The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue Whether the Department of Community Affairs (Department) should be precluded from prosecuting the instant challenge to the Comprehensive Development Master Plan (CDMP) of Metropolitan Dade County (Metro-Dade, Dade County or County), as amended by Ordinance No. 90-28, on the ground that it did not comply with the statutory prerequisites to instituting such a challenge? Whether the Redland Citizens Association, Inc., the Sierra Club, the League of Women Voters, Evelyn B. Sutton, Martin Motes, Frances L. Mitchell, Rod Jude, Bruce Rohde and Carol Rist (hereinafter referred to collectively as "the Objectors") are "affected persons," within the meaning of Section 163.3184(1)(a), Florida Statutes, entitled to intervene in this matter and pursue their challenge to the CDMP, as amended by Ordinance No. 90-28? Whether Carol Rist's motion to amend her petition for leave to intervene in this matter should be granted? Whether the challenged amendments made to the CDMP through the adoption of Ordinance No. 90-28, specifically those resulting from the approval of Applications 39, 40 and 47, have rendered the CDMP not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes? Whether John H. Wellenhofer is entitled to an award of fees and costs against the Department pursuant to Section 163.3184(12), Florida Statutes?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Metropolitan Dade County: A General Overview Metropolitan Dade County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered by Broward County on the north, by Monroe County on the south and southwest, by Collier County on the northwest and by the Atlantic Ocean on the east. Within the boundaries of Metropolitan Dade County are 1,413,629 acres, or approximately 2,209 square miles, of land and water. The major natural features of the County are the Florida Everglades National Park, tropical vegetation, an Atlantic Ocean coastline with several peninsulas and inlets, including Biscayne National Park at Biscayne Bay, and several barrier islands and reefs. The County contains several bodies of water, including various lakes, rivers and streams. Among the most noteworthy water bodies are the Intracoastal Waterway in the eastern part of the County and the expansive wetland systems and their accompanying wildlife habitat located primarily in the western part of the County. Among the major man-made features of the County are I Florida Turnpike, the Metrorail System, canals, causeways connecting Miami Beach and the barrier islands to the mainland, Miami International Airport, Kendall Airport, and Homestead Air Force Base. Metropolitan Dade County is Florida's most populous county with a population approaching two million people. On average, Dade County's population has grown by approximately 36,000 persons per year since the 1970's. There are 26 incorporated municipalities located in Metropolitan Dade County, including the City of Miami, whose downtown area may be viewed as the principal focal point of the entire metropolitan area. Metropolitan Dade County Home Rule Amendment, Charter and Selected Ordinances In 1956, the statewide electorate adopted Article VIII, Section 11 of the 1885 Florida Constitution granting "the electors of Dade County, Florida, . . . power to adopt, revise, and amend from time to time a home rule charter of government for Dade County, Florida, under which the Board of County Commissioners of Dade County shall be the governing body." 4/ The following year, the electors of the County adopted such a home rule charter (Charter). Section 1.01 of the Charter provides that the "Board of County Commissioners shall be the legislative and governing body of the county and shall have the power to carry on a central metropolitan government." The power to "[p]repare and enforce comprehensive plans for the development of the county" is expressly mentioned in Section 1.01 as within the Board's authority. Other powers of the Board specifically enumerated in Section 1.01 include the power to provide, regulate, develop and enforce master plans for the control of traffic; to provide and regulate sewage collection and disposal, waste collection and disposal and water supply programs; to establish and administer drainage programs; to establish and administer conservation programs; and to establish and administer housing programs. Section 4.07 of the Charter establishes a Department of Planning as a unit of central metropolitan County government. This section provides as follows: The department of planning shall be headed by a planning director appointed by the County Manager. The planning director shall be qual- ified in the field of planning by special training and experience. Under the supervision of the Manager and with the advice of the Planning Advisory Board elsewhere provided for in this Charter, the planning director shall among other things: Conduct studies of county population, land use, facilities, resources, and needs and other factors which influence the county's development, and on the basis of such studies prepare such official and other maps and re- ports as, taken together, constitute a master plan for the welfare, recreational, economic, and physical development of the county. Prepare for review by the Planning Advi- sory Board, and for adoption by the Board of County Commissioners, zoning, subdivision, and related regulations for the unincorporated areas of the county and minimum standards governing zoning, subdivision, and related re- gulations for the municipalities; and prepare recommendations to effectuate the master plan and to coordinate the county's proposed capital improvements with the master plan. Review the municipal systems of planning, zoning, subdivision, and related regulations and make recommendations thereon with a view to coordinating such municipal systems with one another and with those of the county. By ordinance, codified in Section 2-106.1 of the Code of Metropolitan Dade County, the Department of Planning has been designated as the County's local planning agency "responsible for the preparation of the Comprehensive Development master plan for the county." Section 4.08(A) of the Charter directs the Board of County Commissioners to, "by ordinance create a Planning Advisory Board." The Board has done so. The Planning Advisory Board (PAB), as established by the Board, is a nine-member body. The members of the PAB are citizens appointed by the Board. Section 5.02 of the Charter describes the powers that may be exercised by the County's municipalities. It provides as follows: Each municipality shall have the authority to exercise all powers relating to local affairs not inconsistent with this Charter. Each municipality may provide for higher standards of zoning, service and regulation than those provided for by the Board of County Commis- sioners in order that its individual character and standards may be preserved for its citizens. Comprehensive Planning in the County: An Historical Perspective Metropolitan Dade County's first Comprehensive Development Master Plan was adopted by the Board in 1965. This initial version of the CDMP was based upon the unrealistic projection that the County would have two and one half million residents at the planning horizon. To accommodate this projected population, it provided for a spread pattern of low density residential growth, served by numerous expressways. Substantial changes to the CDMP were made in 1975 based upon a lower, more realistic population projection and a consideration of environmental and infrastructure constraints. The result was a plan that provided for a more compact form of urban development concentrated around nodes of activity in the eastern portions of the County. The 1975 version of the CDMP introduced the concept of an urban development boundary. The urban development boundary (UDB) was, and remains to this date, an important part of the plan's urban containment strategy. As its name suggests, the UDB is a line drawn on the plan's future land use map (FLUM) that indicates where urban development will be permitted to reach by the end of the planning period. Since 1975, the CDMP has been amended on various occasions. On eight of these occasions, including most recently in 1990, the amendments have included an expansion of the area inside the UDB. As a result of these amendments, the area inside the UDB has increased by more than 32,000 acres. Notwithstanding the various amendments that have been made to the CDMP, its overall approach, focus and direction have remained essentially the same since 1975. Since 1975, the CDMP's policies have "encourage[d] in-filling, redevelopment, and contiguous development in order to lessen urban sprawl and the associated transportation and energy costs." For years, the CDMP has required the coordination of development with services, the protection of agriculture as a viable economic use of land, the encouragement of a broad spectrum of housing allowing for choice of location, the protection of communities from encroachment by incompatible uses, and a wide variety of other goals, objectives and policies which remain the foundation of the CDMP. The 1988 CDMP In December 1988, the Board of County Commissioners adopted Ordinance No. 88-110 entitled "The Master Plan Amendatory Ordinance" (Amendatory Ordinance). The Amendatory Ordinance revised and reformatted the CDMP in an effort to comply with changes made to the state's growth management laws in 1985. The CDMP's primary planning horizon was extended by the Amendatory Ordinance to the year 2000. Like the current version, the version of the CDMP adopted in 1988 (1988 CDMP) had an statement of legislative intent and the following eleven separate elements, containing goals, objectives and policies and other textual material, as well as maps depicting future conditions, including a future land use map: land use; traffic circulation; mass transit; port and aviation; housing; conservation; water, sewer and solid waste; recreation and open space; coastal management; intergovernmental coordination; and capital improvements. Prior to the adoption of the Amendatory Ordinance, the County's Planning Department prepared a "support component," containing background data and analyses, for each of the foregoing elements. These "support components" were used in the formulation of the 1988 CDMP and they were transmitted to the Department of Community Affairs for the Department's consideration during the compliance review process. The 1988 CDMP: Land Use Element "Support Component" The "support component" for the 1988 CDMP land use element (LUSC) was a 232-page document that analyzed existing and future land uses in Dade County, including the amount of land that would be needed and available to accommodate anticipated growth, the County's projected population, the environmental characteristics of the County's undeveloped land, the availability of urban services in the County, and those areas in need of redevelopment. According to the LUSC, as of 1985, of the County's 1,413,629 acres, 86,111.5 acres (6.09%) were devoted to residential uses, 9,389.1 acres (.66%) were devoted to commercial uses, 770.3 acres (.05%) were devoted to hotels, motels and other transient uses, 15,128.9 acres (1.07%) were devoted to industrial uses, 8,967.6 acres (.63%) were devoted to institutional uses, 660,620.7 acres (46.73%) were devoted to parks and recreational open space, 5/ 69,091.3 acres (4.89%) were devoted to transportation, communications and utilities, 93,187.6 acres (6.59%) were devoted to agriculture, 18,268.9 acres (1.29%) were inland waters, 162,640.0 acres (11.51%) were coastal waters, and 289,453.2 acres (20.48%) were undeveloped or vacant. Of this undeveloped or vacant land, 149,823.5 acres (10.55%) were environmentally sensitive. The LUSC examined the pattern of growth in Dade County over the years and reported that, in the 1970's and 1980's, growth occurred primarily in the unincorporated area on the western fringe of the urbanized portion of the County. According the LUSC, this pattern of growth is anticipated to "persist throughout the remainder of this century and beyond." This projection was accompanied by the following explanation: Urban development opportunities are limited on the coastal ridge and on the barrier islands because there is little remaining developable land. It is on the western fringes that land is available. In Dade County these western growth areas extend from the Broward line to the farm lands and open areas of South Dade. With respect to what the future holds for the "urban interior," the following was stated: In the County's urban interior, its central city areas, growth will be modest or nonexis- tent. In most of these areas there is little remaining developable land and projected de- clines in average household size will offset whatever new development occurs. The Downtown area . . . is projected to show some modest gains in the 1990s and beyond, as downtown development efforts succeed in attracting more residents to the County's heart. The LUSC also contained an analysis performed by the Planning Department of the supply of vacant land available for development and the demand that would exist for such land on a countywide and sub-area basis during the planning period. 6/ In determining the supply of land available for residential development, the Planning Department considered the development potential of only vacant and agricultural land inside the UDB, as it existed prior to the adoption of the 1988 CDMP (pre-1988 UDB). Neither redevelopment opportunities, nor the residential capacity of land outside the pre-UDB, were taken into consideration. For each tract of vacant and agricultural land inside the pre- 1988 UDB, the Planning Department ascertained the number of units that would be able to be built, employing a methodology that was described as follows in the LUSC: This determination is based on the current [pre-1988] CDMP Land Use Plan density classi- fication, with numerous exceptions: In areas where no neighborhood or municipal plan has been adopted since the CDMP map classification was established for the parcel, existing zoning is used if greater than agricultural use (AU) or general use (GU). Where the existing zoning is used and land is zoned and platted for single family use, the development capacity of this land is determined by counting the vacant platted lots. In addi- tion, whenever the density of zoned land is further limited by covenants or approved site plans, those conditions are reflected. Where land is unplatted and zoned for estate den- sity residential, but is designated on the CDMP in a higher residential density category and is substantially surrounded by land that is zoned or designated for higher residential density, the land is assigned the density of the surrounding development. Similarly, small parcels zoned AU or GU are assigned a zoning classification comparable to surrounding de- velopment. AU and GU parcels 10 acres or larger are assigned the Plan density appli- cable to the area. In places where neighbor- hood or municipal plans have been adopted or completed since the CDMP classification was established for the parcel and the neighborhood or municipal plan shows a higher use or den- sity, the neighborhood or municipal plan density is used in estimating the development capacity. In instances where the existing zoning permits greater development than the neighborhood or municipal plan proposes, the zoned density is utilized. The gross supply for each area is discounted by a factor of 6 percent to reflect the finding that 6 percent of land in fully developed areas is typically vacant at any given time. The methodology employed by the Planning Department to determine the supply of land available in the County to accommodate growth is professionally accepted. To determine the demand that would exist for residential land during the planning period, the Planning Department first estimated the 1985 countywide population and then projected what the countywide population would be in the years 2000 and 2010. In so doing, it utilized a component methodology, which examined the three components of population change --births, deaths and migration. This methodology is professionally accepted. The Planning Department also made population estimates and projections for each of the minor statistical areas (MSAs) in the County. In making these estimates and projections, it used an extrapolation methodology that is professionally accepted. 7/ Pursuant to this methodology, a portion of the countywide projected population was allocated to each MSA based upon such factors as long- term subarea growth trends, estimates of current subarea population and existing subarea housing units, and subarea development capacity. The Planning Department estimated that the 1985 countywide population was 1,771,000 and it projected that the countywide population would be 2,102,000 by the year 2000 and 2,331,000 by the year 2010. Its population estimates and projections for MSA 6.1 and MSA 6.2, which collectively comprise an area of the County on the western urban fringe known as West Kendall, and MSA 7.2, which is part of the South Dade area of the County, were as follows: 1985- MSA 6.1: 76,961; MSA 6.2: 36,820; MSA 7.2: 32,791; year 2000- MSA 6.1: 135,932; MSA 6.2: 94,628; MSA 7.2: 44,127; year 2010- MSA 6.1: 162,611; MSA 6.2: 124,414; MSA 7.2: 52,518. It was noted in the LUSC that the West Kendall area was the "fastest growing part of Dade County in the 1970's and early 1980's" and that this area was "projected to account for about 38% of the County's growth" from 1985 to 1990. MSA 7.2 was described in the LUSC as among the "rapidly developing areas" of the County. The countywide and MSA population estimates and projections made by the Planning Department not only appeared in the LUSC, but they were adopted by the Board of County Commissioners and included in the future land use element of the 1988 CDMP. After making these population estimates and projections, the Planning Department sought to ascertain the future demand for new housing in the County. As it explained in the LUSC: This projection is a function of the projected population increase. The methodology assumes that the mix of housing units in that area will remain as it is currently and that house- hold sizes will decline slowly. Residential unit requirements are derived from the pro- jected increase in households with a 5 percent allowance for vacancy of dwelling units. The Planning Department projected that countywide demand would be 9,150 total units annually until 1990, 10,731 total units annually between 1990 and 1995, 10,983 total units annually between 1995 and the year 2000, 11,449 total units annually between the year 2000 and the year 2005 and 11,734 total units annually between the year 2005 and the year 2010. For MSA 6.2 and 7.2, the Planning Department's demand projections were as follows: MSA 6.2- 1,498 total units annually until 1990, 1,739 total units annually between 1990 and 1995, 1,630 total units annually between 1995 and the year 2000, 1,453 total units annually between the year 2000 and the year 2005, and 1,288 total units annually between the year 2005 and the year 2010; MSA 7.2- 269 total units annually until 1990, 309 total units annually between 1990 and 1995, 332 total units annually between 1995 and the year 2000, 360 total units annually between the year 2000 and the year 2005, and 373 total units annually between the year 2005 and the year 2010. Having projected future housing demand, the Planning Department then compared the projected demand to the supply of available residential land and concluded that, assuming no additional residential capacity was added, there was a sufficient aggregate supply of single-family and multifamily housing units inside the pre-1988 UDB to accommodate projected growth until the year 2008. 8/ With respect to MSA 6.2 and MSA 7.2, the Planning Department concluded that the former had sufficient residential capacity to last until the year 2001 and that the latter's supply of residential land would be depleted a year earlier. Notwithstanding its conclusion that there was a sufficient supply of residential land inside the pre-1988 UDB to last until the year 2008, the Planning Department recommended that the 1988 version of the CDMP provide even more residential capacity within the UDB. 9/ It explained its position on the matter as follows in the LUSC: [The urban development boundary] contains sufficient capacities to sustain single family development until 2004 and multi-family development until 2014. However, it is recognized that decisions regarding the development and purchase of residences involve complexities that trans- cend the single consideration of the presence of vacant zoned land. Market conditions, neighborhood pressure, transportation or service deficiencies, and investment deci- sions can impede development of vacant parcels. 10/ The proposed land use plan for 2000 and 2010 includes substantially more additional land than indicated above to insure that no short- ages will occur. . . . [T]he proposed LUP map for 2000 and 2010 in- cludes capacities for an additional 23,590 single family-type dwelling units in the area located between the 1990 urban development boundary of the comprehensive plan LUP map which is currently in effect, and the pro- posed year 2000 UDB of the proposed plan map. The Planning Department also inventoried the supply of land available for industrial and commercial development in the County. As reported in the LUSC, it determined that, as of 1985, the County had almost a 50-year supply of industrial land and a 16.6-year supply of commercial land. It further determined, and reported in the LUSC, that, as of 1985, MSA 6.2 had a 5.1-year supply of commercial land and a 92.5-year supply of industrial land and that MSA 7.2 had a 10.1-year supply of commercial land and a 48.7-year supply of industrial land. The 1988 CDMP: Compliance Review and Stipulated Settlement Agreement The 1988 CDMP was submitted to the Department of Community Affairs for its review. On January 30, 1989, the Department issued its statement of intent to find the 1988 CDMP not "in compliance." The Department's objection to the plan concerned the low level of service standards the plan established for certain roadways. The Department subsequently, by petition, referred the matter to the Division of Administrative Hearings. Thereafter, the Department and County entered into a stipulated settlement agreement. Pursuant to the agreement, the County was to make certain changes to the 1988 CDMP to satisfy the concerns expressed by the Department in its statement of intent. The changes involved the 1988 CDMP's capital improvements element and its traffic circulation element. The County was to amend the capital improvements element to incorporate the primary components of the County's existing concurrency management system. The traffic circulation element was to be amended to establish three geographical zones or "tiers." One of the zones, the area inside the UDB east of the Palmetto Expressway (N.W. 77th Avenue), was to be denominated the "Urban Infill Area." 11/ The level of service standards for roadways in the Urban Infill Area were to be lower than those for roadways in the other two zones. Although these level of service standards for roadways in the Urban Infill Area were extremely low, and may have been unacceptable under other circumstances, it was felt that they were necessary, at least on a temporary basis, to promote infill development and encourage the use of mass transit, including the County's rapid rail system, which is underutilized. The agreement provided that if the County made these changes, the Department would find the 1988 CDMP, as amended in accordance with the agreement, "in compliance" and would recommend to the Administration Commission that the compliance proceeding that had been initiated by the Department be dismissed without the imposition of any sanctions. The County made the changes described the settlement agreement by adopting Ordinance No. 90-37. On June 14, 1990, the Department published its notice of intent to find the 1988 CDMP, as amended by Ordinance No. 90-37, "in compliance." This finding was made notwithstanding that the LUSC indicated that there was enough land inside the pre-1988 UDB to accommodate residential development well beyond the year 2000 and there had been, as a result of the Amendatory Ordinance's westward extension of the UDB and its redesignation of certain lands inside the realigned UDB, an addition to the existing supply of land available for residential development. The 1989-1990 CDMP Amendment Application Cycle A total of 71 applications to amend the CDMP were filed during the 1989-1990 CDMP amendment application cycle (Amendment Cycle). Twenty-seven of these applications were filed by private citizens as authorized by County ordinance. The remaining applications were filed by the Planning Department. Of the 27 privately filed applications, 25 requested changes to the FLUM and two requested changes to the text of the CDMP's land use element. The Planning Director filed a like number of applications to amend the FLUM. Application 39 Among the privately filed applications was Application 39, which was submitted by John H. Wellenhofer. The subject of Application 39 was a 25-acre parcel of land owned by Wellenhofer (Wellenhofer's property). Wellenhofer's property is in Study Area G and MSA 6.2. It is bounded on the north by Southwest 116th Street, on the south by Southwest 118th Street, on the east by Southwest 142nd Avenue and on the west by Southwest 144th Avenue. The property was located near, but inside, the UDB as established by the 1988 CDMP (1988 UDB). Through Application 39, Wellenhofer requested that the land use designation of his property on the FLUM be changed from "industrial and office" to "low density residential" (up to six dwelling units per gross acre). Application 39 and the Tamiami Airport The southern boundary of Wellenhofer's property lies two blocks, or approximately 660 feet, to the north of Tamiami Airport. The Tamiami Airport, which was opened in 1967, serves as a general aviation reliever for Miami International Airport. Tamiami is 1,380 acres in size and is the busiest general aviation airport in the County. The aircraft that use Tamiami are light aircraft, principally single and twin propeller driven airplanes. Tamiami does not, and in any event is not equipped to, handle commercial aircraft. Tamiami has three runways: (1) the north runway (9L-27R), an east- west runway; (2) the south runway (9R-27L), a parallel east-west runway; and the diagonal runway (13-31), a northwest-southeast runway. The north runway, which is the runway closest to Wellenhofer's property, lacks facilities to permit navigation by instrument for flights at night or in inclement weather. The flight pattern for the north runway is an oval shape. Wellenhofer's property is not under any portion of this flight pattern, nor is it under the flight patterns for the other two runways. It lies in the center of the oval created by the flight pattern for the north runway. It should be noted, however, that there are instances where aircraft, for one reason or another, deviate from these flight patterns. Residential communities in the vicinity of Tamiami already exist. A recent proposal to lengthen the south runway was opposed by a large number of the residents of these communities. In the face of such opposition, no action was taken on the proposal. Because of the noise generated by airport operations, residential uses in the area surrounding an airport may be incompatible with those operations. 12/ The CDMP recognizes that there is the potential for such land use incompatibility. It mandates that the federal government's 65/75 LDN contour standard contained in 14 C.F.R., Part 150, be used to determine if a particular residential use in the vicinity of an airport would be incompatible with the operations at that airport. The noise contour at 65 LDN for the north runway at Tamiami does not leave the airport property and barely leaves the runway itself. That is not to say, however, that one standing on Wellenhofer's property cannot hear the sound of aircraft using the airport. Wellenhofer's property is separated from Tamiami by land that is designated on the FLUM for "industrial and office" use. An identical 660 foot, "industrial and office" buffer separates the airport from the residential lands that lie to the south of the western end of the airport. The area immediately to the north, to the south and to the east of Tamiami is denominated an "employment center" in the CDMP. Accordingly, a substantial amount of land in this area, particularly to the east of the airport, has been designated on the FLUM for "industrial and office" use. Land immediately to the west of the site of current airport operations at Tamiami is designated on the FLUM for "transportation-terminals" use. Immediately west of this land is a large expanse of land, outside the UDB, which is designated on the FLUM for "agriculture" use. The CDMP's port and aviation facilities element indicates that "future aviation facility improvements are proposed to be made on or adjacent to the sites of existing airports" in the County and that the "westward 1,900 foot extension of the southern runway at Tamiami Airport" is one such proposed improvement that will be the subject of future consideration. Application 40 Another application filed by a private applicant during the Amendment Cycle was Application 40. It was submitted by the Suchmans. The subject of Application 40 was 320 acres of land (Application 40 property) located in Study Area G and MSA 6.2 and bounded on the north by Southwest 136th Street, on the south by Southwest 152nd Street, on the east by Southwest 157th Avenue and the Black Creek Canal, and on the west by Southwest 162nd Avenue. This land was located outside, but contiguous to on the north and east, the 1988 UDB. Immediately to the north of the Application 40 property is land that is shown on the FLUM as part of the western end of the Tamiami Airport. The CSX railroad tracks run parallel to the southern perimeter of the airport and they bisect the Application 40 property. The land immediately to the east of the Application 40 property which is north of the railroad tracks is designated on the FLUM for "industrial and office" use. The land immediately to the east of the Application 40 property which is south of the railroad tracks is designated on the FLUM for "low density residential communities" use. The land immediately to the south and the west of the Application 40 property is designated on the FLUM for "agriculture" use. At the time of the filing of Application 40, the area immediately surrounding the Application 40 property was undeveloped and in agricultural use. By the time of the formal hearing in the instant case, however, residential development was underway on a portion of the land immediately to the east of the Application 40 property which is south of the railroad tracks. Further to the east is a large scale residential development known as "Country Walk." The Suchmans own 190 acres of the Application 40 property. All but 30 acres of the land they own is on the western side of the property. The Suchmans first acquired an interest in the property in 1973 or 1974. They are in the real estate business and they purchased the property for investment purposes. While the Suchmans are not involved in the agricultural business, over the years they have leased their land to tenants who have used it for agricultural purposes. Since about 1987, it has become increasingly difficult, albeit not impossible, for the Suchmans to find such tenants. At least up until the time of the formal hearing in the instant case, their property was being actively farmed. The Suchmans, through Application 40, originally sought to have the land use designation of the Application 40 property north of the railroad tracks changed from "agriculture" to "industrial and office" and to have the land use designation of the remaining 280 acres of the property changed from "agriculture" to "low density residential." 13/ Subsequently, at the final adoption hearing, they amended their application. The Suchmans' amended application sought redesignation only of that land within the boundaries of the Application 40 property that the Suchmans owned: the western 20 acres of the Application 40 property north of the railroad tracks (from "agriculture" to "industrial and office" use); and 170 acres of the remaining land (from "agriculture" to "low density residential"). Under the amended application, the 130 acres of the Application 40 property not owned by the Suchmans was to remain designated for "agriculture" use. 14/ In addition to seeking the redesignation of their land, the Suchmans' application, in both its original and amended form, requested that the 1988 UDB be extended to encompass all 320 acres of the Application 40 property. Application 47 Application 47 was also filed by a private applicant. It was submitted by Alajuela N.V. The subject of Application 47 was an 160-acre tract of land (Application 47 property) located in Study Area I and MSA 7.2 and bounded by Southwest 264th Street on the north, Southwest 272nd Street on the south, Southwest 157th Avenue on the east and Southwest 162nd Avenue on the west. This land was located outside, but contiguous to on the south and east, the 1988 UDB. Immediately to the south and to the east of the Application 47 property is land designated on the FLUM for "estate density residential communities" use (up to 2.5 dwelling units per gross acre). The land immediately to the north and to the west of the Application 47 property is designated "agriculture" on the FLUM. Through its application, Alajuela N.V. requested that the land use designation on the FLUM of the Application 47 property be changed from "agriculture" to "estate density residential" 15/ and that the 1988 UDB be extended to encompass this property. Alajuela N.V. owns the entire western half of the Application 47 property. The eastern 80 acres is divided into a number of parcels, the majority of which are under five acres, with different owners. The eastern half of the Application 47 property contains 15 acres of Dade County pine forest. The Application 47 property lies approximately three-quarters of a mile both to the west and north of the U.S. 1 corridor in South Dade, which, according to the LUSC, "[s]ince 1970 . . . [has] experienced particularly heavy development and intensification of land use." This puts it on the southern fringe of an area of South Dade known as the Redlands. While the boundaries of the Redlands are not precise, it is generally understood to range from Southwest 184th Street on the north to the urbanizing areas of the City of Homestead on the south and from U.S. 1 on the east to a meandering line on the west where predominantly mixed agricultural and residential uses end and large-scale agricultural operations generally uninterrupted by residential development begin. While there is significant agricultural activity in the Redlands, primarily involving grove and nursery operations, 16/ an increasing residential trend has been established, particularly on the urbanizing fringes of the area and on parcels less than five acres in size that, because of the grandfathering provisions of the CDMP, are not subject to the restriction imposed by the CDMP that lands designated for "agriculture" use not be used for residential development in excess of one unit per five acres. Residential developments lying south of the Application 47 property constitute the urbanizing area of the City of Homestead. Homestead is a CDMP- designated activity center and, according to the LUSC, it was the fastest growing municipality in Dade County during the period from 1970 to 1987. Homestead's northern jurisdictional limits lie approximately two miles south of the Application 47 property. A substantial portion of the land between the Application 47 property and Homestead is presently undeveloped. The Application 47 property is approximately four and one half miles, by road, from the Homestead Air Force Base, a CDMP-designated employment center. Also in proximity to the Application 47 property are the Homestead/Florida City Enterprise Zone; the Villages of Homestead, which is a 7,000 acre development of regional impact; and commercial and industrial development along the U.S. 1 corridor in South Dade. 17/ The land immediately surrounding the Application 47 property is currently being used primarily for agricultural purposes, however, there is also residential development, as well as vacant land in the area. The western half of the Application 47 property is presently in active agricultural use. The eastern half of the Application 47 property is also the site of agricultural activity. Unlike the western half of the property, however, the eastern half is not used exclusively for agricultural purposes. Residences are located in this half of the property. Other Applications of Note Application 58, which was filed by the Planning Department, sought an amendment to the text of the land use element which would allow new agricultural uses in utility easements and right-of-way areas inside the UDB. Application 62 was another application filed by the Planning Department. Through Application 62, the Planning Department sought to have the Board of County Commissioners update and revise the countywide and MSA population estimates and the MSA population projections for the years 2000 and 2010 that had been adopted as part of the CDMP's land use element in 1988. In Application 62, the Planning Department recommended that the 1985 countywide and MSA population estimates found in the CDMP be replaced by 1989 estimates, including the following: countywide- 1,894,999; MSA 6.1- 92,715; MSA 6.2- 50,841; and MSA 7.2- 33,511. With respect to the population projections adopted in 1988, the Planning Department requested that they be modified to reflect a different distribution of the projected countywide population. The proposed modifications, as they pertained to MSA 6.1, MSA 6.2 and MSA 7.2, were as follows: year 2000- MSA 6.1: 137,612; MSA 6.2: 89,404; MSA 7.2: 42,012; year 2010- MSA 6.1: 175,504; MSA 6.2: 124,380; MSA 7.2: 53,823. In making these modified projections, the Planning Department utilized the same professionally accepted methodology it had used to make the projections that had been adopted in 1988. The Planning Department did not propose in Application 62 that any material change be made to the year 2000 or the year 2010 countywide population projections. A third application filed by the Planning Department was Application This application sought to have the Board of County Commissioners amend the text of the land use element to provide for the establishment of Traditional Neighborhood Developments (TNDs) by the adoption of land use regulations. Under the proposed amendment, TNDs, designed to provide a mix of employment opportunities, to offer a full range of housing types, and to discourage internal automobile use, among other objectives, would be permitted in areas designated for residential use on the FLUM. Planning Department's Preliminary Recommendations Report On August 25, 1989, the Planning Department prepared, for the benefit of the Board of County Commissioners, and published a two-volume report (PR Report) containing its initial recommendations on the 71 applications filed during the Amendment Cycle, as well as the background information and analyses upon which those recommendations were based. In its PR Report, the Planning Department analyzed, among other things, the amount of land that was needed and available to accommodate anticipated growth. In conducting its analysis, the Planning Department employed essentially the same, professionally accepted methodology, previously described in this Recommended Order, that it had used in 1988. The population estimates and projections upon which it relied were the updated and revised estimates and projections that were the subject of Application 62. The Planning Department estimated that in 1989 the County's residential capacity was 247,438 total dwelling units (134,333 single-family units and 113,105 multifamily units). Countywide demand was projected to be 9,157 total dwelling units a year from 1989 to 1995, 10,920 total dwelling units a year from 1995 to the year 2000, 11,440 total dwelling units a year from the year 2000 to the year 2005, and 11,601 total dwelling units a year from the year 2005 to the year 2010. Under this scenario, in the year 2010, there would remain a residential capacity of 22,689 total dwelling units. According to the Planning Department's analysis, this remaining countywide residential capacity would be depleted in the year 2012 (depletion year). The Planning Department forecast an earlier depletion year, 2009, for single-family units. In addition to analyzing countywide residential capacity, the Planning Department conducted an analysis of the amount of land that was available in the County for commercial and industrial development. The Planning Department's analysis revealed that the County had sufficient commercial capacity to last until the year 2008 and that it had sufficient industrial capacity to last until the year 2041. The Planning Department analyzed residential, commercial and industrial capacity, not only on a countywide basis, but on a subarea basis as well. This subarea analysis yielded the following forecast as to Study Areas G and I and MSAs 6.2 and 7.2: Study Area G- depletion year for residential land: year 2005 (all dwelling units), year 2006 (single-family units), and year 2005 (multifamily units); depletion year for commercial land: year 2003; and depletion year for industrial land: year 2076. Study Area I- depletion year for residential land: year 2019 (all dwelling units), year 2016 (single-family units), and year 2030 (multifamily units); depletion year for commercial land: year 2015; and depletion year for industrial land: year 2091. MSA 6.2- depletion year for residential land: year 2006 (all dwelling units), year 2002 (single-family units), and year 2025 (multifamily units); 18/ depletion year for commercial land: 1995; and depletion year for industrial land: year 2075. MSA 7.2- depletion year for commercial land: year 2009; and depletion year for industrial land: year 2078. In its PR Report, the Planning Department also surveyed the environmental, physical and archaeological/historic conditions in each study area of the County, with particular emphasis on the lands that were the subject of the various applications to amend the FLUM (hereinafter referred to collectively as the "application properties"). The PR Report noted that Study Area G, "a large area (approx. 81 sq. mi.) located along the westerly fringe of southwestern Dade County," was characterized by the following environmental, physical and archaeological/historical conditions: Study Area G encompasses the western portions of the Snapper Creek (C-2), C-100 and Black Creek (C-1) canal drainage basins. Natural ground elevations range from five to six feet msl in the northwestern portion of the area to ten to fifteen feet in the part of the Study area generally south of SW 120 Street. Similarly, there is a gradient in the soil conditions from the NW to the SE. In the NW quarter of the area, generally west of 144 Avenue and north of Kendall Drive, the limerock substrate is covered with seasonally flooded Everglades peats and mucks. The southern and eastern three quarters of the study area is generally characterized by well drained rocklands interspersed with poorly drained marls in the former transverse glades. Where organic soils exist, they must be re- moved prior to filling to meet County flood criteria. Therefore as much as four feet of fill may be required to meet the County cri- teria in the northwestern part of this area. The average groundwater table elevations range from above five feet in the northwest to four feet in the southeast. Therefore, the area of Bird Drive and much of the area north of Kendall Drive west of SW 137 Avenue has tradi- tionally experienced considerable flooding and drainage problems. * * * Approximately 70 percent (5,522 acres) of the Bird Drive Basin is vegetated with native wet- land wet prairie, shrub and tree island habi- tats. However, 3,083 acres are heavily or moderately invaded by the exotic tree, Malaleuca. In 1987 the County initiated a Special Area Management Planning (SAMP) pro- cess for this area to develop a wetlands miti- gation plan and funding proposals that will facilitate development in some portions of the Bird Drive Everglades Basin. The poten- tial presence of a new 140-million gallon per day (mgd) Biscayne Aquifer water wellfield in the western part of the Bird Drive Basin has made the feasibility of on-site wetland miti- gation highly questionable for the Basin area. Therefore, the County is exploring several off-site mitigation options as part of the SAMP. Proposals to develop in this Basin are presently constrained by language in the adopted components of the CDMP which tie de- velopment orders to the conclusion of the SAMP, unless the applicants can demonstrate vested rights. * * * In the portion of the study area south of Kendall Drive, the most significant environ- mental resources are stands of native pinelands. There are several environmentally sensitive pinelands in Study Area G, however, none of the properties included in applications 34-4 contain significant natural, historical o archaeological resources. . . . Table 1G of the PR Report contained the following information regarding the specific environmental, physical and archaeological/historic characteristics of Wellenhofer's property and the Application 40 property: Wellenhofer's Property: Soils- rockdale/rockland; drainage characteristics of soils- good; elevation: eight feet; drainage basin- C-100; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The Application 40 Property: Soils- rockdale, marl; depth of organic soils (marl)- one foot; drainage characteristics: good; elevation: eight feet; drainage basin: Black Creek Canal; wetlands permits required- none; native wetland communities- none; natural forest communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The environmental, physical and archaeological/historic characteristics of Study Area I, "a large (approx. 164 sq. mi.) region of south Dade County," were described as follows in the PR Report: Study Area I includes portions of CDMP Envi- ronmental Protection Subarea A, Biscayne National Park; Subarea D, the C-111 Wetlands; Subarea E; the Southeast wetlands; and Subarea F, Coastal Wetlands and Hammocks. These areas have been so designated because they contain important, relatively unstressed high-quality wetlands, which provide important water quality and wildlife values. Study Area I also includes a large part of CDMP Open Land Subarea 5. In most of the area east of Krome Avenue and west of U.S. 1, natural ground elevations range from ten to fifteen feet msl on the ridge and from five to ten feet in the former sloughs. The area east of the Turnpike and south of Florida City is less than five feet mean sea level. The highest average groundwater levels are at or above the ground surface throughout most of the area east of the Turnpike Extension and south of Florida City. Saltwater intrusion in the Aquifer extends two to five miles inland in this low lying area. In the area west of the Turnpike and east of Levees-31N and 31W, the soils are rocklands except in the former sloughs where marls pre- dominate. East of the Turnpike and south of Florida City, marls are the dominant soil type except along the coast where peats occur. The Black Creek (C-1), C-102, Mowry (C-103), North Canal, Florida City and C-111 canal sys- tems drain much of the northern and eastern portion of this study area. The area east of the Turnpike has recurring flooding and drainage problems due to its low elevation and flat gradient. The western portions of the C-102, C-103 and much of the C-111 drainage basins have limited flood protection. There is no flood protection in the area south of the Florida City Canal east of US 1 or in most of the area west of US 1 and south of Ingraham Highway. . . . * * * This study area also includes most of the environmentally sensitive natural forest com- munities that remain in Dade County. Appli- cation 47 contains a 15-acre pineland which presently receives maximum protection because it is outside the UDB and zoned AU. At the most, 20 percent of the pineland could be re- moved under the provisions of Chapter 24-60 of the Code of Metropolitan Dade County. . . . Table 1I of the PR Report contained the following additional information regarding the specific environmental, physical and archaeological/historic characteristics of the Application 47 property: Soils- rockland; drainage characteristics of soils- good; elevation: eleven to twelve feet; drainage basin- C-103; wetlands permits required- none; native wetland communities- none; endangered species- none; within wellfield protection area?- no; archaeological/historic resources- none. The PR Report also provided general information regarding existing land uses within each study area and more detailed information regarding existing land uses within and adjacent to each application property. The following was said with respect to existing land use patterns within Study Areas G and I: Study Area G- About half of this study area is suburban in character while the other half is primarily agriculture or undeveloped. The study area also contains a special agricul- tural area known as "horse country" for eques- trian related activities. The urbanizing portion is primarily residential with support- ing commercial and industrial activities. Residential areas include a range of housing from detached, single dwelling units to attached, multiple dwelling units at medium density. The area also contains two major recreation facilities-- Metrozoo and a county park. The major concentration of commercial activities has occurred along major thoroughfares such as North Kendall Drive. Some industries and offices are clustered in the vicinity of Tamiami Airport, a major general aviation facility located in the study area. Study Area I- This study area includes var- ious types of agricultural activities and rural development as well as suburban develop- ment largely oriented to US 1. The suburban development is primarily residential with supporting commercial uses. Although most of the housing is detached, single dwelling units, residential areas also include attached, multiple dwelling units at medium density. There are also several districts for industries and offices, some of which are oriented to expressway and railway systems. More than half of this study area is used for agriculture or is undeveloped. Much of the area is floodplain and the eastern fringe is subject to coastal flooding. Some of these areas are used for parks, preserves and water management areas. The area also contains several wellfields for public water supply, which are located inland from the coast and a major military installation-- Homestead Air Force Base. The PR Report stated the following with respect to the existing land uses within and adjacent to Wellenhofer's property, the Application 40 property and the Application 47 property: Wellenhofer's Property: The area, which con- tains 25 acres, is being used for agricultural purposes. Land located in the vicinity to the south and west is also being used for agriculture while zoned IU-C. The land on the north side is being developed for residential purposes. Boys Town home is located immediately to the west. The site is located one quarter mile north of Tamiami Airport. . . . The Application 40 Property: The area, which contains 320 acres, is being used for agricul- tural purposes. . . . Land in the vicinity on all four sides is also being used for agriculture. Tamiami Airport is located to the northeast of this site. The Application 47 Property: Most of the land in this area is being used for agriculture. The remainder is being used for rural residences or is vacant. The vacant parcels are zoned for agriculture (AU). Land in the vicinity on all sides has the same character. It is primarily agriculture with scattered rural residences or vacant parcels. These vacant parcels are also zoned for agri- culture (AU). The PR Report examined not only existing land use patterns, but future development patterns as well. The future development pattern set forth in the 1988 CDMP for Study Areas G and I were described in the PR Report as follows: Study Area G- The future land use pattern adopted for this area provides primarily for continued residential uses at low, and low-medium densities, with industrial and office development bordering the Tamiami airport. Nodes of commercial uses are pro- vided for at certain major intersections cen- trally located to serve the resident popula- tion. The western portions of the Study Area are slated for continued agricultural produc- tion, while the extreme northwest corner of the Area is designated as Open Land to pro- tect the West Wellfield. Study Area I- The future development pattern established for this area provides for mixed residential infilling (primarily estate, low density and low-medium-density, with some medium-high density located along SW 200 Street east of US 1). Commercial infilling is provided for along both sides of US 1 and along SW 312 Street. Major industrial areas are established south of SW 312 Street and west of 142 Avenue, west of SW 177 Avenue in the Homestead-Florida City area, north and south of 248 Street west of US 1 and south of SW 184 Street between US 1 and the HEFT [Homestead Extension to the Florida Turnpike]. The areas outside of, but contiguous to, the year 2000 Urban Development Boundary (UDB) are, for the most part, designated Agriculture, with land to the south and east designated as Open Land graduating to Environmental Protec- tion designations further south. . . . The PR Report also contained an evaluation of the current and future condition of public services in each study area, including an analysis, where possible, of each application's impact on these services. The public services addressed were roadways, transit, schools, parks, water, sewer, solid waste, and fire and rescue. The projected impacts of Applications 39, 40 (in its original form) and 47 on roadways were described as follows in the PR Report: Application 39: [Application 39 will result] in reduced peak hour trips affecting the year 2010 network in this [study] area. None of the roads within the area of this application were projected to operate worse than LOS D in the year 2010. Application 40: Due to its proximity to SW 177 Avenue, the combined 1422 peak hour trips generated by this amendment primarily impact SW 177 Avenue, which is already projected to operate at LOS F. The long term adopted standard for this road is LOS C. Even without this application the road does not meet this adopted standard. Application 47: Application 47 . . . if de- veloped would generate approximately 171 residential based peak hour trips in 2010. . . . Generally, this application would have negligible impacts on the LOS traffic conditions in 2010. The projected impacts of Applications 39, 40 (in its original form) and 47 on transit were described as follows in the PR Report: Applications 39 and 40: In general, no signi- ficant amount of transit trips would be generated by the amendment applications in this Study Area [G], even though a number of the applications (i.e. . . . 39, 40, ) are located in areas projected to have service improvements by 2010. Therefore, no additional service improvements are warranted beyond those that will be required to serve the area in general for 2010. Application 47: [N]o significant amount of transit trips would be generated by Applica- tion . . . 47. The projected impacts of Applications 39, 40 (in its original form) and 47 on schools were described as follows in the PR Report: Applications 39 and 40: It is estimated that the applications [in Study Area G] would in- crease the student population by [a total of] 2,784 students. . . . Application 40 would generate 874 additional students; . . . The other applications for residential use [including Application 39] would generate less than a hundred new students each. Application 47: If Application 47 were ap- proved, it would generate an additional 239 students at all grade levels. The greatest impact would be felt at the elementary school level, where an additional 129 students would have to be accommodated. Redland Elementary, which is the elementary school that would pro- bably serve the subject Application Area, is operating at a utilization rate of 163 percent. Additional classrooms are planned for construc- tion at Redland Elementary over the next few years, raising this school's number of Exist- ing Satisfactory Student Stations (ESSS) from 523 to 901. In addition, a relief school for Redland Elementary is to be built in this area by mid-1993, providing an additional 885 SSS. The projected impacts of Applications 39, 40 (in its original form) and 47 on parks were described as follows in the PR Report: Applications 39 and 40: Study Area G cur- rently meets the park level of service stan- dard (LOS) and is expected to meet the LOS in the year 2000. . . Despite the rapid popula- tion growth in the area, the LOS has remained above standard in part because of recreational facilities and open space that are provided in the planned residential developments which characterize the Study Area. Approval of those applications requesting new residential uses in Study Area G could result in a lowering of the LOS for parks if new park land is not provided. Application 47: By the year 2000, MSA 7.2 is expected to fall below standard if no addi- tional parks are provided. * * * Application 47 lies within MSA 7.2 which is currently above the LOS standard but is expected to fall below standard if no addi- tional park land is provided. The PR Report indicated that the fire and rescue response times to Wellenhofer's property, the Application 40 property and the Application 47 property were four minutes, 13 minutes, and three to four minutes, respectively, and that roadway accessibility to all three sites was good. With respect to the Application 40 property, the PR Report further noted that it "would be serviced by the planned Richmond Station after its completion in 1992-93," which would reduce the response time to the site to no more than six minutes. Water and sewer service in Study Areas G and I was described as follows in the PR Report: Study Area G: Water and sewer service is provided to Study Area G by WASAD [Metro- politan Dade County Water and Sewer Authority Department]. The area is characterized by large residential developments which have been built over the past decade. Water and sewer service was constructed by area devel- opers in many cases, and most of the developed area is served. . . . . [T]he 'Horse Country' area west of the Turnpike is not connected to either water or sewer. Potable Water Supply Water is supplied to Study Area G by WASAD's Alexander Orr Water Treatment Facility. This facility's current design rating is 178 MGD, and the historical maximum day water demand has been 146 MGD. . . . The Orr facility currently produces water which meets all federal, state and county drinking water standards. WASAD has recently made improve- ments to the Alexander Orr facility and devel- oped a long term expansion program. By 1990, it is expected that the plant will attain a rated capacity of 220 MGD. A major improvement to the distribution system in this Study Area is the completion of the 36/48 inch main which extends along SW 137 Avenue from SW 122 Street to SW 184 Street. In conjunction with other improvements, the system in this area is being connected to the South Miami Heights and the Orr Treatment Plants, providing adequate capacity for the southern portion of Study Area G. Improvements that are scheduled for 1989-90 include the extension of the 36 inch water main along Kendall Drive to SW 157 Avenue, and continued construction of the 96 inch raw water main that will deliver water from the new West Wellfield to the Alexander Orr Treat- ment Plant. Sewer Study Area G is served by the South District Wastewater Treatment and Disposal Facility. This facility has a current design capacity of 75 MGD. Based on a 12-month running average daily flow for this plant was 75 MGD. . . . Expansions to the South District facility are programmed for completion in 1994 to increase the design capacity to 112.5 MGD. Sewage effluent produced by this plant also conforms to federal, state and county effluent standards and is disposed of via deep well injection. Study Area I: Most of Study Area I is in agri- cultural use and relies primarily on private wells and septic tanks. WASAD serves the devel- oped areas in unincorporated Dade County. Florida City provides water service within the city limits and sewer service is provided by WASAD. A portion of the study area is also served by the City of Homestead. Homestead's franchised service area extends a short dis- tance outside the City limits: it is bounded irregularly on the East, on the West by SW 192 Avenue, by the City limits on the South, and on the North by SW 296 Street. Water distri- bution and sewage collection systems are main- tained by the Air Force to serve Homestead Air Force Base. Potable Water Supply The northeast corner of the Study Area is con- nected to WASAD's regional water supply system and is served by the Alexander Orr Treatment Plant. . . . [T]he served area south of SW 248 Street is not yet connected to the regional system. This area is served by the former Rex Utility system, which is now owned by WASAD, and by the City of Homestead. The Rex system has a rated capacity of 16.2 mgd and a maximum water demand of 8.81 mgd. The Homestead plant has a rated capacity of 9.9 mgd and a maximum demand of 7.7 mgd. . . . Water produced by these treatment plants meets federal, state, and county drinking water standards. A major improvement scheduled for this area is a 48 inch main which will run south along SW 127 Avenue from 248 Street to SW 280 Street to connect the existing systems to the Alexander Orr Treatment Plant. Upon completion of this main in 1990 or 1991, the . . . treatment plants of the Rex system will be phased out. . . . Sewer Florida City and the unincorporated portion of Study Area I are served by the South District Wastewater Treatment and Disposal Facility, which has a current design capacity of 75 mgd and an average daily flow of 84.2% of rated capacity. Expansions to the South District facility, programmed for completion in 1994, will increase the design capacity to 112.5 mgd. Sewage effluent treated by this plant conforms to the federal, state and county effluent stan- dards and is disposed of via deep-well injection. . . . The only remaining sewage treatment plant in Dade County is operated by the City of Homestead. The plant is designed to treat 2.25 mgd and its capacity is in the process of being evaluated by the Florida Department of Environmental Regula- tion. The Homestead system currently operates under an agreement to divert a portion of its wastewater to WASAD for treatment and disposal. . . . The following was indicated in the PR Report concerning the water and sewer service available to Wellenhofer's property, the Application 40 property and the Application 47 Property: Wellenhofer's property: distance to nearest water main- 1320 feet; diameter of this main- 12 inches; location of this main- SW 112th Street and SW 142nd Avenue; distance to nearest sewer main- 4000 feet; location of this main- SW 112th Street and SW 137th Avenue. The Application 40 Property: distance to nearest water main- 0 feet; diameter of this main- 24 inches; location of this main; SW 152nd Street and SW 157th Avenue; distance to nearest sewer main- one mile; location of this main- SW 136th Street and SW 147th Avenue. The Application 47 Property: distance to near- est water main- 2640 feet; diameter of this main- 12 inches; location of this main- SW 157th Avenue and 280th Street; distance to nearest sewer main- 3960 feet; location of this main- SW 157th Avenue and SW 284th Street. 19/ The significance of the availability of water and sewer service to a particular application property was described as follows in the PR Report: Although specific requirements under Chapter 24 of the Code of Metropolitan Dade County vary with land use, most new development in Dade County is required to connect to the public water or sewer system, or to both. The timing of new development is heavily depen- dent on the availability of these services. Where water and sewer service does not exist and is not planned, the services may be pro- vided by the developer. When construction is completed, the facilities are donated to the utility. The proximity of an application area to exist- ing or programmed water and sewer lines is an important indicator of whether or not the area is likely to develop within the 2000 time frame of the Urban Development boundary. . . . The following observations were made in the PR report regarding solid waste services in the County: The Metro-Dade Department of Solid Waste Management provides both collection and dis- posal services for Dade County. The Department is responsible for the final dis- posal of solid waste generated anywhere in the County and for residential collection in the urbanized portions of unincorporated Dade County. Residents in sparsely developed areas of the County are responsible for delivering their waste to a proper disposal site. In general, industrial and commercial businesses often use private haulers who can provide customized service that is not available from the County. . . . Countywide, the solid waste disposal system has sufficient capacity to maintain the adopted level of service of 7 pounds per person per day through 1995. The Department's Objections, Recommendations and Comments Report (ORC) The Board of County Commissioners took preliminary action on the applications filed during the Amendment Cycle and transmitted to the Department its proposed amendment to the CDMP. Accompanying the proposed amendment was the PR Report. The Department issued its Objections, Recommendations and Comments Report (ORC) on February 2, 1990. A copy of the ORC, accompanied by a cover letter, was sent to the Mayor of Metropolitan Dade County, the Honorable Stephen P. Clark, that same day. The cover letter advised the Mayor that if he "would like the Department to participate in the public hearing for amendment adoption, such request should be received by the Department, certified mail, at least 14 days prior to the scheduled hearing date." The following were the statements made in the ORC that referenced Applications 39, 40 and 47: FUTURE LAND USE ELEMENT OBJECTIONS * * * Analysis 1. 9J-5.006(2)(b) The analysis of the character of the existing vacant or undeveloped land in order to deter- mine its suitability for use does not support the plan amendments that propose to extend the Urban Development Boundary (UDB) by 845 acres. The analysis demonstrates that the UDB as cur- rently delineated ensures an adequate supply of each land use will be available for the planning timeframe. In addition, the existing analysis identifies this region as environmen- tally sensitive and not suitable for urban uses. Recommendation Revise the plan amendments to retain the UDB as currently delineated in the adopted Metro-Dade Comprehensive Development Master Plan (CDMP) or include analysis that would justify extension of the UDB for urban uses while not causing adverse impacts to the environmentally sensitive lands in the East Everglades Area. 2. 9J-5.006(2)(c)2. The analysis of the amount of land needed to accommodate the projected population, as re- vised in Amendment 62, does not support plan amendments 18, 37, 40, 41 and 47 which propose to extend the UDB by an additional 845 acres. The analysis demonstrates that there is ade- quate amount of land uses designated within the current UDB to accommodate the projected population within the planning timeframe. Therefore, the extension of the UDB into the East Everglades area would encourage urban sprawl. Recommendation Revise the plan amendments to be consistent with the analysis. The plan amendments must justify the proposed need for additional land outside of the current UDB to accommodate the projected population. 3. 9J-5.006(2)(e) The analysis of the proposed development of flood prone areas does not support plan amend- ments 18, 37, 40, 41 and 47 which would extend the UDB by 845 acres. The new growth would be directed into the flood prone areas on the eastern edge of the Everglades. . . . Recommendation Revise the plan amendments to not extend the UDB and to either retain the existing land uses or designate land uses that are compat- ible with the environmentally sensitive nature of . . . the Everglades region. Goals, Objectives and Policies 4. 9J-5.006(3)(b)1. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 1, page I-1, which states that decisions regarding the location of future land use in Dade County will be based on the physical and financial feasibility for providing services as adopted in the CDMP. The analysis demonstrates that the County has not planned on providing services outside the existing UDB; therefore the extension of the UDB at this time would appear to be premature. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 8. 9J-5.006(3)(b)7. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Objective 3, page I-4, which states that the urban growth shall emphasize concentration around centers of activity rather than sprawl. The analysis of the land needed to accommodate the projected population demonstrates that there will be an adequate supply of vacant land within the UDB for the duration of the planning timeframe. Recommendation Revise the amendments to retain the UDB as currently delineated in the CDMP. * * * 12. 9J-5.006(3)(c)3. Plan amendments 18, 37, 40, 41 and 47, which would extend the UDB by 845 acres, are incon- sistent with Policy 1B, page I-1, which states that the County will first provide services for the area within the UDB. The amendments are located outside of the existing UDB and the analysis demonstrates that there is no need to extend the UDB for residential or industrial land uses. Recommendation Retain the UDB as currently delineated. * * * Future Land Use Map(s) 14. 9J-5.006(4)(a) Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are not supported by the data and analysis. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These ex- tensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development Boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and to pro- tect the environmental integrity of the Ever- glades. * * * PORTS, AVIATION AND RELATED FACILITIES A. OBJECTIONS * * * Goals, Objectives and Policies 1. 9J-5.009(3)(c)1. Plan amendments 38 and 39, which would change industrial/office land use to low density resi- dential, are inconsistent with Policy 4C, page IV-4, which supports zoning that would protect existing and proposed aviation flight paths. These amendments would promote the encroachment of residential land uses into the Tamiami Airport area guaranteeing a future conflict of land uses. Recommendation Retain the existing land uses or propose land uses that would be compatible with the existing airport and the surrounding supporting aviation industries. * * * SANITARY SEWER, SOLID WASTE, DRAINAGE, POTABLE WATER, AND NATURAL GROUNDWATER AQUIFER RECHARGE ELEMENT A. OBJECTIONS Goals, Objectives, and Policies 1. 9J-5.011(2)(b)3. Plan amendments 18, 37, 40, 41 and 47 which entail the extension of the Urban Development boundary are inconsistent with Objective 1 and Policy 1A, page VII-1, which state that the area within the UDB shall have first priority for urban services as a measure to discourage urban sprawl. The designation of residential uses is not supported by the analysis which shows an adequate supply of residential land for the planning timeframe. . . . These extensions would be premature according to the data and analysis submitted with the plan amendments and would increase development pressure toward the Everglades. Recommendation Retain the Urban Development boundary as cur- rently delineated. Encourage new residential development in the Urban Infill Area where the infrastructure already exists to support higher densities and where the CDMP has speci- fically made commitments to direct development in order to discourage urban sprawl and protect the environmental integrity of the Everglades. The ORC also addressed the proposed plan amendment's consistency with the State of Florida Comprehensive Plan (State Plan) and the Regional Plan for South Florida (Regional Plan), which was prepared and adopted by the South Florida Regional Planning Council. The following was alleged with respect to the proposed amendment's consistency with the State Plan: STATE COMPREHENSIVE PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021 The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following sub- sections of s. 187.201, F.S. (1988 Supplement), State Comprehensive Plan policies: Housing (5)(b)3., which requires the supply of safe, affordable and sanitary housing for low and moderate income persons and the elderly, because the proposed amendments would change existing residential uses, that would be feasible for affordable housing, to non-residential uses; and Water Resources (8)(b)4., which requires the protection and use of natural water systems in lieu of struc- tural alternatives and restore modified sys- tems, because the proposed amendments would create land uses which would encroach upon wellfield protection areas; and Coastal and Marine Resources (9)(b)4., which requires the protection of coastal resources, marine resources, and dune systems from the adverse effects of develop- ment, because of the proposed amendment to change definitions which would give residen- tial densities to submerged marine lands; and Natural Systems and Recreational Lands (10)(b)7., which requires the County to pro- tect and restore the ecological functions of wetland systems to ensure their long-term environmental, economic and recreational value, because the proposed amendments would expand the UDB into the East Everglades Area and potentially permit noncompatible land uses within wetland study areas and wellfield pro- tection areas; and (10)(b)8., which requires promotion of res- toration of the Everglades system and of the hydrological and ecological functions of de- graded or substantially disrupted surface waters, because of the proposed amendment which would expand the UDB into the East Everglades Area; and Land Use (16)(b)2., which requires incentives and dis- incentives which encourage a separation of urban and rural land uses, because the pro- posed amendments would expand the UDB into the East Everglades Area which would encourage urban sprawl; and Public Facilities (18)(b)1., which requires incentive for devel- oping land in a way that maximizes the uses of existing public facilities, because the pro- posed amendments would remove residential uses along arterials and reduce the effectiveness of the mass transit system. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and implementing policies, supported by adequate data and analysis, that are consistent with the above-referenced poli- cies of the State Comprehensive Plan. The following was alleged in the ORC concerning the proposed amendment's consistency with the Regional Plan: REGIONAL POLICY PLAN CONSISTENCY OBJECTIONS 1. 9J-5.021(1) The proposed Comprehensive Development Master Plan amendments are not consistent with and fail to address adequately the following subsections of the Regional Plan for South Florida: Policy 57.1.2., which requires giving priority to development in areas within which adequate services are either programmed or available, because of the proposed amendments which would expand the UDB into the East Everglades Area; and Policy 64.2.1, which requires that land use around the airport be strictly controlled to prevent unnecessary social or economic con- flicts and costs, because of the proposed amendments which would place residential uses in close proximity to Tamiami Airport; and Policy 69.1.1., which encourages appropriate activities to ensure the continued viability of agriculture, because the proposed amend- ments which would expand the UDB into the East Everglades Area. The ORC contained the following recommendation concerning what needed to be done, in the Department's view, to cure these alleged inconsistencies: The proposed comprehensive plan amendments must be revised to include specific, measur- able objectives and policies, supported by adequate data and analysis, that are consis- tent with the policies of the Regional Plan for South Florida. Under the heading of "Internal Consistency" in the ORC, the following remarks were made: INTERNAL CONSISTENCY OBJECTIONS 1. 9J-5.005(5)(b) Each map depicting future conditions in the plan (including the future land use map) must reflect goals, objectives and policies in each element, as those goals, objectives and policies exist or are modified to meet the requirements of Chapter 9J-5, F.A.C., Chapter 163, F.S., the State Comprehensive Plan (Chapter 187, F.S.) and the comprehensive regional policy plan, as recommended in this report. Recommendation Ensure that future conditions maps are modi- fied to reflect goals, objectives and policies in each element. COMMENTS See individual elements. Those objections, recommendations and comments made in the ORC that are not recited above specifically referenced applications other than Applications 39, 40 and 47. The Planning Department's Response to the ORC On March 21, 1990, the Planning Department published a written response to the ORC (Response). In its Response, the Planning Department concurred with the position that Applications 39, 40 and 47 should not be approved, but it took issue with certain statements made in the ORC relating to these applications. The Planning Department pointed out that the "East Everglades was the area located west of the L-31 Everglades containment levee and south of the Tamiami Trail," and that "[A]pplications [18, 37, 40, 41 and 47 we]re no closer than two miles [to the east] of the East Everglades" and did not extend to any areas designated "environmental protection" on the FLUM. The Planning Department further noted that the Application 40 property and the Application 47 property were not subject to recurring flooding. With respect to the lone objection in the ORC which specifically mentioned Application 39, the Planning Department observed that it "incorrectly cite[d] Policy 4C [of the Port and Aviation Facilities Element of the CDMP]; it should be Policy 4D." The Planning Department added that, although the Department had not so indicated, Application 39 was "also inconsistent with Objective 8 of the Port and Aviation Element which seeks to maximize compatibility between airports and the surrounding communities." Combined Recommendations of the Planning Department and the PAB On February 27, 1990, and February 28, 1990, respectively, following a joint public hearing held on February 23, 1990, the Planning Department, acting in its capacity as the local planning agency, and the PAB adopted resolutions containing their recommendations to the Board of County Commissioners regarding the final action to be taken on the applications filed during the Amendment Cycle. Thereafter, prior to the final adoption hearing, the Planning Department published a document entitled "Combined Recommendations of the Metropolitan Dade County Planning Department (Local Planning Agency) and the Planning Advisory Board" (CR Report), which set forth these recommendations, and summarized the rationale upon which they were based. Both the Planning Department and PAB recommended that Application 39 be denied. According to the CR Report, these recommendations were based upon the following considerations: The south boundary of this site is located only two blocks from the Kendall-Tamiami Execu- tive Airport. The application area is within the area designated on County comprehensive plans as industrial/commercial since 1965 to insure airport/community compatibility. The continued non-residential designation of this area also conforms to the standard adopted in 1989 by the State Legislature (but vetoed by the Governor because of unrelated funding pro- visions) which provided that "residential construction should not be permitted within an area contiguous to an airport measuring one-half of the length of the longest runway on either side of each runway centerline." The Aviation Department estimates that the housing proposed in the application area would be subject to more than ten times ambient noise levels which would result in many complaints from occupants. For example, virtually all of the 5,200 petitioners concerned about perceived airport noise impacts of the recently rejected runway extension lived further from the airport than would the occupants of housing proposed within the area. Approval of this application would conflict with the need for the County to protect its airport, and with the need to retain opportunity sites for employment activities in west Kendall. The Planning Department recommended that Application 40 be denied. According to the CR Report, this recommendation was based upon the following considerations: This Application is located in the Agri- cultural area west of Black Creek Canal. The Agricultural Land Use Plan adopted by the Board of County Commissioners established that Canal as the Agricultural area boundary in this area of the County, to be amended for urban development only at such time as there is a documented need. The Planning Department believes that the need does not yet exist. 20/ Approval of this Application would be premature. The CDMP currently contains within the year 2000 Urban Development Boundary (UDB), enough land countywide to sustain projected industrial needs well beyond the year 2010, and residential needs to the year 2015. Within this Study Area there is also enough industrial land to accommodate projected residential growth beyond the year 2010 and to accommodate projected residential growth until the year 2005. While current projections indicate that the single family supply west of the Turnpike between Kendall Drive and Eureka Drive does not contain much surplus beyond the year 2000, the CDMP provides alternative loca- tions, including an abundance of supply in the Turnpike corridor south of Cutler Ridge. The Planning Department will closely monitor growth trends in the various subareas of the County and will recommend adjustments when warranted in the future. The PAB recommended that Application 40 be approved. The CR Report indicated that the PAB's reasoning with respect to this matter was as follows: Because this is the area where people want to live, sprawl is justified and the urban devel- opment boundary should be expanded. In re- sponse to DCA's objections, the PAB noted that services are available adjacent to this Appli- cation. Both the Planning Department and PAB recommended the denial of Application 47. The following reasons were given in the CR Report for their recommendations: The area is currently designated Agricul- ture on the Land Use Plan map, and is used for agricultural purposes. The Agricultural Land Use Plan adopted by the Board of County Commis- sioners recommends that the area designated Agriculture should not be redesignated for urban use until there is a documented need for more urban land. Approval of this Application would be very premature. The CDMP currently contains enough land within the year 2000 Urban Development Boundary in this Study Area to accommodate projected demand well beyond the year 2010. Similarly, in the area west of US 1 there is enough land for single-family type residences to accommodate projected demand through the year 2010. There is no current need to promote urban development of this Application area. This site contains fifteen acres of Dade County pine forest listed in Dade County's forest land inventory as having high environ- mental quality. It should not be prematurely urbanized. The Final Adoption Hearing: The Department's Participation On March 12, 1990, Mayor Clark mailed, by United States Express Mail, a letter to the Department requesting that it participate in the hearing at which final action would be taken by the Board of County Commissioners on the outstanding applications filed during the Amendment Cycle. The body of the letter read as follows: The Board of County Commissioners requests that the Florida Department of Community Affairs participate in its hearing to address biennial applications requesting amendments to the 2000-2010 Comprehensive Development Master Plan (CDMP) for Metropolitan Dade County. This request is made pursuant to Section 9J-11.011(2) of the Florida Adminis- trative Code and Section 2-116.1(4) of the Code of Metropolitan Dade County. The public hearing will be held on Monday, March 26, 1990, at 9:00 AM in the Commission Chambers, 111 N.W. 1 Street, Miami. If neces- sary, this hearing will be continued on Tuesday, March 27, 1990, in the Commission Chambers. The purpose of this hearing is to afford the Board of County Commissioners an opportunity to hear the applicants explain their applica- tions and to receive public comments on the applications, on the "Objections, Recommenda- tions, and Comments" report submitted by the Florida Department of Community Affairs, and on the recommendations of the Planning Advi- sory Board and of the Local Planning Agency. At the conclusion of this hearing, the Board of County Commissioners will take final action to approve, approve with change, or deny each of the applications. Should you or your staff need any assistance or additional information regarding this hearing, please contact Mr. Robert Usherson, Chief, Metropolitan Planning Division, Metro-Dade Planning Department, at (305)375-2835, (Suncom) 445-2835. The Department, by letter, advised Mayor Clark that it would send a Department representative to "participate" in the hearing. The body of the letter read as follows: In response to your request of March 12, 1990, the Department of Community Affairs will send a representative to participate in the March 26, 1990, public hearing to adopt the proposed Metro Dade County comprehensive plan amendments. The Department's representative is authorized to restate our position as expressed in the Department's February 3, 1990 [sic] Objections, Recommendations and Comments Report, and to listen to all parties. It is the Department's position that the adoption public hearing is not the proper forum for modifying the Depart- ment's position or approving proposed revisions to the comprehensive plan. The Department's representative will be without authority to modify the Department's position or approve proposals discussed at the public hearing. The Department's representative will be authorized, however, to comment on proposals to resolve objections included in the report. Final approval of any proposal may only be granted by the Secretary of the Department of Community Affairs. The Department's role with respect to approv- ing proposed revisions will begin upon adop- tion and submittal of the comprehensive plan, pursuant to Chapter 9J-11.011, Florida Admin- istrative Code. If I may be of further assis- tance in this matter, please contact me at (904)488-9210. The Department representative selected to attend the final adoption hearing was Harry Schmertman, a Planner IV with the Department. Schmertman had not been involved in the preparation of the ORC. He reviewed the report, however, before attending the hearing. Schmertman arrived at the Commission Chambers on the morning of March 26, 1990, prior to the commencement of the hearing. Upon his arrival, he spoke with the County's Planning Director and requested that he be recognized at the outset of the hearing. The Planning Director responded that "the Mayor would take care of that." Following this conversation, Schmertman took a seat "[a]pproximately five or six rows back [from the front] in the center of the auditorium." Thereafter, the hearing formally convened. Shortly after the commencement of the hearing, before any applications were discussed, Mayor Clark introduced Schmertman and indicated that he was attending the hearing on behalf of the Department. Immediately following the Mayor's introduction of Schmertman, the Chairman of the PAB, Lester Goldstein, presented the PAB's recommendations to the Board. During his presentation, Goldstein expressed disappointment over the various factual inaccuracies in the Department's ORC. Schmertman did not respond to Goldstein's comments, nor did he at any time attempt to modify or explain any statement or position taken by the Department in the ORC. Indeed, he made no public remarks while in attendance at the hearing. While Schmertman did not address the Board of County Commissioners at the hearing, at no time during the hearing was he asked to do so. Furthermore, the members of the Board gave no indication that they did not understand, and therefore needed clarification of, the Department's position on the applications under consideration. At around 4:30 p.m., before the conclusion of the hearing on that day, Schmertman left the Commission Chambers to return to Tallahassee. Neither he, nor any other Department representative, was present for the remainder of the hearing on that day or for the continuation of the hearing on the following day, when public discussion and debate ended and a formal vote was taken on each of the pending applications. 21/ Schmertman did not tell anyone that he was leaving the Commission Chambers. He reasonably believed, however, that there was no need to announce his departure because he was "in a very obvious location . . . and was very visible leaving." No member of the Board, nor any other County representative, asked Schmertman, as he was leaving, to remain until the conclusion of the hearing. The Final Adoption Hearing: The Objectors' Participation The Redland Citizen Association, Inc. (RCA) is a nonprofit Florida corporation, which has as its stated purpose and primary activity the preservation and promotion of the agrarian character and lifestyle of the Redlands area of South Dade. The RCA engages in fundraising to obtain the financial resources necessary to accomplish this objective. The RCA has approximately 700 to 800 members, all of whom reside in or around the Redlands in Dade County. At all times material hereto, Martin Motes has been a member of the RCA, resided in a home that he owns in the Redlands, and owned and operated a wholesale orchid nursery business located on property adjacent to his residence, three quarters of a mile north of the Application 47 property. Motes appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the RCA and its members, including himself, he expressed opposition to Application 47. He argued that the change sought through this application was "premature" and constituted an "unwarranted and unwanted" extension of urban development into a viable agricultural area. Neither Motes, nor any other representative of the RCA, objected to any application other than Application 47. 22/ The Sierra Club is a nonprofit national organization organized for the following purpose: To explore, enjoy and protect the wild places of the earth, to practice and promote the re- sponsible use of the earth's ecosystems and resources, to educate and enlist humanity to protect and restore the quality of the natural and human environment, and to use all lawful means to carry out these objectives. The Sierra Club, Miami Group, is a local division of the national organization specifically chartered to include residents of both Dade and Monroe Counties. It has a Dade County address. At all times material hereto Bruce Rohde has been a member of the Sierra Club and resided in a home that he owns in Dade County. Rohde appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the Sierra Club and its members, including himself, he expressed opposition to Applications 40 and 47, among others. He contended that the extensions of the UDB requested through Applications 40 and 47 were "premature." Neither Rohde, nor any other representative of the Sierra Club, objected to Application 39. The League of Women Voters of the United States is a national organization. The League of Women Voters of Florida is a state organization. The League of Women Voters of Dade County, Inc. (League) is a nonprofit Florida corporation affiliated with the national and state organizations. The League's purpose, as stated in its Articles of Incorporation, is as follows: [T]o promote political responsibility through informed and active participation of citizens in government and to take action on govern- mental measures and policies in the public interest in conformity with the principles of The League of Women Voters of the United States and The League of Women Voters of Florida. It engages in fundraising to obtain the financial resources necessary to accomplish this objective. The League rents office space in Dade County out of which it conducts its operations. 23/ At all times material hereto, Carol Rist has been a member of the League, resided in a home that she owns in Dade County, and owned and operated a Dade County business. Rist appeared before the Board of County Commissioners at the final adoption hearing. On behalf of the League and its members, including herself, she expressed opposition to various applications, including Applications 39, 40 and 47. With respect to Applications 40 and 47, her arguments were similar to those advanced by Rohde at the hearing. As to Application 39, she contended that Wellenhofer's property was too close to the airport to be used for residential purposes and that it was a desirable site for the location of an office complex to which residents of the West Kendall area would be able to commute. 24/ At all times material hereto, Evelyn B. Sutton has resided in a home that she owns in the eastern half of the Application 47 property. Sutton appeared before the Board of County Commissioners at the final adoption hearing. She expressed her opposition to Application 47, contending that its approval would have an adverse impact upon the unique agrarian character and lifestyle of the Redlands. She did not object to any application other than Application 47. At all times material hereto, Frances L. Mitchell has resided in a home that she owns in the eastern half of the Application 47 property. Mitchell and some of her neighbors retained an attorney, who appeared before the Board of County Commissioners at the final adoption hearing and made a presentation on their behalf. The attorney advised the Board that his clients were in opposition to Application 47 because it was "premature" and represented unneeded "leapfrog residential development in the heart of the Redlands." Neither Mitchell, her attorney, nor any other representative acting on her behalf, objected to any application other than Application 47. At all times material hereto, Rod Jude has resided in a home that he owns in Dade County and owned and operated a Dade County wholesale nursery business. Jude appeared before the Board of County Commissioners at the final adoption hearing. He expressed his opposition to Application 40, arguing that there was no demonstrated need for the conversion of the Application 40 property to non-agricultural uses. Jude also objected to Applications 37, 41 and 42. He did not address either Application 39 or Application 47. The Final Adoption Hearing: The Applicants' Participation Jeffrey E. Lehrman, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 39 on behalf of Wellenhofer. In addition to making an oral presentation, Lehrman gave the members of the Board written materials. During his presentation, Lehrman stated, among other things, the following: Application 39 represented infill, not leapfrog, development; such development would not adversely impact upon, nor would it be adversely impacted by, the Tamiami Airport; there had been significant residential development in the area around Wellenhofer's property in recent years; the approval of Application 39 would not interfere with any existing flight patterns; Wellenhofer's property was not under an existing flight path, but rather was in a "hole-in-the-doughnut" and therefore was distinguishable from properties that were the subject of other applications; Tamiami's north runway was an auxiliary runway unequipped to handle operations at night and in bad weather; the applicable 65/75 LDN noise contour did not intrude upon Wellenhofer's property; the new statute that the Planning Department had referenced in recommending denial of Application 39 had been vetoed by the Governor and therefore was really no statute at all; helicopter training took place on the south, rather than the north, side of the airport; and if Application 39 was approved, a buffer of industrial land would still exist between Wellenhofer's property and the airport. Thomas Carlos, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 40 on behalf of the Suchmans. Carlos was assisted by James Holland, a professional planner with the firm of Post, Buckley, Shuh and Jernigan (Post Buckley), Jack Schnettler, a professional traffic engineer with Post Buckley, Richard Tobin, President of Strategy Research Corporation, Inc. (SRC), a national research firm with offices in Florida, and Richard Roth, Vice- President of SRC in charge of planning research studies. During his opening remarks, Carlos advised the County Commission that the Suchmans had executed a covenant obligating themselves to developing their property in accordance with the Traditional Neighborhood Development concept. He then introduced Holland to the Commission. During his presentation, Holland did, among other things, the following: summarized the contents of Table 1G of the PR Report relating to the environmental, physical and archaeological/historic conditions that existed on the Application 40 property; contrasted the Application 40 property with the undeveloped lands in MSA 6.1 already within the UDB which, he argued, had marginal development potential because of undesirable environmental constraints; opined that, as a consequence of these impediments to development in MSA 6.1, MSA 6.2 would experience an increase in demand; showed a graphic depicting land use patterns in and around the Application 40 property, including the amount of land available for residential development in the area; displayed another graphic showing future Urban Services Areas in unincorporated Dade County, including the Tamiami area; in conjunction with the these graphics, argued that the residential development of the Application 40 property was in furtherance of the Tamiami area's designation as an employment center; quoted from a Planning Department report that suggested that development around the Tamiami Airport would reduce metropolitan transportation needs; asserted that the use of the Application 40 property for residential purposes would comply with federal guidelines as well as those found in the CDMP; in support of this assertion, presented a graphic illustrating that no part of the proposed residential portion of the Application 40 property would be included in the 65/75 LDN contours which measure the noise generated by airport operations; and described the urban services which were available or programmed to serve the Application 40 property. Jack Schnettler's presentation addressed traffic and transit issues. He presented a graphic showing the existing and programmed transportation network in the vicinity of the Application 40 property and highlighted particular improvement projects that he considered worthy of note. In describing the this transportation network, he commented that it augmented the employment center character of the area. Schnettler expressed the view that the property would be adequately served by transit and roadways. In addition, he disagreed with the Planning Department's forecast that approval of Application 40 would adversely impact upon the level of service on Southwest 177th Avenue, which, he noted, was located one and half miles to the west of the application property. Tobin and Roth briefly summarized a written report that SRC had prepared for the Suchmans and other private applicants (SRC Report). The report analyzed housing demand in the West Kendall area. The SRC Report concluded that the supply of residential land in MSA 6.2 25/ would be depleted in the year 2004 under a low case scenario, in 1998 under a medium case scenario, and in 1996 under a high case scenario, which the report opined, without explanation or reasonable justification, was "the one most likely to occur." As noted above, in its PR Report, the Planning Department had projected a depletion year of 2006, which the SRC Report criticized as being "out of touch with reality." In making its projections, SRC compared the yearly average of new housing units built and sold in MSA 6.2 from 1980 to 1984, which was a down period for the housing industry in Dade County, to the yearly average of new housing units build and sold in MSA 6.2 from 1985 to 1988, which was a boom period for the housing industry in the County. The information used by SRC regarding the number of housing units constructed and sold during these years was obtained from the Dade County Tax Assessor's office. Under the low case scenario, SRC assumed that housing demand in MSA 6.2 would remain constant at its 1985 to 1988 yearly average of 1,780 units. Under the medium case scenario, SRC assumed that the rate of housing demand would increase by about 35% over the 1985 to 1988 experience (which was 70% above the 1980 to 1984 experience). Under the high case scenario, SRC assumed that the 70% increase in housing demand between 1980 to 1984 and 1985 to 1988 would continue unabated until the supply of residential land was depleted, an assumption that is even more unrealistic than the assumptions underlying low and medium case scenarios. SRC reached these conclusions without analyzing housing demand on a countywide basis. Neither did it rely upon any population projections, notwithstanding that housing demand is driven by population growth. Furthermore, it did not take into consideration the cyclical fluctuations that characterize the housing market, nor did it account for vacant units in its projections. A professionally accepted methodology is one that is replicable, transparent, documented, free of error and inaccuracies, based upon assumptions that are clearly stated and reasonable and designed to avoid improbable and unlikely outcomes given past trends. In projecting housing demand for MSA 6.2., SRC did not utilize a methodology meeting these requirements. In addition to the oral presentations made by Carlos, Holland, Schnettler, Tobin and Roth, the Suchmans also presented to the Board of County Commissioners a written memorandum authored by Carlos and David S. Goldwich, Esquire, with attachments, including a copy of the SRC Report, copies of excerpts from Planning Department publications, and a copy of a recent article appearing in "New Miami Magazine," which reported that "Dade farmers, mostly by shifting production to new areas to the west actually increased total acres under tillage from 78,263 in 1981 to 84,534 in 1987" and that "Dade agricultural acreage [was] not expected to shrink substantially, despite encroachments by developers." The memorandum made many of the same arguments that were advanced by those who spoke on behalf of the Suchmans at the final adoption hearing. Robert Traurig, Esquire, appeared before the Board of County Commissioners at the final adoption hearing and made a presentation in support of Application 47 on behalf of Alajuela N.V. During his presentation, Traurig stated, among other things, the following: the Application 47 property was contiguous to the 1988 UDB; the failure to include the property within the UDB was an oversight that should be corrected; there was significant residential development surrounding the property in all directions; the area in which the property is located was an area in transition; it was changing from an agricultural area to one that was predominantly residential in character; as demonstrated by the recent development in the area, there was a demand for housing in this part of the County; most of the people who wanted to live in this area could not afford the five-acre estates allowed on property designated for "agricultural" use under the CDMP; the redesignation of the Application 47 property sought by Alajuela N.V. would not have an adverse impact on the agricultural industry in the County; such redesignation was not premature nor would it result in leapfrog development; there were no environmental impediments to the development of the Application 47 property; the elevation of the property was 11 feet above sea level and drainage was good; there were no wetlands on the site; the tree colony on the eastern half of the property would be protected by County ordinance; and there were roadways, parks, fire service and other urban services available to serve the property. The Final Adoption Hearing: The Aviation Director's Comments At the request of Commissioner Hawkins, Rick Elder, the County's Aviation Director, commented on four application properties in Study Area G that were in close proximity to the Tamiami Airport, including Wellenhofer's property. Elder stated that there were no flight patterns over Wellenhofer's property. With respect to noise, he noted that Wellenhofer's property was not within the 65/75 LDN contour. Elder did not indicate that he had any safety concerns regarding Application 39. The Final Adoption Hearing: Debate and Vote by the Board Following the conclusion of that portion of the final adoption hearing devoted to public discussion and debate on March 27, 1990, the Board of County Commissioners considered and voted on each of the pending applications. At the request of Commissioner Hawkins, the first application to be considered and voted on by the Board was the TND application, Application 71. The Board voted to approve Application 71. The remaining applications were considered and voted on in sequential order. During the Commissioners' debate on Application 39 and other applications in the vicinity of Tamiami Airport, Commissioner Gersten expressed the view that, with respect to these applications, neither noise nor safety should be a concern. Commissioner Schreiber concurred. Commissioner Valdes remarked that, although he was opposed to the other applications under consideration, he was not opposed to Application 39 because the property that was the subject of the application was not, according to Aviation Director Elder, under a flight pattern. Commissioner Dusseau indicated his opposition to Application 39. He argued that there was no need for residential development on Wellenhofer's property and that it was preferable to retain its "industrial and office" land use designation to further the creation of an activity center around the airport. Application 39 was approved by a five to three vote. When Application 40 came up for consideration, Commissioner Hawkins recommended that the application be modified. While he did not object to the extension of the UDB to include the Application 40 property, he suggested that only the application property owned by the Suchmans be redesignated for residential use. He explained that, not only would this modification eliminate concerns generated by the application regarding compatibility with airport operations, it would set the stage for the development of a TND in the West Kendall area. Commissioner Hawkins noted that the County Commission had long wanted to have a TND in this area and that the Suchmans were willing to develop their property as a TND if it was redesignated for residential use. Commissioner Dusseau responded to these comments by indicating that he favored the TND concept, but that he did not believe that the Suchmans property was where such a TND should be located. Application 40, as modified pursuant to Commissioner Hawkins' recommendation, initially failed to win approval on a tie vote. On the motion of Commissioner Winn, Application 40, as so modified, was reconsidered. On reconsideration, it was approved by a six to two vote. Application 47 was also approved by a six to two vote. Application 58, which proposed to allow new commercial agricultural uses within the UDB, and Application 62, with its revised population estimates and projections, were among the other applications that were approved by the Board of County Commissioners at the final adoption hearing. Of the applications seeking an extension of the UDB, only Applications 40 and 47 were approved. A total of 49 applications, either in their original form or as modified, were approved by the Board. The majority of these applications, like Applications 39, 40 and 47, sought to change one or more land use designations on the FLUM. Other approved applications, in addition to Applications 39, 40 and 47, that sought to have the Board of County Commissioners change a non- residential land use to a residential land use were Applications 12, 13, 14, 26, 28 and 44. 26/ Approximately 410 acres of land were redesignated on the FLUM from non-residential to residential land uses as a result of the approval of Applications 12, 13, 14, 26, 28, 39, 40, 44 and 47. Assuming that the properties that were the subject of these applications will be able to develop at the maximum residential densities indicated on the FLUM, these redesignations will have increased the supply of residential land in the County by approximately 1930 dwelling units. 208. The approval of Applications 1, 2, 3, 4, 9, 11, 14, 23, 27, 29, 45 and 46 resulted in the redesignation on the FLUM of approximately 115 acres of land from residential to non-residential land uses. Assuming that the properties that were the subject of these applications would have been able to develop at the maximum residential densities indicated on the FLUM, these redesignations may be said to have reduced the supply of residential land in the County by approximately 910 dwelling units. Applications 5, 6, 19, 22 and 24 sought to have land designated on the FLUM for "low density residential" use redesignated for "office/residential" use. Applications 8, 15 and 16 sought to have land designated on the FLUM "medium density residential" redesignated "office/residential." These eight applications were all approved. Approximately 105 acres of land were redesignated "office/residential" as a result of the approval of these eight applications. Assuming that the properties that were the subject of these applications would have been able to develop at their maximum pre-approval residential densities, as indicated on the FLUM, and further assuming that, after these redesignations, they will be developed as office sites exclusively, these redesignations may be said to have reduced the supply of residential land in the County by approximately 1960 dwelling units. If the assumption were made that these redesignated properties will experience both office and residential development 27/ and that the residential development will amount to one half the number of dwelling units that would have been constructed had the property not been redesignated, the reduction in the supply of residential land resulting from these redesignations instead would be 980 dwelling units. It is unlikely, however, that as many as 980 dwelling units will be built on these properties. There were other applications, in addition to those specifically mentioned above, that sought FLUM redesignations and were approved by the Board of County Commissioners, however, they involved a change from one non- residential land use to another non-residential land use and therefore did not have a direct impact on the supply of residential land in the County. When viewed collectively, the changes made by the Board of County Commissioners to the FLUM during the Amendment Cycle have not been shown to have resulted in any appreciable increase in the supply of residential land in the County as a whole. That is not to say, however, that the Board's actions did not serve to increase the supply of residential land in certain areas of the County. For instance, by virtue of its approval of Applications 40 and 47, the Board added to the supply of residential land on the urban fringe in Study Area G and Study Area I, respectively. Following its vote on each of the pending applications, the Board adopted Ordinance No. 90-28, which amended the CDMP in a manner consistent with Board's actions on these applications. (The CDMP, as so amended, will be referred to as the "1990 CDMP." Ordinance No. 90-28 will be referred to as the 1990 Plan Amendment.) The CDMP, as Amended by Ordinance No. 90-28: Key Provisions Statement of Legislative Intent The 1990 CDMP contains a Statement of Legislative Intent. It provides as follows: This Statement expresses the legislative in- tent of the Board of County Commissioners with regard to the Comprehensive Development Master Plan (CDMP). This statement is applicable to the CDMP in its entirety and is declared to be incorporated by reference into each element thereof. Nothing in the CDMP shall be construed or applied to constitute a temporary or permanent taking of private property or the abrogation of vested rights as determined to exist by the Code of Metropolitan Dade County, Florida. The CDMP shall not be construed to preempt considerations of fundamental fairness that may arise from a strict application of the Plan. Accordingly, the Plan shall not be deemed to require any particular action where the Plan is incomplete or internally inconsistent, or that would constitute a taking of private property without due process or fair compensa- tion, or would deny equal protection of the laws. The CDMP is intended to set general guide- lines and principles concerning its purposes and contents. The CDMP is not a substitute for land development regulations. The CDMP contains long-range policies for Dade County. Numerous policies contained in the CDMP must be implemented through the County's land development regulations. Neces- sary revisions will be made to the County's land development regulations by the date required by Section 163.3202, FS. Other policies of the plan propose the establishment of new administrative programs, the modifica- tion of existing programs, or other administra- tive actions. It is the intent of Dade County that these actions and programs be initiated by the date that Dade County adopts its next Evaluation and Appraisal (EAR) report, unless another date is specifically established in the Plan. The CDMP is not intended to preempt the processes whereby applications may be filed for relief from land development regulations. Rather, it is the intent of the Board of County Commissioners that such applications be filed, considered and finally determined, and that administrative remedies exhausted, where a strict application of the CDMP would contravene the legislative intent as expressed herein. The Board recognizes that a particular application may bring into conflict, and neces- sitate a choice between, different goals, prior- ities, objectives, and provisions of the CDMP. While it is the intent of the Board that the land use element be afforded a high priority, other elements must be taken into consideration in light of the Board's responsibility to pro- vide for the multitude of needs of a large heavily populated and diverse community. This is especially true with regard to the siting of public facilities. Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. The term "shall" as used in the CDMP shall be construed as mandatory, subject, however, to this Statement of Legislative Intent. The term "should" shall be construed as directory. The FLUM The FLUM is an integral part of the 1990 CDMP's future land use element. It shows the proposed distribution, extent and location of permitted land uses for the entire land area of Dade County and, in so doing, reflects the CDMP's goals, policies and objectives, to the extent possible. In addition to a year 2000 UDB, the FLUM also has a year 2010 Urban Expansion Area Boundary. There are 18 land use categories represented on the FLUM: estate density residential communities; low density residential communities; low-medium density residential communities; medium density residential communities; medium-high density residential communities; high density residential communities; industrial and office; restricted industrial and office; business and office; office/residential; institutional and public facility; parks and recreation; agriculture; open lands; environmental protection; environmentally protected parks; transportation; and terminals. The FLUM also depicts activity centers, expressways, major and minor roadways, levees, canals and other bodies of water. The following advisement is set forth on the face of the FLUM: This plan map is not a zoning map! Within each map category on this plan map, numerous land uses, zoning districts and housing types may occur. This plan map may be interpreted only as provided in the plan text entitled "Inter- pretation of the Land Use Plan Map: Policy of the Land Use Element." That text provides necessary definitions and standards for allow- able land uses, densities or intensities of use for each map category and for interpretation and application of the plan as a whole. That text must be interpreted in its entirety in interpreting any one plan map category, and no provision shall be used in isolation from the remainder. The land use plan map (LUP), in conjunction with all other adopted components of the Com- prehensive Development Master Plan (CDMP), will govern all development-related actions taken or authorized by Metropolitan Dade County. The LUP Map reflects municipal land use policies adopted in municipal comprehen- sive plans. However, this plan does not supersede local land use authority of incor- porated municipal governments currently auth- orized in accordance with the Metro-Dade Charter. For further guidance on future land uses authorized within incorporated municipal- ities, consult the local comprehensive plan adopted by the pertinent municipality. The Interpretative Text That portion of the 1990 CDMP entitled "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" (Interpretive Text) provides in pertinent part as follows with respect to the residential land use categories shown on the FLUM: Residential Communities The areas designated Residential Communities on the LUP map permit housing types ranging from detached single-family to attached multi- family structures including manufactured housing and mobile home parks. The residen- tial communities designations indicate the overall residential density for the area. Also permitted in residential communities, in keeping with the Plan's objectives and poli- cies, are secondary neighborhood and community serving uses such as schools, parks, and houses of worship. Some additional uses such as day care centers, foster care and group housing facilities and similar uses, and neighborhood serving institutional and utility uses may also be permitted in residential com- munities in keeping with the circumstances and conditions outlined in this section, and with the objectives and policies of this plan. * * * The Land Use Plan Map includes six residential density categories which are depicted on the Plan map by different symbols/colors. Each category is defined in terms of its maximum allowable gross residential density. Develop- ment at lower than maximum density is allowed and may be required where conditions warrant. For example, in instances where a large portion of the "gross residential acreage" is not a part of the "net" residential building area, the necessity to limit the height and scale of the buildings to that compatible with the sur- rounding area may limit the gross density. The categories do not have a bottom limit or min- imum required density; all categories include the full range of density from one dwelling unit per five acres up to the stated maximum for the category. . . . Estate Density. This density range is typi- cally characterized by detached estates which utilize only a small portion of the total par- cel. Clustering, and a variety of housing types may, however, be authorized. The maxi- mum density allowed in this category is 2.5 dwelling units per gross acre. Low Density. A larger number of units is allowed in this category than in the Estate density. The maximum density allowed is 6 dwelling units per gross acre. This density category is generally characterized by single family type housing, e.g., single family detached, cluster, zero lot line, and town- houses. It could possibly include low-rise apartments with extensive surrounding open space providing that the maximum gross den- sity is not exceeded. Low-Medium Density. This category allows up to 13 dwelling units per gross acre. The types of housing typically found in areas designated low-medium density include single family homes, townhomes, and low-rise apart- ments. Medium Density. This Density Category allows up to 25 dwelling units per gross acre. The type of housing structures typically permitted in this category include townhouses, low-rise and medium rise apartments. Medium-High Density. This category accommo- dates apartment buildings ranging up to 60 dwelling units per gross acre. In this cate- gory, the height of buildings, and therefore, the attainment of densities approaching the maximum, depends to a great extent on the dimensions of the site, conditions such as location and availability of services, ability to provide sufficient off-street parking, and the compatibility with, and impact of the development on surrounding areas. High Density. This category permits up to 125 dwelling units per gross acre. This den- sity is only found in a few areas located within certain municipalities where land costs are very high and where services will be able to meet the demands. * * * Traditional Neighborhood Developments (TNDs). Traditional neighborhood developments which incorporate a broad mixture of uses under specific design standards may also be ap- proved in Residential Communities in the manner specifically authorized in this sub- section. The purpose of the traditional neighborhood development is to enable the creation of new communities that offer social and architectural quality, characteristic of early American town planning. Many of these early models, developed prior to 1940, offer insight into the design of coherently planned communities. The concept is patterned after those inherent in these earlier developments and provides a design clarity through a hierarchy of streets, a focus towards pedes- trian activity, low scale community buildings and open squares as the focal point of the neighborhood. The County shall adopt land use regulations that incorporate the objectives of a traditional neighborhood development concept. . . 28/ Within areas designated on the LUP map as Res- idential Communities, a mixed use Traditional Neighborhood Development permitting business, office, industrial, artisanal, home occupa- tions, and other uses authorized by this subsection may be approved providing that the following criteria are met: The minimum contiguous land area is 40 acres and is not located within the Estate density category; and The site is under single-ownership at the time the master development plan or equivalent is approved; and Residential density does not exceed the density depicted on the Land Use Plan Map, except that a maximum density of ten dwelling units per acre may be approved in the Low Density category; and Public open spaces such as squares or parks comprise a minimum of five acres or five percent of the developed area, whichever is greater; and Civic uses, such as meeting halls, schools, day care centers and cultural facilities com- prise a minimum of two percent of the developed area; and Business, office and industrial uses, that are separate from residential mixed uses do not exceed seven percent of the gross land area; and Where the TND borders or is adjacent to land that is designated Estate, Low Density or Low-Medium Residential and land so designated is used for residences or is vacant, the sep- arate business, office, and industrial uses identified in item No. 6 above, and those business, office, and industrial uses mixed with other uses shall not be permitted within 175 feet of the TND boundary and all non-residential components of such uses shall be acoustically and visually screened from said bordering or adjacent land; and when a TND borders land designated Agriculture or Open Land said business, office or industrial uses shall not be permitted within 330 feet of said TND boundary; and Residential, and residential uses mixed with shop-front, artisanal and home occupation uses comprise the remainder of the developed area; and In calculating gross residential density uses listed in item No. 6 shall be excluded, all other uses may be used to determine the maximum permitted density. The Interpretive Text provides that, with respect to the "office/residential" land use category, "[u]ses allowed in this category include both professional and clerical offices and residential uses." The following is stated in the Interpretative Text in pertinent part with respect to the "agriculture" land use category: Agriculture The area designated as "Agriculture" contains the best agricultural land remaining in Dade County. 29/ The principal uses in this area should be agriculture, uses ancillary to and directly supportive of agriculture such as packing houses on compatible sites, and farm residences. Uses ancillary to, and necessary to support the rural residential community of the agricultural area may also be approved, including houses of worship and local schools. In order to protect the agricultural industry it is important that uses incompatible with agriculture, and uses and facilities that support or encourage urban development are not allowed in this area. Residential development that occurs in this area is allowed at a density of no more than one unit per five acres. 30/ Creation of new parcels smaller than five acres for residential use may be approved in the Agriculture area only if the immediate area surrounding the subject parcel on three or more sides is predominantly parcelized in a similar manner, and if a division of the sub- ject land would not precipitate additional land division in the area. No business or industrial use should be approved in the area designated Agriculture unless the use is directly supportive of local agricultural production, is located on an existing arterial roadway, and has adequate water supply and sewage disposal in accordance with Chapter 24 of the County Code, and the development order specifies the approved use(s). Other uses compatible with agriculture and with the rural residential character may be approved in the Agriculture area only if deemed to be a public necessity, or if deemed to be in the public interest and no suitable site for the use exists outside the Agriculture area. Existing quar- rying and ancillary uses in the Agriculture area may continue operation and be considered for approval of expansion. Also included in the Agriculture area are enclaves of estate density residential use approved and grandfathered by zoning, owner- ship patterns and platting activities which predate this Plan. The grandfather provisions of Sections 33-196, 33-280, and 33-280.1 of the Dade County Code shall continue to apply to this area except that lots smaller than 15,000 square feet in area are not grandfathered hereby. Moreover, all existing lawful uses and existing zoning are deemed to be consistent with this Plan unless such a use or zoning: (a) is found through a subsequent planning study, as provided in Land Use Policy 5D, to be inconsistent with the foregoing grandfather provisions or with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as deter- mined by the Code of Metropolitan Dade County, Florida. . . . Also deemed to be consistent with this Plan are uses and zoning districts which have been approved by a final judicial decree which has declared this Plan to be invalid or unconstitutional as applied to a specific piece of property. This paragraph does not, however, authorize the approval or expansion of any use inconsistent with this plan. To the contrary it is the intent of this Plan to contain and prevent the expansion of inconsistent development in the Agriculture area. Activity centers are described in the Interpretative Text as "high- intensity design unified areas which will contain a concentration of different urban functions integrated both horizontally and vertically." The Interpretative Text contains the following discussion regarding the UDB: Urban Development Boundary The Urban Development Boundary (UDB) is in- cluded on the LUP map to distinguish the area where urban development may occur through the year 2000 from the areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2000 provided that level-of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by expanding the UDB when the need for such expansion is deter- mined to be necessary through the Plan review and amendment process. The CDMP seeks to facilitate the necessary service improvements within the UDB to accom- modate the land uses indicated on the LUP map within the year 2000 time frame. Accordingly, public expenditures for urban service and infrastructure improvements shall be focused on the area within the UDB, and urban infra- structure is discouraged outside the UDB. In particular, the construction of new roads, or the extension, widening and paving of existing arterial or collector roadways to serve areas outside the UDB at public expense will be per- mitted only if such roadways are shown on the LUP map and in the Traffic Circulation Element. The entire unincorporated area within the UDB is eligible to receive and utilize Severable Use Rights (SURs) in accordance with provi- sions of chapter 33-B, Code of Metropolitan Dade County. Accordingly, certain developments as specified in Chapter 33-B may be entitled to density or floor area bonuses as authorized by Chapter 33-B. No new commercial agricultural use of property may be established within the Urban Development Boundary, except on property designated Agri- culture on the LUP map or zoned AU (agricultural) or GU (interim). 31/ All property within the Urban Development Boundary not designated Agri- culture or zoned AU or GU shall not be permit- ted to be used for the establishment of any new commercial agricultural use. An additional exception is that land in utility easements or rights-of-way may be approved for new commercial agricultural uses where the use would be compat- ible with, and would have no unfavorable effect on, the surrounding area. Commercial agricultural uses include, without limitation, all uses of property associated with commercial horticulture; floriculture; viticulture; forestry; dairy; livestock; poultry; apiculture; pisciculture, when the property is used principally for the production of tropical fish; all forms of farm production; and all other such uses, except retail nurseries and retail greenhouses. Inci- dental agricultural use of property specifi- cally authorized by zoning which is otherwise consistent with the LUP map does not constitute commercial agriculture within the meaning of this provision. The Urban Expansion Area is described as follows in the Interpretative Text: The Land Use Map also contains a year 2010 Urban Expansion Area (UEA) Boundary. The UEA is comprised of that area located between the 2000 UDB and the 2010 UEA Boundary. The Urban Expansion Area is the area where cur- rent projections indicate that further urban development beyond the 2000 UDB is likely to be warranted some time between the year 2000 and 2010. Until these areas are brought within the year 2000 UDB through the Plan review and amendment process, they are allowed to be used in a manner consistent with the provisions set forth for lands designated as "Agriculture" or the applicable "Open Land" area. Urban infrastructure and services should be planned for eventual extension into the UEA, sometime between the years 2000 and 2010. However, if water or sewer lines or major roadway improvements are extended beyond the UEA in order to serve a necessary public facility that has been approved consistent with the Comprehensive Development Master Plan, these improvements should be sized or restric- ted to accommodate only the needs of the public facility. The significance of the UDB and UEA Boundary is explained in the Interpretative Text as follows: Critical in achieving the desired pattern of development is the adherence to the 2000 Urban Development Boundary (UDB) and 2010 Urban Expansion Area (UEA) Boundary. Given the fundamental influences of infrastructure and service availability on land markets and development activities, the CDMP has since its inception provided that the UDB serve as an envelope within which public expenditures for urban infrastructure will be confined. In this regard the UDB serves as an urban services boundary in addition to a land use boundary. Consistency with the CDMP will ensure that actions of one single-purpose agency does not foster development that could cause other agencies to respond in kind and provide facil- ities in unanticipated locations. Such uncoor- dinated single-purpose decision making can be fiscally damaging to government and can undermine other comprehensive plan objectives. The subject of plan amendments is also addressed in the Interpretative Text, which states the following on the subject: It is recognized that the development capacity of the area within the UDB and UEA will vary with time. Part of the supply will be util- ized and additional supply will be added from time-to-time through the approval of Plan Amendments. Some land will be built upon at densities which are higher than permitted by existing zoning because rezonings will occur in the future, and some development will occur at densities lower than that permitted by zoning. Moreover, impediments can arise to the utilization, at maximum potential densities, of all lands within the boundaries. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density or character of a particular area. Because the development capacity of the LUP map fluc- tuates with time, it will be reevaluated on a periodic basis as part of the Plan review and amendment process. The Interpretative Text enumerates the following as the "long- standing concepts embodied in Dade County's CDMP:" Control the extent and phasing of urban development in order to coordinate development with programmed provision of public services. Preserve and conserve land with valuable environmental characteristics, recreation uses, or scenic appeal. Encourage development in areas most suit- able due to soil conditions, water table level, vegetation type, and degree of flood hazard. Restrict development in particularly sensitive and unique natural areas. Maximize public ownership of beaches and shorelands within the Coastal Area to insure their preservation, conservation or public use. Minimize consumption of energy for trans- portation purposes and the amount of air pol- lution from transportation sources by encour- aging a more compact urban form. Shape the pattern of urban development to maximize the efficiency of existing public facilities and support the introduction of new public facilities or services such as improved mass transit systems. Preserve sound and stable residential neighborhoods. Rejuvenate decayed areas by promoting redevelopment, rehabilitation, infilling, and the development of activity centers containing a mixture of land uses. Promote development of concentrated activity centers of different sizes and char- acter to provide economies of scale and effi- ciencies of transportation and other services for both the public and private sectors. Redirect higher intensity development towards activity centers of areas of high countywide accessibility. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. Prohibit new residential development and other noise sensitive activities from locations near airport noise impact zones. Avoid excessive scattering of industrial or commercial employment locations. Encourage agriculture as a viable economic use of suitable lands. The Goal and Selected Objectives and Policies of the Future Land Use Element The following is the goal of the future land use element (FLUE) of the 1990 CDMP: Provide the best possible distribution of land use, by type and density, to meet the physical, social, cultural and economic needs of the present and future resident and tourist popu- lation in a manner that will maintain or improve the quality of the natural and man-made environ- ment and amenities, and ensure the timely and efficient provision of services. The following are among the objectives and policies found in the 1990 CDMP's FLUE: Objective 1 Decisions regarding the location, extent and intensity of future land use in Dade County, and urban expansion in particular, will be based upon the physical and financial feasi- bility of providing, by the year 2000, all urbanized areas with services at Levels of Service (LOS) which meet or exceed the minimum adopted in the Capital Improvements Element. Policies 1A. All development orders authorizing new, or significant expansion of existing urban lands uses, shall be contingent upon the pro- vision of services at the Levels of Service (LOS) which meet or exceed the LOS standards specified in the Capital Improvements Element (CIE). Metro required by Chapter 163.3202, Florida Statutes (F.S.), implement the requirements of Section 163.3202(2)(g), F.S. 1B. Priority in the provision of services and facilities and the allocation of financial re- sources for services and facilities in Dade County shall be given first to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in allocations for services and facilities shall support the staged development of the Urban Expansion Area (UEA). * * * Objective 3 The location and configuration of Dade County's urban growth from 1989 through the year 2010 shall emphasize concentration around centers of activity, renewal and rehabilitation of blighted areas, and contiguous urban expansion when warranted, rather than sprawl. Policies 3A. High intensity, well designed activity centers shall be facilitated by Metro-Dade County at locations having high countywide multimodal accessibility. * * * 3C. Metro-Dade shall approve infill devel- opment on vacant sites in currently urbanized areas, and redevelopment of substandard or underdeveloped environmentally suitable urban areas contiguous to existing urban development where all necessary urban services and facili- ties are projected to have capacity to accom- modate additional demand. 3D. Metro-Dade shall seek to prevent discon- tinuous, scattered development at the urban fringe particularly in the Agriculture Areas, through its biennial CDMP amendment process, regulatory and capital improvements programs and intergovernmental coordination activities. * * * 3H. Public facility and service providers shall give priority to eliminating any infra- structure deficiencies which would impede rehabilitation or renewal of blighted areas. 3I. In formulating or amending development regulations, Dade County shall avoid creating disincentives to redevelopment of blighted areas. Where redevelopment occurs within the urban area, requirements for contributions toward provision of public facilities may be moderated where underutilized facilities or surplus capacities exist, and credit toward required infrastructure contributions may be given for the increment of development replaced by redevelopment. * * * Objective 5 Dade County shall, by the year 2000, reduce the number of land uses which are inconsistent with the uses designated on the LUP map and interpretative text, or with the character of the surrounding community. Policies 5A. Uses designated on the LUP map and inter- pretative text, which generate or cause to generate significant noise, dust, odor, vibra- tion, or truck or rail traffic, shall be pro- tected from damaging encroachment by future approval of new incompatible uses such as residential uses. 5B. Residential neighborhoods shall be pro- tected from intrusion by uses that would disrupt or degrade the health, safety, tran- quility and overall welfare of the neighbor- hood by creating such impacts as excessive noise, light, glare, odor, vibration, dust, or traffic. 5C. Complementary, but potentially incompat- ible uses shall be permitted on sites with functional neighborhoods, communities or dis- tricts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Objective 6 Upon the adoption of this plan, all public and private activity regarding the use, development and redevelopment of land and the provision of urban services and infrastructure shall be consistent with the goal, objectives and poli- cies of this Element, with the adopted Population Estimates and Projections, and with the future uses provided by the adopted Land Use Plan (LUP) map and accompanying text entitled "Interpreta- tion of the Land Use Plan Map," as balanced with the Goals, Objectives and Policies of all Ele- ments of the Comprehensive Plan. Policies 6A. The textual material entitled "Interpre- tation of the Land Use Plan Map" contained in this Element establishes standards for allowable land uses, and densities or intensities of use for each land use category identified on the adopted Land Use Plan (LUP) map, and is declared to be an extension of these adopted Land Use Policies. 6B. All development orders authorizing a new land use or development, or redevelopment, or significant expansion of an existing use shall be contingent upon an affirmative finding that the development or use conforms to, and is consistent with the goal, objectives and poli- cies of the CDMP including the adopted LUP map and accompanying "Interpretation of the Land Use Plan Map." 6C. All planning activities pertaining to development and redevelopment in Dade County shall be consistent with the "Population Esti- mates and Projections" contained in this Element, and with the locations and extent of future land uses as identified by the LUP map and its interpretative text. 6D. The area population projections shown on the map of "Population Estimates and Projec- tions" shall be used to guide public and private entities in planning for urban devel- opment and redevelopment and to guide the location, timing, and capacity of all urban services and facilities. Objective 7 Beginning in 1989 Dade County shall maintain a process for periodic amendment to the Land Use Plan map, consistent with the adopted Goals, Objectives and Policies of this Plan, which will provide that the Land Use Plan Map accommodates urban expansion at projected countywide rates. Policies 7A. Activity centers, industrial complexes, regional shopping centers, large-scale office centers and other concentrations of signifi- cant employment shall be recognized as poten- tial structuring elements of the Metropolitan area and shall be sited on the basis of metro- politan-scale considerations at locations with good countywide multi-modal accessibility. 7B. Distribution of neighborhood or community serving retail sales uses and personal and pro- fessional offices throughout the urban area shall reflect the spatial distribution of the residential population, among other salient social, economic and physical considerations. 7C. Residential development shall occur in locations that are suitable as reflected by such factors as the following: recent trends in location and design of residential units; projected availability of service and infra- structure capacity; proximity and accessi- bility to employment, commercial and cultural centers; avoidance of natural resource degra- dation; and maintenance or creation of amenities. 7D. In conducting its planning, regulatory, and capital improvements and intergovernmental coordination activities, Dade County shall seek to facilitate planning of residential areas as neighborhoods which include recrea- tional, educational and other public facilities, houses of worship, and safe and convenient cir- culation of automotive, pedestrian and bicycle traffic. 7E. Through its planning, regulatory, capital improvements and intergovernmental coordination activities, Dade County shall continue to pro- tect agriculture as a viable economic use of land in Dade County. * * * 7G. Necessary utility facilities may be lo- cated throughout Dade County in all land use categories as provided in the "Interpretation of the Land Use Plan Map" text. 7H. The maintenance of internal consistency among all Elements of the CDMP shall be a prime consideration in evaluating all requests for amendment to any Element of the Plan. Among other considerations, the LUP map shall not be amended to provide for additional urban expansion unless traffic circulation, mass transit, water, sewer, solid waste, drainage and park and recreation facilities necessary to serve the area are included in the plan and the associated funding programs are demonstra- ted to be viable. 7I. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Ob- jectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at adopted LOS standards. Be compatible with abutting and nearby land uses; and Enhance or degrade environmental or histor- ical resources, features or systems of County significance. Objective 8 Dade County shall continue to maintain in the Code of Metropolitan Dade County and adminis- trative regulations, and shall enhance as nec- essary, by the date required by Section 163.3203, F.S., provisions which ensure that future land use and development in Dade County is consistent with the CDMP. * * * 8D. Dade County shall continue to investigate, maintain and enhance methods, standards and reg- ulatory approaches which facilitate sound com- patible mixing of uses in projects and communi- ties. 8E. Dade County shall enhance and formalize its standards for defining and ensuring compatibility among proximate uses, and requirements for buffer- ing. Factors that will continue to be considered in determining compatibility include, but are not limited to noise, lighting, shadows, access, traffic, parking, height, bulk, landscaping, hours of operation, buffering and safety. Objective 9 Energy efficient development shall be accom- plished through metropolitan land use patterns, site planning, landscaping, building design, and development of multimodal transportation systems. Policies 9A. Dade County shall facilitate contiguous urban development, infill, redevelopment of substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed use projects to promote energy conservation. Selected Goals, Objectives and Policies of Other Elements The following is the goal of the 1990 CDMP's traffic circulation element: Develop, operate and maintain a safe, efficient and economical traffic circulation system in Metropolitan Dade County that provides ease of mobility to all people and for all goods, is consistent with desired land use patterns, conserves energy, and protects the natural environment. Policy 4C. of the traffic circulation element provides as follows: Dade County's priority in construction, main- tenance, and reconstruction of roadways, and the allocation of financial resources, shall be given first to serve the area within the Urban Development Boundary of the Land Use Plan Map. Second priority in transportation allocations shall support the staged develop- ment of the urbanizing portions of the County within the Urban Expansion Area. Transporta- tion improvements which encourage development in Agriculture and Open Land areas shall be avoided, except for those improvements which are necessary for public safety and which serve the localized needs of these non-urban areas. The following are among the objectives and policies of the 1990 CDMP's aviation subelement: Objective 4 Minimize air space interactions and obstruc- tions to assure the safety of aviation users and operators and residents of Dade County. Policies * * * 4D. Support zoning that would protect exis- ting and proposed aviation flight paths con- sistent with federal agency guidelines. 4E. Seek federal agency cooperation in pro- tecting future air space from development obstructions. * * * Objective 8 Maximize compatibility between airports and the surrounding communities. Policies * * * 8B. Dade County shall implement Federal Aviation Administration FAR Part 150 Noise Compatibility Studies completed for appro- priate airports through the Land Use Element of the Dade County Comprehensive Master Plan, the Dade County Zoning Ordinance, and the South Florida Building Code to provide for land use compatibility in the vicinity of these air- ports. Objective 6 and Policy 6A. of the 1990 CDMP's housing element provide as follows: Objective 6 Increase residential accessibility to public facilities, services, and employment centers throughout the County to include parks and other recreational amenities. Policies 6A. Utilize existing planning and programming mechanisms to insure that new residential devel- opment occurs only if it is coordinated with plans for the provision of an adequate level of services and facilities. Policy 6C. of the 1990 CDMP's conservation, aquifer recharge and drainage element provides as follows: Areas in Dade County having soils with good potential for agricultural use without addi- tional drainage of wetlands shall be protected from premature urban encroachment until the need for such urban conversion is demonstrated. Objective 1 and Policy 1A. of the 1990 CDMP's water, sewer and solid waste element provide as follows: Objective 1 In order to serve those areas where growth is encouraged and discourage urban sprawl, the County shall plan and provide for potable water supply, sanitary sewage disposal, and solid waste disposal services on a countywide basis in concert and in conformance with the future land use element of the comprehensive plan. Policies 1A. The area within the Urban Development Boundary of the adopted Land Use Plan Map shall have the first priority in providing potable water supply, sanitary sewage disposal, and solid waste disposal services, and for commit- ting financial resources to these services. Future development in the designated Urban Expansion Area shall have second priority in planning or investments for these services. Investments in public water and sewer service shall be avoided in those areas designated for Agriculture, Open Space, or Environmental Protection on the Land Use Plan map, except where essential to eliminate or prevent a threat to the public health or safety. Objectives 3, 4 and 5 and Policies 3B., 4A., 4B. and 5A. of the 1990 CDMP's capital improvements element provide as follows: Objective 3 Upon adoption of this Plan land use decisions will be made in the context of available fiscal resources such that scheduling and providing capital facilities for new development will not degrade adopted service levels. Policies * * * 3B. Service and facility impacts of new de- velopment must be identified and quantified so that sufficient public facilities will be planned and programmed to be available when needed. All development orders authorizing new, or significant expansion of existing urban land uses, shall be contingent upon the provision of services at the Levels of Service (LOS) which meet or exceed the adopted LOS standards. * * * Objective 4 Levels of service standards for those services listed in the CIE will be upgraded and main- tained at adopted levels. Policies 4A. By the date set in Section 163.3202 F.S., Dade County shall formalize requirements that all new development regardless of size which benefits from the provision of public facili- ties and infrastructure will bear an equitable share of the costs of such facilities, make contribution in kind or transfer land, in amounts necessary to accommodate the impact of proposed development. 4B. Appropriate funding mechanisms will be adopted and applied by Dade County in order to assure the fiscal resources to maintain acceptable levels of service. Such funding mechanisms include special tax districts, municipal taxing service units, local option taxes, user fees, local gas taxes, general obligation bonds, impact fees, and special purpose authorities among others. * * * Objective 5 Upon the adoption of this plan development approvals will strictly adhere to all adopted growth management and land development regu- lations and will include specific reference to the means by which public facilities and infrastructure will be provided. Policies 5A. As a priority, previously approved de- velopment will be properly served prior to new development approvals under the provisions of this Plan. First priority will be to serve the area within the Urban Development Boundary (UDB) of the Land Use Plan (LUP) map. Second priority in investments for services and facilities shall support the staged development of the Urban Expansion Area (UEA). Urban ser- vices and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service localized needs. This element also includes a five-year schedule of capital improvements. Transmittal of Plan Amendment to the Department On or about April 3, 1990, the County Manager transmitted to the Department Ordinance No. 90-28, along with other documentation, including the written material that the Suchmans had submitted in support of their application, as well as a document prepared by the Planning Department which purported to provide "a synopsis of the information received by the Board of County Commissioners as bases for approving the applications subject to DCA objections." The Planning Department's synopsis stated the following with respect to Applications 39, 40 and 47: Application No. 39 The flight path for training flights around Tamiami-Kendall Airport circle around this application site but do not directly fly over this site. This application represents urban infill rather than leap frog development. Approval of residential use on this site will allow people to live in close proximity to the employment center around the Tamiami-Kendall Airport. Application No. 40 The site will be used for a Traditional Neighborhood Development (TND). A covenant was provided to ensure this. Services are available on sites immediately to the east. The area is not flood prone, or environmen- tally sensitive in any way. Extensive testimony and documentation was received which casts doubt on the accuracy of the Planning Department's estimates and pro- jections of growth in this area. (See enclosed exhibits). This site is nearby the industrial and office employment center which is developing around the Tamiami-Kendall Airport, therefore, urbanization of this site complements and supports the policy of promoting development around activity centers. The extension of the Coral Reef Drive corridor provides an alternative to the Kendall Drive corridor as a location for additional urban development. * * * Application 47 The site is bordered on the east and south by the year 2000 Urban Development Boundary (UDB). It is in the logical path of future urban development. To the south is the urban- izing area of Homestead. Pockets of estate residential homes and zoning exist in the area designated Agricul- ture to the north and west of this site. There are not level of service problems in the area. The area is not flood prone. The specific density of estate residences to be built on this site is not established by approving the CDMP amendment; that will be decided at a future zoning hearing. The transmittal package sent by the County Manager was received by the Department on April 6, 1990. Suchmans' Request to Receive Notice of the Department's Action By letter dated March 30, 1990, David Goldwich, Esquire, counsel for the Suchmans, requested that the Department send him a copy of the "notice of intent to find the CDMP Application No. 40 in compliance or not in compliance with Chapter 163." The Department responded to Goldwich's letter by sending him a letter, dated April 17, 1990, in which it promised to provide him with a copy of the notice of intent when it was issued. The Department's Compliance Determination: Notice and Statement of Intent In reviewing the County's 1990 Plan Amendment, the Department treated each approved application as a separate amendment to the CDMP. Following its review of these approved applications, the Department issued its notice of intent "to find the amendment(s) adopted by Ordinance 90- 28, Amendment Nos. 39, 40 and 47 NOT IN COMPLIANCE and Amendment Nos. 1 to 9, 11 to 16, 19, 22 to 24, 26 to 29, 44 to 46, 49, 51, 53 and 55 to 71 IN COMPLIANCE, pursuant to Sections 163.3184 and 163.3187, F.S." On or about May 15, 1990, the Department sent a copy of the notice of intent to the Miami Herald, along with a letter requesting that the notice be published in the May 21, 1990, edition of the Herald. Through no fault of the Department's, the notice was published in the May 24, 1990, edition of the Herald, instead of the May 21, 1990, edition as the Department had requested. The Department mailed a copy of the notice of intent to the Suchmans' counsel, 32/ although it was never received. By letter dated May 18, 1990, to Mayor Clark, the Department advised the County of its compliance determination. On May 21, 1990, the Department issued a statement of intent in which it explained the bases for its determination that "Amendment Nos. 39, 40 and 47 [were] NOT IN COMPLIANCE." In its statement of intent, the Department alleged that "Amendments 40 and 47 are not supported by an adequate suitability analysis of the vacant land to which they apply, or an adequate analysis documenting the need for the UDB expansion [in violation of] Rules 9J-5.005(2)(a), 9J- 5.006(2)(b) and 9J-5.006(2)(c), F.A.C.;" "Amendments 40 and 47 are inconsistent with other provisions in the plan (including but not limited to Objectives 1, 3 and 7, Policies 1A, 1B, 3D, and 7G and implementing procedures on p. 33 and 34 of the Future Land Use Element) concerning discouraging urban sprawl and prioritizing public facilities within the UDB [in violation of] Rules 9J- 5.005(5)(a), 9J-5.006(3)(b)7. and 9J-5.011(2)(b)3., F.A.C.;" "Amendments 40 and 47 are inconsistent with Objective 7, Policies 7E, H and I, and implementing procedures on p. 34 and 35 of the Future Land Use Element, and other provisions of the plan concerning future expansion of the UDB [in violation of] Rules 9J- 5.005(5)(a) and (b), F.A.C.;" "Amendments" 40 and 47 result in "an internal inconsistency because [they] negate the intended effect [of the settlement agreement between the Department and the County] of allowing roadway degradation in existing urban areas, which is to encourage development and redevelopment in such areas, promote public transportation and discourage urban sprawl" and, consequently, these amendments are in violation of "Rules 9J-5.006(3)(b)7. and 9J-5.011(3)(b)3., F.A.C.;" "[A]mendments 40 and 47 are not supported by data analysis which justifies changing the agricultural land use to industrial or residential land use [in violation of] Rules 9J-5.005(2)(a) and 9J-5.006(2)(c), F.A.C.;" "Amendment" 39 "inappropriately places a residential area within a proposed aviation flight path which is inconsistent with Objective 4 and Policy 4D in the Port and Aviation Element of the Dade Comprehensive Plan [in violation of] Rules 9J-5.005(5)(a) and (b), 9J-5.006(3)(b)3. and 9J- 5.006(3)(c)2., F.A.C.; "Amendments" 40 and 47 cause the CDMP to be inconsistent with Goal (16)(a) and Policies (16)(b)(2) and 18(b)(1) of the State Comprehensive Plan, as well as Policies 57.1.2 and 69.1.1 of the South Florida Regional Policy Plan; and "Amendment" 39 causes the CDMP to be inconsistent with Policy 69.1.1 of the South Florida Regional Policy Plan. Referral to the Division: The Department's Petition and Amended Petition On June 8, 1990, the Department filed a petition with the Division of Administrative Hearings. Appended to the petition were copies of the Department's notice of intent and its statement of intent. The Department alleged in the petition that the "plan amendments" made by the County through the adoption of Ordinance No. 90-28 were: not in compliance because they contain the "inconsistent provisions" described in the Statement of Intent and for the following additional reasons: Amendment 39 is inconsistent with Objec- tives 5, 6 and 7 and Policies 5B, 7C, 7D, and 7I-3 of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (6), F.A.C. Amendment 40 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objectives 5 and 6 and Policies 5B, 7A, 7B, 7C and 7D of the plan's Future Land Use Element. On June 19, 1990, the Department filed an amended petition with the Division. That portion of the original petition excerpted above was modified to read as follows in the amended petition: The plan amendments are not in compliance because they contain the "inconsistent provisions" de- scribed in the Statement of Intent and for the following additional reasons: Amendment 40 is inconsistent with Objec- tives 5 and 6, and Policies 5B, 7A, 7B, 7C, and 7D, of the plan's Future Land Use Element. Rule 9J-5.005(5)(a) and (b). Amendment 47 is inconsistent with Objec- tives 5 and 6 and Policies 5B, 7C and 7D of the plan's Future Land Use Element. Rules 9J-5.005(5)(a) and (b). Amendments 40 and 47 are inconsistent with the following provisions of the State Comprehensive Plan: Land Use Goal (16)(a) and Policies (16)(b)1 and 2; Downtown Revitalization Goal (17)(a) and Policy (17)(b)1; Public Facilities Goal (18)(a) and Poli- cies (18)(b)1 and 2; Economy Policies (22)(b) 3 and 12; Agriculture Goal (23)(a). The Objectors' Petition for Leave to Intervene and Rist's Amended Petition On June 26, 1990, the Objectors filed with the Division a joint petition for leave to intervene in this matter. The petition incorporated the allegations that the Department had made in the original petition it had filed with the Division, as well as the recommendations that the Dade County Planning Department had made with respect to Applications 39, 40 and 47. In addition, the Objectors alleged the following in their petition regarding these approved applications: [S]aid amendments 39, 40, and 47 are inconsis- tent with the State Comprehensive Plan, Sec- tion 187.201, F.S., specifically subsections 16a, 16b1, 16b2, 17a, 17b1, 18a, 18b1, 18b2, 20a, 22b3, 22b12, and 23a. Briefly put, the amendments fail, inter alia, to preserve natural resources; fail to maintain and expand agriculture; fail to encourage the separation of rural and urban life; provide for incompatible neighboring uses; promote urban sprawl; waste public and private assets; and fail to aid in a state transpor- tation system. * * * The amendments are not supported by data showing a need for the uses approved [and] thus violate Rule 9J-5.006(2)(c), Florida Administrative Code. On December 10, 1990, at the outset of the final hearing in the instant case, Objector Rist requested permission to file an amended petition which contained the following additional allegations not found in the Objectors' joint petition for leave to intervene: Amendments 40 and 47 do not reflect and are inconsistent with "Interpretation of the Land Use Plan Map: Policy of the Land Use Element" pages I-35 through 39 and not pages 33 through 35 of the Future Land Use Element as erroneously cited in the original petition. It is alleged that amendment 40 and 47 do not reflect and are inconsistent with Policies 3A, 3H, 5A, and 7A of the Future Land Use Element of the Comprehensive Plan. Amendments 39, 40 and 47 do not reflect and are inconsistent with Policy 6C of the Con- servation Element of the Comprehensive Plan. Amendment 39 does not reflect and is incon- sistent with Objective 8 of the Ports and Avia- tion Element of the Comprehensive Plan. Amendments 40 and 47 are inconsistent with Policy 23(b)2 of the State Comprehensive Plan. Miscellaneous Findings: The State Comprehensive Plan The State Comprehensive Plan addresses issues of statewide importance. The following are among the more than 300 individual goals and policies which comprise the State Comprehensive Plan: LAND USE.- Goal.- In recognition of the importance of preserving the natural resources and enhanc- ing the quality of life of the state, develop- ment 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 population and commerce. Develop a system of incentives, and disin- centives which encourages a separation or urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. * * * DOWNTOWN REVITALIZATION.- Goal.- In recognition of the importance of Florida's developing and redeveloping down- towns to the state's ability to use existing infrastructure and to accommodate growth in an orderly, efficient and environmentally accept- able manner, Florida shall encourage the cen- tralization of commercial, governmental, retail, residential, and cultural activities within downtown areas. Policies.- 1. Provide incentives for developing land in a way that maximizes the uses of existing public facilities. * * * PUBLIC FACILITIES.- Goal.- Florida shall protect the sub- stantial 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 pub- lic facilities. Promote rehabilitation and reuse of exis- ting facilities, structures, and buildings as an alternative to new construction. * * * (20) TRANSPORTATION.- (a) Goal.- Florida shall direct future trans- portation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass tran- sit, and other transportation modes. * * * THE ECONOMY.- Goal.- Florida shall promote an economic climate which provides economic stability, max- imizes job opportunities, and increases per capita income for its residents. Policies.- * * * Maintain, as one of the state's primary economic assets, the environment, including clean air and water, beaches, forests, historic landmarks, and agricultural and natural resour- ces. * * * 12. Encourage the development of a business climate that provides opportunities for the growth and expansion of existing state indus- tries, particularly those industries which are compatible with Florida's environment. * * * AGRICULTURE.- Goal.- Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, aquaculture, forestry, and re- lated industries in order to be a healthy and competitive force in the national and inter- national marketplace. Policies. Ensure that goals and policies contained in state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. Encourage diversification within the agri- culture industry, especially to reduce the vulnerability of communities that are largely reliant upon agriculture for either income or employment. Miscellaneous Findings: The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Regional Plan for South Florida to guide future development in Broward, Dade and Monroe Counties. The following are among the more than 650 individual goals and policies found in the Regional Plan: Regional Goal: 57.1 New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot economic- ally be provided. Regional Policies: * * * 57.1.2 Give priority to development in areas that are in need of redevelopment and in areas within which adequate support services are either programmed or available Regional Goal: 58.1 Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of land uses on the surrounding environment. Regional Policies: * * * 58.1.7 Encourage the compatibility of adja- cent land uses. * * * Regional Policies: 64.2.1 Land use in and around air- and sea-ports must be strictly controlled to allow future increased operations, to optimize volume, and to prevent unnecessary social or economic conflicts and costs. * * * Regional Goal: The 1990-1995 rate of loss of agricul- tural land to urban uses should be reduced by 10 percent from the 1980-1985 rate. Regional Policies: Encourage activities that maintain an economic/regulatory climate to ensure the con- tinued viability of agricultural interests when those interests are balanced against other concerns. The Regional Plan contains the following "background" information regarding the goal and policies pertaining to agriculture: Agriculture is one of Florida's most important industries. Traditional agriculture (citrus, vegetables and melons, livestock, poultry, greenhouse and nursery, field and other crops) contributed 27 billion dollars to Florida's economy in 1984. The agricultural vitality of South Florida stems from its climate which allows crops to be grown throughout the year, and the production of unique crops such as mangoes. In 1980, 126,785 acres of land, 4.7 percent of the total area in South Florida, was in cropland, pasture and range land, and forest land. This represents 0.5 percent of all such land in the State. Agricultural land is rapidly being lost. . . . When compared to Broward County, Dade County generates a significantly larger share of the economic activity due to agriculture in the Region. 33/ Current 1986 figures show 85,000 acres in agriculture, producing a large variety of crops. These include: tomatoes, snap beans, Irish potatoes, squash, tropical vegetables, sweet corn and fruits such as limes, mangoes and avocados. The markets for these fruits and vegetables are mainly in New York, Philadelphia, Boston, Atlanta, and Canada. Dade County is the largest producer of toma- toes, snap beans, and squash, of any county in the State of Florida. Over 90 percent of limes and mangoes produced in the United States are grown in Dade County. Dade County has the largest ornamental nursery industry of any county in the State of Florida. The main reason for Dade's success in agriculture is South Florida's climate. Vegetables are pro- duced in mid-winter when no other areas in the U.S. are producing. These crops provide fresh produce for the country's markets. It is significant to note that Dade County ranks last in the State for average farm size (59 acres) but is fifth in the State for market value of agricultural products. Agriculture is profitable on a per acre basis because the climate allows for double cropping. . . . In 1983, the agricultural industry produced less than 1 percent of total earnings in the South Florida region. The importance of this sector cannot be measured in dollar terms alone. The general public tends to view agriculture as a transitional land use. The benefits of maintaining the agricultural economy, however, are significant. Agricultural land can provide open space between areas with urban uses, it can serve as a watershed where water is collec- ted and later used in a farm or non-farm use, it can provide a habitat for wildlife, and it can provide unique beauty. New technology and agricultural practices are also providing new opportunities for disposing of sewage sludge on agricultural lands, benefitting both the rural and urban sectors. . . . Agricultural research activities have already yielded many benefits to South Florida agri- culture. Progress has been made in developing: more efficient irrigation systems, integrated pest management, improved strains of crops in production, as well as new crops to put into production. The findings of agricultural research can continue to improve the conser- vation, production, and marketing techniques available to South Florida farmers. South Florida farmers are experiencing many of the same problems that farmers in other high growth areas are facing. 34/ Land in South Florida that is suitable for agricul- tural use is also highly suitable for urban uses. Given the geographic configuration of the Florida Peninsula agricultural areas are never far removed from urban areas. Urban growth and the pressures of suburbanization are constantly felt by the Region's farmers. 35/ Many problems arise when agricultural and urban land uses interface. Non-farm residents complain because of farm noise, smells, and such practices as fertilizer and pesticide spraying. Nuisance suits and ordinances that prohibit certain farm practices create pressures that reduce the profitability and desirability to farm. 36/ Farm land conversion to urban uses is a serious problem in our Region. 37/ Analysis of prop- erty appraiser data shows the reduction in net agricultural acreage between 1980-1985 to be 18 percent for the Region. This figure applies mainly to agricultural land in Broward County. According to the Dade County Cooperative Exten- sion Service, net agricultural acreage has re- mained stable for the past 20 years. 38/ This is because land rezoned for urban uses has been replaced by other lands converted for agricul- tural use. This represents another problem. As agricultural land is converted to urban uses, agriculture may be pushed into wetlands, wild- life habitats, and other fragile ecosystems. Miscellaneous Findings: Urban Sprawl In November, 1989, the Department of Community Affairs published a Technical Memorandum (Volume IV, Number 4) which was designed "to help local governments and interested parties understand the requirements for discouraging urban sprawl that must be met to comply with Florida's planning requirements." The memorandum defines "urban sprawl" as "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." According to the memorandum, "urban sprawl typically manifests itself in one or more of the following inefficient land use patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density, single-dimensional development." These land use patterns are described in the memorandum as follows: Leapfrog development occurs when new develop- ment 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 appro- priate for urban development. * * * Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant com- munities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the loca- tion of high amounts of commercial, retail, office and often multi-family residential de- velopment in a linear pattern along both sides of major arterial roadways. * * * 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 devel- opment 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. The memorandum's description of "urban sprawl" is consistent with the definition most commonly employed by professional planners. Indicators of sprawl mentioned in the memorandum include the following: The amount of residential land and densities depicted on the future land use map signifi- cantly exceed the projected need for residen- tial land use by type during the planning period. In discussing this indicator, the memorandum advised that "[a]ny plan in which the amount of land designated to receive development totals more than 125 percent of the amount needed to accommodate projected need will be closely scrutinized by the DCA." In order to ascertain whether development meets the definition of "urban sprawl" used by the Department, it may be necessary to determine whether the area involved is "rural" or on the "urban fringe." The memorandum suggests that such a determination may be based upon the area's population density. According to the memorandum, areas should be classified as follows based upon their population densities Density per square mile: Classification 0-200 Rural 201-500 Exurban 501-1000 Suburban 1001-2000 Medium [Urban] Density 2001-5000 High [Urban] Density 5000+ Highest Urban Density Among the specific techniques recommended in the memorandum to curb "urban sprawl" are establishing "urban service areas and urban growth boundaries," "[p]romoting urban infill development and redevelopment," and imposing "mixed-use and clustering requirements." With respect the latter technique, the memorandum states as follows: One of the most important and critical tech- niques for discouraging sprawl is strong mixed use policies which require residential and nonresidential uses to be located in reason- ably close proximity to each other. Such policies should promote an attractive, func- tionally and physically integrated mix of commercial, office, retail, residential (including affordable housing), and recrea- tional land uses. Development designed in this manner can even occur away from existing urban areas and not represent urban sprawl if it consists of a complementary mix of residen- tial and nonresidential land uses at medium to high densities, promotes high levels of inter- nal capture, does not rely on rural arterials for local traffic movements, and encourages pedestrian and bicycle traffic. The tradi- tional neighborhood development district code is an example of how this concept can be implemented.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Administration Commission enter a final order in Case No. 90-3599GM finding that Metropolitan Dade County's 1990 Plan Amendment is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 26th day of December, 1991. STUART M. LERNER 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 26th day of December, 1991.
The Issue Whether the small-scale amendment to the Future Land Use Map (FLUM) of the City of St. Petersburg's (the City) Comprehensive Plan (Comprehensive Plan), adopted by Ordinance 739-L (Ordinance) on August 13, 2020, is "in compliance" as that term is defined in section 163.3184(1)(b), Florida Statutes (2020).1
Findings Of Fact The Parties and Property Petitioner, PGSP, is a membership organization, with 118 members. It is registered with the State of Florida as a not-for-profit corporation located in St. Petersburg, Florida. PGSP's stated mission is to promote healthy urban development throughout St. Petersburg; it was formed to promote development and growth compatible with surrounding neighborhoods. It works with the City and residents to ensure new development is cohesive with existing and planned environmental and infrastructural demands. Respondent, City of St. Petersburg, is a political subdivision of the State of Florida that is subject to the requirements of chapter 163, Part II, Florida Statutes. The subject property is located at 635 64th Street South, St. Petersburg, Pinellas County, Florida (Property). It is owned by Grace Connection of Tampa Bay, Inc., operating as Grace Connection Church (Church). The Church was the applicant for the Amendment at issue but is not a party to this action. The Property is triangular in shape with a total of 4.66 acres. To the north and west, the Property is bounded by Bear Creek, a natural water feature. To the east, the Property is bounded by 64th Street South, a "Collector, City Road." To the south, the Property is bounded by an undeveloped 40-foot right-of-way. A portion of the Property that abuts Bear Creek is located in a Coastal High Hazard Area (CHHA).3 Respondent has not sought changes to the portion of the Property that is within the CHHA. 3 The Property is also within the projected storm surge in Hurricane Evacuation Level "D," which is a Pinellas County emergency management designation, and not a part of the City's Comprehensive Plan. The Property is currently categorized for Neighborhood Suburban (NS-1) zoning (which is separate from its Future Land Use Category). A substantial number of PGSP members live within the City, in close proximity to the Property and allege they will be adversely affected by the concomitant impacts of increased densities in the community as addressed in these proceedings. The Ordinance The Church's application sought to amend the FLUM of the Comprehensive Plan. The application divided the non-portion of the CHHA into three portions and sought to make the following changes to the Future Land Use categories: A PORTION OF THE SUBJECT PROPERTY (APPROX. 4.33 ACRES), FROM I (INSTITUTIONAL) TO RM (RESIDENTIAL MEDIUM); A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.21 ACRES), FROM I (INSTITUTIONAL) TO RU (RESIDENTIAL URBAN); AND A PORTION OF THE SUBJECT PROPERTY (APPROX. 0.04 ACRES), FROM RU (RESIDENTIAL URBAN) TO RESIDENTIAL MEDIUM (RM). On August 13, 2020, the City Council had a public hearing on the Church's appeal of the denial of its application by the Planning Commission. At this hearing, PGSP members submitted oral or written comments, recommendations, or objections to the City. At the August 13 meeting, the City Council adopted the Ordinance. This had the effect of adopting the Amendment and changing the Future Land Use categories to the Property. The Ordinance instituted a small-scale amendment to the FLUM, as defined by section 163.3187(2). Maximum Density Petitioner argues the Ordinance is not "in compliance," as defined in sections 163.3184(1)(b) and 163.3187(4). Specifically, PGSP attacks the Amendment because it does not (1) direct "population concentrations" away from areas designated as a CCHA; (2) provide for compatible land use transitions; and (3) preserve the existing character of the surrounding areas. Each of these claims are either partially or wholly dependent on the increased maximum density for the Property after the Amendment. As such, the threshold issue of density must be addressed. This dispute involves the 4.37 acre that are changed from the Residential Urban (RU) and Institutional land use categories to Residential Medium (RM) made up of approximately 4.33 acres from Institutional to RM and approximately 0.04 acres from RU to RM. The "Institutional" designation allows a density of 12 dwelling units per acre but limits residential use as an accessory to the primary institutional use, which in this case is a church.4 The Church submitted the application for the FLUM amendment because it ultimately seeks to sell the Property for multi-family housing development, which would not be a proper use in an area designated "Institutional." The Future Land Use categories for the area to the north and east of the Property are RU, which have a density of 7.5 units per acre. See Comprehensive Plan Policy LU 3.1A.2. This area is primarily made up of single-family homes. The southern boundary of the property is also the municipal border between St. Petersburg and an unincorporated portion of Pinellas County. This area is governed by the Pinellas County FLUM and Pinellas County Comprehensive Plan. The adjacent property to the south is a mobile home park development which has a residential density of 20.4 units per acre. 4 Pursuant to section 16.10.020.2 of the City's Code, Institutional uses include, "government buildings and grounds, and cemeteries, hospitals, houses of worship and schools." In between the RU and RM categories is a category labeled "Residential Low Medium" (RLM). The RLM category allows low to moderately intensive residential development with a density not to exceed ten dwelling units per acre. See Comprehensive Plan Policy LU 3.1A.3. As stated above, the Ordinance would categorize the portion of the Property at issue as RM. The RM category allows medium density residential development and has a maximum density of 15 dwelling units per acre, with a possible maximum density of 30 dwelling units per acre with the qualification of a density bonus. See Comprehensive Plan Policy LU 3.1A.4. PGSP argues the density of the areas designated as RM by the Ordinance will have a maximum possible density of 30 dwelling units per acre. The City argues the maximum density is calculated using the actual density that can be built in the RM areas. As explained below, the practical allowable density of 15 dwelling units per acre with a Workforce Housing Bonus of six, or 21 dwelling units per acre. Petitioner relies on a "Missing Middle Housing" density bonus allowable in Neighborhood Traditional Mixed Residential (NTM) zoning category. This bonus allows up to 30 units per acre as an incentive to develop housing that is lacking in the area. While NTM is an available zoning category for RM, the Plan specifically states that 30 dwelling units per acre is only "permitted in accordance with the Land Development Regulations [LDRs]." Per the LDRs, the NTM designation could not be placed over this parcel because the designation is used as a transitional zoning category in St. Petersburg's traditional neighborhoods. While PGSP's planning expert considered the neighborhood surrounding the Property to be traditional, he admitted his opinion was not based on standards in the Comprehensive Plan or LDR definitions regarding what is considered a traditional or suburban neighborhood. In contrast, Derek Kilborn, a manager in the City's Planning Department, testified about the different characteristics of traditional versus suburban neighborhoods and opined that the neighborhood surrounding the Property is "suburban" according to the terms in the Comprehensive Plan. This determination is bolstered by the existing zoning of the surrounding neighborhood being largely NS-1. The City established it would be impossible for the Property to qualify for the Missing Middle Housing bonus, because the parcel at issue is not in the NTM zoning category. Rather, as explained by Mr. Kilborn's testimony and based on the LDRs and the Comprehensive Code, the RM category only allows a maximum of 15 dwelling units per acre. The Church has not applied to rezone the Property. The Planning Department's director testified, however, that if the Church had applied for a rezoning for the Property to NTM, the maximum number of dwelling units would be less than the numbers asserted by Petitioner due to the requirements for spacing, alleyways, and height restrictions required in NTM zones. The Property is eligible for a Workforce Housing density bonus. This bonus would increase the maximum density by six dwelling units for workforce housing. The City's final density calculation incorporated the Workforce Housing bonus and determined the maximum density for the RM portion of the Property to be 21 dwelling units per acre. PSGP did not prove beyond fair debate that the actual density of 21 units per acre is an erroneous calculation or contrary to the Comprehensive Plan. Consistency with Objective CM 10B and Policy CM 10.65 Comprehensive Plan Objective CM 10B states: The City shall direct population concentrations away from known or predicted coastal high hazard areas consistent with the goals, objectives and policies of the Future Land Use Element. The phrase "Population concentrations" is not defined by the Comprehensive Plan. The only policy referring to "directing" related to Objective CM 10B is Policy CM 10.6, which states: The City shall direct population concentrations away from known or predicted coastal high hazard areas by not locating water line extensions in the coastal high hazard area, beyond that which is necessary to service planned zoning densities as identified on the Future Land Use Map. The remaining policies related to this Objective involve the placement of transportation and infrastructure, expenditures for flood control, and the operation of roads in a CHHA; none of these issues were raised in these proceedings. In fact, other than the reference to placement of water line extensions in Policy CM 10.6, there is no provision establishing standards for what would constitute direction away from a CHHA. The only area on the Property designated a CHHA is near Bear Creek.6 The Ordinance does not increase density in any part of the CHHA portion of the Property. PGSP's planning expert, Charles Gauthier, equated a population concentration as an area with high density. He argued the Ordinance 5 "CM" means Coastal Management in the Comprehensive Plan. 6 Mr. Kilborn testified that in reviewing the property for compliance with the Plan related to CHHA, there was no study or analysis provided to the City by Petitioner or others showing flooding or hazard impacts for the non-CHHA portion of the Property. violated Policy 10.6 because it increased the density of the area on the Property adjacent to the CHHA. At one point, Mr. Gauthier seemed to say this policy encourages higher density future land use categories only in the "central core or spine of the City." Mr. Gauthier maintained the increase in density on the non-CHHA portion of the Property frustrated this policy because only land in the central part of St. Petersburg should experience density increases. PGSP's reasoning would imply any increase in density near any CHHA and not near the "central core" would violate Policy CM 10.6. Elizabeth Abernethy, Director of the Planning Department, testified that "population concentrations" as contemplated by the Comprehensive Plan are not simply increases in density. Rather, the City core had a concentration of high-density categories yielding approximate 80 to 120 dwelling units per acre; she would not characterize 15 or even 30 units per acre as a "high density" much less a "population concentration." Although she concurred that there are "population concentrations" in St. Petersburg centered in its urban core, she disagreed with Petitioner's expert that increased density on the Property created a "population concentration" near the CHHA or Bear Creek area. There was no competent evidence as to where any water line extensions would be located if the Property's Future Land Use Category were to change from RU and Industrial to RM. The City's interpretation of "population concentration" as used in CM 10.6 is reasonable, and therefore, the City's determination that the Ordinance is in compliance with CM 10.6 is fairly debatable. Consistency with LU 3.47 Comprehensive Plan Policy LU 3.4 states: The Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators. 7 "LU" refers to Future Land Use Element in the Comprehensive Plan. Petitioner focuses on compatible land use transition as only a function of density. PGSP argues a parcel categorized as RM (15 unity density) cannot abut an RU (7.5 unit density) categorized parcel because it violates Policy LU 3.4. Rather, it argues the RLM (10 unit density) category should have been used instead. It claims the City "leap-frogged" categories instead of using a "one step" up or down approach. PGSP's expert admits that a direct step down between plan categories is not explicitly required under the Comprehensive Plan language but argues other language related to "limited variation" required the single step. The plain language of Policy LU 3.4, however, simply requires an "orderly land use arrangement." It does not explicitly or implicitly state that the City must use a "step up" approach when determining the appropriate Future Land Use category. Furthermore, PGSP relied on its density calculation of 30 dwelling units per acre to argue that with the surrounding adjacent land density of 7.5 units per acre, there would be a 400% increase in planned residential density. As stated above, the maximum possible density under the Amendment is 21 dwelling units per acre. Moreover, the City points out that that the mobile home park to the south of the Property has an actual density of approximately 20 dwelling units per acre. Thus, the transition from 20 to 21 is an orderly land use arrangement as contemplated by Policy LU 3.4. The FLUM also does not reflect a perfect one up or down transition pattern throughout St. Petersburg. Rather, it shows areas categorized RM abutting areas categorized RU and RLM. In fact, there is an area designated RM which abuts RU parcels within 800 feet of the Property. The City presented adequate evidence establishing the change from Institutional to a residential category fits with surrounding residential use. Moreover, it established that natural and physical barriers on the Property, including creeks and right of ways, provide transition as contemplated by Policy LU 3.4. PGSP does not explain why these barriers are inadequate. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.4. Consistency with Objective Policy LU 3.6 Policy LU 3.6 states: Land use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated. PGSP argues the increase in density as a result of the change in categories from RU to RM is inconsistent with the "character" of the surrounding neighborhood, which is made up of single-family homes. Again, PGSP's argument relies heavily on the density calculation of 30 units per acre. As stated above, this density is only available with a change to the underlying zoning to NTM, which was not sought by the Church in its application. The maximum density applicable to the RM portions of the Property is 21 dwelling units per acre. As stated above, the City established there are other instances of RM abutting RU in the same neighborhood, approximately 800 feet from the Property. Ms. Abernathy testified that, based on the City's historic development pattern, RM is the appropriate transitional category next to RU on a major street (such as 64th Street South) under the Comprehensive Plan. Ms. Abernethy further testified that residential single-family use adjoining either residential multi-family or commercial uses in the City is a "very common development pattern." Therefore, the RM designation is not inconsistent with Policy LU 3.6. Moreover, the RM designation provides for a primary residential use, which the Institutional designation does not. Although PGSP focused solely on density as the grounds for evaluating the "established character of the neighborhood," the City established that several other considerations go into its analysis related to Policy LU 3.6. Beyond looking at existing and proposed densities of the Future Land Use categories, City staff considers the occurrences and relationships between the uses of the property (i.e., residential versus institutional; or residential versus residential) and the existence of similar patterns in the surrounding neighborhood. In this case, the surrounding areas included other areas designated RM and the mobile home park. Determination of the character of the neighborhood was also based on a study of the existing road network and the potential impacts on traffic due to the Amendment. The street classification of 64th Street South as a Future Major was a key consideration in determining whether the changes in the Property were consistent with the character of the surrounding area because that street is the Property's frontage and only access point. Petitioner did not prove beyond fair debate that the Ordinance is inconsistent with Policy LU 3.6. Data and Analysis PGSP also claims the City did not rely on relevant and appropriate data and analysis in adopting the Ordinance and Amendment. PGSP, however, did not conduct or provide the City with any studies.8 Daniel Porter, PGSP's expert in real estate, did not provide a comparative market analysis of the neighborhood or any other industry- recognized report. He proffered only opinion testimony based on email responses from four nearby residents, only one of which alluded to any issues with selling a home in the area. 8 PGSP retained Mr. Gauthier for this administrative proceeding; he did not testify or prepare a report to the Planning Commission or the City Council. Petitioner's members presented no opposing reports or studies beyond lay opinion testimony during the public hearing. Mr. Gauthier testified that in calculating his density and formulating his opinions, he used the City's map set and GIS data from the City's website.9 In contrast, the City relied on several data sources in reaching its conclusions regarding compliance in the Staff Report, in the presentations at the City Council meeting, and at the final hearing. These sources include the Comprehensive Plan and maps; LDRs; GIS aerials and maps; application materials; a narrative from the property owner; plat records; the Pinellas Countywide Plan Rules; and an outside Traffic Impact Statement by a traffic engineering firm, Kimley-Horn. In addition to the Kimley-Horn report, Tom Whalen, the City's transportation planning expert, performed an analysis related to 64th Street South, which was included in the Staff Report. He also testified at the final hearing regarding his sources for that data, including a City-conducted traffic count, use of the Florida Department of Transportation's level of service tables, and the Forward Pinellas Countywide Rules. At the final hearing, the City also presented demonstrative exhibits in the form of enlarged maps illustrating the surrounding neighborhood, the Property, and similar development patterns of RM and RU designations across the City. Regarding the density calculation, the City introduced and explained the reasons and sources supporting its maximum density figure of 21 dwelling units per acre. This included the Pinellas Countywide Plan Rules, the Comprehensive Plan, and LDRs.10 The City established the Ordinance and Amendment are based upon surveys, studies, and data regarding the character of the land. 9 "GIS" is Geographic Information Systems. 10 Moreover, Mr. Kilborn explained that exact density calculations would be finalized during the site plan review process, which involves further surveys and engineering measurements. Petitioner failed to prove beyond fair debate that the Ordinance was not supported by data and analysis, and/or that the City's response to that data and analysis was not appropriate. Ultimate Findings PGSP did not prove beyond fair debate that the Ordinance is not in compliance. All other contentions not specifically discussed have been considered and rejected. The City has provided a preponderance of the evidence, which is both competent and substantial, which supports the findings in the Staff Report and the City Council's adoption of the Ordinance. The City's determination that the Ordinance is in compliance is fairly debatable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining the City of St. Petersburg Comprehensive Plan Amendment, Ordinance 739-L, is "in compliance" as that term is defined by section 163.3184(1)(b). DONE AND ENTERED this 3rd day of March, 2021, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2021. COPIES FURNISHED: Robert N. Hartsell, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Jacqueline Kovilaritch, Esquire City of St. Petersburg Florida One 4th Street North, 10th Floor St. Petersburg, Florida 33731-2842 Michael J. Dema, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 Sarah M. Hayter, Esquire Robert N. Hartsell, P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Shai Ozery, Esquire Robert N. Hartsell P.A. 61 Northeast 1st Street, Suite C Pompano Beach, Florida 33060 Heather Judd, Esquire City of St. Petersburg Post Office Box 2842 St. Petersburg, Florida 33731 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
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 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
The Issue The issues in this case are whether two City of Palm Bay Comprehensive Plan Amendments, one of which was "small scale development amendment" under Section 163.3187(1)(c), Florida Statutes, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Brevard County (County) is a political subdivision of the State of Florida. See Section 7.05, Florida Statutes. The County is bordered on the north by Volusia County, on the west by Volusia, Orange, and Osceola Counties, on the south by Indian River County, and on the east by the Atlantic Ocean. The City of Palm Bay (City) is a municipality in southeast Brevard County, just to the southwest of the City of Melbourne. In its extreme northeast, the City borders on the Intracoastal Waterway. From there, it fans out to the southeast, surrounded on all sides by the County. The Department of Community Affairs (DCA) is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. The Small-Scale Amendment: Review and Adoption On June 3, 1999, William Wilson submitted an application to amend the City's Future Land Use Map (FLUM) for a 1.1558-acre (small-scale) parcel of land in the unincorporated County at the southeast corner of the intersection of Valkaria Road (an east/west thoroughfare) and Babcock Street (a north/south thoroughfare), in anticipation of annexation by the City. In this vicinity, the unincorporated County lay to the east, across Babcock Street, between the City and the Intracoastal Waterway. The unincorporated County land to the north, east, and south of the parcel had a future land use designation of "Residential" on the County's FLUM; the City land to the west had a residential future land use designation on the City's FLUM. The requested amendment was from the existing County "Residential" designation to City "Commercial." A zoning change also was requested from County AU (Agricultural Residential) to City CC (Community Commercial). The parcel subject to the small-scale amendment request has a single-family home and free-standing residential garage located onsite. Projected impacts from commercial development on the parcel met all relevant City level of service (LOS) standards. (The County has not put environmental suitability at issue with respect to the parcel.) The City planning staff recommended approval of the requested plan amendment; staff recommended approval of the zoning change but to City NC (Neighborhood Commerical). These requests were heard by the City Planning and Zoning Board, sitting as the local planning agency (LPA), on October 20, 1999. The LPA voted to recommend to the City Council that the plan amendment be approved and that the zoning change to City NC also be approved. By Ordinance 2000-08, adopted on March 2, 2000, the City annexed the small-scale parcel, effective immediately upon enactment of the Ordinance. By Ordinance No. 2000-09, also adopted on March 2, 2000, the City Council granted the request to change the future land use designation of the parcel on the City's FLUM to City "Commercial." By Ordinance No. 2000-10, zoning on the parcel was changed to City NC. The Large-Scale Amendment: Review and Adoption On July 6, 1999, Brian West submitted an application to amend the City's FLUM for a 19.57-acre parcel on the northeast corner of the intersection of Valkaria Road and Babcock Street (immediately north of the small-scale parcel, across Valkaria), in anticipation of annexation by the City. The requested amendment was from the existing Brevard County "Residential" designation to City "Commercial" future land use. A zoning change from County AU (Agricultural Residential) to City CC (Community Commercial) also was requested. This 19.57-acre (large-scale) parcel is vacant. The County has not put environmental suitability at issue with respect to the large-scale parcel. The City's planning staff recommended approval of the requested plan amendment, which was heard by the City's Planning and Zoning Board, sitting as the LPA, on October 20, 1999, along with the small-scale request. The LPA voted to recommend to the City Council that the large-scale amendment be denied. On February 15, 2000, the City Council conducted a special meeting to consider the requested large-scale annexation, plan amendment, and zoning change and voted to approve the requests. However, at the time, the City also was in the process of developing plan amendments in response to its Evaluation and Appraisal Report (EAR); as a result, transmittal to DCA was deferred until transmittal of the EAR-based amendments. On January 18, 2001, the City Council met in regular session and voted to transmit the requested large-scale amendment to DCA, along with the other EAR-based amendments. On May 17, 2001, DCA issued its Objections, Recommendations, and Comments (ORC) Report regarding the transmitted comprehensive plan amendments. DCA raised several objections and made comments regarding the amendment. The ORC Report was received by the City on May 21, 2001. (The greater weight of the evidence was contrary to testimony of the City's Planning Manager that the ORC Report received on that date was incomplete.) On October 2, 2001, the City Council adopted Ordinance No. 2001-65, which adopted the requested amendment for the large-scale parcel from County Residential to City Commercial future land use. The EAR-based amendments also were adopted on the same date by Ordinance 2001-66. By Ordinance 2001-86 adopted on November 1, 2001, the City annexed the large-scale parcel, effective immediately. Re-Adoption of Plan Amendments at Issue At some unspecified time after October 2, 2001, the City became aware of concerns voiced by DCA regarding the sequence and timing of the large-scale annexation and FLUM amendment. To address these concerns, the City adopted Ordinance No. 2001-105 on December 20, 2001. This Ordinance repealed and re-adopted Ordinance No. 2000-65. At some unspecified time after March 2, 2000, the City became aware of concerns raised by DCA that adoption of the small- scale FLUM amendment took place before the City adopted plan amendments to comply with new school siting requirements, contrary to a statutory prohibition. In order to address these concerns, the City adopted Ordinance No. 2000-79 on January 4, 2001, to repeal and re-adopt Ordinance No. 2000-09, re-designating the small-scale parcel for "Commercial" future land use. DCA Notice of Intent and City's EAR-Based Amendments On January 21, 2002, DCA published a Notice of Intent to find the readopted large-scale amendment "in compliance." DCA subsequently caused to be published a Notice of Intent to find this readopted amendment "in compliance." The EAR-based amendments adopted on October 2, 2001, included certain text amendments, but these amendments had no direct bearing on the plan amendments at issue in this case. All plan text provisions relating to the plan amendments at issue in this case remained "substantially the same" after the EAR-based amendments. Need for Additional Commercial Future Land Use and Internal Consistency The County contends that analysis of the data in existence at the time of adoption of the plan amendments at issue in this case does not support a need to change the future land use on these parcels from County Agricultural Residential to City Commercial. But the following Findings are based on these data and analysis. City data and analysis dated January 2001 indicated in pertinent part: In 2011 the City will need 719 acres of commercial land and at buildout, will need approximately 1,725 acres. The Future Land Use Map currently allocated approximately 1,612 acres for commercial and office development. This is slightly below the needs identified over the long term time periods. The expansion of existing Activity Centers and the development of new Activity Centers should easily accommodate this minor increase. Between now and the next required Plan update in 2007, the City should analyze the available commercial land to determine if existing designated lands are appropriately located or whether new areas should be established and existing designations converted to other land use types. Of particular interest in that regard would be the large amount of neighborhood commercial presently designated but which is primarily vacant. It was not clear from the evidence how the acreage figures in the data and analysis were calculated. It does not appear from the evidence that the figure for commercial acreage "needed" included any "cushion" or "margin of error." If the City has more land allocated for commercial future land use than is expected to be "needed" within the planning horizon of its Comprehensive Plan (the year 2011), it may be the result of pre-platting of the City by General Development Corporation. If so, the City also has an even greater excess of acreage allocated for residential future land use since approximately 90 percent of the City was pre-platted for small, quarter-acre residential lots. As a result of pre-platting, it now appears that, at build-out (expected in about 20-30 years), the City will have an excess of allocated for residential land use and a shortage of acreage allocated for commercial land use (among other non-residential uses.) As a result, there is a current need to begin to reduce the amount of acreage allocated for residential future land use and add commercial acreage (as well as other non-residential uses.) A disproportion of City land allocated to commercial future land use is in the northern part of the City, between Malabar Road and Palm Bay Road, a considerable distance from the intersection of Babcock Street and Valkaria Road. Before the plan amendments at issue in this case, there was hardly any commercial future land use in the City in the vicinity of the Babcock/Valkaria intersection. Almost all of what little commercial future land use could be found in the vicinity was in small parcels--the single exception being a 15-acre parcel at the intersection of Eldron and Grant approximately two miles to the south. There also was very little land allocated to commercial future land uses in the unincorporated County anywhere near the Babcock/Valkaria intersection. Almost all of the unincorporated County in the vicinity had Rural Residential future land use. There was some County Neighborhood Commercial across Babcock from the 15- acre parcel of City Commercial two miles to the south of the intersection. There also was some County Neighborhood Commercial and a small amount of County Community Commercial future land use east of Babcock about a mile to the north of the intersection. A 40-acre parcel approximately 650 feet to the east of the intersection was changed from County rural residential to general commercial zoning in 1988. But at around the time the City began to process the plan amendments at issue in this case, the County purchased the land and re-designated it for Public future land use and GML (Government-Managed Land) zoning. Most of the City's population growth in the last 20 years has been in the southern and western part of the City, to the west of the Babcock/Valkaria intersection. Between 1986 and 1999, residential development within 2-3 miles of the amendment sites increased approximately 160 percent. As a result, whereas 17 years ago most of the City's population was east of Interstate 95, now approximately half the population resides west of Interstate 95 (although 60 percent still resides north of Malabar Road.) Due to the sparse commercial use in the vicinity, either in the City or the unincorporated County, there is a need for more land designated for commercial future land uses in the southern part of the City to serve the rapidly growing population in that area. The applicant for the large-scale amendment submitted a letter projecting a need for 1.5 million square feet of retail space in the City based on a comparison of "current space" with average retail space per capita in Florida. The County criticized the professional acceptability of this submission as data and analysis to demonstrate need for additional commercial acreage in the City. Standing alone, the submission may be fairly subject to the County's criticism; but considered along with the other data and analysis, the submission adds to the demonstration of need for the plan amendments. It was estimated that commercial uses at the intersection of Babcock and Valkaria will generate an additional 12,000 vehicle trips on Babcock in the vicinity of its intersection with Valkaria. This estimate further demonstrates a need for additional commercial future land use in the vicinity. At least some of the vehicle trips expected to be generated in the vicinity of the Babcock/Valkaria intersection as a result of adding commercial future land use there would correspond to a reduction in vehicular traffic from the southern part of the City to and from commercial areas in the northern part of the City. For that reason, by helping balance the amount of commercial land use available in the northern and southern parts of the City, adding commercial future land use in the southern part of the City could be reasonably expected to reduce traffic overall. Commercial land uses generally generate higher tax revenue and demand fewer government services than residential land uses. Meanwhile, the City provides most of the government services in the Babcock/Valkaria vicinity and has a backlog of infrastructure projects. For that reason, an economic benefit reasonably is expected to accrue to the City from adding commercial in the southern part of the City.2 Future Land Use Element FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon area need. . . ." FLU Policy 3.1A states: "The acreage of commercial land permitted by the Future Land Use Map shall not exceed projected needs." The County did not prove that the proposed FLUM amendments are inconsistent with either this Objective or this Policy. The plan amendments at issue are based upon area need and do not exceed projected needs, as reflected in the data and analysis. Compatibility and Internal Consistency The County contended that City Commercial future land use for the amendment parcels is incompatible with surrounding land uses and internally inconsistent with provisions the City's FLU Objective 2.3, to: "Prevent incompatible land uses from locating in residential areas in order to promote neighborhood stability and prevent deterioration." In the unincorporated County to the east of Babcock Street, there are primarily large-lot, rural residential land uses with some agricultural uses such as horses and tree-farming. But, as indicated, there are platted residential lots in the City to the west of Babcock Street that are urban (or suburban) in character. During the course of these proceedings, the County abandoned its contentions as to incompatibility of the small-scale amendment except for the existence of a residential structure on the property. In arguing that the existence of the residential structure on the property makes commercial future land use incompatible, the County relied on the City's zoning LDRs. But zoning and consistency of zoning with the requirements of zoning LDRs are not at issue in this comprehensive plan amendment case. See Conclusion 52, infra. Even if zoning and consistency with zoning LDRs were at issue, the applicant's residential structure would not defeat the applicant's proposed future land use change; rather, granting the application would mean that use of the residential structure would have to be discontinued after the future land use change. As to the large-scale amendment, the County also relies in part on alleged inconsistency with an LDR--in this instance, the City's LDR for Community Commercial zoning that these areas are "to be primarily located in or near the intersection of arterial roadways." But, again, zoning and consistency of zoning with the requirements of zoning LDRs are not issues for determination in this comprehensive plan amendment case. Id. Even if zoning and consistency of zoning with the requirements of zoning LDRs were at issue, consistency and compatibility still would be fairly debatable. The evidence was that Valkaria was designated as a collector road at the time of adoption of the proposed large-scale amendment and that Babcock was designated as an arterial roadway to the north of Valkaria and as a collector to the south of Valkaria. The City characterized Babcock as a minor arterial. By its terms, the LDR in question does not prohibit Community Commercial zoning except in or near the intersection of arterial roadways; it only provides that these areas are to be located primarily in or near these intersections. Even if City Community Commercial zoning were clearly inconsistent with the City's LDR for Community Commercial zoning, City Neighborhood Commercial zoning has no similar provision for location vis-a-vis arterial roads. Since the City only has one commercial future land use category, City Commercial would be the appropriate City future land use designation for City Neighborhood Commercial zoning. The County's contentions as to the large-scale amendment also are seriously undermined by the existence of both County Community Commercial and County Neighborhood Commercial future land use east of Babcock. In addition, a County-sponsored Small Area Study (SAS) of approximately 11,500 acres of land east of the intersection along Valkaria Road recommended County Neighborhood Commercial future land use for the northeast and southeast corners of the intersection of Babcock and Valkaria (as well as County Restricted Neighborhood Commercial zoning). As indicated, the City's Comprehensive Plan does not distinguish between the two categories of commercial future land use and, if any commercial future land use is compatible with surrounding land uses, City Commercial future land use is appropriate. Contrary to the County's argument, it makes no difference to the appropriateness of City Commercial future land use that County Neighborhood Commercial future land is more limited than City Commercial future land use (or that County Restricted Neighborhood Commercial zoning is more limited than City Community Commercial zoning). The County argued that the large-scale future land use amendment was inconsistent with City FLUE Policy 2.3A, which states that LDRs must "continue to contain provisions to ensure that land uses surrounded by and/or abutting residential areas are not in conflict with the scale, intensity, density and character of the residential area." There is nothing about the proposed FLUM changes that is inconsistent with this Policy. Consistency of LDRs with this Policy is not at issue in this proceeding. See Conclusion 53, infra. The County also questioned the adequacy of buffer between commercial uses on the large-scale parcel and nearby residential uses. Precise questions as to the adequacy of buffer are decided under the LDRs, during site development review and permitting. However, it is noted that there is a 50-foot wide "paper street" (i.e., a platted right-of-way that never was developed as a street) to the west of the large-scale parcel. In addition, zoning as City Community Commercial was conditioned upon additional buffer to the east (25 feet wide) and to the north (50 feet wide). Consideration also is being given to a Habitat Conservation Plan of an undetermined size in the northern portion of the site for use as a "fly-over" for scrub jays. In addition, actual use of the residential land in the unincorporated County to the north of the large-scale parcel includes a car repair business with garage and approximately 15 cars in various states of disrepair.3 For all of the foregoing reasons, the evidence did not establish either internal inconsistency or incompatibility of commercial uses on the large-scale parcel with existing residential uses. Infrastructure and Internal Consistency At the time of adoption of the plan amendments at issue, central water and sewer services had not yet been extended to the two parcels. However, it was clear from the evidence that adequate central water and sewer capacity existed to accommodate commercial development on these parcels and that central water and sewer was being extended to the parcels. The Capital Improvements Element of the City's Comprehensive Plan listed $1.7 million being budgeted for water and sewer improvements in fiscal year 2001/2002, and in excess of $15.3 million budgeted in fiscal year 2002/2003. FLU Objective 3.1 in the City's Comprehensive Plan is to: "Provide additional commercial areas by type, size and distribution, based upon . . . the availability of supporting infrastructure." The County did not prove that the proposed plan amendments are inconsistent with this Objective. Urban Sprawl and Internal Consistency The County maintains that the proposed plan amendments exacerbate urban sprawl. But the County provided no detailed analysis of the indicators of urban sprawl in Rule 9J-5, Florida Administrative Code, to support its contention. In arguing urban sprawl, the County relied on its contentions that there was no demonstrated need to convert County rural residential land use to City commercial land use. This argument has been rejected. See Findings 20-31, supra. The County's urban sprawl argument also focused on uses in the unincorporated County east of Babcock and characterizes the plan amendments as placing commercial land use in a rural area. This focus and characterization ignores the existence of urban residential uses in the City west of Babcock. Seen in proper perspective, the proposed plan amendments allow commercial land use that would tend to mitigate and discourage the kind of urban sprawl promoted by the pre-platting of the City. Instead of having to travel to access commercial uses in distant parts of the City, City residents in the vicinity would have a much closer option under the proposed amendments (as would County residents in the vicinity). FLU Objective 1.4 in the City's Comprehensive Plan is to: "Establish a Growth Management Area to control urban sprawl." FLU Policy 1.4B states: "City funds shall not be utilized to expand public facilities and services for future growth outside of the established Growth Management Area." The small-scale parcel was outside the established Growth Management Area (GMA) at the time of adoption of the small-scale amendment. But it does not follow that the small-scale amendment constitutes urban sprawl. Nor does it follow that the small-scale amendment is inconsistent with either the Objective or the Policy. The small-scale amendment can be made a GMA before any City funds are used to expand public facilities and services for future commercial use of the small-scale parcel.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding both the small-scale amendment and the large- scale amendment of the City of Palm Bay (adopted by Ordinance 2000- 79 and by Ordinance 2001-105, respectively) "in compliance." DONE AND ENTERED this 16th day of December, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 2002.
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Community Affairs enter a final order determining that the Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue The issues in this case are: Whether a Residential Office (RO) designation for the thirty acre parcel at the southeast corner of McMullen-Booth and Curlew Roads, which is owned by Gas Kwik (Petitioner), is consistent with the Countywide Comprehensive Plan for Pinellas County (Countywide Plan); or Whether a split designation of RO for the northern nine acres with Low Density Residential (LDR) for the southern twenty-one acres of the subject parcel, as recommended by the Pinellas Planning Council (PPC), is consistent with the Countywide Plan and supported by competent substantial evidence, and Whether the PPC is authorized to initiate this split designation amendment rather than limiting its review and recommendation to the RO designation which was approved by the City of Safety Harbor (City), and forwarded to the PPC by the City as a proposed amendment to the Countywide Plan.
Findings Of Fact The Petitioner owns a thirty acre parcel of property located in the City of Safety Harbor, Pinellas County, Florida, which is the subject of the proposed land use change at issue in this case. The PPC is the countywide land planning agency charged with development and implementation of the Countywide Plan. As it relates to this case, it is responsible for review of the proposed amendment to the Countywide Plan concerning Petitioner's parcel, and for recommending action on that amendment to the Board of County Commissioners. The City of Safety Harbor (City) received the Petitioner's application for a redesignation of the subject property from Suburban Low Density Residential (SLDR) to Residential/Office/Retail (ROR), and after review it approved an amendment to the City's land use plan map on March 6, 1989, which redesignated Petitioner's property to Residential/Office (RO). Thereafter, the City requested an amendment to the Countywide Plan to change the designation of the subject property to RO. After review, the PPC recommended denial of the City's request, and further, recommended an alternative split designation of Residential/Office - Low Density Residential (RO/LDR). Neither the City nor the Petitioner have agreed to the PPC's compromise alternative. The Petitioner timely filed its request for a hearing on the PPC's denial of the City's request, and its recommendation of the split alternative. The City did not seek to become a party to this action, but as the owner of the property in question, the Petitioner is substantially affected by the PPC's action, and its right to maintain this action without the participation of the City is not at issue. Location and Characteristics of the Property The subject property is located at the northwestern boundary of the City, bordered on the north by unincorporated Pinellas County, on the west by the City of Clearwater, and on the east, across the Lake Tarpon Outfall Canal, by the City of Oldsmar. The property lies at the intersection of McMullen- Booth and Curlew Roads, both of which are designated scenic, non- commercial corridors, although where it abuts the subject property Curlew Road is not so designated. The City does not recognize this portion of McMullen-Booth Road within its jurisdiction as a scenic, non-commercial corridor. Across Curlew Road to the north of the Petitioner's parcel is a vacant tract of about 7.5 acres in unincorporated Pinellas County that is currently designated SLDR, which allows 2.5 units per acre. The adjoining property to the south is also a vacant parcel in unincorporated Pinellas County, with a designation of SLDR, and is approximately 30 acres in size. Further to the south, is Mease Countryside Hospital and related office and health care facilities. Across the Lake Tarpon Outfall Canal to the east is a low density residential mobile home park in the City of Oldsmar with a land use designation that allows 7.5 units per acre. A residential subdivision in which one lot abuts the subject property is located to the southeast. Across McMullen-Booth Road to the west in the City of Clearwater are a single family residential area and nursing home, with land use designations which allow from 1 to 5 units per acre. Mease Countryside Hospital, and associated offices, are appropriately located along McMullen-Booth Road to the south of the subject property since this location is consistent with the relevant portion of the Countywide Plan that states, "Hospitals should continue to be built adjacent to freely moving traffic corridors so that they are conveniently accessible to emergency and private vehicular traffic." The siting of the nursing home to the west of the Petitioner's parcel, across McMullen-Booth Road, is consistent with those portions of the Countywide Plan which provide, "Nursing homes should be built near community hospitals whenever possible in order to encourage inter-institutional activities", and which encourage prospective builders of nursing homes to locate such facilities in residential settings. There is a clear potential for a substantial impact on surrounding jurisdictions from the development of the subject property. Approval of the proposed RO designation, with its allowable density of 15 units per acre, can reasonably be expected to result in pressure to redesignate the vacant parcel located to the immediate south of the subject property from its current SLDR designation, allowing 2.5 units per acre, to the higher density allowable under RO, which is, in fact, the highest density allowed in the unincorporated county. Concerns of other jurisdictions must be considered under the Countywide Plan, which sets forth the following guidelines for intergovernmental coordination: Evaluate the potential impacts proposed programs and activities may have on adjacent government entities before actively pursuing implementation. Consider the programs and activities of surrounding jurisdictions before making decisions which may have multi-jurisdictional affects. The subject property is vacant and consists of approximately thirty acres. Its current designation is SLDR, which allows up to 2.5 units per acre. This current designation is consistent with surrounding residential uses. The Possum Branch Creek drainageway traverses the property in an approximately east to west direction, with approximately nine acres lying to the north and twenty-one acres to the south. The original channel was meandering, but currently it is a straight line with a spoil bank on the north side. This is a channelized, natural drainageway which is classified as a major drainageway under the Drainage Element of the Countywide Plan, which includes the policy of restoring drainageways to their natural course whenever possible. Significant portions of the southern twenty-one acres of this parcel lie within the 100 year flood plain. Residential land use designations in the Countywide Plan provide that densities of greater than five units per acre are inappropriate for areas with significant environmental constraints, such as areas within the 100 year flood plain. While development in a flood plain is not prohibited, relevant portions of the Plan specifically list both SLDR and LDR, which allow densities of from 2.5 to 5 units per acre, as appropriate for flood zone restricted property. The southern portion of the property includes a portion of a five acre eagle protection area which extends to the south and southeast beyond the Petitioner's property, and which separates this property from the existing residential subdivision to the southeast and vacant property to the immediate south. It extends into the vacant parcel to the south The Eagle's continued use of this area is uncertain. Because the Countywide Plan allows for the transfer of development density out of this eagle protection area, the existence and location of this area does not favor any particular pattern of development on the subject property. The predominate vegetation on the parcel consists of oak trees located in the right-of-way of McMullen- Booth Road in the southwest corner of the site. Scenic Non-Commercial Corridor The purpose and intent of the scenic, non- commercial corridor policy in the Countywide Pan is to protect the corridor's traffic carrying capacity, to limit adjacent non- residential uses, and to encourage the scenic and natural qualities along the corridors. It is a policy of long-standing application, originally adopted in 1977, and covers six such corridors, including McMullen-Booth Road. Stability and control of land uses along such corridor is a significant component of transportation planning for the corridor. Commercial uses allowed under the RO land use designation are not permitted within 500 feet of the right-of-way of a designated scenic, non-commercial corridor, unless approved by plan amendment or recognized on the Future Land Use Plan. No dwelling units may be located within 350 feet of the scenic, non- commercial corridor right-of-way. Two parcels with an RO designation exist south of the Mease Hospital, but each of these were authorized while the PPC lacked authority to apply the scenic, non-commercial corridor policy and before the effective date of the Countywide Plan. Under the Countywide Plan, there have been no deviations from the protection of the scenic, non-commercial corridor policy along McMullen-Booth Road, and in several specific instances the PPC has, without exception, refused to recommend approval of amendments which would have been inconsistent with that policy. While there are instances of multi-family, office and commercial development along McMullen-Booth Road, the land use designations along this scenic, non-commercial corridor are predominantly residential intermixed with vacant parcels, particularly north from the intersection of State Road 580 with McMullen-Booth to Curlew Road where there is a total of only 12 to 15 acres of office uses and these offices are associated with Mease Hospital. Petitioner's proposed RO amendment would more than double the number of acres on this portion of the corridor presently designated for office use. The predominant land use along McMullen-Booth north of Curlew Road to State Road 584 is also residential intermixed with vacant parcels. The non-residential intensity level established as appropriate for preserving the traffic carrying capacity along the scenic, non-commercial corridor is similar to the LDR density of 5 units per acre. However, the RO designation sought by the Petitioner allows densities of 15 units per acre, and therefore, this scale of potential non-residential use would be inconsistent with the pattern of development along this portion of the McMullen-Booth corridor from State Roads 580 to 584, and with the Countywide Plan which states, "Land planning should weigh heavily the established character predominately developed in areas where changes of use or intensity of development is contemplated. It is the position of the Petitioner that the subject property falls within a commercial node, or commercial intersection, which should be excepted from the scenic, non- commercial corridor policy. However, that policy does not specifically include an exception for "commercial nodes", and in fact such commercial nodes were not shown to exist between State Roads 580 and 584 on McMullen-Booth. There is a nodal exception policy in the housing element of the Countywide Plan which provides that higher density residential areas should be located in proximity with commercial nodes, and in areas immediately served by arterial streets and mass transit. The scenic, non-commercial policy, in contrast, encourages low density residential development and discourages mass transit. In fact, the area surrounding the subject property is not planned to receive mass transit service. The intersection of Curlew and McMullen-Booth Roads is significantly different from commercial nodes recognized in the MPO long range plan where large areas of high density residential development are concentrated, such as at the intersection of State Roads 584 and 580, and at the intersection of State Roads 586 and 584. Unlike other nodes, the subject property has only one limited access point onto McMullen-Booth, and no access onto Curlew. It is also the position of Petitioner that there would be minimum impacts resulting from an RO designation on the year 2010 Plan levels of service along this corridor. However, this is based upon the unrealistic assumption that such designation of this parcel would not result in a proliferation of similar higher density redesignations for the vacant thirty acre parcel to the south, as well as for other vacant parcels along the corridor. Such a proliferation would result in the elimination of any visual relief and any scenic transition along McMullen-Booth Road. Traffic Considerations Curlew Road (State Road 586) is presently a two- lane road in the vicinity of the subject property, while McMullen-Booth is a four-lane divided road adjacent to the property. In the MPO Year 2010 Plan, Curlew Road is designated as a six-lane divided roadway, and McMullen-Booth is designated as a four-lane divided facility. Portions of McMullen-Booth south of State Road 580 are designated for six-laning. The right-of-way design for the intersection of McMullen-Booth and Curlew Roads abutting the subject property has been designed to accommodate an elevated six-lane urban interchange, and pavement width of McMullen-Booth at this intersection is sufficient to allow it to be striped as a six-lane divided roadway at some, undetermined time in the future. While these roadway improvements have been budgeted for construction through 1992-93, no assurance of funding was shown, and therefore, these improvements are considered to be planned, but not committed. According to David Healey, who was accepted as an expert in land use and municipal planning, approval of the RO designation sought by the Petitioner will result in a 750% increase in projected vehicle trips per day over what would result from the present designation of this property as SLDR upon which these roadway improvements were planned. According to Hubert Pascoe, who was called by the PPC arid was accepted as an expert in MPO planning, Petitioner's request would generate approximately 250% more vehicle trips per day than the alternative split designation recommended by the PPC. Nevertheless, under either proposal the levels of service for these adjacent roadways would remain acceptable under the MPO Year 2010 Plan, and while an RO designation would intensify use and lower service levels somewhat, it would not create an unacceptable level of service. However, the impact of an RO designation on existing traffic and upon these adjacent roadways as they presently exist would be substantial, and is reasonably estimated to result in as much as a 30% increase in existing traffic. The Countywide Plan specifies that the "scale of (any) proposed land use development should be compatible with the capacity of existing supporting facilities, such as roads and facilities." While roadway improvements are planned, as found above, the substantial impact on existing facilities of this RO designation, without those improvements in place, would threaten continued acceptable service levels for these unimproved, existing facilities, and would perpetuate a pattern of development preceding essential facility improvements which results in unacceptable levels of service for existing facilities until planned improvements can catch up with such growth. The designation of McMullen-Booth as a scenic, non-commercial corridor, with resulting limitations on commercial and high density development, has significantly influenced the transportation planning that has taken place with regard to this corridor, and the identification of appropriate roadway improvements, specified above. The present SLDR designation of this parcel is consistent with the low intensity transportation planning assumptions considered under the Countywide Plan. Significant changes in adjoining land uses, such as redesignating vacant parcels from SLDR to RO, would result in significant changes in projected impacts and render such planning less meaningful and relevant. The RO designation sought by the Petitioner is inconsistent with basic assumptions used in the identification of projected traffic impacts that lead to the development of proposed roadway improvements which both parties acknowledge and contend will be sufficient to handle expected traffic volumes. It is unrealistic since it ignores the basic fact that these anticipated improvements are premised upon the continued viability of this scenic, non-commercial corridor which excludes high density, commercial development. The Countywide Plan states that, "The transportation system should not dictate the form and future development pattern but should be a supporting service system for the area's development plan." The transportation system can only function as a "supporting service system" when the area's development plan remains consistent, and when long standing policies, such as a scenic, non-commercial corridor, are not abandoned on a piecemeal basis. The fact that Mease Hospital is appropriately located along the McMullen-Booth corridor, south of the subject property, is not a basis on which this RO designation should be approved. Such a designation would contribute to an increase in the traffic burden on the McMullen-Booth corridor, especially when the potential for additional RO amendments based upon this redesignation is considered, and this could reasonably be expected to result in the elimination of this as a "freely moving traffic corridor" upon which the hospital siting was based. There is limited accessibility to the subject property with only northbound traffic on McMullen-Booth Road having direct access to the site. All other traffic is required to go through the McMullen-Booth and Curlew Road intersection and make a left hand turn from McMullen-Booth southbound across northbound traffic onto the site. Given this very limited access, an RO designation, with its densities up to a maximum of 15 units per acre, is inappropriate. The fact that this parcel has limited accessibility was a significant factor in the transportation planning process. The Petitioner's analysis is based upon the unrealistic assumption that other land use changes would not occur on these adjacent roadways between the present and the year 2010, even if an RO designation is approved for this parcel. The reasonable likelihood that the owners of similar parcels along McMullen-Booth Road will seek higher densities for their properties, if this RO designation is approved, must be considered in any meaningful analysis. Development Potential Petitioner does not allege that the current SLDR designation of the subject property is confiscatory. Evidence offered by Petitioner that it has been unable to market this property for low density residential development was neither competent nor substantial. Additionally, the extent and diligence of these marketing efforts is suspect since Petitioner purchased this property for the purpose of high density, commercial and office development, despite its low density residential designation, as well as that of parcels to the south and east, and also since Petitioner remains primarily interested in office and high density development. According to the Petitioner, an RO designation would serve as an appropriate buffer, or step-down, between the existing low density mobile home park, residential area, and vacant SLDR parcel to the east, southeast and south, respectively, and the high intensity activity intersection of McMullen-Booth and Curlew Roads to the north. However, the pertinent provision in the Countywide Plan provides that "development patterns should recognize and support coherent neighborhoods. Neighborhoods should be insulated wherever possible from disruptive land uses and nuisances." Placing an RO designation on the subject property lying to the north and west of residential parcels would not serve as a buffer for those residential parcels designated SLDR, nor would it insulate them from potential commercial and office development which would then be authorized for the subject property. While RO is recognized in the Countywide Plan as an appropriate buffer between major traffic corridors and LDR (5 units per acre), it is not recognized to be an appropriate buffer between such high intensity activity areas and SLDR (2.5 units per acre). The fact that there is a fully developed and apparently successful, low density, residential subdivision to the west of the southern portion of the Petitioner's parcel, across McMullen-Booth Road, conclusively establishes that this area is appropriate for residential development. Additionally, to the west of the northern portion of the subject property, across McMullen-Booth, is a nursing home. While there was evidence that residents in the subdivision have blocked some access roads into their subdivision to limit traffic on residential streets entering the subdivision from McMullen-Booth, there was no competent substantial evidence to establish that residents have been selling their homes at below market value in order to leave the subdivision, whether the rate of home sales has been increasing, or that noise levels resulting from traffic along McMullen-Booth for residents of the subdivision or the nursing home are unacceptably high. The Countywide Plan requires site planning regulations which protect residential development from such noise concerns by providing buffers along arterial roadways, including berms, walls, or woody vegetation. The open space set-back requirement of the scenic, non-commercial corridor policy is well suited for use as a buffer. Most Appropriate Designation: RO vs. RO/LDR The Petitioner seeks approval from the Board of County Commissioners of the City's action redesignating the subject 30 acre parcel from SLDR (2.5 units per acre) to RO (15 units per acre). The PPC has recommended a split designation of RO on the northern 9 acres and LDR (5 units per acre) on the southern 21 acres of Petitioner's property. The split designation provides an appropriate buffer between low density residential development and vacant parcels to the east and south, as well as projected high volume traffic at the intersection of Curlew and McMullen-Booth Roads. The southern 21 acres of the property would provide an appropriate transition density of 5 units per acre from the 2.5 units per acre to the south, and the 15 units per acre which would be allowed in the northern RO portion of the subject property adjacent to the roadway interchange. Traffic volumes at the interchange do not justify redesignating the entire parcel RO, since this would ignore, and be inconsistent with, the Countywide Plan policy of buffering low density residential areas designated SLDR. The use of Possum Creek Branch drainageway to separate the RO and LDR designations on the subject property, as recommended by the PPC, is logical and consistent with the depth of other non-residential designations along Curlew Road, as well as with prior actions by the PPC in recognition of an interchange influence area. The RO designation sought by Petitioner is inconsistent with the fact that the southern 21 acres of this parcel lie within the 100 year flood plain where low density development under SLDR or LDR is allowed, as recommended under the PPC's split designation. The scale of allowable development under an RO designation of up to 15 units per acre is not consistent with the pattern of development along the McMullen-Booth scenic, non- commercial corridor, north of State Road 580 through the Curlew Road intersection to State Road 584, or with Countywide Plan policies which seek to protect existing development patterns. The split designation recommended by the PPC does provide for consistency with existing patterns of development along adjacent portions of McMullen-Booth. The LDR designation on the southern 21 acres of the subject property aligns with the residential subdivision to the west, across McMullen-Booth Road, and is consistent with residential densities in that subdivision, as well as densities to the east and southeast. The subject property's existing SLDR designation is consistent with surrounding residential uses, with concerns for intergovernmental coordination expressed in the Countywide Plan, and with the low intensity assumptions used for transportation planning. The PPC's split designation balances these concerns for intergovernmental impacts with the Petitioner's stated desire for high density development. An LDR designation for the southern 21 acres of this parcel will provide for a viable opportunity for development, consistent with other residential developments to the west, southeast and east, and with sound planning principles. The RO designation sought by Petitioner would result in unplanned, contiguous uses along McMullen-Booth and Curlew Roads which would be inconsistent with basic assumptions that have gone into planned improvements to these roadways. Stability and control of land uses along the adjoining scenic, non-commercial corridor is a significant aspect of transportation planning for the McMullen-Booth Road corridor, which is premised upon low density residential development. Petitioner's traffic projections, concluding that land use changes associated with an RO designation would have no significant impact on the functional capacity of these adjacent roadways and planned interchange improvements, were not based upon competent substantial evidence, and were conclusively rebutted by evidence of adverse, cumulative, unplanned impacts presented by the PPC. Due to this parcel's limited accessibility, an RO designation for the entire site is inappropriate because it will result in significant adverse impacts on the traffic carrying capacity of the adjacent scenic, non-commercial corridor. The PPC's split designation retains significant low density residential acreage, which is consistent with limited access points and protection of the corridor's traffic carrying capacity. The split designation recommended by the PPC is consistent with the scenic, non-commercial corridor policies of the Countywide Plan since it will prevent the proliferation of high density development, maintain visual relief and scenic transition along McMullen-Booth Road north from Mease Hospital, and limit non-residential development along the corridor. The development of 30 acres under an RO designation at this intersection would represent an isolated nodal increase in intensity which would be inconsistent with development along this portion of the McMullen-Booth corridor, and would occur without any plans to provide mass transit services to this area. Thus, this would be inconsistent with the nodal exception policy adopted by the PPC which identifies community nodes as areas immediately served by arterial streets and mass transit. The PPC split designation does allow limited intensification of development on the northern 9 acres of the subject property immediately adjacent to the McMullen-Booth and Curlew Road intersection, thereby recognizing a reasonable extent of impact from intersection traffic and improvements. This is a reasonable approach, consistent with the Countywide Plan. Approval of the Petitioner's request for RO designation of this entire 30 acre parcel would be inconsistent with prior decisions of the PPC under the scenic, non-commercial corridor policy. The split RO/LDR designation is a reasonable compromise of competing interests and policies, and is consistent with pertinent portions of the Countywide Plan.
Recommendation Based upon the foregoing, it is recommended that the Pinellas County Board of County Commissioners enter a Final Order disapproving an RO designation for Petitioner's subject property, and approving, as a compromise, the PPC's split designation of RO/LDR, subject to the Petitioner and the City of Safety Harbor affirmatively joining in said compromise. DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 1990. APPENDIX (DOAH CASE NO. 89-3438) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-4. Adopted in Finding 3. 5. Adopted in Finding 2. 6-7. Adopted in Finding 3. 8-9. Adopted in Findings 6 and 7. 10-11. Adopted in Finding 12. 12-13. Adopted in Finding 6. Adopted in Findings 5, 7, 10, 12. Rejected in Findings 8, 27, 35. Adopted in Findings 6, 21. Rejected in Findings 6, 30, and otherwise not based on competent substantial evidence. Rejected in Finding 12. Rejected in Findings 32-40, and otherwise as speculative. 20-23. Rejected as immaterial and unnecessary. 24-25. Adopted in Finding 21. 26. Rejected as immaterial and unnecessary. 27-29. Adopted in Finding 21. 30-31. Rejected as unnecessary. 32. Adopted in Finding 22. 33-37. Rejected as unnecessary. Adopted in Finding 22. Rejected in Findings 24, 26, and otherwise not based on competent substantial evidence. Rejected as irrelevant and as simply a summation of testimony rather than a proposed finding of fact. Rejected in Findings 24 and 26. 42--43. Rejected as irrelevant and immaterial. 44-45. Rejected in Finding 10. 46-47. Rejected as irrelevant and immaterial. 48. Adopted in Finding 11. 49-50. Rejected as speculative and not based on competent substantial evidence. 51-53. Rejected as irrelevant and immaterial. Rejected in Finding 19. Rejected in Findings 13-20, and 40. Rejected in Finding 16, and otherwise as irrelevant. Adopted in Finding 8. Rejected in Finding 16, and otherwise as irrelevant. Rejected in Findings 18, 19, 39. Adopted in Finding 14. Rejected as irrelevant and not based on competent substantial evidence. Rejected in Findings 16, 18, 19, 39. Adopted in Findings 33 and 39. 64-67. Rejected in Findings 13, 16, 18, 19, 34, 37-40. Adopted and Rejected in part in Findings 3, 33, 38-40. Rejected in Findings 18, 19 and 39. Adopted in Finding 13. Rejected as irrelevant and immaterial Rejected in Findings 18, 19 and 39. Adopted in Finding 14, but otherwise Rejected as speculative and immaterial. Adopted in Findings 17 and 24. 75-78. Rejected as immaterial. Rejected as irrelevant and immaterial. Rejected in Findings 18 and 19. Rejected in Finding 8, and otherwise as irrelevant and immaterial. Adopted in Finding 14. Rejected as irrelevant and immaterial. Adopted in Finding 5. Rejected as irrelevant and immaterial, and as not based on competent substantial evidence. Adopted in Finding 28. 87-88. Rejected in Findings 28 and 30. 89-90. Rejected as irrelevant and immaterial. Rejected as not based on competent substantial evidence. Rejected in Findings 28 and 30. Adopted in Finding 30. Rejected as not based on competent substantial evidence. Rejected in Findings 18, 19 and 39. Rejected in Finding 16 and otherwise as irrelevant and immaterial. Rejected as not based on competent substantial evidence. 98-99. Rejected as speculative and immaterial. Rejected in Finding 8. Adopted in Finding 5, but Rejected in Finding 16. Rejected in Finding 29. Rejected as immaterial, irrelevant and contrary to competent substantial evidence. Rejected in Findings 34-40 and otherwise as contrary to competent substantial evidence. 105-106. Rejected as unnecessary. Rejected in Findings 32-40. Rejected in Finding 29. Rejected in Findings 32-40, and otherwise as unnecessary and immaterial. Rejected in Finding 25, and as not based on competent substantial evidence. 111-112. Rejected in Findings 32-40. 113-165. Rejected in Findings 8, 9, 11, 12, 16-20, 22, 24-27, 29, 30 and 32-40, and otherwise as unnecessary, irrelevant, and needlessly cumulative and duplicative of previous proposed findings of fact. Rulings on the PPC's Proposed Findings of Fact: Adopted in Finding 2. Adopted in Finding 1. Adopted in Finding 4. 4-5. Adopted in Finding 8. 6. Adopted in Finding 5. 7-8. Adopted in Findings 11 and 33. 9-10. Adopted in Finding 10. 11. Adopted in Finding 33. 12. Adopted in Findings 9 and 10. 13. Adopted in Finding 33. 14. Adopted in Finding 12. 15. Adopted in Findings 6 and 12. 16-17. Adopted in Finding 6. 18. Adopted in Finding 16. 19. Adopted in Finding 30. 20-21. Adopted in Finding 7. 22-23. Adopted in Finding 16. 24. Adopted in Finding 15. 25-26. Adopted in Finding 16. 27. Adopted in Finding 17. 28. Adopted in Finding 9. 29. Adopted in Findings 17 and 34. 30-31. Adopted in Findings 29, 32 and 39. 32. Adopted in Findings 16 and 17. 33. Adopted in Finding 9. 34. Adopted in Finding 40. 35-40. Adopted in Findings 8, 20, 24, 27 and 35. 41-42. Adopted in Finding 28. 43-46. Adopted in Finding 30. Rejected as unnecessary and immaterial. Adopted in Finding 30. 49-50. Rejected as unnecessary and immaterial. Adopted in Finding 22. Adopted in Finding 23. 53-59. Adopted in Findings.24 and 36, but otherwise Rejected as cumulative and unnecessary. Adopted in Finding 26. Adopted in Finding 23. Adopted in Finding 27. Adopted in Finding 36. Rejected as unclear in the use of the term "particular amendment". Rejected as cumulative and unnecessary. Adopted in Finding 35. Adopted in Finding 39. 68-70. Adopted in Findings 13 and 16. Adopted in Finding 17. Adopted in Finding 20. 73-74. Adopted in Findings 21 and 23, but otherwise Rejected as cumulative and unnecessary. 75-76. Rejected as cumulative and unnecessary. 77-78. Adopted in Findings 37 and 40. 79-83. Rejected as cumulative and unnecessary. 84-85. Adopted in Finding 38. 86-87. Rejected as cumulative and unnecessary. 88-98. Adopted in Findings 18, 19 and 39, but otherwise Rejected as cumulative and unnecessary, 99-100. Adopted in Finding 40. 101-107. Rejected as cumulative and unnecessary. COPIES FURNISHED: James L. Bennett, Esquire Assistant County Attorney 315 Court Street Clearwater, FL 34616 Keith W. Bricklemyer, Esquire 777 South Harbour Island Blvd. Suite 350 Tampa, FL 33602 David P. Healey Executive Director Pinellas Planning Council 440 Court Street Clearwater, FL 34616
The Issue Whether the Petitioner, Carla Brice, has demonstrated by a preponderance of the evidence that she is entitled to a vested rights certificate to develop certain real property located in Alachua County, Florida without complying with the Alachua County Comprehensive Plan?
Findings Of Fact The Subject Property. The property at issue in this proceeding (hereinafter referred to as "Lot 111"), consists of approximately 6 acres of real property located in Alachua County, Florida. Lot 111 is currently owned by the Petitioner, Carla Brice. Ms. Brice acquired Lot 111 through inheritance from her father, Carl L. Brice. Ms. Brice acquired the property in approximately January of 1993. Early History of the Development of Arredonda Estates. During the 1950s Mr. Brice acquired a platted subdivision in Alachua County known as Arredonda Estates Unit 1 (hereinafter referred to as "Unit 1"). Approximately 100 acres of property located adjacent to Unit 1 were also acquired by Mr. Brice. Unit 1 met the existing plat law of Alachua County. Mr. Brice proceeded with the development of Unit 1 and the sale of lots therein. Part of the 100 acres acquired by Mr. Brice was subsequently platted and developed for sale as residential lots as Arredonda Estates Unit 2A (hereinafter referred to as "Unit 2A"). Arredonda Estates Unit 2B (hereinafter referred to as "Unit 2B") was to be located to the north of Unit 2A. Because of the lack of access out of Unit 2B, the then County engineer of the Alachua County, Roy J. Miller, informed Mr. Brice that he would not allow Mr. Brice to proceed with Unit 2B until Mr. Brice completed development of approximately 33 acres of real property located to the east of Unit 1. Mr. Miller believed that there would be better access from the various phases of Arredonda Estates if the 33 acres were developed first because there would be access out of the 33 acres onto County Road 24 and onto Broken Arrow Road to the east of the 33 acres. Mr. Miller, as the County engineer, wielded a great deal of influence in the development of property in Alachua County at the time Mr. Brice developed Units 1 and 2A and at the time he was beginning development of the 33 acres. Although the evidence failed to prove that Mr. Miller could have legally required Mr. Brice to develop the 33 acres before developing Unit 2B, the uncontroverted evidence proved that it was believed that Mr. Miller's approval was necessary in order to complete a development. The 33 acres surround Lot 111 on the east, west and north. The south boundary of Lot 111 is County Road 24, Archer Road. One of the two access roads to County Road 24 from the 33 acre development was located to the immediate east of Lot 111 and the other was located to the immediate west of Lot 111. Lot 111 is bounded on the south by County Road 24. The 33 acres were to be developed as Arredonda Estates (hereinafter referred to as "Unit 4"). The Development of Unit 4. Mr. Brice informed Mr. Miller that he was concerned about developing Unit 4 before developing Unit 2B because Mr. Brice planned to develop Lot 111 as a shopping center. He did not plan to build the shopping center until all phases of Arredonda Estates were completed, including Unit 2B. In agreeing to develop Unit 4 before Unit 2B, Mr. Brice was concerned about making expenditures for larger drainage facilities and obtaining additional easements necessary for the development of Lot 111 before he planned to begin actual development of the shopping center. Mr. Brice informed Mr. Miller of these concerns. The shopping center Mr. Brice planned to develop was to consist of 296,000 square feet of paved surface and 50,000 square feet of roof area. These plans required a redesign of the drainage for Unit 4. In particular, the following modifications were necessary: In conclusion I find it necessary to change the diameter of pipe #7 from an 18 inch diameter to a 21 inch diameter, placed at a 0.15 percent slope pipe grade. Some necessary amendments are required at this point. The larger size pipe in place will cost $9.20 per linear foot. Some sixty-two feet are needed, therefore the total cost will be $570.40. Brice exhibit 9. Despite Mr. Brice's concerns, Mr. Miller continued to insist on the development of Unit 4 before Unit 2B and Mr. Brice proceeded with the development of Unit 4. Unit 4 was platted on July 19, 1970. The plat was recorded in Plat Book H, Page 30, Official Records of Alachua County. The initial design of Unit 4 provided for one point of ingress and egress on to State Road 24 from Unit 4. Mr. Miller required that two points of ingress and egress be provided and Mr. Brice agreed. The evidence failed to prove that this requirement was agreed to in exchange for any representation from Alachua County that Mr. Brice would be allowed to develop the shopping center. The final plat provided two means of ingress and egress to State Road 24 and one means of ingress and egress to County Road Number Southwest 24-C (Broken Arrow Road). Lot 111 is contained on the plat. No intended use for Lot 111 was designated on the plat of Unit 4. The plat simply identifies the lot. See Brice exhibit 5. The plat identifies the development of residential lots only. The 33 acres was initially zoned as "A" (agriculture). In order to develop Unit 4 it was necessary to obtain approval of re-zoning of the property as R1C, residential use. The re-zoning of the 33 acres was sought and approved. Lot 111 was also zoned for agricultural use when acquired. On February 11, 1969, 4.27 acres of Lot 111 were re-zoned from "A" (agriculture) to "BR" (retail sales and service). On July 1, 1969, a special use permit allowing a mobile home trailer sales agency was issued for use of 1.1 acres contiguous to the 4.27 acre parcel of Lot 111 by Alachua County. On July 7, 1975, the 1.1 acres, which the special use permit had been issued for, was zoned from "A" to "BR." Construction plans for site improvements for Unit 4 were subsequently prepared, filed with Alachua County and were approved. See Brice exhibit 10. Included on the plans is a rectangular shape identified as "Proposed Shopping Center" containing indications of measurements representing 50,000 square feet of building space. The "Proposed Shopping Center" designation is located on Lot 111. Mr. Brice was subsequently informed that the site improvements for Unit 4 were approved by Alachua County. The evidence failed to prove, however, that Alachua County specifically considered or approved the construction of a shopping center on Lot 111 in approving the site improvement plans for Unit 4. The approved site improvements for Unit 4 were ultimately made and accepted by Alachua County in September of 1970. Government Action Relied Upon. Mr. Miller intended to allow Mr. Brice to develop Lot 111 as a shopping center "as he had planned." Mr. Miller's approval was conditioned on the completion of development of Units 2B and 4 and the sale of lots thereon. The shopping center to be approved was to be limited to what Mr. Brice "had originally proposed" which was a shopping center of 50,000 square feet. Mr. Brice complied with Mr. Miller's condition that he complete development of Unit 4 before developing Unit 2B. The evidence failed to prove that it was reasonable for Mr. Brice to believe that Mr. Miller's representations concerning the approval of Mr. Brice's intended development of a shopping center on Lot 111 would last indefinitely. It was also unreasonable for Mr. Brice to believe that the representations of Mr. Miller would survive indefinitely beyond the time that Mr. Brice completed development of Arredonda Estates. In July of 1970, Alachua County Zoning Regulations contained the following site plan approval requirement for shopping centers: No permit shall be issued for construction of a shopping center until the plans and specifications, including the design of ingress and egress roads, parking facilities, and such other items as may be found of importance have been approved by the zoning commission. Based upon this provision, Mr. Miller did not have the authority to approve the construction of a shopping center on Lot 111 in July of 1970. If the representations made by Mr. Miller to Mr. Brice concerning construction of the shopping center had been made in July, 1970, it would be unreasonable for Mr. Brice to rely upon Mr. Miller's representation because of the Alachua County Zoning Regulations quoted in finding of fact 31. If the representations were made before July, 1970, it would be reasonable for Mr. Brice to rely on Mr. Miller's approval of the shopping center because the evidence failed to prove that Alachua County Zoning Regulation quoted above was in effect before July, 1970. The weight of the evidence proved that Mr. Miller's representations were made before July, 1970. Detrimental Reliance. Mr. Brice proceeded with the development of Unit 4. Roads and drainage facilities associated with Unit 4 were constructed by 1971. The cost of these improvements was approximately $68,989.54. The total cost of improvements associated with Unit 4 was $121,947.54. Mr. Brice also had to obtain a drainage easement but the evidence failed to prove the cost of doing so. The exact amount expended on Unit 4 attributable to work performed just for Lot 111 and the shopping center was not proved by Ms. Brice. One method of allocating costs associated with the development of Unit 4 to Lot 111 suggested by Ms. Brice is to determine the percentage of acreage Lot 111 represents of the whole of Unit 4: approximately 17.9 percent. Applying this percentage to the total costs equals $21,828.61. The weight of the evidence, however, failed to prove that $21,828.61 was actually incurred in association with Lot 111. The evidence failed to prove that it would be reasonable to attribute any part of the expenditures listed in paragraphs 1, 3, 6, 8, 9, 11 or 12 of Brice exhibit 30 as attributable to Lot 111. Based upon evidence presented by Alachua County, the total expenditures made by Mr. Brice associated with Lot 111 and the shopping center were approximately $1,005.50. Subsequent Events. Mr. Brice caused preliminary plans for a shopping center for Lot 111 to be developed. Brice exhibit 14. Those plans were never submitted for approval and no building permit was issued approving the construction of a shopping center for Lot 111. The preliminary plans for the shopping center indicate a substantially different configuration for the shopping center than indicated on the site improvement plans for Unit 4. Brice exhibit 14. No final development plan or plat approving a shopping center on Lot 111 was issued by Alachua County. Efforts were made during the 1970s to market Lot 111 for development as a shopping center. These efforts were not successful. As a part of this effort, Mr. Brice incurred $7,000.00 for the construction of a three dimensional model of the proposed shopping center evidenced on the preliminary plans. It has been suggested that Mr. Brice did not proceed with the development of the shopping center during the 1970's and into the 1980's for a number of reasons: A dispute between Mr. Brice and Alachua County arose in 1976 concerning the road in Unit 2A; A dispute also arose concerning the water system in the area of Arredonda Estates; The state of the economy was not conducive to development. The evidence, however, failed to prove why the shopping center was not developed. In 1973, Alachua County created a development review committee. Final site plans for commercial sites were required to be approved by the committee. Mr. Brice did not obtain approval for the proposed shopping center or seek assurances from Alachua County that Mr. Miller's representations concerning the shopping center on Lot 111 were still valid. During 1982 and 1983, Mr. Brice became aware of proposed revisions to the Alachua County Comprehensive Plan. Mr. Brice met with Alachua County officials concerning the revisions and followed the progress of the revisions. In 1984 Alachua County adopted a comprehensive plan. Under this plan commercial use of Lot 111 was not allowed except for a neighborhood convenience store with square footage of 10,000 square feet. In 1985, during a meeting with Alachua County personnel, Mr. Brice and his attorney were informed that Lot 111 could not be developed as a shopping center without a comprehensive plan amendment. No amendment was applied for. In 1989, offers to purchase Lot 111 were received. Those offers were continent upon the property being developed consistent with the BR zoning. Ms. Brice's name, then known as Carla B. Sutton, first appears in connection with Lot 111 in 1989 when offers to purchase Lot 111 were received. The evidence, however, failed to prove that she was owner of Lot 111 at that time. In 1989 or 1990, a conceptual site plan review was applied for by David Miller, Mr. Brice's representative, concerning Lot 111. Brice exhibit 21. The application was considered at an Alachua County Development Review Committee meeting on March 22, 1990. Consideration of the application was deferred for two weeks. The development Review Committee met on April 19, 1990 and considered the application for conceptual site plan review for Lot 111. The Committee was concerned about how the fact that Lot 111 had been zoned BR before the comprehensive plan had been adopted impacted the fact that development of Lot 111 as a shopping center was prohibited by the comprehensive plan. A decision was delayed for a month and staff was asked to prepare a report dealing with similarly situated parcels. By January 1991, proposed language providing for vesting of certain zoning had been drafted by Alachua County. Brice exhibit 24. By letter dated January 30, 1991, Kurt Larsen, Director of the Office of Planning and Development of Alachua County, informed all affected property owners that Alachua County was "considering" allowing a period of time during which existing zoning would be honored. Brice exhibit 25 Comments were invited. By letter dated February 15, 1991, counsel for Ms. Brice responded to Mr. Larsen's January 30, 1991 letter. Brice exhibit 26. A Transmittal Draft of the Future Land Use Element of the Alachua County Comprehensive Plan dated April 1991 was sent to the Florida Department of Community Affairs for review. See Brice exhibit 27. The Draft provided a two- year period during which undeveloped parcels zoned for a use that was otherwise inconsistent with the Comprehensive Land Use Plan would be allowed to be developed essentially in accordance with existing zoning. This policy was ultimately rejected by the Department of Community Affairs. Alachua County informed Ms. Brice of the action of the Department of Community Affairs by letter dated September 18, 1991. Brice exhibit 28. Rights That Will Be Destroyed. Alachua County adopted a Comprehensive Land Use Plan in 1991. The following policy was agreed to in a compromise between Alachua County and the Department of Community Affairs concerning commercial enclaves: Policy 3.4.3. Commercial Enclaves are designed within the Urban Cluster on the Future Land Use Map. These sites shall be subject to the following location and compatibility standards: Development of Commercial Enclaves shall be required to meet all concurrency requirements. Development shall be required to minimize access from arterials and collectors. Whenever possible, driveways shall use common access points to reduce potential turn movements. A maximum of 20,000 square feet of gross leasable area shall be permitted within each enclave. Uses may include neighborhood convenience centers consistent with Policy 3.8., offices consistent with Policy 3.9.1. and sit-down restaurants. The land development regulations for this land use category shall specify performance standards required to mitigate any adverse impact of such development on adjacent land uses and affected public facilities. Such performance standards shall include buffering and landscaping provisions, site design measures to locate such uses away from less intensive adjacent land uses, signage and parking restrictions, and intensity provisions (e.g. height and bulk restrictions). In the interim, until land development regulations consistent with these policies are adopted, the standards and criteria governing Commercial Enclaves shall be implemented through the County's Development Review Committee process. This policy shall be reviewed by 1993 to determine the effectiveness of the land use category. Mr. Brice was informed, after contacting the Alachua County Growth Management Department, that his development of Lot 111 was limited by the commercial enclave policy. Pursuant to the commercial enclave policy, development of Lot 111 is limited to a size of 20,000 square feet and the uses to which Lot 111 may be put are less than would be allowed under BR zoning. Carla Brice's Reliance and Detriment. The evidence in this case failed to prove that Ms. Brice, the current owner of Lot 111 and the applicant in this case, was aware of any representations made by Mr. Miller. More importantly, the evidence failed to prove that Ms. Brice in any way reasonably relied upon the representations made to her father. The evidence also failed to prove that Alachua County made any representations to Ms. Brice that she would be allowed to develop Lot 111 as a shopping center. In fact, Alachua County has indicated just the opposite to Ms. Brice since she became the owner of Lot 111. In light of the amount of time that passed after Mr. Miller's representations were made to Mr. Brice and the intervening events concerning development in Alachua County before Ms. Brice acquired Lot 111, any reliance by Ms. Brice on Mr. Miller's representations would not be reasonable. Finally, the evidence failed to prove that Ms. Brice detrimentally relied upon any representation of Alachua County concerning the development of Lot 111. Only Mr. Brice, Ms. Brice's father, made expenditures related to the development of Lot 111 as a shopping center. I. Procedural Requirements. On June 9, 1993 Ms. Brice filed her Application seeking an equitable vested rights certificate or a statutory vested rights certificate. On September 22, 1993 Kurt Larsen, Director, Department of Growth Management, Alachua County, informed Ms. Brice that the Application was denied. Ms. Brice appealed the decision to deny the Application by letter dated September 28, 1993. The Division of Administrative Hearings was requested by letter dated January 18, 1994, from Alachua County to assign a hearing officer to conduct a formal administrative hearing. The formal administrative hearing of this matter was conducted on March 14, 1994.
