location; to the east, on the north side of State Road 524, townhouses had remained unsold for a long time. A motion not to change the Commercial designation on the Wilson and Tompkins parcels, while changing the designation for the rest of the strip to Low Density Residential, was seconded and discussed. It failed by a vote of four to three. At this point, the city attorney suggested that condominiums already in the area would be incompatible with Low Density Residential. The discussion acknowledged the protests of surrounding homeowners to the Commercial designation. A motion, seconded, to designate the entire strip north of State Route 524 as High Density Residential failed by a four to three vote. This vote was immediately followed by a motion, seconded, to designate the entire strip north of State Route 524 as Medium Density Residential. This motion passed by a five to two vote. The same attorney also represented the Messiah Church at the LPA meeting. He stated that the church intended to sell the property and the new designation was disadvantageous to a sale. In the ensuing discussion, it was noted that central sewer had yet to reach this site. A motion, seconded, was made to designate the Messiah Church parcel High Density Residential. The motion failed by a five to two vote. A motion, seconded, to designate the entire strip along the east side of U.S. Route 1 Low Density Residential passed unanimously. At the conclusion of the meeting, the LPA voted to adopt the amendments, subject to changes made at the meeting, and send the package to the City Council. The City Council meeting of May 8 was announced by a large display newspaper advertisement, which was published on April 27. The advertisement contained a map shaded to indicate that the designation of the two strips in question was proposed to be changed to Low Density Residential. During the meeting, the city attorney discussed the redesignation of the strip along State Route 524 from Low Density Residential, as it was shown in the transmittal amendments, to Medium Density Residential, as had been recommended by the LPA at its May 2 meeting. An attorney representing Wilson and Tompkins argued in favor of the Commercial designation given the property in the original plan. The city manager responded that the property was reexamined as a result of Cocoa's recent experience with DCA on the Tenzel plan amendments. Trying to avoid the appearance of strip commercial zoning, staff favored the proposed recommendation. The city attorney likewise warned the City Council to consider as a matter of policy the concern of DCA to avoid urban sprawl and strip commercialism. Nearby residents were almost uniformly in favor of a residential designation. Wilson complained that she purchased the property after being told by Cocoa that she could use it for commercial purposes. She also argued that 15 units per acre would allow 30 homes, which would add to the congestion in the area. After everyone had a chance to speak, a motion, seconded, called for designating the Wilson and Tompkins parcels as Commercial with the remainder of the strip designated Medium Density Residential. The motion failed three votes to two. A motion, seconded, to accept the recommendation of the LPA passed three to two. After other parcels were discussed, the city attorney raised the redesignation as Low Density Residential of the High Density Residential strip along the east side of U.S. Route 1. The attorney representing Messiah Church asked that the City Council consider the church property separately because it was for sale and worth more in its present designation as High Density Residential. He argued that buffering provisions of the plan would be violated by a Low Density Residential designation. Concerning his property, Fountain agreed with the attorney's reasoning and informed the City Council that no home had been built along U. S. Route 1 from Sharpes to south Rockledge for over 30 years. Following discussion, during which the Mayor noted that the Regional Planning Council had recommended that the property be designated Low Density Residential, a motion, seconded, to leave the strip High Density Residential failed three votes to two. A motion, seconded, to approve the recommendation of the LPA passed by the same margin. At the conclusion of the meeting, the City Council approved on first reading the ordinance adopting the plan amendments. Following another display newspaper advertisement indicating proposed land use changes for the two strips, the City Council again met on May 22, 1990. A minister of the Messiah Church praised the City Council for its recent decisions and announced that the church had decided that to meet the needs of the community it would minister to persons whose needs were presently unmet, like transients, mentally retarded persons, handicapped persons, and residents of halfway houses. Church officials had decided that such a ministry could be carried out from the present location with the proposed designation, which nonetheless remained an example of bad planning in their opinion. Addressing the strip north of State Route 524, the attorney representing Wilson and Tompkins objected to the absence of representatives from the Regional Planning Council despite the fact that they had been responsible for drafting the plan amendments. The city attorney advised that the Regional Planning Council had originally recommended that these parcels be designated Low Density Residential, but the City Council, as it was then constituted, decided to change the designation to Commercial in the original plan. The city manager again justified the decision as to the Wilson and Tompkins parcels based on DCA's objections to the transmittal amendments for the Tenzel property. After discussion on the State Route 524 strip concluded, the attorney for Messiah Church objected to the proposed redesignation from High Density to Low Density Residential. Again protesting the absence of the Regional Planning Council planners, he asked for an explanation of this action. The city manager responded that staff's concerns involved compatibility with existing uses and recommendations of citizens in the area. The city attorney added that the central sewer lines ended south of the Messiah Church parcel. Various persons spoke on both sides of the issue. After discussion of other plan issues, the City Council adopted Ordinance 15-90, which includes the plan amendments that, among other things, redesignate the Commercial strip containing the Wilson and Tompkins parcels to Medium Density Residential and the High Density Residential strip containing the Messiah Church and Fountain parcels to Low Density Residential. The failure of the published map to depict the four parcels or the two strips undoubtedly accounts for the absence of the Petitioners from the second transmittal hearing. However, the arguments of similarly situated landowners were presented at the hearing. Moreover, five months passed between the transmittal and adoption hearings. Nothing in the record suggests than any Petitioner could have accomplished more in a few days before the second transmittal hearing that he, she, or it accomplished in the several months that passed before the adoption hearings. All Petitioners complain that the inadequacy of explanations received at the hearing for the redesignations deprived them of effective public participation. Generally, they received responses to their demands for explanations. Several reasons emerge from the record for the redesignation of Petitioners' parcels. As to the Wilson and Tompkins parcels, Cocoa staff officials expressed concerned about the appearance of strip commercial designations. This explanation is difficult to justify objectively because the Commercial designations probably could not have been challenged by DCA in the subject plan amendments. DCA's objections to the transmittal plan amendments on the Tenzel property were not relevant to the Commercial designations given these four parcels, especially if taken in isolation from the strips of which they were a part. It is of course possible that, given Cocoa's recent experience in federal and state review of its land use planning efforts, beleaguered staff and local officials chose to exercise an abundance of caution. As to the Messiah Church and Fountain parcels, Cocoa staff and officials expressed concern about the unavailability of central sewer. However, the concern, at least as voiced personally by the Mayor at the May 8 City Council hearing, was not so much for the protection of natural resources as for the protection of nearby homeowners from the expense of tying in to central sewer lines if they were extended through the High Density Residential strip. Transcript of May 8 hearing, pages 48-49. The Mayor's concern points to the most compelling explanation for the new designations for all four parcels. Each designation was driven by political pressure from residents, which, to some extent in this case at least, may be characterized in the more appealing terms of concerns about surrounding land use compatibility. The forces of neighborhood preservation confronted the forces of development and, in this encounter, the former prevailed by a bare majority of the City Council. The evidence fails to establish to the exclusion of fair debate that the above-described facts are not consistent with the applicable public participation criteria. Data and Analysis in Support of Designations Cocoa did not submit new data or analysis when it submitted the adopted plan amendments. However, data and analysis transmitted with the original plan, as well as the Tenzel amendments, bear on the new designations. More pertinent to the Wilson and Tompkins parcels, the data and analysis note: Neighborhood commercial uses of low density and intensity should be located within neighborhoods or central to several residential clusters. Such a locational strategy would produce the beneficial effects of reducing the time and distance to neighborhood commercial, making trips quicker, easier, and more economical. Background Analysis, FLUE, page 1-26. At the same time, the data and analysis predict significant traffic impacts on State Route 524 as the impact of new residential developments is felt. Background Analysis, Traffic Circulation Element, page 2-16. On the other hand, another locational recommendation in the data and analysis is for the central business district, which is south of all four parcels, to serve as "the community focal point providing a mixture of retail and services." Background Analysis, FLUE, page 1-26. Projecting a population increase of nearly 4000 persons from 1986 to 2000, the data and analysis report that there is generally enough land available for residential needs. Background Analysis, Housing Element, p. 3-15. The analysis concludes that County will need about 309 acres for residential development through 2000. Background Analysis, FLUE, page 1-26. Additional data and analysis accompanying the Tenzel plan amendments lower this amount to 130.6 acres, at least as to single family residential. Tenzel Data and Analysis, Part II. However, a corresponding increase in projected population probably should have accompanied the Tenzel plan amendments because they involved an annexation. Although the data and analysis provide little useful information concerning the amount of acreage designated, rather than zoned, residential, there is no evidence on which to base a conclusion that changing the designations of the State Route 524 strip from Commercial to Medium Density Residential and the U.S. Route 1 strip from High Density Residential to Low Density Residential defy the data and analysis regarding the need for residential land. The data and analysis project that 385 acres will need to be devoted to commercial uses by 2000. Background Analysis, FLUE, page 1-26. In 1987, about 276 acres were in commercial use. Table 1-2, Background Analysis, FLUE, page 1-6. Although the data and analysis do not indicate the number of vacant or developed acres designated Commercial under the plan, Tables 1-3 and 1-4 indicate that about 800 acres are zoned commercial. Background Analysis, FLUE, page 1-7 and 1-11. The acreage zoned commercial and acreage designated Commercial are probably about the same. Table 1-4 indicates that 170 acres zoned commercial are vacant and suitable for development. If Cocoa requires another 100+ acres for commercial uses in addition to the 276 acres already in commercial use, the designation of 800+ acres as Commercial is ample to meet this need. Thus, the removal of a Commercial designation from the 15-acre strip, of which the Wilson and Tompkins parcels are a part, does not defy the data and analysis. The fairest conclusion that can be drawn from the data and analysis is that Cocoa suffers no deficiency, in terms of projected needs in the year 2000, in land designated Commercial or in either of the relevant residential categories. Pertinent to the Messiah Church and Fountain parcels, the data and analysis indicate that the City's wastewater treatment facility was to be expanded in November, 1988. Background Analysis, Capital Improvements Element, page 9-11. The project was completed, and the wastewater facility has a considerable reserve capacity. Presently, the Messiah Church and Fountain parcels, and the surrounding area, are served by septic tanks. The data and analysis indicate, however, that the City is committed to a program of gradually extending central sewer services to areas within the city not currently served. Background Analysis, Wastewater Element, page 3-5. More recently, the Tenzel analysis states: "A policy of phasing out septic tanks has been in place in order to protect the environment." Tenzel data and analysis, Section IV, Wastewater. A rough estimate of the cost to extend sewer lines the necessary one- quarter mile to the area of the Messiah Church parcel is $500,000. Although it might be more feasible for the developer of a High Density Residential project to provide the funds to extend sewer lines, the feasibility is not clear given a project on a 2.3 acre parcel in an underutilized part of town. In any event, Cocoa has demonstrated a commitment to expanding the central sewer system, require connections, and finance the expansion by special assessments. The data and analysis would support either designation. The evidence thus does not establish to the exclusion of fair debate that the designations are not supported by the data and analysis. Consistency of Designations with Criteria of Land Use Suitability Analysis, Encouraging Redevelopment of Blighted Areas, and Discouraging Urban Sprawl For the four parcels, the land use suitability analysis accompanying the original plan supports the designations adopted in the plan amendments. This issue has been considered above with respect to the issue involving supporting data and analysis. Given the changes in designations from Commercial and High Density Residential to Medium and Low Density Residential, respectively, no additional land use analysis was required for the reasons set forth in the Conclusions of Law corresponding to the preceding section. The evidence fails to establish to the exclusion of fair debate that the designations are not supported by a land use suitability analysis. For the reasons set forth in the Conclusions of Law corresponding to this section, no findings are necessary to address the issue of the consistency of the plan amendment with the criteria of Chapter 163, Part II, and Chapter 9J- 5 concerning redevelopment of blighted areas and urban sprawl. Findings concerning urban sprawl in the context of internal consistency are in the following section. Although not alleged as a basis for a finding of internal inconsistency, the issue of redevelopment of blighted areas has been considered in the following section as well, for the reasons set forth in the corresponding Conclusions of Law. Consistency of Designations with Plan Provisions Encouraging Redevelopment of Blighted Areas and Discouraging Urban Sprawl FLUE Objective 1.1 is to adopt land development regulations to "discourage the proliferation of urban sprawl." Goal 1 of the Public Facilities Element is to provide public facilities in a manner that "protects investments in existing facilities and promotes orderly, compact urban growth, and discourages urban sprawl." Similarly, Public Facilities Element Objective 4.1.2 is to coordinate the provision of public facilities with the FLUE "to discourage urban sprawl and maximize the use of existing facilities." Other provisions relied upon by Petitioners to show internal inconsistency are Public Facilities Objective 4.2.5 and FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6. Public Facilities Objective 4.2.5 is to adopt land development regulations that prohibit the installation of additional septic tanks within the incorporated city limits will be discouraged except when it is determined that the use of a septic tank system is the most efficient, cost effective and environmentally compatible alternative. [sic] FLUE Policy 1.1.2 Residential Areas--General Paragraphs 1-2 and 5-6 provide that land development regulations shall be based upon the following locational criteria: Provisions of new residential uses shall be adequately balanced with the availability of residential support services including community facilities, shopping, schools, parks and open space, and transportation services. The City will encourage infill development in areas of existing viable housing, provide for redevelopment in blighted areas or areas in transition, and encourage new housing development in appropriate areas where community services exist or are programmed to occur. Residential areas shall be buffered from major transportation arteries and from incompatible non-residential uses. Residential areas should be served by sidewalks and, where practical, bikeways with convenient access to recreation, shopping, and schools. FLUE Policy 1.1.2 Commercial Areas Paragraph 2 4/ provides: New commercial uses shall be discouraged from linear commercial development and shall be encouraged to develop in clusters, with coordinated parking facilities, and with frontage roads where practical. Resulting in most cases from ineffective or no land use planning, urban sprawl is the extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard development pattern in which land uses are not functionally related to each other. Common patterns of the premature land development characteristic of urban sprawl are the ribbon pattern, leapfrog pattern, and concentric circle pattern. In the ribbon pattern, development not functionally or proximately related to other non-urban development in the area extends in ribbons or strips along certain roads and away from urban development. In the leapfrog pattern, development not functionally or proximately related to other non-urban development in the area leaps from urban development so as to leave significant amounts of rural, agricultural, or other undeveloped or sparsely developed land between the existing urban development and the scattered leapfrog development. The concentric circle pattern is similar except that the development not functionally or proximately related to other non-urban development in the area assumes the pattern of concentric circles, such as along rural roads bypassing an urban area, and is characteristically more exclusively low-density residential. Urban sprawl typically interferes with one or more of four general objectives of effective land use planning: 1) promotion of the efficient use of land in the development of new, and maintenance of existing, viable mixed-use communities; 2) protection of natural resources in rural, agricultural, or other undeveloped or sparsely developed areas; 3) protection of agricultural lands and uses in rural, agricultural, or other undeveloped or sparsely developed areas; and 4) promotion of the efficient provision to both urban and non-urban areas of public facilities and services, such as water, sewer, roads, schools, police, fire, drainage, and other infrastructure, whether provided by public or private entities. The long strip of Commercial along State Route 524 suggests the presence of commercial sprawl along a thoroughfare. By removing the Commercial designation, Cocoa eliminates this type of sprawl. On the other hand, with respect to the Wilson and Tompkins parcels, Cocoa North resembles another example of sprawl. The introduction of compatible neighborhood commercial uses would tend to mix the uses with an immediate impact of relieving some traffic on State Route 524, as residents could make small purchases at, say, a convenience store located at State Route 524 and Westminster Drive. However, the solution adopted by Cocoa for the Wilson and Tompkins parcels, although possibly not the only one available under the circumstances, is consistent with the provisions of the plan to discourage urban sprawl. When compared to the prospect of the entire strip remaining designated Commercial, Cocoa's solution represents an improvement in terms of urban containment. The reduction of density for the strip east of U.S. Route 1 has few evident sprawl implications. To the extent this action may focus more dense residential development in the central business district or elsewhere where central sewer is already provided, the new designation serves the objectives to discourage urban sprawl. In any event, the new designation is not inconsistent with the sprawl provisions of the plan. The puzzling septic tank policy is probably intended to read that septic tanks are prohibited except when the use of a septic tank is the most efficient, cost effective, and environmentally compatible solution. The new designation for the strip east of U.S. Route 1 is not inconsistent with this policy. Consequently, the evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with the provisions in the plan to discourage urban sprawl. FLUE Objective 1.3 is to eliminate "[e]xisting conditions of slum and blight . . . by the year of 2000." FLUE 1.1.2 Redevelopment Area Paragraph 1 designates the Redevelopment Area, which is depicted by map and excludes the two strips containing Petitioners' parcels, as an area of slum or blight pursuant to Chapter 163, Part II, Florida Statutes. Paragraph 3 adds that the City shall redevelop the central business district, which is within the Redevelopment Area, as a viable business district consistent with surrounding historic resources, residential neighborhoods, and natural resources. There is no evidence of blight as to the Wilson and Tompkins parcels, notwithstanding the marketing problems experienced in connection with the nearby townhouses. Concerning the Messiah Church and Fountain parcels, a haphazard collection of largely commercial uses, such as a flea market, have accumulated over the years along U.S. Route 1 in the vicinity of the two parcels. The immediate area appears not to be economically vibrant, but no evidence establishes that the area is blighted. Further, no evidence suggests that the area's economic fortunes would be enhanced if the strip were designated High Density Residential, notwithstanding the Messiah Church's intended use of the parcel if it is not given a High Density Residential designation. The evidence fails to establish to the exclusion of fair debate that the designations are inconsistent with plan provisions to encourage the redevelopment of blighted areas. Consistency of Designations with Regional and State Plans Regional Plan Policy 51.12 states: The "infilling" of existing urban areas and the renovation of blighted areas shall be encouraged in areas where existing wastewater transmission and treatment capacity are available for allocation, or funding has been committed for the provision of sufficient capacity. Emphasis should be placed on encouraging development activities within the urban service area boundaries as identified in local government comprehensive plans. Techniques of encouragement include but are not limited to: Provision of public or private facilities and services in strict accordance with adopted growth management objectives and policies . . Providing incentives for restoration or rehabilitation of blighted areas with existing sewer service through various actions such as but not limited to rezoning to other uses or higher densities Strengthening and preserving existing residential areas through the planned provision of public services, zoning and other techniques. Regional Plan Policy 57.7 5/ specifies the "designation of . . . activity centers . . . as a means of planning appropriate and balanced land uses on a scale and at an intensity consistent with the availability of public facilities and services . . Regional Policy Plan 51.10 limits the use of septic tanks in areas where conditions are suitable for installation and effective operation, provided that central sewer system services are not available due to lack of available treatment capacity, accessible facilities, or other considerations . . .. The following minimum criteria and procedures shall be adhered to . . . where regional resources may be adversely affected: * * * 3. The decision to require phasing out of septic tank systems where centralized sewer systems are available should be based solely upon the availability of those centralized systems and not upon any other consideration of ground water hydrology and current performance levels of septic tanks. For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan. Section 187.201(18)(a), Florida Statutes (the State Plan) is for Florida to "protect the substantial investments in public facilities that already exist and . plan for and finance new facilities . . . in a timely, orderly, and efficient manner." Goal 16 of the State Plan is to direct development "to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner." The first three policies under Goal 16 are: Promote state programs, investments, and development and redevelopment activities which encourage efficient development and occur in areas which will have the capacity to service new population and commerce. Develop a system of incentives and disincentives which encourages a separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. Enhance the liveability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. In addition to the above-cited provisions relied upon by Petitioners, Policy 3 of Goal 5 of the State Plan is to increase the supply of safe, affordable, sanitary housing for low- and moderate-income persons by, in part, "recycling older houses and redeveloping residential neighborhoods." For the reasons already discussed, the evidence fails to establish to the exclusion of fair debate that the designations are not consistent with these provisions of the Regional Plan.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order dismissing the petitions of the four Petitioners. ENTERED this 8 day of August, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of August, 1991.
The Issue The issue in this case is whether the comprehensive plan amendment adopted by the City of St. Augustine Beach on April 3, 1995, through enactment of Ordinance Number 95-5 is in compliance pursuant to Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact On April 3, 1995, the City adopted the amendment by Ordinance Number 95-5, and submitted it to the Department for review pursuant to Section 163.3184(7), Florida Statutes. On July 15, 1995, the Department issued a notice of intent to find the amendment in compliance. By August 7, 1995, all Petitioners had timely filed their challenges to the amendment's adoption by the City. On October 3, 1995, Intervenor was granted leave to intervene and its motion to expedite these proceedings was granted. The Department is the state land planning agency charged with responsibility for review of comprehensive plans pursuant to Chapter 163, Part II, Florida Statutes. Petitioners reside in the City of St. Augustine Beach, St. Johns County, Florida. All Petitioners own property adjacent to or within close proximity to the parcel which is the subject of the amendment. The parties stipulate that each Petitioner is an "affected person" as defined by Section 163.3184(1)(a), Florida Statutes, and that each Petitioner presented oral and written objections and comments at the public hearings held on the amendment. The City is a local government required to adopt a comprehensive plan pursuant to Chapter 163, Florida Statutes. The amendment to the City's Future Land Use Map (FLUM) which is the subject of this proceeding involves a parcel of land approximately .11 of an acre in size. Located on the north side of "A" Street which runs between Highway AIA (Beach Boulevard) and the Atlantic Ocean, the parcel adjoins the western boundary of an existing parking lot for a restaurant called the Beachcomber. In the short distance between Highway AIA and the the restaurant are duplexes and apartments, inclusive of a parking lot. There is a residence on the subject parcel at present. The Beachcomber was built before the comprehensive plan's adoption by the City and was designated on the FLUM as commercial in 1993. The amendment would change the designation of the parcel on which the residence is located from Medium Density Residential to Commercial Use, subject to conditions. The purpose for the designation change is to permit Intervenor, owner of the Beachcomber and purchaser of the parcel, to demolish the residence and use the parcel for an additional eight spaces of restaurant parking. The amendment is a small scale amendment pursuant to Section 163.3187, Florida Statutes. It is the position of Petitioners that the amendment is inconsistent with a policy on buffers contained at L.1.3.3, page AB-4 of the City's Comprehensive Plan (Plan). The policy states the following: For future development the City shall include in the land development regulations the require- ment for a 15 foot vegetative buffer between noncompatible uses such as between commercial and residential land uses. The amendment is silent with regard to buffers. The intervenor is required by the amendment to comply with all applicable land development regulations. A proposed site plan of Intervenor reveals buffers of 10 instead of 15 feet, but the Intervenor has not yet sought site plan approval. Petitioners also maintain that the amendment's change in designation of the parcel from medium density residential to commercial property subject to restrictions constitutes an inconsistency with the Plan. Policy L.1.3.5., states "[c]ommercial development shall not be allowed in areas designated as residential on the Future Land Use Map." As established by testimony of the Department's planning expert, Carol Collins, the amendment is a small expansion of "the existing commercial use." The expansion was viewed by Collins as intended to replace a parking area in front of the Beachcomber that was lost through erosion. She opined that "you can make a reasonable case for finding this amendment in compliance." While the amendment may be considered inconsistent with one policy (Policy L.1.3.5.) of the Plan, in the opinion of Collins, the amendment is in compliance with the Plan as a whole. Craig Thompson, certified planner and architect with an established expertise in comprehensive planning, opined at the final hearing that certain aspects of the Plan are furthered by the amendment. Specifically, the amendment supports the goal of encouraging tourism and addressing commercial needs beneficial to residents and tourists alike by providing parking for automobiles of Beachcomber patrons otherwise parked on the street. Further, although the Beachcomber is a grandfathered commercial use in a residential area, the enhanced parking will not be so great as to enlarge the commercial activity at the restaurant. The Plan sets forth a growth management strategy on page L15 which recognizes the potential for future rezoning of parcels from residential to commercial and notes that such rezonings "should be restricted, consolidating areas where possible." As noted by Thompson's testimony, the use of property immediately behind the Beachcomber site for parking is consistent with the Plan's intent that commercial rezonings should be consolidated. The amendment specifically states that the use of the parcel is restricted solely to parking of vehicles "or, if approved by Conditional Use Permit, residential purposes." Although designated as commercial by the amendment, expanded commercial development on the parcel, i.e., an expansion of the restaurant itself, is not authorized or contemplated. Petitioners provided no independent testimony that fears of property devaluation of their nearby residences will be realized as a result of parking activity on the parcel. Other Petitioner concerns of after hours activity in the parking lot should be alleviated by the plans of Intervenor to strictly police the parking area and enforce its use for patron parking only, including closure of the lot when the Beachcomber is not open. Petitioners' claim that the necessity for redesignation of the parcel is mooted in view of the future renourishment of the beach, as contemplated by the U.S. Army Corps of Engineers and documented by a letter dated after adoption of the amendment. However, the contemplation of such future beach renourishment fails to establish that Beachcomber Restaurant parking would be permitted on the renourished beachfront. The Plan, as amended, is in compliance with the regional plan and the state comprehensive plan.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the amendment to be in compliance. DONE and ENTERED in Tallahassee, Florida, this 14th day of December, 1995. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 95-3885GM, 95-3886GM & 95-4027GM. In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioners' Proposed Findings (Petitioners' proposed findings were numbered 13-69.) 13.-14. Accepted. Rejected, unnecessary. Incorporated by reference. Accepted with the addition of "subject to conditions" following the word "commercial" at the end of the 2nd sentence. 18.-21. Rejected as redundant, cumulative and subordinate to HO findings. 22.-23. Incorporated by reference. 24.-29. Rejected, subordinate to HO findings. 30.-33. Incorporated by reference. Rejected, conclusionary, subject to reasonable debate. Rejected, subordinate. Rejected, unnecessary. Incorporated by reference. 38.-39. Rejected, out of context quotation, argumentative, subordinate to HO findings. 40.-42. Rejected, subordinate to HO findings. 43. Adopted. 44.-46. Rejected, not materially dispositive. Rejected, materially, occurred after amendment adoption. Rejected, speculative. Rejected, unnecessary. Rejected, subordinate to HO findings. Incorporated by reference. Rejected, unnecessary. Rejected, credibility. 54.-55. Rejected, relevancy. 56. Incorporated by reference. 57.-58. Rejected, relevancy, subordinate to HO findings. 59. Rejected, conclusion of law. 60.-63. Rejected, relevancy, subordinate to HO findings. 64.-65. Adopted, not verbatim. 66.-67. Rejected, unnecessary. 68.-69. Rejected, argument, subordinate to HO findings. Respondent Department's Proposed Findings (Respondent Department's proposed findings were numbered 5-21.) 5.-12. Adopted, not verbatim. 13.-14. Rejected, relevancy, legal conclusion. 15.-18. Adopted, not verbatim. 19. Rejected, argument, no record citation. 20.-21. Incorporated by reference. Intervenor's Proposed Findings 1.-4. Adopted, not verbatim. 5.-15. Incorporated by reference. Rejected, conclusion. Adopted, not verbatim. Rejected, conclusion. Adopted, not verbatim. Incorporated by reference. 21.-23. Rejected, argument. 24. Adopted, not verbatim. 25.-26. Incorporated by reference. 27.-29. Incorporated by reference. COPIES FURNISHED: Terrell K. Arline, Esquire Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Geoffrey B. Dobson, Esquire 66 Cuna Street, Suite B St. Augustine Beach, FL 32084 Mr. and Mrs. Joseph F. Peacock 6 "A" Street St. Augustine Beach, FL 32084 Mr. and Mrs. Matthew Braly Three First Lane St. Augustine Beach, FL 32084 Mr. and Mrs. Ralph Morris One First Lane St. Augustine Beach, FL 32084 George M. McClure, Esquire O. Box 3504 St. Augustine, FL 32085-3504 James F. Murley, Secretary Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan Stengle, General Counsel Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
Findings Of Fact Parties The Department is the state land planning agency charged with the responsibility of reviewing plans and plan amendments pursuant to Chapter 163, Part II, Florida Statutes, also known as The Local Government Comprehensive Planning and Land Development Regulation Act (Act). The Association is a non-profit Florida Corporation, whose members reside, own property, or conduct business generally within the boundaries of the City of Gainesville and specifically the College Park Neighborhood (College Park). The purpose of the Association is to maintain and improve the quality of life for the residents of College Park. The Association submitted written objections concerning the plan during the review and adoption proceedings. Further, the Association participated more in the comprehensive plan development process than any other part of the City. The City is a local government required to adopt a revised comprehensive plan pursuant to Sections 163.3164(12) and 163.3167, Florida Statutes. City Background The City is located in north central Florida and is the county seat for Alachua County. The City encompasses approximately 20,000 acres, of which approximately 3,600 acres remains vacant. The City is approximately 83%-85% "built out". The development of the remaining 15%-17% vacant and undeveloped land will be limited by constraints of soil types, floodplains and wetlands. There is an acute lack of unimproved land suitable for higher density development, necessitating the major focus of the comprehensive plan's Future Land Use Element (FLUE) upon redevelopment of underdeveloped areas of the City. As of 1991, the City had an estimated population of 92,723, with a projected population in the year 2001 of approximately 97,116. The population is more densely concentrated around the major activity centers which include the Oaks Mall area, the University of Florida (University) campus and the older central part of the City. UNIVERSITY OF FLORIDA The University and the surrounding areas, make up an area described by the plan as the University Oriented Area. The area includes the College Park neighborhood and is one of the biggest activity centers in North Central Florida. The University is the major activity generator within the City limits. The University itself occupies approximately 1,100 acres within the City limits and has an enrollment of approximately 36,000 students. The data and analysis indicates that the students and faculty of the University will play a major role in the future development of the City. The University provides on campus housing for approximately 6,800 single students in dormitories located throughout the campus. The University also provides approximately 987 units for single parent and married students. Total housing provided by the University accounts for only 18-20% of the total student population and future development of on-campus housing will be limited due to the lack of room to build future dormitory facilities. The University is heavily dependent upon "off campus" housing offered by the areas surrounding the campus to meet student housing needs. SPECIAL TRANSPORTATION AREA In order to permit further redevelopment in the University Oriented Area, the City needed a mechanism to permit that further development in view of the potential degrading of level of service standards for traffic circulation. This was particularly so since the City had experienced traffic circulation deficiencies in the University Oriented Area, including College Park. To mitigate the traffic congestion in the vicinity of the University, the City proposed to make these areas a Special Transportation Area (STA). As defined by data and analysis, an STA is a compact geographic area for which the Florida Department of Transportation (FDOT), the Florida Department of Community Affairs and the local government, in consultation with the Regional Planning Council and the Metropolitan Transportation Planning Organization, mutually agree to set specific standards for level of service standards and use and transportation services in order to reach growth management goals. By letter dated August 30, 1991, the FDOT approved an Interim STA for the central city which included the University Oriented Area and College Park. The specific strategies to be developed in the Interim STA are set forth in Traffic Circulation Element (TCE) policy 1.1.7 and read as follows: The following specific strategies and guidelines shall be applied within the Interim STA consistent with the conditions of approval by FDOT: The level of service of all arterial roadways in the Interim STA shall be evaluated using the ART by FDOT, to evaluate such traffic variables as green flow in order to determine the exact condition of each facility. This evaluation shall be done cooperatively with FDOT and the Metropolitan Transportation Planning Organization (MTPO). The City shall coordinate with the MTPO and the FDOT through the Technical Advisory Committee of the MTPO to review strategies for improved level of service such as signalization, adjustments in green dedicated turn lanes, and roundabouts. The City shall limit the development of new drive service or sales to customers while in their automobiles. In the STA, the City shall prohibit additional or expanded drive constrained roadways. Drive facilities on other roads within the STA shall be regulated by special use permit. Criteria shall include minimum separation of 400 feet for such facilities and shall provide minimal interruption of the urban streetscape. COLLEGE PARK NEIGHBORHOOD College Park consists of approximately 145 acres and is located immediately north of the University. College Park is bordered on the south by West University Avenue, on the east by NW 13th Street, on the west by NW 20th Street, and on the north by NW 5th Avenue. College Park also includes a small nine block area immediately northeast of the main boundaries. This additional area is bounded by NW 5th Avenue on the south, NW 15th Street on the west, NW 7th Avenue on the north and NW 13th Street on the east. College Park is one of the oldest residential neighborhoods in the City and has long served as a student residential area offering low to moderate apartment housing and duplex units. The area has a friendly environment for walking and biking. It has a number of crossing points to the campus and close proximity. The width of the street and the amount of on constrain the speed of the traffic to bicycling speed and walking speed so that it is compatible for walking and bicycling. The southern and eastern outermost boundaries of College Park, University Avenue and NW 13th Street respectively, consist of a mixture of commercial and institutional land uses. The western boundary, NW 20th Street, is predominantly fronted by single family residential land uses. The northern border, NW 5th Avenue, consists of single family and duplex dwellings, small apartment buildings and institutional facilities which include several churches and their ancillary buildings. Many of the single family housing units that previously existed in the core of College Park have been converted into multi- unit or garden apartment dwellings to better accommodate demands for student housing. The innermost core of College Park is almost devoid of true single family homes and the single family neighborhood character of the neighborhood has long since evolved into a student community. The large number of streets in College Park are arranged in a traditional grid pattern. Most of the streets in the neighborhood do not have curbs or gutters. COLLEGE PARK DENSITIES In 1970 the City, by ordinance, adopted the Comprehensive Development Plan for the Gainesville Urban Area (1970 Plan). The 1970 Plan had the provision of a framework for logical development decisions, both by the private and public sectors as its primary goal. The 1970 Plan in several provisions addresses the framework for allowable densities in College Park. One of those provisions, Premise C, Principle 7 provides: High density residential development should be encouraged to locate near concentrations of non-residential activities such as the University of Florida and the Central Business District, and adjacent to the major traffic arteries. Another provision, Premise B, Principle 2 provides: mixed dwelling types and housing densities should be permitted in those areas where prior planning will permit such a mixture. Prior to the 1970 Plan, the density in the innermost core of College Park was unlimited. The City Commission, in preparing the 1970 plan, determined that unlimited densities were not appropriate anywhere in the City. The actual numerical densities for College Park were established at that time by zoning regulations with the highest density being 43 units per acre in the innermost core. With the creation of the first Growth Management Act in 1975, local governments were asked to develop comprehensive plans. The City used the opportunity to enhance the existing 1970 plan. The revised plan was entitled "Gainesville Comprehensive Plan 1980 to 2000" (1980 Plan). The 1980 Plan continued to promote higher densities around the University of Florida, including College Park. The 1980 Plan also contained guiding principles which directly assisted the improvement of public facilities in College Park and incorporated recommendations made in a special neighborhood study of College Park conducted in 1975. The recommendations supported a number of zoning categories in a transitional approach, with higher densities near NW 13th Street and West University Avenue and decreasing densities moving into the core of the neighborhood. The actual densities in College Park through the zoning code followed the density transition approach with the core of the neighborhood remaining a maximum of 43 units per acre. The City also, through the revised zoning ordinance, incorporated urban design standards which contained development within the neighborhood. With the 1985 amendment of the Growth Management Act, the creation and adoption of a comprehensive plan by the City became mandatory. The City used this opportunity to improve upon the already existing 1980 Plan. In a further effort to better plan for development in College Park, the City hired renowned urban planner Andres Duany. After surveying the College Park neighborhood and interacting with the residents of the neighborhood, Duany developed the Master Plan for College Park. The Master Plan made many recommendations as to how growth should proceed within College Park. Based on the recommendations of the Master Plan, the City's 1990 comprehensive plan created a land use category for College Park which allowed up to 75 units per acre in the neighborhood core. 1990 PLAN College Park is referenced in several provisions of the 1990 plan and supporting data and analysis. In the second paragraph of the section entitled "Redevelopment" on page 38 of the Future Land Use Data And Analysis Report (accepted in evidence as Petitioner's Exhibit 1.), the following information is provided: Neighborhoods north, east, and south of the University have a large percentage of student residents, but do not accommodate a large enough share of student housing. It is especially desirable to accommodate student housing close to the University to reduce the transportation demand that student housing in outlying areas places on the City and the University. As stated earlier, students at the University of Florida are currently included in the City's population figures. As new students enroll in the University dormitories, existing students move out. These are the students that should continue to be housed near the University. Over time, this will have the effect of reducing peak hour traffic problems and help to revitalize downtown. This would also provide the density that is needed to support the mass transit system. Future Land Use Element Policy 2.4.1 of the 1990 comprehensive plan provides that the City shall prepare special area plans for certain areas of the City. Specifically, the plan in Policy 2.4.2 provides: Special Area plans for the College Park Neighborhood, . . . shall be the first priority. The Future Land Use Element goes on to specifically address development in College Park in Policies 2.4.7, 2.4.8, and 2.4.9., respectively, as follows: The City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood. Residential development in the neighborhood shall be allowed in Type II buildings with 3.5 stories and Type III buildings with 2.5 stories (measured in the number of floors, each not to exceed 13 feet, floor to ceiling). * * * The following criteria shall be used to guide development in the College Park Neighborhood south of N.W. 5th Avenue: Type I buildings which allow retail, office and residential uses within four story buildings shall be allowed in areas designated Mixed Use-Low, Retail uses shall be restricted to the first 2 floors, office uses shall be allowed on all fourth floors and residential shall be allowed on the second through the fourth floor. The Type II buildings which allow office and residential uses within a 3.5 story building shall be allowed in areas designated Mixed Use-Residential, Office uses accessory to the residential use shall be restricted to the first floor. The Type III buildings which allow residential uses within a 2.5 story building shall be allowed in areas designated Residential Medium Density, Residential uses along with home occupations shall be the only uses allowed. * * * By June 1992, The City shall adopt Land Development Regulations and a Special Area Plan for the College Park Neighborhood based on a Master Plan being prepared for the neighborhood. The Special Area Plan shall be adopted by amending the Comprehensive Plan, Land Development Regulations shall establish the overall density and intensity of uses. A review of the Future Land Use Map (FLUM) indicates that the following densities and corresponding intensities are allowed in College Park: Residential Medium development is designated for land located in northern portions bordering 5th avenue at densities ranging from 8-30 units per acre. This designation also applies to predominantly all the areas in the 9 block extension of the northeast corner of College Park. Mixed Use Low Intensity development is designated along the borders of West University Avenue and NW 13th Street at a density of 8- 30 units per acre and a floor area ratio intensity of 1.00-2.00. In most areas this land use category extends into the neighborhood approximately one block. Public facilities development is designated for the one area in College Park located on NW 2nd Avenue between NW 16th Street and NW 17th Street. The maximum lot coverage in this category is 80%. Mixed use residential development is designated for the entire core area of College Park at a density of 75 units per acre with the intensity of office use not to exceed more than 10% of the total residential floor area per development. Residential low development is designated in the northwest portion of College Park at a density of 5.8 to 12 units per acre. Single family development makes up the remainder of the northwest portion of College Park at a density of 0 to 8 units per acre. The several land use designations found within the neighborhood are arranged so that the most intensive development (75 units per acre) is located in the innermost core of the neighborhood and the lesser intense development on the outermost core (8-30 units per acre). This density arrangement ensures that the adjacent neighborhoods with single family character will be buffered from the more intensive University oriented development of College Park. The major change in land use planning proposed by the 1990 plan which relates specifically to College Park is that within the mixed use residential land use category the maximum allowable densities in certain areas increased from 43 units per acre to 75 units per acre. Additionally, an intensity for commercial use of not more than 10% of the total residential floor area for the development was also added, although there is no allocation of solely commercial use in the interior of College Park. The mixed use residential category applies to approximately 36 acres within College Park. Objection to the increase in density and the addition of commercial intensity in this category forms the foundation of Petitioner's challenge. The mixed use residential category definition in FLUE Policy 2.1.1 of the comprehensive plan reads as follows: This residential district provides for a mixture of residential and office uses. Office uses that are complementary to and secondary to the residential character of the district may be allowed. An essential element of the district is orientation of structures to the street and the pedestrian character of the area. Office use as located within this district shall be scaled to serve the immediate neighborhood and pedestrians from surrounding neighborhoods and institutions. Land Development Regulations shall set the district's size; appropriate densities (up to 75 dwelling units per acre); the distribution of uses; appropriate floor area ratios; design criteria; landscaping, pedestrian, mass transit and bicycle access, and streetlighting. Land Development Regulations shall specify the criteria for the siting of public and private schools, places of religious assembly, and community facilities within this category when designated in a manner compatible with the adoption of a special area plan for that area. The intensity of office use cannot exceed more than 10 percent of the total residential floor area per development. As a review of the FLUE data and analysis reveals, land use analysis have been performed to determine the development and redevelopment possibilities within the City limits. Such analysis adequately supports the land use category designations on the FLUM. Specifically the analysis includes traffic circulation, potable water, natural groundwater aquifer recharge, sanitary sewers, stormwater and solid and hazardous waste. A plan policy is not required to contain actual data and analysis. Rather, the plan's Goals, Objectives, and Policies (GOPs) are required to be based on appropriate data and analysis. The Gainesville Urban Area Land Use Model was used to determine land use requirements. The model focused on market demand and existing and projected relationships between demand and developed space. Future land use and development was allocated by the model to nine market areas. College Park is located in Market Area 3. Data and analysis submitted by the City in support of the plan indicate that the City will require approximately 15 acres of commercial/office acreage through the year 2001. The data further indicates that there are 260 vacant acres which the FLUM designates for commercial/office usage. College Park contains approximately 5 vacant acres of land designated commercial/office land use, but no commercial/office use is required or needed in Market Area 3. The lack of projected need for the 5 acres of designated commercial/office land use in College Market would appear to suggest a conclusion that such additional commercial/office land uses should not be permitted in Area 3 and specifically College Park. However, such a conclusion ignores several other criteria which also must be factored into the analysis of the data. Much of the 260 vacant acres that could accommodate commercial/office land uses appears environmentally constrained. Therefore, in actuality many of the 260 acres will not accommodate future commercial/office development. An example of this can be seen in Market Area 5 which has a surplus of 108 vacant acres. Most of this land, however, is located near a hazardous waste Superfund site or near the airport. These areas clearly would not be appropriate for the provision of commercial/office land uses and justify planning for the accommodation of commercial/office land uses within College Park. The overall planning goals of the City include the redevelopment of urban areas and the promotion of infill and compact development. The City has made a policy decision that in order to further the regional and state planning goal of discouraging urban sprawl, commercial office development will be encouraged in College Park rather than outside of the City's central business core. Even with this new land use category, the actual increase in commercial uses will not be significantly different than what currently exists in College Park. It is not proven beyond fair debate that Policy 2.1.1 of the Comprehensive Plan and specifically the inclusion of such commercial/office land uses within College Park lacks the support of appropriate data and analysis. Traffic impacts in College Park that will be caused by the non residential uses allowed by the mixed use land use category have been analyzed by the City. The data and analysis which accompanies the TCE is replete with data concerning traffic circulation and traffic levels of service for the entire City, including College Park. The City readily acknowledges that certain areas of the City, including the University Oriented Area, have traffic circulation problems. In an effort to correct the traffic circulation deficiencies the City with the approval of FDOT created the Central City STA discussed earlier at paragraph 9. With the creation of the STA, the City analyzed the impacts of future development not only within College Park but within the entire University Oriented Community. This action establishes beyond fair debate that the City has analyzed traffic impacts. In terms of parking impacts, allowing the non-residential mixed uses will not increase the parking demands within College Park. There will be no significant increase of commercial land uses in the College Park Area over the commercial uses that already exist, absent compliance with concurrency management system requirements. If facilities are not in place at the time development of additional non-residential uses is desired, development can not proceed. Further, introduction of non-residential uses into College Park will not de-stabilize the neighborhood. Rule 9J- 5.006(4)(c), Florida Administrative Code, specifically encourages local governments to use mixed use categories, provided policies for implementing the mixed uses are included. The plan provides these in FLUE Policies 2.4.7 and 2.4.8., set forth above. These policies, combined with the requirement that any additional office use allowed in the core area of College Park be allowed only in places where people live, will directly prevent de-stabilization. Accordingly, it has not been shown to the exclusion of fair debate that allowing mixed uses in College Park will de- stabilize the neighborhood. The FLUE is required by Rule 9J-5.006(3)(c)7., Florida Administrative Code, to contain policies which implement standards or intensities of use for each land use category. In reviewing FLUE Policy 2.1.1, specifically the mixed use residential land use category, it is clear that the policy establishes a maximum density (75 units per acre) and an intensity (intensity of office use not to exceed 10% of the total residential floor area). The Mixed Use Residential Land Use category provides that the Land Development Regulations (LDRs) will control the actual implementation of such things as appropriate floor area ratios, design criteria and distribution of uses. Such language does not inappropriately defer implementation of the plan to LDRs. The Act requires that local governments adopt appropriate regulations to implement their plans. As required by Section 163.3202(2), Florida Statutes, such regulations "shall contain specific and detailed" provisions necessary to implement the adopted plan. The Plan should, and does, contain general criteria upon which LDRs will be developed. FLUE Policy 2.1.1, specifically the mixed use residential category, contains many general standards which will guide and narrow the focus of future LDRs. The City has recognized that the mixed use category criteria of FLUE Policy 2.1.1 must be implemented carefully. The plan in FLUE Policy 2.1.3 places a moratorium on zoning changes within the mixed land use categories until new LDRs are developed and the comprehensive plan amended to reflect the new LDRs. In the interim, the plan indicates that Chapter 29, City of Gainesville Code of Ordinances, shall regulate development. It is clear that Policy 2.1.1 in combination with other policies in the FLUE taken as a whole does not inappropriately defer implementation to LDRs. Increasing density from 43 to 75 units per acre in College Park will not necessarily result in overcrowding and undue concentrations of population. While the previous maximum of 43 units per acre permitted intense urban development, the increase to 75 units per acre requires compliance with design standards that were previously absent. FLUE Policy 2.4.8 establishes the design standards for use in conjunction with the 75 units per acre density. Notably, criteria in FLUE Policy 2.4.8 were incorporated into the plan at the request of the Association. Those criteria and other policies in the FLUE indicate that no undue concentration of population will be allowed. For example, as noted in Policy 2.4.7, set forth above, "[t]he City shall only allow development and redevelopment within the College Park Neighborhood that is consistent with the scale and character of the neighborhood." It has not been proven to the exclusion of fair debate that Policy 2.1.1 and the FLUE will result in overcrowding of land and undue concentration of population. Densities greater than the 75 units per acre found objectionable in College Park by Petitioner exist in several locations as illustrated by depictions on the FLUM of other neighborhoods surrounding the University which currently have densities upwards of 100 units per acre. As discussed earlier, the City is 83%-85% buildout and development on much of the remaining undeveloped land will be constrained since the land that can be developed will only accommodate low density development. To accommodate City wide future growth, the data and analysis indicates that redevelopment of already existing underdeveloped areas is necessary. Further, redevelopment and infill of areas is required to discourage urban sprawl. The data and analysis indicates that College Park is one of the few remaining underdeveloped areas where redevelopment can occur. As a result, the higher densities proposed for College Park appear justified. Just as allowing mixed uses in College Park will not result in de- stabilization, the same is true of the proposed higher densities. Although the higher density levels would, if realized, exceed the projected population for College Park, planning for this area of the City must be combined within the overall planning decisions of the City as a whole. The data and analysis clearly provides that the City has limited areas which can accommodate future high density development. The population projections for the City indicate an increase in population of approximately 10,000 people over the next 10 years. This population increase will include University students. Sound planning demands that the City not rely on the County to bear the burden of housing this future population increase and thereby promote even more urban sprawl outside of the City with further traffic problems and demands for additional services such as mass transit, police, and fire protection. Also, the higher densities in College Park are in part an effort to provide developers with an incentive to develop this area rather than the outlying urban areas. This effort is consistent with the conclusions found in the FLUE data and analysis that the FLUE must accommodate high densities close to campus. The overall impact of the increased density will be less urban sprawl, and a more efficient use of existing infrastructure. Such sound planning decisions do not show to the exclusion of fair debate that the FLUE inappropriately overallocated or that the increase in density will de-stabilize College Park. It has been alleged that FLUE Objective 2.4 and Policies 2.4.3 and 2.4.4 are not supported by data and analysis which substantiate the need for redevelopment of College Park. FLUE Objective 2.4 provides: Redevelopment shall be encouraged to promote urban infill, improve the condition of blighted areas, to reduce urban sprawl and foster compact development patterns. Policy 2.4.3 provides: Before June 1992, the City shall adopt a special area plan for the College Park neighborhood to identify the appropriate uses and intensity of uses and to provide urban design guidelines for development in the area. In the preparation of the plan the City shall consider recommendations made by the College Park Neighborhood Plan prepared by Wallace, Todd and Roberts. Policy 2.4.4 provides: The City's Future Land use Plan shall accommodate increases in student enrollment at the University of Florida and the relocation of students from the urban fringe by designating appropriate areas for high density residential development and/or appropriate mixed use development within one and half mile of the University of Florida and J. Hillis Miller Medical Center. As previously noted, the FLUE contains data and analysis which supports the allowance of mixed uses at a density of 75 units per acre within College Park. The FLUE data and analysis also justifies the City's policy decision to increase the potential for redevelopment and infill development within College Park. Housing Element (HE) data and analysis further indicates the amount of dilapidated and substandard housing conditions within College Park. As indicated by HE Map 3, the area which includes College Park contains between 16% and 30% substandard housing units. As HE Appendix C Tables 46 and 47 clearly indicate, College Park contains approximately 1,342 housing units. Of these units 23.10% are substandard or dilapidated. Based on these figures, the FLUE and HE data and analysis indicates that College Park is one of the areas in the City which should be redeveloped. It has not been shown to the exclusion of fair debate that the challenged plan provisions are not supported by data and analysis or that redevelopment is not appropriate for College Park. FLUE Policy 2.1.1 is consistent with Rule 9J- 5.006(3)(c)2., Florida Administrative Code, and provides for compatibility of adjacent land uses. The mixed use residential category and the potential densities of 75 units per acre established by the policy does not appear incompatible with the adjacent single family neighborhoods when the existing land development patterns in the area are considered. Currently, College Park is buffered from the adjacent single family neighborhoods by several churches along 5th Avenue, and J.J. Finley Elementary School. The churches make up much of the northern border of College Park. 5th Avenue itself also works as a separator between College Park and the adjacent neighborhoods. Further, although there has been no showing that the previous 43 unit per acre density caused incompatibility problems, potential compatibility issues are addressed in FLUE Policies 2.4.1, 2.4.2, 2.4.3, 2.4.7, 2.4.8, and 2.4.9. These policies interact with each other and the FLUM to form a step down in densities. This step down approach means that the lowest allowable densities in College Park will be next to the adjacent neighborhoods. The step down approach of the FLUE policies also ensures that land uses within College Park are compatible. It has not been proven to the exclusion of fair debate that FLUE Policy 2.1.1 fails to provide measures which ensure compatibility with adjacent land uses. It is alleged that Traffic Circulation Element (TCE) Policies 1.1.8 and 1.1.9 are not in compliance with Section 163.3177(3)(a), F.S., and Rules 9J- 5.007(2)(a) and (b) 9J- 5.007(3)1. and 9J-5.005(1)2., Florida Administrative Code. TCE Policy 1.1.8 provides: The City shall designate areas on the FLUM for housing, which serves the needs of employees and students within walking distance of the University. TCE Policy 1.1.9 provides: Eighteen months from the adoption of this plan the City, in cooperation with FDOT and the MTPD, shall seek permanent designation of the Central City Interim Special Transportation Area or an extension of the interim designation or the elimination of the STA. These plan provisions outline principles for correcting deficiencies in traffic circulation. TCE Policy 1.1.8 directs the City to provide housing closer to the University so that fewer trips will be entering the area from further out in the urban area, thereby eliminating some of the traffic congestion that now exists. Further, TCE Policy 1.1.9 mentions the STA which was the City and FDOT solution to the problem of correcting existing deficiencies while still allowing growth. TCE Policies 1.1.4 through 1.1.10 combine to further provide controls to prevent degradation of traffic level of service standards. It is clear beyond fair debate that TCE Policies 1.1.8 and 1.1.9 outline principles for correcting deficiencies. Degradation of level of service standards as the result of increased densities in College Park has not been shown to the exclusion of fair debate. The Mass Transit Element (MTE) data and analysis indicates that the relevant transportation bus routes for College Park include Routes 2, 5, 6, 7, 8 and 9. As shown by Table 11 of the MTE data and analysis, each of these routes currently have at a minimum a 54% excess capacity available for ridership. In fact, Route 9 has a 90% excess capacity available for ridership. While TCE Policies 1.1.8 and 1.1.9 do not specifically provide for capital improvement implementation, each plan provision does not need to trigger capital improvements or concurrency requirements. The plan however does address concurrency and the triggering of capital improvements in the Capital Improvement Element (CIE). For example, CIE Policies 1.2.1, 1.2.6 and 1.2.7 establish how capital improvements through development orders will be implemented. In part, CIE Policy 1.2.1 provides: By June 1992, the City shall issue final development orders conditioned on the following: The availability of existing public facilities associated with the adopted LOS (level of service standards); The funding of public facilities (based on existing or projected funding sources) listed in the 5 year schedule of Capital Improvements that are needed to maintain adopted level of service standards. Petitioner has alleged that FLUE Objective 1.5 and Policy 2.4.4 are not in compliance with Rules 9J-5.015(1)(a) and 9J- 5.015(2)(b), Florida Administrative Code, in that the City failed to assemble and assess data from the Alachua County School Board and the University regarding the shifting of student populations. The referenced rules require a local government to coordinate with adjacent local governments, school boards and other units of local government. Such intergovernmental coordination should address specific problems and needs within each jurisdiction and attempt to resolve the problems and needs through better plan provisions. FLUE, Objective 1.5 provides that the City will: Ensure that the future plans of state government, the School Board of Alachua County, the University of Florida, and other applicable entities are consistent with this comprehensive plan to the extent permitted by law. FLUE Policy 2.4.4 is set forth above in paragraph 49. As established by data and analysis of the Intergovernmental Coordination Element (ICE), the City coordinated planning action with the University of Florida and the Alachua County School Board. The School Board did have concerns about the City's 1990 plan designation of J.J. Finely Elementary School as a recreational facility. Through the intergovernmental coordination process, the City and School Board resolved the issue. In terms of justifying a shift of student population, the purpose of FLUE Policy 2.4.4 is not to shift student populations. Instead, the City is attempting to accommodate future population and development within College Park since the growing University population will not be completely accommodated on campus. FLUE Objective 1.5 and Policy 2.4.4 are in compliance with the intergovernmental coordination requirements of Rule 9J-5, Florida Administrative Code. MTE Goal 1 and Objective 1.4 comply with requirements of Rules 9J- 5.008(2)(b) and 9J-5.008(3)(b)1., Florida Administrative Code, and demonstrate that projected mass transportation levels of service are consistent with the proposal to locate increased student populations in College Park. MTE Goal 1 provides that the City shall: Encourage increased transit usage to reduce the impacts of private motorized vehicles on the social, cultural and natural environment, and provide basic transit for disadvantaged City residents to employment, education facilities and basic services. Objective 1.4 provides: The future land use plan shall distribute land uses in a way that promotes transit ridership. Objective 1.4 satisfies the requirements of Rule 9J- 5.008(3)(b)1., Florida Administrative Code, that the plan contain an objective to address the provision of efficient mass transit. Further, as previously noted, there is more than adequate mass transit capacity in the City's system. Petitioner has failed to prove to the exclusion of fair debate that MTE Goal 1 and Objective 1.4 do not comply with provisions of Rule 9J-5, Florida Administrative Code. Petitioner alleges that Stormwater Management Element (SME) Objective 1.3 is not in compliance with Rule 9J-5.011(2)(b)1. and 2., Florida Administrative Code, in that the plan fails to address deficiencies in stormwater and drainage in College Park or coordinate the extension of, or increase in the capacity of those facilities to meet projected future needs. SME Objective 1.3 provides: The City shall ensure that proper and adequate stormwater management facilities are provided to meet future needs. Appendix C of the SME provides a stormwater need assessment list for the City. Need number 69 of the list specifically references College Park and the need to upgrade inadequate facilities. The City made the correction of these inadequate facilities a priority. In SME Policy 1.2.2, the plan calls for a Hogtown Creek Stormwater master plan to address deficiencies. The Hogtown Creek Master Plan is further accounted for in Table 14 of the Capital Improvements Element of the Plan. Petitioner has failed to prove to the exclusion of fair debate that SME Objective 1.3 fails to address deficiencies in stormwater and drainage in College Park. A final issue raised by Petitioner is whether FLUE Objective 1.4 is in compliance with Rule 9J-5.006(3)(c)3. and 4., Florida Administrative Code, requirements for provision of adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to drainage and stormwater management, open space and convenient on- site traffic flow and vehicle parking. FLUE Objective 1.4 reads as follows: Upon Plan adoption, the City shall ensure the provisions of services and facilities needed to meet and maintain the LOS standards adopted in this Plan. Between Plan adoption and implementation of the Concurrency Management System, the City shall adjust existing facility capacity to reflect the demand created by final development orders as they are issued. As addressed earlier, the Plan, and supporting data and analysis, make provision for adequate facilities and services to accommodate densities and intensities of residential and commercial uses in College Park with regard to these matters. Petitioner has failed to show to the exclusion of fair debate that FLUE Objective 1.4 is not in compliance. State And Regional Plans The City's comprehensive plan is consistent with, compatible with, and furthers the state comprehensive plan construed as a whole. A comprehensive plan not only has to meet the minimum criteria of Rule 9J Administrative Code and be generally found consistent with the regional policy plan, it also has to further and promote the goals within the state comprehensive plan. The promotion of infill development, maximizing existing facilities, the separation of urban and rural land uses, and downtown revitalization, are efforts in furtherance of the state comprehensive plan. Higher densities within downtown areas are generally considered to be not only sound planning principles but they achieve many of the state's goals. The plan is also consistent with, compatible with, and furthers the North Central Florida Regional Policy Plan (Regional Plan). The North Central Florida Regional Planning Council's Regional Policy Goals IV, page 1, provides that "Urban sprawl should be minimized and urban development should be directed to a designated urban development area." Regional Policy Goals 16, 4 and 11, IV.2, lists six or seven goals dealing with future development directed to urban development areas. By increasing residential densities and high intensity urban areas, the City of Gainesville Comprehensive Plan implements regional as well as state Growth Management objectives. By providing opportunities for infill development, the plan increases development of potential existing urban areas, thus discouraging urban sprawl. This also serves to encourage the redevelopment of older areas and serves to direct new population growth to areas with existing facilities, thereby promoting the full utilization of those facilities before the expansion of new facilities.
Recommendation Based on the foregoing it is RECOMMENDED that a final order be entered finding the comprehensive plan of the City of Gainesville to be in compliance. DONE AND ENTERED this 2nd day of November, 1992, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1992. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. In lieu of proposed findings, Petitioner submitted a document entitled "Suggested Preliminary Finding". The document consisted of 28 pages containing unnumbered paragraphs with no citation to the record established at the final hearing, contrary to requirements of Rule 22I-6.031(3), Florida Administrative Code. Nonetheless, Petitioner's submittal has been reviewed. Many of the assertions contained in the document appeared to be a cumulative restatement of Petitioner's arguments heard at the final hearing, or proposed findings which are cumulative or subordinate to the findings of the Hearing Officer. To the extent possible, the remainder of Petitioner's suggestions have been reviewed and are addressed by the foregoing findings of fact. Respondent City's Proposed Findings. 1.-3. Accepted. 4.-6. Rejected, legal argument. 7. Accepted. 8.-9. Rejected, not supported by weight of the evidence. 10.-20 Accepted. 21. Rejected, unnecessary. 22.-24. Accepted. 25.-28. Rejected, unnecessary. 29. Accepted. 30.-34. Rejected, cumulative. 35.-45. Accepted. 46.-47. Rejected, conclusion of law. 48.-49. Rejected, unnecessary. 50.-59. Accepted. 60. Rejected, argumentative. 61.-65. Accepted. 66. Rejected, argumentative. 67.-71. Accepted. 72.-74. Rejected, argumentative. 75.-84. Accepted. 85.-86. Rejected, cumulative. 87.-90. Accepted. 91.-92. Rejected, unnecessary. Accepted. Rejected, unnecessary. 95.-96. Accepted. 97.-98. Rejected, argumentative. 99.-106. Rejected, unnecessary and cumulative. 107.-114 Accepted, not verbatim. 115. Rejected, unnecessary. 116.-135. Accepted. 136.-139. Rejected, cumulative. 140.-142. Accepted. 143.-146. Rejected, cumulative. 147.-157. Accepted. 158. Rejected, no record citation. 159.-161. Subordinate to Hearing Officer's findings. 162.-166. Adopted in substance, not verbatim. 167.-172. Adopted in substance. 173.-180. Adopted by reference. Respondent Department's Proposed Findings. 1.-26. Accepted. 27.-50. Adopted in substance, not verbatim. 51.-58. Accepted. 59. Adopted by reference. COPIES FURNISHED: Linda Loomis Shelley, Esquire Secretary Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Steven Pfeiffer, Esquire General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Michael P. Donaldson, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Dr. Tallahassee, Florida 32399-2100 Elizabeth A. Waratuke, Esquire Assistant City Attorney Post Office Box 1110 Gainesville, Florida 32602 Thomas D. Rider, 1624 Northwest 7th Place Gainesville, Florida 32603
