The Issue The issue to be determined in this case is whether the amendments to the Palm Beach County Comprehensive Plan (“the Comp Plan”) adopted by the Board of County Commissioners of Palm Beach County by Ordinance No. 14-030 (“Proposed Amendments”) are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Petitioner Alerts of PBC, Inc. (“Alerts”), is a Florida not-for-profit corporation doing business in Palm Beach County. Alerts made timely objections and comments to the County on the Proposed Amendments. Petitioner Patricia Curry is a resident and landowner in Palm Beach County. Ms. Curry made timely objections and comments to the County on the Proposed Amendments. Petitioner Robert Schutzer is a resident and landowner in Palm Beach County. Mr. Schutzer made timely objections and comments to the County on the Proposed Amendments. Petitioner Karen Schutzer is a resident and landowner in Palm Beach County. Ms. Schutzer made timely objections and comments to the County on the Proposed Amendments. Respondent Palm Beach County is a political subdivision of the State of Florida and has adopted the Comp Plan, which it amends from time to time pursuant to section 163.3184. Intervenor Minto is a Florida limited liability company doing business in Palm Beach County. Minto is the owner of all of the 3,788.6 acres (“the Property”) which are the subject of the Proposed Amendments, with the exception of two parcels totaling 40.04 acres, which are owned by the Seminole Improvement District. Minto appointed the board of supervisors of the Seminole Improvement District pursuant to state law. Background FLUE Objective 1.1 establishes a unique Managed Growth Tier System “to protect viable existing neighborhoods and communities and direct the location and timing of future development.” The Property is located in the County’s Rural Tier and is bounded by Exurban Tier to the north and east. North of the Property is a large subdivision known as the Acreage, which was described by Respondents as “antiquated” because it was developed in a manner that was common decades ago before modern community planning concepts and growth management laws. The Acreage is dominated by 1.25-acre residential lots, laid out in a grid pattern with few other uses. Although the residents of the Acreage have a strong sense of community, it is apparently a matter of aesthetics, familiarity, and social intercourse, because the Acreage is not a community in the modern planning sense of providing a mix of uses where residents can live, shop, work, and play. It is a development pattern that is now discouraged by state law and the Comp Plan, because it is inefficient with respect to the provision and use of public services. The Property and the Acreage are within a 57,000-acre area known as the Central Western Communities (“CWC"). The CWC has been the subject of extensive planning efforts by the County for many years to address land use imbalances in the area. There are many residential lots, but few non-residential uses to serve the residents. In 2008, the previous owner of the Property, Callery- Judge Groves (“Callery”), obtained an Agricultural Enclave (AGE) future land use designation for essentially the same area as the Property. The Comp Plan was amended to establish an AGE future land use designation, AGE policies, a conceptual plan of development, and implementing principles (“the 2008 Amendments”). Under the 2008 Amendments, the site was limited to 2,996 residential units and 235,000 square feet of retail and office uses. No development has been undertaken pursuant to the 2008 Amendments. In 2013, the site was sold to Minto, which submitted a Comp Plan amendment application in November 2013, and a revised application in July 2014. On October 29, 2014, the County adopted the Proposed Amendments. The Proposed Amendments change the future land use designation of 53.17 acres (“the outparcels”) from RR-10 to AGE, and increase residential density to 4,546 units and increase intensity to two million square feet of non-residential uses, 200,000 square feet of civic uses, a 150-room hotel and a 3,000- student college, and revise the Conceptual Plan and Implementing Principles. The Proposed Amendments would also revise text in the Introduction and Administration, Future Land Use, and Transportation Elements. The Map Series would be amended to add 53.17 acres to the Limited Urban Service Area on Map LU 1.1 and Map LU 2.1, and to identify new Rural Parkways on Map TE 14.1. Petitioners’ Challenge Petitioners contend the Proposed Amendments are not “in compliance” because they fail to establish meaningful and predictable standards; do not comply with the agricultural enclave provisions of section 163.3164(4); are not based upon relevant and appropriate data and analysis; promote urban sprawl; are incompatible with adjacent communities and land uses; and create inconsistencies within the Comp Plan. Many of the issues raised and the arguments made by Petitioners fail to acknowledge or distinguish the 2008 Amendments that address future development of the Property. In several respects, as discussed below, the 2008 Amendments already authorize future development of the Property in a manner which Petitioners object to. In several respects, the types of impacts that Petitioners are concerned about are actually diminished by the Proposed Amendments from what is currently allowed under the 2008 Amendments. Meaningful and Predictable Standards Petitioners contend that proposed FLUE Policies 2.2.5-d, 2.2.5-e, and 2.2.5-f, and Maps LU 1.1 and 2.1 fail to establish meaningful and predictable standards for the use and development of land and fail to provide meaningful guidelines for the content of more detailed land development and use regulations, in violation of section 163.3177(1). The Proposed Amendments add more detail to the standards that were adopted in the 2008 Amendments. The Proposed Amendments establish substantially more direction for the future development of the Property than simply a land use designation and listing of allowed uses, which is typical in comprehensive plans. Petitioners contend the Proposed Amendments lack adequate standards because they refer to the use of “appropriate new urbanism concepts,” which Petitioners say is vague. New urbanism refers to land use planning concepts such as clustering, mixed-use development, rural villages, and city centers. See § 163.3162(4), Fla. Stat. (2014). In land use planning parlance, new urbanism creates more “livable” and “sustainable” communities. The term “appropriate new urbanism concepts” used in the Proposed Amendments is the same term used in section 163.3162(4), dealing with the development of agricultural enclaves. There are many concepts that are part of new urbanism, which can be used in combination. Which concepts are “appropriate” depends on the unique opportunities and constraints presented by the area to be developed. Use of the term “appropriate new urbanism concepts” in the Proposed Amendments adds detail to the future development standards applicable to the Property. It does not create vagueness. Petitioners contend the proposed amendments of Maps LU 1.1 and 2.1 do not provide meaningful and predictable standards and guidelines. However, the maps are only being amended to show that 53.17 acres of outparcels within the Property are being added to the existing Limited Urban Service Area. The map amendments do not diminish the meaningfulness or predictability of any standards in the Comp Plan. The preponderance of the evidence shows the Proposed Amendments establish meaningful and predictable standards. Agricultural Enclave Petitioners contend the Proposed Amendments fail to meet the requirements for an agricultural enclave in section 163.3164. As explained in the Conclusions of Law, consistency with section 163.3164 is not a component of an “in compliance” determination. Furthermore, the Property is already designated Agricultural Enclave in the Comp Plan. Data and Analysis Petitioners contend the amendment of the Limited Urban Service Area is not supported by relevant and appropriate data and analysis as required by section 163.3177(1)(f). The inclusion of the outparcels is logical and reasonable. It is consistent with the Comp Plan policies applicable to Limited Urban Service Areas. It is supported by data and analysis. Petitioners contend the increases in density and intensity allowed by the Proposed Amendments are not supported by data and analysis showing a need for the increases. However, the increases are supported by relevant and appropriate data and analysis, including population projections and extensive analysis of the need for non-residential uses in the CWC. Population projections establish the minimum amount of land to be designated for particular uses; not the maximum amount of land. See § 163.3177(1)(f)3., Fla. Stat (2014). Petitioners make several claims related to the availability of public utilities and other services to the Property. The data and analysis show sufficient capacity for roads, transportation, schools, water supply, wastewater treatment, fire, emergency and police either already exists or is contemplated in the Comp Plan to accommodate the development authorized by the Proposed Amendments. The preponderance of the evidence shows the Proposed Amendments are supported by relevant data and analysis. Urban Sprawl Petitioners contend the Proposed Amendments do not discourage the proliferation of urban sprawl. Urban sprawl is defined in section 163.3164(51) as “a development pattern characterized by low density, automobile-dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses.” Petitioners contend the Property does not qualify for the presumption against urban sprawl under the criteria in section 163.3162(4), but Minto did not rely on that statutory presumption. Petitioners contend the Proposed Amendments create five of the 13 primary indicators of urban sprawl set forth in section 163.3177(6)(a)9.: Promotes, allows, or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses. Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development. Fails to maximize use of existing public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. The evidence presented on this issue by Petitioners was inconsistent with generally accepted land use planning concepts and principles. The Proposed Amendments do not promote urban sprawl. They go far to rectify existing sprawl conditions in the CWC. Findings relevant to the five indicators have already been made above. Compatibility with adjacent uses is discussed below. There are ample data and analysis which show the Proposed Amendments discourage urban sprawl. Respondents’ characterization of the Proposed Amendments as the opposite of urban sprawl is not unreasonable. The preponderance of the evidence shows the Proposed Amendments discourage the proliferation of urban sprawl. Compatibility Petitioners contend the Proposed Amendments are “incompatible with the lifestyle of the existing and surrounding communities and adjacent agricultural and other land uses.” Protection of Petitioners’ lifestyle cannot mean that surrounding areas must remain undeveloped or must be developed in a similar suburban sprawl pattern. Land use imbalances in the CWC are rectified by the Proposed Amendments while providing large buffers and a transition of land uses on the Property to protect adjacent land uses. The Acreage is more accurately characterized as suburban rather than rural. Moreover, the Proposed Amendments include a conceptual plan and development guidelines designed to create a clear separation between urban uses on the Property and less dense and intense external uses. Residential densities near the perimeter of the Property would correspond to the density in the Acreage. The proposed distribution of land uses and large open space buffers would not establish merely an adequate transition. They would provide substantial protection to adjacent neighborhoods. A person at the periphery of the Property would likely see only open space, parks, and low-density residential uses. The distribution of land uses and natural buffers in the Proposed Amendments provide more protection for external land uses than the 2008 Amendments. The more persuasive evidence presented indicates that Petitioners and other persons living near the Property would be beneficiaries of the Proposed Amendments because they could use and be served by the office, commercial, government, and recreational uses that will be available nearby. The preponderance of the evidence shows the Proposed Amendments are compatible with adjacent land uses. Internal Consistency The Comp Plan’s Introduction and Administration Element and FLUE contain statements of intent. They are not objectives or policies. Petitioners contend the Proposed Amendments are inconsistent with some of the statements. Petitioners contend the Proposed Amendments are inconsistent with the Introduction and Administration Element statements discouraging growth to the west where services are not adequate, do not provide for orderly growth or the provision of facilities and services to maintain the existing quality of life in an economical manner, and do not recognize countywide growth management strategies or maintain the diversity of lifestyles. Findings that refute this contention have been made above. Petitioners contend the Proposed Amendments are inconsistent with several general statements in FLUE Sections I A, I B, and I C. regarding respect for the character of the area, protection of quality of life and integrity of neighborhoods, prevention of “piecemeal” development, and efficient provision of public services. Findings that refute this contention have been made above. Petitioners contend FLUE Policy 2.2.5-d allows land uses which are inconsistent with the policies applicable to the Rural Tier in which the Property is located. In the proposed policy, the County exempts the Project from any conflicting Rural Tier policies that would otherwise apply. Under the County’s Managed Growth Tier System, the tiers are the “first level” land use consideration in the FLUE. Therefore, it would have been helpful to amend the Rural Tier section of the FLUE to indicate the exceptions to Rural Tier policies for agricultural enclaves, in general, or for the Property, in particular. Instead, the Proposed Amendments place the new wording about exceptions in the section of the FLUE dealing with agricultural land uses. However, as stated in the Conclusions of Law, where the exception is located in the comprehensive plan is not a consistency issue. The County has shown there are unique considerations involved with the CWC that justify the exceptions. It also demonstrated that the Proposed Amendments would accomplish numerous objectives and policies of the Comp Plan that could not be accomplished without creating exceptions to some Rural Tier policies. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-3 because they encourage the proliferation of urban sprawl. That contention has been rejected above. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 1.1-6 because they do not protect agricultural land and equestrian uses. The evidence shows that agricultural and equestrian uses are enhanced by the Proposed Amendments over the existing provisions of the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-b, which addresses criteria re- designating a tier. This policy is not applicable because the Proposed Amendments do not re-designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-c, which requires the review of the tier system as part of each Evaluation and Appraisal review. Evaluation and Appraisal Reviews are no longer required by state law. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.1-d, which states a tier shall not be re-designated if it would cause urban sprawl. This policy is not applicable because the Proposed Amendments do not re- designate a tier. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-a, which requires the County to protect and maintain the rural residential, equestrian, and agricultural areas within the Rural Tier. The Proposed Amendments and Conceptual Plan increase the level of protection for these uses over what is currently in the Comp Plan. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-d, which generally prohibits subdividing parcels of land within the Rural Tier unless certain conditions are met. The Proposed Amendments do not subdivide any parcels. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-k, which addresses the designation of “sending areas” for Transfer of Development Rights (“TDR”). This policy only applies to parcels with a RR20 future land use designation and there are no such parcels existing or that would be created by the Proposed Amendments. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 1.4-l, which requires the County to provide rural zoning regulations for areas designated Rural Residential. The Property does not have any Rural Residential designations. Petitioners contend the Proposed Amendments are inconsistent with FLUE Policy 2.4-b, which provides that the TDR program is the required method for increasing density within the County. The County applies this policy only to density increases in urban areas, because they are the only areas authorized to receive TDRs. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.1 and some related policies, which promote balanced growth. The preponderance of the evidence shows the Proposed Amendments will further this objective and its policies because they correct the current imbalance of land uses in the CWC and provide for a balanced mix of residential, agricultural, commercial, light industrial, office, recreation, and civic uses. Petitioners presented no evidence to support their claim that Proposed Amendments would exceed the natural or manmade constraints of the area. Petitioners presented no credible evidence that transportation infrastructure and other public services could not be efficiently provided to the Property. The data and analysis and other evidence presented show otherwise. Petitioners contend there is no justification for the increased density and intensity authorized by the Proposed Amendments. There was ample justification presented to show the increases were needed to create a sustainable community where people can live, work, shop, and play. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 2.2 and some related policies, which require development to be consistent with land use designations in the Comp Plan. Petitioners’ evidence failed to show any inconsistencies. The Proposed Amendments are compatible with and benefit adjacent land uses, as found above. Petitioners contend the Proposed Amendments fail to include “new urbanism” concepts as required by section 163.3164(4) and Policy 2.2.5-i. The evidence presented by Respondents proved otherwise. Petitioners contend the Proposed Amendments are inconsistent with FLUE Objective 3 and some related policies, which address the provision of utilities and other public services. Petitioners presented no credible evidence to support this claim. The data and analysis and other evidence presented show that public services are available or planned and can be efficiently provided to the Property. Petitioners argued the Proposed Amendments were inconsistent with several other FLUE policies generally related to compatibility with adjacent land uses and the provision of public services, all of which Petitioners failed to prove as explained above. The preponderance of the evidence shows the Proposed Amendments would not create internal inconsistency in the Comp Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity issue a final order determining the Proposed Amendments adopted by Palm Beach County Ordinance No. 2014-030 are in compliance. DONE AND ENTERED this 17th day of April, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2015. COPIES FURNISHED: Ralf G. Brookes, Esquire 1217 East Coral Parkway, Suite 107 Cape Coral, Florida 33904 (eServed) Gary K. Hunter, Jr., Esquire Hopping, Green and Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 (eServed) Tara W. Duhy, Esquire Lewis Longman and Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401 (eServed) Amy Taylor Petrick, Esquire Palm Beach County Attorney's Office 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue The issue is whether that portion of Plan Amendment 98-1ER known as LU-97-02 is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background In this land use dispute, Petitioners, Janet Bollum (Bollum) and Glenn and Mary Brewer (the Brewers), who are property owners within or near the City of Deland, contend that a portion of Plan Amendment 98-1ER adopted by Respondent, City of Deland (City), is not in compliance. The portion of the amendment under challenge, known as Plan Amendment LU-97-02, changes the land use on 39.56 acres of land owned by Intervenor, Marcia Berman, Trustee (Berman), to Highway Commercial. The property is currently under contract to be sold to Intervenor, Wal-Mart Stores East, Inc. (Wal-Mart), who intends to construct a Wal-Mart super store on a part of the site. Respondent, Department of Community Affairs (Department), is the state agency charged with the responsibility of reviewing comprehensive land use plans and amendments. Until 1997, the Berman property was located in the unincorporated area of Volusia County (County). Prior to 1994, it carried an Urban Medium Intensity land use designation. That year, the County redesignated the property as Industrial. In 1997, the City annexed the Berman property and revised its Future Land Use Map the following year to change the land use to Highway Commercial. This change was accomplished through the plan amendment under challenge. On May 1, 1998, the Department issued its Statement of Intent to Find Portions of Plan Amendment Not in Compliance. More specifically, it found that the new land use designation would "generate traffic which causes the projected operating conditions of roadways to fall below adopted level of service standards and exacerbates projected roadway deficiencies." The Department also found that the amendment was "not supported by or based on, and does not react in an appropriate way to, the best available data and analyses." In making these findings, the Department relied in part upon a traffic study prepared by "TEI" in 1998 which reflected that the City's traffic system did not have sufficient capacity to accommodate the new land use. The Department determination triggered this action. On May 27, 1998, Petitioners, and 82 other property owners, filed a paper styled "Petition for Administrative Hearing and Petition to Intervene" challenging the change of land use on the Berman property in numerous respects. The paper was treated as a petition to intervene and was later granted. After the case was temporarily abated in August 1998 pending efforts to settle the matter, in January 1999, a new traffic study was prepared for the City by Ghyabi, Lassiter & Associates (GLA study), which determined that the existing and planned City transportation network could accommodate the impacts from the development allowed under the amendment. All parties except Petitioners then executed a Stipulated Settlement Agreement in February and March 2000, which resolved all issues originally raised by the Department. Thereafter, the Department issued an Amended Notice of Intent to find the plan amendment in compliance. As required by Section 163.3184(16)(f), Florida Statutes (1999), the parties were realigned consistent with their respective positions. Through an Amended Petition filed by Petitioners on July 19, 2000, all original Petitioners except Bollum and the Brewers have been dismissed, and the factual issues in this case narrowed to two: (a) whether the recent traffic studies "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)"; and (b) whether the "plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent." Standing of the Parties Bollum owns property, resides within, and owns and operates a business within the City. She also submitted written and oral comments to the City while the amendment was being adopted. The parties have stipulated that she is an affected person and thus has standing to participate. The Brewers own property and reside in an unincorporated area of the County in the immediate vicinity of the proposed plan amendment. They also reside within what is known as the "Greater Deland Area," as defined by Chapter 73-441, Laws of Florida. However, they do not own property, reside within, or own and operate a business within the corporate limits of the City, and thus they lack standing to participate. The parties have stipulated that Intervenors Berman and Wal-Mart have standing to participate in this proceeding. The Amendment The Berman property lies on the eastern side of U.S. Highway 17 just north of the intersection of U.S. Highways 17 and 92, approximately three miles north of the City's central business district. The land is currently undeveloped. Prior to being annexed by the City, the property was located within the unicorporated area of the County, just north of the City limits. The earliest County land use designation was Urban Medium Intensity, a primarily residential land use classification which also allowed some commercial development, including small neighborhood shopping centers. In 1993, the County began a comprehensive examination of land use and zoning restrictions in the vicinity of the Berman property. In May 1994, it redesignated the Berman property from Urban Medium Intensity to Industrial. This use allowed not only industrial development, but also some commercial development. Before the Berman property was annexed by the City, it was depicted on the City's Urban Reserve Area Map (map). That map established advisory designations for unincorporated County land abutting the City, and was meant to be a guide for City land use decisions when property was annexed. The property was designated on the map as approximately one-half Commercial and one-half Industrial. In 1997, the Berman property was annexed by the City. Because the City was then required to place a land use designation on the property, on May 16, 1998, it adopted Amendment 98-1ER, which redesignated the property from Volusia County Industrial to City Highway Commercial. The new mixed-use designation allows "a wide range of retail and service and office uses," as well as up to twenty percent residential land uses, including multi-family manufactured housing developments. Thus, the Highway Commercial land use designation is meant to accommodate major shopping centers like the one proposed by Wal-Mart. Transportation issue In their Amended Petition, Petitioners allege that accepting as fact the "most recent traffic studies," those studies still "demonstrate a transportation concurrency failure, and a failure to fall within a lawful transportation concurrency exception under F.S. 163.3180(5)(c) and (d)." The "most recent traffic studies" are the GLA study, and it shows that the existing and planned City transportation network can accommodate the traffic impacts arising from development allowed under the plan amendment. Some of the transportation impacts from the expected development on the Berman property will affect roadways within an area of the City that was formally designated in May 1992 as a Special Transportation Area (STA) or road segments with specialized level of service (LOS) standards. The STA includes the central business district and certain outlying areas essentially bounded by Minnesota Avenue, Amelia Avenue, the rear property lines of properties along the north side of New York Avenue (State Road 44), South Hill Avenue, Beresford Avenue, Boundary Avenue, and Clara Avenue, which extend to approximately one mile from the Berman property. None of the roadways within the STA are on the Florida Intrastate Highway System. Rule 9J-5.0055(2), Florida Administrative Code, requires that the City adopt LOS standards on roadways within its planning jurisdiction (which are not on the Florida Intrastate Highway System), including the disputed portion of U.S. Highways 17 and 92. The applicable LOS standards and STA provisions are found in Policies 3.1.7 and 3.1.10, respectively, of the Transportation Circulation Element of the plan. They read as follows: 3.1.7 For those roadways listed in Policy 3.1.6 [which include U.S. Highways 17 and 92], the City of Deland may permit development to occur until the peak hour traffic volumes exceed a 20% increase over the peak traffic counts published in the FDOT's 1989 Traffic Data Report. 3.1.10 As a result of FDOT's approval of the STA designation for US 17/92 (Woodland Boulevard), from Beresford Avenue to Michigan Avenue, and SR 44 (New York Avenue), from SR 15A to Hill Avenue, the following maximum LOS and/or traffic volumes shall be permitted. ROADWAY SEGMENT US 17/92, from Beresford to Michigan = 22,028 SR 44, from SR 15A to US 17/92 = LOS E SR 44, from US 17/92 to Hill = LOS E *The proposed maximum traffic volume is compatible with the maximum LOS for this section of roadway, as stated in Policy 3.1.7. These two policies have been found to be in compliance and are not subject to challenge in this proceeding. Although the STA is identified as a specific area, the City's Comprehensive Plan anticipates that development from outside of this area will impact the STA. As noted above, however, the undisputed GLA study demonstrates that the plan amendment will not allow development which would cause these adopted LOS standards to be exceeded. The STA was approved in May 1992, or prior to the enactment of Section 163.3180, Florida Statutes (1993), which allows certain exceptions from the otherwise blanket requirement to adopt and enforce a transportation LOS standard for roadways. Two planning tools made available to local governments by Section 163.3180(5), Florida Statutes (1993), are a Transportation Concurrency Exception Area (TCEA) and a Transportation Concurrency Management Area, both of which allow exceptions to transportation concurrency requirements. The practical effect of a TCEA is to allow development to proceed without having to comply with transportation concurrency. Petitioners essentially contend that the STA created by the City for the central business district and certain outlying areas is "the substantial equivalent of a TCEA," and thus it should be treated as one for purposes of this proceeding. They go on to argue that while the City may grant an exception to concurrency requirements for transportation facilities for projects located within a TCEA, those benefits cannot be extended to any other area, including the Berman property. Based on this premise, Petitioners conclude that without the benefit of the TCEA exception, the anticipated traffic from the new development on the Berman property will cause a "continuation of a [LOS] failure on the constrained segments of US 17/92 and on the unconstrained segment from SR44 to Wisconsin Avenue," in violation of the law. Petitioners' contention is based on an erroneous assumption. The evidence shows that the City has never adopted a TCEA. Neither has the STA "transformed" into a TCEA, as Petitioners suggest. Moreover, as noted above, the undisputed GLA study shows rather clearly that the plan amendment will not allow development which would cause the adopted LOS standards to be exceeded. Petitioners further contend that the plan amendment is somehow inconsistent with the transportation exception requirements in Section 163.3180(5)(b) and (c), Florida Statutes (2000). However, these provisions apply to developments "which pose only special part-time demands on the transportation system[,]" that is, "one that does not have more than 200 scheduled events during the calendar year and does not affect the 100 highest traffic volumes." The evidence shows that the Highway Commercial land use category is not designed for such developments and, in fact, encourages far more intense uses. Is There a Need for Additional Commercial Land? Petitioners next contend that "the plan amendment data and analyses continue a failure to show demand for additional 'highway commercial' land, as originally asserted by the Department's Notice of Intent and not resolved by the Compliance Agreement." In the immediate vicinity of the Berman property, near the intersection of U.S. Highways 17 and 92 north of the City, "there is an emerging trend of 'regional-type' commercial developments." This area is already partially developed with commercial uses, and it has additional areas depicted for future commercial and industrial use. There are no other parcels in the City, especially in this area, of a sufficient size to accommodate this type of regional commercial development. There are numerous ways to project the raw, numerical need for commercial land in the City. The City's Comprehensive Plan, its Evaluation and Appraisal Report, and the GLA study all contain statements regarding projected population and employment, each portraying a slightly different result. In fact, Petitioners' own expert criticized the numbers used in these documents as being unreliable and suspect. The need calculus basically involves projecting population over a ten-year planning period and then allocating commercial, residential, and other land uses in an amount to match that projection. For the reasons set forth below, this process is imprecise, and it must be tempered by other factors. First, the planner must project population over the ten-year planning timeframe. Any mistake in this projection will skew the numbers. Second, employment ratios used in the calculus can change from year to year, especially in a smaller community. Also, other planning objectives are inherently subject to change year by year. Given this imprecision and changing market demands, it is appropriate for professional planners to overallocate land uses. An excess allocation of twenty-five percent (or an allocation factor of one hundred and twenty-five percent) is recognized by professional planners as being appropriate. The evidence supports a finding that this amount is reasonable under the circumstances present here. There are numerous professionally acceptable ways in which to allocate land uses. The City has not adopted a particular methodology in its Comprehensive Plan. The specifics of the plan amendment and the City's Comprehensive Plan make application of a strict numerical calculus even more difficult. The prior designation of the property was Industrial, which is not a pure industrial category, but actually allowed up to thirty percent of commercial uses. The amendment here simply changes the land use from Industrial, with some commercial uses allowed, to a mixed-use Highway Commercial designation. As noted earlier, the City's Comprehensive Plan anticipates regional commercial uses in the area of the Berman property. Finally, the parcel is relatively small (less than 40 acres) and is embedded within an urban area. Given the uncertainty of a numerical calculation of commercial need in the City, the size and location of the property, the property's inclusion in an urban area, and the surrounding commercial land uses, the evidence supports a finding that either Industrial or Commercial would be an appropriate land use for the property. The evidence further supports a finding that the need question is not a compliance issue here and does not support a finding that the plan amendment is not in compliance.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining Plan Amendment 98-1ER adopted by the City of Deland by Ordinance Number 98-07 on March 16, 1998, to be in compliance. DONE AND ENTERED this 20th day of November, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2000. COPIES FURNISHED: Steven M. Siebert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 C. Allen Watts, Esquire Cobb, Cole & Bell Post Office Box 2491 Daytona Beach, Florida 32115 Shaw P. Stiller, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 F. Alex Ford, Jr., Esquire Landis, Graham, French, Husfeld, Sherman & Ford, P.A. Post Office Box 48 Deland, Florida 32721-0048 Mark A. Zimmerman, Esquire James, Zimmerman, Paul & Huddleston Post Office Drawer 2087 Deland, Florida 32721-2087 David L. Powell, Esquire Hopping, Green, Sams & Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Margaret E. Bowles, Esquire Margaret E. Bowles, P.A. 205 South Hoover Street Suite 402 Tampa, Florida 33609 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue At issue in these proceedings is the validity of respondent's proposed rules 9J-5.003(140) and 9J-5.006(6).
Findings Of Fact The parties Petitioner, St. Joe Paper Company, is a Florida corporation which owns either directly or through its subsidiaries approximately 1,500,000 acres of land in Florida. Petitioner, Florida East Coast Industries, Inc., is also a Florida corporation which owns either directly or through its subsidiaries approximately 17,500 acres of land along the east and west coast of Florida. Respondent, Department of Community Affairs (Department or DCA), is the state land planning agency under the provisions of Chapter 163, Part II, Florida Statutes, [the "Local Governmental Comprehensive Planning and Land Development Regulation Act" (the "Act")]. As the state land planning agency under the Act, the Department is charged by law with the duty to provide technical assistance to local governments in preparing comprehensive plans and with the duty to ascertain whether local comprehensive plans or plan amendments are in compliance with the provisions of Chapter 163, Part II, Florida Statutes. Here, the parties have stipulated that petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., as well as their subsidiaries, and intervenors, Florida League of Cities, 1000 Friends of Florida, Department of Environmental Protection, Florida Association of Realtors, R. J. Collins, Florida Electric Power Coordinating Group, and Florida Association of Counties, have standing. No such stipulation was, however, accorded intervenors Florida Land Council, Inc., Florida Farm Bureau Federation, Highlands County Farm Bureau, and Claude E. Smoak, Jr., and they offered no proof at hearing to demonstrate standing. Notwithstanding, the Department raised no objection and its post hearing submittal does not contest their standing. Publication of notice and the economic impact statement On October 2, 1992, the Department first published notice of the proposed revisions to Chapter 9J-5, Florida Administrative Code, in volume 18, number 40, of the Florida Administrative Weekly. Such publication contained the following statement regarding the economic impact of the proposed rules: SUMMARY OF THE ESTIMATED ECONOMIC IMPACT OF THE PROPOSED RULES: The estimated agency cost to be incurred by this action is $3,627, which is the cost of promulgating the rule amendment . . . It is not anticipated that the amendment will generate additional costs to local governments and other affected persons above and beyond those attributable to existing rules and statutes. Ultimately, it is believed that this amendment will result in more efficient patterns of development which allow services and facilities to be provided more cost efficiently . . . to local governments. The procedures required by the proposed amendments have no significant impact on competition and the open market for employment. There is no impact on small or minority business as defined by the Florida Small and Minority Business Assistance Act of 1985. On October 23, 1992, petitioners filed their initial petition for an administrative determination of the invalidity of the proposed rules. Such petition contended, inter alia, that the proposed rules were invalid for the agency's failure to prepare an economic impact statement that complied with the provisions of Section 120.54(2)(c), Florida Statutes. Petitioners did not, however, at any time, file a request for the preparation of an economic impact statement with the agency. 1/ Background of the rules Pursuant to Section 163.3184(8)(a), Florida Statutes, the Department is obligated to review each adopted local plan or plan amendment and determine if it is in compliance with the Act. Section 163.3184(1)(b), Florida Statutes, defines "in compliance" as: . . . consistent with the requirements of ss. 163.3177, 163.3178, and 163.3191, the state comprehensive plan, the appropriate regional policy plan, and rule 9J-5, F.A.C., where such rule is not inconsistent with chapter 163, part II. In 1985 the Legislature directed the Department to develop Chapter 9J- 5, Florida Administrative Code, and apply it to the review of local plans. The Legislature has reviewed the rule, as adopted, and given it special legal protection from rule challenges. Section 163.3177(10), Florida Statutes. Among the rules so approved, was Rule 9J-5.006 which provided that "the purpose of the future land use element is the designation of future land use patterns as reflected in the goals, objectives and policies of the local government comprehensive plan elements." Rule 9J-5.006(3)(b)7 provides that the future land use element shall contain specific goals, objectives and policies which discourage the proliferation of urban sprawl, and Rule 9J-5.011(2)(b)3 provides that the general sanitary sewer, soiled waste, drainage, potable water and natural groundwater aquifer recharge element shall contain objectives and policies which address the use of existing facilities and the discouragment of urban sprawl. The Department has, since approximately 1988, developed, refined and explicated its policy regarding the discouragement of urban sprawl in local government comprehensive plans. In a technical memo issued in 1989, the Department observed: If the goals and objectives of Florida's growth management laws are to be achieved, local plans must effectively deal with urban sprawl and the closely related issues of conservation, natural resource protection, and efficient use of public facilities and services. [DCA Exhibit 12] That publication further set forth the Department's definition of urban sprawl, and discussed the various provisions in the State Comprehensive Plan (Chapter 187, Florida Statutes), Chapter 163, Part II, Florida Statutes, and Chapter 9J- 5, Florida Administrative Code, which related to the discouragement of urban sprawl. As for the term "urban sprawl," the technical memo provided: The term "urban sprawl" as it is applied by the DCA in its review of local plans is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. * * * Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development can result in increased risks to water supplies and sensitive environmental areas. * * * Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of crub and median cuts and access points permitted. Strip development frequently overburdens arterial roadways with local trips because local road networks are poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low- density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that should be protected from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential and nonresidential uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient and unattractive use of developable land, and frequently destroys significant environmental and natural resources. * * * In other words, urban sprawl is the epitome of bad land use planning. It adversely impacts and often destroys precious natural resources. It promotes inefficient use of land resources and existing public facilities and services, and makes it difficult or impossible to provide new infrastructure and services efficiently to new development. It produces development that is typically unsightly and not aesthetically pleasing. It produces sterile, one-dimensional urban environments which are not convenient, enjoyable or healthy for their residents. Successfully discouraging urban sprawl through local comprehensive planning is not a mystical art. It requires rigorous data collection, thorough analyses of current and future needs, effective planning, and responsible decision making. . . . Also pertinent to the Department's policy on urban sprawl, and an assessment of the propriety of the proposed rules, the State Comprehensive Plan contains a number of goals and policies which both individually and collectively address the issue of urban sprawl. Some of these goals and policies are as follows: (5) HOUSING-- Goal.--The public and private sectors shall increase the affordability and availability of housing for low-income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost- effective operations. Policies-- * * * 3. Increase the supply of safe, affordable, and sanitary housing for low-income and moderate-income persons and elderly persons by alleviating housing shortages, recycling older houses and redeveloping residential neighborhoods, identifying housing needs, providing incentives to the private sector to build affordable housing, encouraging public- private partnerships to maximize the creation of affordable housing, and encouraging research into low-cost housing construction techniques, considering life-cycle operating costs. * * * (8) WATER RESOURCES.-- Goal.--Florida shall assure the availability of an adequate supply of water for all competing uses deemed reasonable and beneficial and shall maintain the functions of natural systems and the overall present level of surface and ground water quality. Florida shall improve and restore the quality of waters not presently meeting water quality standards. Policies.-- * * * 2. Identify and protect the functions of water recharge areas and provide incentives for their conservation. * * * 5. Ensure that new development is compatible with existing local and regional water supplies. * * * Encourage the development of a strict floodplain management program by state and local governments designed to preserve hydrologically significant wetlands and other natural floodplain features. Protect aquifers from depletion and contamination through appropriate regulatory programs and through incentives. Protect surface and groundwater quality and quantity in the state. * * * Eliminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state. NATURAL SYSTEMS AND RECREATIONAL LANDS-- Goal.--Florida shall protect and acquire unique natural habitats and ecological systems, such as wetlands, tropical hardwood hammocks, palm hammocks, and virgin longleaf pine forests, and restore degraded natural systems to a functional condition. Policies.-- Conserve forests, wetlands, fish, marine life, and wildlife to maintain their environmental, economic, aesthetic, and recreational values. Acquire, retain, manage, and inventory public lands to provide recreation, conservation, and related public benefits. Prohibit the destruction of endangered species and protect their habitats. * * * 7. Protect and restore the ecological functions of wetlands systems to ensure their long-term environmental, economic and recreational value. Develop and implement a comprehensive planning, management, and acquisition program to ensure the integrity of Florida's river systems. Emphasize the acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation. Expand state and local efforts to provide recreational opportunities to urban areas, including the development of activity- based parks. * * * 13. Encourage the use of public and private financial and other resources for the development of recreational opportunities at the state and local levels. AIR QUALITY.-- Goal.--Florida shall comply with all national air quality standards by 1987, and by 1992 meet standards which are more stringent than 1985 state standards. Policies.-- * * * 2. Ensure that developments and transportation systems are consistent with the maintenance of optimum air quality. * * * ENERGY-- Goal.--Florida shall reduce its energy requirements through enhanced conservation and efficiency measures in all end-use sectors, while at the same time promoting an increased use of renewable energy resources. Policies-- 1. Continue to reduce per capita energy consumption. * * * Improve the efficiency of traffic flow on existing roads. Ensure energy efficiency in transportation design and planning and increase the availability of more efficient modes of transportation. * * * HAZARDOUS AND NONHAZARDOUS MATERIALS AND WASTE.-- Goal.--All solid waste, including hazardous waste, wastewater, and all hazardous materials shall be properly managed, and the use of landfills shall be eventually eliminated. Policies-- * * * 11. Identify, develop, and encourage environmentally sound wastewater treatment and disposal methods. * * * LAND USE.-- Goal.--In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policies-- 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 popu- lation 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 livability and character of urban areas through the encouragement of an attractive and functional mix of living, working, shopping, and recreational activities. * * * 6. Consider, in land use planning and regulation, the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. * * * DOWNTOWN REVITALIZATION.-- Goal.--In recognition of the importance of Florida's developing and redeveloping downtowns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient, and environmentally acceptable manner, Florida shall encourage the centralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.-- Provide incentives to encourage private sector investment in the preservation and enhancement of downtown areas. Assist local governments in the planning, financing, and implementation of development efforts aimed at revitalizing distress downtown areas. Promote state programs and investments which encourage redevelopment of downtown areas. PUBLIC FACILITIES.-- Goal.--Florida shall protect the substantial investments in public facilities that already exist and shall plan for and finance new facilities to serve residents in a timely, orderly, and efficient manner. Policies.-- Provide incentives for developing land in a way that maximizes the uses of existing public facilities. Promote rehabilitation and reuse of existing facilities, structures, and buildings as an alterna- tive to new construction. Allocate the costs of new public facilities on the basis of the benefits received by existing and future residents. * * * (20) TRANSPORTATION-- Goal.--Florida shall direct future transport- ation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. Policies.-- * * * 2. Coordinate transportation investments in major travel corridors to enhance system efficiency and minimize adverse environmental impacts. * * * Encourage the construction and utilization of a public transit system, including, but not limited to, a high-speed rail system, in lieu of the expansion of the highway system, where appropriate. Ensure that the transportation system provides Florida's citizens and visitors with timely and efficient access to services, jobs, markets, and attractions. * * * (23) AGRICULTURE.-- Goal.--Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Policies. * * * 9. Conserve soil resources to maintain the economic value of land for agricultural pursuits and to prevent sedimentation in state waters. The technical memo, heretofore discussed, addressed in significant detail how some of these goals and policies impact the issue of urban sprawl. The Department has also explicated its policy definition of urban sprawl, as well as the significance of urban sprawl to the state comprehensive plan, in a number of cases where, under the provisions of Section 120.57, a hearing was held to determine whether a plan was in compliance. [See, e.g., Department Exhibits 4-6]. More recently, a challenge to the Department's nonrule policy was rejected by a Hearing Officer of the Division of Administrative Hearings, and that decision was affirmed on appeal. Home Builders and Contractors Association of Brevard, Inc. v. Department of Community Affairs, 585 So.2d 965 (Fla. 1st DCA 1991). In that case, at page 968, the court observed: . . . The hearing officer found that indeed, there was a consensus on the meaning of urban sprawl and that urban sprawl is: [T]he extension of urban-type development into rural, agricultural, or other undeveloped or sparsely developed lands in a haphazard develop- ment pattern in which land uses are not functionally related to each other. Common patterns 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 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. Next, and more importantly, the hearing officer found that DCA does not have any policies of general applicability concerning the application of the urban sprawl rules which it consistently applies to individual plans. The DCA has yet to crystallize any urban sprawl policies which it intends to apply to individual plans. He noted that the application process, which is by nature adjudicatory, demands a through understanding of each plan, including the data and analysis describing the characteristics of the land and existing land uses; the goals, objectives and policies prescribing proposed land uses; and the future land use map. Indeed, he recognized that the myriad of details involved in applying the urban sprawl rules to an individual plan may preclude rulemaking, but even if theoretically possible, rulemaking in the area of application is not now practicable. In short, the alleged nonrule policies do not meet the definition of a rule, Section 102.52(16). These findings, which are conclusive of the outcome of the rule challenge, are based upon competent substantial evidence in the record. Adam Smith Enterprises, Inc. v. Department of Environmental Regulation, 553 So.2d 1260, 1274 (Fla. 1st DCA 1989). The purpose of Chapter 9J-5 and the proposed rules The purpose of Chapter 9J-5, as stated in 9J-5.001, is to "establish minimum criteria for the preparation, review, and determination of compliance of comprehensive plans" pursuant to Chapter 163, Part II, Florida Statutes. "Criterion " is defined in Webster's New Collegiate Dictionary (1974) as "a standard on which a judgment or decision may be based." Consistent with such purpose, Chapter 9J-5 has heretofore established the general requirements for local comprehensive plans, including format (elements), data and analysis requirements, level of service standards, planning time frames, and monitoring and evaluation requirements. Rule 9J-5.005, Florida Administrative Code. The chapter also includes standards for the adoption of concurrency management systems to ensure that adopted level of service standards required for roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation, and mass transit, if applicable, will be maintained. Rules 9J- 5.0055 and 9J-5.0057, Florida Administrative Code. Finally, the chapter includes the minimum requirements for the future land use element; traffic circulation element; mass transit element; ports, aviation and related facilities element; housing element; sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element; coastal management element; conservation element; recreation and open space element; intergovernmental coordination element; and capital improvement element. Common to each of these elements is the requirement that the local government assess current conditions and needs, and project future growth based on appropriate and relevant data and analysis. Rules 9J-5.006-5.016, Florida Administrative Code. Here, the Department is proposing to define the term "urban sprawl" for purposes of Chapter 9J-5 and to establish a methodology or standard for the review of local comprehensive plans or plan amendments for the discouragement of urban sprawl. By so doing, the Department is seeking to codify in rule form the policies it has previously explicated on the subject. In gauging the propriety or sufficiency of the proposed rules, it is important to recognize that an analysis of urban sprawl is but one aspect of a complicated evaluation of a particular plan or plan amendment for consistency, and that such analysis is peculiarly dependent upon an evaluation of the specific plan or plan amendment and its supporting data and analysis. Concomitantly, an analysis of a plan or plan amendment to discern whether it discourages urban sprawl is site or community specific, and no single formula could address the myriad of growth patterns existent within the diverse communities of the State of Florida with mathematical certainty. The proposed rules The rules challenged in these proceedings are proposed rule 9J- 5.003(140), which defines "urban sprawl," and proposed rule 9J-5.006(6), which establishes a process for the review of plans for discouraging the proliferation of urban sprawl. Proposed rule 9J-5.003(140), defines "urban sprawl" as follows: "Urban sprawl" means urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses, and which are characterized by one or more of the following conditions: The premature or poorly planned conversion of rural land to other uses. The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area. The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided. Urban sprawl is typically manifested in one or more of the following land use or development patterns: (1) Leapfrog or scattered development; ribbon or strip commercial or other development; or (3) large expanses of predominantly low-intensity, low-density, or single-use development. This definition of urban sprawl includes terms which also have proposed definitions in Rule 9J-5.003, and are not the subject of challenge. These provisions are as follows: (35) "Density" means an objective measurement of the number of people or residential units allowed per unit of land, such as residents or employees per acre. * * * (37) "Development" has the meaning described in s. 380.04, F.S. * * * (55) "Functional relationship" means a complementary and interactive relationship among land uses or development, including at a minimum a substantial and positive exchange of human interaction, goods, resources, institutions, services, jobs or workers between land uses or developments. * * * (64) "Intensity" means an objective measurement of the extent to which land may be developed or used, including the consumption or use of the space above, on or below ground; the measurement of the use of or demand on natural resources; and the measurement of the use of or demand on facilities and services. * * * (116) "Rural areas" means low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property. The definition of urban sprawl proposed by the Department is a sound generic definition that finds support in the literature and among professional planners. Indeed, urban sprawl is generally conceived as an extension of urban- type development into rural or sparsely developed lands in a haphazard development pattern in which land uses are not functionally or proximately related to each other. Such development may be reasonably described as uncontrolled, poorly planned and premature since it commonly occurs in areas where infrastructure and services do not already exist to serve it and where the urban development or uses are not functionally related to the uses which predominate the area. Moreover, the proof supports the conclusion that, as observed in the proposed rule, the three patterns in which urban sprawl commonly manifests itself are leapfrog or scattered development, ribbon or strip commercial or other development (i.e., retail, office and multifamily residential development), and large expanses of predominately low-intensity, low density, or single-use development. While the proposed rule is sound in a generic sense, that does not suggest that the exercise of professional planning judgment is not required for its application. Indeed, whether the land area at issue in a comprehensive plan or plan amendment is a rural area interspersed with generally "low-intensity or low-density urban uses," and whether such uses or planned uses may be reasonably characterized as the "premature or poorly planned conversion of rural land to other uses," the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area," or the "creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided," certainly involve the exercise of professional judgment in any analysis of a comprehensive plan or plan amendment. Such analysis is not, however, bereft of objective factors to guide it or to test its ultimate conclusions. Indeed, any such analysis is dependent upon the specific comprehensive plan or plan amendment under review, which would include the future land use element, as well as the local government's specific data and analysis which support it. The other rule under challenge, proposed rule 9J-5.006(6), establishes a process for the review of comprehensive plans or plan amendments for discouraging the proliferation of urban sprawl. It is organized into twelve paragraphs, with paragraphs (g)-(j) being the focus of the subject challenge. The purpose or function of paragraphs (g)-(j) are described in the proposed rule as follows: Use of indicators. Paragraph (6)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. Methodology for determining indicators. Paragraphs (6)(h) through (6)(j) describe the three major components of a methodology to determine the presence of urban sprawl indicators. Paragraph (6)(h) describes how land use aspects of a plan shall be analyzed. The land use element, including both the future land use map and associated objectives and policies, represents the focal point of the local government's planning effort. Paragraph (6)(i) describes the unique features and characteristics of each jurisdiction which provide the context of the analysis and which are needed to evaluate the extent, amount or frequency of an indicator and the significance of an indicator for a specific jurisdiction. Paragraph (6)(j) recognizes that land use plans generally may be significantly affected by other development policies in a plan which may serve to mitigate the presence of urban sprawl indicators based on the land use plan alone. Paragraph (6)(j) describes development controls which may be used by a local government to mitigate the presence of sprawl. Simply stated, paragraphs (h)-(j) are the components for an analysis of a plan or plan amendment to discern whether any of the indicators of urban sprawl, specified in paragraph (g), are present. If present, "the extent, amount or frequency of that indicator . . . [or] multiple indicators" must "be considered to determine whether they collectively reflect a failure to discourage urban sprawl." Proposed rule 9J-5.006(6)(d). The primary indicators, established by proposed rule 9J-5.006(6)(g), that a plan or plan amendment does not discourage the proliferation of urban sprawl, are stated to be: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits in fill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among liked or related land uses. Results in the loss of significant amounts of functional open space. As heretofore found, urban sprawl is typically manifested by leapfrog or scattered development, ribbon or strip commercial or other development, and large expanses of predominantly low-intensity, low-density, or single-use development. Indicators 1-3 are appropriate indicators of urban sprawl as they reflect the three typical ways in which it is manifested. Moreover, a plan or plan amendment that evidenced such characteristics might reasonably be found not in compliance with the mandates of Sections 163.3177(1) and (6)(a), Florida Statutes; the State Comprehensive Plan, Section 187.201(16) and (18), Florida Statutes; and, the provisions of Chapter 9J-5, Florida Administrative Code, relating to, inter alia, the minimum criteria required of local government plans relating to the future land use element, and such provisions of law may be reasonably read to speak to the issue of discouraging urban sprawl. Indicator 4 is also an appropriate indicator of urban sprawl since the premature or poorly planned conversion of rural land to other uses frequently intrudes on, or fails to adequately protect and conserve natural resources, such as wetlands, natural groundwater aquifer recharge areas, lakes, rivers and shorelines. As with other indicators, this indicator finds support in, and furthers, existent law which speaks to the adoption of standards for the orderly and balanced growth of an area, including the conservation and protection of natural resources. See Section 163.3177(1) and (6)(d) and (g), Florida Statutes, Section 187.201(9), (10) and (16), Florida Statutes, and Rules 9J- 5.006, 9J-5.011, 9J-5.012, and 9J-5.013, Florida Administrative Code. Indicators 5 and 9 are also appropriate indicators of urban sprawl since the intrusion of urban activities into rural areas frequently has negative impacts on rural uses such as logging, farming and mining. As with the previous indicators, these indicators are supported by, and further, existent law, which addresses the orderly and balanced development of the area, the control and distribution of population densities, the conservation of soil resources to maintain viable agricultural pursuits, and the separation of rural and urban uses. See Section 163.3177(1), and (6)(a) and (d), Florida Statutes, Section 187.201(16)(a), 16(b)2, (23)(a) and (23)(b)9, Florida Statutes, and Rule 9J- 5.006, Florida Administrative Code. Indicators 6 and 7 are also appropriate indicators of urban sprawl since a failure to utilize existing and future capacity of public facilities and services often evidences a failure to guide development into areas with existent infrastructure appropriate for development. These indicators are consistent with, and further, current comprehensive planning laws which favor orderly and balanced development, encourage efficient development, and maximize the use of existing public facilities. See Section 163.3177(1) and (6)(a), Florida Statutes, Section 187.201(16)(a) and (b)1, (17)(a), (18)(a), and (18)(b) 1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 8 is an appropriate indication of urban sprawl for the same reasons addressed as to indicators 6 and 7, and because such premature expansion of land uses requires the extension of public facilities and services at disproportionate costs. This indicator is also consistent with, and furthers, the comprehensive planning laws addressed as to indicators 6 and 7. Indicator 10 is an appropriate indication of urban sprawl since a failure to encourage infill development or the redevelopment of existing neighborhoods and communities is consistent with failing to discourage urban sprawl. This indicator is consistent with, and furthers, the comprehensive planning laws which favor orderly and balanced growth, maximizing the use of existing facilities, the renewal of blighted areas and the revitalization of downtown areas. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(a), (16)(b)1-3, 17(a), 17(b)2, (18)(a) and (18)(b)1 and 2, Florida Statutes, and Rules 9J-5.006, 9J-5.011, and 9J-5.016, Florida Administrative Code. Indicator 11 is an appropriate indication of urban sprawl for the same reasons addressed as to indicator 10, and is consistent with and furthers the comprehensive planning laws supporting that indicator. See also Rule 9J-5.010, Florida Administrative Code. Moreover, the encouragement of an attractive and functional mix of living, working, shopping and recreational activities in an urban area is the antithesis of urban sprawl. Indicator 12 is an appropriate indication of urban sprawl since urban sprawl patterns often result in poor accessibility among related land uses and increase the cost of transportation between related uses. This indicator is consistent with and furthers the comprehensive planning laws which favor orderly, balanced and efficient development, which includes timely and efficient access to services, jobs, markets and attractions. See Section 163.3177(1) and 6(a), Florida Statutes, Section 187.201(16)(b)1 and 3, and (20)(b)9, Florida Statutes, and Rule 9J5-5.006, Florida Administrative Code. Finally, indicator 13 is an appropriate indication of urban sprawl since urban sprawl patterns often result in the loss of significant amounts of functional open spaces ("undeveloped lands suitable for passive recreation or conservation"). This indicator is consistent with and furthers the comprehensive planning laws which address orderly and balanced growth, conservation of natural resources, and the need for recreational and open space. See Section 163.3177(1) and (6)(d) and (e), Florida Statutes, Section 187.201(10) and (16)(b)2, Florida Statutes, and Rules 9J-5.006, 9J-5.013, and 9J-5.014, Florida Administrative Code. While the indicators are reasonable in a generic sense, their existence or significance in any given case is wholly dependent upon an analysis of the specific plan or plan amendment and the local government's specific data and analysis which support it. Notably, these are the factors contemplated by the provisions of paragraphs (h)-(j) of the proposed rule which, when analyzed, presume to provide the insight necessary to render such a conclusion as to whether any indicators of urban sprawl are present. The first step in the analysis is an evaluation of land uses, as prescribed by paragraph (h). Under such provision, a land use analysis is the focus of the review of the plan or plan amendment when determining whether it discourages urban sprawl. The rule provides a list of ten factors by which each land use type (i.e., residential, commercial, industrial, agricultural), included within the plan or amendment, will be evaluated. These factors are: extent, location, distribution, density, intensity, compatibility, suitability, functional relationship, land use combinations, and demonstrated need over the planning period. "Extent," "distribution," "density," "intensity," "compatibility," "suitability," and "functional relationship" are defined by proposed rule 9J- 5.003(50), (39), (35), (64), (28), (131) and (55), respectively. The term "demonstrated need over the planning period" is a term described in existing Rule 9J-5.006, which requires an analysis of the amount of land needed to accommodate the projected population, including the categories of land use and their densities or intensities of use. Petitioners did not challenge any of these rule definitions. The terms "location" and "land use combinations," while not defined in the rules, have a commonly understood meaning among professional planners. "Location" means the situs or relationship of any one land use to any other land use or geographic feature. "Land use combinations" means the different types of land uses (i.e., residential, commercial, industrial, agricultural) on a land use map. Paragraph (i) of the proposed rule specifies the local conditions against which each of the land use factors described in paragraph (h) is to be evaluated. The paragraph lists ten features or characteristics to be used in this evaluation which, like the analysis in paragraph (h), is based on the plan or plan amendment and its underlying data and analysis. These factors are: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Petitioners offered no proof at hearing directly challenging the propriety or reasonableness of any of the factors listed in this paragraph. Moreover, one would expect a plan or plan amendment, together with its data and analysis, to address these factors. Paragraph (j) of the proposed rule sets forth a list of development controls which, to the extent they are included in a local plan, will be evaluated to determine their impact on the land uses at issue and, therefore, the ultimate issue of whether the plan or amendment discourages urban sprawl. A local government is not required to adopt any of the development controls, but if they elect to include them in their plan or plan amendment, the controls, which may mitigate or obviate an urban sprawl issue, are pertinent to the urban sprawl question. Indeed, each of the development controls is an accepted planning technique to control or discourage urban sprawl, and a professional planner should be familiar with such controls and their implications. Viewing the provisions of paragraphs (g)-(j) as a whole, the gist of petitioners' challenge appears to be that, while the purpose of the rule is to discourage urban sprawl, the rule fails to indicate "how much sprawl is acceptable and how much sprawl is too much," that the various indicators and criteria have no established weighting, and the terms used lack definition. Under such circumstances, petitioners argue the rules are vague or vest unbridled discretion in the agency. [See Petitioners' proposed recommended order, paragraphs 27-29.] Such concerns are not however, supported by the proof. As heretofore noted, the meaning applied to the terms used in the rules at issue is contained in other proposed rules, the existing rule, or the terms are commonly understood among professional planners. Moreover, in most cases, the terms used are identical to those employed by the Legislature in the enactment of Chapter 163, Part II, and Chapter 187, Florida Statutes, and the provisions of existing Rule 9J-5, which has been accorded special status by the Legislature under Section 163.3177(9), Florida Statutes. Under such circumstances, these terms have been routinely applied for a significant period of time in the preparation and review of local plans, and are presumably understood by professional planners. In concluding that the indicators and criteria are reasonable, it has not been overlooked that they do not have an established weighting, nor that professional planners could reasonably disagree in their application to a particular circumstance. As to establishing a weighting for each indicator or criteria, the variety of circumstances among local governments and their plans or proposed amendments would foreclose such an approach. As to disagreements among professional planners, such is not a failing of the rule, but the consequence of the diversity or vagary among local plans or amendments, data and analyses and local conditions. Notwithstanding, the plans or amendments, data and analyses, and local conditions provide an objective basis upon which an evaluation can be made and, if necessary, challenged and tested. Finally, as to the rule's failure to prescribe "how much sprawl is acceptable and how much sprawl is too much" the same conclusion must prevail, since it is the plan or amendment, data and analysis, and local conditions that will derive that answer and not the rule. Indeed, the benchmark adopted by the Department to "discourage the proliferation of urban sprawl" is not unreasonable under the circumstances. The common meaning of "discourage" and "proliferation" used in the Department's mandate provide a reasonable benchmark for addressing a problem that cannot be quantified. The word "discourage" means "To dissuade or deter . . . To hamper; hinder . . . To try to prevent," and the word "proliferation" means "To increase or spread at a rapid rate." The American Heritage Dictionary, New College Edition (1979). In reviewing plans or plan amendments as required by the Act, it is presumed that the Department's planners will exercise sound planning judgment and will conform their conduct to existent law. See e.g., Atlantic Coast Line R. Co. v. Mack, 57 So.2d 447 (Fla. 1952). Should the Department fail to do so, or should there be a divergence of opinion among the parties or professional planners, the statutory framework provided by Section 163.3184, Florida Statutes, which establishes the procedures for adoption of comprehensive plans and plan amendments, provides a review process to test, if necessary, the sufficiency and consistency of any Departmental determination regarding urban sprawl or any other planning issue. Moreover, during the course of such review, deference is accorded the decision of the local government, not the Department. Regarding the review process, Section 163.3184, Florida Statutes, provides for initial review of proposed comprehensive plans and plan amendments by the Department, and the rendering of an "Objections, Recommendations, and Comments Report" (ORC Report) by the Department to the local government. The local government, upon receipt of the ORC report, may then adopt or adopt with changes the proposed plan or plan amendment. If adopted, a copy of the adopted plan or plan amendment is filed with the Department, which has 45 days to review it and determine if the plan or amendment is in compliance with the Act. The Department's determination of compliance can only be based upon one or both of the following: The state land planning agency's [Department's] written comments to the local government . . .; and Any changes made by the local government to the comprehensive plan or plan amendment as adopted. Section 163.3184(8)(a), Florida Statutes. If the Department issues a notice of intent to find the plan in compliance, any affected person is accorded an opportunity to file a petition for review pursuant to Section 120.57, Florida Statutes. "In this proceeding the local plan or plan amendment shall be determined to be in compliance if the local government's determination of compliance is fairly debatable." Section 163.3184(9)(a), Florida Statutes. Should the Department issue a notice of intent to find the comprehensive plan or plan amendment not in compliance, the notice is forwarded to the Division of Administrative Hearings (DOAH) for review pursuant to Section 120.57, Florida Statutes. In such proceeding, . . . the local government's determination that the comprehensive plan or plan amendment is in compliance is presumed to be correct. The local government's determination shall be sustained unless it is shown by a prepond- erance of the evidence that the comprehensive plan or plan amendment is not in compliance. The local government's determination that elements of its plans are related to and consistent with each other shall be sustained if the determination is fairly debatable. Section 163.3184(10)(a), Florida Statutes. In either case, the recommended order rendered by DOAH is subject to final agency action by the Department or the Administrative Commission, as appropriate, and ultimately judicial review. Sections 120.68 and 163.3184(9), (10) and (11), Florida Statutes.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Respondent, Jefferson County (County), 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. At issue in this case is a land development regulation adopted by the County. Petitioner, Jack Hamilton, is a resident of Jefferson County. He owns and operates a nursery, orchard and cattle operation on his property on the east side of Highway 19, approximately two miles north of Monticello, Florida. The land, which is approximately 135 acres in size, is presently designated in a land use category known as Agriculture 2. For almost thirty years, the Jefferson Nursing Center (JNC), a nursing home, has been situated on a seven acre parcel of land surrounded on three sides by petitioner's property. Here, petitioner challenges a land development regulation which allows nursing homes, including JNC, in the Agriculture 2 category. The parties have stipulated that petitioner is a substantially affected person within the meaning of the law and thus he has standing to bring this action. The County adopted its comprehensive plan (plan) on July 19, 1990. The plan was later determined by the DCA to be in compliance. The County has also adopted a Land Development Code (Code) containing various land development regulations which implement the plan. Prior to the adoption of the challenged ordinance, Section 2.02.03(B)3. of the Code included a provision allowing, among other things, the following uses in the Agriculture 2 land use district: Institutional, excluding residential care facilities and nursing homes. On September 1, 1994, the County adopted Ordinance No. 94-15, which amended Section 2.02.03(B)3. by removing the exclusion, thereby allowing nursing homes and residential care facilities in the Agriculture 2 land use district. Thus, the ordinance made nursing homes a permitted use in the Agriculture 2 district, like all other institutional uses which were allowed in agriculture districts. This was also consistent with other Code provisions which allowed nursing homes in almost every other district. On August 15, 1995, petitioner filed a petition with the DCA contending that the land development regulation was not consistent with the plan. An amended petition was later filed on September 12, 1995, alleging generally that nursing homes did not conform to, and were incompatible with, agriculture uses. On November 13, 1995, the DCA entered its Determination of Consistency of Jefferson County Ordinance 94-15. Among other things, the DCA based its finding of consistency on the following provisions in the Housing Element of the plan: GOAL: Assure the availability of housing to meet the existing and future needs of all residents of Jefferson County for all income levels. Objective 5: The useful life of the existing housing stock will be conserved and extended, and neighborhood quality will be improved. Policy 5-3: The County shall establish non-discriminatory standards and criteria addressing the location of group homes and foster care facilities as well as other types of special need housing. The specific uses to be allowed in the agricultural land use categories were largely deferred to the land development regulations contained in the Code. Those regulations define residential care facilities and nursing homes (group homes) as institutional uses. Policy 5-3 requires that the County establish "non-discriminatory standards and criteria" in addressing the location of group homes. Before the adoption of Ordinance 94-15, all institutional uses, except nursing homes and residential care facilities, were allowed in agricultural districts. The new land development regulation removes this discriminatory feature. The plan recogizes that the character of development in the rural areas of the County is of mixed uses which are of a scale to intermix without creating incompatibilities. The area in which petitioner's property and JNC are located contains a mix of uses. Ordinance No. 94-15 is consistent with the character of rural development in the County. The Future Land Use Element of the plan provides in relevant part as follows: GOAL: Efficiently manage and regulate land use types, locations, and densities in compatibility with natural and man-made resources so as to provide the residents of Jefferson County with an aesthetically pleasing, economically beneficial, and socially adequate environment. * * * Policy 1-3: The categories on the Future Land Use Map are defined as follows: * * * Agriculture 2: This includes areas appropriate for a variety of agricultural uses, including but not limited to crop land, pasture land, orchards and groves, or forestry. Dwellings and associated accessory farm buildings are allowable. Density for residential use shall not exceed 1 unit per 5 acres, except that transfer of property to members of the principal owner's immediate family is allowable, provided that all other applicable requirements are met. However, as provided in other policies of the Future Land Use Element, density is calculated on a gross basis (area-based allocation); actual units should be clustered, subject to the requirements set forth in the objectives and policies of the comprehensive plan so long as the gross density is not exceeded. Under the plan, dwellings are allowed uses in the agriculture 2 land use district. A disputed issue is whether the uses allowed by Ordinance No. 94- 15 are residential uses. Petitioner's expert conceded that it is within the discretion of a local government to define nursing homes as a residential use, and that the County's plan tends to do so. The evidence establishes that residential care facilities, such as adult congregate living facilities, are a residential land use. Since dwellings (residences) are an allowed use in the agriculture 2 land use district, it is at least fairly debatable that residential care facilities are also allowed in that district. In addition, in the Housing Element of the plan, nursing homes are included in the discussion and inventory of group homes in the County. They are considered to be special needs housing for the elderly. The plan recognizes that housing needs for the elderly often form a distinct sub-market of the total housing market, and projects that the elderly population (65 and older) will be the second fastest growing age group in the County by the year 2000. When reading the Housing Element provision in pari materia with the Future Land Use Element, it is at least fairly debatable that nursing homes are residential or dwelling uses in the plan and are therefore allowed in the agriculture 2 district. Given the foregoing, it is found that the challenged land development regulation is consistent with the plan.
The Issue The issue in this case is whether the City of Gainesville comprehensive plan amendment adopted by Ordinance No. 4036 on October 24, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: The Parties Respondent, City of Gainesville (City), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered and enforced by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto. Petitioners, Mark Barrow, Jane Myers, Wilse Barnard, Mary Webb, and Steven and Mary Reid, own property and reside within the City. Petitioners, Historic Gainesville, Inc. and Duckpond Neighborhood Association, Inc., are organizations made up of persons who reside, own property, or operate businesses within the City. By stipulation of the parties, petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenors, John and Denise Feiber and Katherine Bodine, are the owners of two parcels of property which are at issue in this case. Intervenors submitted oral and written comments during the plan amendment review and adoption proceeding and thus have standing as affected persons to participate in this proceeding. Background During 1993 and 1994, John Feiber unsuccessfully attempted to sell his 1,800 square foot single-family home for an asking price that was disproportionately high for residential property, and was more in keeping with a commercial asking price. Recognizing that the property would be far more valuable with a commercial classification than its current residential designation, on June 11, 1994, Feiber, his wife, and the owner of the property next door, Katherine Bodine, submitted an application for an amendment to the City's Future Land Use Map (FLUM) to convert a .57 acre parcel from Residential- low Density to Planned Use District (PUD) to change a single family home into a law office, potentially convert an adjacent structure into mixed office and residential uses, and possibly build a third office building. Although the City's Plan Board unanimously recommended that the application be denied, by a 4-1 vote the City approved the application on October 3, 1994. This approval was formally ratified through the adoption of Ordinance No. 4036 on October 24, 1994. After essentially deferring to the City's findings, on January 25, 1995, the DCA completed its review of the amendment and issued a Notice of Intent to find the amendment in compliance. On February 15, 1995, petitioners filed their petition for administrative hearing with the DCA generally contending the amendment was internally inconsistent and violated certain parts of Chapter 163, Florida Statutes, the state comprehensive plan, and Chapter 9J- 5, Florida Administrative Code. In resolving these contentions, on which conflicting evidence was presented, the undersigned has accepted the more credible and persuasive evidence. Finally, by order dated March 30, 1995, intervenors were authorized to participate in this proceeding in support of the amendment. The Affected Neighborhood The parcel in question consists of two lots, one owned by the Feibers, the other by Bodine. Both lots are located within, and on the edge of, the Northeast Gainesville Residential Historic District (Historic District), a 63- acre collection of properties, which by virtue of the historically significant structures and residential land use patterns, qualified for listing on the National Register of Historic Places in 1980. The dominant land use and character within the Historic District is residential, and has been since it was zoned residential in 1932. Land uses on Northeast First Street, which forms the western boundary of the District, were always institutional, but on the east side of Northeast Second Street eastward, the uses were always residential with the exception of the Thomas Center, a 1920's vintage building now serving as a City office building. The Historic District is located in downtown Gainesville, beginning just north of East University Avenue and continuing northward until Northeast Tenth Avenue. Within its boundaries on the FLUM are two distinct land use designations, Residential-Low Density and Office. Northeast Second Street serves as the land use boundary between the two, with residential uses permitted on the east side and nonresidential uses permitted on the west side of the street. There have been no encroachments across the residential land use line since 1976 when a nonconforming parking lot was approved by the City. When the City adopted its comprehensive plan in 1985, and revised it in 1991, it continued the same two land uses, thereby codifying existing residential land use patterns and the conversion of office uses that had already occurred along First Street Northeast in the early 1970s. The Amendment As noted above, the parcel in question consists of two legal lots, one owned by the Feibers, the other by Bodine. The amendment changes the FLUM portion of the City's 1991-2001 comprehensive plan to reflect a PUD overlay for the parcel. The land is presently designated as residential-low density, a category in which office uses are not permitted. According to policy 2.1.1 of the Future Land Use Element (FLUE), this land use category is appropriate "for single family development, particularly the conservation of existing traditional low-density neighborhoods, single-family attached and zero-lot line development, and small scale multi-family development." Conversely, the same policy provides that "office designations shall not encroach in viable residential areas nor expand strip development." By their application, John and Denise Feiber seek to convert their single-family home at 206 N. E. Third Street into a law office. An adjacent two-story structure located at 206 N. E. Second Avenue would possibly be converted to office uses on the first floor and residential uses on the second floor. That building is owned by Katherine Bodine, an absentee landlord who resides in Jacksonville, Florida. The amendment also permits, but does not require, future consideration of a third, multi-story structure to accommodate offices. After the amendment was approved by the City, Bodine immediately listed her parcel for sale, and its future development is uncertain at this time. FLUE policy 2.1.1 describes the PUD designation as follows: This category is an overlay land use district which may be applied on any specific property in the City. The land use regulations pertaining to this overlay district shall be adopted by ordinance in conjunction with an amendment to the Future Land Use Map of this comprehensive plan. The category is created to allow the consideration of unique, inno- vative or narrowly construed land use proposals that because of the specificity of the land use regulations can be found to be compatible with the character of the surrounding land uses and environmental conditions of the subject land. Each adopting PUD overlay land use designation shall address density and intensity, permitted uses, traffic access and trip generation, environmental features and buffering of adjacent uses. Planned Development zoning shall be required to implement any specific development plan. In the event that the overlay district has been applied to a site and no planned development zoning has found approval by action of the City Commission within one year of the land use designation, the overlay land use district shall be deemed null and void and the overlay land use category shall be removed from the Future Land Use Map, leaving the original and underlying land use in place. Therefore, any land use proposal under this category must be "compatible with the character of the surrounding land uses and environmental conditions" and address the "buffering of adjacent uses." It follows that a PUD may not be applied arbitrarily, but rather it must be appropriate for the area and specific site. The amendment applies the following land use regulations to both the Feiber and Bodine parcels: Residential use of up to ten (10) units per acre and all uses permitted by right and by special use permit within the RMF-5 zoning district is authorized; the maximum floor area of all buildings and structures is 7,185 square feet; the Historic Preservation/ Conservation District requirements of Section 30-79, Land Development Code of the City of Gainesville regulate and control the development and design of all buildings, structures, objects and related areas; in addition to the Landscape and Tree management requirements of the Land Development Code, the property is required to be planted and maintained with residential scale landscaping to conform to the surrounding residential neighborhood, as well as act as a buffer for the surrounding uses; the average weekday afternoon peak trip generation rate per 1,000 square feet of gross floor area in office use is not permitted to exceed 1.73; any application for development is required to meet concurrency requirements of Article III of the City of Gainesville Land Development Code for each phase of development; and off-street parking is required to be provided unless on- street parking is created, pursuant to a plan attached to the ordinance as Exhibit "D". The amendment also applies the following land use regulations specifically to the Feiber parcel: An additional land use, Legal Services, as defined in Major Group 81 of the Standard Industrial Classification Manual, 1987 ed. is authorized; the maximum floor area authorized for such Legal Services is one thousand seven hundred eighty five (1,785) square feet; and, if on-street parking is not provided in accordance with the plan provided in Exhibit "D" of the ordinance, then off-street parking must be provided within 300 feet of the Feiber parcel. Finally, the amendment applies the following land use regulations to the Bodine parcel: Non-residential land uses are permitted as specified in Exhibit "E" of the ordinance; the maximum floor area authorized for non-residential uses is three thousand six hundred (3,600) square feet; the second story of the existing building is limited to residential use only; and on-site parking limitations are imposed. In accordance with policy 2.1.1, Planned Development (PD) zoning is required to implement the development plan and the uses permitted in the amendment. The underlying FLUM designation of Residential Low Density, which allows up to 12 units per acre, is neither abandoned nor repealed, but rather remains inapplicable, so long as the property is developed in accordance with a development plan to be approved when the implementing PD zoning is adopted, and such implementing zoning must be adopted within one year of the amendment becoming effective. Data and Analysis Data and Analysis Before the City Basically, the City concluded that the amendment could be justified on the theory that the conversion would provide commercial "infill" of an underutilized parcel with step-down transitions to the inner neighborhood. It further concluded that because of the small size of the parcel involved, the conversion would have a de minimis effect on the neighborhood. When the amendment was adopted, the City had before it the previously adopted comprehensive plan, including the original data and analysis to support that plan, and testimony and exhibits offered both for and against the amendment during a local government hearing conducted on October 4, 1994. Significantly, the City had no studies of any kind regarding marketability, neighborhood stability, availability of land for office and residential uses, or traffic. Indeed, in preparation for final hearing, its expert simply made a walking tour of the neighborhood. Data and Analysis Before the Department On October 28, 1994, the City transmitted the amendment to the DCA for review. The transmittal package contained the following items: The City's Final Order; Ordinance No. 4036, with Exhibits A-E; interoffice communication to the City Commission from the City Plan Board dated July 11, 1994; interoffice communication to the City Plan Board, Planning Division Staff dated June 16, 1994; attachment to Land Use Application (pages 1-5); and excerpts from the City Zoning and Future Land Use Maps showing the zoning and land uses assigned to adjacent properties. However, the transmittal package did not include transcripts of the City Plan Board hearing, the Commission Adoption hearing, or any part of the record of the quasi-judicial hearing of October 4, 1994. The DCA planning staff consulted data contained in the Department of Transportation's ITE Manual in analyzing the traffic and parking impacts of the adopted land use map amendment. It also contacted the Department of State, Division of Historic Resources (Division), for analysis of the amendment's impact on historic resources, and it received comments on the amendment from the the North Central Florida Regional Planning Council (NCFRPC). The DCA planning staff also analyzed the FLUM to determine compatibility of the amendment with surrounding uses. During this review, the DCA planning staff reviewed all pertinent portions of the City's Plan Goals, Objectives and Policies (GOPs) and data and analysis. This review was done in a cursory fashion, however, since the DCA viewed the application as being a very small project with no perceived impact. Given the lack of any studies concerning marketability, neighborhood stability, availability of land for office and residential uses, and traffic, all of which are pertinent to this amendment, it is found that the City and DCA did not use the best available data and analysis. Therefore, the amendment is inconsistent with the requirement in Rule 9J-5.005(2), Florida Administrative Code, and Section 163.3177, Florida Statutes, that the best available (and appropriate) data and analysis be used. Compatibility with Adjacent Uses To the south of the subject parcels is a four-lane loop road (Northeast Second Avenue) which now serves as a buffer from the adjacent uses. Across the street to the south is City Hall, which was constructed more than thirty years ago. To the west of the property is a commercial parking lot with an office building next door to that parking lot. On the east side of the property are multi-family dwellings. To the south and east from the parcels is a commercial lot. An area from the corner of Northeast Second Avenue and Northeast First Street, one block from the subject parcels, and proceeding north along Northeast First Street, contains many non- residential uses, including offices. Areas to the north are predominately multi-family and single-family uses. Transitional uses and buffering are professionally-acceptable planning tools. However, changing a single-family dwelling into an office does not enhance buffering for the residential properties further in the neighborhood because the Feiber house is currently a less intense use than office. Therefore, the amendment conflicts with the plan's requirement that a PUD provide buffering for adjacent uses. The concept of transitional uses entail the practice of providing for a gradation of uses from high-intensity to low-intensity uses. Insertion of another non-residential use at the Feiber property to achieve a chimerical "step-down transitional use" merely moves the "edge" another step inward. Nonresidential uses already exist just outside the Historic District neighborhood that would meet this "step-down" criteria. Retrofitting an existing neighborhood is not appropriate unless it is no longer viable, which is not the case here. Contrary to the proponents' assertion, the Feiber and Bodine parcels will not provide the transitional uses of office and multi-family uses between the high-intensity office (City Hall) uses and lower intensity, multi-family uses to the north of the subject parcels. The four-lane street between the City Hall and the subject property now serves as an adequate buffer. A major goal of the City's plan is to protect viable, stable neighborhoods, and the FLUM, with its residential land use category, provides that protection. This goal cannot be achieved by converting these parcels to office use. Another major goal of the plan is to protect and promote restoration and stablization of historic resources within the City. That goal cannot be achieved by converting these parcels to nonresidential uses. Yet another major goal of the plan is the prohibition of office uses intruding into residential neighborhoods. The amendment contravenes that requirement. Impact on Historic Resources As noted earlier, the Feiber and Bodine properties are located on the southern edge of the Historic District of the City, separated from the City Hall by a one-block long segment of a four-lane street plus the full half-block length of the City Hall parking lot. A major goal of the City's plan is the protection of historic architectural resources and historically significant housing within the City. This goal is found in FLUE objective 1.2, Historic Preservation Element goals 1 and 2, and Housing Element policy 3.1.3. This overall major goal, as embodied in the foregoing objective, policies and goal, cannot be furthered by the amendment. Conversions which intrude across stable boundaries, such as exist in this neighborhood, begin a pattern of disinvestment. As investment subsides, the physical, historic structures will be adversely affected. The conversion contemplated by the amendment would represent a small encroachment of office use into the neighborhood with a cumulative effect. There is nothing to preclude its precedential effect or encouragement of similar applications. Although the Division of Historic Resources stated that it had no objection to the amendment, its acquiesence to the amendment is not controlling. Rather, the more persuasive evidence supports a finding that the amendment will have an adverse impact on the Historic District and will not further applicable goals, policies and objectives. Local Comprehensive Plan Issues One criteria for evaluating a plan amendment is whether it would result in compatibility with adjacent land uses. The overriding goal in the area of compatibility analysis is the protection of viable, stable neighborhoods. There is nothing in the plan amendment itself which provides compatibility or buffering for the residential properties located to the north and east of the subject parcel. Indeed, office development of the land will increase the pressure to convert more structures. Objective 2.1 of the FLUE establishes an objective of providing sufficient acreage for residential, commercial, mixed use, office and professional uses and industrial uses at appropriate locations to meet the needs of the projected population. Those acreages are depicted on the FLUM. When reviewing a FLUM amendment, such as the subject of this proceeding, the City is required to make a need analysis. The amendment is not supported by any analysis of need. Prior to the amendment, the plan contained an overallocation of office space and a shortage of housing for Market Area 4, in which the subject parcel is located. The amendment does not increase available housing or alleviate the overallocation of office space in Market Area 4. Indeed, it has a contrary result. Adaptive reuse is not promoted by the City's plan. Rather, the Housing Element promotes restoration and conservation of historically or architecturally significant housing, which means returning to housing use, not adapting structures to some other use. In this respect, the amendment is contrary to the City's plan. Summary Because the plan amendment is internally inconsistent and not based on the best available data and analysis, it is found that the amendment is not in compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the amendment to be not in compliance. DONE AND ENTERED this 19th day of September, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0749GM Petitioners: Petitioners' proposed findings, while substantially modified and shortened, have been generally adopted in substance. Respondents/Intervenors: 1-8. Partially covered in findings of fact 10-16. 9-37. Partially covered in findings of fact 17-22. 38-53. Partially covered in findings of fact 23-30. 54-71. Partially covered in findings of fact 31-33. 72-106. Partially covered in findings of fact 31-38. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, cumulative, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Patrice F. Boyes, Esquire W. David Jester, Esquire Post Office Box 1424 Gainesville, Florida 32602-1424 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602 Suzanne H. Schmith, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 C. David Coffey, Esquire 105 S. E. First Avenue, Suite 1 Gainesville, Florida 32601-6215 James F. Murley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact The signs in question are located on Interstate 10, an interstate highway. One sign is located one-half mile west of the intersection of Interstate 10 and State Road 79, and the other sign is located one mile east of said intersection. The first sign is located 120 feet and the second sign located 130 feet from the nearest edge of pavement of Interstate 10. Neither sign is located within an incorporated city or town, and neither has been issued a permit as required by Section 479.07, Florida Statutes. The owner of the signs holds leases from the owners of the land upon which the signs are located. The signs were constructed in the first week of December, 1978, after Interstate 10 was opened to public use and accepted as part of the interstate system. On July 2, 1979, Holmes County duly adopted a comprehensive land use plan, which provides in pertinent part as follows: It is the intent of this plan that a strip of land 50 feet wide, lying on either side of I-10 and extending east and west one mile from S.R. 79 interchange and one mile from S.R. 81 interchange, be considered commercial, for the express purpose of allowing the business of Holmes County to place signs along the side interstate highway, and be in conformance with the provisions of Chapter 479, Florida Statutes. Both signs in question are located in the area described above in the comprehensive land use plan. Having adopted the comprehensive land use plan, Holmes County is now developing its zoning plan in the manner outlined in Chapter 163, Florida Statutes. However, the zoning ordinance has not yet been adopted by Holmes County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, tee Hearing Officer recommends that the Department of Transportation net grant permits to the subject signs and, having been found in violation of Section 479.07, Florida Statutes, said signs be removed. DONE and ORDERED this 13th day of November, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 James E. Moore, Esquire 102 Bayshore Drive Post Office Box 746 Niceville, Florida 32578
Conclusions On March 10, 2010, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File in the above captioned case.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, OFFICE OF THE GENERAL COUNSEL - CALDWELL BUILDING, 107 EAST MADISON STREET, MSC 110, TALLAHASSEE, FLORIDA 32399-4128, WITHIN 30 DAYS OF THE DAY THIS ORDER IS 2 Final Order No. DEO11-0006 FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE THEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Economic Opportunity, and that true and correct copies have been furnished to the persons listed below in the manner described, on this fopllriay of October 2011. : Miriam Snipes, Agency Clerk DEPARTMENT OF ECONOMIC OPPORTUNITY 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By U.S. Mail: Alfred J. Malefatto, Esquire Greenberg Traurig, P.A. 777 South Flagler Drive, Suite 300E West Palm Beach, Florida 33401 R. Max Lohman, Esquire Corbett and White, P.A; 1111 Hypoluxo Road, Suite 207 Lantana, Florida 33462 Brian Joslyn, Esquire Gregory S. Kino, Esquire Boose, Casey, Cikin, Lubitz, Martens, McBane & O*Connell Northbridge Center, 19th Floor 515 North Flagler Drive West Palm Beach, Florida 33401-4626 By Hand Delivery: David L. Jordan, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399-4128 By Filing with DOAH: The Honorable D. R. Alexander Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Final Order No. DEO11-0006
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED THAT: The Board enter an order finding that the 275 acre site itself proposed for Unit 3 is consistent and in conformity with existing land use plans and zoning ordinances; The Board find the railroad spur to be consistent with Polk County's zoning ordinance. The Board find that the proposed 46 mile associated transmission line is consistent and in conformity with existing land use and zoning ordinances with the exception of that portion of the line which traverses the Green Swamp area; and The Board hold the transmission line within the Green Swamp area not to be in conformance or compliance with the Green Swamp regulations, and that the applicant must apply for a variance from such regulations to Polk County officials before any further consideration of this certification by the Board. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of September, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether the Bradford County Board of County Commissioners should approve or deny an application to rezone a 12.76-acre parcel located at the southwest corner of Highway 301 and County Road 18 in unincorporated Bradford County (“the Property”) from Residential, (Mixed) Single Family/Mobile Home (RSF/MH-1) to Commercial Intensive (CI).
Findings Of Fact The Parties Petitioners Craig W. Patterson and Timothy Buffkin own the Property and are the applicants for the proposed re-zoning. Bradford County is the local government responsible for determining the land use designation and zoning classification for the Property and has adopted a comprehensive plan and LDRs which it amends from time to time. The Property The Property is a 12.76-acre parcel located at the intersection of U.S. Highway 301 (US 301) and County Road 18 (CR 18) in unincorporated Bradford County. US 301 is a four-lane divided principal arterial roadway, and CR 18 is a two-lane major collector roadway. The intersection has a traffic light and left turn lanes on US 301. This is the only intersection of a principal arterial road and a major collector road in unincorporated Bradford County. The Property is roughly rectangular, with approximately 1,240 linear feet fronting on US 301 (eastern boundary of the Property) and approximately 450 feet fronting on County Road 18 (northern boundary). The Property is not located within a flood-prone area and has little or no wetlands. Approximately a half mile to the east of the Property is Hampton Lake. The Property is relatively flat. The soils on the property are poorly drained soils, but not indicative of wetlands. The soils and topography of the property do not preclude its development with a system to control stormwater and drainage. Currently, the Property contains one single-family dwelling unit. The Property is bounded on the north by a commercial land use and single-family residences, on the east by vacant and commercial land use, on the south by vacant land, and on the west by vacant land and single-family residences. Current Zoning and Land Use Designations Before October 2004, the Property was designated on the County’s Future Land Use Map (FLUM) as “Residential Low Density,” which authorizes residential development at a density of less than or equal to two dwelling units per acre. On October 21, 2004, the County amended the FLUM to re-designate the Property as “Commercial.” However, the zoning for the Property remained “Residential, (Mixed) Single Family / Mobile Home (RSF/MH-1). The current zoning does not allow the types of uses appropriate under its Commercial land use designation. The Property is also located within an Urban Development Area which is defined in the Future Land Use Element of the comprehensive plan as an “area to which higher density agricultural, residential (single family, multi-family and mobile homes) and commercial and industrial uses are to be directed.” Within Urban Development Areas, lands classified as “Commercial” are to be used for the “sale, rental and distribution of products or performance of services, as well as public, charter and private elementary, middle and high schools.” Certain other uses may also be approved as special exceptions or special permits. Surrounding Land Uses A portion of the land to the north of the Property and all of the land immediately east are within the municipal boundaries of the City of Hampton. The City of Hampton has zoned property at the US 301/CR 18 intersection as “CG”, a commercial designation which includes all of the uses authorized under Bradford County’s CI zoning district. Within the past several years, a truck repair and auto parts facility was located and is still operating east of the Property, across US 301. Farther east, but bordering those commercial lands, a residential subdivision (Fox Hollow) is under development. The Requested Re-zoning The Applicants seek to re-zone the Property to Commercial Intensive (CI). Permitted principal uses and structures allowed within the CI zoning district are consistent with the types of commercial uses listed in the comprehensive plan for the Commercial land use designation, namely retail outlets for the sale of food, home furnishings, vehicles, etc.; service establishments such as barber shops, shoe repair shops, repair and service garages; medical or dental offices; and wholesaling. The CI zoning district is described as “intended for intensive, highly automotive-oriented uses that require a conspicuous and accessible location convenient to streets carrying large volumes of traffic and shall be located within commercial land use classifications on the [FLUM].” The Property meets the description of a conspicuous and accessible location that is convenient to streets carrying large volumes of traffic. Concurrency Management Assessment The requested re-zoning is a “straight” re-zoning request, meaning that the re-zoning is not associated with any particular proposed use. Future development of the site will be subject to development plan review and approval, pursuant to Article Fourteen of the County LDRs. A concurrency reservation is not available until final site plan approval. However, at the County’s request, the North Central Florida Regional Planning Council (NCFRPC) performed concurrency management assessments of the re-zoning in 2006 and again in 2008. In 2006, the NCFRPC provided the County with nonbinding concurrency determination that the applicable service levels would be met or exceeded for potable water (to be supplied by potable water wells); sanitary sewer (to be served by on-site septic tanks); solid waste; drainage; recreation; affordable housing; and historic resources. As to transportation facilities, the 2006 concurrency management assessment determined that the maximum potential development of the Property would generate 389 trips on US 301 at “PM peak hour.” When added to the then-existing PM peak hour trips, based on Florida Department of Transportation (FDOT) traffic count data, US 301 would continue to operate within the adopted level of service (LOS). Between 2006 and 2008, the adopted LOS standard for US 301 was raised from “C” to “B,” meaning that the governmental objective was changed to maintain a freer flow of traffic during evening peak traffic. Therefore, despite the reduction of “background” trips on US 301, the 2008 concurrency management assessment determined that maximum development of the Property would cause the new LOS “B” standard to be exceeded. Petitioners presented a traffic analysis based upon more recent FDOT traffic count data than was used by the NCFRPC for its 2008 concurrency management assessment. The newer data showed a further decline in background trips on US 301, so that adding the maximum potential trips from the Property would no longer result in total PM peak hour trips that would exceed the adopted LOS standard. Petitioners’ more recent data and analysis is professionally acceptable and should be used. At the time of site plan review for any future development of the Property, an updated concurrency assessment will be required and will be based on the number of trips generated by the actual proposed use, rather than the trips that would be generated by the maximum development potential of the Property. The assessment will also use the most current FDOT traffic count data. Compatibility with Surrounding Land Uses The County’s Planning and Zoning Board reviewed the application for re-zoning at its July 10, 2006, meeting. It recommended denial of the re-zoning based upon the impact of the proposed change upon living conditions in the neighborhood. As factual support for the recommended denial, the Planning and Zoning Board’s report cites “all comments received during the said public hearing and the Concurrency Management Assessment concerning said application.” At the August 19, 2008, public hearing held before the Administrative Law Judge, members of the public expressed concern that the CI zoning would be incompatible with the existing residential development to the west, in the Hampton Lake area. Some members of the public also expressed concern about possible future uses of the Property, such as a truck stop or bar. Package stores for the sale of alcoholic beverages, bars, taverns, cocktail lounges, truck stops and automotive service stations can only be approved as special exception uses in the CI zoning district. Special exception uses require approval of the County’s Board of Adjustment after a public hearing, upon a finding that granting the special exception use would promote the “public health, safety, morals, order, comfort, convenience, appearance, propriety or the general welfare.” The Board of Adjustment must also determine that the special exception use would be compatible with adjacent properties. A favorable decision here on the requested re-zoning to CI is not a determination that a bar or truck stop on the Property would be compatible with the adjacent residential area. The LDRs impose site use and design criteria for commercial uses that adjoin residential districts. Site plan approval for commercial developments in CI zoning districts requires the consideration of landscape buffers, height restrictions, off-street parking requirements, lot coverage and yard standards. These development conditions are designed to minimize impacts to adjacent residential areas. Stormwater Some of the speakers at the public hearing expressed concern about stormwater runoff from the Property. One speaker, Michael Davis, testified that stormwater from the Property currently flows across his property. Another expressed concern that runoff from the Property would flow directly to Hampton Lake. On-site stormwater retention facilities would be required for the Property in conjunction with its development. The LDRs require that post-development runoff rates not exceed pre-development conditions. The objective of the required stormwater runoff controls is to approximate the rate, volume, quality, and timing of stormwater runoff that occurred under the site’s unimproved or existing state. There is no basis, at this stage of analysis, to determine that the County’s stormwater regulations are not adequate to prevent adverse stormwater impacts to adjacent residences or to Hampton Lake. Traffic on CR 18 Several speakers expressed concerns regarding increased traffic on CR 18. Petitioners conducted a site-specific traffic count for CR 18 east of US 301 and determined that the peak hour trips are now 131. The capacity for CR 18 is approximately 600. Based upon the total of 389 additional trips generated by the maximum potential development of the Property (on either US 301 or CR 18), the adopted LOS standard for CR 18 would not be exceeded. Petitioners demonstrated that the proposed re-zoning is consistent with the comprehensive plan and the LDRs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County Board of County Commissioners approve the requested re-zoning. DONE AND ENTERED this 18th day of September, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2008. COPIES FURNISHED: Ray Norman, Clerk of the Board Bradford County Board of County Commissioners 945 North Temple Avenue Starke, Florida 32091 Marcia Parker Tjoflat, Esquire Charles L. Gibbs, Esquire Pappas Metcalf Jenks & Miller, P.A. 245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202 William E. Sexton, Esquire Brown & Broling 486 N. Temple Avenue Starke, Florida 32091
The Issue Whether Respondent, while serving as an appointed member of the Ocoee Planning and Zoning Commission, violated section 112.313(7)(a), Florida Statutes (2015)1/ by having a contractual relationship that conflicted with his official responsibilities; and, if so, the appropriate penalty.
Findings Of Fact At all times material to the complaint, Respondent served as an appointed member of the Ocoee P & Z Commission. Respondent is subject to the requirements of part III, chapter 112, Florida Statutes, the Code of Ethics for Public Officers and Employees, for his acts and omissions during his tenure on the P & Z Commission. As a member of the P & Z Commission, Respondent is subject to the “Ocoee Florida Land Development Code, Section 3, Planning and Zoning Commission [Land Development Code].” Section 3-2 of Land Development Code provides in part as follows: Establishment and Membership The Planning and Zoning Commission shall consist of nine (9) members appointed by the City Commission and one member appointed by the School Board of Orange County as a non- voting member. The member appointed by the School Board of Orange County shall attend those meetings at which the Planning and Zoning Commission considers comprehensive plan amendments and rezonings that would, if approved, increase residential density on the property that is the subject of the application. No member shall be an employee of the City of Ocoee and all members, except the member appointed by the School Board of Orange County, shall be residents of the City of Ocoee. When selecting members to the Planning and Zoning Commission, the City Commission shall attempt to select persons from different geographical areas within the City so as to create geographical diversity and representation. * * * E. Compliance with Laws The Planning and Zoning Commission, and its individual members, shall comply with all applicable laws relative to public bodies, including disclosure of interests and procedure[s] for refraining from participation [when] a conflict of interest exists. * * * G. Duties and Responsibilities To act as the Local Planning Agency (LPA) of the City of Ocoee, pursuant to Section 163.3174, Florida Statutes, and to prepare on its own initiative recommendations for amendments to the Comprehensive Plan of the City of Ocoee, including text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to the Comprehensive Plan. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To prepare on its own initiative recommendations for amendments to this Code, text and/or maps, and to forward such amendments to the City Commission for consideration. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for amendments to this Code, including applications for annexation or change of zoning. Pursuant to Section 163.3174(4)(c), Florida Statutes, the Planning and Zoning Commission shall also have the responsibility to review and make a finding as to the consistency of the proposed land development regulation with the adopted Comprehensive Plan and to report such finding to the City Commission. No such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To review and make recommendations to the City Commission on applications for various development approvals or permits as provided within this Code, including, but not limited to Planned Unit Developments (PUD), special exceptions, subdivisions, and any other application for which the City Commission requests a report and/or recommendation. Where a public hearing is required by the applicable procedural section, no such recommendation shall be made except after a public hearing held in accordance with State and local requirements. To act in an advisory capacity to the City Commission on land use and land development issues and to make such studies and to conduct such investigations as may be requested from time to time by the City Commission. To review zoning of newly annexed lands when it represents an increase in intensity of use or a conflict with the Comprehensive Plan pursuant to requirements of State law and City ordinance. In addition to serving on the P & Z Commission, Respondent buys and sells commercial real estate. Respondent is a manager and shareholder in W.O.R.Y. INVESTORS, LLC (WORY), an entity that is also in the business of buying and selling commercial real estate. Respondent, in his individual capacity, owned approximately four acres, which abutted six acres owned by WORY. Both properties have an address on West Road in Ocoee, Florida, and will be referred to collectively herein as the “West Road property.” The Contract On or about November 11, 2015, Respondent, in his individual capacity, and as manager for WORY, executed an “Agreement of Sale” wherein the West Road property was to be purchased by Charter Schools Development Group, LLC (buyer), for $1,890,540. According to the Agreement of Sale, the buyer wanted to “develop and construct on the Property a K-8 public charter school.” The Agreement of Sale contained a number of contingencies, referred to in the contract as “Buyer Required Approvals,” that Respondent was required to satisfy prior to finalization of the sale of the West Road property. Paragraph six of the Agreement to Sale sets forth a number of the pre-sale contingencies imposed on Respondent, and the same provides as follows: 6. Development The Buyer intends to develop and construct on the Property a K-8 public charter school and adjacent commercial development acceptable to Buyer consisting of buildings and other improvements including, but not limited to recreation fields, related landscaping, open space, storm water, and appropriate parking (the "Project"). Buyer's obligation to complete the purchase of the Property from Seller in accordance with the terms of this Agreement is contingent upon the satisfaction of each of the following conditions with regard to the Property (each of which may be waived in whole or in part in writing by Buyer): Buyer has obtained final, unappealed and unappealable approvals from all necessary governmental authorities (including governmental agencies), for zoning, utilities and any other approvals (including necessary parking requirements) Buyer deems necessary, in its sole discretion, permitting the construction and use of the improvements comprising the Project, including but not limited to any required special exception. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) so that the Property shall have immediate and adequate access to water, sewer and all other utilities in accordance with the final approved site development plan. Buyer has obtained final, unappealed and unappealable approvals and/or permits required by any and all governmental authorities (including governmental agencies) for storm water management; including easements and agreements for constructing and maintaining storm water basins; all wetlands studies and approvals in such form that wetlands, if any, shall not preclude construction of roads, utilities, storm water management facilities, any other required improvements for erection of buildings on the Property. Buyer has obtained all permits and approvals, and all conditions thereof shall have been satisfied, so as to allow for recording of the final plan and issuance of building permits subject only to satisfaction of the following requirements by Buyer at or after Closing (i) submission of construction drawings in accordance with applicable law, (ii) execution by the Buyer of the necessary development agreements, (iii) execution and funding by Buyer of the necessary escrow agreements for municipal improvements, and sewer and water improvements, and (iv) payment by the Buyer of all municipal fees and charges associated therewith. Subject to Seller's obligation set forth in Section 6(f) below, Buyer has obtained any and all other easements, approvals and/or permits that may be necessary to construct and use the improvements comprising the Project. Buyer shall obtain, at no additional cost to Seller, all easements and roads that in Buyer's sole reasonable discretion are necessary for property access, utilities and signage to the Property in accordance with Buyer's final approved site development plan. The items referred to in subsections 6(a) through 6(f) hereof shall hereafter be referred to as the "Buyer Required Approvals." After the end of the Inspection Period, Buyer shall diligently proceed with the filing of all applications necessary for obtaining the Buyer Required Approvals. Seller agrees, at no expense to Seller, to cooperate with buyer in connection with the Buyer Required Approvals to the extent of signing all applications necessary for obtaining the buyer Required Approvals and appearing and testifying at the various hearings. Seller's cooperation as aforesaid shall not entitle Seller to any additional compensation. All permit fees, studies, deposit and investigation costs incurred in connection with the Buyer Required Approvals shall be the sole responsibility of buyer and buyer agrees to affirmatively use its good faith efforts to obtain all of the Buyer Required Approvals without delay and as expeditiously as reasonably possible. Seller hereby grants to Buyer a power of attorney to file, on Seller's behalf, all applications related to the Buyer Required Approvals; provided, however, that the Land shall not be rezoned prior to the expiration of the Inspection Period. Seller acknowledges that buyer will likely contact, meet with and/or obtain consents for the Project from neighboring property owners during the Inspection Period and in the process of obtaining the Buyer Required Approvals. (emphasis added). None of the provisions of paragraph six of the Agreement of Sale were waived by either party. Paragraph 15(b) of the Agreement of Sale provides as follows: (b) If Seller shall violate or fail (in breach of its obligations hereunder) to fulfill or perform any of the terms, conditions or undertaking set forth in this Agreement within ten (10) days written notice from Buyer or (five (5) days written notice in the event of a monetary default), Buyer shall be entitled to: (i) terminate this Agreement and receive the return of the Deposit and reimbursement of Buyer's documented out-of-pocket due diligence expenses up to $15,000.00, and, thereupon, the parties hereto will be released and relieved from all provisions of this Agreement, or (ii) pursue specific performance. Paragraph 17 of the Agreement of Sale states that “[b]uyer and Seller agree to cooperate with each other and to take such further actions as may be requested by the other in order to facilitate the timely purchase and sale of the Property.” Paragraphs 6, 15(b) and 17 of the Agreement of Sale obligated Respondent to take all steps necessary, including “appearing and testifying at the various hearings,” for ensuring that the “Buyer Required Approvals” were satisfied, which in turn would allow Respondent to receive his share of the purchase price for the West Road property. Section 112.311(1), provides in part that “[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law.” Rezoning and Respondent’s Role In order for a charter school to be built on the West Road property, it was necessary to rezone the existing planned unit development land use plan covering the property. Ocoee City Planner Michael Rumer testified that there are two types of rezoning. There is a straight rezoning to a zoning category listed in the land development code and there is rezoning to a planned unit development (PUD). Both types of zoning use the following process: an application is filed; then there is a review process by a development review committee, which is a staff level review; that review is forwarded to the P & Z Commission for a recommendation; and then it goes to the Ocoee City Commission for two readings of an ordinance for rezoning if the rezoning is approved. This is the process that was followed for the West Road property PUD. On February 9, 2016, the issue of whether to recommend rezoning of the West Road property to allow for the charter school referenced in the Agreement of Sale came before the P & Z Commission. Respondent was present for the meeting. During the meeting, Respondent spoke in favor of the rezoning request for the West Road property. When a fellow commissioner made a request for more time to review the rezoning issue, Respondent opposed the delay by stating “[i]f you don't give them a go now, you basically kill the deal because it's a time sensitive thing that they want the kids in there in August.” During the meeting, the commissioners struggled with whether to recommend denial of the West Road property zoning request, recommend approval of the request without conditions, or recommend approval of the request with conditions. After two previous motions regarding the zoning request died for lack of a “second,” a third motion was made wherein approval was recommended “with the condition that we’re all going to look at the traffic movement with the final site plan design.” When it appeared as though this motion was also likely to fail for lack of a “second,” Respondent encouraged the chairman of the P & Z Commission to voice a “second” for the motion since Respondent was unable to do so.2/ Respondent’s actions during the meeting of February 9, 2016, were consistent with his obligations under the Agreement of Sale to assist the buyer of the West Road property with securing the “Buyer Required Approvals.”
Recommendation Based on the Findings of Facts and Conclusions of Law, it is RECOMMENDED that a civil penalty of $10,000.00 be imposed against Respondent due to his violation of section 112.313(7)(a) and that Respondent also be publicly censured and reprimanded. DONE AND ENTERED this 10th day of April, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 10th day of April, 2017.
