The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Poinciana Community Development District.
The Issue The issues to be determined in this case are whether the amendments to the Martin County Comprehensive Growth Management Plan (CGMP) adopted by Ordinance Nos. 843, 845 (as amended by Ordinance No. 847), 846, 847, 851, 853, and 854 are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes.1/
Findings Of Fact The Parties The Department is the state land planning agency and is charged with the duty to review comprehensive plan amendments and to determine whether they are “in compliance,” as that term is defined in the Section 163.3184(1), Florida Statutes. Martin County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time. Groves Holdings, LLC, is a Florida limited liability company. Groves Holdings, LLC operates a real estate management and investment business in the County that manages the leasing, entitlement, and disposition of lands owned by its related subsidiaries Groves 12, LLC, and Groves 14, LLC. Groves 12, LLC, and Groves 14, LLC, are Florida limited liability companies wholly owned by Groves Holdings, LLC. Groves 12, LLC, owns 2,800 acres of citrus grove. Groves 14, LLC, owns 1,700 acres of land being developed as a residential community and equestrian club known as Hobe Sound Polo Club. The land owned by Groves 12, LLC, is located in the rural area of the County, approximately one mile from the closest boundary of an urban service district. The land being developed by Groves 14, LLC, is also located in the rural area. Groves 14, LLC, also owns 450 acres not being developed that are located partially within the rural area and partially within an urban service district The Groves submitted written comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Donna Melzer and Eliza Ackerly each owns real property in and resides in Martin County. Melzer and Ackerly each submitted comments regarding the Plan Amendments to the County during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. MCCA is a not-for-profit Florida corporation incorporated in 1997 for the purposes of conserving the natural resources of Martin County, and maintaining and improving the quality of life for residents of the County. Its members include individuals and corporate and non-corporate entities. A substantial number of its members reside, own property, or operate a business in Martin County. MCCA engages primarily in lobbying, public advocacy, and litigation in Martin County regarding the CGMP. MCCA conducts membership meetings, sends a newsletter to members and others, and sometimes hosts meetings open to the general public. MCCA is also involved in environmental preservation activities in Martin County, including educational meetings, field trips, and lobbying for public purchase of lands for conservation. No evidence was presented to show that MCCA owns property in the County, maintains an office in the County, or holds a business or occupational license. MCCA submitted comments to the County regarding the Plan Amendments, on behalf of its members, during the period of time beginning with the transmittal hearing and ending with the adoption of the Plan Amendments. Hereafter, MCCA, Donna Melzer, and Eliza Ackerly will be referred to collectively as MCCA. The Plan Amendments Section 163.3191(1), Florida Statutes, requires each local government to conduct an evaluation and appraisal of its comprehensive plan every seven years and to prepare an Evaluation and Appraisal Report (“EAR”). Martin County initiated its second evaluation and appraisal process in 2007, culminating in the adoption of an EAR in July 2008. Section 163.3191(10), Florida Statutes, requires a local government to adopt comprehensive plan amendments based on the recommendations in the EAR in a single amendment cycle within 18 months after adopting the EAR. The County’s proposed EAR-based amendments were sent to the Department in September 2009. The Department issued its Objections, Recommendations, and Comments (“ORC”) Report the next month. After considering and responding to the ORC Report, the County adopted Ordinance Nos. 842 through 856 on December 16, 2009, amending all the elements of the CGMP. The Department reviewed the Plan Amendments and determined that a new “Essential Services Nodes” policy of the FLUE adopted by Ordinance No. 845 was not in compliance. The Department determined that all of the other amendments adopted by Martin County were in compliance. The County adopted Ordinance No. 857, which rescinded the Essential Services Nodes policy to which the Department had objected. The decision to rescind the policy was made unilaterally by the County. The rescission was not pursuant to a compliance agreement with the Department. Based on the County’s rescission of the Essential Services Nodes policy, the Department determined that Ordinance No. 845, as amended by Ordinance No. 857, was in compliance. All of the Plan Amendments are text amendments. The Future Land Use Map (“FLUM”) is not changed. Urban Service Districts The CGMP establishes urban service districts (USDs) in the County. There is an Eastern USD and an Indiantown USD. These USDs are subdivided into a primary USD and a secondary USD. About 87 percent of the County’s population resides east of the Florida Turnpike in the Eastern USDs. The Indiantown USDs, which are west of the Florida Turnpike, are separated from the Eastern USDs by more than 20 miles of mostly agricultural lands. The primary purpose of the USDs is to prevent urban sprawl by directing growth to those areas where urban public facilities and services are available or are programmed to be available at appropriate levels of service. The provision of urban public facilities and services is generally limited to USDs. The term “public urban facilities and services” is defined in the CGMP as “regional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network.” Under FLUE Policy 4.7A.2, urban development, including commercial, industrial, mixed-use, and urban residential land uses may only be located within the Primary USDs. FLUE Policy 4.7B.1 permits low density residential use (half-acre lots or greater) in the Secondary USD. No urban or suburban uses and no utility services such as water and sewer may extend outside the USD boundaries. Most of the lands outside the Primary and Secondary USDs are designated Agricultural, but there are also lands designated Public Conservation and Public Utilities. MCCA’s Issues Section 1.10 Chapter 1 of the CGMP is entitled “Preamble” and addresses general topics such as the legal status of the CGMP, the continuing evaluation of the CGMP, and amending the CGMP. The Preamble contains no goals, objectives, or policies. MCCA objects to a sentence in Section 1.10 of the Preamble, adopted by Ordinance No. 843, which states, “This Plan shall be adopted by ordinance and shall supersede the 1990 Comprehensive Plan and all related amendments.” MCCA contends that this sentence will create problems and confusion if some of the Plan Amendments are determined to be in compliance, but other amendments are determined to be not in compliance. There is no confusion. The reference to “This Plan” in Section 1.10 is reasonably interpreted to refer to the entire CGMP, as amended by the latest EAR-based amendments that are either already in effect or will become effective following the conclusion of these consolidated cases.2/ Chapter 2 Definitions MCCA objects to several definitions added in Chapter 2 of the CGMP, but the evidence presented does not show an internal consistency or other "in compliance" issue. FLUE Goal 4.7 MCCA objects to the changes in FLUE Goal 4.4G, which would be re-designated Goal 4.7. Existing Goal 4.4G states: 4.4G Goal (encourage urban development in urban service areas) Martin County shall regulate urban sprawl tendencies by directing growth in a timely and efficient manner to those areas where urban public facilities and services are available, or are programmed to be available, at the levels of service adopted in this Growth Management Plan. (italics in original) New Goal 4.7 states: Goal 4.7. To regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in this Plan. (italics in original) MCCA contends that the removal of the word “shall” in the new goal “removes the mandatory restriction.” The County did not intend to make a substantive change to Goal 4.4G. In this particular context, the removal of the word “shall” does not require a different interpretation or application of the goal. It is not a substantive change. FLUE Policy 4.12A.2 MCCA’s major objection to Ordinance No. 845 is with new FLUE Policy 4.12A.2. Most of the objections raised by MCCA to other changes in the CGMP are directly related to MCCA's objection to Policy 4.12A.2. MCCA contends that this new policy, which allows “small-scale service establishments” outside the USDs, fails to include reasonable controls on commercial development and will adversely affect agricultural uses and the quality of life of rural residents.3/ Policy 4.12A.2 states: Restrictions outside urban service districts. Outside urban service districts, development options shall be restricted to low-intensity uses, including Agricultural lands, not exceeding one unit per 20 gross acres; Agricultural Ranchette lands not exceeding one unit per five gross acres; and small-scale service establishments necessary to support rural and agricultural uses. (italics in original) Martin County contends that this policy is not a substantive change because nearly the same wording already exists as Section 4.6.D.4 in a part of the FLUE entitled “Implementation Strategies,” and the section was merely re- located and re-designated as Policy 4.12A.2. Section 4.6.D.4 provides: Development outside the urban services district shall be restricted to low intensive development in order to promote cost-effective practices in the delivery of public services. Outside Urban Service Districts development options shall be restricted to low intensity uses including agriculture and agricultural ranchettes, not exceeding one unit per 5 gross acres, and small-scale service establishments necessary to support rural and agricultural uses as provided by section 6.4.A.5.e., Housing Service Zones in the Housing Element. (italics in original) The reference in this policy to Housing Service Zones is an error. Sometime in the past, the County deleted provisions in the CGMP regarding Housing Service Zones, but overlooked this particular reference. Comparing Section 4.6.D.4 with new Policy 4.12A.2, the significant changes appear to be that Section 4.6.D.4 is transformed from a “strategy” to a “policy,” and the new policy no longer ties small-scale service establishments to Housing Service Zones. However, the determination of whether a substantive change was made in the replacement of Section 4.6.D.4 with new Policy 4.12A.2 also requires consideration of Policy 4.4.G.1.e, which states: Martin County shall provide reasonable and equitable options for development outside of Primary Urban Service Districts, including agriculture and small-scale service establishments necessary to support rural and agricultural uses. Policy 4.4.G.1.e is already designated as a policy and it does not tie small-scale service establishments to Housing Service Zones. Therefore, although Section 4.6.D.4 differs from new Policy 4.12A.2, there is no substantive difference between new Policy 4.12A.2 and existing Policy 4.4.G.1.e. MCCA asserts that Policy 4.12A.2 and Policy 4.4.G.1.e differ substantively because the former does not have the “agricultural land use designation limits on uses allowed” that are in Policy 4.4.G.1.e. However, as shown above, both policies allow for small-scale service establishments that support rural uses as well as agricultural uses. In support of its arguments about small-scale service establishments, MCCA also points to existing FLUE Policy 4.4.G.1.b (re-designated Policy 4.7A.2) and “implementation strategy” 4.6.D.3 (to be deleted) which require commercial uses to be located in the Primary USDs. The policy and implementation strategy that restrict commercial uses to the Primary USDs co- exist in the CGMP with Policy 4.4.G.1.e, which allows small- scale service establishments outside the Primary USDs. Therefore, in whatever manner the County currently reconciles these policies and strategies, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. MCCA refers to the County planning staff's report associated with another proposed plan amendment known as "Becker B-4" in support of MCCA's argument that the amendments at issue in the present case have substantively changed the FLUE with regard to small-scale service establishments. However, none of MCCA's allegations regarding the relevance of the Becker B-4 staff report are borne out. If the Becker B-4 amendment is adopted by the County, it will be subject to its own "in compliance" review. In summary, when all relevant provisions of the CGMP are taken into account, the changes made by Ordinance No. 845 that are related to small-scale service establishments are not substantive changes to the CGMP. MCCA’s claims of internal inconsistency that are based on MCCA’s objections to new Policy 4.12A.2 must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the County did not demonstrate a need for more commercial uses outside the USDs (based on the allowance for small-scale service establishments) must also fail as unsupported by evidence of a substantive change. MCCA’s claim that the allowance for small-scale service establishments constitutes a failure of the County to discourage urban sprawl must also fail as unsupported by evidence of a substantive change. FLUE Policy 4.5F.4 MCCA objects to the changes to Policy 4.5F.4, which allows planned unit developments (PUDs) designed to preserve open space, environmentally sensitive lands, and agricultural land uses. These PUDs can be located in areas currently designated Agricultural and can include residential lots greater than two acres in size if certain criteria are met. MCCA contends that this policy is inconsistent with Policy 4.13A.1, which restricts residential densities in agricultural areas to 20-acre residential lots. The allowance in Policy 4.5F.4 for PUDs with residential lots smaller than 20 acres already exists. Therefore, in whatever manner the County currently reconciles Policies 4.5F.4 and 4.13A.1, that reconciliation pre-dates the EAR-based amendments. The FLUE amendments adopted by Ordinance No. 845 do not alter the situation. Furthermore, a PUD created under Objective 4.5F requires a plan amendment. It appears that one of the purposes of this requirement is to re-designate any agricultural lands to a residential future land use designation.4/ FLUE Objective 4.7A MCCA objects to the removal of the word “shall” from existing FLUE Objective 4.4.G.1 (which would be re-designated as Objective 4.7A). MCCA argues that the existing objective prohibits commercial uses outside the Primary USDs and that the removal of the word “shall” will allow commercial uses outside the USDs. However, the objective does not prohibit commercial uses outside the Primary USDs. The objective states that the County “shall concentrate higher densities and intensities of development” in the Primary USDs. To concentrate a land use in one location does not mean to prohibit it elsewhere. It is Policy 4.7A.2 that requires new commercial uses to be located in the Primary USDs. In this particular context, the removal of the word “shall” does not require a different interpretation or application of Objective 4.7A. It is not a substantive change. FLUE Policy 4.9H.2 MCCA objects to new Policy 4.9H.2, regarding residential PUDs, because the policy indicates that commercial uses can be included in a residential PUD, even if the PUD is located outside the Primary USDs. Policy 4.7A.2 requires all new commercial development to be located in the Primary USDs. Objective 4.5F and its associated policies allow for residential PUDs in agricultural areas outside the USDs, but do not indicate that the PUDs in agricultural areas can include commercial uses. Policy 4.9H.2 conflicts with Policy 4.7A.2 and with Objective 4.5F and its associated policies FLUE Policy 4.13A.7.(1)(d) MCCA objects to new Policy 4.13A.7.(1)(d), which allows one “accessory dwelling unit” on a residential lot. Accessory units cannot be sold separately from the primary dwelling unit and are not counted as separate units for purposes of density calculations. MCCA's argument regarding accessory dwelling units assumes that the new policy allows accessory units in the rural areas of the County, outside the Primary USDs. However, Policy 4.13A.7.(1)(d) appears under the heading "General policies for all urban Residential development." The term "urban" is not defined in the CGMP, but there are several FLUE policies that direct urban residential densities to the Primary USDs, such as Policies 4.7A.2 and 4.7A.3. Objective 4.7A directs densities greater than two units per acre to the Primary USDs, which indicates that densities greater than two units per acre are urban densities. In order to maintain internal consistency, accessory units would have to be confined to areas of the FLUM designated for urban residential density. See FLUE Objective 4.13A.7. The County's proposal to not count accessory uses for density purposes was shown to be a professionally acceptable planning practice. Accessory units are similar to residential additions, converted garages, and other changes that can add bedrooms and residents on a residential lot, but which traditionally have been disregarded when calculating density. FLUE Policy 4.13A.8.(5) MCCA contends that changes made to Policy 4.13A.8.(5), regarding Expressway Oriented Transient Commercial Service Centers ("Expressway Centers"), combined with the proposed deletion of Section 4.6.D.3 of the "Implementation Strategies," allows for more commercial development without data and analysis to support the need for additional commercial development. Policy 4.13A.8.(5) creates Expressway Centers at three large Interstate 95 interchange locations in the County as a special land use designation to accommodate the unique needs of people traveling through the County. Section 4.6.D.3 (which ordinance No. 845 would delete) allows a waiver for Expressway Centers from the general requirements applicable to the USDs if an applicant for a waiver meets certain criteria. MCCA contends that the waiver process weighs "the traveling public’s needs against the value of the urban boundary." That is not an accurate description of the waiver process, because none of the criteria mentions the urban boundary. MCCA contends that the waiver process has been replaced with a "market need test" in Policy 4.13A.8.(5) without supporting data and analysis and that the change encourages urban sprawl. Policy 4.13A.8.(5) requires a market feasibility analysis to show that "the uses proposed are warranted by the traveling public they are intended to serve." MCCA presented no evidence on the County's past applications of Section 4.6.D.3 and Policy 4.13A.8.(5). MCCA failed to show how the demonstration required for a waiver under Section 4.6.D.3 is substantively different and more protective than the demonstration required to establish an Expressway Center under Policy 4.13A.8.(5). MCCA failed to show how the creation of Expressway Centers or the specific amendments to Section 4.6.D.3 and Policy 4.13A.8.(5) will lead to more commercial uses outside the Primary USDs, so as to encourage urban sprawl. State Comprehensive Plan MMCA failed to present evidence or argument to demonstrate that any of the Plan Amendments is inconsistent with the State Comprehensive Plan. Other Issues MCCA raised other issues in its petitions for which it did not present evidence at the final hearing. With regard to all the issues raised by MCCA that are not specifically addressed above, MCCA failed to prove an inconsistency. The Groves' Issues The Groves’ principal objection to the Plan Amendments is with the County’s methodology for determining the need for residential dwelling units, which is based in large part on the a residential capacity analysis (RCA) set forth in FLUE Policy 4.1D.4, adopted by Ordinance No. 845. The Groves contend that the RCA overestimates the capacity or supply of dwelling units on vacant lands that can be used to meet projected population growth. Because need is derived from a comparison of supply and demand, the Groves contend that the RCA’s overestimation of supply will always cause the County to underestimate the need for additional dwelling units. FLUE Policy 4.1D.4 provides: The County shall consider the following factors in its residential capacity analysis: The current peak population, based on the University of Florida’s Bureau of Economic and Business Research (BEBR) medium population, shall be used to demonstrate the unit need in the fifteen year planning period; A market factor of 125 percent shall be applied to the unit need; The Eastern Urban Service District and the Indiantown Urban Service District shall be considered separately; Maximum density shall be calculated for Future Land Use categories in which residential development is allowed; Wetland acreage shall be subtracted from the vacant, undeveloped acreage; Because some land will be taken up by non-residential uses such as roads and utilities, a reduction of 8.5 percent shall be calculated to account for such uses. In the past, Martin County used a similar methodology for determining residential need, but it was not a part of the CGMP. New FLUE Policy 4.1D.3 requires that a new RCA be performed every two years. The RCA is to be used to evaluate future plan amendments and future changes to USD policies. The Groves did not dispute the County’s calculation of residential demand, the number of dwelling units needed to serve the projected population through the planning period 2010 to 2025. As stated in FLUE Policy 4.1D.4, demand is based on mid- range population projections from the University of Florida’s Bureau of Economic and Business Research, which is then adjusted by a 125 percent market factor. A market factor is a multiplier that is applied to account for factors that prevent the full or efficient use of densities allowed by a FLUM. FLUE Policy 4.1D.4 requires that the Eastern USDs and the Indiantown USDs be considered separately. This requirement is based on an historical pattern of higher population growth east of the Florida Turnpike and the expectation that the pattern will continue into the foreseeable future. The County projected an increase of 17,598 new residents in the Eastern USDs and an increase of 754 in the Indiantown USDs by 2025. When these figures are divided by average persons per household (2.21), the result is a demand for 7,963 dwelling units in the Eastern USDs and 341 dwelling units in the Indiantown USDs. Applying the market factor of 125 percent results in a demand for 9,954 dwelling units in the Eastern USDs, and 426 units in the Indiantown USDs for the 2010-2025 planning period. To calculate the residential supply of dwelling units that can be developed on existing vacant lands, FLUE Policy 4.1D.4 directs that the calculation begin by determining the maximum density allowed under each future land use category of the vacant lands. In the following discussion, the maximum density allowed under a future land use designation will be referred to as the “theoretical” maximum density. It is the general practice of the Department to require local governments to use theoretical maximum densities in a need analysis unless there are policies in the comprehensive plan preventing landowners from attaining the theoretical maximum densities. However, like the Department's general practice to accept a market factor no greater than 125 percent, these are not requirements explicitly stated in Department rules from which the Department never deviates. FLUE Policy 4.1D.4 incorporates two limiting factors that prevent the attainment of theoretical maximum densities: (1) wetlands and (2) roads rights-of-way and utility easements. Development is generally prohibited in wetlands. However, landowners whose lands contain wetlands can transfer half of the “lost” density associated with the wetland acreage to the uplands. Therefore, in calculating the acreage of vacant lands that are available for residential development, the RCA subtracts half the wetland acreage. The County also reduces the total vacant land acreage by 8.5 percent to account for the loss of developable acreage due to the presence of road rights-of-way and utility easements within which development is prohibited. After reducing the total acres of vacant lands in the USDs to account for wetlands and for rights-of-way and utilities, the County determined that there is a supply or vacant land capacity of 5,790 dwelling units in the Eastern USDs and 5,335 units in the Indiantown USDs. The County then adjusted these numbers to account for approved residential developments that have not yet been constructed. This adjustment resulted in final calculation of the existing supply in the Eastern USDs of 9,339 dwelling units and an existing supply in the Indiantown USDs of 6,686 dwelling units. The Groves' Critique of the RCA The Groves argue that the RCA overestimates supply by failing to account for other policies of the CGMP that restrict development and prevent a landowner from attaining the theoretical maximum density. Conservation and Open Space Element (COSE) Policy 9.1G.4 requires the preservation of a wetland buffer around a wetland. There was conflicting evidence about whether the County credits the landowner for the acreage set aside as a wetland buffer. The Groves contend that no credit is given and cites Table 4-2 of the FLUE, which indicates that wetland buffer acreage is not subtracted to arrive at the total available acreage that can be developed. The Groves also point to the testimony of a County planner, who stated that the County intended to subtract buffer acreage from vacant land acreage, but ultimately did not do so "based on adamant public comment." However, the County's planning director, Nicki Van Vonno, stated that "[Y]ou do get the full density off of the buffer land." It would be logical for the County to not subtract wetland buffer acreage when calculating residential capacity if the landowner is getting full credit for the buffer acreage. Therefore, it is found that the County allows a full transfer of the density associated with wetland buffer acreage to the uplands. COSE Policy 9.1G.5 requires that 25 percent of upland native habitat on a site be preserved. The landowner is allowed to transfer density from these native upland habitat areas to the unaffected areas of the property. Nevertheless, the Groves contends that COSE Policy 9.1G.5 impairs the ability of landowners to attain the theoretical maximum density. The CGMP also requires a portion of the site be set aside for sufficient water retention and treatment. The RCA does not account for any loss of density caused by water retention and treatment areas. The County had proposed to reduce the theoretical maximum density by 15 percent to account for "surface water management and required preservation,” but abandoned the idea when the Department objected to it as not adequately supported by data and analysis. The evidence presented at the hearing was insufficient to establish that the requirements of the CGMP associated with surface water management and preservation reduces the theoretical maximum density of residential lands by 15 percent. The County has a mixed-use land use category called Commercial-Office-Residential (COR). The County allows only a third of a COR parcel to be developed for residential uses and this practice reduces the theoretical maximum density of COR lands. However, the RCA assumes 100 percent of the COR acreage is available for residential use. The County attempted to justify this discrepancy by pointing out that the limitation of residential uses on COR lands is not incorporated into the CGMP. However, it is an undisputed fact (datum) that the County's practice reduces residential capacity on COR lands. The RCA fails to account for this fact. If the RCA accounted for the limitation of residential development on COR lands, the supply of dwelling units in the Eastern USDs would be reduced by 733 units. FLUE Policy 4.13A.7.(1)(a) establishes a 40-foot height limit countywide which sometimes prevents a landowner from attaining the theoretical maximum density. The RCA does not account for any loss of density caused by building height restrictions. FLUE Policies 4.1F.1 through 4.1F.3 require transitional density zones when land is developed at a higher density than adjacent lands. FLUE Policy 4.1F.2 establishes a zone (or “tier”) abutting the adjacent land, equal to the depth of an existing adjacent residential lot in which development is restricted, to the same density and compatible structure types (e.g., height) as on the adjacent property. The RCA does not account for any loss of density due to the tier policies. Although the landowner is allowed to transfer density to the unaffected portion of the property in the case of some development restrictions imposed by the CGMP, there is not always sufficient acreage remaining to make full use of the transferred density. The Groves' expert witness, Rick Warner, reviewed residential development projects that had been approved or built during the past 15 years in the Eastern USDs and compared the actual number of approved or built units to the theoretical maximum density allowed by the applicable land use designation for the property at the time of approval. Warner determined that, on average, the projects attained only about 45 percent of the theoretical maximum density. The Groves presented the testimony of Morris Crady, who testified that, of the 14 development projects in the County that he was involved in, CGMP policies caused the projects to be developed at 1,285 units fewer than (about 41 percent of) the maximum theoretical density. Comparing the County’s estimated demand for 9,954 dwelling units in the Eastern USDs through 2025 with the County’s estimated supply of 9,339 dwelling units, indicates a deficit of 615 dwelling units. Comparing the County’s estimated demand for 426 dwelling units in the Indiantown USDs through 2025 with the County’s estimated supply of 6,686 dwelling units, indicates a surplus of 6,260 dwelling units. The County decided to make no changes to the FLUM because it believes the projected population can be accommodated with existing land use designations. The Groves argue that, because the RCA overestimates supply, the deficit in the Eastern USDs is actually substantially larger.5/ For example, taking into account the County's policy regarding limiting residential uses on COR lands, the deficit would be 1,348 units in the Eastern USDs. The deficit would be enlarged by the effects of the other factors discussed above that reduce a landowner's ability to attain the theoretical maximum density. The County contends that there is additional residential capacity outside the USDs that should be considered. The County also points to the large surplus of available dwelling units in the Indiantown USDs. The County asserts that there is excess supply to meet the need when all the available dwelling units in the County are considered. These other considerations, however, are not a part of the RCA and, therefore, are in conflict with the RCA. Acres vs. Dwelling Units The Groves assert that County's determination of residential does not identify the amount of land needed for each category of land use as required by law, but, instead, expresses need solely in terms of total dwelling units. The Department has accepted residential need analyses expressed in dwelling units. Dwelling units can be converted into acreages, but only if one is told what density to apply. A local government must determine how many dwelling units it wants in each land use category in order to convert a need expressed in total dwelling units into a need expressed in acreages. Martin County believes that it has a sufficient supply of dwelling units to meet the projected population through the planning period. Apparently, the County is also satisfied with the existing size and distribution of future land use categories as depicted on the FLUM. The existing vacant land acreages for each land use category, set forth in the CGMP, represents the amount of land in each land use category that the County believes is needed to meet the projected population. However, there is an imbalance in the various types of residential land uses in the Eastern USDs. For example, there are only 13 acres of high density residential land and 57 acres of medium density residential land remaining in the Eastern USDs. In contrast, there are 2,950 acres of rural residential lands. The County has acknowledged that its past emphasis on low-height and low-density has contributed to a lack of affordable housing. The Treasure Coast Regional Planning Council noted that the small amount of vacant land in the County available for medium and high residential development contributes to the lack of affordable housing in the County. The Plan Amendments include policies which are designed to address the imbalances in land uses and the lack of affordable housing. These policies include permitting accessory dwelling units for urban residential development; allowing a 10 du/ac density bonus and an affordable housing density bonus in Medium Density Residential developments; reducing the criteria for an affordable housing density bonus in High Density Residential developments; and reviewing residential capacity in the Indiantown USDs. Commercial Need There is no state-wide standard for the amount of commercial, industrial, institutional, conservation, or agricultural lands that a local government must identify in its comprehensive plan in order to accommodate its projected population. The County acknowledges that there is a deficit of commercial land necessary to accommodate economic needs, but no changes in the FLUM are proposed as part of these EAR-based amendments.
Conclusions For Petitioners Martin County Conservation Alliance, Inc., Donna Melzer, and Elisa Ackerly: Donna Sutter Melzer, Esquire 3471 Southwest Centre Court Palm City, Florida 34990-2312 For Petitioners Groves Holdings, LLC, Groves 12, LLC, and Groves 14, LLC: Andrew J. Baumann, Esquire Tara J. Duhy, Esquire Lewis, Longman & Walker, P.A. 515 North Flagler Drive, Suite 1500 West Palm Beach, Florida 33401-4327 For Respondent Martin County: David A. Acton, Esquire Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3322 Linda Loomis Shelley, Esquire Fowler White Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301-1547 For Respondent Department of Community Affairs: L. Mary Thomas, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Plan Amendments are “in compliance,” except for the following policies adopted by Martin County Ordinance No. 845, which the Department should determine are not "in compliance": FLUE Policy 4.1D.4; and FLUE Policy 4.9H.2. DONE AND ENTERED this 7th day of September, 2010, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 2010.
Conclusions Having considered the entire record in this cause, it is concluded that petitioner has satisfied all requirements in Subsection 190.005(1)(e), Florida Statutes (1989). More specifically, it is concluded that all statements contained within the petition have been found to be true and correct, the creation of a district is consistent with applicable elements or portions of the state comprehensive plan and the Lee County comprehensive plan currently in force, the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community, the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district, the community development services and facilities of the district will be compatible with the capacity and uses of existing local and regional community development services and facilities, and the land that will be served by the district is amenable to separate special- district government. Respectively submitted this 7th day of May, 1991, in Tallahassee, Leon County, 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 7th day of May, 1991. Appendix A (Names and Address of Witnesses) Bryon R. Koste, 801 Laurel Oak Drive, Suite 500, Naples, Florida 33963 Thomas R. Peek, 3200 Bailey Lane at Airport Road North, Naples, Florida 33942 Gary L. Moyer, 10300 N.W. 11th Manor, Coral Springs, Florida 33071 Dr. Lance deHaven-Smith, Florida Atlantic University, 220 S.E. 2nd Avenue, Fort Lauderdale, Florida 33301 Samuel R. Crouch, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 David E. Crawford, 9200 Bonita Beach Road, Suite 101, Bonita Springs, Florida 33923 Dr. James E. Pitts, College of Business, Florida State University, Tallahassee, Florida 32306 William Spikowski, Lee County Community Development Department, 1831 Hendry Street, Fort Myers, Florida 33901 Gary L. Beardsley, 2396 13th Street North, Naples, Florida Richard Huxtable, 4741 Spring Creek Road, Bonita Springs, Florida 33923 Larry Sullivan, 4778 Tahiti Village, 4501 Spring Creek Road, Bonita Springs, Florida 33923 Lee Menzies, Business Development Corporation of Southwest Florida, corner of Summerlin and College Parkway, Fort Myers, Florida Donna Buhl, 4501 Spring Creek Road, Box 91, Bonita Springs, Florida 33923 Ruth Norman, 24578 Redfish Street, S.W., Bonita Springs, Florida 33923 James Pepper, P. O. Box 1260, Bonita Springs, Florida 33923 (Names and addresses of persons filing written statements) Eugene S. Boyd, 5225 Serenity Cove, Bokeelia, Florida 33922 Edward S. Zajchowski, 4501 Spring Creek Road, Box 178, Bonita Springs, Florida 33923 Winifred M. Wheeler, 24593 Dolphin Street, S.W., Bonita Springs, Florida 33923 James W. Campbell, 4501 Spring Creek Road, Box 131, Bonita Springs, Florida 33923 Dorothy Jean Kendrick, 300 Haral Street, Sturgis, Michigan 49091 Exhibit A Appendix B (List of Documentary Evidence) Location map Local boundary map outlining district Map of district and surrounding areas Collier County Comprehensive Future Land Use Map Exhibit B Pelican's Nest PUD 1b Ridgewood RPD 1c Palmetto Bay RPD 1d Pelican's Nest RPD 1e Summary of status of permits Proposed development agreement Statement by Crawford concerning DRI Exhibit C Petition filed by Westinghouse Bayside Communities, Inc. Location map Metes and bounds legal description of district Consent to establishment of district Map of existing major trunk water mains, sewer interceptors or outfalls Proposed time tables and cost estimates Future land use portion of Lee County Comprehensive plan Economic impact statement Exhibit D Supplement to metes and bounds description in petition Specific description of all real property within district Exhibit E Photocopy of $15,000 processing check sent to County Letter transmitting petition to Commission Secretary Exhibit F Letter transmitting petition to Division of Administrative Hearings Exhibit G Notice of Publication in Florida Administrative Weekly on March 8, 1991 Affidavit for Fort Myers News-Press publication, March 11, 1991 Affidavit for Fort Myers News-Press publication, March 18, 1991 Affidavit for Fort Myers News-Press publication, March 25, 1991 Affidavit for Fort Myers News-Press publication, April 1, 1991 Exhibit H Lee County Comprehensive Plan Documentation of plan status Exhibit I Chapter 187, Florida Statutes Exhibit J Letter of March 14, 1991 from Secretary of Department Community Affairs to Commission Secretary Exhibit K White Paper by Dr. Lance deHaven-Smith Supplemental Exhibits Prefiled testimony of Bryon G. Koste Prefiled testimony of Samuel R. Crouch 3A Letter from Samuel R. Crouch to Jim Pepper 3B Letter from Samuel R. Crouch to Lloyd Read Prefiled testimony of Gary L. Moyer Prefiled testimony of David E. Crawford Prefiled testimony of Thomas R. Peek Prefiled testimony of Dr. Lance deHaven-Smith Intevenors Exhibit 1 - Letter of Edward S. Zajchowski COPIES FURNISHED: Douglas M. Cook, Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, FL 32399-0001 Kenza Van Assenderp, Esquire P. O. Box 1833 Tallahassee, FL 32302-1833 Judith A. Workman, Esquire 408 Old Trail Road Sanibel, FL 33957 Marianne Kantor, Esquire Asst. County Attorney Lee County Courthouse 1700 Monroe Street Fort Myers, FL 33901 David M. Maloney, Esquire Office of the Governor The Capitol, Room 309 Tallahassee, FL 32399-0001
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Lee County is a political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
The Issue The issue is whether the actions of Florida Housing concerning the review and scoring of the responses to Request for Applications 2019-102 (“RFA”), titled “Community Development Block Grant--Disaster Recovery (‘CDBG- DR’) to be Used in Conjunction with Tax-Exempt MMRB and Non- Competitive Housing Credits in Counties Deemed Hurricane Recovery Priorities,” were contrary to the agency’s governing statutes, rules, policies, or the RFA specifications.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: THE PARTIES Berkeley is an applicant in the RFA that requested an allocation of $6,500,000 in CDBG Development funding; $2,500,000 in CDBG Land Acquisition funding; and $844,699 in non-competitive housing credits. The Berkeley Application, assigned number 2020-017D, was preliminarily deemed ineligible for consideration for funding. Brisas is an applicant in the RFA that requested an allocation of $5,000,000 in CDBG Development funding and $1,674,839 in non-competitive housing credits. The Brisas Application, assigned number 2020-056D, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Northside is an applicant in the RFA that requested an allocation of $7,300,000 in CDBG Development funding; $1,588,014 in non-competitive housing credits; and $24,000,000 in Multifamily Mortgage Revenue Bonds (“MMRB”). The Northside Application, assigned number 2020-024D, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Beacon Place is an applicant in the RFA that requested an allocation of $6,925,500 in CDBG Development funding; $4,320,000 in CDBG Land Acquisition funding; $1,764,203 in non-competitive housing credits; and $24,000,000 in MMRB. The Beacon Place Application, assigned number 2020-045DB, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Bella Vista is an applicant in the RFA that requested an allocation of $8,000,000 in CDBG Development funding; $1,450,000 in CDBG Land Acquisition funding; $609,629 in non-competitive housing credits; and $13,000,000 in MMRB. The Bella Vista Application, assigned number 2020-038DB, was preliminarily deemed eligible but was not selected for funding under the terms of the RFA. Solaris is an applicant in the RFA that requested an allocation of $3,420,000 in CDBG Development funding; $4,500,000 in CDBG Land Acquisition funding; and $937,232 in non-competitive housing credits. The Solaris Application, assigned number 2020-039D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Metro Grande is an applicant in the RFA that requested an allocation of $3,175,000 in CDBG Development funding and $1,041,930 in non-competitive housing credits. The Metro Grande Application, assigned number 2020-041D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Sierra Bay is an applicant in the RFA that requested an allocation of $3,650,000 in CDBG Development funding; $3,300,000 in CDBG Land Acquisition funding; $1,074,173 in non-competitive housing credits; and $16,000,000 in MMRB. The Sierra Bay Application, assigned number 2020-040DB, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Bembridge is an applicant in the RFA that requested an allocation of $7,800,000 in CDBG Development funding; $564,122 in non-competitive housing credits; and $10,100,000 in MMRB. The Bembridge Application, assigned number 2020-046DB, was deemed eligible and preliminarily selected for funding under the terms of the RFA. East Pointe is an applicant in the RFA that requested an allocation of $4,680,000 in CDBG Development funding and $690,979 in non-competitive housing credits. The East Pointe Application, assigned number 2020-053D, was deemed eligible and preliminarily selected for funding under the terms of the RFA. Florida Housing is a public corporation organized pursuant to Chapter 420, Part V, Florida Statutes, and, for purposes of these consolidated cases, is an agency of the State of Florida. Florida Housing is tasked with distributing a portion of the CDBG-DR funding allocated by the U.S. Department of Housing and Urban Development (“HUD”), pursuant to the State of Florida Action Plan for Disaster Recovery. THE COMPETITIVE APPLICATION PROCESS AND RFA 2019-102 Florida Housing is authorized to allocate low-income housing tax credits and other named funding by section 420.507(48). Florida Housing has adopted Florida Administrative Code Chapter 67-60 to govern the competitive solicitation process. Rule 67-60.009(1) provides that parties wishing to protest any aspect of a Florida Housing competitive solicitation must do so pursuant to section 120.57(3), Florida Statutes. Funding is made available through a competitive application process commenced by the issuance of a request for applications. Rule 67-60.009(4) provides that a request for application is considered a “request for proposal” for purposes of section 120.57(3)(f). The RFA was issued on July 30, 2019, with responses due on August 27, 2019. The RFA was modified four times and the application deadline was extended to September 24, 2019. No challenges were made to the terms and specifications of the RFA. Section Five of the RFA included a list of 48 “eligibility items” that an applicant was required to satisfy to be eligible for funding and considered for funding selection. Applications that met the eligibility standards would then be awarded points for satisfying RFA criteria, with the highest scoring applications being selected for funding. No total point items are in dispute. Proximity Point items are contested as to the Beacon Place, East Pointe, and Bembridge Applications. Applicants could select whether they would be evaluated as Priority I, II, or III applications. All of the parties to these consolidated cases identified themselves as Priority I applications. Through the RFA, Florida Housing seeks to award an estimated $76,000,000 of CDBG Land Acquisition Program funding to areas impacted by Hurricane Irma, and in areas that experienced a population influx because of migration from Puerto Rico and the U.S. Virgin Islands due to Hurricane Irma. Florida Housing will award up to $66,000,000 for CDBG Development funding and an additional $10,000,000 for CDBG Land Acquisition Program funding. Applicants were not required to request CDBG Land Acquisition Program funding. Forty-four applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to Florida Housing’s Board of Directors (the “Board”). The Review Committee found 34 applications eligible for funding. The Review Committee found 8 applications ineligible, including that of Berkeley. Two applications were withdrawn. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On December 13, 2019, the Board met and accepted the recommendations of the Review Committee. The Board preliminarily awarded funding to 12 applications, including those of Sierra Bay, Solaris, Metro Grande, East Pointe, and Bembridge. Petitioners Berkeley, Brisas, Northside, Beacon Place, and Bella Vista timely filed Notices of Protest and Petitions for Formal Administrative Hearing. THE BERKELEY APPLICATION As an eligibility item, the RFA required applicants to identify an Authorized Principal Representative. According to the RFA, the Authorized Principal Representative: must be a natural person Principal of the Applicant listed on the Principal Disclosure Form; must have signature authority to bind the Applicant entity; (c) must sign the Applicant Certification and Acknowledgement form submitted in this Application; (d) must sign the Site Control Certification form submitted in this Application; and (e) if funded, will be the recipient of all future documentation that requires a signature. As an eligibility item, the RFA required applicants to submit an Applicant Certification and Acknowledgment form executed by the Authorized Principal Representative. As an eligibility item, the RFA also required applicants to submit a Site Control Certification form executed by the Authorized Principal Representative. In section 3.e.(1) of Exhibit A of the RFA, the applicant is directed to enter the contact information of its Authorized Principal Representative. Berkeley entered the name, organization, and contact information for Jennie D. Lagmay as its Authorized Principal Representative, in response to section 3.e.(1). The name of Jennie D. Lagmay was not disclosed on the Principal Disclosure form required by the RFA. The Applicant Certification and Acknowledgment form and the Site Control Certification form were executed by Jonathan L. Wolf, not Jennie D. Lagmay, the designated Authorized Principal Representative. On both forms, Mr. Wolf is identified as “Manager of Berkeley Landing GP, LLC; General Partner of Berkeley Landing, Ltd.” Jonathan L. Wolf is listed on the Principal Disclosure Form. Aside from section 3.e.(1) of Exhibit A, Jennie D. Lagmay’s name is not found in the Berkeley Application. Florida Housing determined that the Berkeley Application was ineligible for an award of funding for three reasons: 1) the Authorized Principal Representative listed was not disclosed on the Principal Disclosure form; 2) the Applicant Certification and Acknowledgement form was not signed by the Authorized Principal Representative; and 3) the Site Control Certification was not signed by the Authorized Principal Representative. Two other applications for this RFA were found ineligible for identical reasons: Thornton Place, Application No. 2020-020D; and Berkshire Square, Application No. 2020-034D. In these, as in the Berkeley Application, Jennie D. Lagmay was named as the Authorized Principal Representative in section 3.e.(1) of Exhibit A, but Jonathan L. Wolf executed the Applicant Certification and Acknowledgement form and the Site Control Certification form as the Authorized Principal Representative. Berkeley concedes it made an error in placing the name of Ms. Lagmay in section 3.e.(1), but argues that this constituted a minor irregularity that should have been waived by Florida Housing. Berkeley contends that the entirety of its Application makes plain that Jonathan D. Wolf is in fact its Authorized Principal Representative. Berkeley argues that Florida Housing should waive the minor irregularity and determine that the Berkeley Application is eligible for funding. Berkeley points out that only two members of the Review Committee, Rachel Grice and Heather Strickland, scored the portions of the Berkeley Application that led to the ineligibility recommendation. Ms. Grice determined that the Authorized Principal Representative listed in the Berkeley Application was not disclosed on the Principal Disclosure form. Ms. Strickland determined that neither the Applicant Certification and Acknowledgement form nor the Site Control Certification form was executed by the Authorized Principal Representative. Neither Ms. Grice nor Ms. Strickland conducted a minor irregularity analysis for the Berkeley Application. Rule 67-60.008, titled “Right to Waive Minor Irregularities,” provides as follows: Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Berkeley contends that because a minor irregularity analysis was not conducted by the Review Committee members, the Board was deprived of a necessary explanation for the preliminary recommendations of Ms. Grice and Ms. Strickland. Marisa Button, Florida Housing’s Director of Multifamily Allocations, agreed that the Review Committee members did not perform a minor irregularity analysis but testified that none was required given the nature of the discrepancy in the Berkeley Application. Ms. Button performed a minor irregularity analysis as Florida Housing’s corporate representative in this proceeding and concluded that the error could not be waived or corrected without providing an unfair competitive advantage to Berkeley. Ms. Button testified that the fact that the person identified as the Authorized Principal Representative was not the same person who signed the certification forms could not be considered a minor irregularity because the application demonstrated conflicting and contradictory information, creating uncertainty as to the applicant’s intentions. She stated that Florida Housing is required to limit its inquiry to the four corners of the application. Ms. Button stated that Florida Housing cannot take it upon itself to decide what the applicant intended when the information provided in the application is contradictory. Berkeley points to the fact that the Application Certification and Acknowledgement form, signed by Mr. Wolf, includes the following language: “The undersigned is authorized to bind the Applicant entity to this certification and warranty of truthfulness and completeness of the Application.” Berkeley argues that it should have been clear to Florida Housing that Mr. Wolf is the person authorized to bind the company and that the inclusion of Ms. Lagmay’s name in section 3.e.(1) was in the nature of a typographical error. Florida Housing points out that the Application Certification and Acknowledgement form also includes the following language below the signature line: “NOTE: Provide this form as Attachment 1 to the RFA. The Applicant Certification and Acknowledgement form must be signed by the Authorized Principal Representative stated in Exhibit A.” Florida Housing notes that the Site Control Certification form includes similar language: “This form must be signed by the Authorized Principal Representative stated in Exhibit A.” Berkeley contends that Florida Housing was well aware that Jonathan L. Wolf has been the named Authorized Principal Representative on multiple applications filed under the umbrella of Wendover Housing Partners, the general developer behind Berkeley. In at least one of those previous applications, Ms. Lagmay, an employee of Wendover Housing Partners, was identified as the “contact person.” Ms. Button responded that Review Committee members are specifically prohibited from using personal knowledge of a general development entity in a specific application submitted by a single purpose entity. She further testified that if Florida Housing employees were to use their personal knowledge of an experienced developer to waive errors in a specific application, applicants who had not previously submitted applications would be at a competitive disadvantage. Ms. Button testified that Berkeley was established as a single purpose entity in accordance with the RFA’s requirements. She testified that she has known general developers to structure these single purpose entities in different ways, depending on the requirements of an RFA. An applicant might designate an employee, such as Ms. Lagmay, as a principal to give her experience as a developer. Again, Ms. Button emphasized that Florida Housing is not in a position to decide what the applicant “really meant” when there is a discrepancy in the information provided. Ms. Button testified that Florida Housing has determined in prior RFAs that an applicant was ineligible because the person identified as the Authorized Principal Representative was not the same person who signed the certification forms. Florida Housing rightly concluded that there are only two possible ways to interpret the Berkeley Application. If Ms. Lagmay was the Authorized Principal Representative, then the application is nonresponsive because she was not listed on the Principal Disclosure form and she did not sign the required certification forms. If Ms. Lagmay was not the Authorized Principal Representative, the application is nonresponsive because no Authorized Principal Representative was identified. There is no way to tell from the four corners of the application which of these alternatives is the correct one. Florida Housing cannot step in and cure the defect in the application by making its own educated guess as to the intended identity of the Authorized Principal Representative. Berkeley has failed to demonstrate that Florida Housing’s preliminary determination of ineligibility was contrary to the applicable rules, statutes, policies, or specifications of the RFA, or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE SIERRA BAY APPLICATION The parties stipulated to the facts regarding the Sierra Bay Application, which are incorporated into this Recommended Order. Florida Housing deemed the Sierra Bay Application eligible and, pursuant to the terms of the RFA, preliminarily selected Sierra Bay for funding. In order to demonstrate site control, the RFA required execution of the Site Control Certification form. Site control documentation had to be included in the application. One way to demonstrate site control was to include an “eligible contract.” The RFA required that certain conditions be met in order to be considered an “eligible contract.” One of those requirements was that the contract “must specifically state that the buyer’s remedy for default on the part of the seller includes or is specific performance.” Sierra Bay acknowledged that the site control documentation included within its application did not meet the “eligible contract” requirement because it failed to include language regarding specific performance as a remedy for the seller’s default. Sierra Bay agreed that the omission of the specific performance language was not a minor irregularity and that Sierra Bay’s Application is ineligible for funding under the terms of the RFA. THE SOLARIS APPLICATION The RFA specified that a Local Government, Public Housing Authority, Land Authority, or Community Land Trust must hold 100 percent ownership in the land of any qualifying Priority I application. The RFA defined “Community Land Trust” as: A 501(c)(3) which acquires or develops parcels of land for the primary purpose of providing or preserving affordable housing in perpetuity through conveyance of the structural improvement subject to a long term ground lease which retains a preemptive option to purchase any such structural improvement at a price determined by a formula designed to ensure the improvement remains affordable in perpetuity. The RFA provided that if a Community Land Trust is the Land Owner, the Community Land Trust must provide the following documentation as Attachment 2 to the application to demonstrate that it qualifies as a Community Land Trust: The Community Land Trust must provide its Articles of Incorporation or Bylaws demonstrating it has existed since June 28, 2018 or earlier and that a purpose of the Community Land Trust is to provide or preserve affordable housing; and The Community Land Trust must provide a list that meets one of the following criteria to demonstrate experience of the Community Land Trust with owning property: (i) at least two parcels of land that the Community Land Trust currently owns; or (ii) one parcel of land that the Community Land Trust owns, consisting of a number of units that equals or exceeds at least 25 percent of the units in the proposed Development. The RFA required that the proposed development must be affordable in perpetuity. For purposes of the RFA, “perpetuity” means 99 years or more. Solaris identified Residential Options of Florida, Inc. (“Residential Options”), as the Community Land Trust owner in its Priority 1 Application. Attachment 2 of the Solaris Application included the Articles of Incorporation of Residential Options (“Original Articles”), filed with the Division of Corporations on July 30, 2014. The purpose of the corporation as stated in the Original Articles was as follows: Said corporation is organized exclusively for charitable, religious, educational, and scientific purposes, including for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the Internal Revenue Code, or the corresponding section of any future federal tax code. Attachment 2 of the Solaris Application also included Amended and Restated Articles of Incorporation of Residential Options (“Amended Articles”), filed with the Division of Corporations on September 20, 2019. The Amended Articles retained the boilerplate statement of purpose of the Original Articles, but added the following paragraph: This shall include the purpose of empowering individuals with intellectual and developmental disabilities to successfully obtain and maintain affordable and inclusive housing of their choice and to provide affordable housing and preserve the affordability of housing for low- income or moderate income people, including people with disabilities, in perpetuity. Attachment 2 of the Solaris Application also included the Articles of Incorporation of ROOF Housing Trust, Inc. (“ROOF Housing Trust”) filed with the Division of Corporations on July 17, 2017. The purpose of the corporation as stated in these Articles includes the following: “to acquire land to be held in perpetuity for the primary purpose of providing affordable housing for people with developmental disabilities.” Finally, Attachment 2 of the Solaris Application included Articles of Merger, which were filed with the Division of Corporations on September 10, 2019. The Articles of Merger indicated that the Residential Options and ROOF Housing Trust had merged, with Residential Options standing as the surviving corporation. The petitioners contesting the Solaris Application raise several issues. The first issue is whether the RFA requires only that the entity named as the Community Land Trust have been in existence in some form as of June 28, 2018, or whether the entity had to exist as a Community Land Trust as of that date. The Community Land Trust named in the Solaris Application, Residential Options, existed prior to June 28, 2018, but not as a Community Land Trust. The second issue is whether the June 28, 2018, date applies only to the existence of the Community Land Trust or whether the RFA requires that the Community Land Trust have been in existence and have had a stated purpose to provide or preserve affordable housing and have met the ownership experience criteria as of June 28, 2018. It is questionable whether Solaris would be eligible for funding if the RFA required the latter, because Residential Options did not have a stated purpose of providing or preserving affordable housing prior to its merger with ROOF Housing Trust, at least no such purpose as could be gleaned from the four corners of the Solaris Application. The third issue is whether the RFA’s definition of “Community Land Trust” requires the qualifying entity to have existing ground leases at the time of the application. Florida Housing and Solaris concede that Residential Options did not have operative ground leases at the time Solaris submitted its application. Hurricane Irma struck Puerto Rico and Florida in September 2017. Ms. Button testified that in creating this RFA, Florida Housing wanted to weed out opportunistic community land trusts created only for the purpose of obtaining this funding. Florida Housing initially proposed an RFA requirement that the community land trust have existed as of September 2017, but discovered through workshops with interested parties that the early date would exclude legitimate Community Land Trusts that had been established in response to the storm. Ms. Button testified that Florida Housing’s intent was to make this RFA as inclusive as practicable. Florida Housing therefore selected June 28, 2018, as a date that would exclude opportunists without penalizing the genuine responders to the natural disaster. Both Florida Housing and Solaris point to the text of the RFA requirement to demonstrate that the date of June 28, 2018, should be read to apply only to whether the Community Land Trust existed as of that date. Solaris argues that the RFA states three independent criteria for eligibility: 1) that the Community Land Trust “has existed since June 28, 2018 or earlier”; 2) that a purpose of the Community Land Trust is1 to provide or preserve affordable housing; and 3) the Community Land Trust must demonstrate its property ownership experience, one means of doing which is to name at least two parcels of land that the Community Land Trust currently owns. Florida Housing argues that Solaris met the first criterion by providing its Articles of Incorporation showing it has existed since July 30, 2014. Florida Housing argues that Solaris met the second criterion by providing its Amended and Restated Articles of Incorporation, which stated the purpose of providing or preserving affordable housing in perpetuity. Florida Housing argues that Solaris met the third criterion by identifying two properties in Immokalee, Independence Place, and Liberty Place as parcels that it currently owns. Florida Housing thus reached the conclusion that Residential Options met the definition of a Community Land Trust in the RFA as of June 28, 2018. Florida Housing argues that, according to the definition in the RFA, a Community Land Trust must be a 501(c)(3) corporation, which Residential Options clearly is. It must acquire or develop parcels of land, which it has done. Finally, it must have the “primary purpose of providing or preserving affordable housing in perpetuity through conveyance of the structural improvement subject to a long term ground lease.” Ms. Button testified that Florida Housing’s interpretation of the RFA’s Community Land Trust definition was that if Residential Options had the primary purpose of providing affordable housing in perpetuity through the use of long term ground leases, the definition has been met even if Residential Options had not actually entered into any ground leases at the 1 Both Florida Housing and Solaris emphasize that the second criterion is stated in the present tense, which suggests that it does not intend a backward look to June 28, 2018. time it submitted its application. This is not the only way to read the RFA’s definition, but it is not an unreasonable reading, particularly in light of Florida Housing’s stated intent to make the RFA as inclusive as possible in terms of the participation of legitimate community land trusts. Sheryl Soukup, the Executive Director of Residential Options, testified via deposition. Ms. Soukup testified that in 2017, Residential Options realized there was a need for housing for people with disabilities and decided to become a nonprofit housing developer of properties that would be kept affordable in perpetuity. To that end, ROOF Housing Trust was created to act as the community land trust for the properties developed by Residential Options. The two companies had identical Boards of Directors and Ms. Soukup served as Executive Director of both entities. In its application to the IRS for 501(c)(3) status, ROOF Housing Trust included the following: The organization does not own any property yet. ROOF Housing Trust intends to own vacant land, single family homes, and multi-family units. Some of the units will be provided as rental units. ROOF Housing Trust will sell some of the houses for homeownership, while retaining the land on which they are located. The land will be leased to homeowners at a nominal fee to make the purchase price affordable, using the community land trust model. Ground leases and warranty deeds not been developed yet [sic], but will be based on the sample documents provided by the Florida Community Land Trust Institute.[2] Ms. Soukup described ROOF Housing Trust as “a vehicle by which Residential Options of Florida could act as a community land trust…. [I]t was always the intention of Residential Options of Florida to develop and put into 2 The ROOF Housing Trust 501(c)(3) application was not a part of the Solaris Application. It was included as an exhibit to Ms. Soukup’s deposition. a community land trust property so that it would remain affordable in perpetuity for use by people of intellectual and development [sic] disabilities.” Residential Options acquired the aforementioned Independence Place and Liberty Place properties but never conveyed ownership to ROOF Housing Trust. Residential Options acted as a de facto community land trust. No ground leases have yet been entered into because the properties are at present rented directly by Residential Options to persons with developmental disabilities. Ms. Soukup testified that at the time ROOF Housing Trust was created, the Board of Residential Options was undecided whether to create a separate entity to act as a community land trust or to incorporate that function into the existing entity. The decision to incorporate ROOF Housing Trust was based on the Board’s intuition that a separate corporation would “allow us the most flexibility in the future.” In any event, Residential Options and ROOF Housing Trust were functionally the same entity. Ms. Soukup testified that plans to merge the two companies emerged from a situation in which Collier County refused to allow Residential Options to convey its two properties to ROOF Housing Trust. The Board that controlled both companies decided that there was no point in maintaining separate legal entities if ROOF Housing Trust could not perform its main function. As noted above, Articles of Merger were filed on September 10, 2019. Northside points to minutes from Residential Options’s Board meetings in August and September 2019, as indicating that the Board itself did not believe that Residential Options was a community land trust prior to the merger with ROOF Housing Trust. Northside contends that the September 2019 merger was initiated and completed mainly because Residential Options had been approached about serving as the Community Land Trust for the applications of Solaris and Sierra Bay in this RFA. Northside points to the “frenzied activity” by Residential Options to create an entity meeting the definition of Community Land Trust in the days just before the September 24, 2019, application deadline. Northside argues that Residential Options is the very kind of opportunistic community land trust that the June 28, 2018, date of creation was intended to weed out. Northside’s argument is not persuasive of itself, but it does point the way to an ultimate finding as to the Solaris Application. Both Florida Housing and Solaris gave great emphasis to Ms. Soukup’s testimony to refute the suggestion that Residential Options acted opportunistically. Ms. Soukup was a credible witness. Her explanation of the process by which Residential Options first created then merged with ROOF Housing Trust dispelled any suggestion that Residential Options was a community land trust created solely to cash in on this RFA. The problem is that Ms. Soukup’s explanation was not before the Review Committee when it evaluated the Solaris Application. The only information about Residential Options that the Review Committee possessed was Attachment 2 of the Solaris Application. The dates of the merger documents and Amended Articles certainly give some credence to the suspicions voiced by Northside. However, the undersigned is less persuaded by the implications as to the intentions of Residential Options than by the contradictions between Florida Housing’s statements of intent and its reading of the RFA in relation to the Solaris Application. The decision to find the Solaris Application eligible for funding founders on the first issue stated above: whether the RFA requires only that the Community Land Trust have been in existence in some form as of June 28, 2018, or whether it had to exist as a Community Land Trust as of that date. Ms. Button testified that the June 28, 2018, date was settled upon as a way of including community land trusts created in the wake of Hurricane Irma, while excluding those created to cash in on this RFA. During cross- examination by counsel for Northside, Ms. Button broadened her statement to say that Florida Housing’s intention was to exclude entities that had not been involved in affordable housing at all prior to June 28, 2018. Nonetheless, the RFA language is limited to Community Land Trusts. The RFA states: “The Community Land Trust must provide its Articles of Incorporation or Bylaws demonstrating that it has existed since June 28, 2018 or earlier…” The Solaris Application shows that Residential Options existed prior to June 28, 2018, but not as a Community Land Trust. Residential Options did not become a Community Land Trust until it completed its merger with ROOF Housing Trust and filed the Amended Articles on September 20, 2019. Ms. Button’s statement of intent is accepted as consistent with the plain language of the RFA: the date of June 28, 2018, excludes Community Land Trusts created subsequently. It is inconsistent for Florida Housing to also read the RFA language to say that the qualifying entity need not have existed as a Community Land Trust prior to June 28, 2018. It would be arbitrary for Florida Housing to set a date for the creation of Community Land Trusts then turn around and find that the date does not apply to this particular Community Land Trust. Ms. Soukup’s testimony was that Residential Options and ROOF Housing Trust were effectively a single entity and that Residential Options was in fact operating as a community land trust prior to the September 10, 2019, merger. However, Ms. Soukup’s explanation was not before the Review Committee, which was limited to one means of ascertaining whether an entity was a Community Land Trust prior to June 28, 2018: the Articles of Incorporation or Bylaws. Residential Options’s Original Articles included no language demonstrating that it was a Community Land Trust prior to the September 10, 2019, merger with ROOF Housing Trust and the filing of the Amended Articles on September 20, 2019.3 As set forth in the discussion of the Berkley Application above, Florida Housing is required to limit its inquiry to the four corners of an application. It was contrary to the provisions of the RFA for Florida Housing to find that Residential Options’s mere existence as a legal entity prior to June 28, 2018, satisfied the requirement that the Community Land Trust must demonstrate that it existed prior to June 28, 2018. Ms. Button’s own testimony demonstrated that Florida Housing intended to exclude Community Land Trusts created after June 28, 2018. ROOF Housing Trust existed as a Community Land Trust in 2017, but ROOF Housing Trust was not the Community Land Trust named in the Solaris Application. Ms. Soukup’s explanation of the circumstances showed that Residential Options was well intentioned in its actions, but her explanation was not a part of the Solaris Application that was before Florida Housing’s Review Committee. THE METRO GRANDE APPLICATION Florida Housing deemed the Metro Grande Application eligible. Pursuant to the terms of the RFA, the Metro Grande Application was preliminarily selected for funding. Petitioner Brisas contends that the Metro Grande Application should have been found ineligible for failure to include mandatory site control documentation. Metro Grande submitted a Priority I application that was not seeking Land Acquisition Program funding. The site control requirements for such applicants are as follows: 3 This finding also disposes of Solaris’s arguments regarding the legal effect of corporate mergers. The RFA provided one simple way of demonstrating whether an entity was a Community Land Trust as of June 28, 2018. Florida Housing’s Review Committee could not be expected to delve into the complexities of corporate mergers to answer this uncomplicated question. The Local Government, Public Housing Authority, Land Authority, or Community Land Trust must already own the land as the sole grantee and, if funded, the land must be affordable into Perpetuity.[4] Applicants must demonstrate site control as of Application Deadline by providing the properly executed Site Control Certification form (Form Rev. 08-18). Attached to the form must be the following documents: A Deed or Certificate of Title. The deed or certificate of title (in the event the property was acquired through foreclosure) must be recorded in the applicable county and show the Land Owner as the sole Grantee. There are no restrictions on when the land was acquired; and A lease between the Land Owner and the Applicant entity. The lease must have an unexpired term of at least 50 years after the Application Deadline. Metro Grande did not include a deed or certificate of title in its application. In fact, no deed or certificate of title for the Metro Grande site exists. Miami-Dade County owns the Metro Grande site. Miami-Dade County acquired ownership of the Metro Grande site by eminent domain. The eminent domain process culminated in the entry of four Final Judgments for individual parcels which collectively compose the Metro Grande site. The Final Judgments were not attached to Metro Grande’s Application. There was no requirement in the RFA that Metro Grande include these Final Judgments in its application. The Final Judgments were produced during discovery in this proceeding. In its application, Metro Grande included a Land Owner Certification and Acknowledgement Form executed by Maurice L. Kemp, as the Deputy Mayor of Miami-Dade County, stating that the county holds or will hold 100 percent ownership of the land where Metro Grande’s proposed 4 The RFA defined “Perpetuity” as “at least 99 years from the loan closing.” development is located. Additionally, in its application, Metro Grande stated that Miami-Dade County owned the property. The RFA expressly states that Florida Housing “will not review the site control documentation that is submitted with the Site Control Certification form during the scoring process unless there is a reason to believe that the form has been improperly executed, nor will it in any case evaluate the validity or enforceability of any such documentation.” Florida Housing reserves the right to rescind an award to any applicant whose site control documents are shown to be insufficient during the credit underwriting process. Thus, the fact that no deed or certificate of title was included with Metro Grande’s site control documents was not considered by Florida Housing during the scoring process. Ms. Button testified that while this was an error in the application, it should be waived as a minor irregularity. The purpose of the documentation requirements was to demonstrate ownership and control of the applicant’s proposed site. There was no question or ambiguity as to the fact that Miami- Dade County owned the Metro Grande site. Florida Housing was not required to resort to information extraneous to the Metro Grande Application to confirm ownership of the site. The Land Owner Certification and Acknowledgement form, executed by the Deputy Mayor as the Authorized Land Owner Representative, confirmed ownership of the parcels. Metro Grande’s failure to include a deed or certificate of title, therefore, created no confusion as to who owned the property or whether Miami-Dade County had the authority to lease the property to the applicant. There was no evidence presented that the failure to include a deed or certificate of title resulted in the omission of any material information or provided a competitive advantage over other applicants. Brisas contends that the RFA was clear as to the documents that must be included to satisfy the site control requirements. Metro Grande failed to provide those documents or even an explanation why those documents were not provided. Florida Housing ignored the fact that no deed or certificate of title was provided, instead relying on information found elsewhere in the application. It is found that Metro Grande failed to comply with an eligibility item of the RFA, but that Florida Housing was correct to waive that failure as a minor irregularity that provided Metro Grande no competitive advantage, created no uncertainty as to whether the requirements of the RFA were met, and did not adversely affect the interests of Florida Housing or the public. Brisas has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE BEACON PLACE APPLICATION Florida Housing deemed the Beacon Place Application eligible. Pursuant to the terms of the RFA, Beacon Place was not preliminarily selected for funding. The RFA provides that an application may earn proximity points based on the distance between its Development Location Point and the selected Transit or Community Service. Proximity points are used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference. Beacon Place is a Large County Application that is not eligible for the “Public Housing Authority Proximity Point Boost.” As such, the Beacon Place Application was required to achieve a minimum Transit Point score of 2 to be eligible for funding. Beacon Place must also achieve a total Proximity Point score of 10.5 in order to be eligible for funding. Beacon Place must achieve a total Proximity Point score of 12.5 or more in order to receive the RFA’s Proximity Funding Preference. Based on the information in its Application, Beacon Place received a Total Proximity Point score of 18 and was deemed eligible for funding and for the Proximity Point Funding Preference. The Beacon Place Application listed a Public Bus Rapid Transit Stop as its Transit Service. Applying the Transit Service Scoring Charts in Exhibit C of the RFA, Florida Housing awarded Beacon Place 6 Proximity Points for its Transit Service. The Beacon Place Application listed a Grocery Store, a Pharmacy, and a Public School in its Community Services Chart in order to obtain Proximity Points for Community Services. Using the Community Services Scoring Charts in Exhibit C of the RFA, Florida Housing awarded Beacon Place 4 Proximity Points for each service listed, for a total of 12 Proximity Points for Community Services. Beacon Place has stipulated, however, that the Public School listed in its application does not meet the definition of “Public School” in the RFA and Beacon Place should not receive the 4 Proximity Points for listing a public school. The RFA defines a “Public Bus Rapid Transit Stop” as: [a] fixed location at which passengers may access public transportation via bus. The Public Bus Rapid Transit Stop must service at least one bus that travels at some point during the route in either a lane or corridor that is exclusively used by buses, and the Public Bus Rapid Transit Stop must service at least one route that has scheduled stops at the Public Bus Rapid Transit Stop at least every 20 minutes during the times of 7am to 9am and also during the times of 4pm to 6pm Monday through Friday, excluding holidays, on a year- round basis. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. The Beacon Place Application included Metrobus Route 38 (“Route 38”) as a Public Bus Rapid Transit Stop. Route 38 has scheduled stops at the location identified in the Beacon Place Application at the following times during the period of 7 a.m. and 9 a.m. Monday through Friday: 7:01, 7:36, 7:56, 8:11, 8:26, 8:41, and 8:56. Brisas and Northside contend that Route 38 does not meet the definition of a Public Bus Rapid Transit Stop because there is a gap of more than 20 minutes between the 7:01 a.m. bus and the 7:36 a.m. bus. Applicants are not required to include bus schedules in the application. Florida Housing does not attempt to determine whether an identified stop meets the RFA definitions during the scoring process. During discovery in this litigation, Florida Housing changed its position and now agrees that Route 38 does not satisfy the definition. Nonetheless, the standard of review set forth in section 120.57(3) is applicable to Florida Housing’s initial eligibility determination, not its revised position. All parties stipulated that Route 38 meets the definition of a Public Bus Rapid Transit Stop as to scheduled stops during the hours of 4 p.m. to 6 p.m. Monday through Friday. If the bus stop listed by Beacon Place does not also meet the definition of a Public Bus Rapid Transit Stop as to scheduled stops during the hours of 7 a.m. to 9 a.m., Beacon Place would not be entitled to any Transit Service Proximity Points and would be ineligible for funding. Beacon Place cannot contest the fact that there is a 35 minute gap between the 7:01 and the 7:36 buses. Beacon Place has attempted to salvage its situation by comparing the language used in the RFA definition of a Public Bus Stop with that used in the definition of a Public Bus Rapid Transit Stop. The RFA defines Public Bus Stop in relevant part as [a] fixed location at which passengers may access one or two routes of public transportation via buses. The Public Bus Stop must service at least one bus route with scheduled stops at least hourly during the times of 7am to 9am and also during the times of 4pm and 6pm Monday through Friday, excluding holidays, on a year round basis…. Florida Housing has interpreted the “hourly” requirement of the Public Bus Stop definition to mean that a bus must stop at least once between 7:00 a.m. and 8:00 a.m., and at least once between 8:00 a.m. and 9:00 a.m. Beacon Place suggests that Florida Housing should interpret the “every 20 minutes” requirement for a Public Bus Rapid Transit Stop similarly, so that a bus must stop at least once between 7:00 a.m. and 7:20 a.m., once between 7:20 a.m. and 7:40 a.m., and once between 7:40 a.m. and 8:00 a.m. Florida Housing has rejected this interpretation, however, noting that the language in the two definitions is explicitly different. Ms. Button testified that if Florida Housing had intended these two distinct definitions to be interpreted similarly, it could easily have worded them differently. It could have required a Public Bus Stop to have stops “at least every 60 minutes,” rather than “hourly.” It could have required a Public Bus Rapid Transit Stop to have “three stops per hour” rather than “every 20 minutes.” Ms. Button observed that the purpose of the Public Bus Rapid Transit Stop definition is to award points for serving the potential residents with frequent and regular stops. The idea was to be sure residents had access to the bus during the hours when most people are going to and from work. Florida Housing’s interpretation of “every 20 minutes” is consonant with the plain language of the phrase and reasonably serves the purpose of the definition. Florida Housing also rejected the idea that the failure of the identified stop to meet the definition of a Public Bus Rapid Transit Stop in the RFA should be waived as a minor irregularity. Ms. Button testified that allowing one applicant to get points for a stop that did not meet the definition would give it a competitive advantage over other applicants, including some potential applicants who did not apply because they could not satisfy the terms of the definition. Because the bus stop listed by Beacon Place does not meet the definition of a Public Bus Rapid Transit Stop, Beacon Place is not entitled to any Transit Service Proximity Points and is thus ineligible for funding. Brisas and Northside have demonstrated that Florida Housing’s preliminary determination of eligibility for Beacon Place was contrary to the specifications of the RFA. Florida Housing’s original recommendation would have been contrary to the terms of the RFA. THE EAST POINTE APPLICATION Florida Housing deemed the East Pointe Application eligible. Pursuant to the terms of the RFA, East Pointe was preliminarily selected for funding. Bella Vista challenged Florida Housing’s action alleging that the Medical Facility selected by East Pointe did not meet the definition found in the RFA. East Pointe proposed a Development in Lee County, a Medium County according to the terms of the RFA. Applicants from Medium Counties are not required to attain a minimum number of Transit Service Points to be considered eligible for funding. However, such applicants must achieve at least 7 total Proximity Points to be eligible for funding and at least 9 Proximity Points to receive the Proximity Funding Preference. The East Pointe Application identified three Public Bus Stops and was awarded 5.5 Proximity Points based on the Transit Service Scoring Chart in Exhibit C to the RFA. However, East Pointe has stipulated that Public Bus Stop 1 listed in its application does not meet the definition of a Public Bus Stop because it does not have the required scheduled stops. Based on the Transit Service Scoring Chart, East Pointe should receive a total of 3.0 Proximity Points for Transit Services for Public Bus Stops 2 and 3. East Pointe listed a Grocery Store, a Medical Facility, and a Public School in its Community Services Chart. Based on the Community Services Scoring Charts in Exhibit C to the RFA, East Pointe received 1 Proximity Point for its Grocery Store, 4 Proximity Points for its Medical Facility, and 3 Proximity Points for its Public School, for a total of 8 Proximity Points for Community Services. East Pointe listed Lee Memorial Health System at 3511 Dr. Martin Luther King Jr. Boulevard, Ft. Myers, Florida, as its Medical Facility. The RFA defines “Medical Facility” as follows: A medically licensed facility that (i) employs or has under contractual obligation at least one physician licensed under Chapter 458 or 459, F.S. available to treat patients by walk-in or by appointment; and (ii) provides general medical treatment to any physically sick or injured person. Facilities that specialize in treating specific classes of medical conditions or specific classes of patients, including emergency rooms affiliated with specialty or Class II hospitals and clinics affiliated with specialty or Class II hospitals, will not be accepted. Additionally, it must have been in existence and available for use by the general public as of the Application Deadline. If East Pointe’s selected Medical Facility does not meet the definition of “Medical Facility” in the RFA, East Pointe will lose 4 Proximity Points, reducing its total Proximity Points to 7. The East Pointe Application would still be eligible but would not receive the Proximity Funding Preference and, therefore, would fall out of the funding range of the RFA. Bella Vista alleged that East Pointe should not have received Proximity Points for a Medical Facility because the Lee Community Healthcare location specified in its application “only serves adults and therefore only treats a specific group of patients.” Lee Community HealthCare operates nine locations in Lee County, including the “Dunbar” location that East Pointe named in its application. Lee Community Healthcare’s own promotional materials label the Dunbar location as “adults only.” Robert Johns, Executive Director for Lee Community Healthcare, testified by deposition. Mr. Johns testified that as of the RFA application date of September 24, 2019, the Dunbar office provided services primarily to adults 19 years of age or over, by walk-in or by appointment. A parent who walked into the Dunbar office with a sick or injured child could obtain treatment for that child. A parent seeking medical services for his or her child by appointment would be referred to a Lee Community HealthCare office that provided pediatric services. Mr. Johns testified that the Dunbar office would provide general medical treatment to any physically sick or injured person who presented at the facility, including children. Children would not be seen by appointment at the Dunbar facility, but they would be treated on a walk-in basis. The RFA requires a Medical Facility to treat patients “by walk-in or by appointment.” Ms. Button testified that Florida Housing reads this requirement in the disjunctive. A Medical Facility is not required to see any and all patients by walk-in and to see any and all patients by appointment. Florida Housing finds it sufficient for the Medical Facility to see some or all patients by walk-in or by appointment. Ms. Button opined that the Dunbar office met the definition of a Medical Facility because it treated adults by walk-in or appointment and treated children on a walk-in basis. Florida Housing’s reading is consistent with the literal language of the RFA definition. While it would obviously be preferable for the Dunbar facility to see pediatric patients by appointment, the fact that it sees them on a walk-in basis satisfies the letter of the RFA provision. Bella Vista has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious. THE BEMBRIDGE APPLICATION Florida Housing deemed the Bembridge Application eligible. Pursuant to the terms of the RFA, Bembridge was preliminarily selected for funding. Bembridge proposed a development in Collier County, a Medium County in RFA terms. As an applicant from a Medium County, Bembridge was required to achieve at least 7 total Proximity Points to be eligible for funding and at least 9 Proximity Points to receive the Proximity Funding Preference. Medium County applicants are allowed, but not required, to claim both Transit Service points and Community Service points. As to Community Services, the RFA provides that an applicant may receive a “maximum 4 Points for each service, up to 3 services.” The RFA goes on to state: Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score.[5] The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. In its Application, Bembridge listed four, not three, Community Services. Bembridge was one of six Applicants that mistakenly submitted four Community Services instead of three. The Review Committee scorer reviewing Community Services in the applications stated on her scoring sheet: “After removing points for the service with the least amount of points, all still met the eligibility requirement.” 5 The four listed Community Services were Grocery Store, Public School, Medical Facility, and Pharmacy. Florida Housing interpreted the RFA as not specifically prohibiting an applicant from listing four Community Services, but as providing that the applicant could receive points for no more than three of them. As to the six applicants who submitted four Community Services, Florida Housing awarded points only for the three Community Services that were nearest the proposed development.6 Bembridge received 3 Proximity points for its Grocery Store, 3.5 Proximity Points for its Pharmacy, and 4 Proximity Points for its Public School, for a total of 10.5 Proximity Points for Community Services. Thus, as originally scored, Bembridge met the Proximity Funding Preference. Florida Housing did not score the Medical Facility listed by Bembridge, which was the farthest Community Service from the proposed development. Ms. Button testified that this fourth Community Service was treated as surplus information, and because it did not conflict with any other information in the application or cause uncertainty about any other information, it was simply not considered. Ms. Button likened this situation to prior RFAs in which applicants included pharmacies as Community Services even though they were not eligible in proposed family developments. Florida Housing disregarded the information as to pharmacies as surplus information. It did not consider disqualifying the applicants for providing extraneous information. Ms. Button also made it clear that if one of the three Community Services nearest the proposed development was found ineligible for some reason, the fourth Community Service submitted by the applicant would not be considered. The fourth Community Service was in all instances to be disregarded as surplusage in evaluating the application. 6 When queried as to whether the fourth Community Service was removed because it was worth the fewest points, as the reviewer’s notes stated, or because it was farthest away from the proposed development, Ms. Button replied that the distinction made no difference because the service that is farthest away is invariably the one that receives the fewest points. Florida Housing did not consider disqualifying Bembridge and the other five Applicants that mistakenly listed an extra Community Service in their applications. Ms. Button stated, “They provided in all of them, Bembridge and the others that were listed in this, they did provide three Community Services. And so I don’t think it is reasonable to throw out those applications for providing a fourth that we would just not consider nor give benefit to for those point values.” Bella Vista contends that Florida Housing should have rejected the Bembridge application rather than award points for the three nearest Community Services. Ms. Button testified that this was not a reasonable approach if only because there was nothing in the RFA stating that an application would be rejected if it identified more Community Services than were required. Ms. Button also noted that this was one of the first RFAs to allow applicants to select among four Community Services. She believed the novelty of this three-out-of-four selection process led to six applications incorrectly listing four Community Services. She implied that the Community Services language would have to be tweaked in future RFAs to prevent a recurrence of this situation, but she did not believe it fair to disqualify these six applicants for their harmless error. The Review Committee scorer did not perform a minor irregularity analysis relating to the fourth Community Service provided by Bembridge and the other applicants. Ms. Button opined that the addition of an extra Community Service amounts to no more than a minor irregularity because it provided no competitive advantage to the applicant and created no uncertainty that the terms and requirements of the RFA have been met. The RFA allows up to six proximity points for Transit Services. It specifically provides: Up to three Public Bus Stops may be selected with a maximum of 2 points awarded for each one. Each Public Bus Stop must meet the definition of Public Bus Stop as defined in Exhibit B, using at least one unique bus route. Up to two of the selected Public Bus Stops may be Sister Stops that serves the same route, as defined in Exhibit B. The RFA defines “Sister Stop” as: two bus stops that (i) individually, each meet the definition of Public Bus Stop, (ii) are separated by a street or intersection from each other, (iii) are within 0.2 miles of each other, (iv) serve at least one of the same bus routes, and (v) the buses travel in different directions. The Bembridge Application listed two Public Bus Stops, the definition of which is set forth at Finding of Fact 107 above. Based on the Transit Service Scoring Chart, Bembridge received a total of 1.0 Proximity Point for Transit Services for its two Public Bus Stops. Numerous questions were asked at the hearing about whether Bembridge’s identified bus stops were “Sister Stops” as defined in the RFA, and the evidence on that point was not definitive. However, whether they are Sister Stops is irrelevant because each stop identified by Bembridge independently met the definition of “Public Bus Stop” in the RFA and was therefore eligible for Transit Proximity Points. Bella Vista has failed to demonstrate that Florida Housing’s preliminary determination of eligibility and selection for funding was contrary to the applicable rules, statutes, policies, or specifications of the RFA or was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Housing Finance Corporation enter a final order as to RFA 2019-102 finding that: The Berkeley Application is ineligible for funding; The Sierra Bay Application is ineligible for funding; The Solaris Application is ineligible for funding; The Metro Grande Application is eligible for funding; The Beacon Place Application is ineligible for funding; The East Pointe Application is eligible for funding and entitled to the Proximity Funding Preference; and The Bembridge Application is eligible for funding. DONE AND ENTERED this 6th day of April, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 6th day of April, 2020. COPIES FURNISHED: Christopher Dale McGuire, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed) Craig D. Varn, Esquire Manson Bolves Donaldson & Varn, P.A. Suite 820 106 East College Avenue Tallahassee, Florida 32301 (eServed) Amy Wells Brennan, Esquire Manson Bolves Donaldson & Varn, P.A. Suite 300 109 North Brush Street Tampa, Florida 33602 (eServed) Hugh R. Brown, General Counsel Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302-0190 (eServed) Donna Elizabeth Blanton, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301 (eServed) M. Christopher Bryant, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed) Anthony L. Bajoczky, Jr., Esquire Ausley & McMullen, P.A. Post Office Box 391 Tallahassee, Florida 32301 (eServed) Maureen McCarthy Daughton, Esquire Maureen McCarthy Daughton, LLC Suite 3-231 1400 Village Square Boulevard Tallahassee, Florida 32312 (eServed) Michael J. Glazer, Esquire Ausley & McMullen, P.A. 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Seann M. Frazier, Esquire Parker, Hudson, Rainer & Dobbs, LLP Suite 750 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Betty Zachem, Esquire Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301 (eServed) Corporation Clerk Florida Housing Finance Corporation Suite 5000 227 North Bronough Street Tallahassee, Florida 32301-1329 (eServed)
The Issue Whether Policy 20.11.1 of Goal 20: Transportation, of Rule 29H-9.002, Florida Administrative Code, (hereinafter referred to as the "Challenged Rule"), constitutes an invalid exercise of delegated legislative authority?
Findings Of Fact The Petitioners. Pasco is a political subdivision of the State of Florida. Its offices are located at 705 East Live Oak, Dade City, Florida. BAGT is an association. BAGT's approximately 697 members are involved in some manner in the development or building industry in the Tampa Bay region. For the most part, BAGT's members reside and own property within the four-county jurisdiction of the TBRPC. BAGT's membership includes approximately 176 builder and developer members and 520 associate members who are subcontractors, material suppliers, financial institutions, engineering firms, architectural firms and other types of firms that provide goods and services related to the building industry. BAGT's membership includes builders who build in "development of regional impact" (hereinafter referred to as "DRI"), projects and associate members who provide construction support services to DRI projects. During an eighteen month period, over 50 percent of the building permits issued in Hillsborough County were issued to twenty-three BAGT builder- members for DRI projects. This amounts to approximately 3.3 percent of the membership of BAGT. BAGT works on behalf of its membership to promote a strong and viable building industry. BAGT has the responsibility to "work for the elimination of governmental orders improperly restricting the home building industry and to support beneficial directives." Certificate of Reincorporation and By-Laws, BAGT exhibits 5 and 6. BAGT members have to consider the levels of service for transportation of local governments and TBRPC in obtaining permits for DRI projects. If more stringent levels of service are required for a project, the development may be prolonged and be more costly to complete. The City is a political subdivision of the State of Florida. The City's offices are located at 315 East Kennedy Boulevard, Tampa, Hillsborough County, Florida. The City and Pasco are located within the jurisdiction of TBRPC. The Petitioners are all substantially affected by the Challenged Rule. The Respondent. TBRPC is an agency of the State of Florida within the definition of the term "agency" contained in Section 120.52(1)(b), Florida Statutes. TBRPC was created pursuant to Section 186.504, Florida Statutes. TBRPC's offices are located at 9455 Koger Boulevard, St. Petersburg, Pinellas County, Florida. TBRPC's geographic boundaries, which generally include the four- county, Tampa Bay region, include the geographic areas within Department of Transportation Districts one and seven. TBRPC does not build or maintain roads. Nor does TBRPC provide funds to those that are responsible for building or maintaining roads. Comprehensive Regional Policy Plans. Pursuant to Section 186.507, Florida Statutes, all regional planning councils, including the TBRPC, are required to adopt a "comprehensive regional policy plan". Among other things, the comprehensive regional policy plan must include the following: (8) Upon adoption, a comprehensive regional policy plan shall provide, in addition to other criteria established by law, the basis for regional review of developments of regional impact, regional review of federally assisted projects, and other regional overview and comment functions. As required by Section 186.507(1), TBRPC has adopted a comprehensive regional policy plan, Rule 29H-9.002, Florida Administrative Code, Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region. The comprehensive regional policy plan was adopted in 1987, and has been amended in 1988, 1990 and 1991. Although in adopting a comprehensive regional policy plan a regional planning council is required to consider state and local plans and local governments are given an opportunity to comment, the regional planning council is not bound by those plans or comments. Section 186.507(4)-(6), Florida Statutes. TBRPC's comprehensive regional policy plan was adopted before some of the local government comprehensive plans in its region were promulgated. TBRPC interprets Sections 186.507(1) and (8), Florida Statutes, to require that it include the criteria it intends to use in its review of a DRI. The Department of Community Affairs has been designated by the Executive Office of the Governor to review comprehensive regional policy plans and amendments. See Section 186.507(2), Florida Statutes. The Department of Community Affairs reviewed TBRPC's comprehensive regional policy plan. Developments of Regional Impact. Part of the responsibility assigned to regional planning councils, including TBRPC, is the responsibility to review DRIs. Section 380.06, Florida Statutes. DRIs are created and regulated in the Florida Environmental Land and Water Management Act, Sections 380.012-380.10, Florida Statutes. DRI is defined in Section 380.06(1), Florida Statutes. The procedure for reviewing DRI applications is set out in Section 380.06, Florida Statutes. Several government agencies are involved in the review process, including TBRPC. The Department of Community Affairs is required to, among other things, adopt rules governing the review of DRI applications. Section 380.06(23)(a), Florida Statutes. Pursuant to this authority, the Department of Community Affairs has adopted Chapter 9J-2, Florida Administrative Code. These Rules wee promulgated to "ensure uniform procedural review of developments of regional impact by [the Department of Community Affairs] and regional planning agencies under this section." Section 380.06(23)(a), Florida Statutes. The Bureau of State Planning is the bureau of the Department of Community Affairs with primary responsibility for administering Chapter 380, Florida Statutes, to the extent of the Department of Community Affairs' involvement. Regional planning councils, including the TBRPC, are required to review all DRI applications involving developments in their regions. Section 380.06(12), Florida Statutes, requires that regional planning councils issue a report and make recommendations concerning the impact of proposed DRIs. Regional planning councils, while subject to any rules governing DRI review adopted by the Department of Community Affairs, are authorized to adopt additional rules concerning their review of DRI applications. Section 380.06(23)(c), Florida Administrative Code. Those rules, however, must not be "inconsistent" with the rules governing DRI review adopted by the Department of Community Affairs. TBRPC interprets Section 380.06(23)(c), Florida Statutes, as authorizing the Challenged Rule. What is "inconsistent" for purposes of Section 380.06(23)(c), Florida Statutes, is not specifically defined. Ultimately, the decision on a DRI application is made by the local government in which the DRI is located. Section 380.06(15), Florida Statutes. In making that decision the local government is required to consider the local government's comprehensive plan and land development regulations, the State Comprehensive Plan and the report and recommendations of the regional planning council. Section 380.06(14), Florida Statutes. Local governments are governed by the provisions of Section 380.06(15), Florida Statutes, in determining whether to issue a DRI. A local government's decision on a DRI application may be appealed to the Florida Land and Water Adjudicatory Commission (hereinafter referred to as "FLWAC"). Section 380.07, Florida Statutes. The final decision on the DRI application, if an appeal is taken, is made by FLWAC after a formal administrative hearing is conducted pursuant to Chapter 120, Florida Statutes. Regional planning councils have the right to appeal a local government's decision. In determining whether a DRI should be granted, local governments are not bound by any of the comments made by the regional planning council that reviewed the DRI application. They are only required to consider the comments of the regional planning council made pursuant to Section 380.06(12), Florida Statutes. Should the local government fail to adequately take into account the comments of the regional planning council, however, it faces the possibility that the regional planning council will appeal the local government's decision on a DRI application to FLWAC. The Role of Comprehensive Plans in DRI Reviews; Establishing Levels of Service. The local government comprehensive plan and the land development regulations which a local government is required to consider when reviewing a DRI application are required by Part II of Chapter 163, Florida Statutes. Every local government in Florida is required by Section 163.3167, Florida Statutes, to adopt a comprehensive plan. Land development regulations governing the issuance of development orders are required by Section 163.3202, Florida Statutes. In the TBRPC region the comprehensive plans of all local governments, except St. Petersburg Beach and Port Richey, have been found by the Department of Community Affairs to be in compliance with Chapter 163, Florida Statutes. Among other things, each comprehensive plan must provide for transportation facilities within the local government's geographic area. Section 163.3177, Florida Statutes. The Legislature has required that local governments specifically establish levels of service for public facilities in their comprehensive plans. Section 163.3177(10)(f), Florida Statutes. See also Rule 9J-5.005(3), Florida Administrative Code. A "level of service" for a road is the quantification of the quality of travel on the road expressed by letter grades rating from an optimal operating condition of "A" to a rating of unstable operational conditions of "F". Local governments are required by Section 380.06(14), Florida Statutes, to insure that a development is consistent with its comprehensive plan. Therefore, it must insure that a DRI is consistent with the levels of service contained therein. See also Section 163.3194, Florida Statutes. The Florida Department of Transportation has also been specifically authorized to establish levels of service for state roads. Sections 334.044(10) and 336.45, Florida Statutes. The Department of Transportation has adopted Chapter 14-94, Florida Administrative Code, establishing levels of service for its use. The Department of Community Affairs has required that levels of service contained in local comprehensive plans be compatible with Department of Transportation levels of service "to the maximum extent feasible". Rule 9J- 5.0055(1)(d), Florida Administrative Code. The Legislature has not specifically required or authorized regional planning councils to adopt levels of service. Nor has the Legislature specifically prohibited regional planning councils from adopting levels of service. The City's and Pasco's Comprehensive Plans. Pasco's comprehensive plan has been adopted and in compliance since June, 1989. In its comprehensive plan, Pasco has included levels of service for State roads which are compatible with those established by the Department of Transportation. Pasco uses the levels of service contained in its comprehensive plan to review DRI applications. The City adopted its comprehensive plan by Ordinance No. 89-167, in July, 1989. The City's comprehensive plan has been found to be in compliance with Chapter 163, Florida Statutes. The City's comprehensive plan contains transportation levels of service in its Traffic Circulation Element. The City uses the levels of service contained in its comprehensive plan to review DRI applications. The Challenged Rule. Pursuant to Section 186.507(1), Florida Statutes, TBRPC is required to include in its comprehensive regional policy plan regional issues that may be used in its review of DRI applications and the criteria TBRPC intends to rely on in its review. As part of its comprehensive regional policy plan, TBRPC has enacted Policy 20.11.1 of Goal 20 of the Future Of The Region, A Comprehensive Regional Policy Plan for the Tampa Bay Region, as Rule 29H-9.002, Florida Administrative Code. Notice of the Challenged Rule was published in the Florida Administrative Weekly on July 24, 1992. The Challenged Rule was approved by TBRPC on September 14, 1992, and it was filed for adoption on October 12, 1992. The Challenged Rule provides: Development of Regional Impact (DRIs) shall be required to analyze project impacts and mitigate to an appropriate peak hour, peak season operating Level of Service (LOS) on regional roads. The level of service standards for DRI's within the Tampa Bay regional shall be: Rural Roads (those not included - C in an urbanized or urbanizing area or a TCMA Within designated CBDs - E Within designated Regional - E Activity Centers Within Transportation Concurrency - as Management Areas (TCMA) established pursuant to Sec. 9J-5.0057 Constrained or Backlogged - maintain Facilities existing V/C (Volume to Capacity) All other regional roadways - D If the affected local government(s) has more stringent standards, those standards will apply. TBRPC adopted the Challenged Rule to fulfill its responsibility to include the criteria for transportation impacts to be used in its DRI review in its comprehensive regional policy plan. TBRPC has been using levels of service for review of transportation impacts of DRIs since 1975. There are levels of service contained in the comprehensive plans of the City and Pasco which are different than some of the levels of service contained in the Challenged Rule. The Challenged Rule provides that the levels of service contained therein are to be used by TBRPC in its review of DRI applications except to the extent that a level of service contained in the local government's comprehensive plan may be more stringent. To the extent that a level of service in the Challenged Rule is more stringent, however, TBRPC intends to recommend to the local government the use of its more stringent level of service. Ultimately, if the local government decides to use a less stringent level of service contained in its comprehensive plan and its decision is appealed, FLWAC will be required to exercise its authority to determine which level of service is consistent with Florida law. The Challenged Rule does not require that local governments accept the levels of service created therein. The Challenged Rule establishes the levels of service that the TBRPC will use in its review and comment on DRI applications. The Challenged Rule also puts developers on notice of the levels of service that TBRPC will base its review of DRI applications on. While a local government must consider the comments of TBRPC, the Challenged Rule does nothing to change the fact that it is up to the local government, after consideration of its comprehensive plan, the State comprehensive plan and the comments of the TBRPC to make the ultimate decision as to whether a DRI application is consistent with State law. Local governments are not required to accept the levels of service contained in the Challenged Rule. Nor is TBRPC, in fulfilling its responsibility to review DRI applications, required by law to only apply levels of service established by local governments in their comprehensive plan. If a local government decides to apply a more strict level of service contained in the Challenged Rule as a result of a comment from TBRPC or as a result of an appeal to FLWAC, the costs associated with the DRI to the local government, including Pasco and the City, could be increased in order to achieve and maintain the higher level of service. Rule 9J-2.0255, Florida Administrative Code. Pursuant to the authority of Section 380.06(23)(a), Florida Statutes, the Department of Community Affairs adopted Rule 9J-2.0255, Florida Administrative Code. Rule 9J-2.0255, Florida Administrative Code, sets out the Department of Community Affairs' policy concerning its role in the review of DRI applications. Rule 9J-2.0255, Florida Administrative Code, establishes the "minimum standards by which the Department will evaluate transportation conditions in development orders for developments of regional impact " As currently in effect, Rule 9J-2.0255, Florida Administrative Code, specifically provides that the Department of Community Affairs, in evaluating a DRI application, will look to the "policies of the local comprehensive plan and Chapter 80 . . ." if a local comprehensive plan is in effect and to the "transportation conditions pursuant to 9J-5, F.A.C., and Chapter 380 . . . " if no local comprehensive plan is in effect. Rule 9J-2.0255, Florida Administrative Code, is limited to Department of Community Affairs' evaluations of DRI applications. The Rule does not specify that regional planning councils must utilize the Rule or local government comprehensive plans in their review of DRI applications. The fact that Rule 9J-2.0255, Florida Administrative Code, provides that, after a local comprehensive plan has been adopted and found to be in compliance, the levels of service contained therein will be used by the Department of Community Affairs for its purposes does not cause levels of service established by TBRPC for its purposes to be inconsistent with Rule 9J- 2.0255, Florida Administrative Code. The standards established in Rule 9J-2.0255, Florida Administrative Code, are only designated as "minimum" standards. Nothing in the Challenged Rule requires the use of any standard less that those "minimum" standards even for purposes of TBRPC's review of DRI applications. The Challenged Rule even specifically provides that, to the extent that a level of service contained in a local government's comprehensive plan is more stringent than that contained in the Challenged Rule, that level of service will be applied by TBRPC. When originally adopted in January, 1987, Rule 9J-2.0255, Florida Administrative Code, provided specific transportation levels of service which the Department of Community Affairs intended to use until comprehensive plans containing levels of service were adopted by local governments. The Rule provided, however, that it was not intended to "limit the ability of the regional planning councils and local governments to impose more stringent mitigation measures than those delineated in this rule." Rule 9J-2.0255(8), Florida Administrative Code. This provision is no longer effective. The original rule also did not specifically indicate that levels of service contained in local government comprehensive plans were to be used by the Department of Community Affairs as it now provides. While there was testimony during the final hearing of this matter that the use of different levels of service by TBRPC and the City or Pasco will result in "inconsistent" reviews of DRI applications, there is nothing in Florida Statutes or the Department of Community Affairs' rules that requires consistency in reviews. There was also testimony that such differences will "not promote efficient DRI review." If the Legislature believes the consideration by the TBRPC and local governments of different levels of service in reaching a decision on a DRI application is "inefficient", it has not made its belief clear in Florida Statutes. If the Legislature wants all of the various agencies involved in DRI review to "not disagree" in order to have "efficient" DRI reviews, it must specifically so provide. The Department of Community Affairs reviewed the Challenged Rule. During its review concern was expressed by the then Secretary of the Department of Community Affairs about the inclusion in the Challenged Rule of levels of service. TBRPC was urged "to adopt standards and methodologies for reviewing DRIs that are consistent with those used by the Department of Community Affairs." TBRPC was not, however, told that the use of levels of service consistent with local government comprehensive plans was required by Department of Community Affairs' rules or that the failure of TBRPC to comply with the Department's suggestion would cause the Challenged Rule to be considered inconsistent with Department of Community Affairs' rules. Concern was also expressed during the review of the Challenged Rule to the Department of Community Affairs by the Department of Transportation about possible inconsistencies of the Challenged Rule's levels of service with the Department of Transportation's Rules. Concerns were also raised within the Department of Community Affairs by the Bureau of State Planning. Ultimately, after considering comments from those interested in the Challenged Rule and in spite of the fact that the Department of Community Affairs would prefer that the levels of service used by the Department of Community Affairs, local governments and regional planning councils be the same, the Department of Community Affairs did not conclude that the Challenged Rule was inconsistent with Rule 9J-2.0255, Florida Administrative Code, or any other statute or rule. I. Section 32, CS/CS/HB 2315. On April 4, 1993, Section 32, of CS/CS/HB 2315 (hereinafter referred to as "Section 32"), was enrolled. Section 32, if signed by the Governor, creates Section 186.507(14), and provides: (14) A regional planning council may not, in its strategic regional policy plan or by any other means, establish binding level-of- service standards for public facilities and services provided or regulated by local governments. This limitation shall not be construed to limit the authority of regional planning councils to propose objections, recommendations, or comments on local plans or plan amendments. Section 32 has not yet become law. Additionally, it Section 32 becomes law, it will not be effective until July 1, 1993. Section 32 was filed in this proceeding by BAGT on April 7, 1993, after the final hearing of these cases had closed. Section 32 was not available to the parties until immediately before it was filed by BAGT. Therefore, it could not have been raised at the time of the final hearing of these cases.
The Issue The issue in these cases is whether the Alachua County Comprehensive Plan amendments adopted through Alachua County Ordinance Number 03-05 on August 26, 2003, are "in compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003).
Findings Of Fact Parties The Board is a local government charged with the responsibility of adopting and enforcing a comprehensive plan as provided in the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2003)(the "Act"). In this Recommended Order, "the Board" will refer to the elected Board of County Commissioners. "The County" will refer to Alachua County staff, as well as to the County as a litigant in these proceedings. The Department of Community Affairs is the state land planning agency with the authority to administer and enforce the Act. David and December McSherry are residents of the County, own and operate a business, and own property in the County. The McSherrys made comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The McSherrys are "affected persons" as defined in Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding. Dr. Adams owns property and resides in the County. Dr. Adams submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Adams is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Dr. Kathy Cantwell owns property and resides in the County. Dr. Cantwell submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Cantwell is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Holly Jensen owns property and resides in the County. Ms. Jensen submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Ms. Jensen is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Sierra Club, Inc., is a California nonprofit organization that advocates ecological conservation in the County through its Florida chapter and the Suwannee-St. Johns Group. Sierra Club and a substantial number of its members conduct a business in the County by maintaining a local website, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, distributing publications, purchasing, selling and delivering merchandise and goods and services, holding conferences and meetings, maintaining local representatives, distributing information and newsletters, and organizing members and other citizens to petition the government for redress of grievances. Sierra Club provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Sierra Club is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. SAC is a Florida nonprofit organization that advocates ecological conservation and principles of sustainability in the County. The organization and a substantial number of its members conduct a business in the County by maintaining a local website that is a forum for local comment, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, and distributing publications. SAC provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. SAC is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. Each of the Jonesville Petitioners owns property and operates businesses in the County. Each of the Jonesville Petitioners provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The Jonesville Petitioners are "affected persons" as defined in Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding. PRPV is a Florida not-for-profit corporation that was created for the purpose of representing landowners of rural and agricultural land, participating with local and state government in the development of reasonable land use regulations, and protecting values of rural properties in the County. A substantial number of PRPV's members reside in, own property in, or own or operate businesses in the County. PRPV submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. PRPV is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. BANCF is a Florida corporation that was created for the purpose of educating and advocating on behalf of its members, who are primarily engaged in the residential and commercial construction industry in the County and who are citizens residing in, and businesses located in the County. A substantial number of BANCF's members reside in, own property in, or own or operate businesses in the County. BANCF submitted oral and written comments to the Board concerning the 2003 Amendments during the respective transmittal and adoption periods. BANCF is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. Background and Procedural Issues The Board adopted the Plan in 1991. In 1998, the Board adopted an Evaluation and Appraisal Report ("EAR") for the Plan. Subsection 163.3191(1), Florida Statutes (2003), requires each local government to adopt an EAR once every seven years, assessing its progress in implementing its comprehensive plan. The local government must then amend its comprehensive plan to reflect the data and analysis and recommendations in the EAR. § 163.3191(10), Fla. Stat. (2003). In August 2001, the Board adopted amendments to the Plan and transmitted them to DCA, and to the other agencies enumerated in Florida Administrative Code Rule 9J-11.009(6), for review and comment. On November 30, 2001, DCA completed its review of the amendments and issued its Objections, Recommendations and Comments document (commonly referred to as an "ORC Report") to the County pursuant to Florida Administrative Code Rule 9J-11.010. On April 8, 2002, the Board adopted the 2002 Plan Update, addressing the objections raised in the ORC Report. By letter dated May 31, 2002, DCA notified the Board that it had completed its review of the 2002 Plan Update and determined that it met the Act's requirements for "compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003). DCA published notice of its intent to find the 2002 Plan Update in compliance in The Gainesville Sun on June 3, 2002. On June 24, 2002, PRPV and others filed a petition challenging DCA's determination that the 2002 Plan Update was in compliance. The Petition was forwarded to DOAH on July 5, 2002. BANCF was granted intervenor status, in alignment with PRPV, on July 11, 2002. On July 25, 2002, the PRPV Petitioners joined by BANCF, filed a request for mediation pursuant to Subsection 163.3189(3)(a), Florida Statutes (2003). On August 1, 2002, the Board filed a response agreeing to participate in mediation. In the instant proceeding, the Sierra Club/McSherry Petitioners have alleged several irregularities in the mediation process. They allege that despite the requirements of Subsection 163.3184(16)(a), Florida Statutes (2003), regarding mediation, "the McSherry Petitioners found that they were not given adequate notices of [mediation] meetings and proposals, that the method in which the mediator ran the meetings denied them a reasonable opportunity to participate, that they were not included in negotiation meetings, and that negotiation meetings were not open to the public, and that when the public did attend meetings the public was not allowed to comment." The Sierra Club/McSherry Petitioners allege that they were systematically frozen out of the mediation process, which resulted in a settlement agreement favorable to PRPV and BANCF. However, the facts established at the hearing did not support these allegations. One particular complaint by the Sierra Club/McSherry Petitioners is that the mediator, Robert Cambric of DCA, split the mediation into two simultaneous meetings, one on land use and one on environmental issues, making it impossible for an individual or a small group to follow all the issues under discussion. This situation did occur at one mediation session on December 12, 2002. Ms. McSherry and Dr. Adams complained about this arrangement, and it was not repeated by Mr. Cambric. Richard Drummond, the County's growth management director, testified that no agreements were reached at the December 12, 2002, sessions; rather, participants were given "homework assignments" to complete for the next mediation session. Mr. Drummond's testimony is supported by the fact that the mediation process continued for another six months after this disputed meeting. The Sierra Club/McSherry Petitioners were allowed to participate in the mediation sessions even before they were formally granted intervention in the underlying proceeding. No evidence was presented to establish that secret meetings were held. The evidence demonstrated that County staff, at the Board's direction, attempted to negotiate a tentative settlement. On several occasions, the Board held public meetings at which extensive public comment was elicited and during which the Board directed staff regarding its position on issues. The Sierra Club/McSherry Petitioners actively participated in these public meetings, and were represented at all the mediation sessions. No evidence was presented that the mediator acted less than capably and professionally during the mediation process. Mediation sessions were open to the press and public, though participation at the sessions was limited to the parties, which included the Sierra Club/McSherry Petitioners. Every person who requested individual notice of mediation sessions was included on an electronic mail distribution list and received notice. The Board's meetings on the mediation were publicly noticed, and extensive public comment was taken. Beginning in December 2002, a spreadsheet matrix was circulated that outlined the positions of the County and of the PRPV Petitioners on the narrowing list of issues that remained in dispute. As the mediation entered February 2003 and the County and PRPV inched closer to settlement, it became apparent that the County's position on many issues was beginning to diverge from that of its aligned Intervenors, the Sierra Club/McSherry Petitioners. Mr. Cambric, the mediator, offered to meet with Dr. Adams and Dr. Cantwell6/ in order to flesh out their issue positions for inclusion in a separate "intervenors" column of the spreadsheet matrix. On or about March 5, 2003, Mr. Cambric, Richard Drummond, and other County staff persons held the proposed meeting with Dr. Adams, Dr. Cantwell and the McSherrys. A revised matrix was circulated on March 11, 2003, that included a separate column setting forth Intervenors' position. On March 20, 2003, the matrix was further amended to add a separate column for the McSherrys, whose positions on some issues deviated from the positions of Dr. Adams, SAC, and the Sierra Club. It is clear from the documentary evidence and the testimony of various witnesses that the Sierra Club/McSherry Petitioners felt a degree of betrayal in the County's reaching a settlement with PRPV. However, the evidence was insufficient to establish their allegations that they were denied adequate participation in the process. The Sierra Club/McSherry Petitioners contend that the driving force in the settlement of PRPV's challenge was a change in the makeup of the Board in the wake of a primary election held on September 10, 2002. The political situation in Alachua County is obviously relevant to the concerns of the parties, but is beyond the scope of this proceeding. There is no need for detailed findings of fact concerning the Board elections or the positions taken by candidates for office in the County. Finally, the Sierra Club/McSherry Petitioners contend that jilted Intervenors; i.e., those who supported the County's initial litigation position in defense of the 2002 Plan Update and then opposed the Stipulated Settlement Agreement, should be allowed, by virtue of the realignment of parties pursuant to Subsection 163.3184(16)(f), Florida Statutes (2003), to step into the shoes of the original Petitioners and attack the 2002 Plan Update, as well as the 2003 Amendments. This contention was rejected at the hearing for reasons explained in the Conclusions of Law below. Extensive evidence, testimonial and documentary, was taken regarding the 2002 Plan Update. However, findings of fact concerning the 2002 Plan Update are confined to its interplay with the 2003 Amendments and to issues of internal consistency raised thereby. The Jonesville Petitioners raised procedural issues regarding the concluding phase of the mediation. On July 11, 2003, the Jonesville Petitioners filed a motion to intervene in the challenge to the 2002 Plan Update. Their concern was that the revised definition of "strategic ecosystem" in the proposed 2003 Amendments would adversely affect the value and/or development potential of their properties. At the hearing, the Jonesville Petitioners contended that they were not given adequate notice of the proposed change to the definition of "strategic ecosystem." Policy 1.1.2 of the Conservation and Aquifer Recharge Element of the 1991 Plan required the County "to provide notification to all property owners whose land use may be restricted due to proposed conservation or preservation designation in the Comprehensive Plan prior to official designation in the Alachua County Comprehensive Plan." The evidence established that the County complied with this policy, providing notice by mail in April 2003 to all owners of property proposed to be mapped as part of a "strategic ecosystem" site by the 2003 Amendments. The notice informed the property owners that their properties had been identified within the mapped areas and invited the property owners to attend one of a series of late-April 2003 informational workshops regarding the map. The Jonesville Petitioners received the mailed notices. The Board held a public hearing on approval of the Stipulated Settlement Agreement on July 15, 2003, and a public hearing on August 26, 2003, to adopt the 2003 Amendments. The Jonesville Petitioners had actual knowledge of the public hearings in July and August to approve the agreement and adopt the 2003 Amendments and were represented at those hearings. At the hearing in the instant proceeding, the Jonesville Petitioners complained that they submitted extensive site investigation reports to the Board at the July 15, 2003, demonstrating that their properties should not be considered "strategic ecosystems," but that they were allowed only three minutes to make their presentation at the hearing. There was no requirement that the Board allow lengthy, fact- intensive presentations concerning specific parcels of land during the public hearing to adopt the Stipulated Settlement Agreement. Nonetheless, the evidence established that the Jonesville Petitioners, like the other parties to the underlying litigation, would have been allowed more than three minutes had they requested it before the hearing. There was also no requirement that the County staff or the Board make a detailed response to the Jonesville Petitioners' site reports prior to the Board's adoption of the Stipulated Settlement Agreement or the 2003 Amendments. Further, as is more fully explored below in the findings as to the 2003 Amendments, the information provided by the Jonesville Petitioners was more appropriate to a land development scenario than to the large- scale comprehensive plan amendment process that the County was undertaking. In conclusion, it is found that neither the Sierra Club/McSherry Petitioners nor the Jonesville Petitioners demonstrated that their procedural rights under the Act or its implementing rules were violated by the process employed by the County during the mediation and when adopting the 2003 Amendments. 2003 FLUE Amendments Gated Communities and Cul-de-Sacs FLUE Objective 1.2 in the 2002 Plan Update states: Provide for adequate future urban residential development that includes a full range of housing types and densities to serve different segments of the housing market, designed to be integrated and connected with surrounding neighborhoods and the community, with opportunities for recreation and other mixed uses within walking or bicycling distance. The 2003 Amendments included the following changes to FLUE Policy 1.2.1.17/: Residential areas shall be designed to provide for an interconnected system of internal circulation, including the provision of streets dedicated to the public connecting the residential area to the major street system. New development shall not restrict preclude public access to the development or include cul de sacs. Residential areas shall also be designed to provide for substantial interconnectivity between adjacent developments and within developments, except where such connectivity is precluded by constraints resulting from physical layout of existing development or environmental features. If connectivity is precluded by such constraints, cul de sacs may be considered for those roads subject to such constraints. The land development regulations shall detail the requirements for public access and substantial interconnectivity based on standards such as a connectivity index, maximum separations between connections to adjacent developments, and rules relative to hours, operations, and public safety considerations for any restriction of access through use of gates. FLUE Policy 1.2.1.1 was new to the 2002 Plan Update. Its purpose is to assist in discouraging urban sprawl by encouraging street connectivity, thus, moving the County away from a development pattern of isolated residential subdivisions with only one or two points of ingress/egress. Adding connectivity features allows pedestrian or bicycle travel between subdivisions and disperses the flow of vehicular traffic by providing more points of entry to arterial roads. All of the parties agreed that interconnectivity is a positive value. The Sierra Club/McSherry Petitioners criticize amended Policy 1.2.1.1 for failing to define "substantial interconnectivity" and, therefore, providing no meaningful standards by which to determine whether a new residential development provides "substantial interconnectivity." They point out that the policy leaves it to subsequent land development regulations ("LDRs") to define the term, but provides little guidance and essentially standardless discretion to the drafters of the LDRs. The Sierra Club/McSherry Petitioners' chief concern was that a lax regulatory regime could define a single connecting road as "substantial interconnectivity" and, thereby, defeat the clear intent of the policy. Similarly, they observed that Amended Policy 1.2.1.1 refers to a "connectivity index," but provides no definition or guidance as to the meaning of the term, again leaving the LDR drafters limitless discretion. The Sierra Club/McSherry Petitioners suggest that the seeds for lax regulation are planted in the policy through its requirement that the LDRs provide for "maximum separations between connections to adjacent developments." They argue that, if the goal is to provide for interconnected developments, then the LDRs should logically provide for minimum, not maximum, separations between connections. This argument is rejected simply as a matter of logic because providing for maximum separations in the LDRs is precisely what can ensure interconnectivity.8/ Finally, the McSherry Petitioners argue that the amended policy's allowance of gated communities is in direct contradiction to its mandate that "[n]ew development should not preclude public access to the development." They contend that LDRs providing rules for "hours, operations, and public safety considerations for any restriction of access through use of gates" would create an internal inconsistency within FLUE Policy 1.2.1.1. The County presented testimony from Richard Drummond stating that amended FLUE Policy 1.2.1.1 strengthens existing Plan provisions for interconnectivity by adding the requirement for "substantial interconnectivity," and by adding a requirement that new development not preclude public access. Robert Pennock, PRPV's expert witness on local government comprehensive planning, with an emphasis on urban sprawl, testified that the term "substantial," in the context of FLUE Policy 1.2.1.1 and in combination with other policies in the Plan, is a meaningful qualifier indicating the County's intent that its future development pattern will not be a patchwork of isolated subdivisions with a single connection to an arterial road. Mr. Pennock pointed out that a degree of common sense must be applied to the use of the term in the development of LDRs and that it must be acknowledged that the details of the LDRs will be developed by professional planners. Mr. Pennock's comments regarding common sense and good faith on the part of the regulators points out the chief flaw in the Sierra Club/McSherry Petitioners' argument that a lax regulatory regime could employ the terms "substantial interconnectivity" and "connectivity index" in such a way as to allow developers to do whatever they wish. The argument fails to explain why such a hypothetical "bad regulator" could not twist the Sierra Club's favored term, "connectivity," in the same fashion. If one accepts the hypothetical premise of the "bad regulator" poised to do the bidding of residential developers regardless of any other considerations, then the text of the Plan will hardly matter; the bad regulator will find a way around the Plan's language. In fact, "substantial interconnectivity" is no more or less vague a term than "connectivity." As Mr. Pennock testified, these terms have meaning in the planning profession, and it must be accepted that the County will draft meaningful LDRs to implement FLUE Policy 1.2.1.1, including the challenged terms. In summary, the Sierra Club Petitioners did not establish that an outright ban on gated communities or cul-de- sacs is necessary for the County to have an efficient road network, meet applicable levels of service or Rule 9J-5 requirements, or that such a ban has ever been imposed elsewhere in Florida. It is at least fairly debatable that 2003 FLUE Policy 1.2.1.1 appropriately responds to the data and analysis and provides adequate guidance for development of LDRs. Clustering Florida Administrative Code Rule 9J-5.003(14) defines "clustering" as "the grouping together of structures and infrastructure on a portion of a development site." Clustering is a planning and development technique that transfers the allowable development density onto smaller lots on a portion of the property to be developed, in a tighter development pattern, that reduces road and infrastructure costs and that sets aside the remainder of the property for conservation, agriculture, or general open space. Residential cluster development is generally promoted as a means of conserving open space, rural character, and important environmental resources in new housing developments. According to the County's "Supporting Data and Analysis for Comprehensive Plan Amendments Updating the Alachua County Comprehensive Plan: 2001-2020" (the "Data and Analysis"), clustering is a "means to protect the characteristics and features of rural areas, while allowing for rural residential lifestyles." FLUE Policy 7.2.8 of the 1991 Plan required clustering in new rural residential subdivisions with 25 or more lots and made no provision to allow clustering for smaller subdivisions. Proposed clustered developments were required to seek permits as Planned Unit Developments, a lengthy and complicated zoning process that included review by County staff, recommendations by the Board, and final approval or denial by the Board at a public hearing. Every witness who testified on the subject agreed that the clustering provision of the 1991 Plan had been a failure. Only two proposed developments have sought permits as clustered developments, and both were denied. The County approved the construction of phased subdivisions, with each phase containing fewer than 25 lots and built to the base rural density of one unit per five acres. Smaller subdivisions were designed to fall below the 25-lot threshold for clustering. Richard Drummond noted that the 1991 Plan would not allow the developer of these smaller subdivisions to cluster even if he so desired. These subdivisions tend to be platted in such a way that each lot owner also owns a small part of the natural resources found in the subdivision, complicating any efforts by the County to preserve those resources. The consensus of the expert opinion was that clustering failed because developers tend to be conservative in designing subdivisions. Clustering is a new pattern for development, and 1991 FLUE Policy 7.2.8 offered insufficient incentive to developers to take the risk of building and marketing nontraditional developments and left them the option of sizing their developments to avoid the clustering requirement. In the 2002 Plan Update, proposed FLUE Policy 6.2.9 addressed the reluctance of developers to cluster by removing their option to avoid clustering by downsizing their projects. The policy would have required clustering in all new rural residential subdivisions. The 2003 Amendments softened the policy as follows: Policy 6.2.9 Clustering The preferred design for Nnew rural residential subdivisions shall be is that they be clustered in order to protect the characteristics and features of rural areas through the following goals: Protect natural and historic resources. Support continued agricultural activities by preserving viable soils and effective land masses. Minimize land use conflicts. Provide recreational and habitat corridors through linked open space networks. Achieve flexibility, efficiency, and cost reduction in the provision of services and infrastructure. Reduce natural hazard risks to life and property. The 2003 Amendments maintain the clustering requirement for new developments containing 25 or more lots, but attempt to provide more incentives to developers to use clustering in developments of any size. 2003 FLUE Policy 6.2.10, relating to allowable density and intensity of new development, provides for a "density bonus" as follows, in relevant part: The overall development density shall not exceed the maximum gross density of one dwelling unit per five acres for the Rural/Agriculture land use category, except as a result of incentive bonuses for clustering as provided under item 4 below, subject to the resource protection standards in the Conservation and Open Space Element. These standards include the following requirements: * * * 4. As an incentive to cluster new residential subdivisions, if a new residential subdivision in the Rural/Agriculture area is clustered with a minimum of 50% of the development in open space, a total of 2 units in addition to the number of units based on the gross density of 1 unit per 5 acres are allowed, plus 1 additional unit per every 10 acres of conservation area set aside as open space; plus 1 additional unit per every 20 acres non-conservation area set aside as open space. As a further incentive, the 2003 Amendments delete the Planned Unit Development aspect of clustered subdivision approval, expediting the zoning approval process. Under the clustering provisions of the 1991 Plan, rural subdivisions with more than 25 lots were required to set aside 80 percent of their area as open space. The 2003 Amendments reduce this open space set-aside to 50 percent. Richard Drummond persuasively noted that there is no practical reduction in the set-aside, because very few people subjected themselves to the clustering requirement of the 1991 Plan. Also, the 1991 Plan expressly disclaimed any intent that the open spaces remain undeveloped in perpetuity. 2003 FLUE Policy 6.2.12.4 provides that all future development in designated open space areas is prohibited and requires the filing of a legal instrument that runs with the land establishing that the open space will be maintained and remain undeveloped in perpetuity. Conservation is the highest priority among the open space uses recognized by the 2003 Amendments' provisions on rural development. 2003 FLUE Policy 6.2.5 requires clustering for a new development of more than 25 lots, then goes on to provide that a new development of fewer than 25 lots must either cluster or employ a development plan "that assures the permanent protection of natural resources consistent with the requirements of the [COSE]." 2003 FLUE Policy 6.2.5 further provides that the LDRs will detail the requirements for "management and permanent protection of the ecological value of natural resources in those developments that are not clustered, through legally enforceable mechanisms" that provide protections equivalent to those provided in clustered subdivisions. The Sierra Club Petitioners attacked the 2003 clustering provisions as being inconsistent with the 2002 Data and Analysis, which emphasize that urban sprawl is a major threat to the County's rural agricultural landscape. The Data and Analysis indicated "a rapid rate of conversion of the rural area to allow low density development," and concluded that "the rural land character is threatened by the piece-meal development of residential uses." Sierra Club places special emphasis on a 1992 report sponsored by the American Farmland Trust, Florida's Growth Management Plans: Will Agriculture Survive?, summarized and discussed in the 2002 Data and Analysis as follows: This report noted that the degree to which rural low density residential zones are effective in conserving farmland is directly related to the minimum lot size required for each residence. The larger the minimum lot size, the more effective the zone is in conserving farmland. The current policy [in the 1991 Plan] allowing residential development on 5 acre lots in the rural area is totally ineffective, according to this report. The minimum lot sizes can be rated as follows according to their effectiveness in conserving farmland: under 4.9 acres totally ineffective 5 to 9.9 acres generally ineffective acres moderately ineffective to 20 acres moderately effective 20.1 to 40 acres generally effective over 40 acres highly effective In the six years, 1995-2000, the average numbers for single family and mobile home permits issued by lot size in unincorporated Alachua County were as follows: Less than 3 acres 162 average yearly 3 to 8 acres 182 average yearly 8 to 12 acres 72 average yearly 12 to 20 acres 35 average yearly Total 20 acres or less 511 average yearly[9/] Relying on the quoted section of the Data and Analysis, Sierra Club argues that only mandatory clustering of subdivisions in the rural area can fulfill the goal of protecting the characteristics and features of the rural area. Sierra Club correctly notes that, in adopting the 2003 Amendments, the County provided no additional data and analysis to demonstrate that the density bonuses added to the Plan would lead to clustering under 2003 FLUE Policy 6.2.9, which eliminated mandatory clustering and simply made it the "preferred design." Sierra Club contends that the County was required to offer some expert testimony to indicate that density bonuses provided in 2003 FLUE Policy 6.2.10 would actually cause landowners to choose clustering. Alternatively, Sierra Club argues that if voluntary density-bonus clustering occurred, it could lead to considerably more dwelling units in rural areas than under the 1991 Plan. For example, if a 20-acre parcel with four 5-acre lots were clustered to leave ten acres of conservation area, then a total of seven units would be permitted for the parcel: four units based on the allowed rural density of one unit per five acres; two units as a bonus for leaving 50 percent of the development in open space; and one additional unit for setting aside ten acres of conservation area. Thus, seven units would be permitted, compared with four units that would have been allowed without the bonuses, and these seven would be situated on the ten unpreserved acres on lots with an average size of 1.43 acres. Sierra Club contends that these "ranchettes" would not meet the objective of maintaining viable agriculture and of providing a separation between urban and rural land uses. Thus, Sierra Club argues that, under any view, the 2003 Amendments are inconsistent with FLUE Objective 6.1: Rural areas shall protect rural and agriculture areas in a manner consistent with the retention of agriculture, open space, and rural character, and the preservation of environmentally sensitive areas and efficient use of public services and facilities. Richard Drummond contended that it is impossible at this point to say that the 2003 Amendments dealing with incentive clustering will not work. He conceded that the density bonuses provided in 2003 FLUE Policy 6.2.10.4 could be too much or not enough, but that the only way to know is to try it in practice, then use the experience to adjust the incentives in future plan cycles. Mr. Drummond credibly testified that given the lack of clustering that occurred under the mandatory provision of the 1991 Plan, it is a virtual certainty that there will be more clustered development under the 2003 Amendments. Sierra Club's criticism that density-bonus clustering will not have a great impact on the density of development in the rural area is well taken, but beside the point. The very 2002 Data and Analysis upon which Sierra Club bases its argument notes that "rural cluster subdivisions are simply an internal transfer of density involving the same number of dwellings." In other words, the chief purpose of clustering is not to affect overall density of development, but to arrange that development on the land in a more environmentally sensitive, aesthetically pleasing way than traditional grid-style platting of lots. The density bonuses offered by the 2003 Amendments will not notably alter the overall density of rural development, but that is not their main purpose. The County hopes that the density bonuses will provide sufficient incentive for developers to avail themselves of the clustering option. The County did not dispute Sierra Club's argument that the 2002 Data and Analysis support the mandatory clustering for all new development that was adopted in the 2002 Plan Update. However, the County does contend that the 2002 Data and Analysis do not require mandatory clustering as the only way to achieve the goals of retaining the rural character and preserving the environmentally sensitive areas of rural lands. The County is correct that the 2002 Data and Analysis provides a generally positive assessment of clustering, but nowhere forces a reader to conclude that mandatory clustering is required. Even accepting the Data and Analysis suggestion that allowing residential development on five-acre lots in the rural area is "totally ineffective" in conserving farmland and that controls show some effectiveness only when the minimum lot size is increased to ten acres, the fact remains that conserving farmland is not the sole value served by the clustering provision, nor should it be the sole measure of the provision's success. In addition to farmland conservation, 2003 FLUE Policy 6.2.9 cites protection of natural and historic resources, minimization of land use conflicts, provision of recreational and habitat corridors through linked open-space networks, achievement of flexibility, efficiency, cost reduction in the provision of services and infrastructure, and reduction of natural hazard risks to life and property as goals of the clustering provisions. While it may be true that lot sizes of more than 40 acres would be "highly effective" in conserving farmland, Alachua County seeks to balance all of the stated goals in its clustering provision and has arrived at a reasonable formula for achieving at least some progress on each of the goals. The County pointed out that Florida Administrative Code Rule 9J-5.006(5)(l) identifies clustering as an "innovative and flexible" planning strategy, but does not mandate clustering. Given the County's history of failure with one form of mandatory clustering, it is not unreasonable that it would attempt the application of an incentive program as an alternative. Urban Cluster/Urban Services Line10/ The 2003 Amendments amended the Future Land Use Map series ("FLUM"), a necessary part of the FLUE pursuant to Florida Administrative Code Rule 9J-5.006(4). FLUE General Strategy 1 provides that the Plan must: Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following: Designate and maintain on the [FLUM] an urban cluster that sets a boundary for urban growth. Provide incentives for higher average densities for residential development and mixed uses in the urban cluster, including density bonus and transfer of development rights. Provide a range of urban residential densities with the highest densities located in or near urban activity centers, and lower densities located in outlying rural areas or areas of the County which have physical limitations to development. . . . The "Urban Cluster" is defined as: An area on the [FLUM] for urban development, which includes residential densities ranging from one unit per acre to 24 units per acre or greater, non- residential development, and is generally served by urban services. The Urban Cluster designation on the FLUM sets a boundary for urban growth in order to maximize the efficient use of available urban infrastructure and to preserve environmentally sensitive areas to minimize urban sprawl. The 2002 Plan Update uses the Urban Cluster to differentiate between urban and rural uses and encourages higher densities in the Urban Cluster in order to use land efficiently. To further the efficient use of land, the 2002 Plan Update also established an "urban services line" ("USL") within the Urban Cluster. FLUE Policy 7.1.3.A describes the USL as follows: In order to phase development for the Urban Cluster and promote efficient use of land and infrastructure and minimize sprawl, an urban services line is designated in the Future Land Use Map series. The line identifies the limits of the area within the Urban Cluster within which phased development shall be promoted through the year 2010. The USL's ten-year planning period, through 2010, is shorter than the planning period for the Urban Cluster, which is through 2020. The purpose of USL is to provide better timing of development within the urban area, to encourage redevelopment and direct new development to areas where infrastructure exists or will be available. The 2003 Amendments expanded the Urban Cluster as part of the FLUM series. The 2003 Amendments also expanded the USL within the Urban Cluster on the FLUM series. The appropriate size for the USL and the Urban Cluster depends on the amount of land needed for projected population growth. FLUE Policy 7.1.3 establishes the process for determining the need for additional developable land to accommodate the projected population as follows: As part of the periodic update of the Comprehensive Plan and any proposed amendments to the Urban Cluster, determine a sufficient and nonexcessive amount of land within the Urban Cluster to accommodate urban uses for a ten year and twenty year time frame. The determination (methodology is shown in Appendix A)[11/] shall be based on a comparison of: a forecast need for land for urban residential and non-residential development based on projected population, average household size, a residential vacancy rate, and a market factor. The market factor for the ten year time frame shall be 2.0. The market factor for the 20 year time frame shall be 1.5. land available in the Urban Cluster for urban residential and non-residential uses. Mapping of environmentally sensitive areas shall be utilized as a factor for determining land availability. If the land comparison shows that the land available is less than the forecast need for land, the following measures shall be considered: revisions to density standards and land development regulations, or other measures, to accommodate greater population within the existing Urban Cluster. coordination with municipalities regarding possible reallocation of forecast need to the incorporated areas. phased expansion of the Urban Cluster. If the forecast need for one type of land use exceeds the supply of land for that particular use, a revision to the allocation of land uses within the Urban Cluster shall be considered before the Urban Cluster is expanded. If this methodology determines expansion of the Urban Cluster is warranted, the evaluation of appropriate location shall be subject to analysis including the following economic, infrastructure, transportation, conservation and recreation criteria: rural character and viable agriculture land and the potential impact of expansion of the Urban Cluster on existing agricultural uses. economic development considerations including affordable housing. relationship to existing and planned future urban services and infrastructure. access to the regional transportation network and multi-modal transportation systems. Conservation and Preservation land uses. planned recreation/open space or greenway systems. Thus, FLUE Policy 7.1.3 provides a three-step process for determining "a sufficient and nonexcessive amount of land" to accommodate urban uses. First, there must be a calculation of the estimated need for land to accommodate the projected population. The second step is to calculate the amount of vacant land currently available for urban residential use. Third, a comparison is made between the need for and the availability of vacant land to determine whether and how the FLUM should be amended. In calculating need, the County built into its formula a safety factor to ensure sufficient land for the future population over the projected time period. The real estate market requires some excess capacity to prevent scarcity-driven price increases, and the County, therefore, included a "market factor" in determining the amount of land that should be designated for development. The 2002 Data and Analysis explained the principle as follows: A market factor is included in the calculation to allow for a measure of flexibility between supply and demand. A sufficient market factor allows flexibility in the siting of development, thereby helping ensure that developers can find locations favored by the market. Market factor is a multiplier used in developing a forecast of future land use needs, specifically housing, to allow for market choice. The market factor results in additional developable land in the urban cluster and thereby can have a positive effect on housing affordability. The market factor also addresses market uncertainty with respect to the accuracy of market predictions, for example if some landowners withhold their land from development. The market factor ensures that enough land is set aside for residential purposes to accommodate these residential support activities-- parks, easements for utilities, churches, to name a few. Across the country the range in factors is as low as 1.15 (Portland, Oregon) to over 2.0 (several Florida locations). Alachua County has used the market factor 2.0 for calculations for the year 2010 and the market factor 1.5 for the year 2020. The County multiplied the number of new dwelling units needed over the 2010 and 2020 planning horizons by the market factors chosen for those periods to arrive at a "total capacity needed" number. The Sierra Club/McSherry Petitioners contended that the market factors chosen by the County were too high and that 1.25 was a more reasonable figure for the County. Mr. Pennock, PRPV's planning expert, testified that there is no "final magic answer" to the question of the market factor number. He stated that 1.25 is a "conservative" market factor, and that 2.0 is a professionally acceptable number. It is found that the County's market factors of 2.0 for the year 2010 and 1.5 for the year 2020 were reasonable, in light of all the evidence. After determining the amount of land needed over the planning horizon, the second step in the County's formula is to determine the amount of vacant land currently available for urban residential use. In order to determine the amount of land currently available, there must be a calculation of the number of units per acre available for future residential development. The two components of this calculation are, first, the number of acres presently within the Urban Cluster or USL, and second, the residential dwelling unit density allowed within that acreage. FLUE Objective 1.3 provides that "[g]ross residential densities shall be established to serve as a guideline for evaluating development in Alachua County." FLUE Policy 1.3.2 classifies the densities as follows: The following classification of gross residential densities shall serve as a standard for evaluating development in Alachua County, unless specific provisions are otherwise provided in the Plan. a. Urban Residential Densities - Areas designated on the [FLUM] for gross residential densities of one unit per acre or greater shall be considered as urban in character. There shall be four gross residential density ranges as follows: Low Density One to Four dwelling units per acre Medium Density Greater than Four to less or equal to Eight dwelling units per acre Medium-High Greater than Eight to less than or equal to 14 dwelling units per acre High Density Greater than 14 to less than or equal to 24 dwelling units per acre The Sierra Club/McSherry Petitioners contend there was already an excess of acres available for development relative to need for the projected population, even before the 2003 Amendments expanded the Urban Cluster and the USL. They point to the 2002 FLUE Data and Analysis, which explained that the need calculations resulted in a finding that there were 7,396 acres available for urban development beyond the projected need in the Urban Cluster through the year 2010, and 4,378 acres beyond the projected need in the Urban Cluster through the year 2020. The 2002 Data and Analysis concluded: "Therefore there is no need in both 2010 and 2020 for modification of the area designated for urban development." Nonetheless, the 2003 Amendments added an additional 434 acres to the Urban Cluster, thereby increasing the available acres for development to 8,370. Richard Drummond explained that the County discovered, after the EAR process and the adoption of the 2002 Plan Update, that some of the population projections for the unincorporated areas were in error. The County also found miscalculations in terms of the existing housing stock. Mr. Drummond stated that the 2002 projections did not reflect the impact that the Plan's new environmental and floodplain policies could have on existing development capacity, or the fact that some private property owners had made it known their land would not be available for development. Mr. Drummond emphasized that the final need projections reflected the methodology that the County chose to employ and conceded that other methodologies could be used to arrive at different projections. The Sierra Club Petitioners have set forth at some length the methodologies they believe should have been employed by the County as regards establishment of the Urban Cluster and USL. At the outset, the Sierra Club Petitioners have challenged the County's methodology for calculating the number of needed dwelling units and corresponding acreage. They contend that the County calculated an excessive amount of acreage based on outdated historical data, rather than on the maximum gross residential densities allowed under the updated Plan. In making its acreage calculations, the County assumed that the low density residential areas would have an average density of 1.6 dwelling units per acre ("DU/acre"). Sierra Club contends that the County placed undue reliance on historical evidence that the density trends in the low density category was 1.34 DU/acre from 1980-1990, and 1.6 DU/acre from 1991-1997, when the County's own EAR provided more recent evidence that the objective of 2.0 DU/acre was being achieved. Mr. Drummond testified that a goal of the 2002 Plan Update was to increase the density of development within the low-density range. Sierra Club contends that using higher densities in the calculations of needed acreage would better support that goal and that the County was, therefore, required to base its calculations of the land presently available to serve the projected need on the maximum available density. The Sierra Club Petitioners argue that basing the projections on historical trends "perpetuates old planning mistakes," and is internally inconsistent with FLUE General Strategy 1's requirement that the Plan provide "incentives for higher average densities for residential development and mixed uses in the urban cluster." They conclude that the maximum available density of 4.0 DU/acre should have been the County's basis for allocating acreage in the low density category, rather than the historically-based 1.6 dwelling units per acre presented by the County. The Sierra Club Petitioners offered a detailed recalculation of the "needed acres" for the Urban Cluster and the USL based on a density of 4.0 DU/acre, rather than 1.6 DU/acre, concluding that Alachua County overestimated the needed land by 2,737 acres in the low-density residential category. They performed a similar recalculation of need in the medium-high and high-density residential categories based on the maximum allowable density, rather than the historic "average density" used by the County. It is not necessary to set out the recalculation here because it is found that the Sierra Club Petitioners failed to demonstrate that the methodology employed by Alachua County to project the acreage needed for development in 2010 and 2020 was so unreasonable as to be beyond fair debate, or that their substituted methodology was correct and accurate beyond fair debate. The Sierra Club Petitioners may be correct in their contention that the Plan's goal of increasing densities in low-density residential developments would be better supported by use of maximum allowable densities in the need projections. There is little doubt that reducing the acreage available for development would force more compact development in the Urban Cluster, but there is no indication that the County's projections present an unreasonable risk of urban sprawl. Both Richard Drummond and Mr. Pennock discussed other Plan goals, such as avoiding a distortion of the real estate market caused by allocating too little land for development, that the Sierra Club Petitioners' methodology arguably does not address or would even subvert. In arriving at its methodology, Alachua County necessarily struck a balance in its priorities. Richard Drummond candidly testified that there were other ways to arrive at the need projections. The Sierra Club Petitioners reasonably disagree with that balance and believe that the community would be better served through tighter controls on expansion of urban development. This is a disagreement to be resolved through the political process and is certainly not beyond "fair debate" for either side of the argument in the context of this administrative proceeding. The Sierra Club Petitioners contend that the "development factor" employed in the calculation of capacity needed within the Urban Cluster and USL also contributes to inflating the estimate. As part of the formula used to calculate the land needed to accommodate the projected population, Alachua County applied a "development factor" of 0.5 to the residential units available on vacant land identified as "strategic ecosystems" or wetland areas, thus halving the available acreage in those areas. The 0.5 development factor was applied in recognition of the Plan's policies requiring that 50 percent of such lands be preserved from development. The Sierra Club Petitioners argue that the County's reasoning ignores FLUE Policy 6.2.10, which allows the landowner to cluster the total number of available residential units for an entire parcel on the developable 50 percent of the property. Thus, while 50 percent of the property is placed in conservation with no dwelling units, the dwelling units for the total acreage can be built on the remaining 50 percent of the property. The Sierra Club Petitioners argue that this methodology leads to an understatement of the acreage available for development and, thereby, underestimates the number of available dwelling units. Mr. Drummond explained that the "development factor" is intended to account for several contingencies. Some property owners might not choose to cluster and, therefore, would not develop the remaining 50 percent at the maximum density. More than 50 percent of some properties might be set aside after their boundaries are ground-truthed.12/ Because of such contingencies, the County decided to adjust the calculations so that its estimate would include the net acreage that would be fully available for development. This rationale could lead to some excess of vacant residential lands if a significant number of the conservation/wetlands properties are developed to their maximum density, but it cannot be deemed wrong beyond fair debate for Alachua County to seek certainty under its formula. FLUE Policy 7.1.3.d, set out in full above, requires the County to evaluate the appropriate location for expansion of the Urban Cluster according to the criteria set forth therein. The Sierra Club Petitioners contend that Alachua County did not provide data and analysis to demonstrate compliance with these locational standards in its 2003 Amendment to the FLUM for the Urban Cluster. The 2002 FLUE Data and Analysis provide that development outside of the USL "must provide a full compliment of urban services." Mr. Drummond testified that because the 2002 Plan Update requires that all new development in the urban area must hook up to central water and sewer services,13/ the 2002 USL was based on proximity to those services, which became "the primary indicator for the rational progression of urban development." The Sierra Club Petitioners have challenged the 2003 Amendments' expansion of the USL to include all land in "common ownership" outside of the parcels on the 2002 FLUM map. According to Mr. Drummond, the common ownership included parcels where there was "a legal relationship between the corporate entities that owned the property." The Sierra Club Petitioners claim that the County "failed to demonstrate that the method of including all parcels within common ownership within the expanded Urban Cluster or [USL] was a professionally acceptable methodology." The Sierra Club Petitioners assert that the effect of this change is to add property within the USL regardless of proximity to existing infrastructure in contravention of 2002 FLUE Policy 7.1.3(d). It is found that the County's recognition of properties under common ownership in setting the USL, where at least part of the property meets all criteria for inclusion within the USL, appears on its face to be a sensible amendment. In this proceeding, the burden was not on the County to demonstrate that its methodology was "professionally acceptable." Rather, the burden was on Petitioners to demonstrate that the methodology did not meet the "fairly debatable" standard of acceptability. Petitioners failed to make that demonstration as to this issue. The Sierra Club Petitioners claim that because the expansion of the USL in the 2003 Amendments was based on availability of central water and sewer, it is internally inconsistent with other provisions of the Plan. FLUE Principle 2 requires the Plan to "[b]ase new development upon the provision of necessary services and infrastructure." FLUE General Strategy 1.f. provides that the Plan should: Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following: * * * f. Time development approval in conjunction with the economic and efficient provision of supporting community facilities, urban services, and infrastructure, such as streets, utilities, police and fire protection service, emergency medical service, mass transit, public schools, recreation and open space, in coordination with the Capital Improvements Element. The Sierra Club Petitioners assert that the County has failed to comply with these provisions because it based the expansion of the Urban Cluster and the USL on only one form of infrastructure, central sewer and water, while ignoring the availability of "supporting community facilities, urban services, and infrastructure" such as schools, police and fire protection, emergency medical service, mass transit, and recreation and open space. The evidence does not support this assertion beyond fair debate. The USL is a timing and phasing mechanism for development within the Urban Cluster over a ten-year planning horizon and is intended to encourage redevelopment and to direct new development to areas where public infrastructure exists or will be available. To the east, the County has located the USL coterminously with the Urban Cluster in order to promote redevelopment in the east Gainesville area. To the west, the USL is located a quarter-mile outward from existing and planned central water and sewer lines, without splitting ownership lines on individual parcels, except that in an area to the southwest near Archer Road, the USL is located a half- mile from existing and planned central water and sewer lines in order to promote this area as a future transit corridor. It is at least fairly debatable that the establishment and location of the USL is supported by appropriate data and analysis and that the County considered other infrastructure factors in drawing the lines of its urban boundaries. Water and Sewer Line Extensions In the 1991 Plan, Potable Water and Sanitary Sewer Element ("PWSSE") Policy 8.2 provided, in relevant part: Proposed extensions of potable water and sanitary sewer lines outside of the urban service area designated by the [FLUE] shall be subject to approval by the Board of County Commissioners. . . . The 2002 Plan Update renumbered the quoted provision as PWSSE Policy 3.5 and changed the term "urban service area" to "Urban Services Line," but otherwise left the text unamended. The 2003 Amendments changed the term "Urban Services Line" to "Urban Cluster." The Sierra Club Petitioners contend that the effect of the latter change is to allow the extension of water and sewer outside the USL, but within the Urban Cluster without the approval of the Board. They point out that the City of Gainesville owns and operates Gainesville Regional Utilities ("GRU") and that Alachua County historically has had little to no control over the pattern of development based on utility service. Mr. Drummond conceded that allowing the utility provider to dictate the pattern of development led to low- density sprawl. Thus, the Sierra Club Petitioners contend that the 2003 Amendment to PWSSE Policy 3.5 weakens the ability of the County to control growth through the phasing envisioned by the USL, because the County has no control over how the growth is "phased" when it lacks control over utilities. The County replies that the 2003 Amendments' change of "Urban Services Line" to "Urban Cluster" merely corrects a scrivener's error. Mr. Drummond testified that the 2002 Plan Update version of PWSSE Policy 3.5, requiring Board approval of water and sewer extensions outside the USL, unintentionally conflicted with FLUE Policy 7.1.3.B, which provides a mechanism for development to occur outside the USL but within the Urban Cluster without Board approval. The 2003 Amendment corrected the error and brought PWSSE Policy 3.5 into harmony with FLUE Policy 7.1.3.B. It is found that the 2003 Amendment to PWSSE Policy 3.5 does not represent a substantive change to the Plan. As to Petitioner's "lack of control" critique, the County responds that the City of Gainesville's Plan calls for coordination with the County's Plan when proposing utility line extensions. Mr. Drummond testified that the City of Gainesville's Plan recognizes that GRU will extend its utility lines in the unincorporated area in a manner consistent with the County's Plan. It is at least fairly debatable that the 2003 Amendments are supported by data and analysis and do not inappropriately delegate planning authority to the City of Gainesville or GRU. 2003 COSE Amendments Strategic Ecosystems The 1991 Plan employed the term "conservation area" to describe properties meriting special protection, including areas with significant geologic features such as springs and caves, wetlands, areas subject to 100-year flooding, and surface waters and their transitional zones. The 2002 Plan Update recognized both "primary" and "secondary" conservation areas. 2002 COSE Policy 3.1.1 provided: Primary conservation areas shall consist of natural resources that, because of their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures to sustain their ecological integrity. These areas shall include: Wetlands; Surface waters; Wellfield protection areas; Listed species habitat; Significant geologic features; and Strategic ecosystems.[14/] "Strategic ecosystem" was a new term added by the 2002 Plan Update and was defined in the 2002 COSE definitions as follows: Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System" (1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida" (2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Golder's "Alachua County Ecological Inventory Project" (1996). 2002 COSE Objective 4.10, not amended in 2003, provides that it is the County's objective to "[p]rotect, conserve, enhance, and manage the ecological integrity of strategic ecosystems in Alachua County." The 2002 COSE Policies implementing Objective 4.10, which were all new to the 2002 Plan Update, provided: Policy 4.10.1 Conserve ecosystems that are determined to be strategic based on an overall assessment of the following characteristics: Natural ecological communities that exhibit: Native biodiversity within or across natural ecological communities. Ecological integrity. Rarity. Functional connectedness. Plant and animal species habitat that is: Documented for listed species. Documented for species with large home ranges. Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering. High in vegetation quality and species diversity. Low in non-native invasive species. Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration. Policy 4.10.2 Strategies shall be implemented through the land use planning and development review process to ensure that each strategic ecosystem is evaluated and protected based on the integrity of the ecological unit. Policy 4.10.3 The County shall create special area plans in cooperation with landowners to establish specific guidelines for strategic ecosystems prior to approval of land use change, zoning change, or development approval. The County shall devise a schedule for creating special area plans, based on current development pressures and anticipated priorities. The County shall create special area plans for each strategic ecosystem, in accordance with the schedule and with the standards under Objective 3.6.[15/] If an applicant seeks development prior to the County's creation of a special area plan for a particular strategic ecosystem, the applicant has two avenues for pursuing development. A special area study may be conducted at the applicant's expense. Alternatively, if the applicant demonstrates that the ecological integrity of the strategic ecosystem will be sufficiently protected, the applicant may proceed according to the clustering provisions in policies under Objective 6.2 of the [FLUE]. Policy 4.10.4 Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans and may include, but are not limited to: Prescribed burning. Control of invasive species. Silvicultural activities according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems. Reduction in the intensity of site preparation activities, including bedding and herbicide application. Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas. Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting. Land acquisition. Policy 4.10.5 Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM]. Policy 4.10.6 The County shall provide regulatory flexibility to facilitate planning across multiple parcels that protects the integrity of the strategic ecosystem as an ecological unit. Existing cluster and PUD ordinances shall be revised to enhance long-term protection of strategic ecosystems. Policy 4.10.7 The County shall work with owners of agricultural and silvicultural lands to retain the ecological integrity and ecological value of strategic ecosystems through management plans and incentives. A management plan shall be required before any activity occurs in a strategic ecosystem that has not been used for agriculture or silviculture within the last 20 years, in accordance with the following: The management plan shall provide for retention of the ecological integrity and ecological value of the strategic ecosystem. The management plan shall be submitted to Alachua County for review and approval by appropriately qualified technical staff. The management plan may be satisfied by Forest Stewardship Council certification, land acquisition, or participation in a conservation program sponsored by the USDA Natural Resources Conservation Service. Passive recreational and ecotourism activities shall be encouraged where consistent with protection of the ecological integrity of the strategic ecosystem. The County shall, through community outreach and collaboration, facilitate participation of landowners in forestry certification programs, land acquisition programs, and federal and state cost-share conservation programs, such as the Environmental Quality Incentive Program, the Conservation Reserve Program, the Wildlife Habitat Incentive Program, and the Farmland Protection Program. Policy 4.10.8 Alachua County shall implement an ordinance that specifically addresses the preservation of strategic ecosystems, significant plant and wildlife habitat, habitat corridors, and vegetative communities. The 2003 Amendments deleted 2002 COSE Policy 3.1.2, which had defined "secondary" conservation areas. The 2003 Amendments amended 2002 COSE Policy 3.1.1, set forth above, by deleting the first word, "Primary." The effect of these amendments is that the policy now simply defines "conservation areas" without distinction as to their being "primary" or "secondary." The 2003 Amendments also deleted "Wellfield protection areas" from the definition of "conservation areas," replacing it with "100-year floodplains." Finally, the 2003 Amendments changed the definition of "strategic ecosystem" to read: Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System"(1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida"(2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Sites that are identified in the KBN/Golder's Associates report, "Alachua County Ecological Inventory Project" (1996). The 2003 Amendments amended the 2002 COSE Policies implementing Objective 4.10 as follows: Policy 4.10.1 Conserve strategic ecosystems that are determined through ground-truthing using the KBN/Golder report as a guide to be strategic maintain or enhance biodiversity based on an overall assessment of the following characteristics: Natural ecological communities that exhibit: Native biodiversity within or across natural ecological communities. Ecological integrity. Rarity. Functional connectedness. Plant and animal species habitat that is: Documented for listed species. Documented for species with large home ranges. Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering. High in vegetation quality and species diversity. Low in non-native invasive species. Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration. The Alachua County 2001 digital orthophotographic series (for purposes of this policy, the date of this photography is March 1, 2001) shall presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy. The County shall adopt land development regulations that set forth additional guidance for the determination of whether and the extent to which strategic ecosystems exist on a property. * * * Policy 4.10.4 Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans or cluster developments and may include, but are not limited to: Prescribed burning. Control of invasive species. Silvicultural activies according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems. Reduction in the intensity of site preparation activities, including bedding and herbicide application. Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas. Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting. Land acquisition. * * * Policy 4.10.5 Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM]. Policy 4.10.5 Each strategic ecosystem shall be preserved as undeveloped area, not to exceed 50% of the upland portion of the property without landowner consent and in accordance with the following: Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 50% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation. This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 and 4.5, respectively. This limitation shall not restrict in any way state and federal agency protections. The remaining Policies implementing 2002 COSE Objective 4.10 were not amended by the 2003 Amendments. Thus, the definition of "strategic ecosystem" was amended from an identification of sites based upon the characteristics of their ecological communities to a question of whether a given property is found on a "strategic ecosystems" map sourced from the "Alachua County Ecological Inventory Project" prepared by KBN/Golder Associates (the "KBN/Golder Report"). In 1986, the County retained the Gainesville firm of KBN Engineering and Applied Sciences, Inc. ("KBN") to conduct a survey of potential ecologically significant upland properties. The purpose of the survey, completed in 1987, was to provide information on important upland sites for planning purposes, principally to complete the Conservation Element of what would become the 1991 Plan, and to assist the Alachua County Conservation and Recreation Areas Task Force in greenbelt planning. In November 1996, the County commissioned KBN, now a subsidiary of Golder Associates, to produce the KBN/Golder Report, which built upon the 1987 survey to compile the most extensive study to date of ecological communities in the County. The stated purpose of the KBN/Golder Report was to "identify, inventory, map, describe, and evaluate the most significant biological communities, both upland and wetland, in private ownership in Alachua County and make recommendations for protecting these natural resources." A total of 47 sites were identified and ranked based on their quality of vegetation and landscape ecology, their status as habitats for endangered species and wildlife in general, their hydrology, and their management potential. The 1996 KBN/Golder Report was more comprehensive than its predecessor study in that it covered a larger area, evaluated wetlands as well as uplands, and included mapping of ecological connections and biological communities. KBN/Golder accumulated and evaluated a wide range of data in the process of preparing the Report including: the 1987 KBN survey; a 1995 set of infrared aerial photographs provided by the St. Johns River Water Management District ("SJRWMD"), as well as a 1986 set of infrareds provided by the Alachua County Department of Environmental Services; a 1994 set of black and white aerial photographs provided by the Alachua County Property Appraiser's Office; Florida Fish and Wildlife Conservation Commission ("FFWCC") habitat distribution maps; SJRWMD wetlands vegetation maps; Florida Natural Areas Inventory natural community/plant community classification categories; and SJRWMD and Suwannee River Water Management District Floridan Aquifer recharge maps. The KBN/Golder Report described its methodology and limitations as follows: The inventories were done by David Clayton and Bob Simons, working separately. Landowners were contacted where access was necessary for the survey work, and those lands where access was denied were inventoried using aerial photographs, outside sources of information, and whatever information could be obtained by observations from the property boundary. Initially, a review was made of the USGS topographic quadrangle maps (various dates) and aerial photographs... to determine access, location of communities, drainage features, and karst features. Next, vehicle or pedestrian surveys of all accessible areas were used to get an overall view; to discern as many biocommunities as possible; to look for exotic species, listed species, or signs of habitat for listed species; and to evaluate the overall wildlife habitat and the condition of the communities. Specific sites were chosen to inventory in more detail. Limitations for this survey were the large number of sites, the vast acreage, and the restricted time available. Thousands of acres on 47 sites were surveyed within 8 weeks, necessitating limited survey time on the larger sites. Terrestrial species were emphasized because 90 percent of the area surveyed is terrestrial. The Jonesville Petitioners contested the validity of the 2003 Amendments regarding strategic ecosystems on several grounds. Common to all these grounds is a disagreement on the meaning of the strategic ecosystems definition and its interplay with COSE Objective 4.10 and its implementing policies, as amended by the 2003 Amendments. The Jonesville Petitioners argue that defining the term "strategic ecosystem" by way of the map in the KBN/Golder Report is fatally flawed because it provides no flexibility. If a property is identified on the KBN/Golder Report map, then it is a strategic ecosystem subject to the restrictions of COSE Objective 4.10, without regard to the facts on the ground. The definition makes no provision for ground-truthing the property prior to inclusion in the strategic ecosystem category. The County responds that 2003 COSE Policy 4.10.1 provides for more detailed identification of strategic ecosystems through ground-truthing, using the KBN/Golder Report as a guide. 2003 COSE Policy 4.10.1 also provides that the County's LDRs will provide additional guidance to determine whether and to what extent, strategic ecosystems exist on a property. The Jonesville Petitioners answer that there is a fundamental conflict in the policy's purported use of the KBN/Golder Report as a "guide" to delineating strategic ecosystems, when the definition provides that identification on the KBN/Golder Report is all that is required to establish a property as a strategic ecosystem. Subsequently adopted LDRs cannot provide guidance as to whether strategic ecosystems exist on a property; by definition, the KBN/Golder Report map determines whether there are strategic ecosystems. The Jonesville Petitioners argue that the only correct way to take a property out of the strategic ecosystem category would be to amend the adopted KBN/Golder Report map, thus amending the definition of "strategic ecosystem." The Jonesville Petitioners' argument fundamentally concedes that, if the definition were to provide for ground- truthing based on the characteristics set forth in 2003 COSE Policy 4.10.1, it would be unexceptionable. However, they point out that 2003 COSE Objective 4.10 and its policies apply to all "strategic ecosystems," that "strategic ecosystems" are also subject to regulation as "conservation areas" under COSE Policy 3.1.1, and that the ground-truthing provided by 2003 COSE Policy 4.10.1 does nothing to change the definition. Under this definitional scheme, a landowner whose property is identified on the KBN/Golder Report map can do nothing to take his property out of the strategic ecosystems definition, short of petitioning the County to amend its Plan, and is subject to all COSE provisions dealing with strategic ecosystems. The undersigned agrees with the Jonesville Petitioners that the County would have been better served to refine its definition of "strategic ecosystem" to include the standards set forth in 2003 COSE Policy 4.10.1. The undersigned does not agree that the County's failure to do so invalidates the definition under the "fairly debatable" standard, given the County's interpretation of the interplay among the applicable policies. By using the KBN/Golder Report map to set the boundaries of strategic ecosystems, the County attempted to delineate reasonably large, contiguous areas, rather than create a "swiss cheese" pattern of intermixed conservation and non-conservation lands; i.e., designating isolated pockets of conservation within a large non-conservation area, or vice versa. The County made a general determination that strategic ecosystem site boundaries should be delineated with simple straight lines, rather than by the edges of land features, such as vegetative cover. The County reasonably decided that a straight boundary, such as a section line is easier to administer and more easily communicated to the public than a natural feature such as vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that under this approach, strategic ecosystems would include some areas neither particularly environmentally sensitive, nor valuable as habitat. 2003 COSE Policy 4.10.1 provides for ground-truthing to further refine the delineation of the boundaries of the strategic ecosystem properties to more specifically identify the most environmentally sensitive portions of the property and to assist in the determination of appropriate protection measures. Under the COSE Objective 4.10 policies, set forth in full above, the County will use the KBN/Golder Report map and the more detailed information provided by additional ground-truthing to identify the least environmentally sensitive portion of the strategic ecosystem property, so that any development can be directed and clustered there, and away from the most environmentally sensitive portion of the property. The landowner will retain the right to transfer the same number of residential units as allowed by the density limits of the underlying land use classification to the least sensitive portion of the property, notwithstanding the strategic ecosystems designation. The County's explanation of the interplay among the Plan provisions effectively addresses the concerns of the Jonesville Petitioners regarding "erroneously mapped" parcels, i.e., parcels that are identified on the KBN/Golder Report map, but that, in fact, are not environmentally sensitive. The Jonesville Petitioners are technically correct that because identification on the KBN/Golder Report map defines a property as a strategic ecosystem, subsequent ground-truthing does nothing to remove the property from that definition. However, the Jonesville Petitioners' argument depends on a reading of the Plan that is not merely literal, but blinkered. One must accept that the definition is absolutely controlling and that if a property is on the KBN/Golder Report map, then every individual plan provision referencing "strategic ecosystem" will apply to the property regardless of the natural characteristics found on the ground. A fair reading of the 2003 Amendments makes it clear that the definition of "strategic ecosystem" is the beginning of the analysis, not the end. The County acknowledged that, while the data on the KBN/Golder Report map are professionally accepted for general planning purposes, the data are not detailed enough for regulatory purposes on the level of individual parcels. Thus, once the map designates a property as a strategic ecosystem, 2003 COSE Policy 4.10.1 requires ground- truthing to determine whether and to what extent that strategic ecosystem is subject to conservation. Later adopted LDRs will provide additional guidance "for the determination of whether and the extent to which strategic ecosystems exist on a property." This treatment is similar to that found in 2002 COSE Policy 3.3.4 regarding conservation and preservation areas on the FLUM generally: Site Specific Delineation: The parcel- specific boundaries of preservation and conservation areas shall be verified by ground surveys conducted in the course of special studies or development review. County-initiated mapping efforts shall be performed at the County's expense, except when an applicant seeks land use change, zoning change, or development approval prior to the completion of the County's mapping efforts, consistent with [COSE] policies 3.4.2 and 4.10.3. Conservation policies shall be applied based on the resulting site specific delineation. The referenced 2002 COSE Policy 3.4.2 provides: Where site specific analysis or verification is required to determine the presence of natural resources protected under this Element, the cost of such analysis or verification shall be borne by the applicant. The Jonesville Petitioners contend that there is an internal inconsistency in the fact that the definition of strategic ecosystem does not include the criteria found in 2003 COSE Policy 4.10.1. However, the parameters used by KBN/Golder Report to score and rank the sites that appear on the map include: vegetation value (species diversity, presence of exotics); endangered species habitat value (plant and animal); wildlife habitat value; hydrology; landscape ecology (community diversity, ecological quality, community rarity, functional connectedness); and management potential. These parameters are consistent with the characteristics listed in 2003 COSE Policy 4.10.1. The Jonesville Petitioners point out that the design of the KBN/Golder Report map was such that no parcel less than 20 acres in size was identified, resulting in the omission of thousands of acres countywide that possess the characteristics identified in 2003 COSE Policy 4.10.1 as indicative of strategic ecosystems. The Jonesville Petitioners claim that this presents an internal inconsistency in the Plan, because the COSE policies would protect only 25 percent of those unmapped properties (under 2003 COSE Policy 4.9.12 addressing upland habitat), rather than the 50 percent protected by the strategic ecosystems policies. This alleged inconsistency is simply another example of the County's reasonable policy choice to focus its conservation efforts on larger, more contiguous properties, rather than a myriad of small-acreage lands. Even the 2002 definition of "strategic ecosystem," not challenged by the Jonesville Petitioners, limited strategic ecosystems to properties greater than 20 acres in size. The smaller sites will remain subject to regulation on a site-specific basis as they are proposed for development. The Jonesville Petitioners appear to insist, absent any pending development applications with the County or even any present plans to develop, on their right to have the Plan and its incorporated maps provide them with a definitive, binding delineation of their properties and, thus, their development potential. This claim is unrealistic, given that such a general right would require County staff to ground- truth hundreds of thousands of acres countywide before a conservation land use category could be established at all. The KBN/Golder Report map is sufficient to place landowners, such as the Jonesville Petitioners, on notice of their need to inquire as to the status of their properties prior to the initiation of development activities. Parcel- specific regulation requires parcel-specific ground-truthing, and 2003 COSE Policy 4.10.1 provides for such ground-truthing. Further, 2003 COSE Policy 4.10.3 provides that the County will create special area plans for strategic ecosystems "based on current development pressures and anticipated priorities." It further provides that an applicant in the position of the Jonesville Petitioners may pay for its own special area plan, should it not wish to wait on the County to complete its plan process. Finally, the Jonesville Petitioners attack 2003 COSE Policy 4.10.1's use of the Alachua County 2001 digital orthophotographic series dated March 1, 2001, to "presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy." They contend that it is uncertain how the County will treat properties on which the owners have altered ecosystems in the period between the 2001 orthophotographs and 2003 adoption of the new COSE policies and that the policy would have a retroactive impact of dubious constitutionality if the County were to require restoration of those properties to their 2001 state. This valid concern of the Jonesville Petitioners is prematurely raised in this proceeding. The evidence at hearing failed to demonstrate that the County would not allow a landowner to provide information through the development review process to demonstrate that the condition of the property had changed after March 1, 2001, and prior to the effective date of the 2003 Amendments. In summary, it is found that the mere fact that the County determined that the definition of "strategic ecosystem" shall consist of the identification of properties on the KBN/Golder Report map is a fairly debatable decision, given the manner in which that definition is put into effect through amended COSE Objective 4.10 and its implementing policies. The Jonesville Petitioners entered reports prepared by their environmental consultant concerning particular properties and their unsuitability for designation as strategic ecosystems and presented extensive testimony on the subject. The County presented testimony as to each of the Jonesville Petitioners' properties to support the County's contention that they are indeed strategic ecosystems. Each of the Jonesville properties is a small portion of a much larger parcel on the KBN/Golder Report strategic ecosystems map. It is unnecessary to make detailed findings of fact as to the environmental quality of these properties. As the findings above indicate, the appropriate time to consider the qualities of particular properties will be during the special area planning process and/or the development review process.16/ Uplands Habitat 2002 COSE Objective 4.9, titled "Biodiversity," provides: Maintain and enhance plant and animal species diversity and distribution within Alachua County by protecting significant plant and wildlife habitats, providing for habitat corridors, and preventing habitat fragmentation. The 2002 Plan Update provisions implementing COSE Objective 4.9 provided as follows: Policy 4.9.1 A critical portion of each significant plant and wildlife habitat type in Alachua County shall be protected. Protection shall be accomplished using all available methods, including land acquisition, incentives and requirements for the provision of conservation or preservation areas, habitat corridors, greenways, and common open space. Policy 4.9.2 During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site. The habitat to be conserved shall be selected based on the quality and viability of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside. Conserved habitat shall be located and maintained in areas with intact canopy, understory and groundcover in functional, clustered arrangement which maximizes use by wildlife and maintains the long-term viability of native upland plant communities. Linkages to habitat corridors and greenways shall be required where available. The County shall have the authority to accept alternatives to onsite conservation that provide for the long-term protection and management of significant plant and wildlife habitat of equal or greater habitat value that would not have otherwise been preserved. The land development regulations shall establish criteria for determining which projects warrant the use of alternatives to onsite conservation. Criteria may include but are not limited to: the size of the development site, habitat quality, uniqueness, connectivity, management opportunities, and adjacent uses. Off-site conservation shall not be permitted for listed species habitat that is capable of being managed or restored on- site as a high quality natural plant or animal community or communities. This requirement is not intended to limit the effect of other resource-specific protective measures in this element, such as clustering and buffers. Policy 4.9.3 The County shall require the development and implementation of management plans for all significant plant and wildlife habitat that is to be protected. The management plan shall be prepared at the expense of the developer by an appropriately qualified professional and provide for the following: Removal of invasive vegetation and debris. Replanting with native vegetation as necessary. Maintenance of biodiversity, with special emphasis on protection of listed plant and animal species. Any additional measures determined to be necessary to protect and maintain the functions and values of the habitat conservation areas while ensuring protection from wildfire. Policy 4.9.4[17/] The County shall consult with the Florida Fish and Wildlife Conservation Commission, United States Fish and Wildlife Service, Florida Department of Agriculture and Consumer Services or other appropriate agencies prior to authorizing development that could result in potential adverse impacts to any listed species. The County shall utilize these recommendations to provide specific requirements regarding development where these species are encountered. Conditions of approval shall ensure the maintenance and, where feasible and appropriate, increase the abundance and distribution of populations of listed species. Policy 4.9.5 The use of listed plant and wildlife species habitat shall be restricted to that which is compatible with the requirements of listed species. Development activities[18/] that would threaten the life or habitat of any listed species shall not be permitted. Policy 4.9.6 The County shall prohibit the alteration of natural shorelines or degradation of water quality where listed species feed or breed, through the establishment of buffers as set out in [COSE] Policy 3.6.8. The County shall encourage the restoration of degraded shorelines when possible. Policy 4.9.7[19/] The County shall periodically review monitoring data from federal, state, regional, and local agencies to determine the status of listed species habitats in Alachua County. The County shall use this information to maintain and provide, for the convenience of the public, a table of listed species and listed species habitats in Alachua County. Policy 4.9.8 The County shall recommend specific management and recovery strategies for listed species, as they are developed by the Florida Fish and Wildlife Conservation Commission and the U.S. Fish and Wildlife Service, and shall assist in their implementation. These management techniques shall be incorporated into the land development regulations, as well as the management plans of County-owned preservation areas. Policy 4.9.9 Wildlife habitat enhancement and management programs in urban areas shall be promoted through such techniques as designation of bird sanctuary areas where rookeries or other significant bird populations exist and landscaping schemes for stormwater detention and retention areas that maintain native vegetation and establish littoral zones which encourages wildlife usage. Policy 4.9.10 The County shall develop incentives designed to encourage private land owners to manage land holdings for wildlife attributes. Policy 4.9.11 The County shall establish and preserve habitat corridors that connect significant plant and wildlife habitats throughout the County. The County shall perform an objective analysis to determine the appropriateness of habitat corridors, how extensive they should be, the location of potential corridors, what fiscal resources are available for implementation, and economic incentives for property owners to voluntarily participate in formation of a habitat corridor program. The 2003 Amendments changed 2002 COSE Policy 4.9.2 as follows: During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site, subject to the limitation in 4.9.12. The habitat to be conserved shall be selected based on the quality and viability of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside. . . . The 2003 Amendments added a new COSE Policy 4.9.12, which reads as follows: Policy 4.9.12 Upland habitat protections under Objective 4.9 shall be limited as follows: No more than 25% of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent. Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 25% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation. This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 [Flood Plains and Floodways] and 4.5 [Groundwater], respectively. This limitation shall not restrict in any state and federal agency protections. For purposes of applying this limitation, a property shall include all contiguous land under common ownership or control. Properties may not be disaggregated, processed in piecemeal fashion, reviewed or developed in any manner that results in lesser upland protections than would otherwise be required under this Objective. The Sierra Club Petitioners challenged these uplands policies on several grounds. The 2002 Plan Update, as amended in 2003, provides two kinds of protection to uplands. The most highly protected upland is one established as part of a strategic ecosystem. Under 2003 COSE Policy 4.10.5, up to 50 percent of the upland portion of a strategic ecosystem can be preserved as undeveloped area without the landowner's consent. A lesser level of protection is afforded to "significant plant and wildlife habitat." The 2002 Plan Update defines "significant habitat" as "contiguous stands of natural upland plant communities which have been documented to support, and which have the potential to maintain, healthy and diverse populations of plants or wildlife." Under 2003 COSE Policies 4.9.2 and 4.9.12, up to 25 percent of the upland portion of "significant plant and wildlife habitat" may be set aside for preservation without the landowner's consent. Neither the strategic ecosystems provision nor the significant plant and wildlife habitat provision purports to restrict or lessen any protections afforded by state or federal law. The Sierra Club Petitioners complain that the 2003 Amendments modify the categories and levels of upland protection which had been adopted in the 2002 Plan Update, that these modifications weaken the environmental protection provided to upland vegetative communities and habitats, and that the modifications are based on legislative settlement of the 2002 administrative challenge, not on any science or new data or analysis. The 2002 Plan Update was supported by the 1998 EAR and the 2002 Data and Analysis documents. On December 10, 2002, during the settlement process that culminated in the 2003 Amendments, Alachua County's environmental protection director, Chris Bird, produced a memorandum titled "Response to Questions Raised on Conservation Issues in the 12/2/02 Special [Board] Comp Plan Meeting," referred to hereinafter as "the Bird Memo." As of December 2, 2002, mediation had commenced in the 2002 administrative challenge, but the parties had yet to crystallize their respective positions into what would become the 2003 Amendments. As indicated by its full title, the Bird Memo contains the County staff's explanation of the basis for the conservation policies in the 2002 Amendments. The memo sets forth citations to and quotes from the 2002 Data and Analysis, and supplements this with its own comments on the propriety or necessity for the changes to the 1991 Plan made by the 2002 Amendments. The Sierra Club Petitioners point out that the Bird Memo offers a clear explanation as to how the 2002 Plan Update was based on the 1998 EAR and the 2002 Data and Analysis. They contend that there is no equivalent documentation in the record of this case that explains how the 2003 Amendments were based on the Data and Analysis. In answer to the question, "What's wrong with the old [1991] Comprehensive Plan and why do we have to change it?," the Bird Memo stated: Of 70 measurable objectives set forth for the Conservation portion of the [1998] EAR, less than a third of those objectives were met without caveat. At least 10 objectives were not met, and another 40 objectives were only partially met, met in limited fashion, or were in need of revision/update. The Bird Memo noted that the 1998 EAR made the following recommendations under the heading, "Permitted Uses in Conservation Areas": Review and revise requirements for development in ecologically sensitive/environmentally significant areas. Using the PUD[20/] or a modified Cluster Ordinance, consider the following modifications at a minimum: (1) modify the comprehensive plan to include additional natural communities identified in the 1996 ecological inventory [i.e., the KBN/Golder study]; (2) require clustering for all development and eliminate the 20-acre parcel threshold; (3) require stricter long-term protection for Conservation areas and significant natural communities; (4) increase the 50% minimum set-aside; (5) include incentives/requirements for permanent set-aside arrangements. The Bird Memo went on to set forth staff's recommendation as to what "stricter long-term protection for conservation areas and significant natural communities" necessitates for "significant habitat": Significant habitat is defined in the [2002] Comprehensive Plan update as contiguous stands of natural upland plant communities that support and maintain healthy and diverse populations of plants or wildlife. Sandhill and xeric hammock are two examples. Industrial pine plantations are not significant habitat because they are not natural communities. FAC 9J-5 requires that the Conservation Element include objectives and policies that conserve and protect native vegetative communities and wildlife habitat from destruction by development activities. The Plan update approaches this protection at two scales: strategic ecosystems are important at a larger geographical scale; significant habitat and listed species habitat are important at smaller scales. The purpose is to identify and protect natural systems and their fundamental building blocks before they are in the "emergency room" at the brink of crisis, when they can still be preserved for the future in healthy form. To accomplish this, the largest remaining wild areas are afforded the greatest protection (80% preservation of strategic ecosystems), while the smaller but significant natural habitat areas are afforded lesser but still meaningful protection (25% preservation of significant habitat). There is no percentage associated with listed species habitat protection, but protection is determined on a case-by-case basis depending on species and site characteristics. The requirement for 25% preservation of native habitat is clearly less than what is needed to stop habitat and species declines, but represents a compromise.[21/] This percentage was chosen in order to provide for the conditions necessary to preserve some degree of ecological integrity while accommodating the needs of development. . . . The Sierra Club Petitioners concede that some of the quoted conservation recommendations were adopted in the 2003 Amendments, e.g., the map of the KBN/Golder Report inventory lands was adopted as the initial definition of strategic ecosystems and incentives for clustering are provided. However, they contend that most of the staff's conservation recommendations are not reflected in the 2003 Amendments, e.g., clustering is not required for all development in ecologically sensitive and/or environmentally significant areas; the 20-acre parcel threshold for ecosystem protection is not eliminated; 50 percent minimum set-asides are not increased; species on the Florida Natural Areas Inventory ("FNAI") endangered species list but not on federal or state lists are not protected in wetland buffers; the recommended minimum default buffer is not used; and no minimum protection is required for either listed species habitat or significant habitat. The Sierra Club Petitioners contend that the 25 percent maximum upland preservation introduced by 2003 COSE Policy 4.9.12 destroys the impact of 2002 COSE Policy 4.9.5, which under the 2002 Plan Update would have protected the habitat of any "listed species" on a case-by-case determination of what was reasonable and necessary for the species on the particular site, apparently without regard to the amount of a given tract that would be turned over to preservation against the wishes of the landowner. "Listed species" is defined in the 2003 Amendments as: Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g., they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction. This contention is rejected because it neglects to factor in the express limitation expressed in 2003 COSE Policy 4.9.12.c. that the 25 percent limitation "shall not restrict in any way state and federal agency protections." Such "protections" include federal and state listed species protections, meaning that the 25 percent limitation cannot function as a brake on listed species protection. The Sierra Club Petitioners make too much of the distinction between 2002 COSE Policy 4.9.2's language, "All developments shall protect as conservation or preservation areas a minimum of 25 percent of the significant plant and wildlife habitat that occurs on site," and 2003 COSE Policy 4.9.12's language, "No more than 25 percent of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent." They appear to assume that the former provision would allow the County to impose draconian development limitations without regard to the property rights of landowners. In the undersigned's view, the distinction is not so great, particularly in light of 2002 COSE Policy 4.9.2.1's direction to the County to "work with the landowner to select the portion of the habitat that will be included in the 25% set aside." (Emphasis added.) The express reference to a "25% set aside" indicates that Alachua County did not anticipate forcing landowners to cede more than that amount of their property even under the 2002 Plan Update. It is found that the Sierra Club Petitioners overstate the necessary impact of the Bird Memo as "Data and Analysis." Florida Administrative Code Rule 9J-5.005(2), indeed, requires that plan amendments be "based upon relevant and appropriate data," and further explains that to be "based on data" means "to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." However, the Sierra Club Petitioners essentially contend that the Board was bound to enact each recommendation of the Bird Memo in every particular or stand in violation of Florida Administrative Code Rule 9J-5.005(2). To accept this contention would be to make the elected officials of Alachua County subservient to their own hired staff, an exact reversal of the comprehensive planning process. It is found that the County has reacted to the data and analysis of the Bird Memo "in an appropriate way and to the extent necessary indicated by the data." There is no question that the 2002 Plan Update, as amended by the 2003 Amendments, for the first time "establish[es] an integrated approach to the protection of natural communities and their associated values in Alachua County," in contrast to the fragmented approach of the 1991 Plan. See COSE Data and Analysis, Biodiversity, p. 38. The 2003 Amendments address and, to some degree, adopt every element raised by staff in the Bird Memo. The 2003 Amendments do not adopt the terms of the Bird Memo to the letter as urged by the Sierra Club Petitioners, but the County was not required to do so. It is at least fairly debatable that the COSE uplands policies are supported by data and analysis and provide adequate guidance for the development of LDRs. Wetland Buffers Under the 1991 Plan, standards for natural vegetative buffers around surface waters and wetlands consisted of a minimum 75-foot buffer for Outstanding Florida Waters and a 35-foot buffer for all other surface waters and wetlands. The 2002 Plan Update's version of COSE Policy 3.6.8, referenced in Policy 4.9.6 above, provided detailed new buffer requirements as follows: Policy 3.6.8 Development occurring along the edges of conservation and preservation areas shall be designed to protect and minimize the impact of development on conservation areas through the use of natural vegetative buffers. Buffer width shall be determined on a case-by-case basis depending on what is demonstrated to be scientifically necessary to protect natural ecosystems from significant adverse impact. This determination shall be made in consideration of at least the following factors: Type of development and associated potential for adverse site-specific and off-site impacts; Natural community type and associated hydrologic or management requirements; Buffer area characteristics and function; Presence of listed species of plants and animals. Absent scientific information which demonstrates that a larger or smaller buffer width is appropriate, the following buffer widths shall apply for the resources set forth in the table below. Protected Resource Buffer Distance (feet)** Surface waters and wetlands that do not include the resources listed below 75* Outstanding Florida Waters 200* Areas where listed plant or animal species have been documented within 300 feet of a surface water or wetland 300* from the surface water or wetland Public water supply well 200 * Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources, and Richard Hamann, Esq., University of Florida College of Law, January 2000. ** If the buffer precludes all economically viable use of a particular property, development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4. Buffers shall be measured from the outer edge of the protected resource. The 2003 Amendments made no changes to the text of COSE Policy 3.6.8, but changed the table of buffer widths as follows: Protected Resource Buffer Distance (feet)** Surface waters and wetlands less than or equal to 0.5 acre that do not include OFWs or listed animal species as described elsewhere in this table 50 average, 35 minimum Surface waters and wetlands greater than 0.5 acre that do not include the resources listed below OFWs or listed animal species as described elsewhere in this table 75* 75 average, 50 minimum Areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species listed plant or animal species have been documented within 300 feet of a surface water or wetland 300* from the surface water or wetland 100 average, 75 minimum Outstanding Florida Waters (OFWS) 200* 150 average, 100 minimum Public water supply well 200 * Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources, and Richard Hamann, Esq., University of Florida College of Law, January 2000. ** If the buffer precludes all economically viable use of a particular property, development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4. The referenced COSE Policy 3.6.5, introduced in the 2002 Plan Update and not amended in 2003, provides: Development on land that includes conservation areas shall be sited and designed according to the following standards and consistent with policies under Objective 6.2 [Rural/Agriculture] of the [FLUE] in the rural area: The preservation of conservation areas shall be required on all development sites to the greatest extent possible, consistent with standards which are outlined subsequently in [the COSE]. Density or intensity shall be transferred from conservation areas to non- conservation portions of the property, to adjoining property under common ownership or management and within a unified development, or to other development receivership areas, at a rate consistent with that of the underlying zoning district, but not to exceed the maximum density allowed by the land use designation. When there are no non-conservation areas to which density or intensity may be transferred, the development shall be clustered in the portion of the site that will result in least environmental impact. When connection to central sewer is not required, septic wastes shall be disposed of according to the Comprehensive Plan, land development regulations, and health department standards, and without adversely affecting ecosystem health. Existing landscape connections to other conservation areas shall be maintained so that fragmentation is avoided. The referenced COSE Policy 4.6.6, under Objective dealing with "Surface Water Systems," was introduced in the 2002 Plan Update, was not amended in 2003, and provides: The following activities may be allowed within the buffer subject to standards that regulate environmental impacts: Agricultural and silvicultural operations consistent with Objective 5.5 [Agricultural and Silvicultural Practices]; Water dependent facilities; Minimal impact activities; Activities that serve the overriding public interest; and Development allowed through implementation of [COSE] policy 3.6.5.3, provided that the development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access. 175. The referenced COSE Policy 4.7.4, under Objective dealing with "Wetland Ecosystems," was introduced in the 2002 Plan Update and amended in 2003 as indicated below: Development activity shall not be authorized in wetlands or wetland buffers except when all of the following conditions are met: The applicant has taken every reasonable step to avoid adverse impact to the wetland and buffer; and The applicant has taken every reasonable step to minimize adverse impact to the wetland and buffer; and The applicant has provided appropriate mitigation for adverse impact to the wetland and buffer; and The applicant shows that one of the following circumstances applies: Minimal impact activity; or Overriding public interest; or All economically beneficial or productive use of the property is otherwise precluded. The development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access. Notwithstanding the above, mitigated impact may be allowed to any isolated poor quality wetland that is less than 0.25 acre in size, provided the total impact area is not greater than or equal to 0.25 acre per development. Poor quality shall be defined in the land development regulations based on factors relative to ecological value. The 2002 Data and Analysis clearly concluded that the 35-foot buffers in the 1991 Plan were inadequate to protect the natural functions of the affected wetlands. The Bird Memo summarized the data as follows: The Conservation/Aquifer Recharge portion of the EAR, as well as the data and analysis supporting the Comprehensive Plan update, are replete with documentation of the inadequacy of the current 35-foot buffer for wetlands and surface waters in Alachua County. Inadequacy is demonstrated by documentation of at least the following nine facts: (1) the direct loss of the extent and quality of wetlands, (2) the degradation of wetland functions, (3) no change in declining water quality trends since implementation of 35-foot buffers, high sediment loads in surface waters, elevated nutrient concentrations in surface waters, groundwater, and springs, poor surface water systems health documented by macroinvertebrate sampling, poor hydrology, including lake drawdown problems, (8) the continued loss, degradation and fragmentation of wildlife habitat in Alachua County, and (9) the decline of native species concurrent with the spread of invasive non-native species. The Bird Memo also contained appendices that included 11 pages of specific citations from the Data and Analysis discussing the inadequacy of the 35-foot buffers and supporting larger buffer widths. The buffers in 2002 COSE Policy 3.6.8 were based on the Data and Analysis in the 2000 Jones, Edmunds & Associates, Inc., report titled "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," ("JEA Report"). The Bird Memo summarized the JEA Report's findings and Alachua County's response, as follows: Upland vegetative buffers are widely regarded as necessary to protect wetlands, streams, and other aquatic resources. However, buffer size requirements typically have been established by political acceptability, rather than scientific merit. This often leads to insufficiently buffered aquatic resources and the false perception that the resources are being properly protected from potential impacts. Numerous scientific studies have shown that relatively wide buffers (150 to more than 300 feet) are necessary to protect wetlands. (JEA et al. 2000) A dilemma exists. Undersized buffers may place aquatic and wetland resources at risk, while buffers that are sufficiently large to provide full protection may unrealistically deny landowners use of their land. Therefore, it is important to determine the minimum buffer width necessary for protection of most of the resources, or the most sensitive of the resources. Three goals have been identified and used to determine buffer sizes: protection of wildlife habitat; minimization of sediment transport into wetlands; and minimization of groundwater drawdown in wetlands. The JEA report (2000) concludes that a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem. A 300-foot buffer would protect approximately 50% of the wetland-dependent wildlife species in freshwater wetlands, and protect water quality from sedimentation by course [sic] and fine sands. In some site-specific cases, such as with silt or clay soils, or from large draw-down structures, a greater buffer distance would be necessary to protect the wetland. Any reduction in the buffer width below 300 feet can impose adverse impacts to the wetland, particularly to the wetland- dependent wildlife species that require a wide surrounding upland area in which to feed, forage, and use as protection from human disturbance. Lesser alternatives would still provide some protection to wetlands; however, any reduction can result in adverse impacts to wildlife populations, as well as degradation of water quality from deposition of fine sediments. The County has chosen an alternative to one large buffer distance. This alternative is intended to provide flexibility while accommodating private property concerns. The Sierra Club Petitioners emphasize the JEA Report's conclusion that "a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem." They note that the language of 2003 COSE Policy 3.6.8.2 provides that "[a]bsent scientific information which demonstrates that a larger or smaller buffer width is appropriate," a 100-foot average, 75-foot minimum natural vegetative "default" buffer would apply in "areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species have been documented within 300 feet of a surface water or wetland." They conclude that providing only a 75-100 foot "default" buffer in an area documented to contain threatened or endangered species habitat within 300 feet would result in the destruction of that habitat between the 75- to 100-foot buffer zone and the 300-foot extent of the documented habitat. This is another instance in which the Sierra Club Petitioners' conclusion requires an assumption of bad faith on the part of the County regulatory authorities. Whether the default buffer is 300 feet or 75 feet, that default buffer applies only in the absence of "scientific information which demonstrates that a larger or smaller buffer width is appropriate." The Sierra Club Petitioners correctly note Michael Drummond's testimony that, under the 1991 Plan, the default buffers were often employed where the existence of wetland- dependent species was suspected, but not verified. Mr. Drummond also testified that application of a 100-foot buffer would not be adequate for listed species. However, Mr. Drummond's testimony does not demonstrate that the County would ignore scientific information demonstrating the presence of endangered species and apply the default buffers regardless of those species' habitat requirements. The undersigned does not agree that it is beyond fair debate that Florida Administrative Code Rule 9J- 5.013(2)(c)5. requires the County to apply the default buffers in habitats where there is a "high potential" for endangered species to occur, but where the species have not been documented. The cited Rule requires the COSE to contain policies that address implementation activities for the "[r]estriction of activities known to adversely affect the survival of endangered and threatened wildlife." 2003 COSE Policy 3.6.8 complies with the language of the rule by addressing known adverse affects. Alachua County was entitled to make a policy choice not to go farther and address potential adverse effects caused by inadequate buffers in areas that endangered species might inhabit.22/ There is no question that the Sierra Club's policy preference would result in greater protection of endangered species and their habitats, actual or potential. However, this fact alone does not compel the County to enact stricter provisions than the relevant statutes and rules require. The Sierra Club Petitioners' focus on the "300 foot minimum buffer" language in the Bird Memo led them to overlook the fact that the Data and Analysis support 2003 COSE Policy 3.6.8, as well as the version in the 2002 Plan Update. The Bird Memo itself recognizes the County's choice of "an alternative to one large buffer distance . . . to provide flexibility while accommodating private property concerns." The Bird Memo expressly recognized that the scientifically preferable wide buffers "may unrealistically deny landowners use of their land." 2003 COSE Policy 3.6.8 reasonably balances the interests noted in the Bird Memo by providing for a site- specific determination of the proper buffer width based on the scientific information at hand. Application of the default buffer is always contingent upon the absence of scientific information.23/ The Sierra Club Petitioners also challenge the 2003 Amendment's change of language in the table of COSE Policy 3.6.8.2 from "listed plant or animal species" to "federally and/or state regulated vertebrate wetland/aquatic dependent animal species." They argue that the evidence showed that limiting the buffer protection in COSE Policy 3.6.8.2 to only federally and/or state regulated species, rather than to all "listed species" as defined in the 2002 Plan as amended, would exclude approximately 14 species from the threatened and endangered species protection of the buffer provision. The 2002 Plan, as amended in 2003, defines "Listed Species" as follows: Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g. they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction. The Bird Memo explains the inclusion of the FNAI and, until the 2003 Amendments, the Florida Committee on Rare and Endangered Plants and Animals ("FCREPA") lists as follows: The use of FNAI and FCREPA sources does not make the list of protected species significantly broader than the list generated from using federal and state agency lists. Rather, it makes protection efforts more accurate and timely because they are based on scientific judgment responsive to changing natural conditions, rather than political listing decisions which can take years in the making. The use of these data sources to identify species for special protection is considered by many ecological professionals, including state and water management district personnel, as the best available data for the purpose of recognizing plants and animals in decline in the state and in Alachua County. The Sierra Club Petitioners argue that there was no basis in either the 2002 Plan Update or the Data and Analysis for 2003 COSE Policy 3.6.8.2 to exclude the FNAI-listed species from the protection they receive at every other point in the Plan where endangered and threatened species protections apply or to exclude non-vertebrates from the buffering provisions of COSE Policy 3.6.8.2. In response, the County initially points out that the category of buffers for listed species was new to the 2002 Plan Update. The County notes that the 1991 Plan essentially deferred to federal and state agencies in the regulation of plants and wildlife and that in crafting the 2002 Plan Update, the County decided to broaden conservation areas to include the habitat of FNAI-listed species. The County incidentally observes that FNAI is a scientific organization with no regulatory function whatever. The County argues that there is no conflict between its decision to generally broaden conservation areas and its decision to create a new wetland buffer category for federal and state-regulated species. The undersigned agrees that it is at least fairly debatable that the County was not required to apply its "listed species" definition to the buffering provision of COSE Policy 3.6.8.2. The Sierra Club Petitioners simply failed to demonstrate the necessary connection between the definition and the buffer category that might establish an internal inconsistency. The mere fact that the 2002 Plan Update employed the term "listed plant or animal species" in the buffer table does not establish a presumption of correctness. The Bird Memo states that the FNAI and FCREPA lists provide "the best available data for the purpose of recognizing plants and animals in decline," and thus supports the County's decision to reference the FNAI list in its "listed species" definition, but does not require the County to include the list for purposes of defining a buffer category. In further defense of 2003 COSE Policy 3.6.8, the County notes that the policy provides flexibility to respond to the needs of individual species by allowing for "buffer averaging," which permits the buffer area to be distributed in a varying width around the wetland, subject to the minimum widths contained in the table. In addition to the increased buffers, the County substantially improved its protection of wetlands by strengthened requirements in proposed COSE Policies 3.6.1324/ and 4.7.4 for avoidance and minimization of impacts. Avoidance and minimization is also facilitated by proposed Policy 3.6.5, which provides for transfers of densities or clustering. The County notes that the updated Plan contains multiple layers of wetlands protection. COSE Policy 4.7.1 provides that wetlands of all sizes are to be regulated, without exception. COSE Policy 4.7.4 limits the development impact area to the ratio of one-half acre of impact to each ten acres of conservation area. If wetland impacts cannot be avoided or minimized, then the strengthened mitigation requirements of COSE Policy 4.7.7 must be met, including a minimum ratio of 5:1 mitigation area to impacted area, a requirement that the mitigation areas be within the County and no mitigation credits for onsite preservation of wetlands, which are required to be protected in any event. Preservation of wetlands and/or other surface waters or uplands cannot be counted as "mitigation" if federal, state, water management district, or local regulations already require protection of the resource in question. In summary, it is at least fairly debatable that the County appropriately responded to the Data and Analysis by its policies on surface waters and wetlands. D. Agricultural Uses The Jonesville Petitioners criticized 2003 COSE Policy 3.1.2,25/ which provides: In primary and secondary conservation areas, the following uses, if otherwise consistent with the Comprehensive Plan, generally shall be permitted to the extent that they do not significantly alter the natural functions of the conservation area: Public and private conservation, recreation and open space uses. Public and private wildlife preserves, game management and refuge areas. Water conservation and retention/detention areas that are determined to be appropriate for stormwater management. Agricultural uses, employing latest applicable best management practices. The Jonesville Petitioners contend that the quoted policy creates an internal inconsistency in the Plan. The inconsistency is said to stem from a conflict between the County's desire to sustain the ecological integrity of natural resource areas that due to their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures, and the fact that some of the uses to be permitted in conservation areas, particularly agricultural uses, can be incompatible with the preservation of ecological integrity as defined in the Plan. While there was some expert testimony as to the difficulty of reconciling agricultural and recreational uses with conservation, the weight of the evidence did not demonstrate such an inherent incompatibility as to establish an internal inconsistency in the Plan. The listed uses are to be permitted "to the extent that they do not significantly alter the natural functions of the conservation area," and there was no showing that this qualification is unenforceable by its terms. The County also pointed out that its authority to regulate agricultural activities by way of development controls is limited by statute. The "Florida Right to Farm Act," Section 823.14, Florida Statutes (2003), provides, in relevant part: (6) Limitation on duplication of government regulation.-- It is the intent of the Legislature to eliminate duplication of regulatory authority over farm operations as expressed in this subsection. Except as otherwise provided for in this section and s. 487.051(2)[pesticide regulation], and notwithstanding any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461 [property tax assessments of agricultural lands], where such activity is regulated through implemented best-management practices or interim measures developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or water management districts and adopted under chapter 120 as part of a statewide or regional program. . . . (Emphasis added.) More recently, the Legislature passed the "Agricultural Lands and Practices Act," Section 163.3162, Florida Statutes (2003), effective July 1, 2003, subsection (4) of which provides: Duplication of regulation.-- Except as otherwise provided in this section and s. 487.051(2), and notwithstanding any other law, including any provision of chapter 125 or this chapter, a county may not exercise any of its powers to adopt any ordinance, resolution, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461, if such activity is regulated through implemented best management practices, interim measures, or regulations developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or a water management district and adopted under chapter 120 as part of a statewide or regional program; or if such activity is expressly regulated by the United States Department of Agriculture, the United States Army Corps of Engineers, or the United States Environmental Protection Agency. (Emphasis added.) The Jonesville Petitioners also raised the specter of sham agricultural uses being used as a cover for the conversion of environmentally sensitive properties to residential development. Richard Drummond candidly acknowledged that such conversions could occur if the County were insufficiently diligent as to events on the ground, but also testified that the County did what it could, within the statutory constraints set forth above, to ensure that the updated Plan would circumvent such covert efforts. Both statutes quoted above restrict a local government's ability to restrict a "bona fide farm operation," but neither statute defines the term "bona fide farm operation." In the 2002 COSE definitions, Alachua County provided a definition of "bona fide agricultural purposes" to mean: Good faith commercial agricultural use of the land, provided the land is classified for assessment purposes by the property appraiser as "agricultural" pursuant to Chapter 193, Florida Statutes. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration: The length of time the land has been so utilized; Whether the use has been continuous; The purchase price paid; Size, as it relates to specific agricultural use; Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices; Whether such land us under lease and, if so, the effective length, terms, and conditions of the lease; and Such other factors as may from time to time become applicable. The Jonesville Petitioners contend that 2003 COSE Policy 3.1.2 creates an internal inconsistency with 2002 FLUE Policies 6.2.10, 6.2.12, 6.2.13, and 6.2.15. The permitted uses delineated in 2003 COSE Policy 3.1.2 do not list residential activity as a permitted use in conservation areas. The cited 2002 FLUE Policies all contemplate some residential development in "strategic ecosystems," which are included in the definition of conservation areas. The Jonesville Petitioners also note that, within 2002 FLUE Policy 6.2.12, silviculture, common water supply systems, and common septic system drainfields are listed as potential uses in conservation areas that are designated as "open space" in clustered rural residential subdivisions, yet none of these uses is listed as permitted in 2003 COSE Policy 3.1.2. They assert that the definition, treatment, and application of the terms "agriculture" and "silviculture" within the 2003 COSE plan amendments create inconsistency and lack of predictability in the application and treatment of the related policies. As to the last point, the County credibly responds that the COSE definition of "agriculture" includes silviculture and that silviculture is considered in the Plan as a subset of agriculture, except in those instances in which some external factor requires a distinction. For example, Objective 5.5, "Agricultural and Silvicultural Practices," and its implementing policies recognize that agriculture and silviculture have distinct best management practices. It is not unreasonable for the County to interpret 2003 COSE Policy 3.1.2 as permitting silvicultural uses in conservation areas within the constraints applied to agricultural uses, where the COSE definition of "agriculture" includes silviculture. As to residential development and its concomitant common water supply and septic systems, it is evident from the FLUE Policies cited by the Jonesville Petitioners, as well as 2003 FLUE Policies 1.3.1e and 6.2.11 and 2002 COSE Policies 3.6.5, 4.10.3.3, and 4.10.4 to 4.10.6, that the Plan will allow for residential development of the least environmentally sensitive portion of a strategic ecosystems property by means of clustering, gross residential density limits, transfers of density, and other design techniques intended to protect ecosystems and private property rights. There is no inconsistency with 2003 COSE Policy 3.1.2 because that policy does not purport to contain the exclusive list of uses allowed in conservation areas, as indicated by its own text and that of the very next policy, 2003 COSE Policy 3.1.3: Primary and secondary cConservation areas shall be developed only in a manner consistent with protection of the ecological integrity of natural resources, and in accordance with standards which are outlined subsequently in this Element. The COSE Definitions provide the following meaning for the term "development activity": Any dredging, filling, excavation, construction of new structures, expansion of existing structures, installation of utilities, roads, personal wireless service facilities, stormwater management systems, septic tanks, bulkheading, land clearing, tree cutting, mechanized vegetation removal and the disposal of solid or liquid waste. Clearly, 2003 COSE Policy 3.1.2 lists certain uses that "generally shall be permitted," but when read in context with other Plan provisions, does not necessarily forbid residential development on certain properties defined as conservation areas. In summary, it is at least fairly debatable that the County appropriately responded to the Data and Analysis by its policies affecting agricultural uses and their impact on conservation. The alleged internal consistencies in these policies were not demonstrated beyond fair debate. Level of Service 2003 Transportation Policy 1.1.2 and Capital Improvements Policy 1.2.4 raise the level of service ("LOS") for rural collector roads from LOS D in the 1991 Plan to LOS C, which is the standard recommended by the Florida Department of Transportation for rural collector roads. The McSherry Petitioners challenged this amendment because the 2002 Plan Update had upgraded the rural collector roads to LOS B. However, the proper point of comparison is from the 1991 Plan to the 2003 Amendments. Further, the evidence produced at hearing did not demonstrate that a higher LOS than C is required for protection of the state or county transportation network. It is at least fairly debatable that the Amendments regarding the LOS for rural collector roads were adequately supported by data and analysis. Conclusion It is found that, as to the 2003 Amendments in their entirety, the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the 2003 Alachua County Amendments to be "in compliance." DONE AND ENTERED this 18th day of October, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2004.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Pioneer Community Development District (Petition). The local public hearing was for purposes of gathering information in anticipation of quasi-legislative rulemaking by FLWAC.2
Findings Of Fact The CORPORATION is a private electronics research, development, and production firm invited by the Osceola County Industrial Development Authority (hereinafter "AUTHORITY") to locate an expanded industrial facility (hereinafter "Project") in Osceola County (Petitioner's Exhibit No. 3). On February 10, 1978, the AUTHORITY, pursuant to official resolution, issued to the CORPORATION an inducement letter which was accepted by the CORPORATION. The letter contained, inter alia, the following proposal by the AUTHORITY: The AUTHORITY would issue industrial revenue bonds in an amount not to exceed $3,300,000.00 to pay the costs of acquisition and construction of the Project; The AUTHORITY would acquire fee simple title to the Project site; Prior to delivery of the bonds, the AUTHORITY and the CORPORATION would enter into an Agreement of Sale under the terms of which the Project would be sold by the AUTHORITY to the CORPORATION "on a basis which . . . [would] provide for the payment in full of the bonds and interest thereon" and would reim- burse the AUTHORITY for all expenditures by it in connection with the acquisition and construction of the Project: The AUTHORITY would enter into a Mortgage and Indenture of Trust which would pledge the Agreement of Sale and the amounts due there- under to the trustee for the benefit of the bond holders (Petitioner's Exhibit No. 3). Pursuant to the provisions of the inducement letter, the AUTHORITY entered into an Agreement for Sale with the CORPORATION on January 1, 1979. The Agreement for Sale (the tax of which is at issue here) imposed, inter alia, the following obligations upon the parties: The AUTHORITY would deliver the deed to the Project site into escrow, for ultimate delivery to the CORPORATION; In payment of the purchase price of the Project, the CORPORATION would execute and deliver a Promissory Note, in the amount and form specified, to the trustee as the assignee of the AUTHORITY under the Mortgage and Indenture of Trust. The CORPORATION agreed to unconditionally "make prompt payment of all amounts payable on the note when due" (Page iv-2, Petitioner's Exhibit No. 3). The Promissory Note, as prescribed in detail by the Agreement of Sale, was to be issued "in evidence of the company's payment obligation contained in Section 4.2 of the Agreement of Sale . . . ." (Page A-5, Petitioner's Exhibit No. 3) The AUTHORITY would issue $3,000,000.00, in aggregate principal amount, of industrial development revenue bonds to finance the cost of acquiring and constructing the Project. (Petitioner's Exhibit No. 3) The Agreement of Sale further provided, in pertinent part, as follows: "[That] the Bonds are to be issued under and secured by the Indenture pursuant to which the AUTHORITY'S interest in this Agree- ment and the Note will be assigned to the Trustee and all revenues received by the AUTHORITY in connection with the ownership and sale of the Project will be assigned to the Trustee and the Project will be mortgaged to the Trustee all as security for the pay- ment of the principal of and interest on the Bonds." (Emphasis supplied) (Page II-2, Petitioner's Exhibit No. 3) The AUTHORITY repeatedly disclaimed any assumption by it of a general obligation to pay in connection with the execution of the Sales Agreement and issuance of the bonds; "Notwithstanding anything herein contained to the contrary, any obligation the AUTHORITY may hereby incur for the payment of money shall not be a general debt on its part but shall be payable solely from proceeds derived from this Agreement and the Note, the sale of the Bonds, the condemnation awards as herein described and any other revenues derived from its ownership of the Project and Other Improvements." Id. (Emphasis supplied) Contemporaneously with, and pursuant to the execution of the Agreement of Sale, the CORPORATION executed a Promissory Note, dated January 1, 1979, in the principal amount of $3,000,000.00, together with interest, payable to the order of the AUTHORITY. The Note indicated payment of principal and interest had been irrevocably assigned by the AUTHORITY to the Trustee pursuant to a Mortgage and Indenture of Trust, dated January 1, 1979, which was also executed in connection with the issuance of the Bonds. (Petitioner's Exhibit No. 3) Pursuant to the inducement letter and the Agreement of Sale, the AUTHORITY acquired the Project site property on January 31, 1979. (Petitioner's Exhibit No. 2) On February 1, 1979, the various instruments involved with the issuance of the Bonds were recorded with the Clerk of the Circuit Court, Osceola County, Florida. The CORPORATION paid, under protest, documentary stamp tax in the amount of $4,500.00 and intangible personal property tax in the amount of $6,000.00 on the Agreement of Sale. No state tax was imposed upon or paid on the Promissory Note executed by the CORPORATION to the AUTHORITY. (Petitioner's Exhibit No. 3, Stipulation of Counsel)
Recommendation Conclusion: The Agreement of Sale evidences a private entity's obligation to repay borrowed money and secures repayment of such money solely from the sale and construction of the proposed industrial project, and is exempt, by virtue of Section 159.31, supra, from state docu- mentary and intangible personal property taxes. Recommendation: That the Petitioner's application for refund be APPROVED.
