The Issue The issues in this case are: (1) whether City of Miami Ordinance 12911, which amends the Future Land Use Map (FLUM) of the City of Miami Comprehensive Neighborhood Plan (MCNP), is a small-scale development amendment, as defined by Section 163.3187(1)(c), Florida Statutes; and (2) whether Ordinance 12911 is "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. (Statutes refer to the 2007 codification.)
Findings Of Fact Based on all of the evidence, the following facts are determined: The Property Subject to the FLUM Amendment TRG-MH Venture, LTD. (TRG-MH), is a Florida limited partnership formed for the purpose of purchasing and developing a parcel of property in the southeast corner of a larger, 40- acre parcel owned by Mercy Hospital, Inc. (Mercy). TRG-MH and Mercy have executed a purchase and sale agreement for this corner parcel, which is located at approximately 3663 South Bayshore Drive in the Coconut Grove area of Miami, Florida (the Site). TRG-MH hired an architectural firm, Arquitectonica, to design on the Site a proposed residential development named 300 Grove Bay Residences (the Project). The Site, which currently serves as a paved parking lot for Mercy Hospital employees, measures 6.72 acres. The Site is abutted on the north, northwest, and northeast by the rest of the 40-acre parcel owned by Mercy and used for its hospital, professional offices, and patient and visitor parking. The tallest of these buildings is 146 feet. To the north of Mercy's property and medical complex is another 30-plus acre parcel owned by the Catholic Diocese of Miami and used for La Salle High School and a religious facility, Ermita de la Caridad. Abutting the northern boundary of the La Salle High School property is Vizcaya Museum and Gardens. To the west of the Site are a small convent, an administration building, and a modest-sized assisted living facility. To the west of these buildings is South Bayshore Drive, which is a four-lane road. Single-family residential neighborhoods are west of South Bayshore Drive. The Site is abutted on the southwest, south, southeast and east by Biscayne Bay. Grove Isle, a three-building, 18- story condominium/hotel/marina complex, is located on a small, man-made island (Fair Isle) in the Bay to the south of the Site. It is located approximately 1,300 feet from the Site and is separated from the Site by Bay water. Grove Isle has a future land use designation of Medium Density Multifamily Residential (M/D Residential) and is zoned Medium-Density Residential (R-3). However, Grove Isle is a legal nonconformity because it exceeds the densities allowed in M/D Residential and R-3. To the southwest of the Site, but separated from the Site by Bay water, are single-family and medium-density dwellings, including several multifamily structures. Petitioners Bloch and Steen reside in this neighborhood. No property zoned single-family residential (R-1) abuts the Site. Currently a paved parking lot, the Site has no archeological, environmental, or historical significance. Miami-Dade County had designated all of the City as an "Urban Infill Area." This designation is made in the County's Comprehensive Plan and is implemented in Policy LU-1.1.11 of the Future Lane Use Element (FLUE) of the City's Comprehensive Neighborhood Plan. The Parties The Vizcayans, Inc. (The Vizcayans), is a not-for- profit Florida corporation of volunteer members and a paid staff consisting of: an executive director, a membership director, and a controller. The purpose of the organization is to support the Vizcaya Museum and Gardens (Vizcaya), a publicly-owned and operated museum, through contributions and fundraising events. The Vizcayans' office at 3251 South Miami Avenue is located on the grounds of Vizcaya. The Vizcayans submitted comments in opposition to the proposed FLUM Amendment and appeared in person and through lawyers at the City Commission hearings. The Respondent and Intervenors stipulated that The Vizcayans have standing as affected persons under Sections 163.3187(3)(a) and 163.3184(1)(b), Florida Statutes, to challenge the small-scale development amendment in this proceeding based on allegations that The Vizcayans operate a business in the City. Miami-Dade County owns Vizcaya. By contract, The Vizcayans provides funds annually to Miami-Dade County for use in maintaining Vizcaya's properties and conducting educational programs. Any funds in excess of those owed to the County under the contract are used to pay staff and host fundraisers or are invested for future use. Vizcaya is governed by the County through the Vizcaya Museum and Gardens Trust, which is an agency of Miami-Dade County. Jason Bloch and Constance Steen reside in the City and own properties to the southwest of the Site. Glencoe is a not- for-profit corporation of homeowners in the Glencoe neighborhood to the southwest of the Site. Mr. Bloch formed the corporation during the pendency of the application proceedings for the primary purpose of opposing the proposed development of the Site. Bloch, Steen, and Glencoe submitted comments in opposition to the proposed FLUM amendment. Grove Isle is a not-for-profit Florida corporation of condominium owners. Grove Isle submitted comments in opposition to the proposed FLUM amendment. The City and Intervenors stipulated to Grove Isle's standing in these proceedings. The City is a political subdivision of the State of Florida. The City adopted its Comprehensive Neighborhood Plan, including its FLUM, in 1989. The Comprehensive Plan and the FLUM have been amended from time to time as allowed by law. TRG-MH is a joint venture limited partnership. Its direct and indirect participants include Ocean Land Equities, Ltd., and The Related Group. TRG-MH contracted to purchase the Site from Mercy and applied to the City for the FLUM Amendment at issue in this proceeding. TRG-MH also submitted applications for a change of zoning and MUSP on the Site. The zoning and MUSP applications, and the resulting City ordinance and resolution arising from their approval, are not at issue in this proceeding. Mercy is a not-for-profit Florida corporation that owns and operates Mercy Hospital. Mercy has contracted to sell the Site to TRG-MH. The FLUM Amendment In June 2007, TRG-MH applied to the City for a small- scale development amendment to change the Site's land use designation on the City's Future Land Use Map (FLUM) from Major Institutional, Public Facilities, Transportation and Utilities (M/I) to High Density Multifamily Residential (H/D). TRG-MH submitted its application concurrently with its applications for a zoning change from G/I to R-4 and for a MUSP. According to the FLUM Amendment application, TRG-MH was seeking a map amendment for a 6.723-acre parcel of real property. With its FLUM Amendment application, TRG-MH submitted a survey prepared and certified by surveyors Fortin, Leavy & Skiles. The survey depicted: the Site, as a parcel with a "net lot area" of 6.723 acres; a Proposed Road, measuring 1.39 acres, that wrapped around the Site on its west and north sides (the Perimeter Road); and a Private Road, also known as Tract "C" or Halissee Street, measuring .95 acres, which accesses the Site and Perimeter Road from South Bayshore Drive. Accompanying the survey was a legal description for the Site, which included a description for the proposed new Perimeter Road abutting the Site. The legal description covered an area comprising 8.11 acres. Also accompanying the application was a traffic analysis showing the impact to existing road networks of traffic resulting from the proposed MUSP application, which sought to build 300 residential units on property currently having no existing residential units. TRG-MH's applications were reviewed by the City's Planning Department and its Planning Advisory Board (PAB). The City's Planning Department recommended approval of the land use designation change. The PAB's 3-3 tie vote operated as to deny the request for a change of the land use designation recommendation. On April 26, 2007, the City Commission voted to approve the FLUM amendment application and, with modifications, the accompanying zoning and MUSP applications. (The City Commission approved the zoning change and MUSP subject to the condition that the size and scale of the Project be reduced by 25 percent across the board. Thus, for example, the height of the tallest of the three condominium buildings was reduced from approximately 411 feet to 310 feet.) The FLUM change was adopted by Ordinance 12911, which the Mayor signed on May 7, 2007. Ordinance 12911 amended the FLUM by changing the land use designation "for the property located at approximately 3663 South Miami Avenue, Miami, Florida, more particularly described in Exhibit A attached and incorporated." Exhibit A to the ordinance was the legal description included on the Fortin, Leavy, Skiles survey. The section of the MCNP entitled "Interpretation of the Future Land Use Plan Map" describes the various future land use categories in the Plan. It describes the Major Institutional future land use category as follows: Major Institutional Public Facilities, Transportation and Utilities: Areas designated as "Major Institutional, Public Facilities, Transportation and Utilities" allow facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious or educational activities, and major transportation facilities and public utilities. Residential facilities ancillary to these uses are allowed to a maximum density equivalent to "High Density Multifamily Residential" subject to the same limiting conditions. Miami Comprehensive Neighborhood Plan (MCNP) at 21 (June 2006). The same section describes the H/D Residential, in pertinent part, as follows: Areas designated as "High Density Multifamily Residential" allow residential structures to a maximum density of 150 dwelling units per acre, subject to the detailed provisions of the applicable land development regulations and the maintenance of required levels of service for facilities and services included in the City's adopted concurrency management requirements. MCNP at 20 (June 2006). (By way of comparison, M/D Residential is described similarly except that the maximum density is 65 dwelling units per acre.) According to the MCNP, the FLUM land use designations "are arranged following the 'pyramid concept' of cumulative inclusion, whereby subsequent categories are inclusive of those listed previously, except as otherwise noted." Ordinance 12911 was not reviewed by the Department of Community Affairs (DCA), as required for text changes and large- scale FLUM changes to a comprehensive plan. On June 4 and 6, 2007, Petitioners filed their petitions challenging the FLUM Amendment. Generally, the Petitioners alleged that the FLUM Amendment did not qualify for treatment as a "small-scale" development amendment; was internally inconsistent with other provisions of the City's Comprehensive Neighborhood Plan; was not supported by adequate data and analysis; and was not "in compliance" with Florida's Growth Management Act and its implementing regulations. Scale of the FLUM Amendment A small-scale development amendment may be adopted if the "proposed amendment involves a use of 10 acres or fewer." § 163.3187(1)(c)(1), Fla. Stat. According to the survey and architectural plans on file with the City, the "net lot area" of the Site measures 6.72 acres. The City Zoning Code defines "net lot area" as "[t]he total area within the lot lines excluding any street rights-of- way or other required dedications." § 2502, City Zoning Code. In determining how large (in square feet of floor area) the planned Project could be, the architects were permitted, under the City's zoning regulations, to multiply the "floor area ratio" (FAR) for the High Density Multifamily Residential zoning classification by an area larger than the "net lot area." See § 401, City Zoning Code. The Zoning Code allows the maximum square footage to be calculated using the Site's "gross lot area." Id. The City Zoning Code defines "gross lot area," in pertinent part, as "[t]he net area of the lot, as defined herein, plus half of adjoining street rights-of-way and seventy (70) feet of any other public open space such as parks, lakes, rivers, bays, public transit right-of-way and the like." § 2502, City Zoning Code. If the "gross lot area" to be used to calculate the maximum square footage involves properties under different ownership, either the owners must apply jointly for a MUSP, or they must enter a covenant-in-lieu of unity of title. Properties joined by a covenant-in-lieu of unity of title need not have the same land use designation or zoning classification. If a covenant-in-lieu of unity of title is required, it need not be submitted to the City until building permits are sought. At present, no covenant-in-lieu of unity of title has been prepared or executed for the Site. The "gross lot area" used to calculate the Project's maximum square footage of floor area measured 11.44 acres. Thus, the Petitioners argued that the FLUM Amendment "involved a use" of more than 10 acres. But the application requested a land use designation change on only 6.72 acres of land. Because High-Density Multifamily Residential use will not be made of the proposed Perimeter Road, the access road known as Halissee Street, or the proposed Bay Walk, a land use designation change was not required for that acreage. Indeed, according to the amended FLUM, there is no land use designation applied to Halissee or to the northern part of the Perimeter Road. Moreover, use of Halissee Street, the Perimeter Road, and the Bay Walk is not exclusive to the 6.72 acres but will remain shared with Mercy Hospital, its patients and employees, as well as with the public. The Petitioners attempted to prove that a marina was planned to serve the development, which would involve a total use of more than ten acres for residential purposes. Even if a marina was initially contemplated, the application on file with the City does not include one, and there are no approved plans for a marina to be incorporated into the proposed residential development. No marina is required to be developed in connection with the 300 Grove Bay project. Moreover, there was unrebutted evidence that it is highly unlikely that a marina would ever be permitted under the statutes now regulating Biscayne Bay. There is no evidentiary support for including any part of Biscayne Bay in the acreage subject to the small-scale FLUM Amendment because of a possible marina so as to support the Petitioners' claim that Ordinance 12911 should not have been processed as a small-scale amendment. Suitability and Compatibility of FLUM Amendment The Site is a parking lot. It is not environmentally sensitive and has no significant natural or archeological resources that would make it unsuitable for High Density Multifamily Residential future land use. Major Institutional accommodates the Vizcaya Museum and Gardens and the Mercy Hospital complex, which are compatible with and actually part of Coconut Grove. However, as pointed out by the City and the Intervenors, Major Institutional also allows future land uses that could be less compatible with the surrounding land uses, including the Vizcaya Museum and Gardens and the residential neighborhoods of Coconut Grove. While a lower density residential future land use would be appropriate and compatible with the surrounding uses, the issue in this case is the density allowed by H/D Residential--up to 150 residential units per acre, which Petitioners contend is incompatible with the surrounding land uses and inconsistent with previous efforts to protect Vizcaya and Coconut Grove from the intrusion of high- density residential development. The Petitioners also contend that the FLUM Amendment is not suitable on the bayfront. Suitability on the Bayfront The Petitioners contend that H/D Residential is not suitable on the bayfront for reasons related mostly to aesthetics and views. While it certainly would be possible and reasonable for a community to decide not to allow dense and intense development on significant water bodies, it was not proven by a preponderance of the evidence that the City has done so, or that H/D Residential is unsuitable on the Site for that reason. 2005 Evaluation and Appraisal Report The City's 2005 Evaluation and Appraisal Report ("2005 EAR") focused on two citywide issues relevant here: (1) the preservation and enhancement of historic and similar resources; and (2) neighborhood integrity and the need to protect existing neighborhoods from incompatible development. Vizcaya Museum Gardens Industrialist James Deering built Vizcaya in 1916 as a winter home. The land Deering purchased in the early 1900s was developed into a 180-acre estate that included his Mediterranean-style home, Italianate gardens, farms, orchards, and lagoons. The mansion and gardens were designed by three well-known architects and designers and constructed using local materials. When Deering died nine years later in 1925, Vizcaya was left to his heirs, who eventually sold the south gardens and western agricultural fields to the Catholic Diocese. The southern acreage (which included the Site) was later developed into a church (Ermita de la Caridad), a school (La Salle), and medical and hospital facilities (Mercy). The Diocese sold the western acreage, which was eventually developed into single- family-home subdivisions. In the 1950s, the Deering heirs sold the remaining property, consisting of the mansion, gardens, and farm buildings, to Dade County. In 1952, Dade County opened Vizcaya to the public. Since then, the County has operated Vizcaya as a museum, which has welcomed thousands of visitors annually and is a popular site for tourists, social functions, and photo shoots. The Vizcaya mansion and gardens have historical, architectural, and botanical significance. The mansion is an "architectural masterpiece" and an "outstanding example of Italian Renaissance Revival architecture." Vizcaya has been on the National Register of Historical Places since 1977; it was designated as a City Heritage Conservation District in 1984; and, in 1994, it was designated a National Historical Landmark-- one of only three in Miami-Dade County. The southernmost part of Vizcaya's gardens is approximately 1,600 feet from the FLUM Amendment Site, and the mansion is approximately 2,300 feet from the Site. For the specific purpose of objecting to the 300 Grove Bay project, The Vizcayans commissioned the Vizcaya Viewshed Impact Assessment, which is referred to as the "balloon" study, and the Vizcaya View Corridor Study. According to the balloon study, the 300 Grove Bay condominiums would be visible from the balcony on the south side of the mansion. Although the balloon study was based on the original Project building heights and not re-done using the reduced heights in the zoning and MUSP approvals, the Petitioners' witnesses said that the Project would still be visible through the existing landscape, even at the reduced height. The Petitioners' witnesses opined that the development of 300 Grove Bay would "overpower and overshadow" the gardens on the south side of the mansion. No federal, state, or local statutes, rules or ordinances, including those relevant to this proceeding, protect the view corridors of Vizcaya's gardens. Coconut Grove The area known as Coconut Grove was settled in the late 1800s and was considered "off the beaten path" from the City which was incorporated in 1896. Coconut Grove was incorporated as a separate municipality in 1919, but in 1925 it was annexed to the City, as were five other municipalities. Petitioners' witnesses observed that Coconut Grove is the only one of these towns that has continued to retain a unique and recognizable character. Vizcaya and Mercy Hospital, including the parking lot site, are located in the northern area of Coconut Grove. Coconut Grove is primarily, but not entirely, a residential community. Coconut Grove has an active "downtown" business, commercial, and hotel district. The Petitioners maintained that the northern area of Coconut Grove is primarily single-family residential. However, it also includes a non- conforming high-density development (Grove Isle), medium-density residential, Mercy Hospital and its professional buildings, an assisted living facility, a school, a church, and governmental office buildings, as well as two museums (Vizcaya and the Museum of Science). A Coconut Grove Planning Study was commissioned and printed in 1974, but the City never adopted it; therefore, it has no official status. The Coconut Grove Neighborhood Conservation District In 2005, the City adopted by ordinance the Coconut Grove Neighborhood Conservation District (NCD-3). See § 803.3, City Zoning Code. According to the Code, a Neighborhood Conservation District is an "umbrella land use designation overlay," which allows for the tailoring of a master plan or of design guidelines for any area that meets certain criteria. See § 800, City Zoning Code. The intent of the Coconut Grove Neighborhood Conservation District is to "[p]reserve the historic, heavily landscaped character of Coconut Grove's residential areas and enhance and protect Coconut Grove's natural features such as tree canopy and green space." § 803.1, City Zoning Code. NCD-3 does not specify the High-Density, Multifamily Residential (R-4) zoning classification. But that does not mean that NCD-3 does not allow R-4. NCD-3 is enabling legislation that imposes greater restrictions within a geographic "overlay" for the zoning classifications addressed in Section 803.3. So far, NCD-3 has not addressed G/I and R-4 but only Single-Family Residential (R-1) and Commercial Districts. See § 803.3, City Zoning Code. For that reason, the ordinance does not apply to the Site. The "Grovenor Ordinance" The so-called Grovenor Ordinance was the City's response in July 2004 to the construction of a high-density residential project on property in Coconut Grove zoned "G/I Government and Institutional." The Grovenor Ordinance amended subsection of Section 401 of the City's Zoning Code to provide in pertinent part: G/I Government and Institutional Intent and Scale: The government/institutional category allows the development of facilities for federal, state and local government activities, major public or private health, recreational, cultural, religious, or educational activities, major transportation facilities, public utilities, and public and private cemeteries. Uses ancillary to these uses are allowed to a maximum density and intensity equivalent to the least intense abutting zoning district, subject to the same limiting conditions. Intensity: For residential uses: As for the least intense abutting zoning district. . . . * * * Permitted Principal Uses: Governmental and institutional uses as described in the City of Miami Comprehensive Development Plan designation of "Major Institutional, Public Facilities, Transportation and Utilities", however for accessory non-governmental or institutional uses-only such uses as may be permitted as principal uses in the least intense abutting zoning district . . . . § 401, City Zoning Code. The Grovenor Ordinance applies to property that is zoned G/I. The City's and Intervenors' witnesses testified that it applies only if G/I-zoned property ceases to be used for governmental or institutional purposes and is used instead for residential purposes. However, from the language of the ordinance itself, it is beyond fair debate that it also applies to G/I-zoned property that is used both for government or institutional uses and for ancillary residential uses. Clearly, without a FLUM change to a higher-density residential zoning category, in Coconut Grove the residential use on the Site would be restricted to the zoning classification of the "least intense abutting zoning district." Since it pertains to zoning, the Grovenor Ordinance does not directly apply to the issue of whether a FLUM amendment is "in compliance." However, it has some bearing on the proper interpretation and application of the "pyramid concept" of the MCNP's future land use designations, which is important to the issues for determination in this case. The Pyramid Concept The City and the Intervenors rely heavily on their interpretation of the MCNP's pyramid concept of cumulative future land use designations to support the FLUM Amendment in this case. According to them, the FLUM Amendment is compatible with surrounding land uses because high-density multi-family residential use already is a permitted use as a matter of right for land designated "Major Institutional." Similarly, they maintain that, under the "pyramid" concept, high-density multi- family residential use is permitted as a matter of right in all of the commercially designated land in Coconut Grove. But it is beyond fair debate that their interpretation of the "pyramid concept" is incorrect. As indicated, the "'pyramid concept' of cumulative inclusion" applies "except as otherwise noted." In the Major Institutional future land use category, it is noted that residential facilities with densities equivalent to "High Density Multifamily Residential" (i.e., up to 150 units per acre) are permitted only if "ancillary" to the listed major institutional uses. Similarly, in the General Commercial future land use category, it is noted that high-density residential uses "are allowed by Special Exception only, upon finding that the proposed site's proximity to other residentially zoned property makes it a logical extension or continuation of existing residential development and that adequate services and amenities exist in the adjacent area to accommodate the needs of potential residents." If the "pyramid concept" authorized high- density multi-family residential use as a matter of right on land designated either Major Institutional or General Commercial, there would be no reason to limit those uses by notation. Under the correct interpretation of the "pyramid concept" in the MCNP, free-standing high-density multi-family residential use of up to 150 units per acre is not already permitted as of right in either the Major Institutional or the General Commercial land use categories. Compatibility Notwithstanding the correct interpretation of the "pyramid concept" in the MCNP, the Petitioners failed to prove by a preponderance of the evidence that High Density Multi Family Residential future land use on the Site is incompatible with the surrounding uses or is inappropriate. The lower density residential and other less intense future land uses in the MCNP are buffered from the Site by Biscayne Bay and by Medium Density Multifamily Residential future land use. Vizcaya is buffered from the Site by Mercy Hospital and related medical facilities and by La Salle High School. The compatibility of a specific density of residential development on the Site with less dense residential use in Coconut Grove and with Vizcaya, including issues regarding building height and intrusion into Vizcaya's view corridors, can be addressed through zoning and MUSP proceedings. Data and Analysis Data and analysis is another matter. Because of their incorrect interpretation of the "pyramid concept" in the MCNP, the City and the Intervenors took the position that the FLUM Amendment constitutes "down-planning" and that the City was not required to perform the same level of analysis as it would have if the amendment sought a designation that permitted uses of greater impact, density, and/or intensity. The experts disagreed on whether "down-planning" is a concept in land use planning that can eliminate or minimize the requirement for data and analysis. In any event, the FLUM Amendment in this case could not be characterized as "down- planning." See Findings 57-59, supra. The MCNP's pyramid concept does not dispense with the need for data and analysis, and the data and analysis in this case was minimal and inadequate. The primary data and analysis in this case was the "Analysis for Land Use Change Request" (Analysis) that resulted from the City staff's review. After identifying the proposed land use designation and the uses permitted on it the Analysis recommended "Approval" of the FLUM Amendment and made four findings in support of "the position that the existing land use pattern in this neighborhood should be changed. These findings are as follows: It is found that the subject property is part of the Mercy Hospital and do [sic] not front South Miami Avenue. It is found that the "Major Institutional, Public Facilities, Transportation & Utilities" category allows 150 residential units per acre and the requested "High Density Multifamily Residential" designation will allow a maximum density of 150 residential units per acre. It is found that the requested change to "High-Density Multifamily Residential" designation will allow greater flexibility in developing the property at the above described location and therefore should be changed as part of the MUSP. It is found that MCNP Goal LU-1 maintains a land use pattern that (1) protects and enhances the quality of life in the city's residential neighborhoods, and (5) promotes the efficient use of land and minimizes land use conflicts. Id. (Emphasis in original.) As to the City’s third finding, a particular developer's flexibility is irrelevant to the determination of whether the land use change is consistent with the MCNP. To the extent that flexibility in general could be relevant to the inquiry, the finding was incorrect. While allowing a free- standing high-density residential project that would not otherwise be possible, the FLUM Amendment eliminates all of the non-residential uses permitted within the "Major Institutional" category. The second finding was based on the City's incorrect interpretation of the "pyramid concept" of the MCNP, which led the City to wrongly equate a primary use with an ancillary use and to simply assume no population increase would result from the FLUM Amendment, and that the FLUM Amendment would result in "down-planning." Attached to the City's Analysis was a separate "Concurrency Management Analysis," which addressed in summary form the data and analysis generated by the applicant and by the City's staff to address the "impact of [the] proposed amendment to land use map within a transportation corridor." The "Concurrency Management Analysis" also was predicated on the assumption that the FLUM change to HD Residential would not increase population. Essentially, it assumed without any data or analysis that infrastructure was available for 1,008 people living on the Site, even though the Site is being used as a parking lot at this time. This data and analysis was inadequate to support the FLUM Amendment. As to transportation, there was additional evidence of a traffic analysis performed by the City in support of the Project’s MUSP. This MUSP traffic analysis utilized a proper starting point of zero population on the Site at this time. It then projected the impact of the addition of 300 units. This was more than the 225 units ultimately approved in the MUSP but did not analyze the much larger potential increases in traffic that would be allowed under the FLUM Amendment, which is not limited to 300 units. There also was no data or analysis to show that limiting the analysis to 300 units was reasonable. It also only looked two years into the future. The MUSP traffic analysis also did not address the 2005 EAR finding that Bayshore Drive will be at level of service F by year 2025, without even any development on the Site. In short, the MUSP traffic analysis was inadequate to support the FLUM Amendment. The City and Intervenor took the position that the designation of the entire City as an urban infill area meant that every parcel is appropriate for high-density multi-family residential development. This is not correct. It is still necessary to look at comprehensive plan to determine which areas are appropriate for that kind of future land use and to have data and analysis to support it. See Payne et al. v. City of Miami et al., 32 Fla. L. Weekly D1885, *10-13 (Fla. 3d DCA Aug. 8, 2007) (on motion for rehearing). For these reasons, the Petitioners proved by a preponderance of the evidence that the data and analysis supporting the FLUM Amendment were inadequate. Inconsistency with City's Comprehensive Plan The Petitioners failed to prove beyond fair debate that the FLUM Amendment is inconsistent with any MCNP goals, objectives, or policies. State Comprehensive Plan Petitioners did not prove that the FLUM Amendment at issue is inconsistent with the State Comprehensive Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order that the FLUM Amendment adopted by City of Miami Ordinance 12911 is not "in compliance," as defined by Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 10th day of July, 2008, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2008. COPIES FURNISHED: Barbara Leighty, Clerk Transportation and Economic Development Policy Unit The Capitol, Room 1801 Tallahassee, Florida 32399-0001 Jason Gonzalez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-0001 Jorge L. Fernandez, City Attorney City of Miami Miami Riverside Center, Suite 945 444 Southwest 2nd Avenue Miami, Florida 33130-1910 Patrick J. Goggins, Esquire Patrick J. Goggins, P.A. Sun Trust Building, Suite 850 777 Brickell Avenue Miami, Florida 33131-2811 John Charles Lukacs, Esquire John C. Lukacs, P.A. 201 Sevilla Avenue, Suite 305 Coral Gables, Florida 33134-6616 H. Ray Allen, II, Esquire Carlton Fields, P.A. Post Office Box 3239 Tampa, Florida 33601-3239 Stephen J. Darmody, Esquire Shook, Hardy & Bacon, LLP Miami Center - Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131-4339 Lewis W. Fishman, Esquire Lewis W. Fishman, P.A. Two Datran Center, Suite 1121 9130 South Dadeland Boulevard Miami, Florida 33156-7848 John K. Shubin, Esquire Shubin & Bass, P.A. 46 Southwest First Street, Third Floor Miami, Florida 33130-1610
The Issue Whether Comprehensive Plan Amendment 96-2 adopted by the County on September 24, 1996, is in compliance.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact have been determined: Background The parties Respondent, Sumter County (County), is a local government subject to the comprehensive land use planning requirements of Chapter 163, Florida Statutes. Respondent, Department of Community Affairs (DCA), is the state land planning agency charged with the responsibility of reviewing comprehensive land use plans and amendments made thereto pursuant to Part II, Chapter 163, Florida Statutes. Petitioners, T. D. Farnsworth, Russell E. Weir, Jack Burchill, Linda Latham, and Terry Forsman, own property and reside within Sumter County. Petitioner, Sumter Citizens Against Irresponsible Development, Inc. (SCAID), is an organization founded by a small group of citizens for the purposes of preserving the "rural lifestyle" of the county, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. Farnsworth is president of the group. By stipulation of the parties, Petitioners are affected persons within the meaning of the law and have standing to bring this action. Intervenor, Pringle Communities, Inc. (Pringle), is a Florida corporation and the potential developer of the subject property of this proceeding. Pringle submitted oral and written comments during the plan amendment review and adoption proceeding and thus has standing as an affected person to participate in this proceeding. The amendment On May 13, 1996, the County adopted plan amendment 96A01 by Ordinance No. 96-17. On November 7, 1996, the DCA published a Notice of Intent to find the amendment in compliance. Amendment 96A01 amended the Sumter County Comprehensive Plan's (the Plan) Future Land Use Map (FLUM) to revise the land use designations on approximately 510 acres of land. Specifically, the plan amendment converted the land use designation for the Pringle parcel from an Agricultural to a Planned Unit Development (PUD) land use, limited to 499 residential units. The plan amendment also revised the FLUM by extending the Urban Expansion Area to include the Pringle parcel and an adjacent parcel immediately to the north of the Pringle parcel, which had apparently been inadvertently omitted from the Urban Expansion Area in the final draft of the Plan. The data and analysis accompanying the amendment included a compatibility and land use suitability analysis, a soils analysis, an evaluation of urban sprawl related to issues, a preliminary environmental assessment, a population and housing analysis, a concurrency analysis, building permit information and analysis, and an analysis to ensure that the amendment was consistent with the adopted comprehensive plan. The data and analysis submitted up until the time the DCA issued its Notice of Intent to find amendment 96A01 in compliance, and at the final hearing, collectively demonstrate that the amendment is appropriate for the designated area. Is the Plan Amendment in Compliance? Petitioners have alleged the amendment is not in compliance for the following reasons: (a) the amendment fails to protect agricultural lands; (b) the amendment encourages urban sprawl; (c) the future land use map fails to reflect the goals, objectives, and policies of the Plan; (d) there is no demonstrated need for 510 acres of PUD land use; (e) the amendment does not demonstrate compatibility with adjacent agricultural and rural residential land uses; (f) the amendment does not provide for concurrency for adopted levels of services pursuant to the Plan; (g) the amendment does not comply with stormwater and drainage requirements of the Plan; (h) the amendment fails to satisfy the capital improvements element of the Plan; and (i) affordable housing needs are not met. These contentions will be discussed separately below. Protection of agricultural lands Under the amendment, 510 acres of land designated on the FLUM as agricultural land use will be converted to urban type uses. Petitioners contend that the amendment fails to protect agricultural land as required by Plan Objective 7.1.2 and Rule 9J-5.006(5)(g)5., Florida Administrative Code. The cited objective "establishes agriculture as the primary use outside of the urban expansion area" and "insure(s) retention of agricultural activities." If the plan amendment fails to adequately protect adjacent agricultural areas, the cited rule considers this failure to be one of the thirteen primary indicators that the amendment does not discourage the proliferation of urban sprawl. The rule and objective do not prohibit the conversion of agricultural lands to urban uses. Indeed, Plan Objective 7.1.2 and the corresponding policies allow for the conversion of suitable agricultural lands as the need for additional urban land is demonstrated. The policies also require that the conversion be done in a well planned, orderly, and logical fashion based on need and suitability. The agricultural lands being converted to urban land uses as a result of the plan amendment are appropriate for conversion. The Plan designates the Pringle parcel as an area appropriate for urban development. This determination was based on an extensive analysis of various factors including soil suitability, environmental constraints, and other planning criteria such as proximity to existing urbanized areas. In fact, the Plan contains a series of maps which specifically locate agricultural areas appropriate for conversion to urban uses, and the Pringle parcel is located within such designated areas. The evidence establishes that the conversion of agricultural land contemplated by the plan amendment was justifiable because of the extent of urban development already existing in the area and the requirement within the Plan that infrastructure be in place concurrent with development. In addition, future populations will be directed away from the remaining agricultural lands throughout the County and to the development proposed by the plan amendment. The open space required by the PUD will also serve to buffer and ensure compatibility of land covered by the plan amendment and the adjacent agricultural and rural lands. Because Rule 9J-5.006(5)(g)5., Florida Administrative Code, deals exclusively with "adjacent" agricultural land, the conversion of any agricultural uses on the Pringle parcel is not relevant to the cited rule. The Plan requires the County to retain a minimum of ninety percent of its land area in rural (agriculture, timberland, and vacant) and conservation land use. The County has no "mining" zoning or land use designation, but includes mining as an agricultural use. Including the land covered by mining permits in the County, more than ninety percent of the County's land area is maintained in rural (agriculture, timberland, and vacant) and conservation land use, even after the adoption of the amendment. In view of the above, Petitioners have not shown to the exclusion of fair debate that the plan amendment fails to protect agricultural land, either on or adjacent to the Pringle parcel. Urban sprawl In the same vein, Petitioners contend that the amendment fails to discourage urban sprawl because it converts 510 acres of agricultural land to urban uses. In support of this contention, they cite a number of provisions within Chapter 9J-5, Florida Administrative Code, all dealing with urban sprawl, which have allegedly been violated. Petitioners also allege the multiplier for the plan amendment is in excess of 1.25, which is an indicator of urban sprawl, and no future public facilities and services are planned for the lands covered by the amendment prior to its adoption. The plan amendment includes an evaluation of urban sprawl. That evaluation references Plan Policy 7.1.2.5(a), which was adopted by the County specifically as a mechanism for discouraging urban sprawl. A review of that policy indicates that, for a PUD to be allowed in an agricultural land use area, it must score at least 50 points, applying a point system based on factors including, but not limited to, proximity to the urban expansion area, proximity to urban services, including water, sewer, and roads, and proximity to other services such as fire protection and emergency medical services. If a proposed amendment or PUD fails to score 50 points, it is deemed to encourage urban sprawl and would not be approved by the County. Amendment 96A01 scored 100 points, well in excess of the 50-point threshold. While the point system does not apply directly because the amendment alters the Urban Expansion Area to include the Pringle parcel, it is evidence that the amendment does not fail to discourage urban sprawl. In addition to satisfying Plan Policy 7.1.2.5.(a), the plan amendment is consistent with Future Land Use maps VII-18a and VII-18c, which are the future land use constrained area overlay and urban sprawl evaluation overlay, respectively. As the Plan data and analysis indicate, these maps were prepared for the purpose of directing urban development into areas most suitable for such development. Map VII-18a demonstrates that the land included in the plan amendment has only slight limitations in regard to urban sprawl. If the amendment allows a strip development, this is another of the thirteen primary indicators that an amendment may fail to discourage urban sprawl. The evidence shows, however, that the subject property is not a strip development because it is not a linear development that runs parallel to a highway. Finally, the PUD mixed land use category adopted by the plan amendment is a planning method specifically recognized by Rule 9J-5.006(5)(1), Florida Administrative Code, as a method of discouraging urban sprawl. Indeed, the rule provides in part that: mixed use development . . . will be recognized as [a method] of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Because the PUD adopted by the amendment is designed to provide a mix of land uses, the amendment does not fail to encourage an attractive and functional mix of uses. Given the above, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment encourages urban sprawl. Demonstrated need and adequate data Petitioners allege the plan amendment "fails to provide demonstrated need" as required by various provisions within Chapter 9J-5, Florida Administrative Code. They further allege amendment 96A01 "is not based upon adequate surveys, studies, or data regarding the amount of land needed to accommodate anticipated growth." Initially, it is noted that the data and analysis in the plan are not subject to the compliance review process. Section 163.3177(10)(e), Florida Statutes, authorizes the DCA in a compliance review to determine only if the plan or plan amendment is based on appropriate data and analysis and whether the data was collected in a professionally acceptable manner. Planning methodologies used in analysis of the data, such as the calculation of a multiplier, must also be prepared in a professionally acceptable manner. Demonstrated need is only a subset of one of the thirteen primary indicators that an amendment or plan may fail to discourage urban sprawl. Rule RJ-5.006(5)(g)1, Florida Administrative Code, lists as one of the thirteen indicators whether the amendment: [p]romotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. (Emphasis added) The thirteen primary indicators are evaluated as a whole, not as a "one strike and you're out" list, to determine one aspect of compliance -- whether the amendment fails to discourage the proliferation of urban sprawl. "Multipliers" are a planning tool generally utilized by professional planners to aid in determining the need for additional allowable densities. Multipliers are generally expressed as a percentage or ratio of the estimated population in a given time period compared with the total residential units allowed by the comprehensive plan. For example, a multiplier of 2.0 would mean that, over the particular planning time frame, there existed twice as many residential units allocated as the population projections estimated would be utilized. At hearing, Petitioners raised issues concerning the methodology used in calculating the County's residential land use allocation multiplier and contended (a) seasonal population and planned federal prison expansions contained within the approved Plan were in error and therefore should not be used to support the amendment; (b) the agricultural land use acreage should be included in the multiplier calculation; and (c) the PUD maximum allowable density of eight units per acre should be used to calculate the multiplier rather than the approved density of just under one unit per acre. The preparation of the multiplier in issue came as a result of the DCA's Objections, Recommendations, and Comments (ORC) report and preparation for the hearing in this matter. The ORC report recommended that the County provide data and analysis which demonstrated that the land use change requested in the plan amendment was based on the amount of additional land needed to accommodate the projected population. Based on historic data, the County utilized a multiplier which had been calculated in 1995 in Case No. 94-6974GM, judicial recognition of which was taken in this hearing. In that case, the multiplier depicted the allocation of residential land countywide. The multiplier was 1.87, which means that the County allocated residential land uses approximately eighty-seven percent above its demonstrated need for the planning period. The evidence shows that, in order to allow some degree of development flexibility, a local government will routinely allocate more land than is actually needed. Indeed, a multiplier of 1.87 is low when compared to the other multipliers found in compliance in adjacent local governments as well as in other local governments statewide. In an effort to provide a more accurate multiplier, prior to the hearing, utilizing data available when the amendment was adopted, the County recalculated the multiplier and determined the updated multiplier to be 1.3. The County's calculation of a multiplier excludes agricultural land from consideration, in order to protect agricultural lands as required by the Plan. In some rapidly urbanizing jurisdictions vacant land labeled agricultural or rural on a future land use map may simply be future development land. However, the County has as one of its primary land use goals to protect agricultural land. To include agricultural land use acreage in the multiplier calculation could lead to an under- allocation of density which would jeopardize agricultural land by encouraging development in the very areas the plan is designed to protect. The DCA has utilized multiplier calculations in other counties that do not include agricultural lands. Therefore, because of the unique situation of the County and its land use plan's emphasis on protecting agricultural land, in this case it is professionally acceptable to exclude agricultural land from the multiplier calculation. In the County, PUD is a land use category rather than merely a zoning category as in many other jurisdictions. The effect of that designation is to limit the density of the development by land use designation to 499 units. Any increase in the density or intensity of the development would require a land use plan amendment. Consequently, when calculating the multiplier, the density approved for this PUD (499 units) should be utilized rather than the PUD maximum allowable density of eight units per acre. Petitioners developed a multiplier of their own of 4.1. However, they failed to show that the County's multiplier was not developed in a professionally acceptable manner. Intervenor's marketing scheme for its residential developments is directed at persons moving to Florida from other states. Intervenor plans to use the same marketing scheme for the Pringle parcel, and most residents are not expected to be from the County. The proposed development, along with the Villages development in the northeast section of the County, which is subject to age restrictions which limit its availability to families, is a new type of development for the County. This new population was not taken into account in the original comprehensive plan which also had a low multiplier. Therefore, the need for residential allocation for this new population was not addressed. Between 1992 and 1996, the federal prison facility located near the Pringle property hired new employees, many of whom relocated from outside the area. However, the vast majority of these immigrants located outside of the County because of a lack of available appropriate housing. The federal prison facility is to be expanded in the near future, with the next phase to employ approximately 250 new employees. This expansion has already been funded by the federal government. Although the federal prison and its expansions were contemplated as part of the Plan adoption process, the impact of the federal prison and its expansions were not included in the population projections as calculated in the Plan. The seasonal population of the County was not included in the Plan's population projection. Rule 9J-5.005(2)(e), Florida Administrative Code, requires both resident and seasonal population estimates be used to determine population estimates for plan and plan amendment purposes. Therefore, the seasonal population estimate and the impact of the federal prison should be included in determining need. Given these considerations, Petitioners have not shown to the exclusion of fair debate that the plan amendment was not based on a demonstrated need, or was not adequately supported by data and analysis. Compatibility with adjacent agricultural lands Petitioners have also alleged the County has not demonstrated compatibility with adjacent agricultural and rural residential land uses. The Plan allows for the well planned conversion of agricultural lands in the County. One of the requirements of the Plan's PUD provisions is that PUD development be buffered from adjacent lands and contain open space. The purpose of this provision is to ensure compatibility. A review of the PUD application and Master Development Plan, both incorporated into the plan amendment, shows that the Pringle development will provide approximately 225 acres of open space. Much of this open space, as required by the Plan, will act as a buffer between the development and the adjacent agricultural and rural land uses. The project will also cluster its development, which serves to separate the more urban development from the adjacent agricultural and rural uses. In view of these considerations, it is found that Petitioners have not shown to the exclusion of fair debate that the plan amendment is incompatible with adjacent agricultural land uses. Level of services In their Petition, Petitioners assert that amendment 96A01 violates Plan Objective 7.1.6, Policy 7.1.6.1, Objective 8.1.1, and Policy 8.1.1.1, Rules 9J-5.005(3), 9J-5.011(2)c., and 9J-5.015(3)(b)1., Florida Administrative Code, and Section 187.201(16)(b)6., Florida Statutes, pertaining specifically or generally to levels of service for recreational facilities, schools, fire protection, emergency medical services, stormwater, and flooding. The stated policies and rules require adoption and adherence to specific levels of service prior to development of land. The amount of facilities required is based on population. Under the Plan, the County must take the necessary steps to insure the availability of these facilities. The development order in this case also requires the developer to provide for adequate public facilities. Petitioners offered no testimony, exhibits, or evidence regarding the following: Plan Objective 7.16, as alleged in paragraph 15.F. of their petition; Objectives 4.4.1, 4.5.1, and 4.5.2, and Policies 4.4.1.1, 4.4.1.2, 4.4.1.3, 4.5.1.2, and 4.5.2.1, as alleged in paragraph 15.G of their petition; Objective 8.1.1, as alleged in paragraph 15H of their petition; and Objective 1.3.5, as alleged in paragraph 15.I of their petition. Petitioners also specifically stated they are not contesting any issues regarding flooding. In view of this lack of presentation of evidence, Petitioners have failed to show to the exclusion of reasonable debate that the plan amendment is inconsistent with any of the above Plan Objectives and Policies.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order determining Plan Amendment 96-2 adopted by Sumter County by Ordinance Number 96-17 on September 24, 1996, to be in compliance. DONE AND ENTERED this 26th day of February, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1998. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jane M. Gordon Environmental and Land Use Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 T. Daniel Farnsworth 12364 County Road 223 Oxford, Florida 34484 Kathleen R. Fowler, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Felix M. Adams, Esquire 236 North Main Street Bushnell, Florida 33513-5928 Jimmy D. Crawford, Esquire Post Office Box 492460 Leesburg, Florida 34749-2460 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether Citrus County's (County's) small-scale development amendment CPA-09-16 adopted by Ordinance No. 2009- A07 on May 26, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner resides and owns property at 10662 West Halls River Road, Homasassa, Florida, in the southwestern part of the County. According to a County aerial map, the property appears to be 0.68 acres in size and is rectangular-shaped, with the eastern side fronting on the Homasassa River (River), while the western side adjoins West Halls River Road (also known as County Road 490A), a two-lane designated collector roadway for the County. See Intervenor's Exhibit 8. That road dead-ends a mile or so farther to the southwest in a subdivision known as Riverhaven. Petitioner has owned the property since April 1992. Intervenor, a limited liability corporation, acquired ownership of a 47.5-acre parcel in May 2007, which lies directly west-northwest of Petitioner's property and across West Halls River Road. In early 2009, it filed an application with the County seeking a change in the land use on 9.9 acres of the larger parcel from CL to RVP. The smaller parcel's address is 10565 West Halls River Road and is a short distance north of Petitioner's lot. The change in land use was requested because Intervenor intends to place a recreational vehicle (RV) park on the 9.9-acre parcel. On page 10-103 of the Plan's Future Land Use Element (FLUE), the CL land use is described in relevant part as follows: This land use category designates those areas having environmental characteristics that are sensitive to development and therefore should be protected. Residential development in this district is limited to a maximum of one dwelling unit per 20 acres and one unit per 40 acres in the Federal Emergency Management Agency's V-zone. On page 10-112 of the FLUE, the RVP land use is described in relevant part as follows: This category is intended to recognize existing Recreational Vehicle (RV) Parks and Campgrounds, as well as to provide for the location and development of new parks for recreational vehicles. Such parks are intended specifically to allow for temporary living accommodation for recreation, camping, or travel use. After the application was filed and reviewed by the County staff, a report was prepared by the then County Senior Planner, Dr. Pitts, on April 14, 2009, recommending that the application be approved. See Petitioner's Exhibit 5. The report noted that "this site is appropriate for some type of RV Park development subject to an appropriately designed master plan." Id. Although forty-nine RV units could potentially be placed on the parcel, the report noted that due to significant "environmental limitations of the area," the site "may not be able to be designed at maximum intensity for this land use district." Id. The "environmental limitations" are approximately 1.64 acres of wetlands that are located on four parts of the property, wetlands on neighboring properties, and "karst sensitivity." The report noted that these environmental issues would have to be addressed in a master plan to be submitted by the applicant before development. The matter was then favorably considered by the County's Planning and Development Review Board by a 4-1 vote on May 7, 2009. On May 26, 2009, the Board of County Commissioners (Board) conducted a public hearing on the application. By a 3-2 vote, the Board adopted Ordinance 2009-A07, which approved the change on the GFLUM. See Petitioner's Exhibit 2. Petitioner and Intervenor appeared at the hearing and submitted comments regarding the amendment. See County Exhibit 3. Accordingly, both are affected persons and have standing to participate in this matter. Because the size of the parcel was less than ten acres, the map change was not reviewed by the Department of Community Affairs. See § 163.3187(1)(c)1. and (3)(a), Fla. Stat. On June 24, 2009, Petitioner filed with DOAH his Petition challenging the small-scale development amendment. As summarized in the parties' Joint Prehearing Stipulation, Petitioner contends that the map change "is not consistent with [the County's] adopted comprehensive plan because such is incompatible with the character of the properties surrounding the subject property and because such is incompatible with [the] environmentally sensitive nature of the subject property and the properties surrounding the subject property." See Joint Prehearing Stipulation, pages 1-2. More specifically, Petitioner contends the map change is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8. The Subject Property Although its precise dimensions are not of record, from around 1952 until 1985, a golf course was located on a large tract of land west of West Halls River Road, where Intervenor's larger parcel of property is located. Currently, the larger parcel is vacant and undeveloped. The subject property (as well as the entire larger parcel) is classified as CL (Low Intensity Coastal and Lakes), which allows one dwelling unit per twenty acres. Because the property is in the coastal high hazard area (CHHA), the amendment allows five RV units per acre, or a total of forty-nine. In all likelihood, however, the number would be somewhat smaller due to "severe" environmental constraints discussed above. See Finding 5, supra. The new land use also allows a small amount of retail development to serve the RV customers. The 9.9-acre parcel surrounds a one-acre parcel that adjoins West Halls River Road, also owned by Intervenor, and carries a CLC (Coastal and Lakes Commercial) land use designation. A vested eighteen-unit RV park (Sunrise RV Park) has been located on the one-acre parcel since the late 1980s. Except for the small one-acre enclave, the property is bordered on three sides by vacant, unimproved property, all designated as CL. According to Petitioner, Sunrise RV Park has a small number of "dilapidated" trailers and "a bunch of junk stored on the front lawn." This was not disputed. The vacant lot directly south of the larger parcel, comprised mainly of wetlands, is owned by Glen Black, who objects to the map change. Across the roadway, the area north and south of Petitioner's property along the River is classified as CL and is "predominately residential." Besides the residential uses on the River side of the road, Intervenor identified around six non-conforming businesses (mainly former fish camps) that were vested prior to the adoption of the current Plan and that are interspersed with the residential lots. (Under current Plan provisions, they would not be allowed.) Around one-quarter mile or so south of the subject property is the Magic Manatee Marina (Marina) located on a two-acre parcel facing the River.2 A small fish camp with six "rental cottages" lies a few lots north of the Marina. There are also four small condominium buildings with dock facilities (known as Cory's Landing) just north of the fish camp. The aerial map reflects that all other lots south of Petitioner's property are used for residential purposes. Besides the other residential lots north of Petitioner's property, there are nine rental units at a vested "fishing resort" on a parcel slightly less than two acres in size located at 10606 West Halls River Road. Around one-half mile further north at the confluence of the Halls and Homasassa Rivers is a vested restaurant, Margarita Grill. Except for these vested non-conforming uses, all other lots are used for residential purposes, and the entire strip of land adjoining the River is classified as CL. North of Intervenor's 47.5-acre parcel, but not directly adjoining it, and on the western side of West Halls River Road, is a large unevenly-shaped tract of land classified as RVP, on which the Nature's Resort RV Park is located. That facility is authorized to accommodate around three hundred RVs. The entrance to that park from West Halls River Road appears to be at least one-quarter mile or more north of the subject property. Petitioner's Objections Petitioner contends that the amendment is not in compliance because it is internally inconsistent with FLUE Policies 17.2.7, 17.2.11, and 17.2.8, which concern environmental and compatibility requirements. These provisions are discussed separately below. Policy 17.2.7 Policy 17.2.7 provides as follows: The County shall guide future development to the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations and the availability of necessary services. Petitioner argues that the subject property is in an extremely sensitive environmental area due to extensive wetlands and a karst sensitive landscape. (Karst is a limestone underground rock structure that is very porous and through which pollutants can easily travel.) He further points out that the property is located within the CHHA. Given these environmental constraints, and the proposed increase in density, Petitioner contends the map change will run counter to the above policy. There are no provisions within the Plan that prohibit the location of an RV park within the CHHA. Policy 17.6.12 imposes numerous requirements for RV parks, including a thirty percent open space requirement, restrictions on densities, wetland protection, upland preservation, clustering, and connection to regional central water and sewer service. These policy restrictions have been implemented by more specific land development regulations (LDRs) that limit the density and intensity of RVs and the types of RVs (e.g., park models) that can be placed in an RV park located within a CHHA. In this case, because the property is in a CHHA, the LDRs impose a five- RV per acre limitation, as opposed to the normal fourteen RVs per acre in non-CHHA areas, and for evacuation purposes, park models are prohibited. Further, the RV park must be served by regional central water and sewer services. All land in the County west of U.S. Highway 19, including the subject property, is karst sensitive. As such, any development west of U.S. Highway 19 must meet certain design standards to ensure that the water supply is not threatened. The County says that these concerns must be addressed during the site approval (development) process. The record shows that there are four jurisdictional wetland sites on the parcel totaling 1.64 acres. There are also wetlands on the surrounding property. Because of these environmental constraints, Dr. Pitts (the former County Senior Planner) stated that it is "highly unlikely" that Intervenor "can develop at 49 units." He further pointed out that while it is "certainly possible to do it at a smaller number," there would be one hundred percent wetland protection through setbacks both to wetlands on the subject parcel, as well as the surrounding area, a thirty percent open space requirement on the site, a ten percent area dedicated to recreational uses, and minimum buffers on the side of the property facing West Halls River Road. For RV parks, pertinent LDRs adopted to implement the Plan require that the developer avoid all wetlands. Policy 17.2.7 expresses a County planning decision that future development be directed to "the most appropriate areas, as depicted on the GFLUM, specifically those with minimal environmental limitations." (Emphasis added) According to Dr. Pitts, the subject property has "severe" environmental limitations, and that "it will be difficult to design the site [in a way] that meets the standards of the comprehensive plan and the land development code." Notwithstanding the other provisions within the Plan and LDRs that place limitations on RV park development in an effort to satisfy environmental constraints, see Finding 18, supra, the subject property is clearly not "the most appropriate area, as depicted on the GFLUM" for new development, nor is it an area "with minimal environmental limitations." In fact, the amendment does just the opposite -- it directs new commercial development to an area with severe environmental limitations. Therefore, the greater weight of evidence supports a finding that the map change is internally inconsistent with Policy 17.2.7. Policy 17.2.11 Petitioner next contends that the plan amendment is contrary to the Plan's basic strategy of protecting environmentally sensitive areas, as set forth in FLUE Policy 17.2.11, which reads as follows: Consistent with the Plan's basic strategy for protection of environmentally sensitive areas, the following guidelines shall apply to all development in the Coastal, Lakes, and Rivers Region: No increase in residential density should be approved except for Planned Development standards already contained in the Plan. No additional high intensity non-residential land uses shall be approved for this region. Specifically new GNC [General Commercial] and IND [Industrial] districts shall be avoided. The subject property is within the Coastal Region and therefore subject to these guidelines. See Intervenor's Exhibit 3, page 10-3. On page 10-150 of the FLUE, the narrative text states in part that "with increasing development activity and growth in the coming years, existing restrictions on the density/intensity of land use should be maintained and enhanced to provide additional protection to this sensitive region." According to the Plan, a "GNC district allows potentially high density/intensity development" and "should not be located in areas of the County deemed to be environmentally sensitive areas." See Intervenor's Exhibit 3, page 10-110. It further provides that "[n]o new GNC shall be allowed in the coastal, lakes and river region." Id. Therefore, new GNC development should not be allowed in the Coastal Region. Although an RV park is a commercial use, it is not a GNC use. Further, the five-units per acre limitation is not considered a high-intensity non-residential use. Therefore, while the policy serves a laudable purpose, it does not prohibit RVP development within the Coastal Region. Therefore, the map change is not internally inconsistent with Policy 17.2.11. Policy 17.2.8 Petitioner's final objection is that an RV park is not compatible with the surrounding area. He goes on to contend that by placing an RVP designation adjacent to a large tract of CL land, the County has contravened FLUE Policy 17.2.8. That policy reads as follows: The County shall utilize land use techniques and development standards to achieve a functional and compatible land use framework which reduces incompatible land uses. Because compatibility is not defined in the Plan, Florida Administrative Code Rule 9J-5.003(23) is helpful in resolving this issue.3 That rule defines the term "compatibility" as follows: (23) "Compatibility" means a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. In its Proposed Recommended Order, Intervenor also suggests that the definition of "suitability" is relevant to this issue. That term is defined in Rule 9J-5.003(128) as follows: (128) "Suitability" means the degree to which the existing characteristics and limitations of land and water are compatible with a proposed use or development. Petitioner characterized the area around his home as quiet, peaceful, and "all residential." He noted that except for a few vested, non-conforming businesses, such as the Sunrise RV Park, Marina, fish camp, and restaurant, the remainder of the area along the River, as well as Intervenor's larger parcel across the street, is either residential or vacant. Petitioner fears that an RV park will result in increased noise, park lighting during nighttime hours, trash being left by the roadside, more traffic on the two-lane road, and a decrease in the value of his property. He also believes that the developer intends to place the southern entrance to the RV park almost directly across the street from his home. The greater weight of evidence supports a finding that the proposed new land use designation is not compatible with the surrounding land. Intervenor argues that an RV park and the surrounding residential properties are compatible (and suitable) because there are already non-conforming uses along the River that have not unduly negatively impacted the area. These uses, however, number only six along that stretch of the River, and they have existed for decades due to vested rights. It is fair to infer that the insertion of an RV park in the middle of a large tract of vacant CL land would logically lead to further requests for reclassifying CL land to expand the new RV park or to allow other non-residential uses. The stated purpose of Policy 17.2.8 is to reduce "incompatible land uses." At the same time, Rule 9J-5.003(23) discourages land uses which are in relative proximity to each other and can unduly negatively impact the other uses or conditions. The commercial RV park, with a yet-to-be determined number of spaces for temporary RVs, tenants, and associated commercial development, will be in close proximity to a predominately residential neighborhood. A reasonable inference from the evidence is that these commercial uses will have a direct or indirect negative impact on the nearby residential properties and should not coexist in close proximity to one another. This is contrary to Policy 17.2.8, which encourages a reduction in "incompatible land uses," and the amendment is therefore internally inconsistent with the policy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that small-scale development amendment CPA-09-16 adopted by the County by Ordinance No. 2009-A07 on May 26, 2009, is not in compliance. DONE AND ENTERED this 9th day of October, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2009.
The Issue Whether Escambia County Ordinance No. 2017-65 (Ordinance) adopted on November 30, 2017, amending the Heavy Commercial/Light Industrial (HC/LI) zoning district in the Escambia County Land Development Code (LDC) is consistent with the 2030 Escambia County Comprehensive Plan (Comp Plan). Whether Remedial Ordinance No. 2018-30 (Remedial Ordinance) adopted on August 2, 2018, alleviates any inconsistency in the Ordinance such that the HC/LI zoning district regulation is consistent with the Comp Plan.
Findings Of Fact The Petitioner lives and owns property in Cantonment, Escambia County, Florida, in proximity to parcels of land impacted by the Ordinance and Remedial Ordinance. As such, the Petitioner would be subject to an increase in noise and traffic resulting from the Ordinance and Remedial Ordinance, as well as an adverse change in the character of her rural neighborhood. The County is a non-charter county and political subdivision of the State of Florida. The County is the affected local government and is subject to the requirements of chapter 163. DEO is the state land planning agency and has the duty to review and investigate petitions submitted under section 163.3213, challenging land development regulations adopted by local governments. The Ordinance was enacted to amend Part III of the County's LDC to address consistency of parcels zoned HC/LI with the MU-S FLU Category. The preamble to the Ordinance indicates a previous consolidation of zoning districts implemented on April 16, 2015, "did not eliminate all occurrences of zoning districts that appear to allow uses, density, or other intensities of use not authorized by the prevailing purposes and associated provisions of applicable future land use categories." The County's Board of County Commissioners (Board) found that "there are occurrences of HC/LI zoning within the MU-S future land use category," and "it is in the best interests of the health, safety, and welfare of the public to address any inconsistency created by HC/LI zoning within the MU-S future land use category." After the DEO's determination of partial inconsistency, the County adopted the Remedial Ordinance, which makes no reference to the April 15, 2015, consolidation of zoning districts in the preamble. In addition, the Remedial Ordinance amends the Ordinance to delete certain confusing references to parcels and their previous zoning as of April 15, 2015. Thus, the Remedial Ordinance is much clearer than the Ordinance in addressing the prior inconsistency created by HC/LI zoning within the MU-S FLU category. Mixed-Use Suburban Future Land Use Category The MU-S FLU is described in FLU Policy 1.3.1 of the Comp Plan as "[i]ntended for a mix of residential and non- residential uses while promoting compatible infill development and the separation of urban and suburban land uses." The MU-S FLU lists the range of allowable uses as "[r]esidential, retail sales & services, professional office, recreational facilities, public and civic, limited agriculture." The MU-S FLU prescribes standards, such as a residential maximum density of 25 dwelling units per acre (du/acre) and a non-residential maximum intensity floor area ration (FAR) of one. The MU-S FLU also describes the mix of land uses that the County intends to achieve for new development in relation to location, i.e., the distance from arterial roadways or transit corridors. Within one-quarter mile of arterial roadways or transit corridors: residential percentages of 8 to 25 percent; public, recreational and institutional percentages of 5 to 20 percent; non-residential uses such as retail service at 30 to 50 percent; and office at 25 to 50 percent. Beyond one-quarter mile of arterial roadways or transit corridors: residential percentages of 70 to 85 percent; public, recreational and institutional percentages of 10 to 25 percent; and non- residential percentages of 5 to 10 percent. The mix of land uses described by the Comp Plan MU-S FLU category can be implemented by multiple zoning districts in the LDC. Certain zoning districts within MU-S further the residential intentions of the FLU category and other zoning districts further the non-residential intentions of the MU-S FLU category. However, all zoning districts within MU-S contain some element of residential use. The Ordinance and Remedial Ordinance The Remedial Ordinance amended the purpose subsection (a) of section 3-2.11 of the County LDC by adding language that directly limited the "variety and intensity of non- residential uses within the HC/LI [zoning] district" by "the applicable FLU." This means that although various non- residential uses are permitted in the HC/LI zoning district, the FLU category in the Comp Plan determines the "variety and intensity" of those non-residential uses. The Ordinance had amended subsection (h) of section 3-1.3 of the County LDC to clarify that "[o]ne or more districts may implement the range of allowed uses of each FLU, but only at densities and intensities of use consistent with the established purposes and standards of the category." This clarification is consistent with FLU Policy 1.1.4 in the Comp Plan, which states that "[w]ithin a given future land use category, there will be one or more implementing zoning districts." The Remedial Ordinance amended the permitted uses in subsection (b) of section 3-2.11 of the County LDC by deleting the confusing reference to parcel sizes and their previous zoning as of April 15, 2015. In paragraph (6) of subsection 3-2.11(b), the Remedial Ordinance made clear that the listed "industrial and related uses" are not permitted "within MU-S." In general, the other permitted uses mirror the range of allowable uses in the MU-S FLU category. The Remedial Ordinance amended the conditional uses in subsection (c) of section 3-2.11 to make clear that the listed industrial and related conditional uses are not permitted within MU-S. The Ordinance added MU-S to the site and building requirements in subsection (d) of section 3-2.11 to require a maximum FAR of 1.0. The Remedial Ordinance also imposed a maximum structure height for "any parcel previously zoned GBD [Gateway Business District] and within the MU-S" of 50 feet, which is lower than the maximum of 150 feet for HC/LI zoning not within MU-S. The Remedial Ordinance amended the location criteria in subsection (e) of section 3-2.11 to limit "[a]ll new non- residential uses proposed within the HC/LI district" to parcels previously zoned GBD and within the MU-S FLU category that are located along and directly in front of "U.S. Highway 29 or State Road 95A." In addition, another location criterion limits new non-residential uses along arterial streets to within one-quarter mile of their intersection with an arterial street. The provisions of the Ordinance and Remedial Ordinance are consistent with the County Comp Plan. Petitioner's Objections The Petitioner contended that the HC/LI zoning regulation allows intensities and scales of commercial uses that are inconsistent with the character of a predominantly residential FLU like MU-S. The Petitioner based her contention on the Comp Plan definition of "suburban area" and argued that the Ordinance and Remedial Ordinance permitted uses, densities, and intensities that were not "suburban in nature." "Suburban area" is defined in the Comp Plan as "[a] predominantly low-density residential area located immediately outside of an urban area or a city and associated with it physically and socioeconomically." By contrast, "mixed-use" is defined in the Comp Plan as "any use that includes both residential and non-residential uses." See ch. 3, § 3.04, Escambia Cnty. Comp Plan. Contrary to the Petitioner's contention, the MU-S FLU category's primary focus is on a mix of uses in a suburban area. See Findings of Fact Nos. 6-8, above. Indeed, the FLU element of the Comp Plan expresses a purpose and intent to encourage mixed- use development. Also, the Petitioner's focus on the differences between the MU-S and Mixed-Use Urban (MU-U) FLU categories in the Comp Plan was misplaced. The premise that the HC/LI zoning district implements the MU-U FLU category better than it implements the MU-S FLU category was not the issue to be determined in this proceeding. Rather, it was whether the Ordinance, as amended by the Remedial Ordinance, amending the HC/LI zoning district in the LDC is consistent with the Comp Plan. All other contentions not specifically discussed have been considered and rejected.
The Issue Whether the amendments to the Hendry County Comprehensive Plan adopted on February 25, 2014, by County Ordinance No. 2014- 03, are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2013).1/
Findings Of Fact The Parties and Standing Respondent, Hendry County (Respondent or County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Petitioner, the Seminole Tribe of Florida (Petitioner or Seminole Tribe), owns real property consisting of the Big Cypress Seminole Indian Reservation and adjacent non-reservation lands located in the County. The address of the main tribal office is 31000 Josie Billie Highway, Clewiston, Florida 33440. On February 25, 2014, the Board of County Commissioners held a public hearing and adopted the Plan Amendment. The Seminole Tribe submitted written and oral comments to the County concerning the Plan Amendment through their counsel and several Tribal members at the adoption public hearing. Existing Land Uses and Future Designations Hendry County is approximately 1,190 square miles in size. The County is predominantly an agriculturally-based community with roughly 55 percent of the total land area in agricultural production and another 12 percent designated as preserve. Approximately 71 percent of the land area in the County is designated Agriculture on the Future Land Use Map (FLUM).2/ Lands within the Agriculture Future Land Use Category (Ag FLU), some 529,936 acres, predominantly comprise the central, southern and eastern portion of the County. The Ag FLU designates those lands which “will continue in a rural and/or agricultural state through the planning horizon of 2040.” The County has limited property designated for future industrial and commercial use. Less than one-half percent of the land area on the FLUM is designated as Industrial. Less than two-tenths percent is designated as Commercial. Other future land use categories which allow Industrial development include Agriculture, Public, Multi-Use Development, and land within the Rodina sector plan, which authorizes a maximum of 1,900,000 square feet of Office, Civic, and Industrial uses. Industrial uses allowed within the Agriculture land use category include processing of agricultural products as Level One uses allowed as permitted uses, special exceptions, or accessory uses under the Land Development Code. A number of other uses, such as utilities, bio-fuel plants, mining, and solid waste recovery, are allowed as Level Two uses which require rezoning of the property to a Planned Unit Development, with significant review by County staff and approval by the Board of County Commissioners. Less than one percent of the land area is designated for Public Use. The Public land use category designates areas which are publicly-owned, semi-public, or private lands authorized for public purposes, such as utilities and solid waste facilities. The largest industrial site in the County is the AirGlades industrial complex, which is designated as a Public land use on the FLUM. The site is approximately 2,400 acres in size, but only roughly 200 acres is in industrial use. The complex cannot be fully developed due to inadequate County wastewater facilities serving the site, Federal Aviation Authority restrictions (e.g., height limitations) on development in proximity to the Airglades airport, and lack of opportunity for fee ownership of property owned by the County.3/ Roughly one-half percent of the land area is designated Multi-Use. Designated lands are generally located adjacent to the primary transportation system and existing or programmed utilities. The purpose of this land use category is to promote new development and redevelopment of the properties located within the category. The Floor Area Ratio (FAR) for Industrial development in the Multi-Use category is limited to 0.75. As with industrial uses, commercial uses are allowed in land use categories other than Commercial. The Agriculture category allows commercial uses such as ornamental horticulture and nurseries. Non-residential intensity is generally limited to an FAR of .40. Commercial development is allowed within both the Medium–Density and High-Density Residential FLU Categories; however, development is limited to residential-serving commercial, must be approved through the PUD rezoning process, and is limited to 15 percent of the uses within the PUD. Less than one percent of the County is designated as Rural Special Density, and, under the existing Plan, this designation cannot be expanded. The Residential Special Density category allows commercial and retail on no more than 10 percent of the designated area and with a total cap of 200 square feet at buildout. Commercial development is also allowed within the Multi-Use category, but is limited to an FAR of .25 for retail commercial, .50 for mixed-use buildings (maximum of 25 percent retail), and .30 FAR for mixed-use buildings with commercial on the first floor. The County is sparsely populated with concentrations surrounding the cities of Clewiston and LaBelle, including Port LaBelle, as well as the unincorporated areas known as Felda and Harlem. The cities of LaBelle and Clewiston and the unincorporated populated areas are located at the northernmost end of the County along State Road 80 (SR 80). The Felda Community is located in the northwestern portion of the County, south of the City of LaBelle. Most of the development in the County since 1999 has occurred in and surrounding the incorporated areas of LaBelle and Clewiston, primarily adjacent to the City of LaBelle and along SR 80 from LaBelle to the Lee County line. The vast majority of land in the County is not served by centralized public utilities, such as sewer and water. Existing public utilities, including centralized water and sewer, are limited to the northernmost areas of the County surrounding the cities of LaBelle and Clewiston, and along SR 80. South of LaBelle and Clewiston, there are only three north/south and two east/west principle arterial or collector roads in the County. All of these are two-lane roads, and only SR 29 south of LaBelle is planned to be widened to four lanes under either alternative in the County’s 2040 long-range transportation plan. Economic Conditions It is undisputed that the economic condition of the County is dire. The County ranks high in many negative economic indicators, including a 30 percent poverty rate (compared to 17 percent statewide), the highest unemployment rate in the state for 34 of the most recent 36 months, and an annual wage $10,000 lower than the state average. Roughly 80 percent of County school children qualify for a free or reduced-price lunch, and a high percentage of the County population are Medicaid recipients. The County’s ability to raise revenue through taxation is limited by the extent of property exempt from ad valorem taxation (e.g., government-owned property), and the extent classified as Agricultural and assessed at less than just value. Slightly more than half of the just value of property in the County is subject to an Agricultural classification. Another 21 percent of the just value of property in the County is government-owned, thus exempt from ad valorem taxation. More than half of the parcels in the County are taxed as vacant residential, and less than two percent are taxable commercial properties. On May 24, 2011, the Board of County Commissioners conducted a workshop on proposed new Mission, Vision, and Core Values statements for the County. On September 13, 2011, the Board adopted the following Vision statement: “To be an outstanding rural community in which to live, work, raise a family and enjoy life by creating an economic environment where people can prosper.” The Plan Amendment The Plan Amendment was adopted in an effort to attract large-scale commercial and industrial businesses to locate in, and bring jobs to, the County. Under the Plan Amendment, a new development project that is designated as an Economic Engine Project (EEP), and “large-scale commercial and/or industrial” developments, are expressly permitted in any and all FLU categories throughout the County with the exception of Agricultural Conservation, Residential - Pre-Existing Rural Estates, and Felda Estates. The Plan Amendment is designed to spur economic development by “streamlining” the permitting process to give the County a competitive advantage in attracting new business. By permitting EEPs and large-scale commercial and industrial uses in nearly every future land use category, the Plan Amendment is intended to eliminate the costs (in both time and money) of processing comprehensive plan amendments for future development projects. The amount of land eligible for siting either an EEP or a large-scale commercial and/or industrial development under the Plan Amendment is approximately 580,000 acres.4/ The majority of that land area, 529,936.49 acres, is located within the Agriculture FLU category. The Plan Amendment significantly rewrites the Economic Development Element of the County’s Plan, and adds new policies to Chapter 1, Goal 2 of the Future Land Use Element (FLUE), related to “Innovative Planning and Development Strategies.” The Plan Amendment rewrites Goal 2 as follows:5/ In order to protect water resources, protect the environment and wildlife habitat, build a more sustainable tax base, encourage economic development, promote energy efficiency, and to permit job creation for the citizens and residents of Hendry County, the following innovative land use planning techniques should be encouraged: In order to build a sustainable tax base, encourage economic development, promote job creation, and support vibrant rural and urban communities, the following flexible development strategies are encouraged: Innovative and flexible planning and development strategies list in Section 163.3168, Florida Statutes. Innovative and creative planning tools. Innovative Flexible and strategic land use techniques listed and defined in this comprehensive plan. The Plan Amendment adds the following new Objective and Policies to FLUE Goal 2: Objective 2.1: Recognize the substantial advantages of innovative approaches to economic development to meet the needs of the existing and future urban, suburban and rural areas. Policy 2.1.1: A qualifying County economic development and job creation project (Economic Engine Project) is a project that complies with Policy 10.1.7. of the Economic Development Element, Hendry County's compatibility requirements, Policy 2.1.2, and which will have adequate infrastructure. These projects shall be allowed in any category listed in the Future Land Use Element except those lands designated as Agriculture Conservation, Residential/Pre- Existing Rural Estates, and Felda Estates residential areas, consistent with the goals, objectives, and policies of the Economic Development Element. Additionally, Economic Engine Projects shall be allowed in adopted sector plans only if they advance or further the goals, objectives and policies of respective lands pursuant to 163.3245, and the sector plan. Densities and Intensities shall not exceed the values that are established for commercial and industrial uses in the respective land use categories. In the residential land use categories, an Economic Engine Project shall not exceed an Intensity of 0.25 FAR. Policy 2.1.2: Large-scale commercial and/or industrial developments will be allowed in any Future Land Use category, except those lands designated as Agriculture Conservation, Residential/Pre-Existing Rural Estates, and Felda Estates residential areas if they meet the requirements below. In addition, large-scale commercial and/or industrial developments will be allowed in adopted sector plans only if they advance or further the goals, objectives and policies of respective lands pursuant to 163.3245, F.S., the sector plan, and meet the requirements below. Policy 2.1.2 does not apply to industrial development located in the industrial land use category nor commercial development located in the commercial land use category. The development is approved as a PUD as provided in the Land Development Code; The development is consistent with siting proposals developed by County staff and approved by the Board of County Commissioners; The project has direct access to principal arterials and collectors or access to the principal arterials and collectors via local roads with adequate capacity which can be readily provided by the development; The project has access to, will upgrade/extend existing utilities, or construct on-site utilities; or a public or private provider will extend and/or expand the utilities (including an upgrade if necessary) or has the extension of utilities in the utility's financially feasible plan. The project must have access to all existing or planned necessary utilities, such as water, sewer, electricity, natural gas, cable, broadband, or telephone; The project has access to and can provide on-site rail facilities, when appropriate; The project will provide sufficient open space, buffers, and screening from exterior boundaries where warranted to address all compatibility issues. Large-scale Commercial and/or Industrial development must be a minimum of eighty (80) acres. The County reserves the right to require the project area to be larger if the County finds that a project with more land is necessary to address the impacts of the development on the surrounding area, or if the County concludes that a larger site is necessary to provide a viable project. The project must demonstrate that it will produce at least fifty (50) new jobs within three years after the project is initiated. The development must contribute positively to the County's economy. If the project requires that the County expend funds not already provided for in the County Capital Improvement Program, the developer shall cooperate with the County in obtaining the funds. This provision includes requiring the County to accelerate a programmed project. If necessary, the owner/developer of the project will work with the appropriate educational facilities to create the necessary education and training programs that will enable Hendry County residents to be employed with the Large- scale Commercial and/or Industrial development. Intensities shall not exceed the Floor Area Ratio for Commercial and/or Industrial uses that are established in their respective land use categories. In the residential land use categories, an Economic Engine Project shall not exceed an Intensity of 0.25 FAR. Densities shall not exceed the Floor Area Ratio for Commercial uses that are established in their respective land use categories. Additionally, the Plan Amendment adds the following definitions to the Plan: "Economic Engine Project" means a qualifying County economic development and job creation project which complies with Policy 10.1.7. of the Economic Development Element and means the proposed development, redevelopment or expansion of a target industry. "Target Industry" means an industry that contributes to County or regional economic diversification and competitiveness. Targeted industries that are eligible to qualify as a County-approved Economic Engine Project include, but are not limited to: The targeted industries and strategic areas of emphasis listed with Enterprise Florida The targeted industries of Florida's Heartland Regional Economic Development Initiative Projects aligned with efforts of Visit Florida Projects that promote tourism Marine Industries; and Agricultural Industries New Economic Development Element Policy 10.1.7, reads as follows: The County Administrator has the authority to designate a project as a County-approved Economic Engine Project provided it meets the definition of an Economic Engine Project, the criterion in future land use element Objective 2.1, and policies 2.1.1- 2.1.2. Petitioner’s Challenge Petitioner challenges the Plan Amendment as not “in compliance” with chapter 163. Specifically, Petitioner alleges that the Plan Amendment fails to appropriately plan for orderly future growth by providing measurable and predictable standards to guide and control the future growth and distribution of large-scale commercial and industrial developments and Economic Engine Projects throughout the County; is not based on relevant and appropriate data and analysis; is internally inconsistent with other goals, objectives, and policies in the Plan; and fails to discourage urban sprawl. Meaningful and Predictable Standards Section 163.3177(1) provides, “The [local government comprehensive plan] shall establish meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development and use regulations.” Section 163.3177(6)(a) requires the local government to designate, through the FLUE, the “proposed future general distribution, location, and extent of the uses of land for” commercial and industrial categories of use. Further, this section requires the local government to include the “approximate acreage and the general range of density or intensity of use . . . for the gross land area in each existing land use category.” Subparagraph 163.3177(6)(a)1. requires local governments to define each future land use category “in terms of uses included” and to include “standards to be followed in the control and distribution of population densities and building and structure intensities.” Designated Economic Engine Projects The Plan Amendment does not define an EEP in a manner sufficient to put property owners on notice as to what use might be approved within the approximately 580,000 acres affected by the Plan Amendment. The Plan Amendment defines an EEP as a “proposed development, redevelopment or expansion of a target industry.” “Target industry” is further defined by the Plan Amendment as “an industry that contributes to County or regional economic diversification and competitiveness.” The definition continues, as follows: Targeted industries that are eligible to qualify as a County-approved Economic Engine Project include, but are not limited to: The targeted industries and strategic areas of emphasis listed with Enterprise Florida The targeted industries of Florida’s Heartland Regional Economic Development Initiative Projects aligned with efforts of Visit Florida Projects that promote tourism Marine Industries Agricultural Industries Under Policy 2.1.1, a project that meets the definitions above may be designated as an EEP by the County Administrator, pursuant to Policy 10.1.7, if it meets the criterion in Policy 2.1.2, and if it “complies with the County’s compatibility requirements and [has] adequate infrastructure.” As adopted, the Plan Amendment provides no meaningful standard for the use or development of land for an EEP. The definition of an industry that “contributes to County or regional economic diversification and competitiveness” is essentially open-ended, defining an EEP only in the sense that it must be different from the existing predominate County industry -- Agriculture. Yet, even that distinction is eliminated by the inclusion of “Agricultural Industries” on the list of target industries “that are eligible to qualify as a County-approved” EEP. The list of industries defined as “eligible to qualify as a County-approved” EEP provides no meaningful standard because it incorporates by reference industries listed by, targeted by, or “aligned with,” private and quasi-government entities such as Enterprise Florida, Visit Florida, and Florida’s Heartland Regional Economic Development Initiative. The definition does not even fix to a specific date the list of targeted industries designated by those business development entities, thus rendering the Amendment “self-amending,” without any meaningful list of qualifying uses. Moreover, the definition of “target industry” incorporates these third-party lists with the qualification “including but not limited to.” Thus, determination of an EEP is at the sole discretion of the County Administrator. Sarah Catala, Hendry County associate planner, is the author of the Plan Amendment. Ms. Catala testified that an EEP could encompass a wide variety of uses, including ecotourism (e.g., bird-watching tours), manufacturing, and large-scale commercial development such as a Super Walmart. The Plan Amendment is essentially circular. The definition of an EEP refers to compliance with Policy 10.1.7, but Policy 10.1.7 refers back to the definition and the criteria in Policies 2.1.1 and 2.1.2. Policy 2.1.1 requires an EEP to comply with Policy 10.1.7, as well as Policy 2.1.2. Objective 2.1 and Policies 2.1.1 and 2.1.2 lack meaningful and predictable standards for the use and development of EEPs. Policy 2.1.1, as previously referenced, refers the reader to Policy 2.1.2 and further states that EEPs must “comply with Hendry County’s compatibility requirements” and must have “adequate infrastructure.” The Plan Amendment does not define either “compatibility requirements” or “adequate infrastructure.” Nor does the Plan Amendment cross-reference any specific compatibility or infrastructure requirement in either the Plan or the County’s Land Development Regulations. The County highlights Policy 2.1.2 as the measurable criterion that directs the location, timing and extent of development of both EEPs and large-scale commercial and industrial developments throughout the County. However, as discussed below, Policy 2.1.2 does not resolve the Plan Amendment’s failure to provide meaningful and predictable standards directing the location, amount and timing of the development of EEPs or large-scale commercial and industrial in the County. Large-scale Commercial and Industrial Developments Policy 2.1.2 adds “large-scale commercial and industrial developments” as an allowable use in every FLU category in the County with the exception of the same three categories from which EEPs are excluded: Agriculture Conservation, Residential/Pre-Existing Rural Estates, and Felda Estates. Large-scale commercial and industrial developments must meet the requirements listed in paragraphs (a) through (n) of Policy 2.1.2.6/ Policy 2.1.2(a) requires EEPs and large-scale commercial and industrial developments allowed by the Plan Amendment to undergo a rezoning to Planned Unit Development (PUD) during which time various site-specific criteria found in the land development regulations will be applied to development of a particular project. The PUD rezoning criterion in the County’s LDRs govern the location of a particular use on a specific property. The PUD requirements do not relate in any way to the appropriate location of either an economic project or large-scale commercial or industrial development within the approximately 580,000 acres open for those developments under the Plan Amendment. Thus, this criterion is not a meaningful standard that provides for the general distribution, location, and extent of land for EEPs or large-scale commercial or industrial use. Policy 2.1.2(b) requires EEPs and large-scale commercial and industrial developments allowed by the Plan Amendment to be “consistent with siting proposals developed by County staff and approved by the Board of County Commissioners.” It is undisputed that the said siting proposals have yet to be developed by staff. Ms. Catala anticipates developing a locational matrix that will “match up locations in the County with the needs of a business.” As such, the siting proposals will provide locational standards for future EEPs and large- scale commercial and industrial developments. As written and adopted, though, the Plan Amendment contains no such standards. Policy 2.1.2(c) requires EEPs and large-scale commercial and industrial developments to have “direct access to principal arterials and collectors or access to the principal arterials and collectors via local roads with adequate capacity which can be readily provided by the development.” This criterion simply requires EEPs and large-scale commercial and industrial developments to have access to a roadway of some sort. It does not guide developments to locate within proximity to a roadway, or require direct access to a particular class of roadway. The criterion does not preclude the developer from building a road from the project to an existing local roadway. Furthermore, the Plan Amendment neither defines the term “adequate capacity” nor cross-references an existing definition of that term elsewhere in the Plan. Without a definition, the reader is left to speculate whether a particular project site is appropriate in proximity to any particular roadway. As written, Policy 2.1.2(c) does not provide meaningful standards for the location, distribution, or extent of either EEPs or large-scale commercial or industrial projects within the approximately 580,000 acres designated eligible for these uses under the Plan Amendment. Policy 2.1.2(d) relates to the provision of utilities to serve an EEP or large-scale commercial or industrial project. The Policy reads as follows: The project has access to, will upgrade/extend, or construct on-site utilities; or a public or private provider will extend and/or expand the utilities (including an upgrade if necessary) or has the extension of utilities in the utility’s financially feasible plan. The project must have access to all existing or planned necessary utilities, such as water, sewer, electricity, natural gas, cable, broadband, or telephone. This criterion provides so many alternatives, it is essentially meaningless. Boiled down, the provision requires only that the project have utilities, which is essential to any development. The criterion does not direct the location of one of these projects to areas where utilities exist or are planned, but rather allows them anywhere within the approximately 580,000 acres as long as the developer provides needed utilities, somehow, some way. Policy 2.1.2(e) requires “[t]he project [to have] access to and . . . provide on-site rail facilities, when appropriate[.]” This criterion provides locational criterion to the extent that a development for which rail facilities are integral must locate in proximity thereto. However, that criterion is self-evident. The policy does not add any guidance for the location, distribution, and extent of EEPs and large- scale commercial or industrial projects which do not require rail facilities. Policy 2.1.2(f) requires the project to “provide sufficient open space, buffers, and screening from exterior boundaries where warranted to address all compatibility issues.” Buffers, screening, and open space requirements are addressed at the PUD rezoning stage of development and do not provide guidance as to the location of development within any particular land area. Furthermore, the language does not direct an EEP or large-scale commercial or industrial development away from existing uses which may be incompatible therewith. The Plan Amendment actually anticipates incompatibility and requires development techniques to address incompatibilities at the rezoning stage. Policy 2.1.2(g) requires a minimum of 80 acres for a large-scale commercial or industrial development. The policy allows the County to increase that minimum size “if the County finds that a project with more land is necessary to address the impacts of the development on the surrounding area, or if the County concludes that a larger site is necessary to provide a viable project.” The policy has a veneer of locational criterion: it excludes development or redevelopment of parcels, or aggregated parcels, which are smaller than the 80 acre threshold. However, the policy provides an exception for the County to require larger parcels solely at its discretion. Again, the policy anticipates incompatibility between large- scale commercial or industrial development and the existing land uses. Policies 2.1.2(h), (i), (j), (k), (l), and (m) bear no relationship to location, distribution, or extent of the land uses allowed under the Plan Amendment. Petitioner has proven beyond fair debate that the Plan Amendment neither provides for the general distribution, location, and extent of the uses of land for commercial and industrial purposes nor meaningful standards for the future development of EEPs and large-scale commercial and industrial development. Section 163.3177(1) requires local government plan amendments to establish meaningful guidelines for the content of more-detailed land development regulations. Policy 2.1.2(b) requires large-scale commercial and industrial developments to be consistent with “siting proposals,” which Ms. Catala testified are anticipated to be adopted in the County’s land development code. Ms. Catala generally described a matrix that would help industry “get the best fit for their needs in the County.” The Plan Amendment does not provide any guidelines for adoption of a matrix or any other siting proposals to be adopted by County staff and approved by the Board of County Commissioners pursuant to Policy 2.1.2.(b). Lastly, section 163.3177(6)(a) requires that the FLUE establish the general range of density and intensity of the uses allowed. Ms. Catala testified that the intent of the Plan Amendment is not to change the density or intensity of uses from those already allowed in the plan. The plain language of the Plan Amendment does not support a finding that densities and intensities of use remain the same under the Plan Amendment. The intensity of non- residential development allowed under the Plan Amendment is, at best, unclear, and in some cases left entirely to the discretion of the Board of County Commissioners. Policy 2.1.1 provides that the densities and intensities of EEPs “shall not exceed the values that are established for commercial and industrial uses in the respective land use categories.” The County argues that a fair reading of the Policy restricts non-residential development to the intensities established in the underlying category for non-residential development. Under Policy 2.1.2, intensities of large-scale commercial and industrial developments “shall not exceed the Floor Area Ratio for Commercial and/or Industrial Uses established in their respective land use categories.” While a fair reading of Policy 2.1.1 restricts the intensity of commercial or industrial development to the density established in the underlying land use district, Policy 2.1.2 does not. The pronoun “their” refers back to the Commercial and Industrial land use categories. Thus, under Policy 2.1.2, commercial and industrial uses can develop in other land use categories at the intensities established in the Commercial or Industrial category. Further, both Policy 2.1.1 and Policy 2.1.2 cap EEP intensity at 0.25 FAR in residential FLU categories. This language overrides the existing cap on non-residential development in those categories established in the FLUE. It also overrides those FLU categories, such as Residential Low- Density, which establish an FAR of 0.00. Finally, Policy 2.1.2 contains no intensity cap on development of commercial and industrial development within residential FLU categories. The County explains that large- scale commercial and industrial developments are simply not allowed in FLU categories, such as Residential Low-Density, which establish an FAR of 0.00. The County’s interpretation is not consistent with the plain language of the policy. Policy 2.1.2 specifically allows large-scale commercial and industrial development in all land use categories except Agricultural-Conservation, Residential/ Pre-Existing Rural Estates, and Felda Estates. If the County intended to exclude other FLU categories, they would have been included in the list of exceptions. Petitioner has proven beyond fair debate that the Plan Amendment does not establish the general range of intensity of large-scale commercial and industrial development. Data and Analysis Section 163.3177(6)(a)2. requires local government FLUE amendments “to be based upon surveys, studies, and data regarding the area, as applicable” including the following: The amount of land required to accommodate anticipated growth. The projected permanent and seasonal population of the area. The character of the undeveloped land. The availability of water supplies, public facilities, and services. The need for redevelopment, including the renewal of blighted areas and the elimination of nonconforming uses which are inconsistent with the character of the community. The compatibility of uses on land adjacent to an airport as defined in s. 330.35 and consistent with s. 333.02. The discouragement of urban sprawl. The need for job creation, capital investment, and economic development that will strengthen and diversify the community’s economy. The need to modify land uses and development patterns with antiquated subdivisions. County staff did not collect data or perform an analysis of the character of the undeveloped land affected by the Plan Amendment. County staff did not perform any analysis of the suitability of the land area affected by the Plan Amendment for either a large-scale commercial or industrial development nor for an EEP. County staff did not perform an analysis of the availability of the County water supplies, wastewater treatment, or other public facilities, to serve large-scale commercial or industrial development or an EEP located within the area affected by the Plan Amendment. In fact, County staff acknowledged that wastewater treatment facilities are inadequate to support full buildout of the industrial sites available at the Airglades airport facility. County staff did not perform an analysis of the compatibility of large-scale commercial or industrial development adjacent to the Airglades airport facility. In preparing the Plan Amendment, County staff clearly relied upon data reflecting the County’s needs for job creation, economic development, and a diversified economy, including the Department of Revenue Property Tax Overview for Hendry County, and the fact that the County is designated a Rural Area of Critical State Concern. County staff also considered, in support of the Plan Amendment, the County Commission’s recently-adopted Vision statement: “To be an outstanding rural community in which to live, work, raise a family and enjoy life by creating an economic environment where people can prosper.” No evidence was introduced to support a finding that County staff analyzed whether the Plan Amendment would achieve the goals of strengthening and diversifying the County’s economy. The County introduced the testimony of Greg Gillman, the County’s Economic Development Director, regarding his efforts to attract new business to the County, as well as the obstacles the County faces in these efforts. Mr. Gillman testified regarding five particular scenarios in which he worked with companies to find a suitable location in the County. In one scenario, the price was too high for the potential buyer. In another, the potential buyer was put off by the wooded acreage. In another, the seller would not subdivide. In another, the property is undergoing a PUD rezoning process. In the final scenario, Mr. Gillman testified the potential buyer rejected all proposed sites without explanation. Mr. Gillman did not give a single example of a scenario in which a potential business opportunity was lost due to the need to change the FLUM designation of a property. In fact, Mr. Gillman testified that he does not even show sites without appropriate land use classifications to potential buyers. While there is a plethora of data on the limited amount of land in the County classified for commercial and industrial uses, County staff gathered no data regarding, and conducted no analysis of, the vacancy rate of sites on which commercial and industrial uses are currently allowed. Mr. Gillman provided anecdotal evidence regarding recent efforts to redevelop vacant sites, some of which have been successful. Ms. Catala testified that, in addition to relying on the County’s Vision statement and economic data, she reviewed the comprehensive plans of other jurisdictions. From that review, she gleaned the idea of an EEP. The County introduced no evidence to support a finding that the threshold of 80 acres for an EEP was based upon data at all. Mr. Gillman’s testimony revealed that Ms. Catala originally proposed a higher threshold (perhaps 120 acres), but that he recommended a smaller acreage. Mr. Gillman gave no explanation of the basis for his recommendation. Section 163.3177(f) provides, “To be based on data means to react to it 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.” Given the lack of evidence linking the Plan Amendment to spurring economic development, the County failed to demonstrate that it reacted appropriately to the economic data on which it relied. Even if Mr. Gillman’s anecdotes were accepted as data, they do not support eliminating plan amendments to allow commercial and industrial development in a variety of other land use categories. Internal Inconsistency Section 163.3177(2) provides as follows: Coordination of the several elements of the local comprehensive plan shall be a major objective of the planning process. The several elements of the comprehensive plan shall be consistent. The Petitioner alleges the Plan Amendment changes to the FLUE and Economic Development Element are inconsistent with a number of goals, objectives, and policies found within the FLUE and in other plan elements. Each one is taken in turn. Future Land Use Element First, Petitioner alleges internal inconsistency within the FLUE, specifically between the Plan Amendment and FLUE Goal 1, Objective 1.1, and Policies 1.1.1, 1.1.3, 1.1.4, 1.1.5, 1.1.9, 1.1.10, 1.1.11, and 1.1.13. Policy 1.1.1 governs land uses allowed within the Agriculture FLU category. The policy states, in pertinent part, as follows: Purpose The purpose of the Agriculture Future Land Use Category is to define those areas within Hendry County which will continue in a rural and/or agricultural state through the planning horizon of 2040. * * * Location Standards Areas classified as Agriculture are located within the rural areas of Hendry County. Lands in this category are not within the urban area, but may be adjacent to the urban area. Some of these lands may be converted to urban uses within the 2040 planning horizon. However, the majority of the lands classified Agriculture will remain in a rural, agricultural land use through the year 2040. The Plan Amendment affects more land designated as Agriculture than that designated in any other category. Slightly more than 70 percent of the County, almost 530,000 acres, is designated as Agriculture, and all of it is subject to development for an EEP or an 80-acre minimum commercial or industrial project under the Plan Amendment. Development of ill-defined EEPs and 80-acre minimum large-scale commercial and industrial projects is not consistent with designating lands “which will continue in a rural and/or agricultural state” through 2040. Respondent counters that the Plan Amendment is not inconsistent with Policy 1.1.1 because that Policy already allows a number of non-traditional agricultural uses which are commercial and/or industrial in nature, and may be sited through the PUD rezoning process, just as the uses allowed under the Plan Amendment. Policy 1.1.1 authorizes the use of Agriculture lands for utilities, bio-fuel plants, mining and earth extraction and processing operations, solid waste facilities, resource recovery facilities, and other similar uses. The County’s argument is not persuasive.7/ The non- agricultural uses allowed under the existing plan are agriculturally-related or agriculture-dependent uses, such as bio-fuel, mining, and resource recovery, or uses which, by their nature, are best suited to less-populated rural areas, such as utilities and solid waste facilities. In contrast, large-scale commercial and industrial uses are not limited to agriculturally-related or utility uses. Under the Plan Amendment, anything from an auto parts manufacturing plant to a Super Walmart could be developed in areas designated Agriculture. Any number of urban uses could be developed under the auspices of an EEP or large-scale commercial. Under the Plan Amendment, no amendment to the County’s comprehensive plan will be needed to allow such urban uses in the Agriculture category. Policies 1.1.3, 1.1.4, and 1.1.5 govern land uses in the following FLU categories: Residential – Rural Estates, Residential – Medium Density, and Residential – High Density, respectively. According to Policy 1.1.3, the purpose of the Residential – Rural Estates category is “to define those areas within Hendry County which have been or should be developed at lower density in order to promote and protect the rural lifestyle through the planning horizon of 2040.” The Policy permits only residential and customary accessory uses within the category. The Policy specifically sets a FAR of 0.00 for non- residential development. According to Policy 1.1.4, the purpose of the Residential – Medium Density category is “to identify those areas within Hendry County which currently, or should be, encouraged to become the primary location of residential development offering a mixture of residential products at suburban/urban style density through the planning horizon 2040.” The policy permits single- and multi-family development, as well as mobile homes, and customary accessory uses. Commercial development is allowed only as an element of mixed-use developments, of which commercial is limited to 15 percent. Additional limitations on commercial apply, including limits on size and character, location within the mixed-use development, and buffering from adjacent residential uses. Policy 1.1.4 establishes an FAR of 0.10 for non-residential development. According to Policy 1.1.5, the purpose of the Residential – High Density category is “to define those areas within Hendry County which are or should become higher density residential development through the planning horizon 2040.” The policy permits all types of residential development and customary accessory uses. As with medium-density category, Policy 1.1.5 allows some commercial development within mixed-use developments subject to limitations on size and character, location within the mixed-use development, and buffering. The policy establishes an FAR of 0.10 for non-residential development. Under the Plan Amendment, each of these three Residential categories is available for siting an EEP. New Policy 2.1.2 allows for development of EEPs in these categories at an FAR of 0.25. The Plan Amendment allows EEPs within the Residential Rural Estates category directly in contravention of Policy 1.1.3, which limits uses to residential, recreational, and limited agricultural, and provides zero intensity for non- residential uses. As previously noted, the Plan Amendment broadly defines EEPs, and the record supports a finding that such a project could encompass anything from a manufacturing facility to a Super Walmart. The broad array of uses to diversify the County’s economy is in conflict with the County’s previous decision, reflected in Policy 1.1.3 to designate these areas for future development at low-density residential “to promote and protect the rural lifestyle.” Likewise, the Plan Amendment opens up the Residential Medium Density and Residential – High Density categories for location of ill-defined EEPs in contravention of Policies 1.1.4 and 1.1.5, which limit development in those categories to primarily residential, only allowing commercial within a mixed- use development and limited to a maximum of 15 percent. Furthermore, the Plan Amendment allows these developments at a greater intensity than the FAR of 0.10 established for non- residential density in those categories. The parties disagreed as to whether the Plan Amendment authorizes large-scale commercial and industrial development in the Residential – Rural Estates category governed by Policy 1.1.3. The argument primarily turns on interpretation of new Policy 2.1.2, as discussed in the previous section herein titled “Meaningful and Predictable Standards.” The County contends that the correct interpretation of Policy 2.1.2 allows a large-scale commercial or industrial development at the maximum intensity established in the underlying land use category. In other words, if the underlying land use category establishes an FAR of 0.00 for industrial development, no industrial development is allowed. However, if the same category establishes an FAR for commercial development, the Plan Amendment allows commercial development in that category limited to the intensity established by the FAR. The undersigned has rejected that interpretation as discussed in the prior section herein. Petitioner contends that the language allows commercial and industrial development in every non-exempt land use category at the intensities established in the Commercial and/or Industrial land use category, as applicable. Petitioner’s interpretation is the correct interpretation, and indeed the only possible reading of the plain language of Policy 2.1.2(l).8/ Policy 1.1.9 governs uses in the Commercial land use category. The Policy allows non-residential development at the following intensities: Retail Commercial – 0.25 FAR Office – 0.50 FAR 0.50 FAR for mixed-use building with a maximum of 25% retail and a minimum of 75% office 0.30 FAR for mixed-use development with commercial on the first floor and residential on stories above the first floor. Allowing large-scale commercial development at the stated intensities directly conflicts with Policy 1.1.3, which provides an FAR of 0.00 for non-residential development in Residential – Rural Estates; Policy 1.1.4, which caps intensity at 0.10 for commercial in Residential – Medium; and Policy 1.1.5, which provides an FAR of 0.10 in Residential – High. Thus, Plan Amendment Policy 2.2.1 is in conflict with Policies 1.1.3, 1.1.4, and 1.1.5. Policy 1.1.10 governs uses in the Industrial land use category. The Policy allows industrial development at an intensity of 0.75. Allowing large-scale industrial development at an intensity of 0.75 directly conflicts with Policy 1.1.3, which provides an FAR of 0.00 for non-residential development in Residential – Rural Estates; and Policies 1.1.4 and 1.1.5, which limit non-residential uses to commercial and recreation in the Residential – Medium and Residential – High land use categories. Thus, Plan Amendment Policy 2.1.2 is in conflict with Policies 1.1.3, 1.1.4, and 1.1.5. Petitioner alleges the Plan Amendment is inconsistent with Policies 1.1.9 and 1.1.10 governing development within the Commercial and Industrial categories, respectively. The allegations were not supported by a preponderance of the evidence. The Plan Amendment does not alter either the uses allowed in those categories or the intensity of development allowed therein. Those policies are essentially unscathed. However, because the Plan Amendment allows the types and intensities of development described in the Commercial and Industrial categories to occur in residential and other categories in which those uses and intensities conflict, the Plan Amendment is inconsistent with the policies governing those residential and other categories. Policies 1.1.9 and 1.1.10 are merely the conduits through which Policy 2.1.2 is found to be inconsistent with Policies 1.1.3, 1.1.4, and 1.1.5. Policy 1.1.11 governs land uses in the Public category. The Policy establishes the following purpose and uses: Purpose The purpose of the Public Future Land Use Category is to establish regulations relative to use and location of publicly- owned lands, semi-public lands, and private lands authorized for public purposes which currently exist or which may become public through the planning horizon 2040. Description/Uses Lands in this category are areas designated for public and semi-public uses, including governmental buildings, schools, churches, and worship centers, utilities, solid waste handling and disposal facilities, airports, logistic centers when operated on public property, recycling facilities, and similar public and semi-public uses. This category may also include publicly-owned parks and other public/semi-public recreational facilities. There is no dispute that the Plan Amendment would allow both EEPs and large-scale commercial and industrial uses within the Public land use category. Large-scale commercial and industrial development is inconsistent with the purpose of the Public land use category adopted in Policy 1.1.11 and the uses established therein. Because the Plan Amendment provides no clear definition of an EEP, and leaves the determination solely to the County Administrator, it is impossible to determine whether allowing said development in the Public land use category would necessarily be inconsistent with Policy 1.1.11. Policy 1.1.13 governs uses in the Leisure/Recreation category. The Policy establishes the following purpose and uses: Purpose The purpose of the Leisure/Recreation Future Land Use Category is to define those areas within Hendry County which are used or may become used for free standing/independent leisure/recreation activities through the planning horizon 2040. * * * Description/Uses Leisure/Recreation areas are sites which are currently developed for leisure/recreation facilities or undeveloped sites which are designated for development as leisure/ recreation facilities. . . . Uses allowed within this category shall be limited to sports facilities whether individually developed or in sports complexes, active and/or passive parks, recreation vehicle parks, campgrounds (whether primitive or improved), marinas, golf courses, equestrian centers and riding areas, sporting clay facilities, eco tourism activities, and similar leisure and recreation facilities and ancillary facilities. Large-scale industrial and commercial development would directly conflict with the purpose and types of use allowed within this category pursuant to Policy 1.1.13. As the Plan Amendment provides a very broad definition of EEP, it is impossible to determine that every such use would be inconsistent with Policy 1.1.13. In fact, since an EEP may include eco-tourism uses, location within Leisure/Recreation may be entirely suitable. Petitioner next contends that the Plan Amendment is internally inconsistent with Policy 1.5.17, which provides, as follows: The County’s development regulations shall specifically encourage redevelopment, infill development, compatibility with adjacent uses, and curtailment of uses inconsistent with the character and land uses of surrounding area, and shall discourage urban sprawl. No evidence was introduced regarding whether the County’s land development regulations fall short of this Policy mandate. The County’s expert testified that he had not reviewed the County’s land development regulations to determine whether they met this requirement. Petitioner’s expert provided no testimony on this issue. Petitioner did not prove the Plan Amendment is inconsistent with Policy 1.5.17. Other Plan Elements Next, Petitioner contends the Plan Amendment is inconsistent with Infrastructure Element Objective 7.A.3 and Policy 7.A.3.1, which read as follows: Objective 7.A.3: The County shall maximize use of existing sewer facilities and discourage urban sprawl within infill development. In addition, limit the extension of sewer service to areas designated for urban development on the Future Land Use Map. This Objective shall be implemented through the following policies: Policy 7.A.3.1: The Future Land Use Element and Map allows density and the most flexibility for development in the areas near the Cities where sewer facilities are available, or are more feasible for sewer connections than the more remote areas. The Plan Amendment allows development of both EEPs and large-scale commercial and industrial projects regardless of the availability of existing sewer facilities to the project site. The Plan Amendment expresses no preference between, and alternately allows said development with either, access to existing sewer facilities, or provision of on-site wastewater treatment. The Plan Amendment does not change the land use designations on the existing Future Land Use Map. Nearly 580,000 acres opened up for EEPs and large-scale commercial and industrial development under the Plan Amendment is designated on the FLUM as Agriculture. Policy 1.1.1 specifically defines the Agriculture category for those areas of the County “which will continue in a rural and/or agricultural state through the planning horizon of 2040.” The Policy clearly characterizes the Agriculture designations on the FLUM as “rural areas of Hendry County,” and, while it recognizes that “some of these lands may be converted to urban uses” within the planning horizon, “the majority of the lands classified Agriculture will remain in a rural, agricultural land use through the year 2040.” Policy 2.1.2 specifically allows a public or private provider to “extend and/or expand” utilities in order to serve an EEP or large-scale commercial or industrial development. Thus, the Plan Amendment does not “limit the extension of sewer service to areas designated for urban development on the Future Land Use Map” as required by Objective 7.A.3. Likewise, the Plan Amendment does not “allow the greatest density and the most flexibility for development in the areas near the Cities where sewer facilities are available, or are more feasible for sewer extensions than the more remote areas.” Indeed, Ms. Catala testified consistently that one of the main objectives of the Plan Amendment was to provide more flexibility for development than allowed under the existing plan. Next, Petitioner maintains the Plan Amendment is inconsistent with Traffic Circulation Element Policy 8.5.3, which reads as follows: Revisions of the roads on the Future Traffic Circulation Map shall be coordinated with and connect or directly serve existing development areas or projected growth areas shown on the Future Land Use Map. The Plan Amendment does not revise any roads on the Future Traffic Circulation Map. No evidence was presented that the said revisions would not be coordinated with existing or projected growth areas shown on the Future Land Use Map. Thus, Petitioner did not prove the Plan Amendment is inconsistent with Policy 8.5.3. Next, Petitioner contends the Plan Amendment is inconsistent with Concurrency Management Element Policy 9.2.1, which reads, as follows: The Future Land Use Map is developed to coincide with the availability of public facilities and/or natural resources such that new facilities are not necessarily required for new development. The Plan Amendment allows both EEPs and large-scale commercial and industrial development to occur without regard to availability of public facilities. Although Policy 2.1.2 recognizes the importance of serving these new projects by adequate utilities of all types, it specifically allows public providers to build new, or extend existing, infrastructure to serve those developments. Further, the Plan Amendment anticipates the construction of new facilities to serve these developments, even requiring the County to accelerate projects in its Capital Improvements Program. The Plan Amendment conflicts with Policy 9.2.1 by authorizing development in areas on the FLUM for which public facilities are neither available nor planned. Future Land Use Map Series Finally, Petitioner alleges the Plan Amendment is inconsistent with the maps adopted in the current plan, specifically the FLUM and Conservation Map series. Because the Plan Amendment allows large-scale commercial and industrial developments in land use categories with which those uses are inconsistent, the location and distribution of uses shown on the FLUM are no longer accurate. The Conservation Map series indicates the generalized location in the County of eight different environmental categories, including soils, panther habitat, and historical resources. Very little evidence was adduced relative to whether the Plan Amendment directly conflicted with any one of the maps in the series. The evidence presented related more to the issue of whether the Plan Amendment was supported by data and analysis. Petitioner did not prove beyond fair debate that the Plan Amendment directly conflicts with the Conservation Map series. Urban Sprawl Petitioner’s final challenge to the Plan Amendment is that it does not discourage urban sprawl as required by section 163.3177(6)(a)9. Section 163.3177(6)(a)9.b. provides as follows: The future land use element or plan amendment shall be determined to discourage the proliferation of urban sprawl if it incorporates a development pattern or urban form that achieves four or more of the following: Directs or locates economic growth and associated land development to geographic areas of the community in a manner that does not have an adverse impact on and protects natural resources and ecosystems. Promotes the efficient and cost- effective provision or extension of public infrastructure and services. Promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system, including pedestrian, bicycle, and transit, if available. Promotes conservation of water and energy. Preserves agricultural areas and activities, including siliviculture, and dormant, unique, and prime farmlands and soils. Preserves open space and natural lands and provides for public open space and recreation needs. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. Provides uses, densities, and intensities of use and urban form that would remediate an existing or planned development pattern in the vicinity that constitutes urban sprawl or if it provides for an innovative development pattern such as transit-oriented development or new towns as defined in s. 163.3164. Petitioner maintains the Plan Amendment does not meet any of the listed criterion, thus the Plan Amendment does not discourage the proliferation of urban sprawl. The County maintains the Plan Amendment meets at least four of the foregoing indicators, and, thus, must be determined to discourage the proliferation of urban sprawl. The County’s expert witness testified that, in his opinion, the Plan Amendment meets indicators I, II, IV, V, VII, and perhaps VI. In making the following findings, the undersigned considered the testimony of both Petitioner’s and Respondent’s expert witnesses and found Petitioner’s expert opinions to be the more credible and persuasive. The Plan Amendment meets indicator I if it directs or locates EEPs and large-scale commercial and industrial development “in a manner that does not have an adverse impact on and protects natural resources and ecosystems.” The Plan Amendment contains no locational criteria for EEPs and large-scale commercial and industrial developments within the 580,000 acres of land opened up for these uses under the Plan Amendment. County staff had data, in the form of the existing conservation land use map series and the soils map, to draw from in determining areas inappropriate for these types of development. Ms. Catala did not rely upon that data, however, explaining instead that her knowledge of the location of wetlands, floodplains, and other natural resources within the subject area was derived from her day-to-day work. Ms. Catala performed no analysis of the impact of potential large-scale commercial or industrial uses on the natural resources and ecosystems which are present in the affected area. The County argues that the Plan Amendment meets criterion I because it does not allow the subject developments in the Agriculture Conservation Land Use Category, thus the Plan Amendment directs development away from natural resources located in that category. Policy 1.1.1(b). states the purpose of the Agriculture Conservation category is to define those areas within the County which are predominantly jurisdictional wetlands or contain a large portion of wetlands. Land in this category also includes state projects designed to meet the water quality and quantity goals related to the Comprehensive Everglades Restoration Plan. The policy strictly limits both the type and intensity of development which may be located within this category. For example, non-agricultural development is limited to large-lot single-family homes, clustered developments, and rural PUDs, at an intensity no greater than 0.10. The County’s argument misses the mark. The issue is not whether the uses allowed under the Plan Amendment are excluded from land in protected categories, but whether the Plan Amendment directs development away from natural resources present in the 580,000 acres affected by the Plan Amendment. The Conservation Element Map Series documents the location of wetland, floodplains, primary and secondary panther habitat, and hydric soils within the County, including the area affected by the Plan Amendment. Because the Plan Amendment allows the subject development to occur anywhere within the 580,000 acres without regard to location of natural resources, it cannot be found to direct or locate development “in a manner that does not have an adverse impact on and protects natural resources and ecosystems.” The Plan Amendment does not meet criterion I. Criterion II applies if the Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services. The Plan Amendment allows the subject development to locate without regard to the availability of public infrastructure or services. The Plan Amendment acknowledges that the development must be served, but anticipates that a public or private provider may have to extend services to the property, and does not discourage location of said projects in remote areas where said services are neither available nor planned. Further, the Plan Amendment acknowledges that the County may have to “expend funds not already provided for in the County Capital Improvement Program” to serve the development. Extending services to remote areas of the County is neither efficient nor cost-effective, especially in light of the fact that development could occur in multiple far-flung areas under the Plan Amendment. The Plan Amendment does not meet criterion II. Likewise, the Plan Amendment does not meet sprawl criterion IV because it does nothing to promote conservation of water and energy. The Amendment allows on-site utilities, including wells, to service new development. By allowing development in remote areas of the County, the Plan Amendment does not promote energy conservation. Likewise, the Plan Amendment does not meet criterion V, “[p]reserves agricultural areas and activities, including silviculture, and dormant, unique and prime farmland and soils.” The Plan Amendment does not relate to the soils map and direct development away from prime farmland and soils. Further, the Plan Amendment allows conversion of some 580,000 acres of land designated “Agriculture” to non-agricultural uses. Lands in the Agriculture land use category have been designated by the County to “continue in a rural and/or agricultural state through the planning horizon of 2040.” The Plan Amendment meets criterion VI if it “preserves open space and natural lands and provides for public open space and recreation needs.” The County’s expert testified that the Plan Amendment will increase the County’s tax base so that more public open space and recreation can be provided. Petitioner’s expert testified that the subject developments will intrude into rural open spaces and natural lands and “could change the scenic landscape” of the County. The Plan Amendment does not meet criterion VI. Criterion VII applies if the Plan Amendment creates a balance of land uses based upon demands of the residential population for the non-residential needs of the area. Neither party introduced any evidence regarding the amount of commercial or industrial development needed to serve the residential population of the County. Certainly the unemployment statistics indicate a need for employment opportunities. Petitioner did not prove that the Plan Amendment does not meet criterion VII. Criterion III and VIII do not apply to the Plan Amendment. Having determined that the Plan Amendment does not meet four or more of the criterion to be determined not to promote the proliferation of urban sprawl, the analysis then turns to the primary indicators of urban sprawl. Section 163.3177(6)(a)9.a. lays out 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl. Again, the evidence conflicted as to whether the Plan Amendment meets any of the indicators. In making the following findings, the undersigned has considered the testimony of both Petitioner’s and Respondent’s expert witnesses, and found the testimony of Petitioner’s expert to be the more credible and persuasive. The Plan Amendment meets several of the primary indicators of the proliferation of urban sprawl. The Plan Amendment allows loosely-identified EEPs and large-scale commercial development to occur in roughly 580,000 largely rural acres currently designated for Agriculture. The Plan Amendment does not limit location of these developments within the Agriculture designation. Thus, the Plan Amendment “[p]romotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while using undeveloped lands that are available and suitable for development” which is indicator II. Promoting these areas for development is, in fact, the main purpose of the Plan Amendment. Indicator IV is triggered if the Plan Amendment “[f]ails to adequately protect and conserve” a litany of natural resources and natural systems. The Plan Amendment meets this indicator because it does not direct development away from natural resources which may be located within the 580,000 acres in which it promotes development. Under the Plan Amendment, vast areas currently in, or designated for, agricultural uses, are allowed to convert to urban uses without a plan amendment. The Plan Amendment does not direct development away from existing agricultural uses. Thus, the Plan Amendment meets indicator V: “Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils.” Similarly, the Plan Amendment “[f]ails to provide a clear separation between rural and urban uses[,]” thus triggering indicator IX. On the issue of public facilities, the Plan Amendment meets both criterion VI and VII. The Plan Amendment fails to maximize the use of existing public facilities because it does not direct development to areas where public facilities, including roads, sewer, and water, are available. Likewise, the Plan Amendment fails to maximize the use of future public facilities, because it allows development to occur in areas where public facilities are not planned. In addition, the Plan Amendment anticipates the extension of facilities to serve potentially far-flung development, but would not require subsequent future development to locate where the new service was available (i.e., infill development). For this same reason, the Plan Amendment discourages infill development, triggering indicator X. Similary, because it allows scattered large-scale development, the Plan Amendment triggers indicator VIII: “Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining” a litany of public facilities and services. Petitioner did not prove by a preponderance of the evidence that the Plan Amendment triggers indicators I, III, XI, XII, and XIII. Petitioner proved that the Plan Amendment meets indicators II, IV, V, VI, VII, VIII, IX, and X. On balance, the Plan Amendment does not discourage the proliferation of urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order determining that the Plan Amendment is not “in compliance.” DONE AND ENTERED this 12th day of February, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 2015.
The Issue The issue is whether a change on the Land Use Plan (LUP) map of Respondent, Miami-Dade County (County), adopted by Ordinance No. 09-28 on May 6, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The County is a charter government that administers the Comprehensive Development Master Plan (Plan), a broad-based countywide policy-planning document to guide future growth and development. See County Exhibit 1. The LUP is a component of the Plan and contains the various land use designations. The County adopted the Ordinance which approved the change in the LUP that is being challenged here. The Department is the state land planning agency charged with the responsibility of reviewing plan amendments of local governments, such as the County. Blue Lake is a small, family-owned corporation that has owned the subject property since 1966. It submitted oral and written comments to the County during the adoption process. Flagler Retail Associates, Ltd., owns and operates a retail shopping center, Park Hill Plaza, located at 9501 West Flagler Street, around one-half mile from Blue Lake's property. It submitted comments and objections to the plan amendment during the adoption process. Flagler, S.C., LLC, owns and operates a retail shopping center, Flagler Park Plaza, at 8221 West Flagler Street, which is approximately 1.8 miles from the subject property. It also submitted comments and objections to the plan amendment during the adoption process. SC Mota Associates, Ltd., owns and operates a retail shopping center, the Mall of Americas, located at 7757 West Flagler Street, which is approximately 25 blocks from Blue Lake's property. It submitted comments and objections to the plan amendment during the adoption process. History of the Amendment A mobile home park with around 275 units occupied the property from 1957 until June 2007, when Blue Lake closed the park. At the time of the hearing, the mobile home park was around 80 percent demolished and cleared out. The property is currently listed for sale by its owners. The property is located within the County's Urban Development Boundary at the northeast corner of West Flagler Street, a six-lane divided arterial roadway running in an east- west direction and designated as a major roadway, and Northwest 102nd Avenue (also known as West Park Drive). The southwest corner of the property borders the City of Sweetwater and a small shopping center. Directly to the west of the property and across West Park Drive is a part of the Florida International University campus. To the east are the campuses of a public middle school and elementary school, while a large, single- family residential area lies to the south. Directly north of the property (and just south of State Road 836, also known as the Dolphin Expressway) is the western portion of a large multi- family residential complex (formerly a golf course) identified in the record as the Fountainbleau Park area, which stretches across Northwest 97th Avenue to the east. The County has two cycles per year for applicants to file amendments to the Plan, which may be text amendments having countywide application, or site-specific LUP map amendments having localized impact. In the April 2008 cycle, nineteen applications were filed with the County, including Blue Lake's Application No. 9. The application was filed by Gold River Corporation, which had a contract to purchase the property from Blue Lake contingent on a land use change. Gold River Corporation later assigned the contract to Blue Lake Partners, LLC, an entity unrelated to Blue Lake. The contract to purchase later "fell through" for unknown reasons. Blue Lake is now pursuing the land use change on its own behalf. Application No. 9 requested that the County amend the LUP map by changing the land use designation on a 41-acre parcel from Low-Medium Density Residential Communities to Business and Office. The former land use allows between six and thirteen dwelling units per gross acre and could be fully developed with as few as 244 residential units or as many as 533. The new land use allows both residential and commercial development, including a wide range of commercial uses such as retail, professional services, and offices. If developed to its maximum residential potential, the new category could accommodate more than 2,200 units. If developed to its maximum commercial potential, the new use would allow more than 679,000 square feet of commercial floor space. A Declaration of Restrictions is a tool permitted by the Plan to craft "a more refined amendment" that can take into consideration more than just a change in the land use of a parcel of property. See County Exhibit 1 at I-74.1. Restrictions are considered an adopted part of the Plan. Id. They can provide greater restrictions on a parcel, delineate the property's uses, and make the amendment more consistent with the Plan than it might otherwise be. In July 2008, Blue Lake offered a first Declaration of Restrictions that would prohibit residential development on the property on the premise that the change would satisfy a deficiency in land designated for commercial development. See County Exhibit 60. Land Use Element Policy LU-8E provides that applications requesting amendments to the LUP map shall be evaluated to consider consistency with the Goals, Objectives, and Policies of all Plan Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; [and] Enhance or impede provision of services at or above adopted LOS Standards; [and] Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; and Enhance or degrade environmental or historical resources, features or systems of County significance; and If located in a planned Urban Center, or within 1/4 mile of an existing or planned transit station, exclusive busway stop, transit center, or standard or express bus stop served by peak period headways of 20 or fewer minutes, would be a use that promotes transit ridership and pedestrianism as indicated in the policies under Objective LU-7, herein. County Exhibit 1 at I-17-18. The various factors in the Policy are weighed and balanced when considering a map change. However, paragraph (i) is considered by the County to be the "primary," or at the very least an "important," factor when reviewing map changes since the County must ensure that there is enough land for different types of uses to accommodate the projected growth within the County. In fact, a County witness could recall no more than one or two instances over the last thirty years where the County had approved a LUP map change when the staff had determined that there was a lack of need under this provision. Under the County's plan amendment review process, an application for a change in the LUP map is first reviewed by the Department of Planning and Zoning staff, then the applicable community council, next by the Planning Advisory Board, and finally by the Board of County Commissioners. Community councils are elected bodies from thirteen different geographic areas of the County that act as a planning board for making recommendations on amendments that affect their jurisdiction. A needs analysis determines the availability of commercial land in a given area relative to the availability of residential land. Consistent with its past practice of performing a supply and demand analysis under paragraph (i) of Policy LU-8E, the Department of Planning and Zoning staff looked at need within two minor statistical areas (MSAs). An MSA is one of 32 geographical subareas into which the County has been subdivided for the purpose of collecting and inventorying data on the supply and demand for different land uses and for disaggregating the County's population into subareas. On very infrequent occasions, the staff has used a "tier," which is an aggregation or collection of several MSAs, rather than a single MSA. Another geographic area known as a census tract, which is much smaller than an MSA, is also allowed by the Plan. See Land Use Element Policy LU-8F ("the adequacy of land supplies . . . for business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, [MSAs] and combinations thereof"). As noted below, however, the County has never used a census tract and considers them to be "inappropriate" for a needs analysis in a case such as this. Because the Blue Lake property is located within MSA 3.2 and borders on MSA 5.4, the staff conducted a supply and demand analysis in those two MSAs. After completing its review, on August 25, 2008, the staff recommended that the application be denied, mainly on the ground the amendment was inconsistent with Policy LU-8E(i). See County Exhibit 60 and Blue Lake Exhibit 24. Specifically, based on its review of MSAs 3.2 and 5.4, the staff found that there was already an ample supply of vacant and available commercial land within the study area. In fact, out of 32 MSAs within the County, MSA 3.2 had the second highest ratio of commercial activity to population. Characterizing this supply of commercial land as "significant," the staff noted that there were more than 2,500 acres of commercial land in MSAs 3.2 and 5.4 either in use or vacant, and this category would not be depleted until after the year 2025. As to residential land, the supply of that category within the MSAs would be depleted by the year 2015, and staff noted that the property was currently designated residential and could serve to satisfy the future demand for residentially designated land within the MSAs. Despite a lack of need, the staff recommended that the amendment be transmitted for further local and state review on the belief that during the subsequent review process the application could possibly be modified into a more mixed-use project and thus be compatible with the Plan. In making this recommendation, the staff did not examine other needs or deficiencies, such as the need for elderly housing or for mixed-use properties. On September 23, 2008, the amendment was reviewed by the Westchester Community Council, which recommended that the amendment be approved but only with a change to allow residential development on the property to encourage a mixed-use project. Just before the amendment was considered by the Planning Advisory Board, Blue Lake offered a second Declaration of Restrictions, which reduced the amount of proposed commercial development from 620,000 to 400,000 square feet. See Blue Lake Exhibit 35. On October 6, 2008, the Planning Advisory Board recommended approval and transmittal of the amendment with a change to allow a potential mixed-use project. Although the County staff continued to recommend that the application be denied, on November 6, 2008, the Board of County Commissioners considered the matter and voted to transmit the amendment and second Declaration of Restrictions to the Department for its review. On March 13, 2009, the Department issued its Objections, Recommendations, and Comments (ORC) Report to the County. See Petitioners' Exhibit 10. In its ORC, the Department noted, among other things, that the County had not demonstrated a need for additional commercial uses on the property since the County's need analysis demonstrated that the commercial land in the area would not be depleted until after the year 2025. The ORC went on to recommend that the County either retain the current land use or provide data and analysis to support the need for the proposed amendment and its consistency with Policy LU-8E. On March 27, 2009, the County staff issued its response to the ORC in which it agreed that there was a lack of need for the amendment and that no new data and analysis had been submitted by the applicant. On April 6, 2009, the Planning Advisory Board again considered the application and recommended approval with the acceptance of the proposed Declaration of Restrictions. On April 13, 2009, Blue Lake's consultant submitted a revised commercial needs analysis to the County which concluded that there was in fact a need for more Business and Office designated land within his defined study area. See Blue Lake Exhibit 66. As a study area, the consultant used four census tracts (rather than MSAs) comprising around two square miles. The study area, in which Blue Lake's property was located, was bounded by major roadways on three sides and a man-made canal on the fourth. The consultant noted that the three roads and canal created an insular area that discouraged residents from leaving the area and thus justified in part further commercial development in the study area. Within his study area, the consultant found the ratio of commercial to population to be 3.3 acres per 1,000 people, which is significantly below the county-wide average of 6.0 acres per 1,000 people. He also found that the study area contained 1.4 vacant acres split up in five different locations, which because of the size and distribution made the study area essentially depleted. Although the County generally uses the same type of analysis as the consultant, it disagreed with the consultant's use of a smaller selected study area as well as many of his assumptions. Further, the County has never used a census tract in performing a needs analysis. It rejected Blue Lake's alternative needs analysis on the grounds it was not peer-reviewed and it appeared to be using an inappropriate primary trade area. The Department agreed with the County's assessment of the study. Given the deficiencies cited by the County, the report submitted by Blue Lake's consultant has not been credited. On May 1, 2009, Blue Lake offered a third Declaration of Restrictions which continued to include a restriction on commercial development of 400,000 square feet, but added certain requirements addressing compatibility of the proposed development of the property with existing residential development to the north and west by prohibiting construction of buildings on the northerly two acres of the property, requiring a landscape buffer, prohibiting certain types of commercial uses on the property, and including various other requirements not relevant here. See Blue Lake Exhibit 78. On May 5, 2009, the day before the Board of County Commissioners' adoption hearing, Blue Lake submitted a fourth Declaration of Restrictions which provided that commercial development would not exceed 375,000 square feet; "up to 150 dwelling units [would be] designated for elderly housing"; "ancillary and accessory uses" for the elderly could be constructed but would not exceed 15 percent of the floor area of the elderly housing facility (or just over 25,000 square feet); the northerly two acres would be reserved without buildings or used for elderly housing; a buffer would be installed; and certain commercial uses would be prohibited. See Blue Lake Exhibit 79. Notwithstanding these restrictions, the staff was still not satisfied that a need existed for further commercial development or that the owner had a commitment to build a specific minimum number of elderly housing units. On the evening of May 5, 2009, in response to a continued concern by the County staff, Blue Lake submitted a fifth (and final) Declaration of Restrictions, which provided in relevant part as follows: Notwithstanding the re-designation of the Property to "Business and Office" on the County's LUP map, the maximum development of the Property shall not exceed the following: (a) 375,000 square feet of retail, commercial, personal services and offices; and (b) no less than 150 dwelling units designated for elderly housing, as such term is defined under Section 202 of the Fair Housing Act of 1959 (12 USC 1701) and Chapter 11A of the Miami-Dade County Code (the "Code"), along with such ancillary and accessory uses as may be desirable, necessary or complementary to satisfy the service needs of the residents, such as, but not limited to, counseling, medical, nutritional, and physical therapy, provided that such ancillary and accessory uses shall not exceed fifteen percent (15%) of the floor area of the elderly housing facility. County Exhibit 18. The final version of the restrictions differed from the fourth version by changing the words "up to 150 dwelling units designated for elderly housing" to "no less than 150 dwelling units designated for elderly housing," a change suggested by the County staff. As finally revised, the last set of restrictions allows a mixed-use development and limits the owner to less than sixty percent of the non-residential uses that could have been available under the Business and Office land use designation. It also requires the allocation of two acres of land for the development of the elderly housing units as a precondition to any commercial development of the property. This means that the only permissible use on those two acres is the construction of no less than 150 dwelling units for "elderly housing," or more than sixty percent of the minimum residential units (233) that could have been previously constructed at full development under its current land use. If an elderly component is constructed, depending on the size of the structure, it allows the owner to provide "ancillary and accessory uses" for that component that could increase the total amount of commercial use to more than 400,000 square feet. As a prerequisite to approval of its application, Blue Lake executed and recorded the fifth Declaration of Restrictions. Although the staff still "[had] concerns regarding the demand for additional commercial land in this area," and agreed that the needs test in Policy LU-8E(i) had not been met, given the foregoing restrictions, the inclusion of a mixed-use component, and the need for elderly housing in the County, it recommended adoption of the amendment. Just prior to the vote by the Board of County Commissioners on May 6, 2009, a Blue Lake attorney sent the following email to a County staffer for the purpose of clarifying the commitment that Blue Lake was making in the Declaration of Restrictions: Yesterday's revision to the Declaration [which requires no less than 150 dwelling units for elderly housing] simply expands the universe of uses that would be permitted on the property. By reducing the overall square footage of commercial development, the owner would set up the conditions to allow the future development of 150 senior housing units. However, because the development of this type of project depends on so many factors, including zoning approvals, government incentives, etc., the owner's ability to build 375,000 square feet of commercial space is not in any way dependent on whether any senior housing units are actually built on the Property or the timing of such construction. (Emphasis added) Blue Lake Exhibit 86. There is no record of any response by the staff to the email or any indication that this "clarification" was conveyed to the Board of County Commissioners prior to its vote. A copy of the email was not provided to the Department. After learning of its contents at the final hearing, a Department planner stated that he considers the Declarations of Restrictions to be controlling, and not the email. On May 19, 2009, the County staff prepared a final response to the ORC stating that while it rejected the alternate needs analysis submitted by Blue Lake's consultant, and it "partially concur[red] with the Department's view that there was a lack of need, the applicant had adequately responded to its needs objection by "commit[ting] to building a mixed-use project and to reducing the commercial floor area." County Exhibit 10 at p. 2. On June 11, 2009, the County transmitted the amendment to the Department for its compliance review. On July 29, 2009, the Department found the amendment to be in compliance and noted in a staff report that "[t]he adopted amendment provides additional information for application #9 related to need (objection #1) and road capacity (objection #2)." Petitioners' Exhibit 54. It went on to say that "the County adequately responded to the Objection [regarding need] by reducing the commercial uses and introducing a mixed use component by adding residential units." Id. The Department's report added that Blue Lake had "committed to building a mixed use project which reduces commercial area from 679,535 square feet . . . to 375,000 square feet . . . [,] the mixed use development is supported by FLUE Policy LU-10A and Land Use Concept #8, [and] the mixed use development reduces the potential loss of housing units on the site, which is supported by Goal 1 of the Housing Element." Id. On August 3, 2009, the Department published in the Miami Herald its Notice of Intent to find the map change in compliance. On August 26, 2009, Petitioners filed their Amended Petition with the Department generally contending that the map change was not supported by adequate data and analysis for new commercial development in the area and that the change in land use would have an adverse impact on traffic. The latter objection was later withdrawn. As clarified in Petitioners' Proposed Recommended Order and the Stipulation, they contend that the plan amendment is inconsistent with Land Use Element Policies LU-8E(i), LU-8F, and LU-10A, Land Use Concept No. 8, and Housing Element Goal 1, as well as the requirements of Florida Administrative Code Rules 9J-5.005(2) and 9J- 5.006(2)(c).2 Petitioners' Objections Petitioners first object to the amendment on the ground that the amendment is not consistent with Policy LU-8E(i) because there is no demonstrated need for more commercial land in the study area. That Plan provision requires that map amendments "shall" be evaluated against all goals, objectives, and policies of the Plan, "and in particular" whether the amendment satisfies "a deficiency in the Plan map to accommodate projected population or economic growth of the County." Similarly, while Petitioners agree that the data and analysis used to support the amendment are relevant and appropriate, and were applied in a professional manner, they contend the data support a continuation of the current residential land use. Despite efforts by the County at hearing to downplay the importance of Policy LU-8E(i) in its review process, it can be inferred that a needs analysis under that provision is one of the most important, if not primary, consideration when reviewing LUP map changes. This is borne out by the fact that except for one or two occasions, the County has never approved a map change over the last thirty years without a needs analysis supporting that change. The evidence supports a finding that the amendment is inconsistent with Policy LU-8E(i) because there is no need for 375,000 square feet of new commercial development within the study area (MSAs 3.2 and 5.4). More specifically, the relevant data and analysis used by the County reveal that the MSA in which the property is located (MSA 3.2) has the second highest ratio of commercial activity to population of the 32 MSAs in the County; that the supply of existing or available commercial land use will not be depleted for at least another fifteen years; and that there is no "deficiency" of commercial land in the study area to accommodate projected population or growth, as required by the Policy. Although the amendment will authorize at least 375,000 square feet of new commercial development, both the County and Department concede that a need for more commercial land does not exist. It is beyond fair debate that the amendment is inconsistent with Land Use Element Policy LU-8E(i). Likewise, because the data and analysis do not support the amendment, but rather support a contrary result, the County reacted to the data in an inappropriate manner. See Fla. Admin. Code R. 9J-5.005(2). The County and Blue Lake argue, however, that even though no need for commercial land exists, the final version of the Declaration of Restrictions incorporates a provision requiring an elderly housing component, which when combined with the commercial component, changes the character of the land to a mixed use. By Blue Lake offering this restriction, they argue that the application, as amended, furthers other Plan provisions that encourage affordable housing for the elderly (e.g., Housing Element Goal 1, Objective HO-9, and Policy HO-9A) and furthers provisions that encourage the rejuvenation of decayed areas (in this case a 50-year-old mobile home park) with a mixture of land uses (e.g., Land Use Element Policy LU-10A and Land Use Concept 8). Thus, they contend that the "need" requirement in Policy LU-8E(i) is now met because Blue Lake is satisfying a deficiency in both the supply of elderly housing as well as mixed uses. To support the contention that a need for elderly housing exists, the County posited that there is a need, "in general," for elderly housing in the County. It also pointed out that between the years 2000 and 2008 there was a small percentage increase in the number of persons over 65 years of age residing in the County. See County Exhibit 64. But the County agrees that the needs test in Policy LU-8E(i) does not distinguish between different types of residential use, such as whether properties are available for elderly residents. Neither does the test assess the need for mixed uses. Therefore, regardless of whether or not there is a need for elderly housing or mixed-use projects, any such need does not address the needs test in Policy LU-8E(i). Even assuming arguendo that it does, the County made no study of the need for "elderly housing" or "mixed use projects" within MSAs 3.2 and 5.4. The County and Blue Lake also contend that the proposed mixed use furthers other laudable provisions within the Plan, which more than offset any lack of commercial need. While development of the property under the current or not yet effective new land use would certainly "rejuvenate" an area now occupied by a closed, 50-year-old mobile home park, and result in the redevelopment of what is now probably a substandard urban area, see Land Use Concept 8 and Land Use Policy LU-10A, furtherance of those provisions by creating a new commercial land use category does not trump the lack of need for more commercial land. Similarly, the Department found the amendment, as adopted, was in compliance because the final version of the Declarations of Restrictions introduced an elderly housing mixed-use component, which essentially negated the lack of need for commercial development. It is fair to infer from the evidence that, like the County, the Department made this determination in the belief that the elderly housing component was intended to address a need for affordable or subsidized housing for senior citizens. Petitioners contend, however, that the final version of the Declarations of Restrictions does not truly provide for an elderly housing/mixed use in this context. The fifth version of the Declaration of Restrictions references the term "elderly housing" as that term is defined in "Section 202 of the Fair Housing Act of 1959 (12 USC 1701)" and "Chapter 11A of the County Code." Because the federal law, related regulations, and the entire Chapter 11A were not made a part of the record by any party, it is appropriate to take official recognition of those matters. The federal regulation (section 1701) referred to in the amendment relates to "supportive housing for the elderly" and the federal assistance programs administered by the United States Secretary of Housing and Urban Development. Its provisions are lengthy, cumbersome, and complicated, and they have been amended numerous times since their adoption. While the terms "elderly person" and "frail elderly" are defined in sections 1701q(k)(1) and (2) of the regulations, the undersigned was unable to find a specific definition of "elderly housing," and counsel have provided no citation. Chapter 11A of the County Code is a civil and human rights ordinance that is enforced by a County Commission on Human Rights. In its Proposed Recommended Order, the County has cited Section 11A-13(5) as the provision that defines the term. See County Exhibit 157. That provision enumerates "[e]xceptions to unlawful practices" and defines "housing for older persons" in the context of unlawful housing practices, but not in the context of a land use change. Therefore, it has little, if any, value in deciphering the meaning of the term "elderly housing" in the Declaration of Restrictions. When asked to define the term "elderly housing" as used in the Declaration of Restrictions, no witness could give a precise answer or refer to any provision in the federal law or County Code where a definition of that term is found. Therefore, if an elderly component is ever built on the property, it is fair to infer that the developer has wide discretion in choosing the type of units built and their price, and there is no guarantee or requirement that they be targeted for anyone except "elderly" persons, whatever age and associated income status that may encompass. Because of these ambiguities and uncertainties, the inclusion of an elderly housing component does not further the goals, objectives, and policies of the Plan encouraging affordable housing for all citizens, including the elderly, that the County relies upon to support the amendment. Finally, the fifth Declaration of Restrictions permits a developer to either construct elderly housing or merely reserve for an indefinite period of time the northerly two acres of the 41-acre tract free from construction of buildings. If construction ever occurs on those two acres, the only permissible use is "no less than 150 dwelling units for elderly housing." Petitioners contend that the commitment is illusory since there is no requirement that a residential component ever be built. The County and Blue Lake point out, however, that when a map amendment is approved, there are no timetables for when development must actually occur. Similarly, the Department does not look at the timing of development when an amendment is reviewed, and the fact that there is no time limitation in the amendment does not render it out of compliance. While it is reasonable in this case to question whether an elderly housing component will ever be built, the plan amendment simply approves a map change, and Petitioners have not cited any Plan requirement, Department rule, or statute that mandates development within a certain period of time in order for a map change to be in compliance. Petitioners' argument is rejected. In summary, it is beyond fair debate that (a) the plan amendment is internally inconsistent with Land Use Policy LU- 8E(i); (b) the change in land use is not supported by the most relevant and appropriate data and analysis; (c) by adopting the amendment, the County reacted to the data and analysis in an inappropriate manner; (d) the reference to "elderly housing" is ambiguous, vague, and uncertain and does not further Plan provisions that encourage affordable housing within the County; and (e) even if the plan amendment furthers other Plan provisions that encourage the rejuvenation of decayed urban areas with mixed uses, on balance this consideration does not outweigh the foregoing deficiencies. All other contentions by Petitioners not specifically discussed herein have been considered and rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment (Application No. 9) adopted by Ordinance No. 09-28 on May 6, 2009, be found not in compliance. DONE AND ENTERED this 14th day of July, 2010, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2010.
The Issue The issue is whether a change on the Future Land Use Map (FLUM) of the Comprehensive Plan (Plan) adopted by Respondent, Manatee County (County), by Ordinance No. 09-31 on August 11, 2009, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, including the County. The County is a local government that administers its Plan, which it amends from time to time. The County adopted the Ordinance which approved the change in the FLUM being challenged here. Petitioner is a Florida limited liability company with offices located at 4379 Ocean Boulevard, Sarasota, Florida. It owns property in the County. Petitioner appeared at the transmittal hearing for the amendment and submitted comments on the record in opposition to the amendment. FBE is a Florida limited liability company and has contracted to purchase the subject property from Patron. It operates a renewable energy development company in the County. It submitted comments to the County during the adoption process. Patron is a Florida limited liability company that owns the subject property. It submitted comments in support of the plan amendment during the adoption process. History of the Amendment On March 27, 2009, FBE (as agent for Patron) filed a Land Development Application (application) with the County Planning Department requesting approval of a FLUM change for the property from IL to P/SP(1). See Joint Exhibit 1. The existing IL land use authorizes office, light industry, research/ corporate parks, warehouse distribution, intensive commercial uses, neighborhood retail uses, hotel/motel, selected single- family, and residential uses. See Joint Exhibit 12. The Plan describes the general range of potential uses under the new category as recreational uses, sanitary landfills, permanent water and wastewater treatment/storage/disposal facilities, and other public facilities including, but not limited to, public airports, major maintenance facilities, solid waste transfer stations, and major utility transmission corridors. Id. Residential uses are not allowed. One intent of the P/SP(1) category is to recognize facilities associated with private utilities, such as the biomass plant proposed by FBE. Id. The application indicated that FBE intends to operate a sixty-megawatt biomass integrated power plant on the property and to continue to retain all uses allowed by the IL category. (In contrast to a power plant that uses coal or oil to generate electricity, a biomass plant uses renewable energy sources such vegetative materials to create electric energy.) The power generated at the facility will be sold to Progress Energy Florida, an investor-owned public utility. The application was accepted, numbered PA-09-08, and assigned Ordinance No. 09-31. Sometime in early April 2009, a staff report was prepared by the County's Principal Planner, Leon Kotecki, which included land use characteristics and development trends, plan amendment justification, and positive and negative aspects of the application and mitigating factors. See Joint Exhibits 5 and 6. The staff report also included what is described as a Plan Amendment Detailed Review and Land Planning Analysis that discussed services and natural features, urban development considerations, and consistency with the Plan, the State Comprehensive Plan (State Plan), Florida Administrative Code Rule Chapter 9J-5,1 and relevant portions of the Florida Statutes (2009).2 The report recommended that the application be approved. In making this favorable recommendation, the planner compiled and reviewed data on land compatibility, traffic impacts, and water and sanitary uses. He also took into account the topography of the site, how the Coastal High Hazard Area (CHHA) affected the site, its proximity to Port Manatee, and the surrounding uses. On April 4, 2009, the County published an advertisement of a public hearing on the application in the Bradenton Herald and the Sarasota Herald Tribune. Also, letters were sent to all property owners within 500 feet of the proposed amendment. Petitioner received personal notice of the amendment by letter dated May 20, 2009. On April 16, 2009, the Planning Commission conducted a hearing on the plan amendment and by a 4-1 vote recommended transmitting the amendment to the Board of County Commissioners. On April 21, 2009, the Board of County Commissioners conducted a public hearing and voted 6-0 to transmit the proposed amendment (as a part of a larger amendment package) to the Department for its review. On June 29, 2009, the Department issued its Objections, Recommendations, and Comments (ORC) report for a series of map amendments, including the biomass project. See Joint Exhibit 4. In the ORC, the Department lodged an objection regarding the lack of sufficient planning guidelines as required by Future Land Use Element (FLUE) Policy 2.2.1.22(4)(b)(i), specifically noting that the amendment did not restrict the property to a particular use. Id. at p. 3. That policy requires that an amendment for a proposed P/SP(1) category include a declaration of the specific use for which the P/SP(1) category is sought. The ORC also indicated that the amendment was not consistent with various goals, policies, and objectives in the State Plan for the reasons cited in the Objections portion of the ORC. Id. at pp. 3-4. The ORC recommended that the amendment include site-specific policies establishing meaningful and predictable guidelines and standards to guide development on the site. Id. at p. 3. After receipt of the ORC, the County revised the plan amendment by including a text amendment containing ten conditions (stipulations) that would apply if the property was developed as an electric generating facility using biomass fuels and/or solar energy. These conditions were included in the adopting ordinance as a new Section D.5.4 in the General Introduction Chapter and are a part of the Plan. See Joint Exhibit 10 at pp. 4-5. The new section provides that the property is limited to an "electricity generating facility using only biomass fuels and solar energy retaining the light industrial uses as provided for in the former IL Industrial Future Land Use Category applicable to the site." Id. at p. 4. The section further provides that the ten conditions are "minimal requirements" and that further conditions may be added during the development process, as necessary. Id. at p. 5. Thus, future stipulations at a later date can exceed the minimum requirements in the County's Land Development Code. On August 11, 2009, the County conducted a public hearing and adopted Ordinance No. 09-31, with the changes presented by its staff. On September 29, 2009, the Department published its Notice of Intent to find the amendment in compliance in the Bradenton Herald. On October 20, 2009, Petitioner filed its Petition challenging the map change and text amendment. The issues have been more narrowly defined in its Proposed Recommended Order and can be summarized as follows: the amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and is inconsistent with Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it impermissibly allows IL uses in the P/SP(1) land use category; the amendment is inconsistent with Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes, because it impermissibly expands the uses in the P/SP(1) category by including IL uses and does not contain the required intensity standards; the amendment is internally inconsistent with FLUE Policy 2.2.1.22.4.(b)(i) because it fails to declare a specific use for the IL uses; the amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3); the amendment is inconsistent with the requirements of Rules 9J- 5.006(2)(b) and 9J-5.005(2)(a) and Section 163.3177(6)(a), Florida Statutes, because it is not based on an analysis of the best available data regarding the suitability of the site for a biomass facility; and the amendment is inconsistent with the requirements of Rule 9J-5.005(2)(a) because it was not based on an analysis of the best available data for compatibility with residential uses in the surrounding area. The Property and Surrounding Uses Patron's property consists of around 44.4 acres and is located at 11551 and 11805 U.S. Highway 41 North in the northwest part of the County, just south of the Hillsborough County line. The eastern side of the property adjoins U.S. Highway 41, a major four-lane highway running north-south, while property owned by CSX Corporation (CSX), including an active railroad track, and then a large drainage canal border the site on its western side. (The railroad track is around one-quarter mile west of U.S. Highway 41.) West of the canal is agricultural land and a large parcel owned by Port Manatee designated as IL but used as conservation lands. To the south (in IL-designated land) lies an aircraft parts manufacturing facility owned by Trielectron Industries, which shares a boundary with Petitioner's property. To the north, the site adjoins property owned by Florida Power & Light Company, on which a substation is located. FBE plans to connect its power plant to the electric grid through this substation. The property is bisected by Armstrong Road, an unpaved County-maintained road running east-west, which provides access from U.S. Highway 41 to Patron's property and the land just west of the CSX property. Approximately one-third of the property lies north of Armstrong Road, while the remaining two-thirds lie south of the road. The southern 450 to 500 feet of the site consists of wetlands, forests, and vegetation, which serve as both a distance and visual buffer to uses to the south and southwest. (Because of these wetlands, a biomass plant would have to be constructed on the middle of the site.) Immediately west of the CSX property is an unpaved road that turns south to provide access to row crop fields and then to an 88-acre, rectangle-shaped parcel owned by Petitioner. Port Manatee, a deepwater seaport connected to the Gulf of Mexico through Tampa Bay, is less than a mile north of the site. The area between Port Manatee and Patron's property contains port-related uses which are mostly industrial uses such as construction yards and an aggregate plant. To the east of the port is a closed phosphate processing plant and associated phosphogypsum stacks, which are the remains after the phosphate is processed. The existing zoning on the property is Planned Development Encouragement Zone (PDEZ). The existing uses allowed under that category include a range of light and heavy industrial uses and are listed on the General Development Plan approved by the County on December 4, 2008. See County Exhibits 13 and 24. This information is relevant here because the zoning classification is consistent with the County's intent to focus heavy industrial uses within close proximity to Port Manatee. Development trends in the area of Port Manatee and the Patron property are predominately industrial. All of the surrounding development is either light or heavy industrial uses with the exception of six single-family homes located on Chapman Road, which terminates on the eastern side of U.S. Highway 41 just south of the site and extends eastward. The homes are located in a strip of land extending east on Chapman Road for a quarter mile or so and south for around a mile on the eastern side of U.S. Highway 41 that is classified as Retail/Office/ Residential (ROR). That category allows a range of uses including retail, wholesale or commercial uses, and public or semi-public uses. Thus, the residential units have the potential to eventually transition to nonresidential uses without a map change. There remain a few open parcels of land in the area that are available for additional development. Petitioner's property comprises around 88.7 acres. The southwest corner of Patron's property lies around one- quarter mile from the northeast corner of Petitioner's property. Counting the 450-foot green space on the southern end of Patron's property, the distance between the site of the plant and Petitioner's main parcel is around 1,900 feet. Petitioner also owns a narrow strip of land extending northward from the main parcel to Armstrong Road. This strip adjoins the western side of the CSX railroad track and provides access to the property from U.S Highway 41. On November 30, 2004, the County approved a residential project for Petitioner's property and rezoned the land from Suburban Agriculture and Suburban Agriculture/Coastal High Hazard Overlay District to Planned Development Residential/ Coastal High Hazard Overlay District. The project is known as the Estates at Bishop Harbor. The Preliminary Site Plan for the property depicted 66 lots for single-family detached residences. Before any development occurred, however, the original developer defaulted on the mortgage held by Petitioner, a foreclosure occurred, title to the property reverted to Petitioner, and no development ever occurred. The property is still vacant. At the time of the hearing, Petitioner had an application pending before the County to change the land use designation on 83.31 acres from Residential-1 (one dwelling unit per acre) to IL. The outcome of that application is unknown. The remaining 5.39 acres are already designated IL. Based on these circumstances, it is fair to infer that the long-delayed construction of the planned residential subdivision is questionable. Stipulation 6 of the approval of the change in land use on Petitioner's property was a requirement that a Notice to Buyers be included in the Declaration of Covenants and Restrictions and in the sales contracts or a separate addendum to the sales contracts and final site plans that includes language informing prospective homeowners that there are neighboring industrial uses and the potential for future industrial development including possible truck traffic and noises associated with industrial uses. Petitioner's Objections Petitioner first contends that the plan amendment is internally inconsistent with FLUE Policy 2.2.1.22.2 and inconsistent with the requirements of Rule 9J-5.006(3)(c) and Section 163.3177(6)(a), Florida Statutes, because it permits light industrial uses in the P/SP(1) land use category. Petitioner argues that IL uses are not permitted in the P/SP(1) category. It also argues that by failing to include specific intensity standards in the amendment for the allowed IL uses, the amendment is inconsistent with the requirements of Rule 9J- 5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. The rule requires that the FLUE contain policies regulating land use categories included on the FLUM and establishing standards for intensities of use for each future land use category. The statute requires that each land use category be defined in terms of uses allowed and include standards to be followed in the control and distribution of building and structure intensities. Policy 2.2.1.22 establishes the P/SP(1) land use category; Policy 2.2.1.22.1 describes the intent of the category; Policy 2.2.1.22.2 describes the general range of potential uses in the category; and Policy 2.2.1.22.3 provides the range of potential intensity for the category. The general range of potential uses in the P/SP(1) category include: Recreational uses, sanitary landfills, permanent water and wastewater treatment/ storage/disposal facilities and other major public facilities including but not limited to, airports owned or operated by a public entity, major maintenance facilities, solid waste transfer stations, [and] major utility transmission corridors. Also, when the P/SP(1) designation is an easement on privately-held property, other uses consistent with the adjacent future land use category or categories, where consistent with the purpose of the easement and consistent with all other goals, objectives, and policies of this Comprehensive Plan, may also be considered. (See also Policy 2.1.1.5) Policy 2.1.1.5 provides further clarification on the allowed uses in this category by requiring that the County ensure the availability of sufficient land in the P/SP(1) category "to allow development of major public or semi-public uses (e.g., electrical generation facilities . . .) in appropriate areas when compatible with surrounding development." Joint Exhibit The Plan permits light industrial uses within the P/SP(1) category. Notwithstanding the broad range of uses described above, FLUE Policy 2.2.1.5 provides the County with more flexibility in determining the appropriate uses for any given plan category. The policy states that the future land use category listings of uses are "generalized," they are not "all inclusive," and they "may be interpreted to include other land uses which are similar to or consistent with those set forth in the general range of potential uses." See Joint Exhibit 12. IL uses are similar in character and intensity to the type of uses listed in the P-SP(1) category. Because the property was classified as IL before the amendment, all of the IL uses in that category have been evaluated and determined by the County to be appropriate in terms of location, impact, and intensity. For these reasons, it is fairly debatable that the plan amendment is consistent with FLUE Policy 2.2.1.22.2, Rule 9J- 5.006(3), and Section 163.3177(6)(a), Florida Statutes. Likewise, the P-SP(1) category has a broad range of uses in terms of intensity, and even though the amendment does not contain specific intensity standards for the IL uses, the Plan contains other provisions required by Chapter 9J-5 to ensure compatibility between any future uses on the site and the surrounding properties in terms of intensity. Therefore, it is fairly debatable that the plan amendment is consistent with Rule 9J-5.006(3)(c)1. and 7. and Section 163.3177(6)(a), Florida Statutes. Petitioner further argues that the plan amendment is inconsistent with FLUE Policy 2.2.1.22.2.4(b)(i), which requires that "[a]n applicant shall be required to declare a specific use or uses for a specific piece of property for which the applicant is proposing to amend the existing future land use category to P/SP(1)." Petitioner argues that while FBE has identified one specific use for the P/SP(1) category -- a biomass plant -- it has not declared the specific use or uses which FBE is proposing under the IL category. Because the light industrial uses allowed under the IL category remain the same as before the amendment, and were previously evaluated when the Plan was originally adopted in 1989, it is fairly debatable that the amendment is consistent with FLUE Policy 2.2.1.22.2.4(b)(i). The generalized reference to IL uses is adequate since it merely recognizes uses already approved and in effect. In its Proposed Recommended Order, Petitioner also contends that the plan amendment is inconsistent with the financial feasibility requirements of Section 163.3177(2), Florida Statutes, and Rule 9J-5.019(3) because the County's five-year Capital Improvements Program contains no programmed improvements for U.S. Highway 41. The rule requires that there be a transportation analysis to support a FLUE amendment. However, this issue was not raised in the parties' Stipulation and need not be addressed. See Heartland Environmental Council, Inc. v. Dept. of Comm. Affrs., et al., Case No. 94-2098GM, 1996 Fla. ENV LEXIS 163 at *63 (DOAH Oct. 15, 1996, DCA Nov. 25, 1996)("[a party] is bound by the allegations in its Petition for Hearing . . . as further limited by the Prehearing Stipulation"). Even if it was a viable issue, the evidence shows that during the review and adoption process, the County relied upon a Florida Department of Transportation traffic analysis link sheet for February 2009 and information supplied by the applicant, which show that the current levels of service (LOS) on U.S. Highway 41 are A and B, that the projected number of peak hour trips will actually result in an overall net decrease in trips when compared to the existing Plan category, and that no capital improvements are needed. See Joint Exhibit 2 at pp. 14-15; Joint Exhibit 4. An assertion by Petitioner that the LOS on U.S. Highway 41 may deteriorate if a biomass plant is not built and the IL uses are developed to their maximum potential is speculative at best and not supported by the evidence. Petitioner next contends that the amendment is inconsistent with the requirements of Section 163.3177(6)(a), Florida Statutes, and Rules 9J-5.005(2)(a) and 9J-5.006(2)(b) because it was not based on the best available data regarding the suitability of the site for the biomass facility. The statute requires that the FLUE be based on "surveys, studies and data regarding the area, including . . . the character of undeveloped land." Rule 9J-5.005(2)(a) requires that the amendment be based on relevant and appropriate data and analysis, while Rule 9J-5.006(2)(b)3. requires that the amendment be based on an analysis of the character of the land in order to determine its suitability for use, including the topography of the site. In support of this argument, Petitioner points out that when the County planner reviewed the amendment, he assumed that less property was within the CHHA than was depicted on the FLUM, that a majority of the property was at or above 10 feet in elevation, and that it would not flood in a Category I storm event. The planner reached this conclusion based on a review of large-scale United States Geological Survey (USGS) topographic maps and Light Detecting And Ranging (LIDAR) maps. However, an undated topographic survey (prepared for an earlier prospective purchaser of the Patron property and given by Patron to FBE when it signed a contract to purchase the property) and a technical memorandum prepared by FBE's consultant, Golder Associates, Inc., on March 31, 2009, reflected that much of the property lies within the CHHA at an elevation of five feet or less, or below the 5.8-foot storm surge elevation for a Category I storm event. This information was in the personal files of FBE's president and its out-of-town consultant and was not given to the County prior to the adoption of the amendment. Petitioner argues that this information is the best available data, and that if the County had been given these documents during its review process, it would have determined that the Patron property was not suitable for industrial uses. The County was not given the survey and memorandum prepared by the FBE consultant because that information was prepared only for use at the site plan review stage. This is not unusual since the County does not require signed and sealed surveys and engineering reports during the amendment process. While the data were in existence prior to the adoption of the map change in August 2009, they were not disclosed until a few days before final hearing (through discovery) and consequently were not "available for public inspection" prior to the amendment's adoption. After analyzing the new data (over objection of opposing counsel) for the first time at hearing, the County planner indicated that if he had known that the elevation was lower than that depicted on the USGS maps, he would have "given [the application] closer consideration." Even so, he emphasized that his recommendation would still be the same because any development on the site can be protected during the development process by berms, suspension of units aboveground, and other development standards. Assuming arguendo that the data were "available for public inspection" and should have been considered for that purpose, given the rigorous standards that apply during the site approval process, it is still fairly debatable that the amendment is supported by adequate data and analysis as to the suitability of the site and that the County reacted to it in an appropriate manner. Similarly, Petitioner points out that the technical memorandum prepared by FBE's consultant on March 31, 2009, revealed that the soils on the site are not suitable for a heavily loaded structure such as a biomass plant. Therefore, it argues that the amendment was not based on professionally acceptable data and analysis with respect to the suitability of the property to support a biomass plant, as required by Section 163.3177(6)(a), Florida Statutes, and Rules 9J- 5.005(2)(a) and 9J-5.006(2)(b)2. The latter rule requires a land use analysis for soils in order to determine the suitability of proposed uses on the site. In addressing this issue in the staff report, the planner relied upon the 1983 Soil Survey of Manatee County and determined that the property had three types of soil: Bradenton Fine Sand; Chobee Loamy Fine Sand; and Wabasso Fine Sand. See Joint Exhibit 2 at p. 17. He further determined that these three soils are "poorly drained, level to nearly level, sandy to loamy, and underlain by sandy marine sediment and limestone." Id. However, because several heavy industries are already operating adjacent and within the immediate surrounding area with the same type of soil limitations, he concluded that the soil limitations could be "overcome by the proper design of drainage facilities and engineering design of buildings." Id. It is fairly debatable that the data and analysis are adequate to support the amendment in this respect, and that the County reacted to that data in an appropriate manner. Petitioner further argues the amendment violates Rule 9J-5.005(2)(a) because it is not based on a compatibility analysis of the industrial uses with the residential uses in the surrounding area. Like the preceding two objections, this one is framed in terms of a lack of the best available data to support the amendment. In its Proposed Recommended Order, Petitioner also cites as being relevant to this objection FLUE Policies 2.1.1.5 and 2.2.1.22.4.(b)(i), which require that a change in land use to P/SP(1) only be made "in appropriate areas when compatible with surrounding development," and that an applicant "provide information and analysis on the compatibility of the proposed use or uses . . . with surrounding development." Petitioner points out that there are six single-family homes, characterized by one expert as an "artifact" from an earlier era, that extend out one-half mile along Chapman Road to the east/southeast of Patron's property, and that the County failed to consider the compatibility of industrial uses with those homes. It also argues that the County's analysis was based on the construction of a sixty-megawatt facility, as proposed by FBE, and did not consider a larger, more intense facility. In making its compatibility analysis for the surrounding area, the County considered all residences on Chapman Road extending out eastward a quarter to a half mile, which included the six houses in question. With the exception of the six houses, the data relied upon by the County reflected that the entire surrounding development is either light or heavy industrial uses, which is consistent with the County's focus to encourage industrial development in the Port Manatee area. The six houses are in a strip of land designated as ROR, which allows a mix of retail, office, and residential uses. Some of the existing uses that are near the homes, and within the ROR category, are considered "intensive." Given this type of development, it is highly unlikely that more homes will be constructed in the ROR area. If and when a biomass plant is constructed, existing development standards will be used to ensure compatibility with the ROR uses. Petitioner did not refute this evidence. When considering the area and uses as a whole, it is fairly debatable that there are adequate data and analysis to support a determination that the new land use will be compatible with the residential uses in the surrounding area. All other issues raised by Petitioner and not addressed herein have been considered and found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order denying USFG's Petition and determining that the plan amendment adopted by Ordinance No. 09-31 is in compliance. DONE AND ENTERED this 28th day of July, 2010, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2010.
The Issue The general issue for determination in this case is whether Amendment 00-D1 to Sumter County’s comprehensive plan (the “Plan Amendment”) is "in compliance" with the Local Government Comprehensive Planning and Land Development Act, Sections 163.3161 through 163.3217, Florida Statutes. (All statutory references are to the 2000 codification of the Florida Statutes.) The initial Petition to Request Administrative Hearing (Petition) alleged numerous reasons why the Plan Amendment should be found not "in compliance." But from the time of the initial Petition--through the Joint Prehearing Stipulation, opening statement at final hearing, and Proposed Recommended Order (PRO)--Petitioners reduced the number of reasons why they contend that the Plan Amendment is not "in compliance" to the following: simultaneous conversion of Future Land Use (FLU) from Agricultural to PUD allegedly inconsistent with parts of the County's Plan's; alleged lack of demonstrated need for land use allocations contrary to Section 163.3177 and Florida Administrative Code Rules Chapter 9J-5 (all rule citations are to the Florida Administrative Code); conversion of FLU from Agricultural to PUD allegedly inconsistent with the Plan's Policy 4.6.1.1 (the so-called "90% rule"); and alleged failure to discourage urban sprawl contrary to Rule 9J-5.0006(6). These are the only compliance issues that still have to be addressed in this proceeding. In addition, Intervenor contends that Sumter Citizens Against Irresponsible Development (SCAID) does not have standing.
Findings Of Fact Intervenor, the Villages of Lake-Sumter, Inc., owns land in the northeast part of Sumter County on which Intervenor plans to construct a mixed-use development of regional impact (DRI) known as the Villages of Sumter. The proposed DRI will encompass approximately 4,679 acres and is anticipated to contain: 11,097 residential dwelling units; 1,250,000 square feet of commercial area; 250,000 square feet of office area; 157,000 square feet of institutional area; 120,000 square feet of hotel (300 rooms); 100,000 square feet convention center; 23,500 square feet of movie theater (8 screens); 512 acres of golf courses (126 holes); 8 marina slips; 602 acres of wildlife management and Kestrel foraging areas; 162 acres of lakes, 162 acres of roads, 31 acres of parks and buffers; and 227 acres of stormwater and open space. The proposed DRI will feature neighborhood and town centers and will extensively utilize clustering, open spaces, and buffering as part of its design. It is anticipated that the Villages of Sumter DRI will have an internal vehicle capture rate of over 60%--i.e., over 60% of vehicle trips starting in the DRI will not go outside the DRI. The DRI will provide water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. Eighty percent of the residents in the Villages of Sumter DRI will have to be occupied by persons 55 of age or older, and no one under 19 will be permitted to reside within this DRI. When Intervenor filed its Application for Development Approval (ADA) for the Villages of Sumter DRI, Intervenor also requested the subject Plan Amendment to accommodate the DRI, including a change in the Future Land Use Element (FLUE) and FLUM from Agricultural use to UEA and PUD. The ADA itself served as a major part of the data and analysis supporting the Plan Amendment. (Another major part of the data and analysis was the Evaluation and Appraisal Report (EAR) prepared by the County in 1995.) The western part of the northern boundary of the Plan Amendment parcel (i.e., the Villages of Sumter DRI) will be the western part of the southern boundary of a related DRI developed by Intervenor known as the Tri-County Villages. From there, the Tri-County Villages DRI extends north to the southern border of Marion County and east to the western border of Lake County. (Towards the east, the northern boundary of the DRI drops just a little south of the southern border of Marion County.) Tri- County Villages is a large mixed-use DRI. It includes residential, commercial, recreational, and open space land uses. Prior to the Tri-County Villages DRI, Intervenor or its predecessor also developed other related mixed-use DRIs to the east in Lake County. SCAID was formed in 1993 or 1994 to oppose the Tri- County Villages DRI and 1994 comprehensive plan amendments adopted to accommodate the Tri-County Villages DRI. SCAID, T. Daniel Farnsworth, and James E. Boyd filed a petition initiating Sumter Citizens Against Irresponsible Development, T. D. Farnsworth, and James E. Boyd vs. Department of Community Affairs and Sumter County, DOAH Case No. 94-6974GM, to oppose DCA's determination that the County's 1994 amendments were "in compliance." SCAID, Farnsworth, and Weir are collaterally estopped to deny facts established in DOAH Case No. 94-6974GM (SCAID I). (Latham and Roop are not estopped.) See Conclusions of Law 63-64, infra. In any event, all Petitioners agreed to official recognition of the Final Order entered in DOAH Case No. 94-6974GM. Among the facts established by adoption of the Recommended Order by the Final Order in SCAID I was the history of the earlier DRIs, the Tri-County Villages DRI, and the comprehensive plan amendments required by the Tri-County Villages DRI: [¶4] [I]ntervenor [Villages] is the owner and developer of the Tri- County Villages development located in unincorporated Sumter County. Development which predated the existing Tri-County Villages development commenced in approximately 1968 with Orange Blossom Garden North (OBGN). OBGN was an approximately 1,000-acre project owned and operated by Orange Blossom Hills, Inc. as a mobile home retirement community located mostly in the Town of Lady Lake, Florida. That community lies in the northwestern corner of Lake County, which adjoins the northeastern corner of Sumter County. Because the development of OBGN commenced prior to July of 1973, it is vested for purposes of development of regional impact (DRI) review pursuant to Section 380.06(20), Florida Statutes. [¶5] In 1987, Orange Blossom Hills, Inc. submitted an Application for Development Approval (ADA) with the Town of Lady Lake which requested authorization to develop Orange Blossom Gardens South (OBGS). The OBGS development was an approximately 595-acre extension of the vested OBGN retirement community and was determined by the DCA and Town of Lady Lake to be a DRI. On January 18, 1988, the Town of Lady Lake approved the proposed OBGS development. [¶6] In 1989, Orange Blossom Hills, Inc. submitted to the Town of Lady Lake and the County an ADA requesting a substantial deviation from the OBGS DRI. The substantial deviation request sought authorization to develop Orange Blossom Gardens West (OBGW). OBGW was planned as an approximately 1,700-acre extension to the OBGS DRI. The Town of Lady Lake approved the substantial deviation request through the issuance of an Amended Development Order on May 7, 1990. The County approved the development within its jurisdiction on May 29, 1990. [¶7] In September 1993, intervenor, as successor to Orange Blossom Hills, Inc., submitted an ADA to the County which requested a substantial deviation from the OBGS and OBGW DRI's. By submitting this latest development, intervenor sought to add approximately 1,960 acres to the existing OBGS and OBGW DRI's and modify the development already approved by adding a total of 6,250 residential units and 910,000 square feet of commercial square footage. The overall development was renamed Tri-County Villages. The development order approving the substantial deviation for Tri-County Villages was adopted by the County on September 20, 1994. [¶8] On September 20, 1994, or prior to approval of the Tri-County Villages development substantial deviation, but in conjunction with it, the County adopted plan amendment 94D1 by Ordinance No. 94-6. On November 10, 1994, the DCA determined the amendment to be in compliance. That amendment amended the plan's Future Land Use Map (FLUM) to revise the land use designations on approximately 1,960 acres of land. Specifically, the plan amendment designated as Planned Unit Development (PUD) all areas of the approved OBGW DRI and the additional 1,960 acres referred to in Exhibit 1 of 94D1 as parcels 5 and 8. Prior to the amendment, parcels 5 and 8 had been designated predominantly as agricultural, with small pockets of rural residential. [¶9] The plan amendment also revised the FLUM by extending the urban expansion area to include all of parcels 5 and 8. Prior to the amendment, only a small section of parcel 8 was included in the urban expansion area. [¶10] The plan amendment further included several textual revisions to the Future Land Use Element (FLUE), including a revision to FLUE Policy 1.5.7 concerning the ratio of commercial square footage to residential units and the addition of FLUE Objective 1.14 and Policies 1.14.1 - 1.14.6, which essentially incorporated the concept of sector planning into the plan. [¶11] Finally, the plan amendment revised Policy 2.1.5 of the Sanitary Sewer Element which, subject to submission of appropriate data and analysis, and Department of Environmental Protection approval, reduced the established level of service for sanitary sewer throughout the Tri-County Villages development. SCAID I, 17 F.A.L.R. 4527, 4531-32 (Dept. Community Affairs Aug. 1995). (The Recommended Order may also be found on WESTLAW at 1995 WL 1052949.) At its inception, the Tri-County Villages DRI was projected to build-out in approximately 2015. When the Tri- County Villages DRI first began construction in late 1992, the developer pulled 24 building permits. In 1993, the County issued 406 residential building permits, 365 of which were pulled for the Tri-County Villages DRI. In 1997, the developer pulled 1,052 building permits for the Tri-County Villages DRI. To date, approximately 13,000 homes have been built in the Tri- County Villages DRI. Based upon present projections, the Tri- County Villages DRI is anticipated to be substantially built-out in 2003-04, 12 years ahead of its initially projected build-out date of 2015. Presently, there are numerous cultural and recreational activities, shopping options, medical and governmental services available to residents within the Tri-County Villages DRI. While still designated as a UEA and PUD on the County's FLUM, the Tri-County Villages DRI in fact is a self-contained urban area, especially in the context of Sumter County. Sumter County is mostly rural. According to the 1995 EAR, the County's permanent (non-seasonal) population was projected to be: 38,961 for 1998; 56,000 for 2005; and 64,200 for 2010. The unincorporated portion of the County contains 334,903 acres, approximately 99,436 acres of which are state- owned conservation lands, and approximately 202,000 acres of which are agricultural lands. There are five municipalities in the County--Wildwood, Bushnell (also the County seat), Center Hill, Coleman and Webster. None are as urbanized as the Tri- County Villages DRI. Simultaneous Conversion Objective 7.1.2 of the County's comprehensive plan provides in pertinent part: Upon adoption of this plan, Sumter County shall . . . provide for a compatible and coordinated land use pattern which establishes agriculture as the primary use outside of the urban expansion area boundary and insures retention of agricultural activities, preserves natural resources and discourages urban sprawl. In pertinent part, the County Plan's Policy 7.1.1.2(e) provides that the County's land development regulations governing PUDs should be based on and consistent with the following standards for densities and intensities: Within the Urban Expansion Area, a base density of up to 8 residential units per gross acre in residential areas and 6 units per gross acre in commercial areas are allowed. . . . . Outside of an Urban Expansion Area, a base density of up to 4 residential units per gross acre in residential, commercial and agricultural areas are allowed. Policy 7.1.5.1 allows PUDs "in the following land use districts and at the following densities/intensities of use": 8 dwellings per gross acre in "Residential Areas Inside UEA"; 6 dwellings per gross acre in "Commercial Areas Inside UEA"; and 4 dwellings per gross acre in "Res./Comm. Uses Outside UEA." Petitioners contend that the foregoing objective and policies somehow combine to preclude the simultaneous conversion of Agricultural FLU to UEA and PUD; they appear to contend that these policies necessitated an intermediate conversion to UEA. (Protection of agricultural lands was raised in a more general sense, but this precise issue was not raised prior to final hearing.) But Petitioners argument not only is not persuasive, it is not even easily understood. It is at least fairly debatable that the objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even without prior notice of this precise issue, one of the County's expert witnesses in land planning persuasively testified that the cited objective and policies do not combine to preclude simultaneous conversion of Agricultural FLU to UEA and PUD. Even Petitioners' expert land planner ultimately agreed that there is nothing in the Florida Statutes or Florida Administrative Code Rules Chapter 9J-5 to prevent conversion of agricultural uses to more urban uses. Demonstrated Need As reflected in previous Findings of Fact, the subject Plan Amendment is for a highly mixed-use PUD. Of the many mixed uses involved, Petitioners focus on the allocation of land for residential use in their challenge to the demonstration of need for the Plan Amendment. In this context, demonstrated need refers to the existence of adequate data and analysis to demonstrate the need for additional allocation of residential dwelling units on the FLUM. Petitioners assert that the methodology utilized by the County to project need is flawed. Determination of the need for a certain allocation of residential densities starts with a projection of population on the planning horizon (2020). In doing so, all available data and analysis must be considered. (Petitioners also assert that Policy 7.1.2.5(b)1. of the County's comprehensive plan requires such an analysis "utilizing professionally accepted methods," but that policy speaks to additional densities and allocations of land use for developments proposed in agricultural areas, while the Plan Amendment in this case converts the agricultural land to UEA and PUD.) For the purpose of analyzing whether there is a demonstrated need for this Plan Amendment, the County's planner, Roberta Rogers, relied upon need projections made in conjunction with the preparation of the County's EAR. The EAR, prepared in 1999, included a projection of the County's population for the 2020 planning horizon. The EAR projected that the permanent population of unincorporated Sumter County, by the year 2020, will be 79,475. (The total County permanent population is projected to be 94,205.) One of the purposes of an EAR is to provide data and analysis for comprehensive plan amendments. In preparing the population projections reflected in the EAR, Rogers began her analysis by referring to the projections for Sumter County formulated by the Bureau of Economic and Business Research ("BEBR"), as reported in 1996. The 1996 BEBR Report actually reflected projections made in 1995. BEBR publishes yearly reports that state both the estimated current and the projected future populations for each Florida county. The population projections reflected in BEBR Reports are based upon historical trends of 10-15 years' duration. Because the development in the Tri-County Villages DRI is a relatively recent phenomenon, Rogers believed that reliance upon the BEBR projections alone would have resulted in a significant under-projection of the County's future population. As a consequence, Rogers added an annual rate of growth of 1000 building permits per year through 2005 and 500 permits per year through the remaining portion of the planning period for the Tri-County Villages and the Villages of Sumter. Her approach was a conservative approach, since the actual number of building permits issued for the Tri-County Villages DRI in the past two years has significantly exceeded 1000 per year. Rogers conferred with BEBR, prior to completing her analysis, and was assured that her approach was appropriate. Such an adjustment for the Villages is particularly appropriate since the Villages cater to a very specific segment of the population, i.e., persons 55 and above. Over the twenty- year planning horizon relevant to the Plan Amendment, the population of persons in Florida aged 55 and above will increase dramatically as the "baby boomer" population ages. The demand for residential housing for these senior citizens will show a similar dramatic increase. Henry Iler, the Petitioners' land planning expert, took the contrary position, opining that no additional growth factor should be added to the 1996 BEBR projections. However, Dr. Henry Fishkind, an expert in demography who was involved in the original development of the BEBR population projection methodologies, directly contradicted Iler's opinion, concluding instead that Ms. Rogers' methodology was appropriate. As Dr. Fishkind stated that [Sumter] county has experienced a dramatic structural change to its population growth and development because of the Villages, and that has altered the characteristics of its population growth. In light of that, the use of past trends, which is what the bureau [BEBR] does, is simply extrapolate past trends, would not be appropriate, for it would not have taken into account that major structural change. Ms. Rogers identified the structural change, she measured its amount, and then she added on to the bureau's projections, which were extrapolations of the past trends. That's a very appropriate adjustment, and it's the kind of adjustment that econometricians and economists make on a regular basis. DCA's analysis concurred that the high absorption rates in the Tri-County Villages DRI had to be taken into account. To have ignored the explosion of growth in the Tri- County Villages DRI, particularly in view of the generally accepted expectation that the population to be served by the Tri-County Villages and by the Villages of Sumter will experience tremendous growth, would have resulted in an inaccurate population forecast. Even Iler had to concede that he was aware of building permit data being used to project population figures. It is simply not his preferred methodology to use such information. Thus, Rogers' projection of the County's total population for the year 2020 appropriately incorporated all available and relevant data and was formulated using an accepted methodology. While not part of their PRO, Petitioners previously attacked the County's population projections by questioning the continued success of the Villages to attract out-of-state retirees. Primarily through Weir's testimony, they attempted to raise the specter of a reduction of sales and Intervenor's subsequent financial ruin. But there was no credible evidence to support Petitioners' prophecy of doom. On the evidence presented in this case, it would be more rational from a planning standpoint to expect the Villages to continue to be a marketing and financial success. Having reasonably projected future population, it was then incumbent upon the County to determine how many dwelling units would be needed to accommodate anticipated housing needs. This determination was made by Gail Easley, an independent planner retained by the County to assist Rogers in preparation of the EAR. Easley performed this calculation for the County. Easley used 2.46 as the average number of persons per dwelling unit in the County, a figure taken from the BEBR reports (not from 1990 census information, as Iler incorrectly surmised.) There was no evidence that a number other than 2.46 was appropriate. It would not be appropriate for the number of dwelling units needed in the future to be calculated simply by the division of the anticipated population by the average household size. Rather, it is appropriate to apply a "market factor" (or multiplier) in order to ensure that there is a choice of types of housing and to accommodate lands that are not actually useable for residential construction. Even Petitioner's expert, Henry Iler, agreed that the use of a market factor was appropriate in order to ensure sufficient housing supply and to avoid an increase in housing prices. Easley furnished Rogers with the market factor for the EAR. The market factor chosen by Easley was 1.5, a factor she viewed as conservative and as appropriate for a jurisdiction that is beginning to urbanize. In more rural counties, a higher market factor, such as 2.0, should be used. While Iler implied that a lower marker factor would be more suitable, the record clearly established that the market factor used by Easley fell within the range of reasonable choices. (In SCAID I, the ALJ expressly found, in paragraph 31 of the Recommended Order, that the 1.87 market factor used by the County on that occasion was reasonable and actually low compared to factors used for other comprehensive plans that had been found to be "in compliance." As reflected by this Finding of Fact, facts and circumstances bearing on the choice of a market factor for Sumter County have not changed significantly to date. Cf. Conclusion of Law 64, infra.) Applying the 1.5 market factor to the projected population and average household size, the County determined that 62,274 dwelling units will have to be accommodated during the twenty-year planning horizon. (This includes 48,461 units in permanent housing, 9,113 in seasonal housing, and 4,700 in transient housing.) The County then allocated those dwelling units in various land use categories. Much of Petitioners' PRO on this point was devoted to criticizing parts of the evidence in support of the demonstration of need. They state the obvious that Easley did not perform a demonstration of needs analysis for the Plan Amendment in the EAR, but that was not the purpose of the EAR; nonetheless, the EAR contained valuable data and analysis for use in the demonstration of need analysis for the Plan Amendment. Petitioners also questioned DCA's reliance on the DRI ADA in conducting its demonstration of need analysis, based on the timing of the ADA and Plan Amendment submissions and decisions; but it is not clear what it was about the timing that supposedly detracted from DCA's demonstration of need analysis, and nothing about the timing made it inappropriate for DCA to rely on the data and analysis in the ADA. Petitioners criticized Rogers' reference to up-to-date building permit information that was not offered in evidence; but this information only further supported Rogers' demonstration of need analysis. Petitioners asserted that one of Intervenor's witnesses may have overstated residential sales in the Tri- County Villages DRI (1,750 sales a year versus evidence of 1,431 building permits for 1999); but the witness's statement was not used in any of the demonstration of need analyses. Finally, Petitioners attacked one of Intervenor's witnesses for an alleged "conflict of interest, a lack of professional integrity and an indication of bias"; but the basis for this allegation supposedly was evidence that the witness worked for the County while also working for Intervenor or its predecessor for a few years in the late 1980's, not enough to seriously undermine the credibility of the witness's testimony in this case (which in any event had little or nothing to do with the demonstration of need analyses.) It is at least fairly debatable that the County's demonstration of need was based on relevant and appropriate data, and professionally acceptable methodologies and analyses. Likewise, it at least fairly debatable that the County's projections regarding housing needs, the growth in the retirement population, and the absorption rates achieved in the existing Tri-County Villages DRI adequately support the allocation of 11,000 dwelling units permitted by the Plan Amendment. So-called "90% Rule" The County's Plan Policy 4.6.1.1 provides: The County shall maintain approximately 90% of its land area in land uses such as agricultural (including timberland, mining and vacant), conservation, and open (recreation, open space etc.) land uses for this planning period. (Emphasis added.) This policy is found in the Utilities Element of the County's comprehensive plan under a goal to protect and maintain the functions of the natural groundwater aquifer recharge areas in the County and under an objective to protect the quantity of aquifer recharge. Although couched as an approximation, the policy has been referred to as the "90% rule." Based on the evidence presented in this case, it is at least fairly debatable that the subject Plan Amendment is not inconsistent with Policy 4.6.1.1. The primary debate had to do with the proper treatment of certain "open space" provided in the Tri-County Villages DRI and the Villages of Sumter DRI-- 1,032 acres in the former and 2,135 acres in the latter. This "open space" consists of golf courses, preserves, wetlands, parks/buffers, and some stormwater/open spaces. Petitioners' expert refused to count any of this acreage for purposes of the so-called "90% rule" because, while the FLUE and FLUM have Agricultural, Conservation, and Recreation land use categories, there is no category designated "Open Space." (Meanwhile, there is an entire element of the plan entitled "Recreation and Open Space.") The witnesses for the County and DCA counted those 3,167 acres. They reasoned persuasively that the policy's express mention of "open space" (as opposed to a specific land use category designated "Open Space") supports their position. They also argued persuasively for the logic of including "open space," which serves the objective of the policy to "protect quantity aquifer recharge quantity," even if there is no specific land use category designated "Open Space." Counting the 3,167 acres of "open space" in the two DRIs, the percentage calculated under Policy 4.6.1.1 exceeds 90% for existing land uses. Omitting that land, as well as another 500 acres that should have been counted, Petitioners' expert calculated 88.96%. Petitioners' expert also calculated a lower percentage (85.34%) by using land uses he projected for the end of the planning period. However, Petitioners' expert conceded that it was not clear that Policy 4.6.1.1 should be interpreted in that manner. If so interpreted, it would be possible for all plan amendments reducing agricultural, conservation, and open FLUs to be prohibited even if existing land uses in those categories did not fall below "approximately 90%" for another 20 years. It is at least fairly debatable whether such a result is logical, or whether it is more logical to wait until existing land uses in those categories did not fall below "approximately 90%" before prohibiting further FLUE and FLUM amendments. Urban Sprawl Petitioners contend that the Plan Amendment fails to discourage urban sprawl. They attempted to prove seven urban sprawl indicators. But their evidence was far from sufficient to establish any beyond fair debate. Petitioners did not prove that the Plan Amendment promotes, allows or designates for development substantial areas of the jurisdiction to develop as low intensity, low density, or single-use development or uses in excess of demonstrated need. To the contrary, while gross residential density may be relatively low (2.4-2.6 units per gross acre), the Plan Amendment PUD provides for highly mixed-use development, not single-use development, and densities in residential areas within the PUD are significantly higher (up to 5.6 units per acre), especially for Sumter County. Petitioners also did not prove that the Plan Amendment promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development, or that the Plan Amendment promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. To the contrary, the evidence was that part of the northern boundary of the Plan Amendment parcel coincides with the western part of the southern boundary of the Tri-County Villages DRI, and the Villages of Sumter PUD will be an extension of the Tri-County Villages DRI, which already has all the characteristics of an existing urban area. The reason why the eastern part of the northern boundary of the Plan Amendment parcel does not coincide with the southern boundary of the Tri-County Villages DRI is the existence of land in between which is already in use and not available to become part of the Plan Amendment PUD. Development will not be in a radial or ribbon pattern like (usually) commercial development along main roadways; nor will development be isolated. Petitioners did not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities, and dormant, unique and prime farmlands and soils. Obviously, conversion of agricultural land eliminates such land from agricultural use. But the Plan Amendment protects adjacent agricultural land by phasing development starting from existing urban areas in the Tri-County Villages DRI by mixing in open and recreational uses throughout the Villages of Sumter PUD and by providing some additional buffer between the periphery of the PUD and adjacent agricultural lands. Petitioners did not prove that the Plan Amendment fails to maximize the use of existing public facilities and services. Indeed, Petitioners' land use planning expert admitted at the hearing that he "didn’t have the time or expertise, really, to try to evaluate this particular question." To the contrary, the evidence was that the Plan Amendment PUD will include water, sanitary sewer, stormwater management, aquifer recharge areas, and other governmental services as part of its development. In addition, impact to schools will be minimal or non-existent due to the character of the PUD as a retirement community. Petitioners did not prove that the Plan Amendment fails to provide a clear separation between rural and urban uses. To the contrary, the evidence was that clustering, open spaces and buffering in the Villages of Sumter PUD will provide a clear enough separation between rural and urban uses. Petitioners did not prove that the Plan Amendment discourages or inhibits in-fill development or the redevelopment of existing neighborhoods and communities. Specifically, Petitioners argued that in-fill in the City of Wildwood will be discouraged. But the evidence was to the contrary. Not only would development of the kind envisioned in the Plan Amendment PUD be unlikely to occur in Wildwood, sufficient land is not available for such a development there. Actually, the Plan Amendment might encourage in-fill in Wildwood, where service providers for the Villages of Sumter might be expected to reside. SCAID SCAID was formed in 1993 or 1994 by a small group of Sumter County citizens for the purposes of preserving the "rural lifestyle" of Sumter County, preventing urban sprawl, and ensuring "that development will not be a burden to the taxpayers" of the County. SCAID has about 80 members, who are not required to pay dues. The majority of SCAID's members live in Sumter County, including all of the individual Petitioners in this case. SCAID is not incorporated but has by-laws drafted in 1995 or 1996. The by-laws provide for election of officers for one-year terms, but SCAID has not had an election of officers since 1994. Petitioner, T. Daniel Farnsworth, is and always has been SCAID's president. The evidence was that, when former SCAID member James Boyd resigned, Petitioner Linda Latham was appointed to replace him as secretary. SCAID has held just two meetings since its inception. Approximately 15-20 persons attended each meeting. Most communication with members is by regular and internet mail. Financial contributions are solicited from time to time for litigation efforts initiated by SCAID. Farnsworth, on behalf of SCAID, submitted comments on the Plan Amendment to the County between the transmittal hearing and the adoption hearing. Farnsworth and Weir also testified on behalf of Petitioners at final hearing. The other individual Petitioners did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that, under Section 163.3184(9)(b), the Department of Community Affairs enter a final order that Sumter County's Amendment 00-D1 is "in compliance." DONE AND ENTERED this 20th day of February, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2001. COPIES FURNISHED: Martha Harrell Chumbler, Esquire Nancy G. Linnan, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 190 Tallahassee, Florida 32302-0190 Jane M. Gordon, Esquire Jonas & LaSorte Mellon United National Bank Tower Palm Beach Lakes Boulevard, Suite 1000 West Palm Beach, Florida 33401-2204 Terry T. Neal, Esquire Post Office Box 490327 Leesburg, Florida 34749-0327 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Council Department of Community Affairs 2555 Shumard Oak Boulevard Suite 325 Tallahassee, Florida 32399-2100
