The Issue The issue is whether Respondent violated Section 112.313(6), Florida Statutes, by misusing her position as a Town Councilperson to obtain a personal benefit, and if so, what is the appropriate penalty.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, Florida Statutes, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, Florida Statutes, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report, recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Ms. Jones is subject to the Code of Ethics. She was first elected to the Town Council of the Town of Pierson, Florida, in 1990, and she served four two-year terms. She served from 1990 to 1994 and then from 1998 until her term ended September 30, 2002. Ms. Jones also sat on county zoning boards for eight or nine years and was on the City Zoning Board prior to being elected to the Town Council. She is knowledgeable with regard to the process of zoning. Pierson, Florida, is a town of about 3400 people. It is known for the production of ornamental ferns. The Pierson Town Council has the power, through adoption of ordinances, to change the zoning of parcels of land within the Town of Pierson. Prior to 1992, this was accomplished by maintaining a file of city ordinances affecting zoning. There was no zoning map. In 1994, a zoning map, printed on a vellum-like medium, was produced. This map, which will hereinafter be referred to as the "official zoning map," actually consisted of three separate sheets. It was precise and accurate in its depiction of the location of individual parcels and roads and streets. However, the lines denoting zoning were crudely drawn with a grease pencil. In 1999, it was believed it lacked completeness in that changes made by ordinance had not been entered upon it. The "official zoning map" of the Town of Pierson was maintained by the Town Clerk. The Town Clerk's duties included maintaining personal control of the map. The Town Clerk, as a matter of policy, would not permit the map to leave the clerk's office unless accompanied by the Town Clerk. The map was locked in a safe in the clerk's office except when it was being viewed by someone in the presence of the clerk. This policy was in place in order to deter the possibility that someone might surreptitiously alter the map. Robert Allen Keeth (Mr. Keeth), is employed as a planner for the Volusia County Metropolitan Planning Organization (MPO). The Town of Pierson contributes to the cost of the operation of the MPO, and receives services from it. As a planner for the MPO, Mr. Keeth works with the Town of Pierson and he has done so since at least the early 1990's. In accomplishing these duties, he works with the Town Council; the town attorney, Noah McKinnon; the Planning Commission; and other citizens of Pierson. He has known Ms. Jones since the early 1990's. With substantial input from Mr. Keeth, the Town of Pierson adopted a comprehensive land use plan, entitled the Unified Land Development Regulations (ULDR). The Town Council adopted the ULDR on February 22, 1994. Since its adoption, the ULDR provides a regulatory scheme for storm water management, resource protection, signs, and zoning, among other things. The ULDR also provides a method for amending the zoning scheme. Section 10.6.1 provides for the application process; Section 10.6.2 provides for Planning Commission review and for a public hearing; Section 10.6.3 provides for a Town Council review and a public hearing after due public notice; and Section 10.6.4 provides that amendments to zoning must be made consistent with the comprehensive plan by amending the plan if necessary to achieve that goal. The fee for amending a zoning classification of a parcel of land, during times pertinent, was set at $150. By 1995, digitalized mapping became commonplace and Mr. Keeth suggested to the Town Council, during 1995, that the official zoning map of the Town of Pierson be replaced with a digital map. The council agreed that a digital map should be prepared and adopted. The council did not immediately act on this decision. It was probable that there would be some changes in connection with the adoption of the digitalized map. This was because the "official town map" then in use was crudely drawn and might not be completely accurate in some respects and because ordinances had been passed affecting zoning which were not reflected on the "official zoning map." Moreover, when one changes an original map to a digital map it is unlikely to scale correctly or align correctly. The process of preparing a digitalized map is not designed to bypass the processes set forth in Sections 10.6.1 through 10.6.4 of the ULDR. The creation of a new map through digitalization was described by Mr. Keeth as "replacing a map." "Replacing a map" is a form of administrative rezoning. Administrative rezoning occurs when, after notice and hearing, an authorized governmental body changes the zoning of a parcel of property without receipt of an application from the owner. Section 166.041, Florida Statutes, addresses administrative rezoning. On or about November 25, 1998, Mr. Keeth prepared a written proposal to the Town Council with regard to creating a digital zoning map. Shortly thereafter, subsequent to approval by the Town Council, Mr. Keeth began preparing a new zoning map for the Town of Pierson. It was Mr. Keeth's understanding that Samuel Bennett, Chairman of the Town Council, would work with him in preparing the new map. Mr. Keeth and Ms. Jones had discussions with regard to the process involved with producing an accurate digitalized map. It was understood that it was possible that zoning changes might be affected which were not supported by any ordinance. This would not occur, in Mr. Keeth's opinion, until after public workshops and hearings. Ms. Jones, during times pertinent, owned a parcel of property in the northeast quadrant of the Town of Pierson on Minshew Road. This property was zoned A-1 (agriculture). It was a ten-acre parcel and the sole improvement was a packing shed. The packing shed occupied a small part of the ten acre parcel. Ms. Jones, during times pertinent, also owned a fence company in DeLand, Florida. She determined that she could reduce operational costs with regard to the fence company by moving the fencing materials associated with the business to the parcel on Minshew Road. Ms. Jones was paying rent in excess of $1,600 per month to store the materials in DeLand. In order to store the materials on the Minshew road property it was necessary to change the zoning classification of the parcel to B-1 (general retail commercial development). Mr. Keeth and Ms. Jones discussed the Minshew Road parcel and Ms. Jones revealed that she wanted to change the designation to B-1 (general retail commercial development), or to B-2 (heavy commercial and industrial development) or in any event, to a designation which, in Mr. Keeth's opinion, would allow the storage of fencing materials on the property. Mr. Keeth said that it would be permissible for her to pencil in the change she desired. She penciled in this change on the "official zoning map" in March or April in 1999. The pencil change was accomplished immediately subsequent to a meeting of the Town Council. The suggestion for change accomplished by Ms. Jones was not made surreptitiously. Ms. Jones told Mr. Keeth that she did not want it to appear that she was getting any special favors because of her position. Mr. Keeth told her he did not see a problem with the change and told her she could, "Pencil it in on the map," referring to the "official zoning map." By May 7, 1999, Mr. Keeth had prepared an initial draft map and on that date he sent a memorandum to the Pierson Town Council suggesting they review the initial draft map at Town Hall and forward comments to him by May 21, 1999. This map cannot be located. Another was created prior to November 29, 1999, which bore the date "November 29, 1999." On this map, Ms. Jones' parcel was labeled B-2 (heavy commercial and industrial development) rather than the B-1 which had been entered in pencil by Ms. Jones. The only other person to make pencil marks on the map was Samuel Bennett, who was also a town councilperson. Mr. Keeth considered these marks to be "suggestions" rather than changes. Mr. Keeth knew of no formal process, nor was the council aware of any formal process, for converting the "official zoning map" to a digital map. However, it is clear that Mr. Keeth believed that public workshops would be convened as part of the process and he believed that the Town Council would have to approve the final draft by ordinance. That he was correct in that belief is evidenced by the process which eventually resulted in the adoption of a final map on September 12, 2000, using that process. There were several draft maps produced during the period November 1999 through the winter and spring of 2000, but the drafts were not numbered or dated. As many as six draft maps were produced some of which never left Mr. Keeth's office. The maps were stored in the hard drive of his computer. On some drafts the words "Ordinance number ## , Jan ## , 2000" appeared. Changing a zoning classification from agriculture to business use does not automatically mean that the market value of the property is enhanced. However, because people do not ordinarily act contrary to their economic interest, it is found that the zoning suggestion made by Ms. Jones, would have represented value to her had the change been made. Moreover, as noted above, the suggestion, had it resulted in a change in zoning, would have allowed Ms. Jones to store materials at no cost instead of the $1,600 per month she was paying to store them in DeLand. Many citizens of the Town of Pierson eventually learned of the penciled changes. As a result, rumor and innuendo with regard to the changes coursed through the community. During this period, Ms. Jones confronted Deborah LeBlanc, the Town Clerk, and accused her of being insubordinate and stated that, "Your memory doesn't have to be so good." This indicates that Ms. Jones was aware that she should not have made the marks on the map. On April 14, 2000, Ms. Jones asked Mr. Keeth to remove her pencil marks and asked that the zoning for the Minshew Road property remain as it was before the "replacing a map" process was initiated. As late as the July 11, 2000, Town Council meeting, the Minshew Road change was still displayed on the draft. By late June or early July 2000, citizens were vigorously complaining to the Town Clerk and others about the Jones and Bennett changes. The issue became one of wide-spread interest in Pierson. In early July, Mr. Keeth concluded that the matter was getting out of hand. On July 10, 2000, in a memorandum to the Town Council, he noted that there was a perception that the map was being amended without full disclosure and review. Amendments were made on the draft maps as the result of other citizens making suggestions to Mr. Keeth. These amendments affected the Community Christian Assembly, Lois Taylor, Wilsey Bennett, and Shane Crosby. These suggestions were discussed at the July 11, 2000, Town Council meeting. In the case of Wilsey Bennett the changes were made to conform to an existing use. In the case of the Community Christian Assembly, the property was subject to a special exception. Neither the Town Council, nor the unhappy and vocal citizens present at the council meeting of July 11, 2002, indicated that there was any question about the propriety of these changes. There is no evidence in the record as to the circumstances of the amendments in the case of Taylor or Crosby. It cannot be determined if these amendments resulted in substantial changes or whether they were made to reflect existing uses or to indicate prior changes which should have been previously placed on the "official zoning map." By whatever process used, the changes were not made by merely penciling in the change and neither the Town Council, nor the unhappy and vocal citizens attending the council meeting of July 11, 2002, indicated that there was any question about the propriety of these changes. At a Town Council meeting on July 13, 2000, it was decided that Mr. Keeth would work with the Town Clerk to prepare another zoning map which represented the current state of zoning. This was to be done by looking at town records and the "official zoning map," without reference to the pencil marks entered with regard to Ms. Jones' or Mr. Bennett's property, and without reference to any other suggestions for change. At a Town Council meeting on September 12, 2000, it was affirmatively decided that the digitalized zoning map would be accepted which reflected only changes supported by properly prepared ordinances. A final draft was approved by Ordinance Number 00-03.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order and public report be entered finding that Respondent, Bonnie A. Jones, violated Subsection 112.313(6) Florida Statutes. It is further recommended that the Commission recommend that she receive a reprimand. DONE AND ENTERED this 7th day of January, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2003. COPIES FURNISHED: Basyle J. Tchividjian, Esquire 145 East Rich Avenue DeLand, Florida 32720 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue The main issue in this case is whether the Town of Marineland's Comprehensive Plan Amendments adopted by Ordinance 2005-1 on August 18, 2005,1 are "in compliance," as defined by Section 163.3194(1)(b), Florida Statutes (2005).2 Another issue is whether Petitioners have standing.3
Findings Of Fact Background The Town of Marineland is unique. Its history is not only interesting but helpful to an understanding of why the Plan Amendments may or may not be "in compliance," and also why Petitioners may or may not have standing. Marineland originated as the Marine Studios, which was created so that oceanic life would exhibit natural behavior that could be filmed for feature Hollywood films. The Marineland Attraction (Attraction) followed, and the new word "Oceanarium" was coined. The Attraction was the first marine theme park and served as the model for those that followed. The Town of Marineland was created in 1940 essentially to provide support services for the Attraction. Eventually, the Attraction's founding members died, and the property was sold to a group of St. Augustine investors, with the new entity being called Marineland, Inc. The investors looked at the property as a real estate investment, and the 1992/2005 Plan reflects this vision, calling for a community of 1500 persons and 600 dwelling units. The Town and the Attraction remained interdependent, with the Attraction being the entity that generated revenue and provided for most of the financial needs of the Town. As the face of Florida tourism changed during the 1970's and 1980's, fewer and fewer people came to Marineland, opting instead for the high profile attractions in the Orlando area. Rather than being a profit center for the investors that allowed them leisure to develop the rest of the land at their convenience, the Attraction became a money sink and required the investors to put money in each year to keep the facility going. This was an untenable situation in the long run and ultimately Marineland, Inc., sold its holdings to Marineland Ocean Resort (MOR), which split off another entity, the Marineland Foundation, to manage the Attraction. The Marineland Foundation operated under the umbrella of the Town of Marineland and not specifically as part of MOR. As this was happening, the Town of Marineland found itself having to be self-sufficient for the first time in 55 years. It needed to assume all the trappings of a municipal government and deal with matters that had previously been handled in whole or part by Marineland, Inc. During all these changes various attorneys examined different aspects of the Town's operation and found certain deficiencies. The most serious for land use planning was that the Town had not followed through after adoption of the 1992/2005 Plan and adopted any sort of land development regulations (LDRs). Simultaneously, MOR was considering how to develop the land it had bought. Its model was timeshares, and it considered turning the two oceanfront hotels into timeshare units, building an additional oceanfront timeshare hotel, selling timeshare campground slots, selling timeshare marine slips, and building timeshare units along the riverfront in the maritime hammock. Since the town had no LDRs, MOR would have had a free hand to build anything it pleased. To remedy this deficiency as quickly as possible the Town passed: Ordinance 97-1, which adopted the Flagler County development code provisions for signage, storm water and drainage, wetlands, tree protection, road construction and coastal construction; Ordinance 97-2 to adopt various standard codes relating to amusement devices, buildings, fire prevention, gas, grading, housing, mechanical, plumbing and swimming pools; and Ordinance 97-3 establishing zoning districts and providing for zoning regulations. Ordinance 97- 3 allowed for medium-density housing at four units per acre in the disturbed and cleared areas and at two units per acre in the the partially-disturbed maritime hammock. The intention was to prevent the rest of the maritime hammock, a rapidly disappearing environment throughout Florida and an environment of special concern, from being cleared for river-view timeshare units along the Intracoastal Waterway (ICW). The Town wished to balance the need to preserve important lands with the need to rebuild the town and regain lost population. It was not clear from the evidence how many units of residential development would be allowed under Ordinance 97-3, but it would be less that under the 1992/2005 Plan or under the Plan Amendments. Shortly after these ordinances were passed, MOR, which had been struggling financially and unable to realize any of its development plans, filed for bankruptcy and sale of their holdings. Its attorneys expressed great concern about the effect of the town ordinances on the pending bankruptcy and sale, and pointed out that when MOR filed, the court froze the status quo, preventing the Town from amending the 1992/2005 Plan's future land use map (FLUM) to reflect Ordinance 97-3. The Trust for Public Land (TPL) was successful in purchasing the MOR holdings from the bankruptcy proceedings. The result was a substantial reshaping of the land ownership within the Town. Approximately 90 acres of the most vulnerable lands were purchased from TPL with grant money from Florida Communities Trust (FCT)and set aside for conservation. The University of Florida's Whitney Marine Lab purchased additional land to double its holdings, and Jacoby Development, Inc. purchased about 40 acres of the disturbed lands for development. Concurrent with these activities, DCA awarded two planning grants to the Town under the Remarkable Coastal Place Program. The purpose of the grants was to enable the Town to take advantage of state experts in various aspects of community planning who could help the Town reorganize itself, recover its lost population, and rebuild itself from the ground up. It became apparent during this work that the Town would need a new comprehensive plan, not simply an update to the existing plan, in order to reflect the different structure of land ownership and to support the vision that the stakeholders had created during the planning process of a sustainable community that would be a center of science, education, recreation, and ecotourism. This was begun while state expertise was still available to the town, and once again incorporation of Ordinances 97-1, 97-2, and 97-3 into the existing comprehensive plan and FLUM was put on the back burner, since a new set of LDRs would have to be written to support the new comprehensive plan work in progress. Existing Uses The Town's existing land uses are distributed into two major categories: those found within and those found outside the River-to-Sea Preserve. The Preserve Approximately 89 acres of the total 151+ acres of the Town is off-limits to development through protection in the River-to-Sea Preserve. The River-to-Sea Preserve is undeveloped and vegetated with maritime hammock, coastal strand, beaches, dunes, and approximately eight acres of salt marsh within the Town's boundaries. The land has experienced significant disturbance in some areas. However, the majority of the site consists of native forested and non-forested vegetative communities. Lands covered with coastal scrub growth dominated by saw palmetto are located along the barrier dunes and to some extent to the west along the southern border of the Town but mostly seaward of the Coastal Construction Control Line regulated by Florida Department of Environmental Protection. This is a rapidly-disappearing community, and some sites harbor numerous endangered species. For that reason, it is one of three which has been designated by the Florida Fish and Wildlife Conservation Commission (FFWCC) as a "Rare and Unique Upland Community" within Florida. Development to the south of the Town has left these scrublands as an isolated remnant of the former community. The Preserve protects approximately seven acres of the coastal scrub community located in the Town. The Preserve protects three-fourths (32.6 acres) of the coastal hammock community located in the Town. The coastal hammock community also has been designated as a "Rare and Unique Upland Community" by the FFWCC. This community provides valuable cover and feeding areas for migratory songbirds in fall and spring as they migrate down the Atlantic Coast. Running the length of the Town along the Atlantic Ocean are 8.9 acres of beach area, an area of unconsolidated material that extends landward from the mean low water line to the primary dune system. The north and south ends of the beach are in the Preserve. Outside the Preserve Development in the Town, outside the Preserve, includes the existing Oceanarium facilities, the Whitney Lab, and the presently closed marina facility. Approximately 2.2 acres in the northeastern portion of the Town between A1A and the Atlantic Ocean contain the two original Oceanarium tanks of Marineland and has been included in The National Register of Historic Places. The Marine Park of Flagler has purchased the MOR property and intends to revitalize these areas. The Whitney Lab consists of the Whitney Laboratory for Marine Bioscience and the Marine Education Building, all operated by the University of Florida. These facilities occupy approximately 10 acres and are used for educational and research purposes. The Whitney Lab has broken ground on a new Center for Marine Studies and has plans for a Center for Marine Animal Health. The marina facility is located in the northwestern part of the Town adjacent to the ICW. It is 3.4 acres in size. The marina has been closed due to the deteriorating facilities. There is a plan to redevelop the Marina as a "Clean Marina." A smaller (0.74 acre) parcel is located adjacent to the Preserve on the west side of A1A and is the location of the Guana Tolomato Matanzas National Estuarine Research Reserve (GTMNERR) Administrative Offices, classroom, lab, and research facilities. Besides the beach, undeveloped urban lands outside the Preserve consist primarily of an approximately 47-acre, privately-owned parcel located in the center of the Town west of A1A. It is surrounded on three sides by already-developed areas within the Town. It includes approximately 10.3 acres of the Temperate Hardwood Hammock. Adjacent Lands The Flagler County/St. Johns County line passes through the northern tip of the Town so that the Town is primarily located in Flagler County. Flagler County is a fast-growing county having five incorporated municipalities. Land to the north of the Town, located in St. Johns County, consists of undeveloped coastal scrub and dune, saltwater marshes, and single-family houses along the barrier dune and in the vicinity of Summer Haven, a small unincorporated community located on the south side of the Matanzas Inlet. To the south, in Flagler County, there are large areas of coastal scrub and temperate hammock. A residential development called Matanzas Shores is being constructed. This development was permitted by Flagler County after Development of Regional Impact (DRI) review by the RPC. Immediately to the south of this development is the Washington Oaks Gardens State Park. To the west of the Town are saltwater marshes associated with Pellicer Creek, which is designated an Outstanding Florida Water (OFW), and the Matanzas River, which is part of the ICW. Pine flatwoods and temperate hammock are on the mainland shore. The Princes Place Preserve, Faver Dykes State Park, and St. Johns River Water Management District lands along Pellicer Creek serve as a 19,000-acre buffer between the ICW and the U.S. 1/I-95 corridor to the west. Two islands located in the Matanzas River estuary have been purchased through the FCT program and are owned by the Town. The southern island is located directly across from the Marineland marina on the west bank of the ICW and on the Flagler/St. Johns County boundary. The north island is on the west side of the ICW just south of the Matanzas Inlet in St. Johns County. The Florida Park Service will manage the islands. Although owned by the Town, these islands have not been annexed into the Town boundaries. It is the intent of the Town to annex these islands and incorporate them into long-term research, education and protection. Density8 On several fronts, Petitioners take issue with the density of development allowed by the Plan Amendments. They point to the designation of the Coastal High Hazard Area (CHHA), as well as data and analysis concerning erosion, topography (ground elevations), hurricane frequency and severity (or intensity), hurricane evacuation and shelter concerns, and effects on the sensitive environment of the Town and vicinity. CHHA In accordance with the law at the time, the Town's 1992/2005 Plan designated the CHHA to be seaward of the Town's coastal dune. In compliance with Rule 9J-5.012(3)(b)6., which required (and still requires) coastal management elements of plans to contain one or more specific objectives which "[d]irect population concentrations away from known or predicted coastal high-hazard areas," the Town's 1992/2005 Plan included Coastal/Conservation Element (C/CE) Objective E.1.6, which provided: Marineland shall direct population concentrations away from known or predicted high-hazard areas and shall ensure that building and development activities outside high-hazard areas are carried out in a manner which minimizes the danger to life and property from hurricanes. Development within Coastal High-Hazard Areas shall be restricted and public funding for facilities with[in] Coastal High-Hazard Areas shall be curtailed. Marineland shall provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding. In addition, the Town's 1992/2005 Plan did not allow residential (or any other) development in the designated CHHA. In 1993 the Florida Legislature amended the definition of the CHHA mean the Category 1 hurricane evacuation zone. See Section 163.3178(2)(h), Fla. Stat. See also Rule 9J-5.003(17) (defining the CHHA to mean the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study). Rule 9J-5.002(8) requires a local government to "address" rule changes in the next cycle of amendments. Since the entire Town is in the evacuation zone for a Category 1 hurricane as established in the applicable regional hurricane study, the Plan Amendments designate the entire Town as the CHHA. The Plan Amendments allow residential development west of the ocean dune in what is now the CHHA. The Plan Amendments also replace Objective E.1.6 with a new C/CE Objective E.1.6, Hazard Mitigation, which requires the Town to "ensure that building and development activities areas [sic] are carried out in a manner which minimizes the danger to life and property" and "provide a timely review of the hazard mitigation and evacuation implications of applications for rezoning, zoning variances or subdivision approvals for all new development in areas subject to coastal flooding." A series of policies follow the new objective. The question under these circumstances is whether the Plan Amendments adequately address the change in CHHA definition and comply with Rule 9J-5.012(3)(b)6. As the following findings explain, it is found that they do. Petitioners contend that they do not and that the Town was required to keep the 1992/2005 C/CE Objective E.1.6, which arguably would prohibit any residential development in the Town. This also would be the result if Rule 9J- 5.012(3)(b)6. were construed to require the Town to direct all population away from the CHHA. At least some Petitioners candidly would prefer that result, and Petitioners make a seemingly half-hearted initial argument that allowing any residential development in the Town (i.e., in the CHHA) would be inappropriate and not "in compliance." But it is clear that such a result is not mandated by the statute or rules. To the contrary, DCA interprets the statutes and rules as not even requiring a re-evaluation or "down-planning" of land uses (in particular, a reduction in residential densities) allowed under an existing comprehensive plan when a local government "addresses" the change in definition of the CHHA by increasing its size. DCA has not required such a re- evaluation anywhere in the State. Rather, DCA interprets the statutes and rules to prohibit the local government from increasing density in the CHHA above the density authorized by its existing comprehensive plan. In this case, the Town not only has designated the new CHHA but also has conducted a re-evaluation and revised its comprehensive plan. Under the rather unusual circumstances here, where the CHHA covers the entire Town, changing residential densities in various parts of the Town is not significant in determining whether population concentrations are directed away from the CHHA. Rather, what is important is the total residential development allowed in the Town as a whole. The Town contends, along with DCA and Centex, that the Plan Amendments reduce residential density in the Town. Petitioners, on the other hand, contend first of all that the density allowed by the Plan Amendments cannot be compared to the 1992/2005 Plan because the existing plan did not establish residential density standards, as required by Section 163.3177(6)(a), Florida Statutes ("[e]ach future land use category must be defined in terms of uses included, and must include standards to be followed in the control and distribution of population densities"). Instead, Petitioners contend that the 1992/2005 Plan was written in terms of "vague and standardless" design criteria and a policy direction for the Town to adopt LDRs consistent with the design criteria. Primarily for that reason, Petitioners contended that the density allowed by the Plan Amendments had to be compared to the residential density established by Ordinance 97-3 to determine whether the Plan Amendments increased residential density. Regardless of the way it was written, the 1992/2005 Plan was found to be "in compliance." In addition, while the policies in the Future Land Use Element (FLUE) of the 1992/2005 Plan were written in terms of average gross acre lot sizes, maximum lot coverage, and maximum floor area ratios characteristic of design criteria, it is nonetheless possible to calculate (albeit not without difficulty and with room for minor differences in results depending on the approach taken and assumptions made) the residential density allowed under the 1992/2005 Plan. The adopted FLUM depicted the various residential land use categories, as required by Section 163.3177(6)(a)("[t]he proposed distribution, location, and extent of the various categories of land use shall be shown on a land use map or map series"), and a summary of the total allowable residential land uses was included in data and analysis that accompanied the 1992/2005 Plan,9 making it possible to calculate residential density. Contrary to Petitioners' argument, it is not necessary to use Ordinance 97-3 to determine the residential density allowed under the 1992/2005 Plan, and there is no other plausible reason, or any precedent, for using land development regulations in that manner. As represented in the data and analysis summary for purposes of calculating the land requirements for housing, the 1992/2005 Plan allowed a maximum of 427 residential dwelling units on 37.7 acres, including apartments above retail uses, which are not depicted on the FLUM but are allowed under Housing Element (HE) Policy C.1.1.2 to provide affordable housing. This maximum of 427 assumed 98 apartments above retail uses although more arguably would be allowed under the 1992/2005 Plan. In addition, the 1992/2005 Plan's HE Policy C.1.1.1 allowed "out-buildings" as "ancillary structures to the rear of lots containing single family dwellings." Like the apartments over retail, these dwelling units are not depicted on the FLUM but are allowed as of right and theoretically could result in 176 additional dwelling units on a total of 37.6 acres. To arrive at the residential density allowed under the 1992/2005 Plan, DCA's expert added 12 of the approximately 12-20 dwelling units not shown in the summary but mentioned in the data and analysis of the 1992/2005 Plan as being either existing or allowed on the Whitney Lab's 5.4 acres, bringing the total theoretical maximum under the 1992/2005 Plan to 615 residential units on 43 of the Town's 151 acres, at various densities ranging from 2.2 units per acre at the Whitney Lab to 28.8 units per acre for apartments above retail uses, for an average residential density of 14.3 units per acre.10 Centex's expert took a different tack. First, for the apartments over retail uses, he assumed two units per retail use, for a total of 198 units (while also pointing out that there was no cap on these units in the 1992/2005 Plan). Second, he did not include any units for the Whitney Lab because they were not grounded in Plan policies. Using this approach, he arrived at a total of 704 residential units allowed under the 1992/2005 Plan. While he maintained the validity of that calculation, he pointed out that eliminating the units (both residential units and associated "out- buildings") allowed on land now included in the River-to-Sea Preserve would lower the total to 611 units. The Town's expert did not count apartments above retail uses or the units at the Whitney Lab and arrived at a total of approximately 421-425 dwelling units allowed under the 1992/2005 Plan. When he eliminated the units (residential units with associated "out-buildings") allowed on land now included in the River-to-Sea Preserve, he decreased his total to 275 units. The reason for the differences in his calculation was not clear from the record. Turning to the Plan Amendments, although more typical residential density standards are used, the experts still disagree on exactly what residential density the Plan Amendments allow and achieve. Most development under the Plan Amendments will occur in the Sustainable Mixed Use (SMU) future land use category, which allows a maximum of 241 residential units, a maximum of 50,000 square feet of commercial uses, and accessory residential units for affordable housing. Centex's expert determined that, under the Plan Amendments, the maximum theoretical number of dwelling units that could be developed in the Town, including the SMU category, is 565 units. It is not reasonable to conclude that 565 dwelling units would actually be developed, because this number includes 241 affordable accessory units, one for each residential unit. However, the Town concluded there is only a need for 39 such units. Centex's expert found that 13 of the 39 affordable housing units needed in the Town will be provided in FLUM categories other than SMU--namely, Institution Research (the Whitney Lab) and Conservation. It is more reasonable to expect that only the remaining 26 accessory units needed to address affordable housing will be developed in the SMU category to meet the 39-unit affordable housing need, instead of 241, and that 350 units actually will be built under the Plan Amendments. In his analysis, DCA's expert did not count any affordable housing units in the SMU category in reaching the conclusion that a 315 residential units are allowed under the Plan Amendments. Adding the theoretical maximum of 241, his total maximum theoretical number of residential units would be 553. The record is not clear as to why his numbers differ somewhat from the Centex expert's. The Town's expert somehow arrived at the conclusion that the Plan Amendments allow a total of 279 residential units. Like the DCA expert, he apparently did not count affordable housing units in the SMU category. The reason for other differences in his calculation are not clear from the record. It may be that he did not count residential units in the Tourist/Commercial category, while the others counted 35 units because there is a possibility that 35 condominium units could be developed there instead of 70 hotel rooms. Differences may also involve how he assessed and counted the possibility for residential units in the Institutional Research and Conservation categories. Despite these computational differences, it is clear that the Plan Amendments allow fewer residential units in the Town than the 1992/2005 Plan did, even assuming no residential development under the 1992/2005 Plan in what became the River- to-Sea Preserve. The density allowed under the Plan Amendments is comparable to densities authorized by comprehensive plans north and south of the Town, as well as the actual development that has occurred and is occurring in those areas. Since the entire Town is within the new CHHA, the Plan Amendments can be said to result in a reduction in population concentration within the CHHA by comparison to the 1992/2005 Plan. This also is reflected in the population projections on which the two plans were based. The 1992/2005 Plan was based on a projected total 2005 population of 1,551 people, including 900 permanent and 651 seasonal. The Plan Amendments are based on a projected 2015 population of 630, including 386 permanent residents and 244 seasonal residents and university students living in dormitories at the Whitney Lab. While reluctantly conceding that some residential growth in the Town (i.e., in the CHHA) is appropriate, Petitioners contend that growth must be limited to what is allowed under Ordinance 97-3 because any more growth than that would increase residential density in the CHHA. They argue that Ordinance 97-3 should be the benchmark because the 1992/2005 Plan did not establish residential density but instead relied on Ordinance 97-3 to do so. However, as reflected above, this argument was not supported by the evidence. Under the unusual circumstances of this case, while the Plan Amendments do not include an objective that parrots the words in Rule 9J-5.012(3)(b)6.--"[d]irect population concentrations away from known or predicted coastal high- hazard areas"--they do have goals, objectives, and policies which do so, as well adequately address the new CHHA definition. Data and Analysis Under the proposed findings in the section of their PRO entitled "Data and Analysis," Petitioners argue that there was a: "Failure to prove need for proposed density." The basis for the argument appears to be that: "[n]o professional methodology was utilized"; that the Town's population estimate was based on the "desires of the stakeholders," i.e., the "property owner investors"; and that the "desire of the stakeholders was for 'approximately 241 dwelling units,' not the at least 565 dwelling units authorized by the Amendments." Petitioners' PRO, at ¶61. But Petitioners did not prove that no professional methodology was used or that the population estimate was based solely on the "desires of the stakeholders." In addition, while the Plan Amendments state that the visioning effort undertaken by the Town for developing the Town's Master Plan under Florida's Remarkable Coastal Place program identified "approximately 241 dwelling units . . . as a target for meeting the permanent residential population of the Town," it also stated that "approximately 315 dwelling units were identified as a target for meeting the sustainability goal of the Town." Joint Exhibit 2, pp. A-14, C-11. Finally, there is no requirement that data and analysis "prove need for proposed density," but only that they support allocations of land for various uses. See § 163.3177(6)(a), Fla. Stat. ("future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth"). Accommodating need for affordable housing on the same land allocated for other residential and commercial development does not run afoul of this data and analysis requirement. See Fla. Admin. Code R. 9J-5.006(2)(c). No witness for Petitioners opined that the population projection for the Plan Amendments was not supported by data and analysis. To the contrary, several witnesses for the other parties opined that the data and analyses supporting the Plan Amendments were surprisingly comprehensive for a local government the size of the Town and were more than adequate. Land Use Suitability Petitioners' PRO contends: "The data and analysis concerning Town erosion, the low elevation of the Town, increased hurricane frequency and severity, inadequacy of hurricane evacuation time and shelter capacity, the adverse impacts of the land use designations on shellfish beds, estuarine nursery areas, the Tropical Hardwood Hammock, the designation of domestic waste water treatment and discharge facilities in the River to Sea Preserve, and water pollution resulting from foreseeable flooding establishes that the density of the Amendments is unsuitable for the Town land." Petitioners' PRO, ¶63. Erosion and Elevation It is clear that the Town of Marineland, due to its location and low elevation (generally 5-6 feet NGVD west of A1A), has been, is, and will continue to be vulnerable to beach erosion and flood damage from a major hurricane. Several hundred years ago, there was a navigable tidal pass north of the Town. The pass closed naturally through sand and sediment accretion but in recent years the area has been suffering significant erosion, resulting in State Road A1A having to be rerouted and access to homes along the old A1A being severely limited. In 1999, when Hurricane Floyd was 100-150 miles east of the Town in the Atlantic Ocean, significant erosion occurred within the Town, including the waters and sand of the Atlantic Ocean overtopping A1A in the north end of the Town, along with flooding the Town. As a result, the Town was a declared a disaster zone, and FEMA awarded two separate redevelopment grants. The Town's shoreline has been critically eroded, but is stable at this time. Notwithstanding these characteristics of the Town, which contribute to its designation as a CHHA, and as previously discussed, the evidence is clear that the Town is not considered unsuitable for development. To the contrary, the development allowed by the Plan Amendments is considered acceptable. Petitioners also cite evidence that sea level is expected by some to rise approximately 20 inches in the next 100 years. But no qualified witness opined that, for planning purposes, the Town should be considered unsuitable for development for that reason. Hurricane Frequency and Intensity Petitioners also contend that the Town is unsuitable for development in light of data and analysis concerning hurricane frequency and intensity. Indeed, there is persuasive evidence that hurricane frequency and intensity is cyclical and that in about 1995 a period of heightened hurricane frequency and intensity that usually lasts 10-20 years probably began. The evidence was clear that DCA does not consider the frequency and intensity of hurricanes to be relevant data and analysis in evaluating whether comprehensive plan development density and intensity are "in compliance." Rather, this is considered to be a matter to be addressed by the Legislature. So far, there has been no legislation to either further enlarge the CHHA or further restrict development in the CHHA.11 Hurricane Evacuation and Shelter Study Petitioners allege that the Town did not undertake adequate hurricane evacuation planning in connection with the Plan Amendments. Specifically, their PRO cites Section 163.3178(2)(d), Florida Statutes, which requires a comprehensive plan's coastal management element to include: "A component which outlines principles for hazard mitigation and protection of human life against the effects of natural disaster, including population evacuation, which take into consideration the capability to safely evacuate the density of coastal population proposed in the future land use plan element in the event of an impending natural disaster." They also cite Rule 9J-5.012(2), which addresses the requirement that the coastal element be based on the following data and analysis, among others: (e) The following natural disaster planning concerns shall be inventoried or analyzed: 1. Hurricane evacuation planning based on the hurricane evacuation plan contained in the local peacetime emergency plan shall be analyzed and shall consider the hurricane vulnerability zone, the number of persons requiring evacuation, the number of persons requiring public hurricane shelter, the number of hurricane shelter spaces available, evacuation routes, transportation and hazard constraints on the evacuation routes, and evacuation times. The projected impact of the anticipated population density proposed in the future land use element and any special needs of the elderly, handicapped, hospitalized, or other special needs of the existing and anticipated populations on the above items shall be estimated. The analysis shall also consider measures that the local government could adopt to maintain or reduce hurricane evacuation times. They point out that Rule 9J-5.003(57) defines Hurricane Vulnerability Zone (HVZ) as "the areas delineated by the regional or local hurricane evacuation plan as requiring evacuation" and that it also requires the HVZ to "include areas requiring evacuation in the event of a 100-year storm or Category 3 storm event." Finally, they cite Rule 9J- 5.012(3)(b)7., which requires one or more specific Coastal Element objectives which: “Maintain or reduce hurricane evacuation times.” The evidence was that these planning requirements were met. There are no mandatory state, regional, or local evacuation clearance times. The 1992/2005 Plan included C/CE Objective E.1.5., which provided: "The time period required to complete the evacuation of people from flooding of vulnerable coastal areas prior to the arrival of sustained gale force winds shall be maintained at less than 12 hours." The Plan Amendments replaced that objective with C/CE E.1.5., which now provides: "Evacuation clearance time should be maintained or reduced to less than 12 hours." This complies with Rule 9J-5.012(3)(b)7. The Plan Amendments were based on appropriate data and analysis. Because the entire Town is in the CHHA, the Town population must evacuate in a Category 1 and all higher storm categories. Evacuation routes for the Town are S.R. A1A north to S.R. 206 in St. Johns County, and S.R. A1A south to Palm Coast Parkway in Flagler County. The best and most current evidence, based on a 2005 update to the RPC's 1998 Regional Hurricane Evacuation Study, indicates that evacuation clearance times for St. Johns County are estimated to be 11 hours for Category 1 hurricanes, 14 for Category 2 hurricanes, 16 hours for Category 3 hurricanes, and 16.75 hours for Category 4 through 5 hurricanes; evacuation clearance times for Flagler County are estimated to be 7.75 hours for Category 1 and 2 hurricanes and 12 hours for Category 3 through 5 hurricanes. The Flagler clearance times are lower than those estimated in a 1998 version of the study, even though based on a higher population, primarily because the widening of the Palm Coast Parkway to four-lanes has been completed. The evidence does not demonstrate that the evacuation clearance times in St. Johns County increased under the 2005 Study. Clearance times are based on the worst bottleneck in a county, where traffic is metered to derive the actual clearance times. Evacuation of Town residents under the Plan Amendments will not impact the bottlenecks in either St. Johns County or Flagler County. For that reason, evacuation of Town population would be expected to be take less time than the clearance times calculated for those counties in the RPC's 2005 study; conversely, evacuation of Town residents under the Plan Amendments will have no effect on the overall clearance times in either St. Johns County or Flagler County. Assuming a maximum additional population (resulting from the addition of 829 dwelling units) under the Plan Amendments, 652 cars would be added to an evacuation during high tourist occupancy season (which includes the summer tourist season, which generally corresponds to hurricane season). This would increase traffic during the worst theoretical hour of the Town's evacuation (i.e., during which 30 percent of the Town's traffic would try to enter the evacuation road network) by 8.7 percent heading north from the Town on A1A and by 13 percent heading south of the Town on A1A. Based on a comparison of maximum theoretical densities under the 1992/2005 Plan and under the Plan Amendments, the number of evacuating vehicles added to the road network is reduced under the Plan Amendments. By comparison, assuming a maximum additional population (resulting from the addition of 565 dwelling units) under the 1992/2005 Plan, 922 cars would be added to an evacuation during high tourist occupancy season. This would increase traffic during the worst theoretical hour of the Town's evacuation by 12.3 percent heading north from the Town on A1A and by 18.4 percent heading south of the Town on A1A. Likewise, based on a comparison of maximum densities under the 1992/2005 Plan and the Plan Amendments, the Plan Amendments result in a reduced demand for shelter space. Obviously, since the entire Town is in the CHHA and must evacuate in a Category 1 and all higher storm categories, there is no requirement for the Town itself to provide hurricane shelter. Similar to most Florida counties, St. Johns and Flagler Counties have deficits in shelter space that are expected to increase as the population increases. According to DCA's Division of Emergency Management (DEM), in 2004 Flagler County had hurricane shelter spaces for 4,267 persons and a deficiency of 2,401 shelter spaces. This deficiency is expected to almost double (be 4,020) by 2008. According to DCA's DEM, in 2004 St. Johns County had hurricane shelter capacity for 7,320 persons, and a hurricane shelter demand of 9,829 people, resulting in a deficiency of 2,509 spaces. In 2009, the St. Johns County shelter demand is projected to be 11,564, “leaving an anticipated shelter deficit of 4,244.” However, the evidence was not clear that the shelters to which Town residents would be assigned are either over capacity or under capacity. In addition, it was not clear that future development would not include the construction of facilities that may serve as shelters. Finally, there was no clear evidence why these anticipated shelter deficits should restrict development in either county, or in the Town, so as to make the Plan Amendments not "in compliance." Natural Resources Petitioners contend that the Plan Amendments are not "in compliance" because of effects on various natural resources in the Town and vicinity, including shellfish harvesting areas, important estuarine nursery for juvenile fish and invertebrates, and the Town's high-quality oak hammock area (also referred to as a maritime hammock, a coastal temperate hammock, or a tropical hardwood hammock.) Petitioners' main argument regarding adverse effects on shellfish harvesting and nursery areas was that flooding during hurricane events will cause household chemicals and other pollutants stored inappropriately at ground level to be released into the environment, probably at a time when juvenile fish are present in the estuarine nursery areas. But there also was persuasive evidence that chemicals released during these kinds of flood events would be substantially diluted by the massive volume of water associated with them, which would greatly reduces any deleterious effects on nursery and shellfish areas. Through C/CE Policies E.1.3.4 and E.1.3.5 in the Plan Amendments, the Town has chosen to impose OFW standards that substantially exceed those that would otherwise be imposed by the St. Johns River Water Management District. OFW standards prohibit degradation of water below ambient conditions and typically require the design of stormwater systems that provide 1.5 times the level of treatment that otherwise would be provided for stormwater. There was evidence that shellfish harvesting has declined in the waters of the GTMNEER to the north of the Town over the recent past as the land near these waters has been developed. The evidence was not comprehensive as to the reason(s) for the decline, but poorer water quality generally is thought to be the primary cause. Some shellfish harvesting areas still are productive, including some near the Town where Mr. Cubbedge has an oyster and clam lease. Petitioners presented no testimony related to the temperate hardwood hammock. Centex's expert in environmental analysis observed that portions of the hammock areas have been altered or disturbed and that the higher-quality areas have been placed in the River-to-Sea Preserve where they are protected from development. Much of the natural vegetative communities in the Town are within the Conservation future land use category and not subject to development. To protect 10.3 acres of oak hammock located on land that is subject to development, the Plan Amendments impose a Maritime Hammock Overlay. In addition to otherwise applicable density and intensity standards, development within the Overlay is subject to numerous restrictions on adverse impacts on natural vegetation. Amendment FLUE Policies A.1.8.3. and A.1.8.4. allow only 50 percent of single-family and multi- family parcels to be cleared of trees, understory, and groundcover, and only 25 percent of the tree canopy to be removed. Petitioners also argue that the designation of the "Public Facilities" future land use category in the River-to- Sea Preserve in Amendment Policy A.1.4.2 is unsupported by data and analysis and "fairs [sic] to show the extend [sic] of the category as required by Section 163.3177(6)(a), Fla. Stat., and it does not estimate the gross acreage of the category as required by Rule 9J-5.006(2)(c)." Actually, the statute cited requires the FLUE to designate the "extent of the uses of land," and the rule requires an "analysis of the amount of land needed to accommodate the projected population, including: . . . 2. The estimated gross acreage needed by category . . . ." There was no testimony or other adequate evidence to support these arguments, and it was not proven that the Plan Amendments are not "in compliance" for any of these reasons. Conclusion It was not proven that data and analysis concerning the above matters establish that the density of the Plan Amendments is unsuitable for the Town land. Meaningful and Predictable Standards Similar to the Amended Petition and Petitioners' Statement of Position in the Prehearing Stipulation, Petitioners' PRO lists numerous objectives and policies in the Plan Amendments and contends that they are not "in compliance" because they do not provide meaningful and predictable standards. One expert called by Petitioners (Ms. Owen) testified in general that the Plan Amendments contain objectives and policies "which do not contain meaningful and predictable standards" or "that are not measurable or provide any standards or specificity." (T. 359). She also initially testified that the Plan Amendments (at her request) incorporated into data and analysis OFW water quality standards for discharges into the ICW but that "their goals, objectives and policies, as drafted, do not provide specific enough standards to be able to measure that"; later, she conceded that C/CE Policy E.3.5 incorporated OFW water quality standards. Another expert for Petitioners (Mr. Johnson) testified, "I think there's not enough detail in these policies and standards by which somebody could measurably allow growth to occur and measurably predict that it's not going to have an effect, a negative effect, on the environment." Otherwise, Petitioners put on no expert testimony to explain why the objectives and policies in the Plan Amendments do not provide meaningful or predictable standards, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." Another expert for Centex (Dr. Dennis) testified specifically that incorporation of the OFW standards in the C/CE and other goals, objectives, and policies were adequate to protect the waters of the ICW and its natural resources and the River-to- Sea Preserve even with the development allowed by the Plan Amendments. Rule 9J-5.005(6) provides in pertinent part: "Goals, objectives and policies shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations. This chapter does not mandate the creation, limitation, or elimination of regulatory authority for other agencies nor does it authorize the adoption or require the repeal of any rules, criteria, or standards of any local, regional, or state agency." Rule 9J-5.003 sets out definitions, including: (52) "Goal" means the long-term end toward which programs or activities are ultimately directed. (82) "Objective" means a specific, measurable, intermediate end that is achievable and marks progress toward a goal. (90) "Policy" means the way in which programs and activities are conducted to achieve an identified goal. Properly understood, these Rules require that an objective's "intermediate end" be specific and measurable in the sense that it can be determined when the "intermediate end" is reached. They do not mean that objectives must eliminate all possibility ambiguity or be amenable to quantitative measurement. They only require that objectives provide "meaningful guidance" and be enforceable in that sense. All of the objectives and policies listed by Petitioners have been reviewed. The evidence does not prove beyond fair debate that any of the listed objectives and policies are inconsistent with the cited Rule provisions, properly understood. Petitioners complain that several of the listed objectives and policies require the adoption of LDRs without including meaningful and predictable standards. In some cases, the objectives and policies themselves provide meaningful and predictable standards. But it is not necessary for comprehensive standards to be included in each such objective or policy. Rather, when required, meaningful and predictable standards to guide the LDR adoption process can be placed elsewhere in the comprehensive plan, as is often the case with the Plan Amendments. (In addition, not all plan directions to adopt LDRs are required by statutory and rule mandatory criteria, and it is possible that all of them may not be required to include meaningful and predictable standards if superfluous.) As they did elsewhere in their PRO, Petitioners contend that FLUE Policy A.1.4.2 does not "state what is the areal extent of the 'Public Facilities' land use category as required by Section 163.3177(6)(a), Fla. Stat. or estimate the gross acreage of the 'Public Facilities' land use category as required by Rule 9J-5.006(2)(c)." They also characterize the alleged failing as a lack of meaningful and predictable standards. But as previously mentioned, the Plan Amendments are not inconsistent with that statute and rule. See Finding 73, supra. Petitioners also argue that a listed objective and several listed policies fail to provide meaningful and predictable standards because they do not contain a percentage distribution of mixed uses.12 Actually, these are two different issues. As already indicated, it was not proven beyond fair debate that the objectives and policies fail to provide meaningful and predictable standards. As for the separate issue of percentage distribution of mixed uses, Rule 9J-5.006(4)(c) provides: Mixed use categories of land use are encouraged. If used, policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density or intensity of each use. (Emphasis added.) Petitioners put on no expert testimony to explain why the objective and policies in the Plan Amendments do not meet the requirements of this Rule, and they put on no expert testimony that the Plan Amendments were not "in compliance" for that reason. Meanwhile, as already mentioned, experts for the Town (Mr. Brown), Centex (Dr. Pennock), and DCA (Dr. Addai-Mensa) testified in general terms that the Plan Amendments were "in compliance." On the evidence presented, it was not proven beyond fair debate that the Plan Amendments do not contain policies with "[an]other objective measurement" of the distribution among the mix of uses in the SMU, General Commercial, and Tourist Commercial land use categories established in FLUE Policy A.1.4.2. H. Petitioners' Other Issues The Amended Petition and Prehearing Stipulation raised other issues that were not included in Petitioners' PRO. Some of these were addressed in the parts of Centex's PRO, which the Town and DCA joined, including financial feasibility, planning timeframes, and deletion of a policy requiring habitats of listed species to be designated Conservation. To the extent that these other issues have not been abandoned by Petitioners, it is found that they were not proven. Petitioners' Standing All of the Petitioners submitted oral or written comments, recommendations, or objections to the Town during the period of time beginning with the transmittal hearing for the Plan Amendments on March 31, 2005, and ending with their adoption on August 18, 2006. None of the Petitioners own property or reside in the Town or own real property abutting real property in the Town. The Hamilton Brothers Brothers George William (Bill) Hamilton, III, and Patrick S. Hamilton live in Crescent Beach, which is four to five miles north of the Town in St. Johns County. Together (along with their wives), they own and operate Homecomers, Inc., which does business as Southern Realty of St. Augustine and Crescent Beach (Southern Realty), and as Southern Horticulture, which is located in Crescent Beach or St. Augustine (the evidence was not clear which). Patrick operates the real estate brokerage, which has offices in St. Augustine and in Crescent Beach, and Bill operates the retail garden and landscaping business. The brothers also own part of Coastal Outdoor Center, which is located in Crescent Beach at S.R. 206 and features kayak tours of the Matanzas River, mostly south to Pellicer Creek. The Hamilton family also has oyster and clam leases in St. Johns County. It appears that the vast majority of the brothers' business activities are conducted in St. Johns County north of the Town. However, over the years, some limited business has been conducted in the Town. In 1993 Patrick Hamilton twice brokered the sale of land from Marineland, Inc., one parcel to an private individual and the other to the Whitney Lab. In 1995 he procured a contract for the sale of Marineland, Inc. (and, with it, essentially the entire Town) for a fish farm operation for approximately $10 million; when the contract was breached, Southern Realty got part of the forfeited $100,000 binder. In 1998 Hamilton was authorized by MOR to sell its holdings in the Town for a ten percent commission. Hamilton was successful in efforts to arrange for it to be purchased by FCT and the Trust for Public Lands (TPL) through the bankruptcy court in Jacksonville, and some of the land was immediately resold at a profit to Mr. Jacoby. When Hamilton pursued payment of Southern Realty's brokerage commission through the bankruptcy court, he learned that TPL had indemnified MOR for the brokerage commission. At that point, Southern agreed to accept an $18,000 fee from TPL and drop its bankruptcy claim for ten percent on the overall purchase. In 2002, Hamilton paid for and prepared grant applications for the Town's purchase of two islands that were outside the Town's municipal boundaries but which the Town intends to annex. In September 2004 he wrote an offer on behalf of a trustee of the Whitney Lab to purchase a small parcel of land TPL still owned in the Town and donate it to the Lab. However, no contract was reached, and Southern Realty received no commission. In 2005 Phil Cubbedge asked Hamilton to represent him in the sale of his oyster and clam lease to Centex but then backed out when Centex proposed to deal directly with Cubbedge without Southern Realty's involvement. Southern Horticulture used to do business with the Marineland Attraction but has not done any business in the Town in nine years, since the Attraction went into receivership and did not pay a Southern Horticulture bill in full. The Town never has required the Hamiltons or their businesses to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 Southern Realty applied and paid for and obtained an occupational license to "engage in the business of real estate." This was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. On several occasions over the years, the Hamilton brothers have engaged in various civic activities pertaining to the Town. Most of these activities have been Patrick's. These have included: participation on the management advisory group for the GTMNERR and efforts in the early to mid-1990s to have its Administrative Office established in the Town; efforts in 2000 or 2001 related to the designation of A1A as a scenic highway in St. Johns County, with a segment being in the Town; subsequent work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County; advocacy related to the St. Johns County Comprehensive Plan; service on the Board of Trustees of the Whitney Lab; and financial contributions to and fund-raising for the Whitney Lab. The brothers do these things out of a sense of civic duty and for the good of the community and their vision for it. However, they also believe these activities provide a benefit for their business, particularly the real estate and outfitting businesses. It is found, based primarily on the activities of Southern Realty, that the Hamilton brothers own or operate a business within the Town. Florida Wildlife Federation FWF is a not-for-profit Florida corporation with approximately 50,000 members and supporters. No FWF members reside or own property in the Town, and FWF does not have an office in the Town. One member (Mr. Cubbedge) has an oyster and clam lease in the Town. Cubbedge, the Hamilton brothers, and Dr. Michael Greenberg, who works and has his office at the Whitney Lab in the Town, are the only members who have a connection to the Town, according to the evidence. In April 2004, FWF established a regional office in St. Johns County outside the Town for the primary purpose of reviewing comprehensive plan amendments, focusing on natural resource protection. FWF monitors growth management and habitat protection during the development stages of the Town, focusing on the draft of the goals, objectives and policies for the comprehensive plan. In furtherance of this effort, FWF’s planning advocate (Ms. Owen) has attended and participated in meetings of the Remarkable Coastal Place work group stakeholder meetings, where they reviewed drafts of comprehensive plan amendments; has talked with elected officials to educate them on FWF (and FOM) concerns; and has attended meetings of and made presentations to the South Anastasia Community Association, a civic organization that holds its meetings in the Town. Through the Post Office and its website, FWF publishes a newsletter with information about FWF’s activities in the state, including fundraising. No evidence was presented that the newsletter is distributed in the Town. FWF’s regional office held a fundraiser in St. Augustine in February 2006 to raise money to pay attorney’s fees and expert witness fees for this proceeding. The Town never has required FWF to obtain and maintain an occupational license, and none was obtained prior to 2004. In 2004 and 2005 FWF applied and paid for and obtained an occupational license "to engage in the business of monitoring growth management and habitat protection." As with Southern Realty, this was done in response to a finding in the Recommended Order in a previous administrative challenge to St. Johns County plan amendments by FWF and FOM that neither had an occupational license in the County. Based on the evidence, it is found that FWF owns or operates a business within the Town. Friends of Matanzas FOM is a not-for-profit Florida corporation established in 2001 to preserve and protect the estuary and its watershed, and to maintain the rural beach community, particularly on South Anastasia Island and in southern St. Johns County to Marineland. FOM has 34-44 members. No FOM members reside in the Town, but at least two of them--its current president, Dr. Greenberg, and Maureen Welsh--work at the Whitney Lab. The Hamilton brothers also are members. FOM itself does not have an office in the Town. However, Dr. Greenberg is its president, and he may keep some FOM records and documents in his office at the Whitney Lab. There was no evidence that FOM ever has had a Town occupational license, or that the Town ever has required it to have one. In part (if not primarily) through the activities of the Hamilton brothers, FOM has been involved in: efforts in the mid-1990s to have the Administrative Office of GTMNERR established in the Town; efforts, including production of a video in 2000 or 2001, related to the designation of A1A in St. Johns County, including within the Town, as a scenic highway; and work to persuade the Florida Department of Transportation to construct a bike path along A1A in St. Johns County, including within the Town. There also was evidence that FOM holds annual meetings in the Town. Based on the evidence, it is found that FOM does not own or operate a business within the Town.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2006.
The Issue The issue to be determined in this case is whether the amendment of the Town of Eatonville Comprehensive Plan adopted through Ordinance 2014-2 (“Plan Amendment”) is “in compliance” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Respondent Town of Eatonville is a municipality in Orange County with a comprehensive plan which it amends from time to time pursuant to chapter 163, Florida Statutes. Intervenor Lake Weston, LLC, is a Florida limited liability company whose sole member is Clayton Investments, Ltd. It owns approximately 49 acres of land along Lake Weston on West Kennedy Boulevard in Eatonville (“the Property”), which is the subject of the Plan Amendment. Petitioners Sharon Leichering, Lori Erlacher, George Perantoni, Valerie Perantoni, and Doreen Maroth own or reside in unincorporated Orange County near Lake Weston. The record does not establish whether Dale Dunn lives or owns property in the area. Petitioner Kingswood Manor Association, Inc., is a non- profit corporation whose members are residents of Kingswood Manor, a residential subdivision near the Property. Petitioner Friends of Lake Weston and Adjacent Canals, Inc., is a non-profit corporation whose objective is to protect these waters. Standing Petitioners Sharon Leichering and George Perantoni submitted comments to the Eatonville Town Council on their own behalves and on behalf of the Kingswood Manor Association and Friends of Lake Weston, respectively, regarding the Plan Amendment. Petitioner Valerie Perantoni is the wife of Petitioner George Perantoni. She did not submit comments regarding the Plan Amendment to the Town Council. Petitioner Dale Dunn did not appear at the final hearing. There is no evidence Mr. Dunn submitted oral or written comments to the Town Council regarding the Plan Amendment. Petitioner Doreen Maroth did not appear at the final hearing for medical reasons. Ms. Maroth submitted oral comments to the Town Council regarding the Plan Amendment. Respondent and Intervenor contend there is no evidence that Lori Erlacher appeared and gave comments to the Town Council, but the Town Clerk testified that Petitioner Leichering was granted an extension of time “to speak for others” and Petitioner Leichering testified that the “others” were Lori Erlacher and Carla McMullen. The Plan Amendment The Property is zoned “Industrial” in the Town’s Land Development Code, but is designated “Commercial” on the Future Land Use Map in the Comprehensive Plan. The Town adopted the Plan Amendment to make the zoning and future land use designations consistent with each other. The Plan Amendment attempts to resolve the inconsistency by designating the Property as the “Lake Weston Subarea” within the Commercial land use category. The designation would appear on the Future Land Use Map and a new policy is made applicable to the Subarea, allowing both industrial and commercial uses: 1.6.10. Lake Weston Subarea Policy. Notwithstanding the provisions of Policy 1.6.9, within the Lake Weston Subarea Policy boundaries as shown on the Future Land Use Map, light industrial uses may be allowed in addition to commercial uses. The specific permitted uses and development standards shall be established by the Lake Weston Overlay District, which shall be adopted as a zoning overlay district in the Land Development Code; however, the wetlands adjacent to Lake Weston within the Lake Weston Subarea Policy boundaries are hereby designated as a Class I Conservation Area pursuant to Section 13-5.3 of the Town of Eatonville Land Development Code and shall be subject to the applicable provisions of Section 13-5 of the Land Development Code. The intent of this subarea policy and related Lake Weston Overlay District is to allow a range of commercial and industrial uses on the subject property with appropriate development standards, protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties. Subject to requirements of this subarea policy and of the Lake Weston Overlay district, the current industrial zoning of the property is hereby deemed consistent with the Commercial Future Land Use designation of the area within the boundaries of this subarea policy. Data and Analysis Petitioners contend the Plan Amendment is not supported by relevant and appropriate data and analysis. Relatively little data and analysis were needed to address the inconsistency between the Land Development Code and the Comprehensive Plan or to address the protection of Lake Weston and adjacent land uses. The need to protect environmental resources, to mitigate negative impacts of development, and to promote compatibility with surrounding land uses was based on general principles of land planning, the report of a planning consultant, as well as public comment from Petitioners and others. A wetland map, survey, and delineation were submitted to the Town. The effect of the Class I Conservation Area designation is described in the Land Development Code. The availability of public infrastructure and services was not questioned by Petitioners. The preponderance of the evidence shows the Plan Amendment is based on relevant and appropriate data and analysis. Meaningful Standards Petitioners contend the Plan Amendment does not establish meaningful and predictable standards for the future use of the Property. It is common for comprehensive plans to assign a general land use category to a parcel, such as Residential, Commercial, or Industrial, and then to list the types of uses allowed in that category. The Plan amendment does not alter the Comprehensive Plan’s current listing of Commercial and Industrial uses. The Plan Amendment designates the wetlands adjacent to Lake Weston as a Class I Conservation Area subject to the provisions of the Eatonville Wetlands Ordinance in the Land Development Code. This designation means the littoral zone of the lake and associated wetlands would be placed under a conservation easement. This is meaningful guidance related to the future use of the Property. The Plan Amendment directs the Land Development Code to be amended to create a Lake Weston Overlay District with the expressed intent to “protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties.” This direction in the Plan Amendment is guidance for the content of more detailed land development and use regulations. Contemporaneous with the adoption of the Plan Amendment, the Eatonville Land Development Code was amended to establish the Lake Weston Overlay District, which has the same boundaries as the Property. The Land Development Code describes in greater detail the allowed uses and development standards applicable to the Property. The preponderance of the evidence shows the Plan Amendment establishes meaningful and predictable standards. Internal Consistency Petitioners contend the Plan Amendment is inconsistent with the relatively recent Wekiva Amendments to the Comprehensive Plan, but Petitioners failed to show how the Plan Amendment is inconsistent with any provision of the Wekiva Amendments. Petitioners contend the Plan Amendment is inconsistent with objectives and policies of the Comprehensive Plan that require development to be compatible with adjacent residential uses. Compatibility is largely a matter of the distribution of land uses within a parcel and measures used to create natural and artificial buffers. These are matters usually addressed when a landowner applies for site development approval. Protection is provided in the Plan Amendment for Lake Weston and its wetlands. Petitioners did not show there are other factors that make it impossible to make light industrial uses on the Property compatible with adjacent residential uses. The preponderance of the evidence shows the Plan Amendment is consistent with other provisions of the Comprehensive Plan. Urban Sprawl Petitioners contend the Plan Amendment promotes urban sprawl based on the potential for more impervious surfaces and less open space. However, this potential does not automatically mean the Plan Amendment promotes urban sprawl. Section 163.3177(6)(a)9. sets forth thirteen factors to be considered in determining whether a plan amendment discourages the proliferation of urban sprawl, such as failing to maximize the use of existing public facilities. The Plan Amendment does not “trigger” any of the listed factors. The preponderance of the evidence shows the Plan does not promote the proliferation of urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Eatonville Ordinance No. 2014-02 is in compliance. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2015. COPIES FURNISHED: George Anthony Perantoni Friends of Lake Weston and Adjacent Canals, Inc. 5800 Shasta Drive Orlando, Florida (eServed) 32810 Dale Dunn 5726 Shasta Drive Orlando, Florida 32810 Lori A. Erlacher 1620 Mosher Drive Orlando, Florida 32810 (eServed) Sharon R. Leichering Kingswood Manor Association, Inc. 5623 Stull Avenue Orlando, Florida 32810 (eServed) Doreen Lynne Maroth 5736 Satel Drive Orlando, Florida 32810 (eServed) Valerie Lolita Perantoni 5800 Shasta Drive Orlando, Florida 32810 (eServed) Debbie Franklin, City Clerk Town of Eatonville, Florida 307 East Kennedy Boulevard Eatonville, Florida 32751 Joseph Morrell, Esquire Town of Eatonville 1310 West Colonial Drive, Suite 28 Orlando, Florida 32804 (eServed) William Clay Henderson, Esquire Holland and Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue Whether the amendment to the Land Use Plan Map of the Miami-Dade County Comprehensive Development Master Plan (CDMP), adopted by Ordinance No. 12-109 on December 4, 2012, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2011).1/
Findings Of Fact The Parties Miami-Dade County (the County) is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes. The County adopted the challenged Plan Amendment under the expedited State-review process codified in section 163.3184(3), Florida Statutes. Petitioners Robert and Sylvia Kemp own property and reside at 11021 East Golf Drive, Miami, Florida. The Kemps submitted oral or written comments concerning the Plan Amendment to the County at the transmittal hearing. Petitioner Gregory Samms owns property and resides at 11200 West Golf Drive, Miami, Florida, and submitted oral and written comments concerning the Plan Amendment to the County during the transmittal hearing. Intervenor, Westview, is the owner of the property which is the subject of the challenged Plan Amendment. Westview, through its counsel, submitted comments in support of the amendment at the various public hearings. The Subject Property The property subject to the Plan Amendment is the site of the former Westview Country Club, a private club, with golf course, which is now closed (Property). The Property is approximately 196 gross acres, and is currently designated on the Land Use Plan Map (LUP Map) as Parks and Recreation (191.6 gross acres) and Low-Medium Residential (4.4 gross acres). It is currently zoned for residential development, mostly single- family, although there is some frontage along Northwest 119th Street zoned for limited business. The Property is curvilinear and approximately one- quarter mile wide. The site is mostly vacant, the former clubhouse having been demolished, although two maintenance buildings and a single-family home remain on the Property. There is a continuous vegetative buffer along the boundary of the Property. Under the existing future land use designation and zoning category, the Property could be developed at a maximum of 1,736 single- and multi-family residential units. The Property is surrounded on all sides by a residential neighborhood, generally known as Westview, in which Petitioners reside. Westview is an older, established community, consisting mostly of single-family residences with some multi-family development on the western edge. East and West Golf Drive, both local roads, surround the property boundary, providing internal access within the Westview neighborhood. The Property, as well as the surrounding neighborhood, is bisected north to south by Northwest 119th Street (also known as Gratigny Parkway), a major east-west arterial providing access to other regional corridors such as State Road 826/Palmetto Expressway to the west and Interstate 95 to the east. Beyond the immediately adjacent residential neighborhood, the Property is bounded by Northwest 22nd Avenue on the east and Northwest 27th Avenue on the west; and by Northwest 107th Street on the south and Northwest 134th Street on the north. To the west, across Northwest 27th Avenue, is the Miami-Dade County Community College North Campus, an institutional use, and a concentration of industrial uses known as the Northwest 27th-37th Avenue Industrial Corridor. East of 22nd Avenue is mostly low-density residential development, with pockets of low-medium residential development and a business-and- office corridor on either side of Northwest 119th Street. Development to the south is a mix of single- and multi-family residential. The future land use designations of the surrounding properties are institutional and industrial to the west, medium- density residential to the south, low- and medium-density to the east (with a business-and-office corridor along Northwest 119th Street), and low-density residential to the north. The Property is located inside the County’s Urban Growth Boundary (UGB), outside of which development is strictly limited in order to protect environmentally sensitive and agricultural lands, as well as limestone mining activities. The County only accepts proposals to change the UGB every two years and requires a supermajority vote of the County Commission to approve a change. The Property is also located within the Urban Infill Area (UIA), the major urban core of the County. The UIA boundary follows Interstate 95 from the northern County line, goes west along the Palmetto Expressway, and south along the Palmetto to 77th Street. The CDMP encourages development and redevelopment within the UIA, prioritizing development on sites within the UIA over sites outside the UIA. The Amendment Ordinance No. 12-109 changes the future land use designation of approximately 148 acres of the Property to Industrial and Office, and the remaining 47 acres to Business and Office (Plan Amendment). The owner of the Property plans to develop or cause to be developed on the Property the Westview Business Park, with a mix of Office and Industrial uses. Under the proposed land use designations, without any additional restrictions, the Property could be developed at an intensity of up to 3,012,174 square feet of industrial use on the Properties designated for Industrial and Office, and 733,550 square feet of retail use or 2,886 multi-family residential units on the areas designated Business and Office. In this case, the Plan Amendment has been adopted with a binding Declaration of Restrictions. These development restrictions are incorporated as text into the CDMP Land Use Element Restrictions Table. The Declaration restricts development of the Property as follows: Limits Industrial development to 1.6 million square feet of light industrial, warehouse, and flex space, and further limits warehouse/distribution space to no more than 700,000 square feet. Limits Business and Office development to a maximum of 400,000 square feet of retail and service uses. Limits Residential development to areas designated for Business and Office use, and a maximum of 2,000 units. Limits total site development to generation of a maximum of 3,297 net external PM peak-hour vehicle trips. Ensures development of a mix of uses by limiting construction of Industrial and Office to no more than 800,000 square feet prior to issuance of the first Certificate of Occupancy within the Business and Office parcels. Prohibits the re-zoning of the Industrially-designated portions to the IU-3 zoning district and development of any use allowed in the IU-3 Industrial zoning district. Prohibits all uses allowed in the IU-2 zoning district, except that storage and distribution of cement and clay products is allowed. Prohibits most uses allowed in the IU-1 zoning district. Requires the developer to improve the existing vegetative buffer between the Property and East and West Golf Drive to a sixty-foot landscaped buffer including a seven-foot masonry wall, opaque fence, or berm, with trees planted at a minimum height of 12 to 14 feet and not farther than twenty-five feet on center. Limits vehicular access to the Property exclusively from Northwest 119th Street, except that the Industrial and Office portions will have one access directly from Northwest 22nd Avenue.3/ Prohibits direct vehicular access between the Property and the surrounding residential neighborhood. Limits height of any hotel or motel use to 50 feet. Commits the developer to work with the Florida Department of Transportation, Miami-Dade County, and the Miami-Dade County Expressway Authority to make improvements on Northwest 119th Street, including extension of an existing westbound travel lane and construction of an eastbound turn lane. Requires the developer to: Incorporate Transportation Demand Management (TDM) Strategies, pedestrian access and connectivity in the including Business and Office developments, pedestrian access to transit stops, and construction of transit shelters. Direct all lighting away from adjacent residential uses, require sound deadeners for any metal work or welding-related uses, and prohibit outdoor speaker systems within the Industrial and Office designation. Dedicate a five-acre parcel for a public recreational facility and develop a multi-purpose jogging, biking, and pedestrian track within the rights of way of East and West Golf Drive. Offer to dedicate vacant land within the Property for a police substation or similar police use. Work with the Public Works Department and the Golf Park Homeowners’ Association to develop traffic calming devices and neighborhood identification signage for the residential neighborhood immediately adjacent to the Property. Make reasonable efforts to employ applicants who are residents of the zip code in which the Property is located, use local businesses and the local workforce in construction of the Project, utilize minority-owned businesses for construction contracts, and maintain non-discriminatory hiring practices. In addition to establishing binding restrictions on the development of the Property which run with the land, the Restrictions can only be modified by amendment to the CDMP, pursuant to section 163.3184, Florida Statutes, and applicable procedures of the Miami-Dade County Code. Petitioners’ Challenge Petitioners challenge that portion of the Plan Amendment which re-designates approximately 148 acres of the Property from Parks and Recreation to Industrial and Office. Petitioners do not challenge that portion re-designating approximately 46 acres from Parks and Recreation to Business and Office. Petitioners challenge the Plan Amendment as not “in compliance” on the basis of inconsistency with both the CDMP and the Community Planning Act, part II, chapter 163, Florida Statutes. Petitioners’ concerns center on the question of the compatibility between the proposed land use and the existing residential neighborhood. Compatibility Petitioners maintain that the proposed designation of the Property for Industrial development is inherently incompatible with the adjoining residential use. Petitioners rely on the following two CDMP provisions to support this argument: Policy LU-4B. Uses designated on the LUP map and interpretive text, which generate or cause to generate significant noise, dust, odor, vibration, or truck or rail traffic shall be protected from damaging encroachment by future approval of new incompatible uses such as residential uses. From the Textual Description of Industrial and Office Category:4/ In general, the typical residential development is incompatible with major industrial concentrations and shall not occur in areas designated as ‘Industrial and Office’ on the LUP map to avoid conflicts and for health and safety reasons. The cited provisions support a finding that Industrial development is generally incompatible with residential development. That fact was admitted by the County in its Staff Report on the proposed Plan Amendment. Neither of the cited provisions prohibits the Plan Amendment from being approved. Following these policies, the County would be justified in denying an application for new residential development within an area designated for Industrial and Office. It does not follow, however, that the County must deny a plan amendment allowing some industrial development adjacent to residential development. As explained by Intervenor’s expert, Thomas Pelham, in a highly-urbanized area like Miami-Dade County’s central core, it is unrealistic, if not impossible, to follow a Euclidean zoning approach, where different uses are dispersed and separated from one another. Compatibility in such a concentrated urbanized area must be judged by assessing the potential impacts of the proposed development and determining whether those impacts can be mitigated. “‘Compatibility’ means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. Petitioners allege the Plan Amendment is inconsistent with the following group of policies which speak to compatibility among uses in close proximity (emphasis in original): GOAL PROVIDE THE BEST POSSIBLE DISTRIBUTION OF LAND USE AND SERVICES TO MEET THE PHYSICAL, SOCIAL, CULTURAL AND ECONOMIC NEEDS OF THE PRESENT AND FUTURE POPULATIONS IN A TIMELY AND EFFICIENT MANNER THAT WILL MAINTAIN OR IMPROVE THE QUALITY OF THE NATURAL AND MAN- MADE ENVIRONMENT AND AMENITIES, AND PRESERVE MIAMI-DADE COUNTY’S UNIQUE AGRICULTURAL HERITAGE. * * * Objective LU-4Miami-Dade County shall, by year 2015, reduce the number of land uses, which are inconsistent with the uses designated on the LUP map and interpretive text, or with the character of the surrounding area. Policy LU-4A. When evaluating compatibility among proximate land uses, the County shall consider such factors as noise, lighting, shadows, glare, vibration, odor, runoff, access, traffic, parking, height, bulk, scale or architectural elements, landscaping, hours of operation, buffering, and safety, as applicable. Policy LU-4C. Residential neighborhoods shall be protected from intrusion by uses that would disrupt or degrade the health, safety, tranquility, character, and overall welfare of the neighborhood by creating such impacts as excessive density, noise, light, glare, odor, vibration, dust or traffic. Policy LU-4D. Uses which are supportive but potentially incompatible shall be permitted on sites within functional neighborhoods, communities or districts only where proper design solutions can and will be used to integrate the compatible and complementary elements and buffer any potentially incompatible elements. Policy LU-8E. Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated to consider consistency with the Goals, Objectives and Policies of all elements, other timely issues, and in particular the extent to which the proposal, if approved would: * * * iii) Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; . . . . Petitioners argue the County cannot find the uses compatible because it did not consider all the possible negative impacts to the existing residential development from the adjoining industrial development, as required by Policy LU-4A, and because the Plan Amendment does not protect the character of the Westview neighborhood, as required by Policies LU-4C, LU-4D, and LU-8E(iii). The Declaration of Restrictions is critical to the County’s determination that the uses, as proposed in this application, are compatible. County staff originally identified LU-4G and LU-8E as policies which “could be impeded” by the Plan Amendment application. However, the written staff analysis was not amended after the Declaration of Restrictions was finalized. The developer proposed different iterations of the Declaration of Restrictions as the application progressed through the process. The final Restrictions are the most stringent. Mr. Woerner testified that his opinion that the Plan Amendment is compatible is based on the dedication of the final Restrictions. The County considered noise impacts, as evidenced by Restrictions which prohibit outdoor speaker systems, require sound deadeners for metal work uses, and require that all air compressors be of radial (silenced) design. Further, the Restrictions require the developer to submit a site plan at re- zoning which incorporates noise-reduction techniques, such as traffic calming devices and wing walls surrounding loading bays. Petitioners complain that these Restrictions are meaningless because they contain no measurable standard, such as a maximum decibel level. However, Petitioner offered no evidence that a prohibition on outdoor speaker systems, sound deadeners, and radial (silenced) design of air compressors were meaningless or unenforceable standards. Lighting is addressed in the Restrictions, which require lighting to be directed away from the adjoining residential areas. Petitioners complain that the Restriction is meaningless because it contains no measurable standard, such as maximum lumens or brightness. However, Mr. Woerner testified that the Restriction gives direction to the County staff at site plan review to ensure that appropriate lighting is incorporated. The Restrictions also evidence the County’s consideration of traffic issues by limiting access to the Industrially-designated areas via two access points –- one on Northwest 119th Street and one from 22nd Avenue –- both of which are major arterial roadways. Further, the Restrictions require the developer to construct eastbound right-turn lanes and an extension to the existing fourth westbound travel lane on Northwest 119th Street to serve the Property. Finally, the Restrictions prohibit all internal traffic access between the proposed development and the residential neighborhood. The County conducted a traffic study and evaluated a traffic study submitted by the applicant in this case. The studies form the basis for many of the access and traffic provisions incorporated into the Restrictions. Buffering is directly incorporated into the Restrictions, which require a 60-foot landscaped buffer between the residential property and the proposed development, as more particularly described above. The landscape plan for the buffer area must be submitted to the surrounding property owners for review and comment prior to the public hearing on the re-zoning application for the Property. In addition to the landscaping plan for the buffer area, landscaping is further addressed in the Restrictions, which require street trees of at least 12 feet along all roadways abutting the Property at a spacing of 25 feet on center. Runoff is addressed in the Restrictions by requiring the developer to obtain a conceptual surface water permit from the County prior to issuance of any building permit for the Property. Petitioners fault the County for excluding from the Restrictions maximum height limits for warehouse and other industrial uses, while including a height limit for hotel and motel development. However, the County and Intervenor offered uncontroverted evidence that the County’s zoning code contains height limitations which will govern the industrial development. In the Restrictions, the height of hotel and motel development is limited beyond any regulation in the County’s zoning code. Petitioners likewise fault the County for not specifically including provisions addressing odor, vibration, and other potential negative impacts on the residential area as anticipated in Policy LU-4A. The best evidence that the County considered the myriad impacts from industrial development on the neighboring residential areas is the prohibition of the majority of typically allowable industrial uses. The Restrictions prohibit all uses allowed in the IU-3 Industrial Unlimited zoning district. Further, the Restrictions prohibit the following uses allowed in IU-2, the Industrial Heavy Manufacturing zoning district: Asphalt drum mixing plants which produce less than one hundred fifty (150) tons per hour in self-contained drum mixers. Rock and sand yards. Manufacturing of cement and clay products, such as concrete blocks, pipe, etc. Soap manufacturing, vegetable byproducts, only. Railroad shops. Sawmills. Petroleum products storage tanks. Dynamite storage. Construction debris materials recovery transfer facility. Finally, the Restrictions also prohibit most of the 90 uses allowed in IU-1, the Industrial Light Manufacturing zoning district.5/ Eliminating the uses prohibited by the Restrictions, the Property may be developed for the following uses: auditoriums, automobile rentals/storage and wholesale distribution, bakeries (wholesale only), banks, bottling plants, caterers, cold storage warehouses and pre-cooling plants, contractors’ offices (not yards), engine sales, food storage warehouse, hotel and motel, laboratories, leather goods manufacturing (except tanning), locksmiths, office buildings, pharmaceutical storage (subject to conditions), police and fire stations, post offices, radio and television transmitting stations and studios, restaurants, salesrooms and storage show rooms (retail subject to limitations), schools for aviation and electronic trades, physical training schools such as gymnastics and karate, ship chandlers, telecommunications hubs (subject to conditions), telephone exchanges, vending machine sales and service, truck and bus stations and terminals, as well as the storage and wholesale distribution of concrete, clay or ceramic products, and novelty works. By prohibiting the myriad uses typically allowed within an Industrially-designated area, the Restrictions eliminate the sights, sounds, odors, vibrations, glare and other potential adverse impacts associated with those uses. The Restrictions protect the neighborhood from noise, light, glare, odor, vibration, dust and traffic, as required by Policy LU-4C. A preponderance of the evidence supports a finding that the County considered the proximity of the neighborhood to the proposed Industrial and Office designation, and approved the designation only with severe limitations on allowable uses and with restrictions designed to mitigate negative impacts and protect the health, safety, and character of the adjoining neighborhood. The Restrictions are designed to buffer the neighborhood from potentially incompatible elements of the adjoining industrial uses, as required by Policy LU-4D. Neighborhood safety and quality of life are additionally addressed by specific provisions of the Restrictions. The developer is required to construct a multi- purpose jogging, bicycle, and pedestrian track along the perimeter of the property; offer to dedicate and improve a 5-acre public recreational facility; and offer to dedicate property for a police substation or similar police use. Further, the developer is required to include pedestrian access improvements across Northwest 119th Street between the Business and Office parcels. These improvements are designed to increase pedestrian access between the two sections of the neighborhood currently divided by Gratigny Parkway. Petitioners cite to the following additional provisions in support of their argument that the Plan Amendment is inconsistent with the CDMP: Policy LU-5B. All development orders authorizing 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 goals, objectives and policies of the CDMP including the adopted LUP map and accompanying ‘Interpretation of the Land Use Plan Map’. Objective LU-8 Miami-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 projected countywide growth. Policy LU-8A. Miami-Dade County shall strive to accommodate residential development in suitable locations and densities which reflect such factors as recent trends in location and design of residential units; a variety of affordable housing options; projected availability of service and infrastructure capacity; proximity and accessibility to employment, commercial and cultural centers; character of existing adjacent or surrounding neighborhoods; avoidance of natural resource degradation; maintenance of quality of life and creation of amenities. Density patterns should reflect the Guidelines for Urban Form contained in this Element. Policy LU-8D. 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 demonstrated to be viable. From the Textual Description of Parks and Recreation Category: Unless otherwise restricted, the privately owned land designated as Parks and Recreation may be developed for a use or a density comparable to, and compatible with, surrounding development providing that such development is consistent with the goals, objectives and policies of the CDMP. The cited provisions are wholly inapplicable to the Plan Amendment at issue. Policy LU-5B applies to development orders. The Plan Amendment at issue is not a development order. See § 163.3164(14) through (16), Fla. Stat. Policy LU-8A applies to evaluation of LUP map amendments to accommodate residential development. The Plan Amendment at issue does not designate property for residential use. LU-8A requires the County to follow the Guidelines for Urban Form in evaluating residential designations. While this policy applies to both new and existing residential development, it does not apply to the Plan Amendment at issue. Policy LU-8D speaks to factors for considering urban expansion. The Plan Amendment at issue is urban infill, not urban expansion. The textual description excerpted from the Parks and Recreation category is likewise inapplicable because it limits development on lands designated Parks and Recreational without a change to another land use category. In the case at hand, a map amendment is sought, rendering those limitations inapplicable. Urban Infill and Economic Development Miami-Dade County maintains that the proposed Plan Amendment is consistent with, and furthers, a number of other CDMP provisions, as follows: LU-1C. Miami-Dade County shall give priority to infill development 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 facilities are projected to have capacity to accommodate additional demand. LU-10A. Miami-Dade County shall facilitate contiguous urban development, infill, redevelopment or substandard or underdeveloped urban areas, high intensity activity centers, mass transit supportive development, and mixed-use projects to promote energy conservation. LU-12. Miami-Dade County shall take specific measures to promote infill development that are located in the Urban Infill Area as defined in Policy TC-1B or in a built-up area with urban services that is situated in a Community Development Block Grant-eligible area, a Targeted Urban Area identified in the Urban Economic Revitalization Plan for Targeted Urban Areas, an Enterprises Zone established pursuant to state law or in the designated Empowerment Zone established pursuant to federal law.[6/] The proposed use of the Property is for infill development and redevelopment of an underdeveloped parcel in a highly urbanized area. Petitioners’ expert, Mr. Henry Iler, questioned whether the proposed use of the Property is infill development. He argues that urban infill is traditionally higher-density residential on small vacant sites within urban areas, explaining that “Infill development a lot of times are quarter acre parcels or it could be an acre inside of some development.”7/ Mr. Iler’s argument is not persuasive because it is the location of the development, rather than its size or use, that defines it as urban infill. The Property represents a unique, if not unprecedented, opportunity in Miami-Dade County –- almost 200 acres of vacant land within the UIA, with ready access to major transportation corridors for moving goods throughout Florida and beyond. County staff estimates the project would create 2,000 direct jobs and up to 3,500 direct and indirect jobs combined. Industrially-zoned property within the minor statistical area (MSA) in which the Property is located, along with the closest adjacent MSA, is projected to be depleted by the year 2017. The designation of the Property for Industrial would add over nine years’ supply of Industrial land within the two combined MSAs. The Plan Amendment includes a functional mix of land uses, and the Restrictions ensure that a mix of uses actually develops. The Property is located within a quarter-mile of a future rapid transit corridor, and partly within the North Central Urban Community Center, which is planned for intensified mixed-use development along the Northwest 27th Avenue and Northwest 119th Street transit corridors. The site is currently served by three Metrobus routes, one of which is programmed for improvements in 2012. The Restrictions require the developer to improve existing transit stops along Northwest 119th Street. As summarized by Mr. Pelham, the Plan Amendment fits Policy LU-10A “like a glove.” Concepts The CDMP Future Land Use Element contains a list of 14 long-standing concepts which are embodied in the CDMP. Mr. Woerner testified that the Plan Amendment is consistent with a number of those concepts, including: 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 character to provide economies of scale and efficiencies of transportation and other services for both public and private sectors. 11. Allocate suitable and sufficient sites for industrial and business districts to accommodate future employment needs. 13. Avoid excessive scattering of industrial or commercial employment locations. Mr. Woerner testified that the Plan Amendment furthers concept 8 by encouraging infill and a mix of land uses, furthers concepts 9 and 13 by its location in relation to the nearby Northwest 27th-37th Avenue Industrial Corridor and access to major transportation routes, and furthers concept 11 by fulfilling the need for industrial land in the two adjoining MSAs. Petitioners counter with concept 7, “Preserve sound and stable residential neighborhoods,” arguing that the Plan Amendment is contrary to this long-standing concept. Mr. Woerner testified that the Plan Amendment protects the Westview neighborhood through the extensive Restrictions, eliminating myriad uses otherwise allowed in Industrially-designated areas and requiring mitigation of anticipated negative impacts. Petitioners maintain that the Restrictions do not afford the neighborhood the protection required under the CDMP because the Restrictions are not binding, or otherwise enforceable, and can be changed in the future by the County Commission. Petitioners’ argument is not well-taken. The competent substantial evidence supports a finding that the Declaration of Restrictions is incorporated into the Future Land Use Element of the CDMP and can only be changed pursuant to the public notice and hearing provisions of the County ordinances and the Community Planning Act. If, as Petitioners speculate, the owner seeks to permit an IU-3 use on the Property in the future, it will require a future Plan Amendment to revise the Declaration of Restrictions as if it were another land use amendment. Further, such amendment is subject to a super-majority vote of the County Commission. Summary Petitioners failed to establish beyond fair debate that the challenged 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 Economic Opportunity enter a Final Order determining that the Miami-Dade County Plan Amendment adopted by Ordinance No. 12-109 on December 4, 2012, is in compliance. DONE AND ENTERED this 1st day of August, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2013.
The Issue The issue is whether Polk County's small scale development amendment (CPA2003S-02) adopted by Ordinance No. 03-03 on January 22, 2003, as later amended by Ordinance No. 03-19 on March 15, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Berry is the owner of a tract of land located on the southwest corner of the intersection of Eagle Lake Loop Road (County Road 540-A) and Pollard Road in Section 16, Township 29, Range 26 in the eastern part of unincorporated Polk County, Florida. The property lies south of the City of Winter Haven, east-southeast of the City of Eagle Lake, less than a mile south of Lake Eloise (on which Cypress Gardens is located), and west of U.S. Highway 27. Because Berry owns property within the County, and submitted oral and written comments to the County prior to the adoption of the challenged amendment, it has standing to participate in this action. On July 19, 2002, Berry filed an application with the County Planning Department seeking to change the land use on 9.99 acres (or just below the threshold of 10.0 acres for a small scale amendment) from RL-1 to Neighborhood Activity Center (NAC) to include approximately 4.95 acres of various neighborhood specialty shops such as a grocery store, drug store, convenience store, and dry cleaners, with the remaining acreage used as a mini-warehouse self-storage facility. In September 2002, Berry amended its application by seeking to change 3.93 acres from RL-1 to CC and 6.06 acres from RL-1 to BPC-1. The application was assigned Case File No. CPA2003S- 02. Under the County's review process, the application is first reviewed by the County Development Review Committee (Committee), then by the County Planning Commission (CPC), which either accepts or rejects the Committee's recommendation, and finally by the Board of County Commissioners (Board), which either adopts the amendment, adopts the amendment as amended by the Board, or rejects the amendment. After conducting a preliminary review of the application, on September 16, 2002, the Committee conducted a public hearing and voted to recommend approval. The matter was then transmitted to the CPC, which conducted a meeting on October 9, 2002, and recommended that the Board approve the amendment. On January 22, 2003, by a 3-2 vote, the Board adopted CPA2003S-02 changing the designation on the FLUM of the County Comprehensive Plan (Plan) as proposed by Berry. This was confirmed by the County's adoption of Ordinance No. 03-03. On February 21, 2003, Petitioners filed their Petition challenging the Berry amendment. The matter was again placed on the Board's agenda on March 19, 2003, after the County discovered that Ordinance No. 03-03 had inadvertently changed the land use on the entire parcel to CC rather a mix of CC and BPC-1. In addition, there were minor errors in the legal description of both the 3.93 and 6.06-acre parcels. Accordingly, Ordinance No. 03-19 was enacted to correct those errors. A second Petition for Formal Administrative Proceedings (with essentially the same allegations, but also adding an allegation that the same property had been improperly subject to two small scale amendments within a 12- month period) was filed by Petitioners on March 19, 2003, challenging the action taken in Ordinance No. 03-19. At the outset of the final hearing, Petitioners voluntarily dismissed two allegations contained in their Petition. In their Proposed Recommended Order, Petitioners have further narrowed the issues by addressing only the following allegations: that the property which is the subject of this proceeding exceeds 10.0 acres in size and therefore cannot qualify as a small scale amendment; and that the amendment violates Future Land Use Element (FLUE) Policies 2.102-A1, 2.113-B-3, 2.113-B-4, 2.110-C3, and 2.113-B-1 and is thus internally inconsistent with the Plan. These issues will be discussed separately below. All other allegations contained in the second Petition and the parties' Pre-Hearing Stipulation are deemed to have been withdrawn or abandoned. Because the change in the FLUM was filed and approved as a small scale plan amendment under Section 163.3187(1)(c), Florida Statutes (2003),1 a compliance review of the amendment was not made by the Department of Community Affairs (DCA). See § 163.3187(3)(a), Fla. Stat. Standing of Petitioners Durham is a realtor/developer who owns property within 250 feet of Berry's property and resides at 10 Lake Eloise Lane, Southeast, Winter Haven, Florida. He made oral and written comments to the County prior to the adoption of the amendment. As such, he qualifies as an affected person under Section 163.3184(1)(a), Florida Statutes, and has standing to bring this action. CPPI began as an association in November 2002 and was later incorporated in February 2003. Presently, it has around 100 members, all of whom reside in the County. According to its chairperson, its purpose is to "help educate and inform residents of Polk County . . . towards growth matters that may affect their daily lives." The organization "encourages donations" from its members; it was scheduled to have conducted its first annual meeting on January 10, 2004; and members prepared and circulated petitions opposing the amendment to residents of the area in December 2002 and January 2003. At least one member of CPPI made written and oral comments on its behalf to the County prior to the adoption of the amendment in March 2003. There is no evidence, however, that CPPI (as opposed to its individual members) owns property or owns or operates a business within the County. Therefore, it lacks standing to file a petition. The land and surrounding uses Berry owns a triangle-shaped parcel of land (the parent parcel) totaling around 14 acres which fronts on Eagle Lake Loop Road (a 24-foot wide urban collector road) to the north, Pollard Road (a local road) to the east, and a CSX railroad track, with right-of-way, on its western side. (Pollard Road dead ends at Eagle Lake Loop Road, and another collector road, Eloise Loop Road, continues to the north from the intersection). Pollard Road provides access to eight nearby single-family homes, which lie south of the Berry property and front on Pollard Road, and eventually terminates at the City of Winter Haven's Sewage Treatment Plant (an institutional use), which lies slightly more than a mile south of the site. To the west of the site directly across the railroad tracks and fronting on Eagle Lake Loop Road is additional property owned by Berry and on which were once located the original Berry corporate offices. The Berry office buildings are now used, at least partially, by other tenants. Although the land across the railroad tracks is classified as Residential Suburban (RS), the property can be used for offices since the buildings were constructed, and office use began, prior to the adoption of the Plan. Directly across Pollard Road to the east is a vacant 10-acre tract of land owned by the Baptist Ridge Association, which intends to construct a church on the property. Berry's property is now classified as RL-1, a land use classification which "is characterized by single-family dwelling units, duplex units, and small-scale multi-family units." Since at least the 1950s, however, or long before the County adopted its Plan, the property has been used primarily for agriculture purposes (citrus groves); therefore, Berry is grandfathered to continue this non-conforming use on its property. Presently, the entire tract of land is undeveloped and largely covered by an orange grove, which Berry describes as "past maturation and is declining." Citrus trucks and trailers have been parked on the extreme northwestern corner of the parent parcel and are used in conjunction with the citrus operation. Except for the former Berry offices, a nearby beauty salon operating out of a house, and a convenience store about three-quarters of a mile away, which all began operation before the Plan was adopted and are grandfathered as non- conforming uses, and the City of Winter Haven's large tract of institutional land to the south, all of the property within slightly less than a one-mile radius of the Berry property is classified in various residential land use categories with only residential uses. The Amendment As noted above, Berry has owned the subject property for many years. In 1987, Berry (then under the name of Jack M. Berry, Sr.) made application with the County for a zoning change on the property from Rural Conservation (RC) to Commercial (C-3) to allow typical commercial uses. The application was ultimately denied by the County on the ground, among others, that the zoning district being proposed was inconsistent with the Plan, "given the residential development pattern in the area." At least partly on the theory that the area has changed substantially in the last 15 years, Berry has filed (and the County has approved) an application seeking to change the land use on the property to commercial uses. Berry has carved out of the parent parcel two smaller parcels totaling 9.99 acres in size and seeks to change the land use on the northern parcel (3.93 acres) to CC and the land use on the southern parcel (6.06 acres) to BPC-1. The remaining land in the parent parcel, which consists of a 0.43-acre triangle-shaped parcel on the northwestern corner of the parent parcel and now used by citrus trucks, and a vacant 2.74-acre triangle-shaped parcel on the southern end, will remain R-1. (However, all parties agree that if the amendment is approved, these remaining parcels will be unsuitable for residential development.) In addition, strips of land ranging from 22 to 28 feet in width which front on Eagle Lake Loop Road and Pollard Road will be dedicated to the County for right-of-way and have not been included in the 9.99-acre amendment. Presumably, the proposed change is being done in this manner so that the total acreage is less than 10.0 acres, which qualifies the application to be processed as a small scale development amendment rather than a regular plan amendment and subject to DCA review and approval. If the change is approved, the northern part of the parcel (3.93 acres) will be changed to CC to develop convenience commercial uses. Under the Plan, the most typical tenant in this category is a convenience store, while other typical tenants include laundry, dry cleaning, barber, restaurant, gas station, and office uses. The southern (and larger) portion of the tract will be changed to BPC-1. The most typical tenant in this category is "[o]ne or more light- assembly plants, or warehouse facilities," which include a mini-warehouse storage facility. Other typical tenants described in the Plan are offices, distribution centers, research and development firms, and high-density residential, with proper buffering. (Berry says it intends to build a mini-warehouse facility on the southern parcel; however, any of the above described uses could be placed on the property if the change is approved.) Petitioners' Objections In broad terms, Petitioners have contended that the small scale amendment actually involves a use of more than 10 acres since the strips of land being dedicated as right-of-way to the County must be counted as a part of the land being amended. They also contend that the plan amendment violates five FLUE policies and is therefore internally inconsistent with the Plan. A small scale development amendment can only be adopted if "[t]he proposed amendment involves a use of 10 acres or fewer." See § 163.3187(1)(c)1., Fla. Stat. The parties have agreed that the legal description of the parcel subject to the change includes only 9.99 acres, or less than the 10-acre threshold. However, prior to the development of the site, Berry intends to dedicate to the County two strips of land, one fronting on Eagle Lake Loop Road (28 feet wide), and the other on Pollard Road (22 feet wide), for future right-of-way for some public purpose. Petitioners contend that the right-of-way constitutes essential infrastructure for the development and must be included as a part of the amendment. If this land is added to the amendment, the total acreage would obviously exceed 10.0 acres. The dedicated land is not "essential infrastructure" needed for the development activities on the land, since two roadways (Eagle Lake Loop Road and Pollard Road) already exist on the northern and eastern boundaries of the property, and they are sufficient in size to provide ingress to, and egress from, the property. Instead, the County will "bank" the land in the event some form of right-of-way activity is needed in the future. It is noted that Eagle Lake Loop Road was recently widened to 24 feet, and it is not anticipated that a further widening will occur for a number of years. There is nothing in the Plan which requires an applicant for an amendment to include all of its property in a proposed amendment, or prevents an applicant from leaving a residual piece of property out of the application. Therefore, Berry was not required to include in the amendment the right- of-way or the two smaller residual pieces of property that will remain R-1. Finally, assuming arguendo that Petitioners' contention is correct, that is, that an applicant must include right-of-way land dedicated to the local government in the total acreage calculation, Berry could still lawfully comply with the 10-acre threshold by simply reducing the other acreage being changed to CC or BPC by the amount of land being dedicated to the local government for right-of-way. Therefore, it is found that Berry has not improperly excluded from the amendment land necessary for essential infrastructure so as to violate Section 163.3187(1)(c)1., Florida Statutes, as alleged by Petitioners. Policy 2.102-A1 requires compatibility between adjacent uses. More specifically, it provides that: Land shall be developed so that adjacent uses are compatible with each other, pursuant to the requirements of other Policies in this Future Land Use Element, so that one or more of the following provisions are accomplished: there have been provisions made which buffer incompatible uses from dissimilar uses; incompatible uses are made to be more compatible to each other through limiting the intensity and scale of the more intense use; uses are transitioned through a gradual scaling of different land use activities through the use of innovative development techniques such as a Planned Unit Development. Therefore, as the Plan is now written, so long as Berry develops the land in a manner which accomplishes at least one of the three "provisions" in paragraphs a - c of the policy, so as to make the adjacent uses compatible, the proposed land use change is permissible. As noted above, except for a few non-conforming uses adjacent to, or near the property, virtually all of the area around the Berry property is designated for residential use. The area to the north and northeast is developed with up-scale (with some homes ranging to as high as $1 million in value), low density, large lot, single-family residential subdivisions, including Harbour Estates, Cedar Cove, Cypress Cove, Gaines Cove, and Valhalla. To the east of the site are more subdivisions, including Eloise Place, Skidmore, Cypress Point, Lake Eloise Estates, Eloise Pointe Estates, a mobile home park, and Little Lake Estates. The lands to the south are primarily agriculture and in active citrus groves, with eight single-family homes on Pollard Road. Finally, a church will be built on the property directly across the street from the Berry property at the southeast corner of the intersection of Eagle Lake Loop Road and Pollard Road. The County Planning Director agrees that a convenience store (which is an authorized use on CC land), standing alone, is incompatible with adjacent single-family residences. Given this acknowledgement, and the fact that a non-binding, proposed site plan submitted by Berry with its application does not provide for any buffering between the commercial uses and the residential areas, Petitioners contend that none of the conditions required for compatibility in paragraphs a through c have been met, and thus the policy has been violated. The County has made clear, however, that when a final site plan is submitted, there must be "provisions [in the site plan] . . . which buffer incompatible uses from dissimilar uses," as required by the policy. Assuming that this is done at the site plan stage, at least one of the three provisions will be accomplished, thereby satisfying the compatibility requirement. This being so, the plan amendment does not violate the policy and in this respect is not internally inconsistent with the Plan. Petitioners next contend that the amendment is inconsistent with Policy 2.110-C3, which contains locational criteria for CC property. One such criterion requires that "Convenience Centers shall be located at the intersections of arterial and/or collector roads." Because the property is at a T-shaped intersection (as opposed to a traditional cross intersection with four directions for traffic to move off the site), Petitioners assert that the property is not located at an "intersection" within the meaning of the policy. Eagle Lake Loop Road, on which the northern boundary of the property fronts, is designated as an urban collector road. That road forms an intersection with Pollard Road (a local road) and Eloise Loop Road (also an urban collector road), which meets Eagle Lake Loop Road from the north at the intersection, and then makes a 90 degree turn to the east. (When Eagle Lake Loop Road continues to the east beyond the intersection, it turns into Eloise Loop Road, and later into Thompson Nursery Road, until it eventually intersects with U.S. Highway 17.) There is no dispute that the two collector roads (Eagle Loop Lake Road and Eloise Loop Road) form a T intersection, rather than a traditional cross intersection. For many years, however, the County has considered a T intersection and a cross intersection to be the same in terms of satisfying Plan requirements. Indeed, at the present time, at least four other CC designated properties within the County are located at T intersections. The County's interpretation of the policy is consistent with sound planning principles, is reasonable and logical, and is more persuasive than the contrary view offered by Petitioners. Accordingly, it is found that the amendment does not conflict with Policy 2.110- C3. Petitioners also contend that the amendment is inconsistent with Policy 2.113-B-3, which provides that "Business-Park Centers shall be located with consideration being given to regional transportation issues, and should be located at the intersections of arterial roads, and preferably on a fixed-route mass-transit line." (Emphasis added.) The use of the word "should" (rather than "shall") is intended to state a preference, but not an absolute requirement, that BPC lands be located at the intersections of arterial roads. According to the County's Planning Director, this is because "most cases that come [before the County] don't meet the ideal situation" of satisfying every requirement, and the County has used this permissive language to give itself some degree of flexibility in handling cases that do not meet every Plan requirement. Therefore, even though it is preferable that BPC land be located at the intersection of arterial roads, this requirement is not mandatory, and the County has the flexibility to approve a BPC land use change at property not sited at the intersection of arterial roads. In contrast to the permissive language described above, Policy 2.113-B-4 provides that development within a Business-Park Center shall conform to certain development criteria, including one that Business-Park Centers shall have frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves an arterial roadway. Business-Park Centers shall incorporate the use of frontage roads or shared ingress/egress facilities wherever practical. In this case, the closest arterial roadway to Berry's property is State Road 17 to the west, which is four miles away, while State Road 60, another arterial roadway, is approximately six miles to the south. These arterial roads must be accessed, at least at the beginning of the trip, by Eagle Lake Loop Road, a two-lane, 24-foot wide urban collector that runs through predominately residential neighborhoods with some homes having fences within a foot or two from the road. The County interprets the requirement that BPC land have "direct access to an arterial road" to be satisfied if the property fronts on a collector road, which then provides access to an arterial road. Under the County's interpretation, the requirement is met since Eagle Lake Loop Road provides access (albeit 4 to 6 miles away) to State Roads 17 and 60. The County says it has consistently interpreted this provision in this manner for at least ten years, and has approved other applications for changes to BPC when those parcels were located on urban collector roads. (The distance between these other BPC parcels and the arterial roads is not of record, however.) While Policy 2.113-B-1 provides that Business-Park Centers are "not intended to accommodate major commercial or other high-traffic producing facilities," they "are intended to promote employment opportunities within the region by allowing for the establishment of office parks, research and development parks, areas for light-industrial facilities, distribution centers, and mixed-use employment parks." The same policy provides that they must have a usable area of 10 acres or more, have a service-area radius of 20 miles or more, be supported by a population of 150,000 or more people, and have a gross leasable area of 500,000 to 2,000,000 square feet. Given this description of their purpose and characteristics, and the wide range of commercial activities that are allowed on Business-Park Center lands, it is not surprising that Policy 2.113-B-3 provides that BPC lands should be located "at the intersections of arterial roads, and preferably on a fixed-route mass-transit line," while Policy 2.113-B-4 requires that they "have direct frontage on, or direct access to, an arterial roadway, or a frontage road or service drive which directly serves on an arterial roadway." When reading these provisions as a whole, it is unreasonable to conclude, as the County does, that "direct access" contemplates a drive of over 4 miles, partly on a narrow two- lane road, in order to reach an arterial road. Accordingly, on this issue, Petitioners' evidence is the most persuasive, and it is found that the plan amendment conflicts with Policy 2.113-B-4 and in this respect is internally inconsistent with the Plan. Policy 2.110-C3 sets forth the following location criteria for Convenience Centers: LOCATION CRITERIA Convenience Centers shall be located at the intersections of arterial and/or collector roads. There shall be the following traveling distance, on public roads, between the center of Convenience Center and the center of any other Convenience Center, or other higher- level Activity Center, Linear Commercial Corridor, or Commercial Enclave providing for the same convenience shopping needs: One (1) mile within the UDA and UGA Two (2) miles within the SDA and UEA This required separation may be reduced if: The higher-level Activity Center, Linear Commercial Corridor or Commercial Enclave within the required distance separation is over 80 percent developed; or the proposed Convenience Center market- area radius, minimum population support is over 5,000 people. Petitioners contend that this policy has been violated in two respects: the Berry property is not located at the intersection of arterial roads; and there is an existing convenience center located within 0.8 mile of the Barry property, and Berry cannot qualify for a reduction in the required separation, as described in paragraphs a and b. For the reasons stated in Findings of Fact 30-32, it is found that the Berry property is located at the intersection of two collector roads (Eagle Lake Loop Road and Eloise Loop Road) and that a T intersection satisfies the requirements of the policy. As to the second contention, the Berry property is located within an UGA (Urban Growth Area), and an existing convenience store is located at the intersection of Rifle Range Road and Eagle Lake Loop Road, or less than a mile west of Berry's property. The land use on the property on which the store sits was recently changed (in December 2003) to BPC, which does not allow a convenience store. However, the store is a non-conforming use, having been located at that site before the Plan was adopted. The locational requirement in Policy 2.110-C-3 that CC lands within the UGA be located at least a mile apart is not the least bit vague or ambiguous: CC designated lands (and not individual convenience stores, as Petitioners suggest) must be separated by at least a mile, unless one of the two criteria for reducing this separation is met. Because there is no CC land within a one-mile radius of the Berry land, the policy has not been violated. Policy 2.113-B-1 sets forth the following relevant characteristic for Business-Park Centers: General characteristics of Business-Park Centers are: Usable Area 10 acres or more There is no dispute that the useable area for the BPC land is only 6.06 acres, or approximately 60 percent of the required acreage. Petitioners contend that the amendment violates the foregoing policy because the useable area on Barry's property is much less than "10 acres or more." While the former County Planning Director conceded that the 10-acre usable area requirement is "mandatory," he justified the amendment on the ground that the 6.06 acres "approximates" 10 acres, and thus satisfies the policy. In the same vein, the current County Planning Director asserted that if Berry was proposing a stand-alone BPC, it would have been required to have 10 usable acres. In this case, though, he pointed out that the Berry property will be used for a nonresidential mixed use (BPC and CC) totaling almost 10 acres, and therefore Berry has satisfied the requirement. The Planning Director admitted, however, that nothing in the Plan specifically allows this type of exception. He justified the County's action on the theory that the Plan "doesn't anticipate every situation that comes in," and "interpretations have to be made of the comprehensive plan and how it's applied." The requirement that Business-Park Centers have a usable area of 10 or more acres is clear and unambiguous, was characterized as being "mandatory," and is not subject to any exceptions in the Plan. This being so, the County's interpretation is found to be unreasonable and contrary to the plain language in the policy, and in this respect the plan amendment is internally inconsistent with the Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the small scale development amendment (CPA2003S-02) adopted by Polk County by Ordinance No. 03-03, as amended by Ordinance No. 03-19, is not in compliance. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004.
The Issue The issue to be determined in this case is whether the proposed amendment to the Pinellas Countywide Plan Map, changing the land use designations on 34.6 acres of land in Safety Harbor, Florida, should be approved.
Findings Of Fact The Parties Petitioner is the contract purchaser of 34.6 acres of land (“the Property”) located near the northeast corner of 10th Street South and McMullen-Booth Road in the City of Safety Harbor. Respondent is the Board of County Commissioners of Pinellas County, in their capacity as the CPA. The Proposed Amendment The Amendment would change the land use designations for nine parcels within the Property. The Amendment would make the following changes to the current land use designations: However, the parties’ dispute focuses on the 15.8-acre parcel that is now designated Industrial Limited (“IL”). The Amendment would change the designation of the parcel to Residential Medium (“RM”). Existing Land Uses on the Property and Surrounding Area Located on the 15.8-acre parcel (referred to hereafter as the “IL parcel” or “Richman parcel”) are numerous industrial buildings and structures associated with a citrus processing facility that is no longer in operation. There are no uses being made of the other eight parcels that comprise the Property. The balance of the Property is undeveloped and relatively undisturbed. There are wetlands as well as a creek on the Property. There is an extensive tree canopy in the undeveloped area. Access to the IL parcel is via 10th Street South (S.R. 590), which is a two-lane, undivided roadway on the southern boundary. There is no rail access to the IL parcel. To the north and east of the Property are relatively affluent neighborhoods of single-family residences on lands designated Residential Suburban and Residential Low. The residences on the north are separated from the IL parcel by the large undeveloped area, but the residences to the east are immediately adjacent to the IL parcel. McMullen-Booth Road, a six-lane arterial roadway, runs along the northwestern boundary of the Property. On the southwestern boundary, adjacent to the IL parcel, are lands designated Residential/Office/Retail where there is a drug store, car wash, and bank. Across 10th Street South, on the southeast corner of its intersection with McMullen-Booth Road, is a gas station/convenience store. Also across 10th Street South, opposite the entrance to the citrus processing facility, is land designated IL and used for warehousing, auto-repair, and other uses. The Scenic Non-Commercial Corridor McMullen-Booth Road has been designated by Pinellas County as a Scenic Non-Commercial Corridor (“SNCC”). The SNCC designation includes lands bordering both sides of McMullen-Booth Road. The SNCC designation identifies preferred land uses within the corridor to achieve the CPA’s goal to preserve and enhance the scenic qualities of the corridor. The western half of the IL parcel is within the McMullen-Booth Road SNCC. Under the SNCC policies, the preferred land use for the western half of the parcel is “Mixed Use.” The Amendment would allow for land uses consistent with the SNCC. The Development Agreement The proposed Amendment is accompanied by a Development Agreement between Richman and the City of Safety Harbor which provides more specifically for how the Property would be developed. Among other items, the Development Agreement provides for: 246 apartment units in three-story and four-story buildings; a 25,000-square-foot office building fronting on McMullen-Booth Road; a 182-foot buffer between the nearest apartment unit and the residences to the east; a requirement that no three-story building will be located within 450 feet of the eastern property line; and the preservation of more than 10 acres of the undeveloped area, including the creek and wetlands. Action on the Proposed Amendment Changing a land use designation in the City of Safety Harbor requires an amendment to the Countywide Plan Map, which depicts all land use designations in Pinellas County and its municipalities. Countywide Rules are used in conjunction with the Countywide Plan and they address amendments to the Countywide Plan Map. The Countywide Plan and Countywide Rules are created and administered by the CPA. Proposed amendments to the Countywide Plan Map are reviewed by the Pinellas County Planning Advisory Committee (“PAC”), which is comprised of planners from most of the local governments in Pinellas County. The PAC makes a recommendation to the Pinellas Planning Council on a proposed amendment. The PAC recommended approval of the Amendment. The staff of the Pinellas Planning Council prepared an “Agenda Memorandum,” which included the following findings which are supported by the preponderance of the evidence presented in this case and, therefore, are findings of fact in this Recommended Order: The RM land use is well-suited to serve as a transition from non-residential areas to the west and south and the residential neighborhoods to the east and north. The area is not part of a larger consolidated industrial area, but the Richman parcel, together with the IL parcel across 10th Street South, could function as a small industrial park. The IL category, with all potential uses allowed, is “in the broadest sense” inconsistent with single-family uses to the north and east. The IL parcel can accommodate certain “target employers.” At the final hearing, target employers were identified as “office light industrial and research and development.” The environmentally sensitive areas on the Property and adjacent to single-family residences limit the types of industrial uses that could be located on the IL parcel. The Amendment does not foreclose the opportunity to attract target employers to other parcels within the Property. “On balance,” the Amendment is consistent with the Countywide Rules. The Council staff recommended approval of the Amendment. As partial mitigation for the loss of the IL land use, the staff recommended that Richman work with the County to attract target employers to other parcels within the Property. The Council held a public hearing and voted to recommend approval of the Amendment. The Pinellas County planning staff recommended approval of the Amendment to the CPA. The CPA, at a public hearing, voted to deny the Amendment, based primarily on concern over the loss of industrial lands. Relevant Criteria Section 5.5.3.1 of the Countywide Rules states: In the consideration of a regular Countywide Plan Map amendment, it is the objective of these Countywide Rules to evaluate the amendment so as to make a balanced legislative determination based on the following six (6) Relevant Countywide Considerations, as they pertain to the overall purpose and integrity of the Countywide Plan. Of these six criteria, the parties stipulated that only the consideration stated in Section 5.5.3.1.1 is at issue in this case. That section states: Consistency with Countywide Rules. The manner in, and extent to, which the amendment is consistent with Article 4, Plan Criteria and Standards of these Countywide Rules and with the Countywide Plan as implemented through the Countywide Rules. The parties disputed what criteria are “implemented through the Countywide Rules.” Richman contends that to be implemented through the Countywide Rules, a policy must be contained in the Countywide Rules. The CPA contends that there are provisions of the Plan that must be considered even if they do not also appear in the Rules. As set forth in the Conclusions of Law, in order for a provision of the Countywide Plan to be implemented through the Countywide Rules so that the provision can act as a criterion applied by the CPA in the approval or denial of a proposed amendment to the Countywide Plan Map, the provision must be repeated, paraphrased, or adopted by reference in the Countywide Rules. In this regard it is noted that Resolution 06-3 of the Pinellas Planning Council, which discusses the need to reserve industrial parcels for target employers, was referred to in the Council's Agenda Memorandum and discussed in the public hearing before the CPA. However, Resolution 06-3 is not implemented through the Countywide Rules and, therefore, is not a source of criteria applicable to the Amendment. The SNCC designation for McMullen-Booth Road is in the Countywide Rules and, therefore, must be considered by the CPA in its review of the Amendment. Section 2.3.3.6.1 of the Countywide Rules is relevant to the issues raised and states in part: Category/Symbol – Industrial Limited (IL) Purpose – It is the purpose of this category to depict those areas of the county that are now developed, or appropriate to be developed, in a limited industrial manner; and so as to encourage the reservation and use of consolidated areas for industrial and industrial/mixed use in a manner and location consistent with surrounding use, transportation facilities, and natural resource characteristics. In addition to this statement of purpose, the section addresses locational characteristics, traffic generation characteristics, density/intensity characteristics, density/intensity standards, and “other standards.” Section 2.3.3.6.1 identifies the “primary uses” allowed in the IL land use category as office, research/development, light manufacturing/assembly, wholesale/distribution, and storage/warehouse. The “secondary” uses allowed are residential, retail/commercial; personal service/office support, commercial/business service, commercial recreation, temporary lodging, institutional, transportation/utility, recreation/open space, transfer/recycling, incinerator facility, and agricultural. The CPA’s desire for certain target employers to use the IL parcel fails to account for the fact that there are industrial uses of the site that are allowed under the IL land use category in the Countywide Plan that would cause noise, odor, truck traffic, or other conditions that are incompatible with adjacent residential uses. Understandably, the CPA would like to see the Richman parcel used in the future by one of the target employers, but the CPA does not acknowledge that the IL designation authorizes other uses that would be incompatible with surrounding uses. At the final hearing, the County’s Director of Economic Development testified that the Richman parcel is “perfect” for an IL land use, but that testimony only makes sense in the context of certain target employers. In the context of all the IL uses that are allowable under the Countywide Plan and Countywide Rules, the site is imperfect and impracticable because of the proximity of single-family homes and the access from an undivided, two-lane street used by residential traffic. Several years of marketing efforts by Richman and the County have not generated a single offer to purchase or lease the Richman parcel for any of the allowed IL uses, including target employers. Following the CPA’s denial of the Amendment, the staff of the Pinellas Planning Council undertook a review of its current policies regarding the preservation of industrial lands and recommended amending the Countywide Rules to identify industrial properties “worthy of preserving” and to develop criteria for the evaluation of proposed amendments to convert industrial land. These recommendations highlight the current lack of adequate guidance in the Countywide Rules. The determination by the CPA that the Amendment is inconsistent with the Countywide Rules is based primarily on three propositions which are contrary to the preponderance of the evidence. First, that the Richman parcel is being reserved for IL uses. The preponderance of the evidence shows that the parcel is inappropriate for several authorized IL uses and the CPA wants the parcel reserved only for a few target employers. Second, that the IL designation is not inconsistent with the McMullen-Booth Road SNCC. The identification of preferred land uses in the corridor would have no effect unless it was a factor to be considered by the CPA when it reviews proposed amendments to the Countywide Plan Map. The IL designation within the McMullen-Booth SNCC is inconsistent with the goal of the corridor and is a factor (not a requirement) in favor of changing current IL designation to another designation that qualifies as Mixed Use. Third, that the Richman parcel is part of a “consolidated area” for industrial uses in a location “consistent with surrounding uses” as described in Section 2.3.3.6.1. The preponderance of the evidence shows that this is not a consolidated area for industrial uses. It was once a consolidated area, but past land use decisions have eliminated more than half the industrial acreage. If Richman had proposed to consolidate its parcel with the IL parcel south of 10th Street South to create a large, integrated warehousing and distribution operation served by rail, the proposal would have been consistent with the core purpose for IL lands as expressed in Section 2.3.3.6.1. The impracticability of such a proposal, however, highlights the problem with the current IL designation for the Richman parcel. The County’s 2008 Target Employment and Industrial Land Study found that two-thirds of the “target industries” operating in Pinellas County are on lands not designated industrial, because these uses can often be accommodated on lands designated for office uses. The 2008 study recommended that the industrial designations of lands in five “prime industrial areas” be preserved. Richman’s IL parcel is not in one of these prime industrial areas. When all relevant factors are considered, the CPA appears to be taking a stand for preservation of industrial lands in the wrong place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Countywide Planning Authority issue a Final Order approving the Amendment. DONE AND ENTERED this 18th day of November, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2013. COPIES FURNISHED: Scott A. McLaren, Esquire Edward D. Armstrong, III, Esquire Hill, Ward and Henderson, P.A. 3700 Bank of America Plaza 101 East Kennedy Boulevard Tampa, Florida 33602 Gordon Beardslee, General Planning Administrator Pinellas County Department of Strategic Planning and Initiatives 310 Court Street Clearwater, Florida 33756 Michael Crawford, Executive Director Pinellas Planning Council 310 Court Street, Second Floor Clearwater, Florida 33756-5137 Kenneth Welch, Commission Chairman Board of County Commissioners Pinellas County 315 Court Street Clearwater, Florida 33756 Nancy S. Meyer, Esquire David S. Sadowsky, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756
The Issue Whether the Plan Amendments to the St. Johns County Comprehensive Plan, adopted by Ordinance Number 2001-18, are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, or are not "in compliance" as alleged in the petitions of The Sierra Club (Sierra) and Ellen A. Whitmer (Whitmer).
Findings Of Fact The Parties The Sierra Club. Sierra alleged in its Petition that it "does business in St. Johns County and has a substantial number of members who reside in and own property in St. Johns County." Sierra is registered as a California corporation and maintains offices in St. Petersburg and West Palm Beach, Florida. The National Organization of Sierra publishes Sierra Magazine, which members receive in the County. Sierra's basic mission is to provide an opportunity for its members to explore, enjoy, and protect the outdoors and natural systems, including those which exist in the County. The Florida Chapter of The Sierra Club (Florida Chapter) is subdivided into 10-12 "groups," including the approximately 1,400-member Northeast Florida Group, serving Duval, St. Johns, and Clay Counties, with approximately 325 members living in St. Johns County. There are approximately 24,000 Sierra members in the State of Florida. Sierra holds monthly meetings in the County. Speakers discuss various educational subjects with members attending the monthly meetings. Sierra members hike in the County, and canoe and kayak on, for example, the Tolomato and Guana Rivers. These activities can be expected to be enhanced if the Plan Amendments are approved and the approximately 1,630-acre preserve area dedicated as planned. Sierra has held fundraisers in the County for the benefit of the three-county Northeast Group. The Northeast Florida Group sends out monthly newsletters, published in and mailed from Duval County, and publishes the Sierra Sentry: Standing Watch on Northeast Florida. Sierra does not maintain a business address or bank account in the County; nor does Sierra own or lease real property, offices or buildings in the County. The Plan Amendments are not reasonably expected to constrain, inhibit, or prevent activities of Sierra's members, including their educational and permitting activities, although a Sierra member testified that the Plan Amendments would potentially "be adverse to [Sierra's] mission in terms of experiencing outdoors and the wildlife associated with the outdoors " Sierra submitted timely oral and written comments to the St. Johns County Commission between the time the County transmitted the Plan Amendment for review and the time the County adopted the Plan Amendment. Sierra made a presentation at the public hearing related to the Plan Amendments. Ellen A. Whitmer. Whitmer resides and owns property within the County and submitted timely oral and written comments to the County regarding the Plan Amendments. The parties agreed Whitmer has standing. Intervenors. SONOC owns the property which is the subject of the future land use map (FLUM) Plan Amendment being challenged in these proceedings. SONOC submitted oral and/or written comments to the County regarding the Plan Amendments. SONOC has expended approximately $3.5 million in the approval process. The PARC Group is the agent of SONOC, and is the applicant/developer of the Nocatee development, which is the subject of the Plan Amendments. The PARC Group submitted oral and/or written comments to the County regarding the Plan Amendments. St. Johns County. The County is a political subdivision of the State of Florida. Pursuant to Section 163.3191, Florida Statutes, the County prepared an evaluation and appraisal of the Plan and an Evaluation and Appraisal Report (the "EAR") in January 1998. The EAR process allows local government to periodically assess the success or failure of their comprehensive plan. The EAR is subjected to a sufficiency review by the Department. In May 2000, the County adopted the EAR-Based Comprehensive Plan Amendment (EAR-Based Plan Amendment), with supporting data and analysis, which the Department found to be "in compliance." This included the data and analysis for the future land use element (FLUE), which was adopted as part of the Plan. (Joint Exhibit 7-A). This is part of the data and analysis used to support the Plan Amendments at issue in this proceeding. The Department's "in compliance" review became final agency action without challenge. St. Johns County is located in the northeast portion of the State of Florida, south of Duval County and Jacksonville. The St. Johns River separates the County from Clay and Putnam Counties to the west. Flagler County borders the County to the south. There are three (3) incorporated municipalities located within the County, i.e., St. Augustine, St. Augustine Beach, and the Town of Hastings. The County comprises approximately 423,580 acres. St. Augustine is the largest municipality in the County. Agriculture and silviculture are the leading industries in the County. The County has a large portion of silviculture lands and there are more than 2.5 million acres in Northeast Florida. The intensive agriculture areas of the County are located in the southern part of the County. The Plan Amendments will not adversely affect the economic viability of agriculture or silviculture in the County. A barrier island runs the length of the County, from the Flagler County line to Duval County. Interstate 95 runs north and south through the County and is west of St. Augustine. U.S. Highway 1 also runs north and south and east of Interstate 95 and runs parallel to Interstate 95. The Tolomato and Matanzas Rivers form the majority of the Intercoastal Waterway on the eastern portion of the County and separate the barrier island from the mainland portion of the County. The Guana River State Park and Guana River State Wildlife Management Area form a significant part of the barrier island adjacent to the Tolomato River. The Department. As the state land planning agency, the Department reviewed the Plan Amendments and timely filed a Notice of Intent to find the Plan Amendments "in compliance." The Challenges While Petitioners cite to numerous statutory and rule provisions in their petitions, the principle allegations, that the Plan Amendments are not "in compliance," may be placed into three general categories: "need" and urban sprawl; natural resource protection; and economic feasibility. Under each of these general subject headings, Petitioners raise allegations that the Plan Amendments are inconsistent with Rule 9J-5, Florida Administrative Code, and Chapters 163 and 187, Florida Statutes, and that they are internally inconsistent with the St. Johns County Comprehensive Plan. The Nocatee Plan Amendments On February 23, 2001, the County amended its Comprehensive Plan by Ordinance No. 2001-18. The Ordinance contains four changes to the Plan. First, the Ordinance creates a new FLUE category known as "New Town Development" (Text Amendment). Second, the Ordinance changes the FLUM designation of approximately 11,332 acres of land from Rural/Silviculture to New Town (Map Amendment). Third, the Ordinance changes the FLUM designation for approximately 1,630 acres of land from Rural/Silviculture to Conservation (Preserve Amendment). (Petitioners are not challenging the designation of the Nocatee Preserve as "Conservation.") Fourth, the Ordinance adds text (Policy H.1.6.6) to the Plan authorizing the Nocatee DRI "to utilize the standards and guidelines set forth in [Section 163.3180(12), Florida Statutes] to satisfy the County's transportation concurrency requirements by payment of a proportionate share contribution is [sic] as stated in the Nocatee [DRI] Order, Special Condition 25, entitled Transportation Resource Impacts." (This latter provision allows the use of "pipelining" and is referred to herein as the Transportation Amendment.) These Plan Amendments are related to a proposed development known as "Nocatee." The New Town category was crafted to provide criteria and guidelines for large projects such as Nocatee. The acreage designated New Town by the Map Amendment is the proposed site of the Nocatee development. The acreage designated Conservation by the Preserve Amendment is for the purpose of establishing the "Nocatee Preserve." The Nocatee development will utilize the Transportation Amendment to address anticipated development impacts on the roadway system. These amendments and the Nocatee development are discussed in more detail below. Ordinance No. 2001-18 provides that "[t]he data and analysis supporting [these Plan Amendments] includes, but is not limited to, the Nocatee Application for Development Approval, Sufficiency Responses, and Nocatee Development of Regional Impact Development Order adopted concurrently with this Ordinance, application materials submitted by the Applicant and reports generated by the County Growth Management Department." Pursuant to Section 380.06, Florida Statutes, and Rule 9J-2, Florida Administrative Code, projects which must undergo Development of Regional Impact (DRI) review are subject to a multi-agency, multi-issue review of the proposed development's impacts and a process for mitigating those impacts. A DRI is a development order issued by a local government. It pertains to approval for a specific type of development for a particular site. A comprehensive plan is a different type of document, which considers long-term planning for an entire jurisdiction, taking into account the cumulative effect of many developments, including consideration of projected supply and demand in the future. DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate from that undertaken here. On the other hand, comprehensive plans and amendments, as here, must comply with Section 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with Chapter 380, Florida Statutes, to be "in compliance." A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process, or a development order may expire. Applications for DRI approval are prepared and submitted to the appropriate regional planning council by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan or plan amendment. Some of the information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment, as here. However, a DRI development order, in general, and the Nocatee DRI Development Order specifically, are not subject to an "in compliance" review in this administrative proceeding conducted pursuant to Section 163.3184(1)(b), Florida Statutes. At the conclusion of the DRI process, if project approval is attained, the local government issues a development order. Section 380.06(15), Florida Statutes. The development order must include, among numerous other information, a detailed listing of each land use by acreage and magnitude. Rule 9J-2.025(3)(b)(5), Florida Administrative Code. This land use information from the DRI development order is incorporated into the County Plan for any approved New Town. See Finding of Fact 33. In this case, the Nocatee DRI Application for Development Approval (ADA) was reviewed by the Northeast Florida Regional Planning Council as required by Section 380.06, Florida Statutes, (and by other agencies), and the Council recommended that the ADA be approved, with conditions. It was stipulated that "[i]n considering comprehensive plan amendments, there is no requirement that favorable consideration be provided to a proposed amendment solely because it is a DRI." See generally Section 163.3187, Florida Statutes. The Nocatee DRI "is a proposed mixed use development on approximately 13,323 acres, of which approximately 11,332 acres are located in northeastern St. Johns County . . . and approximately 1,991 acres are located in southeastern Jacksonville, Florida." On February 22 and 23, 2001, concurrent with its consideration of the Plan Amendments, the St. Johns County Board of County Commissioners considered the merits of the Nocatee DRI ADA and approved same through Resolution No. 2001- 30. Accordingly, while Ordinance No. 2001-18, adopting the Plan Amendments, expressly relies on, in part, the data and analysis in the Nocatee DRI ADA and related documents, including the Nocatee DRI Development Order, and Policy A.1.19.15 expressly refers to the Nocatee DRI and incorporates the "allowable uses and mix of uses within the Nocatee" DRI,1 the Nocatee DRI is not subject to "in compliance" review in this administrative proceeding. See 1000 Friends of Florida and Robert Jenks v. City of Daytona Beach and Department of Community Affairs, et al., 16 F.A.L.R. 2428 (DCA June 16, 1994). See also Pinecrest Lakes, Inc. v. Shidel, 795 So. 2d 191 (Fla. 4th DCA 2001)(discussing the scope of Section 163.3215, Florida Statutes). The Text Amendment The Text Amendment adds Objective A.1.19, "New Town Development," to the Plan, which is a new future land use category. The purpose of this new land use category is described as follows: The New Town Future Land Use category shall guide development into a series of clearly identified and distinct villages that together form a larger New Town. Within the New Town there is a clear hierarchy of development types utilizing neighborhoods as the basic development unit. Several neighborhoods and one or two village centers combine to form a village, and several villages form a New Town. A central village functions as the Town Center Village, and includes the main employment[,] shopping, and cultural activities for the New Town. Villages shall have central focal points of higher densities and intensities that create an identity and a sense of place. The planned mix of uses of New Towns shall help to provide a positive fiscal impact for the County. New Towns shall offer a wide range of housing choices, including affordable housing. The New Town Future Land Use category may be requested for any Development of Regional Impact that meets the policies set forth herein. The Board of County Commissioners may approve or deny any New Town on a project-by-project basis, after the New Town review. The Text Amendment is proposed to be included in the County's Plan as FLUE Objective A.1.19 – which is quoted in full immediately above – and fifteen (15) implementing policies (Policies A.1.19.1 through A.1.19.15). Unlike many of the other land use categories in the Plan, which are defined only by the statutorily-required minimum list of allowable uses and standards, the New Town land use category contains detail on a wide spectrum of issues ranging from fiscal impact analysis, affordable housing, to the "[i]nterconnectivity of pedestrian and vehicular routes through the [New] Town to encourage multi-modal circulation." The detail contained in the Text Amendment is necessary to ensure that a specific form of development occurs on land bearing the New Town future land use designation. The land use pattern of this category is a tool to combat urban sprawl, as further explained below, and was crafted with guidance from the following Rule definition. "New town" means a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct from existing urban areas and other new towns. A new town shall be of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban designation. New towns shall include basic economic activities; all major land use categories, with the possible exception of agricultural and industrial; and a centrally provided full range of public facilities and services. A new town shall be based on a master development plan, and shall be bordered by land use designations which provide a clear distinction between the new town and surrounding land uses. Rule 9J-5.003(80), Florida Administrative Code. The New Town category in the Text Amendment is consistent with and furthers the concept embodied in this definition, i.e., the creation of an efficient urban level of mixed-use development in a rural area. The Text Amendment sets 2,500 acres as the minimum size for any parcel to be eligible for designation as a New Town. The Text Amendment then establishes general land use standards applicable to the overall New Town parcel, which are embellished by more specific controls for the different components of the New Town. "At least 35% of lands within a New Town development shall be reserved for Open Space/Conservation and shall preserve a connected system of environmentally sensitive and passive recreation areas that will form a greenway system," and shall be provided for public uses. "The greenway system will serve the additional goal of surrounding and defining villages and the Town Center Village." ("Greenways, wetlands, and similar natural areas are open space/conservation. Open space/conservation does not include parks, golf courses, and other designated recreational lands.") At least 40 percent of the net developable acreage of a New Town must be residential units and, of the total residential units, at least 20 percent must be multi-family, and at least 50 percent must be residential single-family. Workplace land uses, i.e., retail, service, office, and industrial, must comprise at least five percent of the net developable acreage. This proportion of mix of uses is further refined in Policy A.1.19.9, where square footage requirements for each of the non-residential land uses are linked to the number of approved dwelling units, e.g., a minimum of 50 square feet of retail space for each dwelling unit and 30 square feet of civic space per dwelling unit in a Town Center Village and five square feet per dwelling unit for each Village. Other "specific use standards" are provided. New Towns are also required to provide land for libraries, fire stations, local government annexes, school sites and similar public uses and shall provide minimum park acreage equivalent to Comprehensive Plan LOS [level of service] requirements. In addition to this overall guidance, the Text Amendment directs a specific community form by assembling the several mixed uses into components which together will form the New Town. The "neighborhood" is designed to be the "basic development unit" within the New Town. Neighborhoods are to be compact residential areas with a mix of housing types. "Several neighborhoods and one or two village centers combine to form a village, and several villages form a New Town." Village Centers are areas designed to provide civic, service, limited retail, and elementary school uses for the surrounding neighborhoods. "A village shall contain distinct neighborhoods that will each have a central neighborhood park, which shall be called the neighborhood commons." At least 10 percent of each village must be retained in open space/conservation areas. While residential uses (at least 10 percent of net developable acreage) are also allowed in village centers, at least 45 percent of net developable acreage of the uses must be non-residential. Villages composed of these centers and neighborhoods are to be surrounded by greenways, golf courses, and natural features, and linked to the remainder of the New Town through interconnected roads and a pedestrian/bikeway system. Also, within villages, low density residential must have an overall net residential density between 1-2 units per acre. Medium density residential development must have an overall net density between 2-6 units per acre. Traditional neighborhoods must have an overall net density of 4-6 units per acre. In addition to the villages, each New Town is to contain a "Town Center Village," which "is intended to serve as the cultural, shopping, employment and civic center for the New Town, and shall include office uses, light industrial areas, and higher density residential uses surrounding a mixed-use core." In addition to some single-family residential and retail, the Town Center Village must contain at least 30 percent multi-family residential (percentage of units) and 45 percent (percentage of square feet) office use in order that "[t]he mixed-core shall have the characteristics of a downtown." The most intense of these uses are to be concentrated in the "Town Center Village Mixed-Use Core," which is to be the "pedestrian-oriented 'Main Street' area of retail, service, office, residential, and civic uses." Both the Town Center Village and its Mixed-Use Core are governed by specific design standards addressing matters such as sidewalks, signs, porches, and on-street parking. Overall, the Objective and Policies contained in the New Town land use category provide meaningful and predictable detail.2 The specific Policies describe the types and uses and how these uses will relate to one another, the mix of uses, transportation issues, interconnectivity, design, and urban features of New Towns. The Map Amendment In the same Ordinance in which the Text Amendment was adopted, the County adopted a Map Amendment changing the FLUM designation of approximately 11,332 acres from Rural/Silviculture to New Town. The Map Amendment was adopted to allow development of a project known as "Nocatee." As required by the Text Amendment, Nocatee has been designated as a New Town on the FLUM, and has been reviewed and approved as a DRI. The "allowable uses and mix of uses" within the Nocatee DRI Development Order have been incorporated into the County Plan Amendments. The Nocatee project includes approximately 11,332 New Town acres in St. Johns County. ("The Nocatee site consists of approximately 15,000 acres, with approximately 2200 acres in Jacksonville and the remainder in St. Johns County. The site is generally bounded on the west by [U.S.] 1, on the east by the Intercoastal Waterway, on the south by Pine Island Road, and extends north of CR 210 approximately 1.5 miles.") However, the portion of Nocatee in the southern portion of Duval County (Jacksonville) is not subject to the instant challenges. The land uses adopted in the Nocatee DRI Development Order and incorporated into the St. Johns County Plan are as follows: 2,872,000 square feet, 336 acres of office uses; 968,000 square feet, 150 acres and 3,900 parking spaces for retail commercial uses; 250,000 square feet, 29 acres and 500 parking spaces for light industrial uses; 12,579 total dwelling units, comprising 8,811 single family units, 3,228 multi-family units (including single-family attached units), and 540 assisted living units; 54 golf course holes, 485 hotel rooms, 5,531 acres of recreation/open space (including, but not limited to, parks, the Greenway, and golf courses), churches, schools, and civic uses. The uses described above are to be developed in five phases, each anticipated to last five years, with various combinations of uses allowed in each phase. Individual phases may be extended pursuant to Section 380.06(19), Florida Statutes, or accelerated provided that all mitigation requirements have been satisfied for the particular phase to be accelerated. The Nocatee DRI includes a Town Center Village, a secondary town center, seven other villages, and up to two village centers in each village. Village centers may include limited intensity office and retail commercial uses and an elementary school. However, "[t]he specific location of all land uses will be determined through the [Planned Unit Development] PUD approval process." The Nocatee DRI Development Order contains a "conversion table" which authorizes the conversion, at a defined rate, of one type of land use to another, but prohibits the conversion of non-residential land uses to residential uses during the first two phases of development. The conversion tables cannot be used to convert the Nocatee DRI land uses below those established in the New Town land use category. The Preserve Amendment Along with the Text and Map Amendments, the County adopted the Preserve Amendment, which re-designated approximately 1,630 acres of land from Rural/Silviculture to Conservation for purposes of establishing the "Nocatee Preserve." The Nocatee Preserve is an area of over 2500 acres including close to 1800 acres of land above the mean high water line. This strategic location with over 3 miles of frontage on the Tolomato River complements the Guana State Park and the Guana Wildlife Management area directly east of the river. The Nocatee Preserve will expand preserved environmental lands to both sides of the Tolomato River. This expansion of environmental lands will provide additional protection for the northern Tolomato River Basin and will provide passive recreation opportunities for both the Nocatee community and the entire region. Additionally, the Preserve will serve as a buffer between the Tolomato River and future development within Nocatee–a buffer that is between 1 and 1 1/2 mile wide. The Preserve includes the most ecologically significant (and economically valuable) part of the [Nocatee] property. Transportation Amendment The last change to the County Plan (Policy H.1.6.6) here at issue, the Transportation Amendment, provides: The Nocatee Development of Regional Impact, a multi-use development meeting the criteria of Chapter 163.3180(12), Florida Statutes, is authorized by the County to utilize the standards and guidelines set forth in the Statute to satisfy the County's transportation concurrency requirements by payments of a proportionate share contribution is [sic] as stated in the Nocatee Development of Regional Impact Development Order, Special Condition 25, entitled Transportation Resource Impacts. Pursuant to operation of the Transportation Amendment, Nocatee "will contribute up to $99,741,366 in cash payments and funded transportation improvements to offset the impacts of the Nocatee development upon the regional transportation system " Agency Review and Notice The Department is the state land planning agency and has the authority to administer and enforce the Local Government Planning and Land Development Regulation Act (Act), Chapter 163, Part II, Florida Statutes. Among the responsibilities of the Department under the Act is the duty to review plan amendments and determine if the plan amendments are in compliance with the Act. On or about June 1, 2000, the Department received the County's proposed Plan Amendments, and copies were distributed to various state, regional, and local agencies for their review and comments. On August 10, 2000, the Department submitted its Objections, Recommendations and Comments (ORC) Report issued pursuant to Rule 9J-11.010, Florida Administrative Code. Comments from the Department of Environmental Protection and the St. Johns River Water Management District were attached to the ORC. On or about January 22, 2001, the Applicant, The PARC Group, submitted its response to the Department's ORC. On February 22 and 23, 2001, the St. Johns County Board of County Commissioners held noticed hearings on the Nocatee DRI and related Comprehensive Plan Amendments and enacted Ordinance No. 2001-18 (Comprehensive Plan Amendment 01-01D), adopting changes to the Comprehensive Plan and Future Land Use Map, and also enacted Ordinance No. 2001-30, approving the Nocatee DRI. On March 5, 2001, the County furnished the Department with a submission package including documents relating to the Plan Amendments. On April 18, 2001, the Department caused to be published its Notice of Intent to find the Text Amendment, Map Amendment, Preserve Amendment, and Transportation Amendment "in compliance" pursuant to Sections 163.3184, 163.3187, and 163.3189, Florida Statutes. Need and Urban Sprawl The nomenclature "New Town," adopted as the title of the Text Amendment, is a reference to a form of land use described in Rule 9J-5, Florida Administrative Code. By definition, a "New Town" means, in part, "a new urban activity center and community designated on the future land use map and located within a rural area or at the rural-urban fringe, clearly functionally distinct or geographically separated from existing urban areas and other new towns." In addition, a "New Town" will necessarily contain a full range of uses in order to support a variety of economic and social activities "consistent with an urban area designation." See Rule 9J- 5.003(80), Florida Administrative Code. The new town land use generally described in Rule 9J-5.003(80), is a category expressly designed to combat urban sprawl. Rule 9J-5.006(5)(l), Florida Administrative Code, recognizes new towns as one of the "innovative and flexible" manners in which comprehensive plans may discourage the proliferation of urban sprawl. The weight of the evidence demonstrated that the New Town development form contained in the Text Amendment will discourage urban sprawl. For example, Dr. Downs and Mr. Porter, both of whom are national growth management experts with decades of experience, testified that new towns in general, and specifically, the Text Amendment adopted by the County, serve to discourage urban sprawl. Mr. Pennock, the primary author of the urban sprawl rule, which is now a part of Rule 9J-5, Florida Administrative Code, testified that the types and mix of uses in the Text Amendment are appropriate for a new town and will serve to discourage urban sprawl. The designated Nocatee New Town is located on the St. Johns County/Duval County line in the Northeast Planning District, and lies east of U.S. Highway 1, and straddles County Road 210. The Nocatee New Town lies in the rural/urban fringe, within the fastest growing sector of the County, in the regional growth corridor emanating from southeast Duval County and Ponte Vedra. This is an advantageous location because it is close enough to the main employment center in the area (Jacksonville), to afford residents employment opportunities. Additionally, the Nocatee New Town is a master-planned community, unlike piecemeal fragmented development which has occurred in other parts of the County. Consistent with the Text and Map Amendments, the Nocatee New Town is planned to include preserved natural areas and greenways and villages. Each village is expected to consist of neighborhoods and a village center, which will include elementary schools, civic and retail uses, and higher density housing. The Nocatee New Town serves as a cultural center, providing for a mix of higher density residential, retail, restaurant, hotel, office, and light industrial, schools, churches, a fire station, a library, a county annex, a police complex, parks and public spaces, and as athletic complex. The Nocatee New Town is geographically separated from existing areas by U.S. Highway 1 and preserved greenways, and is a functionally distinct land use. The Nocatee New Town is functionally similar in size and land use composition to other successful new towns, and includes basic economic activities in all major land use categories. Further, the Nocatee New Town is innovative planning, especially for a rapidly urbanizing county like St. Johns. In addition, it provides for flexibility in land use mixes by designating minimum land use percentages, but not requiring fixed percentages. This flexibility is desirable to allow for market adaptation over the 25-year build-out period. The expert testimony at the final hearing was persuasive that the location chosen for the Map Amendment is appropriate for a New Town in the County. Just a short distance to the north of the Map Amendment is Jacksonville, which was accurately described as "the major economic engine for the northeast Florida area . . . ." The past two decades of economic success for Jacksonville have resulted in growth along a corridor to the southeast, i.e., directly toward the site of the Map Amendment and the proposed Nocatee New Town. From 1991 to 1996, approximately 42 percent of the growth in St. Johns County occurred in the area around the proposed Nocatee New Town. The Nocatee New Town can be expected to improve the current, incremental and piecemeal development patterns of the County. Unfortunately, the emerging development pattern in the northeast area of the County exhibits indicators of sprawl. Currently, growth is not occurring in the most compact fashion. Sprawl is often viewed as a single-use or low- density residential setting. Here, the New Town concept offers a mixture of uses and the Plan Amendments, in particular, require an overall residential density range of three to eight units per net developable residential acre, whereas most of the residential areas of the County appear to have two residential unit per acre, and the proposed density for Nocatee is higher than the existing average in the northeast portion of the County. If Nocatee is developed according to its approved plan, it will be a New Town and will be a useful tool to fight this undesirable land use pattern of current development and is an anti-urban sprawl alternative to the existing sprawl development in the County. Petitioners maintain that the Text Amendment will allow, and the Map Amendment will promote, urban sprawl for essentially two reasons; first, there is no "need" for a new land use approval; second, there are insufficient guarantees that Nocatee or any future approval will actually develop as a New Town. The "need" question is founded in Section 163.3177(6)(a), Florida Statutes, which requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area . . . ." This requirement is repeated in the statute's implementing rule, i.e., Rule 9J-5.005(2)(e), Florida Administrative Code ("The comprehensive plan shall be based on resident and seasonal population estimates and projections.") Finally, the "need" issue is one of the primary factors to be considered in any urban sprawl analysis. See Rule 9J-5.006(5)(g)1, Florida Administrative Code (urban sprawl may be present where a plan designates for development "uses in excess of demonstrated need"). The calculation of how much land is needed to accommodate the projected population involves comparing what is available for development under the comprehensive plan with the projected population over the same planning time frame applicable to the plan. An "allocation ratio" to express this need can be derived by dividing the development potential by the projected population. For example, if a comprehensive plan allocated 100 residential dwelling units over the planning time frame and the jurisdiction's population was projected to increase by 100 over the same time, there would be an allocation ratio of 1:1. This ratio would express an exact match between supply and demand. A ratio of 2:1, on the other hand, would demonstrate that the jurisdiction had twice as much land as designated for use as the projected population is expected to need. There is no allocation ratio adopted by statute or rule by which all comprehensive plans are judged. The testimony in this case from the planning experts is that there is no accepted "hard and fast" allocation ratio at which a local government would be required to deny all future plan amendments. (There is testimony from Department planners that there is a recommended guideline, which set a ratio of 1.25:1 of supply over demand. This ratio has not been adopted as a rule nor has it been proven to be an accepted ratio to be applied in this case.) Rather, the allocation ratio is a planning guideline to be used for two purposes: first, ensuring a local government has enough land to accommodate future population; second, discouraging urban sprawl. The County divides St. Johns County into four Planning Districts (part of the data and analysis of the Plan) for purposes of calculating allocation ratios of the amount of land needed for particular land uses compared to an amount of land so designated. (Disaggregating allocation ratios into planning districts is professionally acceptable.) Planning districts differentiate the County into different growth scenarios, development trends, and land use patterns. County staff explained the analysis performed regarding each of the four Planning Districts. Separate ratios were developed for each Planning District. Population projections were developed based on historical growth and compared to the Bureau of Economic and Business Research (BEBR) numbers. See footnote 5. In part, the County analyzed the amount of developable land designated in the FLUM, which was converted "into a very specific GIS map, so [they] had more definitive areas . . . ." Developable and un-developable land was analyzed. The County also examined the nature of the future land use densities existing on the developable lands to derive "a potential development for those developable areas and compare[d] those to the population projections which converted into housing units." A comparison was made "between population projections or need for housing units and the amount of dwelling units that can be accommodated in this developable area on the map."3 As otherwise noted further in Joint Exhibit 7-A, page A-37, in part: These population projections are then converted into housing demand by planning district as discussed in the Housing Element. The demand for these housing units will occur in different residential densities. However, as an aggregate measure, the total housing units needed is useful for comparison to the maximum net densities allowed for the various residential land use designations. It should be pointed out that rarely are the maximum net densities achieved, particularly at the higher density lands. For instance, while the Mixed Use Districts allow up to 13 units per acre, historically these acres have developed at much lower densities. This trend has been particularly significant due to the shortage of multi-family dwelling units constructed in the County. Single-family residential developments generally cannot achieve the densities at the high density level (6-13 units per acre), and rarely exceed the threshold for low density development (less than or equal to 2 units per acre). The May 2000, County EAR-Based Plan Amendment for the FLUE, provides residential land use allocation ratios for the year 2015 ranging between 1.63:1 for the Northeast Planning District to 11.59:1 for the Southwest Planning District, and an overall County allocation ratio of 3.08:1. These ratios appear in Joint Exhibit 7A at A-41, Table A-10, and were previously approved by the Department. ("A comparison of the allocation of dwelling units from the available developable land with the projected housing demand by planning district is provided in Table A-10.") Intervenors' expert independently calculated County allocation ratios, including the Nocatee New Town Map Amendment, and arrived at a ratio of 2.33:1 for the Northeast Planning District and 2.9:1 for the entire County, using data available as of February 2001.4 It is at least fairly debatable that these allocations ratios are supported by appropriate data and analyzed in a professionally acceptable manner. Numerous witnesses testified that allocation ratios should not be used as a bright line test because there are no adopted rules or clearly defined professional standards which establish a maximum ratio above which a plan amendment may not go. In other words, use of a maximum allocation ratio as a set upper limit, without consideration of other relevant factors to establish need, would offer no concrete, professionally accepted standard. Sierra offered no independent allocation ratios. Rather, Sierra elicited testimony from County staff that, if a series of assumptions supplied by Sierra were used to calculate the allocation ratios, based on Sierra's concept of using maximum theoretical density, the allocation ratios would be as high as 4.36:1 and 6.1:1 for the Northeast Planning District of the County. In other words, Sierra sought to have the County's calculations redone using the maximum theoretical density allowed under each land use category.5 The allocation ratios offered by Sierra raise a concern that, with the Nocatee development, there is a projected over-allocation of supply to meet the projected demand in the County, and, in particular, in the Northeast Planning District of the County. However, there is no persuasive evidence that the strict maximum theoretical density methodology offered by Sierra was professionally acceptable for use in the County to project the future need in light of the Plan Amendments. In fact, the testimony was that an allocation ratio utilizing the maximum theoretical density may be appropriate if only urban lands are included in the calculation, and if appropriate restrictions on the ability to realize this density are made a part of the equation. Sierra did not so limit its inquiry. Also, the weight of the evidence indicates that the use of maximum theoretical densities, as calculated according to Sierra, is more likely than not to overstate the realistic densities that will be achieved on the land designated for residential use by the County. While not mandating that every subsequent plan amendment must be categorically denied, the presence of an over-allocation will trigger a heightened, more thorough review of the indicators of urban sprawl when considering further plan amendments. Only amendments subjected to this greater scrutiny and still found to discourage urban sprawl may be found "in compliance" in the presence of an over- allocation. On the other hand, a higher allocation ratio may be appropriate in relatively high-growth counties, like the County, to offset the difficulties inherent in forecasting growth. An allocation ratio which is set too low may tend to reduce market choice, resulting in increased housing prices and a reduced employment base. There is persuasive evidence that the Map and Text Amendments meet this heightened level of sprawl analysis. Urban sprawl involves, at its core, the spreading of low density or strip commercial development from urban areas into rural lands. The determination of whether any amendment or plan constitutes urban sprawl is undertaken pursuant to the criteria of Rule 9J-5.006(5), Florida Administrative Code. The emerging development pattern in northeast St. Johns County exhibits numerous symptoms of sprawl. There is persuasive evidence that the Text and Map Amendments can be reasonably expected to make the situation better by providing "an anti-sprawl alternative to what's there now." The rule applicable to sprawl speaks directly to this situation. If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Rule 9J-5.006(5)(k), Florida Administrative Code (emphasis added). Neither Petitioner offered persuasive evidence to rebut the finding that the Map and Text Amendments improve the existing development pattern in northeast St. Johns County. Sierra attempted to imply that the Text and Map Amendments allow for the proliferation of urban sprawl in the form of low-density residential development. Contrary to this argument, the evidence shows, for example, that the three to eight dwelling units per net developable residential acre contained in the Text Amendment, coupled with the text provisions directing the location of higher density residential uses, affordable housing, and the myriad of non- residential uses, provide meaningful and predictable standards for the development of an anti-sprawl New Town. The flexibility built into the Text and Map Amendments afford a reasonable ability to change and meet the market demands over a long-term build-out. Natural Resource Protection Every New Town development must adhere to the Policies in the Plan. The Plan Amendment adds additional requirements to the Plan in the environmental section, Policy A.1.19.5, "Environmental Consideration." Policy A.1.19.5 of the Text Amendment affords natural resource protection by requiring that at least 35 percent of any land designated New Town shall be "reserved for Open Space/Conservation lands and shall preserve a connected system of environmentally sensitive and passive recreation areas that will form a greenway system." "At least 15% of this open space component must be uplands." At least ten percent of a village must be retained in open space/conservation areas. According to Policy A.1.19.5, "[s]ignificant environmental characteristics" must "be incorporated into the New Town design, particularly into the greenway system." The applicant for a New Town designation is required to "provide data and analysis regarding potential environmental impacts, including, but not limited to[,] impacts to wetlands, sub- surface waters, and surface waters and the presence of plant and animal species that are listed by the U.S. Fish and Wildlife Service or the Florida Fish and Wildlife Conservation Commission as threatened, endangered, or as a species of special concern." Natural resource protection is furthered through Objective A.1.19 which states: "The New Town Future Land Use category may be requested from any [DRI] that meets the policies set forth " in the Plan Amendments. The application form for a DRI requires a detailed listing of vegetation and wildlife. Rule 9J-2.010(1)(a), Florida Administrative Code. Any flora or fauna identified as listed must be protected in accordance with the Department's "Listed Plant and Wildlife Resources Uniform Standard Rule." Rule 9J-2.041, Florida Administrative Code. Master planning, such as in a DRI, better protects natural resource than piecemeal development. Moreover, there is persuasive evidence that natural resources can be better protected under the New Town category than in the existing Rural/Silviculture land use category. Pursuant to these provisions, there are 5,531 of the 11,332 acres designated as New Town set aside for recreation/open space, "including, but not limited to, parks, the Greenway, and golf courses." This set aside is based upon data and analysis compiled through the DRI review process. The Nocatee Preserve (an example of an "environmentally significant characteristic") is the most significant environmental resource on the Nocatee site and establishes additional resource protection. (The Plan Amendments designate approximately 1,630 acres (the Nocatee Preserve) lying above the mean high water line in the "Conservation" land use category. Petitioners do not object to this designation.) This Preserve is a mosaic of uplands and wetlands and includes tidal saltwater wetlands. It includes streams, uplands, and a variety of habitats. It fronts the Outstanding Florida Waters (OFWs) of the Guana/Tolomato preserve areas. The Preserve adds protection for the aquatic preserve. The Nocatee Preserve is located between the Nocatee New Town and the Tolomato River and protects the parcel's approximately 3.5 miles of frontage on the Tolomato River (Guana-Tolomato Aquatic Preserve). It is likely to ensure the protection of wildlife habitat on both sides of the Tolomato River and a natural view for recreational boaters and others. In addition to the Nocatee Preserve, which is approximately 1 1/2 miles wide, "the greenways," comprising a minimum of 4,961 acres (at least 960 acres of uplands at build-out) in St. Johns and Duval Counties, will be preserved. Greenways will consist of wetlands and uplands. Vegetative communities currently found on site will be preserved. The County's FLUM series includes Map 9-B, entitled "Environmentally Sensitive Lands (ESL)." Within the County, the ESL designation is given to OFWs, estuaries, wetlands, essential habitat to listed species, coastal barrier resources and beach and dune systems, and other areas specifically designated by the Board of County Commissioners.6 (Policy E.2.2.5 of the Plan also requires the County to protect ESLs "through the establishment of Land Development Regulations (LDRs) which address the alternative types of protection for each type of" ESL.) The weight of the evidence indicates that Map 9-B is a generalized depiction of these ESLs. On its face, the Map contains a disclaimer that the data are provided from multiple sources, with varying degrees of accuracy. In essence, Map 9-B is used by the County for "reference only" purposes, i.e., data and analysis only, and is not intended to be used as a predicate for decision-making, for example, a determination is made as to the "exact location of a wetland jurisdictional line." Map 9-B, although part of the data and analysis, is not the best available data for site-specific analysis. Policy A.1.11.7 of the Plan Amendment states that "[i]n the event of a conflict between any of the Maps and the text of the Plan, the text of the Plan shall control." Pursuant to the Plan Amendments, see, e.g., Policy A.1.19.5, the County requires applicants for New Town plan amendments to provide the County with site-specific information, including environmental, and wildlife surveys (conducted pursuant to the Florida Fish and Wildlife Conservation Commission's (FFWCC) requirements),7 including vegetative surveys, in order for the County to determine the extent of ESLs on the property, proposed for New Town designation. See Finding of Fact 95. This information is part of the data and analysis required under the Plan Amendments and is required to be based on professionally accepted methodologies. Site visits by County personnel are also required. Sierra alleges that the protective measures mentioned above in the Plan Amendments fail to adequately address natural resources because the term "significant environmental characteristics" in the Text Amendment and the protections attendant such areas are uncertain, and the depiction of greenways, wetland impacts, and development of the "Sandy Ridge Village" as depicted in various maps attached to the Nocatee DRI Development Order, allow undue impacts. The operation of the Text Amendment as a whole, including the provision for the protection of "significant environmental characteristics," when read in conjunction with the protections required in the Plan and Plan Amendments, can be expected to afford protection of natural resources. The remainder of Sierra's allegations rest on the presumption that the maps of development areas and greenways attached to the Nocatee DRI Development Order are part of the County Plan and are subject to this compliance review. However, the only portion of the Nocatee DRI Development Order incorporated into the Plan and subject to this review is the provision that establishes the "allowable uses and mix of uses." Policy A.1.19.15. The location of those uses, as shown in the Nocatee DRI Development Order is not incorporated into the Plan. (However, Ordinance No. 2001-18, recognizes the importance of the Nocatee DRI Development Order. See Ordinance No. 2001-18, Section 2, paragraph 5). Accordingly, and as further set forth below in the Conclusions of Law, Sierra's allegations that the Plan Amendment must be found not "in compliance," e.g., because of the location of uses and their potential impact on natural resources, is beyond the scope of this proceeding. Nevertheless, the data and analysis supporting the Nocatee DRI have been considered herein in order to determine whether the Plan Amendments are "in compliance." The Nocatee site in Duval and St. Johns Counties is approximately 15,000 acres, of which "approximately 8,000 acres of uplands and wetlands will be preserved in the Greenway, the Preserve and within preserved jurisdictional wetlands in the villages and Town Center Village " Further, it was apparent that when several maps are reviewed together, up to 474 acres of wetlands may be impacted by the development, subject to further permitting. At present, it is speculative as to the precise number of wetlands which will be impacted by the development. However, there are general depictions of wetlands delineated on, for example, Maps H-1 and H-3, which are anticipated to be preserved. Ultimately, the wetlands impacts are required to be addressed on a site- specific basis in future permitting by the United States Army Corps of Engineers and the St. Johns River Water Management District.8 Sierra's expert (Mr. Hoctor) opined that the proposed greenways were, in some instances, too narrow because protected areas should be located at least 330 feet from developed areas due to "edge effect." However, Mr. Hoctor also stated that the distance of the edge effect could be less than 330 feet, although he believed that 330 feet "is a good base-line estimate of edge effects." On the other hand, the County and Intervenors' experts opined that the greenways, as designated, are sufficiently wide, and can be expected to provide adequate habitat to sustain the environmental resources on site.9 In general, on the Nocatee site, buffers of upland areas ranging from 15 to 100 feet will be preserved in their natural state adjacent to wetlands systems. In some areas, the width of the proposed buffers will exceed current County requirements. The buffers serve to push incompatible land uses away from surface waters and protect wetland functions. Further, Deep, Durbin, Smith, and Sweetwater Creeks are proposed to be protected by a minimum 100-foot buffer along the Creeks, which is twice as wide as other County requirements for these areas. (Theoretically, estuary systems, require a 50-foot buffer, whereas the Nocatee project has committed to a 100-foot buffer.) The County Land Development Code requires upland buffers adjacent to contiguous jurisdictional wetlands, and the buffer sizes vary, dependent upon the location of the wetlands. For example, a 50-foot buffer is required along the Tolomato River in areas where the high water line can be set; and in all other areas with contiguous wetlands, a 25-foot buffer and a 25-foot setback are required. As noted in the Nocatee DRI ADA, Question 16, Second Sufficiency Response: "The state-of-the-art stormwater management system proposed for Nocatee will limit the 100-year flood plain to greenways, wetlands, and stormwater management facilities. No post-development developed areas in Nocatee will be in the 100-year flood plain." This representation is adopted in the Nocatee DRI Development Order. Further, the bald eagle is a protected species and the habitat for the bald eagle is an essential habitat. The bald eagle's nest on-the Nocatee site is being protected by means of a 1,500-foot management zone (360 degrees). (The United States Fish and Wildlife Service guidelines indicate that a 1,500-foot buffer should be utilized.) Petitioners also offered evidence, by and through the testimony of Mr. Hoctor, that "only about 60 acres of both sand hill and scrub are proposed for protection out of at least 180 acres of zeric communities on site. Most of it long leaf pine sand hill and xeric oak sand hill." According to Mr. Hoctor, these areas include a 70-acre sandy hill parcel in the proposed Sandy Ridge Village, which is not expected to be preserved, and a 25-acre parcel, which will be preserved. (A 17-acre parcel of scrub-type habitat will also be preserved in the southwest corner of the site.) The experts agree that gopher tortoises live in and need sandy soils to construct their burrows. Gopher tortoises will be impacted by the Nocatee development. One of the guidelines set by the FFWCC states that a minimum size patch of 25 acres is necessary for on-site protection of gopher tortoises. The experts disagree as to whether preservation of a proposed 25-acre site (to be incorporated into a 20-mile greenway on-site) is sufficiently large enough to accommodate the gopher tortoises (and gopher frogs, indigo snakes, and other species) on the Nocatee site. The County and Intervenors provided reasonable explanations for requiring the preservation of the 25-acre site (as a significant natural communities habitat) in lieu of the 70-acre site. At the very least, reasonable minds have differed on this issue. It is also subject to reasonable debate whether gopher tortoises will remain on-site given the preserved 25-acre site. On the other hand, the 25-acre site has canopy and good ground cover vegetation for the gopher tortoise community. Also, pursuant to the Nocatee DRI Development Order, "as mitigation for impacts to gopher tortoises and their commensals, the Developer will be responsible for off-site mitigation of the equivalent of approximately 66 acres of habitat, in conjunction with the permit requirements of the [FFWCC]." "This off-site mitigation will be accomplished by the Developer by issuance of an incidental take permit or by purchase of habitat at an off-site location within the jurisdictional boundaries of the Northeast Florida Regional Planning Council." Total preservation on-site is expected to be approximately 33 percent which exceeds the ten percent Plan requirement. Sherman Fox Squirrels are a species of special concern. It appears that two fox squirrels have been sighted on the Nocatee site in the general vicinity of the St. Johns County/Duval County lines. This species is "highly mobile" and "will very likely migrate to other suitable habitat when the [Nocatee site is developed]." "[F]ox squirrel habitat will be included in the incidental take permit." The preservation of the fox squirrels has been addressed in a general way, i.e., through preservation of significant natural communities and the 8,000 acres of land which is being preserved on-site. Petitioners also presented expert testimony that the Nocatee site is an essential habitat for the Florida Black Bear, which should be protected by preserving a "large swath" of most or all of the southern portion of the Nocatee site which "would serve as a potentially functional wildlife corridor." (The Florida Black Bear is a threatened species. The minimum acreage required to sustain a viable population for the Florida Black Bear is between 500,000 and 1 million acres.) The experts disagreed whether portions of the Nocatee site are essential habitat for the Florida Black Bear population and the extent of the impacts on the Florida Black Bear if the Nocatee site is developed as proposed. (Mr. Hoctor suggested during cross-examination that the Florida Black Bear population, east of U.S. Highway 1 in the County, stood "only a fair to poor chance of being viable.")10 Part of the habitat data discussed by Mr. Hoctor indicates that bear road kills were more than 15 years ago. More recent bear kills have occurred in other parts of the County (west of the river or adjacent to the Twelve Mile Swamp property), but not east of Interstate 95 in the Nocatee area. Even if Florida Black Bears use the Nocatee site, more than one-half of the site (approximately 8,000 acres), which will be preserved for wildlife corridors, potentially may be used by Florida Black Bears for migration and foraging. It is at least fairly debatable whether the environmental components of the Plan Amendments are "in compliance." Land Use Suitability The Nocatee site plan was based upon a land use suitability analysis, considering soils, wetlands, vegetation, archeological sites, and topography. The Nocatee DRI ADA contains appropriate data and analysis, including testimony during the final hearing, related to such topics as "vegetations and wildlife," "wetlands," "soils," "floodplains," and "historical and archeological sites." The Nocatee scientists spent approximately 8,000 man hours in the field (on the Nocatee site) over a course of two and one-half years collecting detailed data related to these issues. The data was collected and analyzed in a professionally acceptable manner. Economic Feasibility In General The Capital Improvement Element (CIE) of a Comprehensive Plan identifies facilities for which local government has financial responsibility, which include roads, water, sewer, drainage, parks, and solid waste. (As noted herein, this does not include schools for which the School Board has financial responsibility.) Petitioners raise numerous issues relating to the "financial feasibility" of the Plan Amendments. The record contains detailed data and analysis of existing and future public facility needs. The data and analysis were conducted in a professionally acceptable manner. Further, the County conducted a cost benefit analysis of the Nocatee development and determined that the development can be expected to produce a positive revenue stream for capital expenditures in each year. (For example, the County's Budget Director calculated that as of build-out (twenty-five year period), Nocatee will result in a net financial gain to the County of approximately $114 million.) This study was bolstered by Intervenors' cost benefit analysis documenting a net positive cash flow. Public Schools Sierra contends that the Map Amendment runs afoul of the State's growth management laws by not providing a financially feasible development that adequately addresses its impacts on the public school system. As set forth in the Conclusions of Law, existing laws do not require local governments to address public schools as part of comprehensive planning. This link between land use and public schools is currently optional and the County has not elected to pursue the option; this election is supported by extant law. There is persuasive evidence that the County is not responsible for funding public school facilities. Rather, the St. Johns County School Board is responsible for such funding. For example, the only portion of the school facilities construction paid by the County occurs when the School Board requests the County to pay for the upgrading of a facility to provide for use as a hurricane shelter. The Nocatee developers agreed to construct at least two such shelters in accordance with the Department of Education's standards. However, the placement of hurricane shelters is a decision made by the County, not the School Board. Furthermore, the County has not adopted a Public School Facilities Element or a school concurrency funding program. (Examples of concurrency requirements for the State of Florida include transportation, potable water, sanitary sewer, parks and recreation, drainage, and solid waste.) The St. Johns County School Board is an independent taxing authority with an established budget for school construction and operation. Nevertheless, with respect to the New Town Category, elementary schools are allowed within or adjacent to village centers and the Town Center Village. The Nocatee development will require an additional eight schools in the County in order to meet the projected need. (Mr. Toner projected that over a period of 25 years, eight new schools would be needed and that during the five-year planning horizon after construction begins at Nocatee, one middle school would be needed for the projected number of students, i.e., 450 would start to materialize. Mr. Toner desires that schools be built concurrently with development, which does not appear to be required.) The Nocatee developers have agreed to donate, at no charge to the County (or the citizens of the County), land for the eight public schools and to waive a credit against the school impact fees to which the developers would otherwise be entitled. The value of the land donation credit is approximately $12 million. Additionally, by build-out (in the twenty-fifth year), according to Intervenors' data and analysis, the School Board can expect to receive annual net revenue or gain of approximately $9.6 million. It is also expected that over the life of the Nocatee development and, in particular, during the later phases of the development, revenues will "significantly exceed the costs," in light of expected commercial, industrial, and additional residential development "that's generating the student load on the system." Transportation The Plan Amendments add Policy H.1.6.6. to the County's Comprehensive Plan stating: The Nocatee Development of Regional Impact, a multi-use development meeting the criteria of Chapter 163.3180(12), Florida Statutes, is authorized by the County to utilize the standards and guidelines set forth in the Statute to satisfy the County's transportation concurrency requirements by payment of a proportionate share contribution is [sic] as stated in the Nocatee Development of Regional Impact Development Order, Special Condition No. 25 entitled Transportation Resource Impacts. (See Ordinance No. 2001-18) The "pipelining" method of mitigating transportation impacts has been selected in the Plan Amendments. This method allows the transportation mitigation funds to be used to increase the transportation capacity of some links of a regional roadway network beyond that necessary to offset projected impacts. It allows impacts on the regional roadway network to be handled on a proportionate share basis. Pipelining contemplates that various proportionate share impacts along the regional roadway network are assessed and all of the calculated dollars under the pipelining method are aggregated to create "a pot of money" which is used "to build one or more whole transportation improvements." The pipelining statute takes precedence over the conflicting concurrency requirements of the County. Here, the mitigation package is based upon a "proportionate fair share" calculation, under which Nocatee will pay $99.7 million. This amount is supported by appropriate data and analysis based upon the application of professionally accepted methods. In addition to the payment, the mitigation will include right-of-way donation and roadway construction. Petitioners do not challenge the concept of "pipelining." Rather, Petitioners question whether the transportation components of the Plan Amendments are "economically feasible." Overall, there is persuasive evidence, presented in the form of data and analysis, that with the Nocatee approval and the Plan Amendments, the County's transportation capital funds are likely to be improved both at the 25-year build-out and within the first five years. (State law requires that land use decisions and transportation facility planning be coordinated over the five- year planning time frame in order to maintain and achieve adopted levels of service. See Section 163.3177(3)(a), Florida Statutes. The persuasive evidence indicates that the Nocatee development will not cause any roadway segment to fall below its adopted level of service (LOS) standard during the five-year planning time frame.) Petitioners, largely through the testimony and exhibits offered by Mr. Feldt (a former employee with the County whose area of expertise is transportation), contend that the proportionate fair share calculation was incorrectly calculated and that the Nocatee DRI development data and analysis understates transportation impacts which are likely to arise as a result of the Nocatee development. However, while Mr. Feldt maintained that the $99.7 million allocation would not be sufficient to cover some of the improvements he deemed necessary, such as right-of way, most of his concerns regarding the transportation component of the Nocatee DRI had been satisfied during the DRI review process leading up to the County's approval of the Nocatee DRI Development Order. It is at least fairly debatable that the pipelining transportation component of the Plan Amendments is supported by appropriate data and analysis, which is professionally acceptable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendments adopted by St. Johns County in Ordinance No. 2001-18 are "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. _________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002.
The Issue The issue in this case is whether the Wakulla County plan amendment adopted by Ordinance No. 94-12 on March 28, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, Wakulla County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. Petitioner, St. Marks River Protection Association (SMRPA), is a non- profit corporation whose basic purpose is to conserve and protect the St. Marks River. A majority of its members own property or live within the County. Many live along the St. Marks River and fish, swim, dive, and view the various life along the river system. Petitioner participated in the amendment process by appearing at hearings and submitting written comments. Therefore, it has standing to bring this action. Intervenor, N. G. Wade Investment Company, owns the real property which is the subject of the amendment in this proceeding. It also submitted comments to the County during the transmittal and adoptive phases of the process. The Nature of the Dispute The County adopted its current comprehensive plan (plan) on September 2, 1992. On October 15, 1992, DCA issued its notice of intent to find the plan not in compliance. The matter is now pending before the Division of Administrative Hearings (DOAH) in Case No. 92-6287GM. However, the County and DCA have reached a settlement in concept in that case and are drafting language for an acceptable remedial amendment. On February 24, 1993, intervenor made application for a plan amendment to change the future land use map portion of the plan on 240 acres of land in northeastern Wakulla County from agriculture-1 to industrial land use. The plan amendment was adopted by the County on March 28, 1994, and was found to be in compliance by the DCA on May 19, 1994. On June 3, 1994, petitioner filed a petition challenging the plan amendment on the ground the amendment was inconsistent with other parts of the plan, regional policy plan, and state plan as they relate to water quality, protection for ground and surface waters, wildlife habitat, traffic and provision of public services. Thereafter, the matter was referred to DOAH for an evidentiary hearing and has been assigned Case No. 94-3289GM. The Plan Amendment The amendment implements the County's policy to develop an industrial park and to expand the County's employment base by 1995. It was transmitted to the DCA in October 1993 for a compliance review. During its review process, the DCA considered comments from various entities, including the Apalachee Regional Planning Council (ARPC), the Northwest Florida Water Management District, the Department of Environmental Protection, the Department of Transportation (DOT) and the Tallahassee-Leon County Planning Department (TLCPD). The DCA raised several objections to the amendment in its Objections, Recommendations and Comments (ORC) issued on January 28, 1994. These included criticisms that (a) the amendment was not supported by appropriate data and analysis, (b) the County had not properly coordinated with other affected government jurisdictions, and (c) it was not clear that the policy structure of the plan concerning industrial land uses provided adequate assurance that the proposed future land use map amendment would be consistent with the requirements of Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code, including the need to protect natural resources. After coordinating with the DOT, ARPC, and TLCPD, and in response to the ORC, the County provided more land use analysis and a new traffic analysis. In response to the criticism concerning the protection of natural resources, the County submitted a summary of data and analysis of the soils, subsurface geology, and groundwater conditions on the site to show that the site was suitable for industrial development. On March 28, 1994, the County adopted the amendment and submitted the adoption ordinance and responses to the ORC to the DCA. As modified, the amendment called for a change in the land use designation from agriculture - 1 to industrial "for a proposed 240-acre light industrial planned unit development called Opportunity Park." The property is approximately one mile from State Road 363 and the Leon County line, and the land around it is presently subject to timber harvesting. The size and scope of industrial activities that could take place at Opportunity Park would be constrained by other provisions of the plan including floor area ratio, limitations on pre- and post-development ground and surface water flow rates, and requirements for wastewater reuse. After reviewing this material, the DCA accepted the County's response to the ORC and determined that the additional data and analysis were adequate. In determining whether the level of the data and analysis was adequate, the DCA took into consideration the fact that the County is a small, rural county with modest planning resources and with a very modest rate of population growth. Indeed, the County had only 14,202 people according to the 1990 population census, and it projects a growth rate of only 500 persons per year through the year 2000. The DCA also recognized that the County is in dire need of economic development. This is borne out by the fact that approximately 58 percent of its land is within conservation areas managed by the federal or state governments, 33 percent of the land is in agricultural use, and only 0.32 percent is in industrial land use. By letter dated April 28, 1994, the DCA received a recommendation from the ARPC to find the amendment generally consistent with the Apalachee Regional Policy Plan. Thereafter, on May 18, 1994, the DCA issued its notice of intent to find the amendment in compliance with the Act. Criticisms of the Amendment Generally In its petition, SMRPA has raised a number of grounds regarding what it perceives to be shortcomings in the plan amendment. First, petitioner contends that the amendment lacks adequate data and analysis, it fails to protect natural resources, and it violates the traffic element of the plan. Petitioner further contends that the amendment is inconsistent with those parts of the plan which concern the maintenance of existing hurricane evacuation times, the County failed to coordinate the amendment with adjacent local governments, and the amendment is inconsistent with certain policies of the plan's economic development element. Finally, petitioner asserts that the amendment is inconsistent with the capital improvement element of the plan concerning water supplies and fire fighting equipment, the amendment encourages urban sprawl, it fails to preserve the internal consistency of the plan, and it is contrary to the state and regional policy plans. Data and Analysis Updates to the data which support the County's plan indicate a need in the County for approximately 500 acres of additional industrial use. While the County did not provide the DCA with an analysis or description of the methodology that was used to arrive at the estimate of gross acreage needed in the supporting data, it offered demonstrative evidence that showed that approximately 200 acres of land that are currently designated for industrial use cannot be developed consistent with the County's plan because of existing constraints due to flooding. The evidence fails to show to the exclusion of fair debate that the County did not consider or have available sufficient data and analysis to support a need for the new industrial land use in the County. Protection of Natural Resources The data and analysis supporting the County's plan designates the amendment area as having a high recharge potential to the Floridan Aquifer. The plan's supporting data and analysis also shows the entire County as on the Woodville Karst Plain and as an area prone to sinkhole formation. However, these general characteristics must be tempered by the site-specific data described below. An analysis of site-specific data consisting of soil boring tests and results, which data were considered by the County at the time of the adoption of the amendment, show that the area is underlain with clay confining layers which sit above the Floridan Aquifer. Therefore, the land is not in an area of high or even moderate recharge to the Floridan Aquifer because of the presence of these clay confining layers. An analysis of the site-specific data revealed that, unlike most areas of the County, the amendment area is not on the Woodville Karst Plain. Rather, it is on an ancient sand dune system known as the Wakulla Sandhills, a series of relic sand dunes overlying the St. Marks limestone formation. At the same time, the more persuasive evidence shows that the amendment area is not prone to sinkhole formation. Indeed, the existing depressions on the site are most likely deflation basins caused by wind activity on the sand hills and are commonly known as "blowouts." The evidence fails to show to the exclusion of fair debate that the County failed to consider or did not have available to it sufficient data and analysis to indicate how the subject amendment will protect the groundwater recharge areas to the Floridan Aquifer. The evidence also failed to show to the exclusion of fair debate that the amendment is in conflict with the relevant policies of the County's plan. As to the issue concerning the protection of surface and groundwater quality, the County's soil survey performed by the United States Department of Agriculture shows the amendment area as having severe soil ratings for septic tanks. Even so, the evidence failed to show to the exclusion of fair debate that any development activity undertaken in the amendment area would be unlimited and would adversely impact natural resources. In fact, an analysis of the site-specific data indicates that the presence of the clay confining layers would severely retard the percolation of stormwater or wastewater to the Floridan groundwater acquifer. Although there is evidence of the presence of a surficial (perched) aquifer in the area that might contain pollutants, the evidence failed to show to the exclusion of fair debate that the surficial aquifer is a natural drinking water resource in need of protection. There are no surface water streams in the vicinity of the amendment area. Also, there are no unusual site characteristics which would tend to cause pollution of surface or groundwater from industrial usage of the site. Potential discharge from industrial activities into the groundwater at the site would not affect Wakulla Springs or the St. Marks cave systems because these features are four to five miles away and are upgradient of the site. The evidence fails to prove to the exclusion of fair debate that industrial activities at the amendment site will adversely impact the water quality in the St. Marks River. As to the protection of wetlands, SMRPA provided no evidence concerning the existence, nature, extent or value of wetlands that would be impacted by use of the amendment area for industrial purposes. As to the protection of endangered or threatened species, SMRPA alleged that the amendment was inconsistent with policies and objectives of the County's plan concerning habitat protection for endangered or threatened species. There were, however, no endangered or threatened species observed on the amendment site. One gopher tortoise was observed leaving the site while two gopher tortoise burrows were also seen. While it is true that the gopher tortoise is a species of special concern, the Game and Fresh Water Fish Commission has a permit program for the gopher tortoise that includes relocation of the tortoise or payment to a mitigation bank for habitat acquisition. Therefore, the evidence failed to show to the exclusion of fair debate that the amendment is in conflict with the relevant policies and objectives of the County's comprehensive plan. As to the protection of forests and agricultural lands, petitioner alleged that the amendment was inconsistent with policies and objectives of the County's plan, which state that the County shall encourage continuing use of land for agriculture. The evidence failed to show to the exclusion of fair debate that the conversion of 240 acres of land from agricultural use to industrial use is in conflict with the general objective to encourage the continuing use of land for agriculture. Traffic Petitioner alleged that the amendment will allow development that will permit violations of the levels of service established for impacted roadways and policies 1.2 and 5.5 of the plan's traffic element. Petitioner failed to present any evidence showing that the levels of service established for impacted roadways and traffic circulation would be violated by the amendment. Therefore, petitioner failed to show that the amendment was in conflict with the cited policies. Hurricane Evacuation Times Petitioner alleged that the amendment is inconsistent with objective 2(c) and policy 2.11 of the plan's coastal management element concerning the maintenance of existing hurricane evacuation times. The evidence failed to prove to the exclusion of fair debate that the amendment would result in an increase of the existing hurricane evacuation times. Intergovernmental Coordination Petitioner alleged that the amendment was inconsistent with objective 1.1 and policies 1.1.1 and 1.1.4 of the plan's intergovernmental coordination element. Those provisions relate to the need to coordinate the County's land use map amendments and review the relationship of any proposed development to the existing comprehensive plans of adjacent local governments. The evidence failed to show a lack of intergovernmental coordination of the impact of the plan amendment on the comprehensive plans of adjacent local governments. In fact, the evidence showed that the County coordinated with adjacent local governments, including the City of Tallahassee and Leon County. Economic Development Petitioner alleged that the amendment is inconsistent with policies of the plan's economic development element. Specifically, it cites policies 2.1, 2.4, 2.5, and 2.6, which concern the County's objective to expand the employment base by 1995 by indentifying which businesses and industry jobs can be increased. The evidence failed to prove to the exclusion of fair debate that the amendment would not expand the County's employment base by 1995. In fact, the evidence showed that the amendment will assist the County in achieving economic stability and will expand the employment base of the county by providing more job opportunities. Indeed, the eastern part of the County is now experiencing a trend towards industrial and commercial development, and a prison is being constructed adjacent to the site. At the same time, however, a decline in the County's seafood industry and layoffs at Olin Corporation, a major employer, reflect a need for new jobs. Finally, the amendment implements policy 6.1 of the economic development element which provides that "the County shall cooperate with the private and public sector to develop an industrial park with required facilities and services to attract businesses and industries." Water Supplies and Fire Fighting Equipment Petitioner alleged that the amendment is inconsistent with the capital improvement element of the plan because there are inadequate water supplies and fire fighting equipment in the area to support fire protection for industrial uses at the site. The evidence failed to show to the exclusion of fair debate that there would be inadequate water supplies and fire fight equipment to support fire protection for industrial uses at the site. Failure to Discourage the Proliferation of Urban Sprawl Petitioner alleged that by placing an industrial site at the subject location, the amendment would encourage urban sprawl and inhibit advantageous growth in the area. The evidence failed to show to the exclusion of fair debate that the amendment will encourage urban sprawl and inhibit advantageous growth in the area of the amendment. Failure to Preserve the Internal Consistency of the Plan Petitioner alleged that the amendment fails to preserve the internal consistency of the County's plan as required by the Act, in that it is in direct conflict with numerous plan provisions. Based on the findings of fact above, it is clear that the amendment is not in direct conflict with numerous plan provisions. Therefore, the evidence failed to show to the exclusion of fair debate that the amendment fails to preserve the internal consistency of the County's plan, as required by the Act. The State Comprehensive Plan The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove to the exclusion of fair debate that the amendment is inconsistent with the State Comprehensive Plan, as a whole. The Regional Policy Plan The Apalachee Regional Planning Council has adopted the Apalachee Regional Policy Plan (Regional Plan). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives to the counties in that region, which includes Wakulla County. The evidence failed to show to the exclusion of fair debate that the amendment is inconsistent with the Regional Plan. Standing On November 15, 1993, and March 26, 1994, or during the adoptive stage of the amendment, SMRPA filed comments and objections in form of letters with the County. On June 3, 1994, SMRPA filed its petition for formal administrative hearing with the DCA challenging the plan amendment. Throughout the course of this proceeding, intervenor has challenged the standing of petitioner on the theory that the corporation was dissolved prior to filing its petition, and even though the corporation was later reinstated, it was not the same corporation that filed comments and objections during the adoptive stage of the amendment. The facts underlying this claim are as follows. On April 27, 1989, petitioner filed articles of incorporation with the Department of State. On August 13, 1993, the corporation was administratively dissolved. On June 1, 1994, Virginia P. Brock, an officer of SMRPA, released the corporate name and stated that the officers and directors did not have any intention of reinstatement of the corporation. On May 30, 1994, new articles of incorporation for SMRPA were filed with the Department of State. This corporation had common officers and directors with the dissolved corporation. The articles of incorporation were rejected by the Department of State on June 10, 1994, on the ground all outstanding fees and taxes owed by SMRPA had not been paid. After such outstanding taxes and fees were paid through 1994, the Department of State deemed the status of SMRPA to be "active" as of June 14, 1994. Such reinstatement related back and took effect as of the effective date of the dissolution of the corporation on August 13, 1993, and the corporation was carry on its affairs as if no dissolution occurred.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining the Wakulla County comprehensive plan amendment to be in compliance. DONE AND ENTERED this 27th day of March, 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 27th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3289GM Petitioner: 1. Partially accepted in finding of fact 2. 2-4. Partially accepted in finding of fact 1. 5. Partially accepted in finding of fact 3. 6-8. Rejected as being unnecesary. 9-11. Partially accepted in finding of fact 4. 12. Partially accepted in finding of fact 5. 13. Partially accepted in finding of fact 6. 14. Partially accepted in finding of fact 5. 15-19. Partially accepted in finding of fact 4. 20. Partially accepted in finding of fact 11. 21. Partially accepted in finding of fact 5 and 11. 22. Partially accepted in finding of fact 11. 23-26. Rejected as being unnecessary. 27-74. Partially accepted in findings of fact 16-25. 75-76. Partially accepted in findings of fact 26-29. 77-82. Partially accepted in findings of fact 36 and 37. 83-88. Partially accepted in finding of fact 15. 89. Partially accepted in findings of fact 40 and 41. 90. Partially accepted in findings of fact 42 and 43. 92-93. Partially accepted in findings of fact 38 and 39. 94. Partially accepted in finding of fact 15. 95. Rejected as being contrary to the evidence. Respondent DCA 1-5. Partially accepted in findings of fact 1-3. 6-8. Partially accepted in finding of fact 12. 9-10. Partially accepted in finding of fact 4. 11-13. Rejected as being unnecessary. 14. Partially accepted in finding of fact 5. 15-24. Partially accepted in findings of fact 7-13. 25-26. Partially accepted in finding of fact 15. 27-41. Partially accepted in findings of fact 16-25. 42-43. Partially accepted in findings of fact 26 and 27. 44-45. Partially accepted in findings of fact 28 and 29. 46-47. Partially accepted in findings of fact 30 and 31. 48-49. Partially accepted in findings of fact 32 and 33. 50-51. Partially accepted in findings of fact 34 and 35. 52-53. Partially accepted in findings of fact 36 and 37. 54-55. Partially accepted in findings of fact 38 and 39. 56-57. Partially accepted in findings of fact 40 and 41. 58-60. Partially accepted in findings of fact 42 and 43. Intervenor and County: 1. Partially accepted in findings of fact 1-6. 2-4. Rejected as being unnecessary. 5-7. Partially accepted in findings of fact 7-13. 8-19. Partially accepted in findings of fact 16-25. Partially accepted in findings of fact 26 and 27. Partially accepted in findings of fact 28 and 29. Partially accepted in findings of fact 30 and 31. 23-25. Partially accepted in findings of fact 32 and 33. 26-27. Partially accepted in findings of fact 34 and 35. 28-33. Partially accepted in findings of fact 42-47. Partially accepted in finding of fact 3. Partially accepted in findings of fact 42-47. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: David Gluckman, Esquire Casey J. Gluckman, Esquire Route 5, Box 3965 Tallahassee, FL 32311 Kenneth D. Goldberg, Esquire Brigette A. Ffolkes, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Ronald A. Mowrey, Esquire 515 North Adams Street Tallahassee, FL 32301-1111 Robert A. Routa, Esquire Post Office Box 6506 Tallahassee, FL 32314 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issue is whether the plan amendments adopted by the City of St. Pete Beach (City) by Ordinance No. 2008-15 on August 26, 2008, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in southwestern Pinellas County. Following an Evaluation and Appraisal Report (EAR) process, the City adopted its current Plan in 1998 (also known as the 2010 Plan), which has been found to be in compliance. Since 2007, municipalities within Pinellas County have participated in the Pilot Program for adoption of comprehensive plan amendments. The statutory process is described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. Although the City must send a transmittal package to the Department (and other designated agencies and entities) for its preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether such amendments are in compliance, but it chose not to do so here. The amendments in dispute were adopted under the Pilot Program. Petitioner is a resident of, and owns property in, the City, and he submitted oral and written comments and objections concerning the proposed amendments. As such, he is an affected person and has standing to participate in this proceeding. The parties have stipulated that Lorraine Huhn and Deborah Nicklaus reside and own property within the City, and that both individuals submitted comments to the City during the transmittal public hearing on June 16, 2008, and/or the adoption public hearing on August 26, 2008. Therefore, they are affected persons and have standing to participate. According to the parties' Pre-Hearing Stipulation, SOLV is a Florida non-profit corporation with a principal address of 6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have also stipulated that SOLV operates a business within the City. Whether it submitted comments to the City between the transmittal hearing on June 24, 2008, and the adoption hearing on August 26, 2008, is in dispute. SOLV's President, Lorraine Huhn, presented comments at the City's adoption hearing on August 26, 2008. See Petitioner's Exhibit 15, pages 63-64. During her brief oral presentation to the City Commission in support of the amendments, she did not state that she was speaking on behalf of SOLV, and at no time did she refer to that organization. However, on August 2, 2008, Ms. Huhn sent an email on behalf of SOLV to the City Clerk, which arguably can be interpreted as written support for the Ordinance being challenged. See Intervenors' Exhibit 9. Also, an email authored by the City Manager on August 1, 2008, indicates that SOLV representatives met with City representatives on July 31, 2008, to discuss the proposed amendments. See Intervenors' Exhibit 10. Since these written and oral comments were submitted between the transmittal and adoption hearings, SOLV meets the definition of an affected person and has standing to participate in this proceeding. Background By way of background, the City was initially incorporated in 1957 as St. Petersburg Beach by consolidating the towns of Pass-a-Grille, Don CeSar, Belle Vista, St. Petersburg Beach, and certain unincorporated areas of Pinellas County. It occupies a six-mile long barrier island (known as Long Key), which lies between the Gulf of Mexico and Boca Ciega Bay, with a maximum width of three-quarters of a mile and an area of approximately 2.25 square miles or 1,286.14 acres. The name was shortened to St. Pete Beach in 1994 to lessen the confusion with the City of St. Petersburg, which lies to the east. The City has about 4.5 miles of beaches and is very densely populated. Most of the City has been developed with only 13.40 acres, or around one percent of the land, vacant and undeveloped. The entire City is within the flood plain, and much of the City is within the Coastal High Hazard Area (CHHA). The current population is around 10,000. To place the current dispute in proper perspective, a history of events that began in 2002 is necessary. With the assistance of a consulting firm, beginning in April 2002 the City initiated redevelopment planning efforts for various areas within the City including Corey Avenue/Blind Pass Road, Pass-a- Grille, Gulf Boulevard, and residential neighborhoods. The intention of this effort was to define the starting point for subsequent master planning efforts by the City. A Final Report (also known as the Visioning Statement or Plan) was issued by the consulting firm in July 2002. See Respondent's Exhibit 1. This was followed by a master planning process by another consulting firm, which was intended, among other things, to develop a strategy for dealing with the redevelopment of older and outdated properties within the resort area of the City (along the Gulf of Mexico), rather than having them converted into residential condominiums because of existing regulatory restrictions. The final Master Plan was presented to the City Commission in August 2003. See Respondent's Exhibit 3. In response to the Master Plan, on June 28, 2005, the City enacted Ordinance 2004-24, known as the City's Community Redevelopment Plan (Redevelopment Plan), which implemented many of the recommendations in the Master Plan. See Respondent's Exhibit 8. Among other things, the Redevelopment Plan created a new land use category, the Community Redevelopment District, which included two sub-districts, the Gulf Boulevard Redevelopment District, depicted on Map 10 of Exhibit 8, and the Downtown Redevelopment District, depicted on Map 11 of the same exhibit. The amendment was intended to establish standards for redevelopment in the so-called "resort" area of the City, which runs north-south along Gulf Boulevard adjacent to the beach on the western side of Long Key, while the same thing was intended for the core downtown area. Although Petitioner is correct that Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some respects, there are many similarities between the two, including the creation of the two Redevelopment Districts, additional character districts within the two main Districts, and the maps of the Districts. Also, both Ordinances have many of the same Goals, Objectives, and Policies, and both include unnumbered narrative text setting out allowable uses as density and intensity standards. On August 19, 2005, Petitioner and a non-profit association filed a challenge to Ordinance No. 2004-24 under Section 163.3184, Florida Statutes. See Citizens for Responsible Growth and William C. Pyle v. Department of Community Affairs and City of St. Pete Beach, DOAH Case No. 05- 3159GM. The challengers later voluntarily dismissed their petition, the case was closed on October 17, 2005, and the Department found the amendments to be in compliance. Under the City's Charter, however, citizens may petition to require reconsideration by the City Commission of any adopted ordinance and, if the City Commission fails to repeal an ordinance so reconsidered, to approve or reject it at a City election. See Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of the qualified registered voters in the City must sign a petition in order to have an ordinance placed on the ballot for approval or disapproval.) Petitioners in DOAH Case No. 05-3159GM were instrumental, at least in part, in securing the necessary number of voters to sign a petition, and a majority of the registered voters in the City later voted to repeal the Ordinance in 2006. Pursuant to that vote, the City Commission repealed Ordinance No. 2004-24 and it never took effect. In 2008, six ordinances (Ordinance Nos. 2008-09 through 2008-14) were proposed as citizen initiatives. After the City refused to act on the six initiatives, SOLV and others filed suit against City officials seeking a vote on the six ordinances. See Save Our Little Village, Inc., et al. v. Commissioner Linda Chaney, et al., Case No. 08-2408-CI-8 (6th Circuit, Pinellas County). On March 31, 2008, the City adopted Resolution 2008-09 approving a Settlement Agreement in the law suit. See Joint Exhibit 1, Appendix C. The Settlement Agreement required the City to transmit and adopt the Ordinance being challenged here subject to various conditions and limitations, if the voters approved Ordinance No. 2008-10, which was a Petition by SOVL proposing an ordinance to amend the Countywide Future Land Use Plan. (The City is required by the Countywide Plan Rules to transmit the countywide plan map amendment to the Pinellas County Planning Council for its review in order to adopt the City plan amendment. This process is described in Petitioner's Exhibit 33.) Notably, the City's staff did not prepare the text or the accompanying supporting data for Ordinance No. 2008-15; rather, the text and all supporting data were prepared by SOLV. The voters approved Ordinance No. 2008-10 on June 3, 2008, which provided for the review and approval of the amendments being challenged here. Pursuant to the results of the referendum, on June 16, 2008, the City approved Ordinance Nos. 2008-15, 2008-24, and 2008-25. Only the first Ordinance is in issue here; the other two are not contested. As required by Section 163.32465(4)(a), Florida Statutes, the amendments were then transmitted to the Department, Department of Environmental Protection, Department of Education, Department of State, Department of Transportation District Seven, Tampa Bay Regional Planning Council, Southwest Florida Water Management District, and Pinellas County Planning Department for their review and comment, if any. Comments on the amendments were offered by the Department on August 1, 2008, and by the Department of Transportation, Department of Education, and Tampa Bay Regional Planning Council. On August 26, 2008, the City adopted Ordinance No. 2008-15. Petitioner's challenge was then timely filed with the Division of Administrative Hearings on September 24, 2008. See § 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as defined in s. 163.3184(1)(a) may file a petition with the Division of Administrative Hearings . . . within 30 days after the local government adopts the amendment"). The Ordinance Ordinance No. 2008-15 establishes a new land use category, the Community Redevelopment District, which includes the Downtown and Gulf Boulevard Redevelopment Districts comprised of eleven character districts, and implements that change by amending the FLUM and certain text provisions within the FLUE and HE. The two new Districts comprise approximately twenty percent of the total land area of the City, or around 248.25 acres. The amendments are found in Attachment A, consisting of 115 pages, which is attached to the Ordinance. Attachment A includes six maps found on page 40 (Map 1 - Community Redevelopment Districts Location); page 41 (Map 2 - Gulf Boulevard Redevelopment Character Districts); page 42 (Map 3 - Downtown Community Redevelopment District 1); page 110 (Map 10 - Future Land Use Map - Gulf Boulevard Redevelopment District, Proposed Future Land Use); page 111 (Map 11 - Future Land Use Map - Downtown Redevelopment District, Proposed Future Land Use); and page 112 (Map 12 - Coastal High Hazard Area - Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1 through 6 are introductory material outlining the need for redevelopment. Pages 7 through 112 pertain to the Future Land Use Element, while pages 113 through 115 relate to the Housing Element. Because SOLV (rather than the City) prepared Attachment A, this is probably the reason why some parts of the lengthy Attachment A have been drafted in narrative style. Besides Attachment A, support documentation for the amendments is attached to the Ordinance and includes the legal notices published in a local newspaper; Citizen Courtesy Information Lists; Commission and Planning Board Agendas; excerpts from Division 31 of the City's Land Development Code; copies of various Ordinances; and a 127-page Special Area Plan submitted to the Pinellas Planning Council and Countywide Planning Authority in support of the amendment that was necessary in order for the City to adopt the Ordinance. In addition, the data and analyses used for the adoption of Ordinance No. 2004-24 were relied upon to support the amendments, including the Visioning Plan and the Master Plan. Petitioner's Objections In paragraphs 9 through 25 of his Petition, which are in the section entitled "Disputed Issues of Material Fact And/or Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends that the amendments adopted by the Ordinance are not in compliance for numerous reasons. The parties' Pre-Hearing Stipulation also states that "the Disputed Issues of Material Fact and/or Mixed Questions of Fact or Law set forth in the Petition for Administrative Hearing in this matter remain disputed issues for the purposes of the final hearing." In his Proposed Recommended Order, however, Petitioner states in a more concise fashion that the amendments are not in compliance because they: are not clearly based upon appropriate data, including data required for the FLUE; [are not] based upon and supported by an appropriate analysis of the best available data; did not demonstrate "need"; [are] inconsistent with the State Comprehensive Plan; [are] not "financially feasible"; [do] not meet format requirements; [do] not contain two planning periods; establish a mixed-use FLUM designation of CRD [Community Redevelopment District] that [does] not meet the statutory and rule requirements; [are] internally inconsistent; and [do] not meet the minimum procedural and notice requirements. These objections will be considered below, although not in the order listed above. Procedural Irregularities Petitioner contends that the City failed to follow certain notice requirements and therefore he was unduly prejudiced by these irregularities. Specifically, he claims that the notices published by the City in the St. Petersburg Times on June 8 and August 20, 2008, did not advise the public of all amendments, particularly one relating to the Resort Facilities Overlay District; did not include a map showing areas subject to the FLUM amendments in relation to major streets; did not advise that the City was amending the coastal construction control line (CCCL) definition in the Preservation land use category; and the actual changes being made "did not comport with the title of the adopted Ordinance." Copies of the published notices, albeit in very small and sometimes illegible print, are found in Joint Exhibit 2. Assuming all of these notice deficiencies are true, Petitioner did not establish that he was prejudiced by any irregularities. Besides being intimately involved in this controversy since its inception in 2002, the evidence shows that he attended both the transmittal and adoption hearings of Ordinance No. 2008-15; that he addressed the City Commission at both meetings; that he was provided copies of all pertinent documents; that through counsel he filed a Petition requesting a formal evidentiary hearing, which raises a litany of compliance issues; that he was allowed to conduct discovery; and that he was given an opportunity to fully litigate each issue in his Petition. The contention that he was prejudiced by procedural irregularities is hereby rejected. Planning Time Frames Petitioner alleges that the Plan, as amended, does not set forth either a short-term planning time frame for the five- year period following adoption, or a long-term planning timeframe for at least a ten-year period following adoption. He contends that this is inconsistent with Florida Administrative Code Rule 9J-5.005(4), which requires that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five year period subsequent to the plan's adoption and one for at least an overall 10-year period." See also § 163.3177(3)(a)5., Fla. Stat. The existing Plan includes at least two planning periods, a Capital Improvements Plan (CIP) covering the first five years after the adoption of the Plan in 1998, and the School Board's Five-Year Work Program for fiscal year 2007-08 through 2011-2012. Although the CIP was first adopted in 1998, the statutory deadline for all local governments to transmit an updated CIP was December 1, 2008, or after the amendment was adopted. Also, the existing Plan utilized a population estimate from the Bureau of Economic and Business Research (BEBR) to project population for the City for the upcoming ten-year period. Besides the above time frames, the new amendment contains two other planning time frames for implementation of the redevelopment incentives in the Plan. First, it contains a Residential Unit Reserve section for the new District, holding specific numbers of residential units in reserve in three of the character districts (Downtown Core Residential District, Commercial Corridor Blind Pass Road District, and Commercial Corridor Gulf Boulevard District) for the first five years after adoption of the plan amendments. See Joint Exhibit 2, pages 106-107. This allows the City to evaluate the effectiveness of the redevelopment incentives in the amendment without releasing all residential density otherwise authorized. Second, the amendment contains a General Residential Unit Density Pool Reserve of 195 residential units in the Large Resort District which cannot be released in the first ten years after adoption of the amendment. See Joint Exhibit 2, page 108. Like the other provision, this planning tool allows the City to reevaluate the effectiveness of the redevelopment incentives in the amendment prior to authorizing additional density. Petitioner's own planner agreed that these time frames were part of the planning period for the proposed amendment. While Petitioner contends that the time periods are "minimum waiting periods not tied to any fixed time frame," it is reasonable to infer from the evidence that they will become operative once the Ordinance is implemented. The preponderance of the evidence shows that the Plan, as amended, complies with the requirement for two planning time frames and is not inconsistent with either the rule or statute. Mixed-Use Categories Florida Administrative Code Rule 9J-5.006(4)(c) encourages mixed use categories of land and provides that if they are used, "policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density and intensity of each use." Petitioner contends that FLUE Policy 2.1.1 establishes a new mixed use district (the Community Redevelopment District) but the Plan, as amended, does not contain the requirements set forth in the rule. The Community Redevelopment District is a mixed use land use category, as is each of the character districts included within the two sub-districts. The Plan identifies four character districts within the Gulf Boulevard Redevelopment District (Large Resort, Boutique Hotel/Condo, Activity Center, and Bayou Residential) and seven character districts within the Downtown Redevelopment District (Town Center Core, Town Center Corey Circle, Town Center Coquina West, Downtown Core Residential, Upham Beach Village, Commercial Corridor Blind Pass Road, and Commercial Corridor Gulf Boulevard). FLUE Policy 2.1.1 incorporates the development standards found in the "Community Redevelopment District" section of the FLUE for the two larger sub-districts and eleven smaller character districts. Therefore, it provides the policies required for the implementation of the new land use category. These policies govern the distribution, location, and extent of uses and densities and intensities of uses within the sub-districts. They also establish the boundaries, uses, densities, and intensities of use for the eleven character districts. The types of land uses allowed in each character district are clearly listed in a section of the text amendment corresponding to each character district titled "Permitted Uses and Standards." See Joint Exhibit 2, Attachment A, pages 75, 79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the Large Resort District, primary uses are hotel, motel, resort condominium, and medium density multi-family residential. Id. at page 75. The density and intensity standards for each type of use allowed within each character district are also listed in the same sections of the Attachment. For example, the maximum density of residential development in the Boutique Hotel/Condo District is eighteen units per acre. Id. at page 75. Finally, the policies for each character district provide objective criteria governing the actual mix of uses permitted on any redevelopment site within the Community Redevelopment District. The location of each allowable use will be distributed throughout each district. For example, the Downtown Redevelopment District creates a traditional downtown core area with traditional downtown core services surrounded by residential neighborhoods buffered from commercial intrusion. See Joint Exhibit 2, Attachment A, page 36. On the other hand, the Gulf Boulevard Redevelopment District is a core resort and shopping destination for residents and visitors. Id. The Community Redevelopment District does not use a percentage distribution among the mix of uses since the City is essentially built out and already has a mix of uses within the newly-created districts. Therefore, the plan amendment accomplishes a distribution of mix of land through location of uses in multi- story buildings, rather than a percentage distribution of mix. By doing so, it satisfies the requirement of the rule. See, e.g., The University Park Neighborhood Association, Inc. v. Department of Community Affairs, et al., DOAH Case No. 92- 0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24, 2003). Therefore, it is found that Petitioner failed to demonstrate by a preponderance of the evidence that the amendment is inconsistent with the rule. Preservation District The plan amendment is based upon the City's Visioning Plan and Master Plan. See Respondent's Exhibits 1 and 3. Neither document contains any recommendation that the City's Preservation Land Use District be revised in any way. In the existing 2010 Plan, the Preservation District is defined in FLUE Policy 1.1.1 as those beaches seaward of the CCCL, Fuller Island, and other environmentally significant natural resource areas. No development is allowed in the Preservation District except dune walkovers. Ordinance No. 2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word change (underscored below) in the definition of the Preservation District so that it now reads as follows: Preservation (P), applied to the beaches seaward of the Florida Coastal Construction Control Line, Fuller Island and other environmentally significant natural resource areas; such designated areas shall not be developed except to provide beach access dune walkovers from adjacent developed properties under the provisions of the City's Beach Management Regulations. Petitioner argues that the effect of this change is to establish a new boundary line for the Preservation District (further seaward in some instances) and to no longer use the setback line previously used by the City, which was known as the Coastal Construction and Excavation Setback Line. He further contends that the City's setback line and the Florida (State) CCCL encompass different areas along the beach. In some cases, the City's setback line is more seaward than the State, and vice versa. Petitioner contends that the data and analysis for the 2010 Plan "implies" that the location of the Preservation land use category should be based upon the more restrictive of the City setback line or State CCCL, that is, whichever is less seaward. It is fair to infer from the evidence that the underlying reason for raising this claim is that an old Travelodge motel sits just south and east of Petitioner's condominium building and is scheduled to be redeveloped as a new high-rise condominium. Petitioner is concerned that if the State CCCL (rather than the City setback line) is used, it will allow the new building to be constructed closer to the Gulf of Mexico, presumably reducing his view and beach access. The City's witness Holly established that the City does not have a CCCL. Rather, it has an excavation and setback line. He further established that the City has consistently enforced the Preservation District geographically as the area seaward of the State CCCL. Also, the City's land development regulations implementing the existing Plan define the Preservation District as the property seaward of the State CCCL. The Countywide Plan also uses the State CCCL. The amendment is clarifying in nature and is intended to make the text in the City's Plan consistent with the Countywide Plan and existing enforcement practices. As explained by Mr. Holly, the City's setback line predates the establishment of the State CCCL, and functions much in the same manner as the State CCCL "in that it precludes structural development seaward of that line without specific application for approval of variance for those standards." See Transcript, page 415. Petitioner has failed to establish by a preponderance of the evidence that this clarifying change in the definition of the Preservation District in FLUE Policy 2.1.1 is not supported by adequate data and analysis. Format of Plan Amendment Petitioner next contends that the plan amendment is inconsistent with Florida Administrative Code Rule 9J-5.005(1), which contains general format requirements for comprehensive plans. For example, he points out that there are lengthy unnumbered narrative sections in Attachment A that apparently supplement the numbered sections, that the references to the land development regulations do not identify the specific land development regulation adopted by reference, that the series of maps are not labeled properly, and that the maps do not include north-south arrows or a scale. The amendment contains specific goals, objectives, and policies for the Community Redevelopment District. See Joint Exhibit 2, pages 43-48. It also contains goals, objectives, and policies for the two redevelopment districts, numbered policies for each character district, as well as unnumbered text setting forth permitted uses and standards for each character district. See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90, 90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning, established that while they are not typically used, the narrative sections of Attachment A are permissible to explain the goals, policies, and objectives. He further stated that nothing in the governing statutes or rules requires that all material adopted as part of a plan be labeled as, or be in the form of, a goal, policy, or objective, that many variations of format are found in plans adopted by local governments throughout the State, and that the Plan, as amended, is not inconsistent with any requirement. As to the makeup of the maps, Mr. McDaniel stated that while the Department prefers that maps be labeled as future land use maps, and that they contain the detail suggested by Petitioner, a failure to do so does not render the plan amendment not in compliance. Finally, he stated that the Department staff had no difficulty in understanding the maps or map series when they were reviewed by the Department in July 2008. Notably, the Department did not address any of these format issues when it prepared comments to the proposed amendment on August 1, 2008. Petitioner has failed to show by a preponderance of the evidence that the plan amendment is inconsistent with the requirements of Florida Administrative Code Rule 9J-5.005(1). Data and Analyses Petitioner alleges that the City failed to rely upon the best available data sources to support the amendment, that a proper analysis of the data was not made, and that the City did not react to the data in an appropriate way, as required by Florida Administrative Code Rule 9J-5.005(2). Petitioner presented no expert testimony or other evidence supporting the claim that the plan amendment lacked supporting data and analysis. Although he introduced into evidence various documents on the theory that this information constituted better data than that used by the City, the evidence does not support this allegation. For example, various documents concerning hurricane evacuation times were submitted, including the Tampa Bay Regional Hurricane Evacuation Study Update 2006, the Pinellas County Local Mitigation Strategy (LMS), and the 2008 Statewide Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and Since the plan amendment does not increase density, however, it does not conflict with established hurricane evacuation times. Also, the City is not increasing population to be evacuated to other zones; therefore, the Statewide Emergency Shelter Plan is irrelevant. Finally, the amendment is not contrary to any mitigation strategies in the LMS. Population estimates for the year 2006 prepared by the BEBR were introduced by Petitioner, presumably for the purpose of showing that more current population data should have been used, rather than the 2000 Census data relied upon by the City. See Petitioner's Exhibit 21. However, there is no requirement that the City update its population estimates and projections each time it adopts an amendment. According to Mr. McDaniel, this is normally done every seven years at the time of the EAR. In any event, the BEBR estimates an increase in population in the City of only 48 persons during the six-year period from 2000 to 2006 (from 10,002 to 10,050). Petitioner also introduced a list of claims for flood losses within the last ten years in the City for the purpose of demonstrating that the City failed to consider the location of these properties in adopting the amendment. However, the evidence shows that redevelopment policies in the amendment would bring existing older structures up to National Flood Insurance Protection standards. A list of Licensed Dwelling Units was also introduced to show that the list relied upon by the City was incomplete and failed to include a motel in close proximity to Petitioner's condominium. Assuming that this is true, the error was minor and did not affect the overall validity of the City's data. The plan amendment is supported by the City's visioning project, economic analysis, master planning project, and evaluation of infrastructure capacity and availability of services. It is also supported by data submitted by SOLV to the County in support of the amendment to the Countywide Future Land Use Plan, which includes the Special Area Plan. The more persuasive evidence supports a finding that there is relevant and appropriate data supporting the amendment, that the data was properly analyzed, and that the City reacted in an appropriate manner. Internal Inconsistency Petitioner further alleges that the plan amendment is internally inconsistent with Intergovernmental Element Policy 1.5.3, which requires that the City coordinate with the Pinellas County Emergency Management Department when adopting map amendments resulting in an increase in population within the CHHA. Under the existing definition of the CHHA in the 2010 Plan, the entire City is within the CHHA. The amendment implements a new definition, as required by Section 163.3178(2), Florida Statutes, which removes some parts of the City from the CHHA. Because the new amendment does not relate to either hurricane shelters or evacuation routes, and does not increase the residential density in the CHHA, compliance with the cited policy was not required. Petitioner further alleged that FLUE Policy 4.1.1 is internally inconsistent with Goals 2 and 3 of the Conservation and Coastal Element as well as the implementing objectives for those Goals. However, no testimony or other credible evidence was offered on this issue and the claim must fail. The preponderance of the evidence supports a finding that the Plan, as amended, in not internally inconsistent with other Plan provisions. Need Petitioner contends that the City did not prepare an analysis of need for future land uses authorized by the Ordinance, that it did not prepare an updated existing land use map series, that no tabular form of the approximate acreage and general range of density and intensity of each existing land use was prepared, and no population projections were presented, as required by Florida Administrative Code Rule 9J-5.006(1)(a), (b), (c), and (g). Therefore, he argues that the plan amendment is not supported by a demonstration of need for the new land use category to accommodate the anticipated growth. The supporting documentation for the plan amendment demonstrates the need for redevelopment of the City's lodging establishments, the need for additional height for tourist lodging uses in order to prevent conversion of those uses to condominium uses, and the need for aesthetic and other design changes to the City's building facades, streetscapes, and public areas with the redevelopment area. See Joint Exhibit 2, Attachment A, pages 1-3. The plan amendment does not propose new density to accommodate new populations. In fact, it reduces the overall residential density in the City, and the total amount of dwelling units, temporary lodging units, and non-residential (commercial) floor area ratio will also be reduced. Because the plan amendment does not increase the total amount of development, but is simply a plan for redevelopment of existing uses, there is no requirement that a need analysis be prepared. Financial Feasibility Petitioner also contends that the Plan, as amended, has not been shown to be financially feasible and does not include an updated five-year CIP. See § 163.3177(3)(a)5., Fla. Stat. ("the comprehensive plan shall contain a capital improvements element [which] set[s] forth: . . . [a] schedule of capital improvements . . . "). The statutory requirement for a CIP applies to projects necessary to ensure that adopted levels of service (LOS) standards are achieved and maintained. It applies to all public facilities and services for which an LOS standard is adopted pursuant to Section 163.3180, Florida Statutes. This was confirmed by the testimony of Mr. McDaniel. The evidence shows that all relevant City infrastructure facilities are operating at or above the adopted LOS. Therefore, there are no deficiencies which need correction in order to implement the redevelopment plan. As further confirmed by Mr. McDaniel, if a plan has been found to be in compliance, and the local government proposes changes that do not create a need for capital improvements, the plan amendment does not need to include an amendment to its CIP. In this case, the amendment does not increase the total permissible amount of residential density or non-residential use within the Community Redevelopment District, and no additional infrastructure capacity is needed. Petitioner's expert identified certain infrastructure projects for which he contended an updated CIP is needed, such as sidewalks, street lighting, and bike lanes. While these types of projects are all integral to the proposed redevelopment plan, they are not subject to concurrency or the financial feasibility standard. Even if they were, Petitioner's expert agreed such improvements could be accomplished through private investment when permits for projects are issued. Because Petitioner failed to show that the plan amendment would require the construction of any new or expanded public facilities to provide additional capacity to serve the development, his contention that the plan is not financially feasible must necessarily fail. Other Contentions All other contentions not discussed herein have been considered and rejected because no evidence on the issues was presented or the more credible and persuasive evidence supports a finding that the contentions are without merit.
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 plan amendments adopted by Ordinance No. 2008-15 are in compliance. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
The Issue Whether an amendment to the Broward County Comprehensive Plan, PC-92-20, which was adopted by ordinance number 92-50 rendered the Broward County Comprehensive Plan not "in compliance", within the meaning of Section 163.3184(1)(b), Florida Statutes?
Findings Of Fact The Parties. The Petitioner, the Florida Department of Community Affairs (hereinafter referred to as the "Department"), is a state agency. The Department is charged pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act, Part II of Chapter 163, Florida Statutes (hereinafter referred to as the "Act"), with responsibility for, among other things, the review of comprehensive growth management plans and amendments thereto. The Respondent, Broward County (hereinafter referred to as the "County"), is a political subdivision of the State of Florida. The County is the local government charged with the responsibility pursuant to the Act for developing a comprehensive plan for future development in the unincorporated areas of the County and the approval of amendments to the County's comprehensive plan. The Intervenor, Susan Edn, is a resident of, and owns real property located in, Broward County, Florida. Ms. Edn submitted written and oral comments to the County concerning the plan amendment at issue in this proceeding. General Description of the County. The County is a generally rectangular-shaped area located on the southeastern coast of Florida. The County is bounded on the north by Palm Beach County, on the south by Dade County, on the east by the Atlantic Ocean and on the west by Collier and Hendry Counties. The County's Comprehensive Plan. The County adopted a comprehensive plan as required by the Act on March 1, 1989 (hereinafter referred to as the "County Plan"). Volume 1 of the County Plan includes the Broward County Land Use Plan, which applies to, and governs, future land use throughout the County, including the unincorporated areas of the County. The Future Land Use Element. The County Plan includes a Future Unincorporated Area Land Use Element dealing with future land use in the unincorporated areas of the County. See Volume 2 of the County Plan, Edn exhibit 15. The Future Land Use Element of the County Plan required by the Act consists of the Broward County Land Use Plan and the Future Unincorporated Area Land Use Element. The Future Land Use Element identifies a number of land-use categories, including a "residential" category. Densities of development on land designated "residential" are also established. There are eight designated residential future land uses identified and defined in the Future Land Use Element of the County Plan. Those designations and densities are as follows: Estate (1) Residential: up to 1 dwelling unit per gross acre. Low (2) Residential: up to 2 dwelling units per gross acre. Low (3) Residential: up to 3 dwelling units per gross acre. Low (5) Residential: up to 5 dwelling units per gross acre. Low-Medium (10) Residential: up to 10 dwelling units per gross acre. Medium (16) Residential: up to 16 dwelling units per gross acre. Medium-High (25) Residential: up to 25 dwelling units per gross acre. High (50) Residential: up to 50 dwelling units per gross acre. The density of development for the Rural Estate category is up to 1 dwelling unit per gross acre. The density for the Rural Ranch category is up to 1 dwelling unit per 2.5 gross acres or up to 1 dwelling unit per 2 net acres. The County Plan includes Goal 08.00.00, titled Public Facilities and Phased Growth, and Objective 08.01.00, which provide: GOAL 08.00.00 PHASE GROWTH CONSISTENT WITH THE PROVISION OF ADEQUATE REGIONAL AND COMMUNITY SERVICES AND FACILITIES. OBJECTIVE 08.01.00 COORDINATE FUTURE LAND USES WITH AVAILABLE REGIONAL AND COMMUNITY FACILITIES AND SERVICES Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. The following policies related to Goal 08.00.00 and Objective 08.01.00 are included in the County Plan: POLICY 08.01.04 In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. . . . . POLICY 08.01.09 Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. POLICY 08.01.10 Local government entities shall require existing development on septic tanks and private wells to hook up to centralized sewer and water facilities as they become available. The evidence failed to prove that the amendment which is the subject of this proceeding is inconsistent with the policies quoted in finding of fact 14 or any other goal, objective or policy of the County Plan. The Subject Amendment: PC-92-20. The Board of County Commissioners of the County adopted Ordinance 92- 50 on December 9, 1992. Ordinance 92-50 included nineteen amendments to the County Plan, including amendment PC-92-20. PC-92-20 (hereinafter referred to as the "Challenged Amendment"), is the amendment to the County Plan challenged in this proceeding by Ms. Edn. The Challenged Amendment amends the land use designation of approximately 2,453 acres of land. Of the 2,453 total acres, the designation of 2,272 acres is changed from Estate (1) Residential to Rural Ranch and the designation of the remaining 180.7 acres of land is changed to Rural Estate. Pursuant to the Challenged Amendment the change in designation also results in a change in density from one dwelling unit per acre to a density of one dwelling unit per two and one-half acres for the Rural Ranch and a density of one dwelling unit per two net acres for the Rural Estate. The Subject Property. The 2,453 acres of land which are the subject of the Challenged Amendment are located in the unincorporated area of the County, east of Southwest 148th Avenue, south of Griffin Road, west of Flamingo Road and north of Sheridan Street. Dwellings currently exist on approximately 85 percent to 90 percent of the subject property. Existing dwellings are served by septic tanks and wells. Pursuant to the County Plan, without the Challenged Amendment, the 10 percent to 15 percent of the subject property not yet developed may be developed at a higher density using septic tanks and individual wells. The subject property is not currently serviced by a sewer service provider or a water service provider. The County Plan recognizes and accepts the foregoing existing conditions. See Map 12-1 of the County Plan Map Series titled "Existing and Proposed Sanitary Sewer Service Area", and Map 14-1 of the County Plan Map Series, titled "Existing and Proposed Potable Water Service Area." The Challenged Amendment does not modify the existing conditions of the subject property except to decrease the density of development allowed on the property. The subject property is not located within a public wellfield zone of influence. See County Plan Land Use Plan Natural Resource Map Series, titled "Existing and Planned Waterwells & Zones of Influence." The Department's Review of the Challenged Amendment. The Department reviewed the Challenged Amendment as originated by the Act. After review of the Challenged Amendment, the Department raised no objections. As part of the Department's initial review of the Challenged Amendment pursuant to Section 163.3184(6), Florida Statutes (1992 Supp.), the Department considered comments of various entities, including the Florida Department of Environmental Protection, the South Florida Regional Planning Council, the South Florida Water Management District and others concerning the Challenged Amendment. Some of those comments were critical. The critical comments concerning the Challenged Amendment pertain to the use of wells for potable water and the use of septic tanks in the effected area. Those concerns were considered by the Department and ultimately determined to be insufficient to find the Challenged Amendment not "in compliance." The Department's conclusion was based, in part, upon the fact that the Challenged Amendment will reduce the demand on sewer by 477,400 gallons per day and the demand on water by 380,800 gallons per day. The Department's conclusion was also based upon the fact that the majority of the area effected has already been built-out. Ms. Edn offered the critical comments of various governmental entities who provided comments to the Department pursuant to Section 163.3184, Florida Statutes (1992 Supp.), into evidence. Evidently, Ms. Edn believes that those comments were not adequately considered by the Department or that they prove that the Challenged Amendment is not "in compliance." The evidence failed to prove either suggestion. The evidence failed to prove that the Department's consideration of critical comments about the Challenged Amendment was not adequate or that the Department's conclusions concerning those comments were not reasonable and proper. On the contrary, the evidence proved that the Department did consider all comments and decided that the Challenged Amendment was "in compliance" despite the critical comments. The evidence also proved that the Department's rationale for still finding the Challenged Amendment in compliance was reasonable. Additionally, Ms. Edn failed to present evidence to support a finding that the entities that made critical comments concerning the Challenged Amendment during the initial review of the Challenged Amendment still believe those comments are valid. Therefore, the evidence failed to prove that the critical comments concerning the Challenged Amendment were still valid as of the date of the final hearing of this matter. Data and Analysis-Sewer and Potable Water Services. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on sewer and potable water services. Facility and service capacity data and analyses concerning the impact of the Challenged Amendment on the availability of, and the demand for, sewer and potable water services was provided to the Department by the County. Based upon the data and analysis provided, the Challenged Amendment will tend to reduce the demand on sewer and potable water services. The evidence failed to prove that the data and analysis provided was inadequate. Data and Analysis-Soil Suitability. The evidence failed to prove that the County did not provide data and analysis concerning soil suitability. The County submitted data and analysis concerning the impact of the Challenged Amendment on soil and natural resources, including waterwells and zones of influence, to the Department. The County concluded that the Challenged Amendment would preserve the natural function of soils in the area and Ms. Edn failed to prove the inaccuracy of the County's conclusion. See the County Land Use Plan Natural Resource Map Services titled "Soils." Data and Analysis-Wellfield Protection. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on wellfield protection. The County relied upon the County Land Use Plan natural Resource Map Series titled "Existing and Planned Waterwells and Zones of Influence" and concluded that the area impacted by the Challenged Amendment is not located within a public wellfield zone of influence. The evidence failed to prove the inaccuracy of the County's conclusion. Data and Analysis-Biscayne Aquifer. The evidence failed to prove that the County did not provide data and analysis concerning the impact of the Challenged Amendment on the Biscayne Aquifer. The South Florida Water Management District has not designated the area of the County impacted by the Challenged Amendment to be a "prime groundwater recharge area" for the Biscayne Aquifer. Proliferation of Urban Sprawl. Pursuant to Section 163.3177(6)(a), Florida Statutes, (1992 Supp.) and Rule 9J-5.006(3)(b)7, Florida Administrative Code, comprehensive plans are required to discourage the proliferation of "urban sprawl". The Department has provided a definition of "urban sprawl" in a November 1989 Technical Memorandum: . . . scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low-density single- dimensional development. The evidence failed to prove that the foregoing definition or any other pronouncement in the Technical Memorandum constitutes policy of the Department. The evidence also failed to prove that the reduced densities allowed by the Challenged Amendment constitute "urban sprawl." The State Comprehensive Plan. The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove that the Challenged Amendment is inconsistent with any provision of the State Comprehensive Plan. The Regional Comprehensive Policy Plan. The South Florida Planning Council has adopted the Regional Plan for South Florida (hereinafter referred to as the "Regional Plan"). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives for the County, Dade County and Monroe County. In the petition filed in this case, Ms. Edn alleged that the Challenged Amendment is inconsistent with Goal 13.4.10 of the Regional Plan. Goal 13.4.10 of the Regional Plan provides the following: Within the study area of the Southwest Broward/Northwest Dade Subregional Study, any existing or new user of on-site disposal systems in Broward County and within the Dade County urban development boundary should be required to hook up to a centralized wastewater collection when available. The evidence failed to prove that centralized wastewater collection is "available" to require existing or new users of on-site disposal systems in the area of the Challenged Amendment to hook up to. The evidence failed to prove that the Challenged Amendment is inconsistent with the Regional Plan.
