The Issue The issue is whether the Land Development Code (LDC) adopted by Ordinance No. 2007-12 on August 22, 2007, as amended on February 27, 2008, is inconsistent with the effective comprehensive plan for the City of Doral (City), which is the Miami-Dade Comprehensive Development Master Plan (County Plan).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties Section 64 is a Florida corporation. The Grand is a Florida limited partnership. Both entities are owned by the same individual. On September 25, 2001, Section 7 acquired ownership of an approximate ten-acre tract of property in the County (now the City) located along the southern boundary of Northwest 82nd Street, between 109th and 112th Avenues. See Petitioners' Exhibit 416. On December 16, 2005, title in one- half of the property was conveyed to The Grand in order to divide the property into two different ownerships. Id. It was Petitioners' intent at that time to build two hotels on separate five-acre tracts, one owned by Section 7 and the other by The Grand. The City is located in the northwestern part of Dade County and was incorporated as a municipality in June 2003. At the time of incorporation, the County's Plan and Land Use Code were the legally effective comprehensive plan and land development regulations (LDRs), respectively. On April 26, 2006, the City adopted its first comprehensive plan. After the Department determined that the Plan was not in compliance, remedial amendments were adopted on January 10, 2007, pursuant to a Stipulated Settlement Agreement. Although the Department found the Plan, as remediated, to be in compliance, it was challenged by a third party, and the litigation is still pending. See DOAH Case No. 06-2417. Therefore, the County Plan is still the legally effective Plan. See § 163.3167(4), Fla. Stat. The Department is the state land planning agency charged with the responsibility of reviewing LDRs whenever the appeal process described in Section 163.3213, Florida Statutes, is invoked by a substantially affected person. History of the Controversy When Petitioners' property was purchased in 2001, the County zoning on the property was Light Industrial (IU-1), having been rezoned by the County to that designation on October 9, 1984. See Petitioners' Exhibit 5. One of the uses permitted under an IU-1 zoning classification is a hotel with up to 75 units per acre. See Petitioners' Exhibit 6. The land use designation on the County's LUP map for the property is Low- Density Residential (LDR), with One Density Bonus, which allows 2.5 to 6 residential units per acre with the ability for a "bump-up" in density to 5 to 13 units per acre if the development includes specific urban design characteristics according to the County urban design guide book. Language found on pages I-62 and I-63 of the Future Land Use Element (FLUE) in effect at the time of the incorporation of the City (now found on pages I-73 and I-74 of the current version of the FLUE) provides in relevant part as follows: Uses and Zoning Not Specifically Depicted on the LUP Map. Within each map category numerous land uses, zoning classifications and housing types may occur. Many existing uses and zoning classifications are not specifically depicted on the Plan map. . . . All existing lawful uses and zoning are deemed to be consistent with the [Plan] unless such a use or zoning (a) is found through a subsequent planning study, as provided in Land Use Policy 4E, to be inconsistent with the criteria set forth below; and (b) the implementation of such a finding will not result in a temporary or permanent taking or in the abrogation of vested rights as determined by the Code of Metropolitan Dade County, Florida. As noted above, if there is a concern that zoning might be inconsistent with land use, using the criteria described in the provision, the County may initiate a planning study to analyze consistency and down-zone the property to a less intense use if an inconsistency is found. Although the County initiated a number of planning studies after it adopted its Plan in 1993, and ultimately down-zoned many properties, none was ever initiated by the County for Petitioners' property. Essentially, when existing uses and zoning are not depicted on the County LUP map, the language in the FLUE operates to deem lawfully existing zoning consistent with the land use designation on the property. In this case, the parties agree that the zoning of Petitioners' property is not depicted on the County LUP map. Therefore, absent a planning study indicating an inconsistency, the zoning is deemed to be consistent with the land use category. On August 22, 2007, the City adopted Ordinance No. 2007-12, which enacted a new LDC, effective September 1, 2007, to replace the then-controlling County Land Use Code. Although the LDC was adopted for the purpose of implementing the new City Plan, until the new Plan becomes effective, the LDC implements the County Plan. Amendments to the LDC were adopted by Ordinance No. 2008-1 on February 27, 2008. The LDC does not change the zoning on Petitioners' property. However, it contains a provision in Chapter 1, Section 5, known as the Zoning Compatibility Table (Table), which sets forth the new land use categories in the City Plan (which are generally similar but not identical to the County land use categories) and the zoning districts for each category. Pertinent to this dispute is an asterisk note to the Table which reads in relevant part as follows: Under no circumstances shall the density, intensity, or uses permitted be inconsistent with that allowed on the city's future land use plan. . . . Zoning districts that are inconsistent with the land use map and categories shall rezone prior to development. See Petitioners' Exhibit 27 at p. I-3. Under the Table, only residential zoning districts (with up to ten dwelling units per acre and no density bonus) are allowed in the City's proposed LDR land use category. Therefore, if or when the City Plan becomes effective, before Petitioners can develop their property, they must rezone it to a district that is consistent with the land use designation shown on the Table. There is no specific requirement in the LDC that the City conduct a planning study when it has a concern that the zoning is inconsistent with the relevant land use category in the new City Plan. Petitioners construed the asterisk note as being inconsistent with the text language on pages I-62 and I-63 of the County Plan. See Finding of Fact 5, supra. Accordingly, on August 21, 2008, Petitioners submitted a Petition to the City pursuant to Section 163.3213(3), Florida Statutes, alleging generally that they were substantially affected persons; that the LDC was inconsistent with the County Plan; that the LDC changes the regulations regarding character, density, and intensity of use permitted by the County Plan; and that the LDC was not compatible with the County Plan, as required by Florida Administrative Code Rule 9J-5.023.2 See Petitioners' Exhibit 103. The City issued its Response to the Petition on November 20, 2008. See Petitioners' Exhibit 104. The Response generally indicated that Petitioners did not have standing to challenge the LDC; that the Petition lacked the requisite factual specificity and reasons for the challenge; that the LDC did not change the character, density, or intensity of the permitted uses under the County Plan; and the allegation concerning compatibility lacked factual support or allegations to support that claim. On December 22, 2008, Petitioners filed a Petition with the Department pursuant to Section 163.3213(3), Florida Statutes, alleging that the LDC implements a City Plan not yet effective; that the LDC changes the uses, densities, and intensities permitted by the existing County Plan; and that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan. See Petitioners' Exhibit 105. After conducting an informal hearing on April 7, 2009, as authorized by Section 163.3213(4), Florida Statutes, on July 23, 2009, the Department issued a Determination of Consistency of a Land Development Regulation (Determination). See Petitioners' Exhibit 102. See also Section 7 Tract 64 Property, Inc., et al. v. The City of Doral, Fla., Case No. DCA09-LDR-270, 2009 Fla. ENV LEXIS 119 (DCA July 23, 2009). In the Determination, the Department concluded that Petitioners were substantially affected persons and had standing to file their challenge; that the provision on pages I-62 and I-63 of the County FLUE did not apply to Petitioners' property because the uses and zoning of the property are specifically designated on the LUP map; that the law does not prohibit the Department from reviewing the LDC for consistency with the not yet effective City Plan; and that because the LDC will require Petitioners to rezone their property to be consistent with the City Plan, the challenge is actually a challenge to a rezoning action and not subject to review under this administrative process. See § 163.3213(2)(b), Fla. Stat. On August 13, 2009, Petitioners filed their Petition for Formal Proceedings with DOAH raising three broad grounds: that the LDC unlawfully implements a comprehensive plan not yet effective; that it changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with the County Plan; and that it changes the uses, densities, and intensities permitted by the not yet effective City Plan and is inconsistent with that Plan. See Petitioners' Exhibit 39. These issues are repeated in the parties' Stipulation. As to other issues raised by Petitioners, and evidence submitted on those matters over the objection of opposing counsel, they were tried without consent of the parties, and they are deemed to be beyond the scope of this appeal. The Objections Petitioners first contend that the LDC unlawfully implements a comprehensive plan not yet in effect, in that it was specifically intended to be compatible with, further the goals or policies of, and implement the policies and objectives of, the City Plan. See Fla. Admin. Code R. 9J-5.023. But Petitioners cited no statute or rule that prohibits a local government from adopting LDRs before a local plan is effective, or that implement another local government's plan (in this case the County Plan). While the LDC was adopted for the purpose of implementing a City Plan that the City believed would be in effect when the LDC was adopted, the City agrees that until the new City Plan becomes effective, the LDC implements the County Plan. Even though the two Plans are not identical, and may even be inconsistent with each other in certain respects, this does automatically create an inconsistency between the LDC and County Plan. Rather, it is necessary to determine consistency between those two documents, and not the City Plan. Except for testimony regarding one provision in the LDC and its alleged inconsistency with language in the County FLUE, no evidence was presented, nor was a ground raised, alleging that other inconsistencies exist. The Table note and the County Plan do not conflict. The LDC is not "inconsistent" merely because it was initially intended to implement a local plan that has not yet become effective. Petitioners next contend that the LDC changes the uses, densities, and intensities permitted by the County Plan and is therefore inconsistent with that Plan. Specifically, they contend that the note following the Zoning Compatibility Table in Chapter 1, Section 5 of the LDC is inconsistent with the language on pages I-62 and 63 (now renumbered as pages I-73 and I-74) of the County Plan. In other words, they assert that an inconsistency arises because the note requires them to down- zone their property before development, while the County Plan deems their zoning to be consistent with the County LUP map unless a special planning study is undertaken. The evidence establishes that if there is a conflict between zoning and land use on property within the City, it is necessary to defer to the language on pages I-62 and I-63 of the County FLUE for direction. This is because the County Plan is the effective plan for the City. Under that language, if no planning study has been conducted, the zoning would be deemed to be consistent with the land use. On the other hand, if a planning study is undertaken, and an inconsistency is found, the property can be rezoned in a manner that would make it consistent with the land use. Therefore, the LDC does not change the use, density, or intensity on Petitioners' property that is permitted under the County Plan. It is at least fairly debatable that there is no conflict between the Table note and the County Plan. Finally, Petitioners contend that the LDC changes the uses, densities, and intensities permitted by the not yet effective City Plan because the current industrial zoning designation will be inconsistent with the LDR land use designation. Petitioners argue that once the new City Plan becomes effective, the LDC requires them to down-zone their property before development. However, this concern will materialize only if or when the new City Plan, as now written, becomes effective; therefore, it is premature. Further, the definition of "land development regulation" specifically excludes "an action which results in zoning or rezoning of land." See § 163.3213(2)(b), Fla. Stat. Because the challenged regulation (the note to the Table) is "an action which results in zoning or rezoning of land," the issue cannot be raised in an administrative review of land development regulations. Id. The other contentions raised by Petitioner are either new issues that go beyond the scope of the Petition filed in this case or are without merit.
The Issue Whether the Large Scale Comprehensive Plan Map and Text Amendment No. 04-2 (Plan Amendment) to the City of Cocoa's (City) Comprehensive Plan (Plan), adopted by Ordinance No. 39- 2004, is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact The Parties and Standing The Hunters own and reside on property located on Friday Road in the unincorporated area of the County. Their property abuts on two sides of the northeastern portion of the subject property. FSNE 47 at "H." The Kellgrens own and reside on property located on the northwest corner of the intersection of Friday and James Road in the unincorporated area of the County, abutting the southeast corner of the south Plan Amendment parcel. FSNE 47 at "KR." The Kellgrens also own and operate two businesses on Cox Road located on property they own which is located within the boundaries of the City. FSNE 47 at "KB." The County is a political subdivision of the State of Florida. The City is a municipality located within the County. The DCA is the state land planning agency charged with responsibility for reviewing comprehensive plans and plan amendments under Chapter 163, Part II, Florida Statutes. FSN and Hagen-Nicholson are Florida limited liability companies and are the owners of the subject property voluntarily annexed by the City pursuant to Ordinance No. 31-2004 and is subject to the Plan Amendment adopted by Ordinance No. 39-2004. All Petitioners submitted oral or written comments, recommendations, or objections to the City during the period of time beginning with the transmittal hearing for the Plan Amendment on August 24, 2004, and ending with the adoption of the Plan Amendment on December 14, 2004. At the final hearing, the parties stipulated that the Petitioners are "affected persons" within the meaning of Section 163.3184(1)(a), Florida Statutes, with standing to participate as parties in this administrative proceeding.3 See Endnote 17. The Challenges Petitioners allege that the Plan Amendment is not "in compliance" on several grounds: lack of need, urban sprawl, inadequate data and analysis relative to traffic and land use need, violation of the intergovernmental coordination element of the City's Plan, incompatibility, internal inconsistencies, inconsistencies with the Regional and State Plans, and failure to provide for adequate public participation during the transmittal hearing. The Plan Amendment Ordinance No. 39-2004 makes two changes to the Plan. First, the text of the Future Land Use Element (FLUE) of the Plan was amended to establish a new future land use category called "very low density residential areas." 4 Second, the FLUM was amended to change the designated future land use from "Residential 1 and Neighborhood Commercial (County)" to "Very- Low Density Residential (City)." FSNE 52 at Section 5. The Plan Amendment covers approximately 605.16 acres, although the City annexed approximately 766.27 acres, which included "both real property and rights-of-way." Id. at page 1 of 4; PE 8.f. at page 3 of 18. See also DCAE 2. The Subject Property The subject property consists of a rectangular parcel adjacent to and north of State Road (SR) 528, bounded by Interstate 95 (I-95) on the west; a triangular parcel adjacent to and southeast of the north rectangular parcel and similarly bounded on the south by SR 528; and a second rectangular parcel, due south of the north parcel and adjacent to and south of SR 528 and bounded by I-95 on the west and James Road on the south and a portion of Friday Road on the east. PE 17. There is no direct access from the subject property to I-95 and SR 528. The future land uses north of the subject property include Residential 1:2.5 (County); Residential 1 (County) to the south; Residential 1:2.5 (County) to the east of the north parcel; Residential 1 (County) to the east of south parcel; and Planned Industrial Park (County) and Industrial (City) further to the east; and Residential 1:2.5 (County) to the west of I-95. PE 80. The existing land uses to the north and south are single-family residential and vacant land; to the east, vacant land, heavy and light industrial uses; and to the west, I-95, single-family residential, and vacant land. Prior to being annexed by the City in August 2004, the subject property was located in the unincorporated portion of the County. The two rectangular portions (approximately 560.95 acres) were designated as "Residential 1" on the County FLUM, allowing one unit per acre. The approximate eastern half of the triangular portion (44.21 of acres) was designated as "Neighborhood Commercial." PE 80. There is an existing borrow pit (approximately 19-20 acres) located on the eastern one-third of the triangular portion. PE 17. Approximately 145.35 acres of wetlands, now designated Conservation, permeate the subject property. PE 8.F., page 4 of 18 and Exhibits 3 and 4; FSNE 52. There are approximately 459.81 acres (605.16 total acres - 145.35 acres of wetlands) of developable upland on the subject property. See DCAE 2. The Plan Amendment proposes a maximum development potential of approximately 1,839 dwelling units (459.81 acres X 4 dwelling units).5 There is a conflict in the evidence regarding the potential maximum development of the subject property under the County Plan. The City suggested approximately 2,358 dwelling units. See PE 8.f. at pages 4-6 of 18. The City's analysis yielded a maximum of 701 dwelling units for the portion of the subject property designated as Residential 1 and 1,657 dwelling units (including application of the density bonus) for that portion of the subject property designated "Neighborhood Commercial." The City assumed there could be 37.5 units per acre (which included a density bonus) developed on the 44.21 acre tract designated "Neighborhood Commercial." Id. Petitioners suggested a maximum of approximately 817 dwelling units could have been built on the subject property if the subject property were developed with the "density bonus" under the County's Plan. See Petitioners' Joint Proposed Recommended Order at 21, paragraph 25 and n.5. There is also a conflict in the evidence regarding the potential development of commercial uses (under the County's Plan) on the portion of the triangular parcel designated as "Neighborhood Commercial." Id. Based upon conflicting evidence, it is resolved that the maximum potential number of dwelling units which could have been developed on the subject property under the County's Plan is overstated. However, this finding does not alter the ultimate findings made herein regarding whether the Plan Amendment is "in compliance." Need The "need" question is founded in Section 163.3177(6)(a), Florida Statutes, which requires that "[t]he future land use plan shall be based upon surveys, studies, and data regarding the area, including the amount of land required to accommodate anticipated growth [and] the projected population of the area . . ." This requirement is repeated in the statute's implementing rule which provides that "[t]he comprehensive plan shall be based on resident and seasonal population estimates and projections." Fla. Admin. Code R. 9J- 5.005(2)(e). Florida Administrative Code Rule 9J-5.006(2)(c) requires "[a]n analysis of the amount of land needed to accommodate the projected population, including: [t]he categories of land use and their densities or intensities of use; [t]he estimated gross acreage needed by category; and [a] description of the methodology used." Also, "need" is one of the factors to be considered in any urban sprawl analysis. See Fla. Admin. Code R. 9J-5.006(5)(g)1. On December 14, 2004, the City adopted the Plan Amendment and responded to the objections raised in the DCA's Objections, Recommendations, and Comments (ORC) Report.6 During the plan amendment review process, the proposed residential land use density for the subject property was reduced from up to seven dwelling units per acre as originally proposed to "four units per acre with a Planned Unit Development (PUD) bonus of up to five units per acre," and, ultimately as adopted by the City Council, to "[a] maximum density of 4 units per acre." FSNE 52, Exhibit A; T II 631-632. The City has two needs -- a need for vacant developable land, and a need for middle-income housing. The City differs from many other municipalities in the County because the City's population declined almost 7.4 percent from the period of 1990 to 2000.7 Every city in the County, with the exception of the City of Cocoa and one other city, has experienced population growth. The City's Director of Community Development testified that the City had become hyper-inelastic -- it had stopped growing, and started shrinking. In response to this problem, the City adopted goals in 2002 which included annexation, housing, and residential development. Because of the goals that had been adopted and implemented, from 2002 to the time of the administrative hearing, the City's population rose approximately 7.25 percent. With the Plan Amendment, the City could capture increasing populations in the surrounding areas. In the summer of 2003, the City held a housing task force with private developers. The private developers explained that they were not developing in the City because even though there was vacant land, there were environmental constraints on the land. The vacant land consisted of large amounts of wetlands, with some of the wetlands located in flood plains. In the comprehensive plan adoption package sent to the DCA, the City included a map indicating the vacant land and a map indicating the extensive wetlands located on the vacant land. (The vacant land analysis identified the amount of land potentially available for development, without stating the specific number of available acres. Based upon the testimony at final hearing, excluding the subject property, there are approximately 223-230 acres of developable land within the City limits.) Furthermore, the City provided the DCA with population figures based on BEBR. Rule 9J-5 does not provide a specific requirement as to how a local government must demonstrate how much vacant land is located within its boundaries. Rather, Rule 9J-5 permits a local government to demonstrate how much vacant land is located within it boundaries in several ways, i.e., textually, raw data, or graphically. The DCA used the maps submitted by the City as well as the information submitted that the City's population was declining to make a determination that the City had demonstrated a need for the property. A needs analysis typically consists of an examination of the projected population over the planning time period, the land uses that exist within the local government, the amounts of the land uses, and then a determination of whether the local government has enough land to meet the projected population. However, a quantitative analysis is not the only way to perform a needs analysis. A city's plan for its future and the way it wants to grow is also considered. The City's use of population figures based on BEBR estimates and a map which demonstrated the vacant land was professionally acceptable. In other words, by using BEBR estimates and a map, the City did not use a "methodology" without approval by the DCA. If a plan amendment area had been surrounded by vacant land, then the issue of need is more prevalent. Hagen-Nicholson's planning expert performed a needs analysis. The calculation of the need is done with supply and demand. Supply is land, and demand is population growth. At the time the City began the plan amendment process, the City had approximately 223-230 acres of low-density residential land available. For demand, he determined that over the past three years, there were 113 building permits issued for new homes. The mathematical computation provides for the vacant land to be fully utilized within 5.9 years at an allocation of 1:1. Using the 1:1 ratio is not necessarily a practical ratio because there may be property that is not on the market for sale. When applying a vacant-land multiplier that is used in Orange County -- 2.4, the City would only have a three-year supply of vacant land. When dealing with a comprehensive plan, there should be a 10- to 20-year supply of land. The City's housing element provides that the City is required to provide housing for all current residents as well as anticipated future residents. As of 2002, 94 percent of its housing stock was valued at $100,000 or less, and 47 percent was valued at $50,000 or less. Accordingly, the City does not have adequate available middle-income housing and the Plan Amendment may meet this need. Urban Sprawl The Petitioners contend that the Plan Amendment constitutes urban sprawl. This contention is primarily based upon the assertion that the Plan Amendment is located in a rural area, and the assertion that the Plan Amendment triggers several of the 13 indicators of urban sprawl in Florida Administrative Code Rule 9J-5.006. Florida Administrative Code Rule 9J-5.003(111) defines "rural areas" as "low density areas characterized by social, economic and institutional activities which may be largely based on agricultural uses or the extraction of natural resources in unprocessed form, or areas containing large proportions of undeveloped, unimproved, or low density property." As noted herein, the subject property is vacant and, prior to the adoption of the Plan Amendment, was designated as "Residential 1" (and a portion as "Neighborhood Commercial") under the County's Plan. It is surrounded by developed residential lands and infrastructure such as water, sewer, and roads. The surrounding areas are not undeveloped or unimproved. The area is a low density, but it is an urban low density, not a rural low density. FSN's expert planner, Gerald Langston, performed a study of the surrounding land uses in the vicinity of the Plan Amendment site (study area), including the unincorporated area of the County. Although the lands immediately to the north and south of the parcels are designated one unit per 2.5 acres and one unit per one acre, respectively, under the County's Plan, approximately 49 percent of the parcels in the study area are between one and 1.25 acres in size and approximately 30 percent are a little less than an acre. Three percent are over five acres. In other words, approximately 80 percent of the parcels are less than 1.25 acres in size. T III 819-820. Mr. Langston also studied census data and determined that the demographics of the area are not rural. It is a very rapidly growing area, with an urban development pattern that is basically built-out. (Within the study area, after deducting the 605 acres of the subject property, approximately 21 percent of the acreage is vacant or undeveloped. Stated otherwise, approximately 80 percent is developed. T III 827.) One of the County's experts, Edward Williams, did a general analysis of the lot sizes in the area. He testified that the area is rural with lot sizes of one unit per 2.5 acres. He reviewed photographs of the area and pointed out the lack of sidewalks, curbs and gutters, and lack of quarter-acre lots. However, he did not obtain any census data specific to the Plan Amendment property or to the surrounding area, and could not describe the percent distribution of lot sizes in the surrounding area. He believed that the area is agricultural and rural, but did not analyze the social and economic characteristics of the area surrounding the subject property.8 According to the County's Plan, the subject property is located in an area where the County is planning to provide future water and sewer. Additionally, a map in the County's Plan suggests that the area is actually not suitable for well and septic tanks. The subject property is within the City's water and sewer area and the City has adequate water and sewer capacity to service the subject property. The area surrounding the subject property is not rural under Florida Administrative Code Rule 9J-5.003(111), but rather consists of urban low-density residential development. Rule 9J-5.006(5)(g)1. Indicator 1 is not implicated. The subject property is surrounded by developed residential land and is not a substantial area of the City. The subject property will have a single use, but the introduction of another land use or mixed- use development would be incompatible with the surrounding area and not appropriate. Rule 9J-5.006(5)(g)2. Indicator 2 is not implicated, as the area is urban, and the Plan Amendment is not leaping over undeveloped lands. Rule 9J-5.006(5)(g)3. Indicator 3 is not present. The subject property is an area of vacant land surrounded by developed lands. The subject property is infill development. The Plan Amendment does not promote, allow or designate urban development in radial, strip, isolated or ribbon patterns emanating from existing urban developments. Rule 9J-5.006(5)(g)4. Indicator 4 is not present. The subject property is not a rural area with agricultural uses, and the wetlands on site are designated as Conservation and thus are protected. The Plan Amendment is not premature or poorly planned, as the surrounding area is already developed and the property is infill. The subject property is surrounded by infrastructure including water and sewer, and roads. The City has the capacity to provide water and sewer to the site. Rule 9J-5.006(5)(g)6. Indicator 6 is not present, as water, sanitary sewer, and reclaimed water lines have already been extended to the area. The Plan Amendment will add customers to facilities that have the capacity to handle them. By increasing the number of users in the system, the operational efficiency is increased. Therefore, the Plan Amendment maximizes the use of existing public facilities and services. Rule 9J-5.006(5)(g)7. The Plan Amendment does not fail to maximize the use of future public facilities and services. The facilities that exist in the area were built for future growth, and not connecting to them would be a failure to maximize the public investment that has already been made. Rule 9J-5.006(5)(g)8. Extending existing facilities and services to the property covered by the Plan Amendment will increase costs, but not disproportionately so. Water and sewer are close to the subject area, and the roads have capacity. Extending water and sewer at one unit per acre would be more costly and less efficient than for four units per acre. With respect to law enforcement, fire and emergency response services, this indicator is present to some extent. Rule 9J-5.006(5)(g)9. Indicator 9 does not apply, as there are no rural or agricultural uses in the area. Rule 9J-5.006(5)(g)10. The City has adopted a community redevelopment plan in the downtown neighborhood. The City can promote middle income housing with the Plan Amendment while at the same time pursue redevelopment in the downtown area. The two are not mutually exclusive. Rule 9J-5.006(5)(g)11. The Plan Amendment provides for a single residential use and does not encourage an attractive and functional mix of uses. However, putting commercial or industrial uses on the subject property does not make good planning sense as the area is not appropriate for a mix of uses. In summary, the Plan Amendment does not meet the definition of "urban sprawl." See Fla. Admin. Code R. 9J- 5.003(134). The Plan Amendment is not in a rural area; it is surrounded by residential development. Public facilities are very close, and the Plan Amendment is within the City's service area. The Plan Amendment does not "leapfrog" since there are no large tracts of undeveloped land between the City and the Plan Amendment property. It is not scattered development; it is infill. While it is true that it is a low density use and a single use, the area is not appropriate for mixed-use, retail, commercial or an extremely high residential density. Florida Administrative Code Rule 9J-5 requires a consideration of the context in which the plan amendment is being proposed. Land use types within the jurisdiction and in proximate areas outside the jurisdiction will be evaluated. Local conditions, including the existing pattern of development and extra-jurisdictional and regional growth characteristics, should be considered as well. The consideration of the parcels surrounding the Plan Amendment was important. The City considered the fact that other cities and the County as a whole are experiencing population growth. In considering how the City has grown in the past and its development pattern, how the area around the City has grown and its development pattern and population projections, the Plan Amendment is not urban sprawl. Transportation Facilities The City submitted data and analysis relative to traffic impacts in a study prepared by Traffic Planning and Design, Inc. (TPD). PE 83. The TPD traffic study was accomplished in accordance with the County's concurrency management procedures and based on adopted Levels of Service (LOS). After the City's re-submittal to the DCA, the Florida Department of Transportation (FDOT) had no comments or concerns about transportation impacts. DCAE 2, FDOT analysis. Although the Plan Amendment would allow for more traffic to be generated, increased traffic does not necessarily render a plan amendment not in compliance. A broad brush approach is taken at the comprehensive planning stage. A compliance determination does not consider details such as the design of the roads, or whether roads have guardrails. The issue is whether there is enough capacity to maintain the adopted LOS. Adequate Capacity There is adequate capacity on the surrounding roads to accommodate the trips generated by the Plan Amendment. The TPD traffic study forecasted traffic demands and the impact on available capacity along roadways affected by the subject property and concluded that "all road segments will operate within their adopted LOS with excess traffic capacity available for future development" and "there will be adequate capacity to accommodate the trip generation" contemplated by the Plan Amendment. PE 83. The projected traffic generated by the subject property between now and the year 2010 will not cause any of the roadways to exceed capacity. Based on the TPD traffic study, the County agreed that the anticipated trips generated would not exceed the adopted LOS and that there is available capacity on the road segments affected by the project. Although Petitioners raised multiple traffic issues in their respective amended petitions, Petitioners mainly presented testimony that anticipated development of the subject property will cause increased traffic on County roads which will lead to increased safety concerns. Safety Concerns on James Road The County presented evidence regarding existing and potential safety concerns on several road segments including James Road, which may result from anticipated development of the subject property. The County's main safety concern (with development of the south parcel) is the segment of James Road between Friday Road and Cox Road because of a steep canal that runs along mainly the north side of James Road for approximately one mile. The County's safety concerns relating to James Road only apply to the southern property; thus any increase in traffic on the northern property, including the triangular portion, does not impact safety on James Road. The safety problems relating to James Road exist currently and existed in 2004. Mr. Denninghoff testified that the anticipated increased traffic as a result of the Plan Amendment will expose additional traffic to the existing hazardous conditions on James Road beyond what was planned. The safety concerns with James Road could be resolved by installation of a guardrail, improved and additional street lights, and rumble strips on the road before the stop signs. The County has not added guardrails to James Road. These safety improvements are needed now. Maintenance Costs for County Roads Besides safety, another issue raised by the County during the hearing regarding transportation issues was the anticipated increase in wear and tear on the County roads resulting in increased costs to the County. Residents of the subject property will pay impact fees, which may be utilized for improvements to capacity, operational improvements at intersections, including the safety improvements mentioned above, for new facilities, or expansion of existing facilities, but not maintenance. The impact fee is paid directly to the County. By ordinance, the Brevard County Board of County Commissioners approves the expenditures of the impact fees collected. The County will receive approximately $2.6 million in impact fees from the development of the subject property. The impact fees collected by the County could be utilized to fund safety measures because they are related to capacity improvements. No development was approved by the Plan Amendment. Pursuant to the City's Code and Plan, traffic impacts of a development are reviewed in more detail after the plan amendment process, specifically, during the development process. Petitioners' concerns are premature. Development orders are the result of the subdivision and site plan approval process. Prior to the approval of the final PUD, or the issuance of building permits, the City will examine whether the necessary public facilities are operating within the adopted levels of service. When the developer applies for permits to develop the subject property, the City will review issues concerning traffic. The developer will submit an updated traffic study, which will be reviewed by the City and the County. The County is responsible for issuing driveway permits. Transportation Element Objective 2.3 of the City's Plan provides that "[d]evelopment shall bear the full burden of the cost of roadway improvements necessitated by impacts to the roadway network caused by traffic generated by said development through the adopted site approval process." The City's Plan also provides that new development will not be permitted unless mitigative measures are undertaken to address level of service impacts caused by development. Intergovernmental Coordination The City's Plan contains an Intergovernmental Coordination Element (ICE). The Plan Amendment does not make any changes to that element. Petitioners presented documentary evidence through Mr. Williams' report alleging that the City violated the ICE in its Plan. However, the evidence shows that the Plan Amendment is not inconsistent with any intergovernmental coordination requirements in the City's Plan. Intergovernmental coordination does not mean that one local government must acquiesce to a request from an adjacent local government. Intergovernmental coordination requires information sharing, and there are numerous objectives and policies in the City's Plan addressing the City's responsibility to coordinate with the County regarding development impacts at the appropriate time. Most of the policies and requirements for intergovernmental coordination in the City's Plan are driven by the subdivision site plan approval process. The City coordinated with the County, as the City provided a copy of its annexation report to the County in July of 2004. The City manager invited the County manager to discuss the report with City staff, but the County did not respond. The City also used the County's concurrency management procedures in analyzing traffic, and reduced the density from seven to four units per acre based in part upon the County's comments during the review process. Compatibility With Surrounding Areas Florida Administrative Code Rule 9J-5.003(23) provides: "[c]ompatibility 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." The residential development contemplated by the Plan Amendment is compatible with the surrounding land uses. The subject property is surrounded by urban residential development and existing public infrastructure. The City studied the area surrounding the Plan Amendment, and determined that it was developed in an urban and suburban manner. To be compatible with the surrounding areas, the City developed the VLDR category allowing four units to the acre on the subject property. The County's future land use for the property to the north of the Plan Amendment is designated residential to be developed at one dwelling per 2.5 acres. However, Hagen- Nicholson's expert testified that it has been developed more intensely, with some lots developed at less than an acre. The County's future land use to the south of the Plan Amendment is one unit an acre. The area to the south, however, is less intensely developed -- it is developed at 1.5 units to the acre. The County allowed areas of three units to the acre and five units to the acre to be developed in the middle of the area to the south of the Plan Amendment. Hagen-Nicholson's planning expert testified that the County's planning of the area to the south of the Plan Amendment is the cause of urban sprawl. The Plan Amendment allows a hole in the donut to be filled in so that in the future, there is not pressure to develop homes in a leapfrog fashion two to three miles away. In this case, residential next to residential is compatible. The Plan Amendment is compatible with adjacent development. Internal Consistency Petitioners allege that the Plan Amendment is not internally consistent with several provisions of the adopted City Plan. Specifically, the report of Petitioners' planning expert alleges that the Plan Amendment is not consistent with the City's Policies and/or Objectives 1.1.1.2, 1.1.1.8, 1.1.2.3, 1.1.2.5, 1.1.3, 2.1.1, 2.3, 2.3.1.4, 2.4.1, 2.4.5, 2.6.2, 2.6.4, 4.2.4.4, 4.2.5.2, 4.2.6.3, 4.3.4.1, 9.4.4, 9.8, 9.8.1, and 9.8.2. The City's Director of Community Development testified that the Plan Amendment is internally consistent with the City's Plan and that Petitioners' expert was applying the site plan approval process to the Plan Amendment. The majority of the policies or objectives cited in the report of Petitioners' expert pertain to later stages of the development process, not the plan amendment process. For instance, Petitioners allege that the Plan Amendment is not consistent with Policy 4.2.6.3 because there is no mention in the development agreement concerning who is responsible for the costs of providing the extension of lines, alteration of lift station and the cost of plant capacity for providing wastewater service. The Plan Amendment is not inconsistent with Policy 4.2.6.3 because the developer's agreement for the subject property provides that the developer is required to comply with all city, local, county, state, and federal requirements. Additionally, allegations concerning Policies 1.1.2.5, 1.1.2.6, 2.4.1, and 2.4.5 are premature because they pertain to setback requirements and issues which pertain to later stages of the development process. Policies 4.2.4.4 and 4.2.5.2 pertain to septic tanks and locating waste water package plants. These Policies do not pertain to the Plan Amendment. FSN's planning expert testified that the Plan Amendment is consistent with the City's Plan and that the Plan Amendment will benefit the City as a whole. The DCA's senior planner also testified that several of the Policies which Petitioners alleged that were inconsistent with the Plan Amendment were premature because they pertain to the development stage, not to the plan amendment stage. The Plan Amendment is consistent with Policies and Objectives 1.1.1.2, 2.1.1, 2.6.2, 2.6.4, 2.9.1, 2.9.3, 4.1, 4.1.1.5, 4.1.3.1, 4.1.5, 9.4.4, 8.1.2, 8.2.1, 9.8.1, 9.8.2, and 9.8. Petitioners did not prove that the Plan Amendment is inconsistent with the provisions they cited. Regional and State Plans Section 163.3177(10)(a), Florida Statutes, provides in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Strategic Regional Policy Plan A determination of whether the Plan Amendment is consistent with the East Central Florida Regional Planning Council's Strategic Regional Policy Plan (SRPP) is based on an assessment of the SRPP as a whole. § 163.3177(10)(a), Fla. Stat. Petitioners did not present evidence that the Plan Amendment is inconsistent with the SRPP as a whole. Petitioners' expert opined that the Plan Amendment is inconsistent with certain provisions of the SRPP. The report only discussed several policies in an isolated fashion and did not consider the SRPP as a whole. Nevertheless, the Plan Amendment is consistent with the SRPP as a whole, and is consistent with the specific provisions with which Petitioners' report alleged inconsistencies. Specifically, the Plan Amendment is not inconsistent with the SRPP Policy 6.1 because the area is already urban. Additionally, the Plan Amendment is in an area that has existing commercial uses nearby. The Plan Amendment is consistent with SRPP Policies 6.4 and 6.5 because both of these policies pertain to rural areas. The subject property and the surrounding areas are not rural. The Plan Amendment is consistent with SRPP Policy 6.16 because it is based upon area-wide projections and forecasts. The Plan Amendment is consistent with SRPP Policy 6.17 because it does not adopt a policy providing that there shall be no informal mediation processes, or that informal mediation shall not be used. The Plan Amendment is consistent with SRPP Policy 6.19 regarding the encouragement of public participation. Overall, the City encouraged public participation. The City has the capacity and ability to develop its downtown area and to promote infill at the same time. Accordingly, the Plan Amendment is consistent with SRPP Policy 6.21. The Plan Amendment concerns the issue of deciding a future land use. SRPP Policy 5.17 1.a., which pertains to addressing transportation impacts of a development project in one jurisdiction on an adjacent jurisdiction, will be addressed at the appropriate stage of the development process. SRPP Policy 5.23 pertains to equitable cost participation guiding development approval decisions. It does not pertain to the Plan Amendment because there is no transportation capacity improvements required by the Plan Amendment. The Plan Amendment is consistent with SRPP Policy 7.3 because the area encompassing the Plan Amendment is already included in the City's approved future service area. Petitioners' report set forth an allegation that SRPP Policies 7.5, 7.9., 7.10, and 7.19 "would all be in conflict with the city of Cocoa proposed amendment." The Plan Amendment is consistent with these SRPP Policies. FSN's planning expert testified that the SRPP uses directive verbs that are intended to be suggestions and recommendations to a local government, not requirements. He provided testimony that since the subject area is urban, and not rural, the SRPP does not impact this Plan Amendment because it provides for protection of regional natural resources, and promotes intergovernmental coordination. Hagen Nicholson's expert also testified that the Plan Amendment is consistent with the SRPP. The East Central Florida Regional Planning Council did not raise any concerns to the Plan Amendment violating the SRPP. Finally, the Plan Amendment actually furthers SRPP Policies 4.23, 4.2.4, 6.1.4, 7.1, 7.4, and 7.5. State Comprehensive Plan A determination of whether the Plan Amendment is consistent with the State Comprehensive Plan (State Plan) is based on an assessment of the State Plan as a whole. Petitioners alleged in paragraphs 39, 46, 59, and 65 of the Amended Petition that the Plan Amendment is inconsistent with Sections 187.201(18)(b) and 187.201(21) of the State Plan. However, they did not present persuasive evidence that the Plan Amendment is inconsistent with the State Plan as a whole. The Plan Amendment is consistent with the State Plan as a whole, and, in particular, Sections 187.201(18)(b) and 187.201(21), Florida Statutes. Furthermore, the Plan Amendment furthers the State Plan goal to "increase the affordability and availability of housing for low-income and moderate-income persons. . . ." See § 187.201(4), Fla. Stat. It furthers the State Plan goal set forth in Section 187.201(9), Florida Statutes, because the Plan Amendment protects the wetlands by designating them as Conservation areas. Finally, it furthers the State Plan goal set forth in Section 187.201(15), Florida Statutes, because the Plan Amendment preserves environmentally sensitive areas. Public Participation9 Petitioners alleged that public participation was not provided with respect to the August 24, 2004, transmittal hearing, primarily because the City allegedly refused to allow citizens access to the hearing and the opportunity to speak during the hearing. At the administrative hearing in this matter, following denial of the DCA's motion in limine, the issue was narrowed to the question of whether the August 24, 2004, hearing was the type contemplated by Chapter 163, Part II, Florida Statutes, with the ultimate issue being whether or not that will impact whether the Plan Amendment is "in compliance." The issues identified in footnote 1 of Petitioners' Hunters and Kellgrens' Amended Petition are not at issue. Council meetings have an order of discussion. During "delegations," only City residents, employees, and water customers may speak. The City Council is authorized to set aside up to 30 minutes of each regular Council meeting limited to hearing from only residents and taxpayers of the City. After the delegations portion, the consent agenda is considered, and then the public hearings portion follows. Under the public hearings portion, any person may speak. Speaker cards are filled out, passed on to the Mayor, and the Mayor calls the names from the cards. On August 17, 2004, the City published a Notice of Future Land Use and Zoning Change in the Florida Today Newspaper. The notice stated that a public hearing would be held by the City Council in their chambers at 7:00 p.m. on August 24, 2004, on subjects including the proposed plan amendment and re-zoning of the subject property. The notice also stated that the hearing was a public hearing, that all interested persons may attend and that members of the public are encouraged to comment on the proposed ordinance at the meeting. The parties stipulated that the August 24, 2004, hearing was properly advertised and noticed.10 According to the transcript of the City Council meeting on August 24, 2004, the meeting, including the transmittal hearing portion, began at 7:15 p.m. Several hundred people showed up and were outside of the building at 6:00 p.m. The City's planner testified that he did not have any expectation that there would be that many people there. The turn-out was so large that not everyone could fit in the Council chambers. The capacity of the room is either 91 or 93 based upon fire department regulations. The first issues discussed related to the annexation of the property subject to the proposed plan amendment. There was also discussion regarding the re-zoning and the proposed plan amendment. PE 14 at 3-48. Thereafter, Mayor Parrish stated that "it would be appropriate to have a public hearing regarding these three ordinances." Id. at 48. The Mayor asked everyone to fill out speaker cards.11 The City Attorney stated that there were speaker cards about three to four inches thick; "about two hundred plus cards of people who want to speak." Id. at 49, 51. Mayor Parrish stated: I know. There is no way we can hear them in one night. Also, we have to go by the concerns and the citizens that we hear and I doubt there are this many ideas that is going to be expressed tonight. If we don't duplicate something that we have already heard, we might be able to bring them down a little bit. If we can elect representative to speak on behalf of other names that can be given possibly as a way to cut down on that. We also have heard from planning and zoning and have spoken with the members of planning and zoning. We have minutes from the meetings. We have copies of presentation that were given at that meeting and letters and phone calls and e-mails, and so, we have got a good sense of the concerns that were expressed that night and since that night. We do want to hear from everyone we possibly can. The criteria for a public hearing are basically three minutes for a speaker and representatives of recognized groups shall be limited to ten minutes. So if you have somebody that can speak on behalf of a group of people they can have ten minutes and possibly get everything expressed that maybe a larger group would take longer than the ten minutes. A total debate on a single issue is limited to 30 minutes. Since we have three issues -- Id. at 49-51. See also PE 14 at 53-54. The public hearing portion of the transmittal hearing did not get underway until approximately 8:30 p.m. Id. at 51. The City Council typically allows 30 minutes for the public hearings portion, but decided to extend the time to 90 minutes, id. at 53, and later went beyond that limit to accommodate more speakers.12 After several persons began expressing their opposition to the items, including the proposed plan amendment, id. at 58-82, the Mayor stated that the comments were "starting to get a little bit repetitive" on several issues and requested the attendees to try "to narrow it down to some other issues that maybe haven't been brought up so far." Id. at 82. Other speakers followed, id. at 82-128, when the Mayor stated that they were "going to run over with just the cards" that she had and inquired whether they wanted to extend the time. It was decided to "hear the three or ten depending upon how long." Id. at 129. Again, others spoke when a police officer said "[w]e have a few more[,] [a]re you done?" The Mayor responded: "We are past time. I'm trying to finish the ones that I have up here that are saying that they are in line." Id. at 140. Councilman Anderson wished to cut off public comment and Councilwoman Collins provided a second "because of how late it is -- 11 o'clock Mayor." Id. at 141. Without ruling on the request, Stacy Ranger, a representative of the County, spoke and focused on the annexation issue, including neighborhood compatibility. Id. at 141-146. Thereafter, Mr. Titkanich was granted permission to respond to comments. Id. at 147-157. The public portion of the hearing was then closed. Id. at 158. After some discussion, a motion to extend the meeting not more than one hour was approved. This motion was made sometime after Councilwoman Collins announced how late it was - 11 p.m. Id. at 176-177.13 Ultimately, the Council voted four to one in favor of Ordinance No. 39-2004. Id. at 181-182. Mr. Kellgren testified that he arrived at the hearing location around 6:00 p.m. There was a large crowd of several hundred people outside. He filled out a speaker's card, but could not get into the building. He waited outside and tried to observe what was going on. He left the hearing around 9:30 p.m. because he did not see the point in staying any longer; he could not get in and could not hear anything. His speaker's card was not marked "NR" or "No Response." PE 36. Although Mr. Kellgren was not able to get into the building to speak, he had retained lawyer Kimberly Rezanka to represent him and his wife at the August 24, 2004, hearing. During the hearing, Ms. Rezanka spoke to the City Council on behalf of the Kellgrens and several other individuals.14 (Mr. Kellgren attended the P&ZB hearing and opposed the proposed plan amendment and rezoning.) After the transmittal hearing, Mr. Kellgren sent two letters to the DCA's Plan Review Administrator expressing concerns regarding the proposed plan amendment. One letter was signed by Mr. Kellgren and others. No complaint was made regarding the conduct of the transmittal hearing. PE 81-82; T II 358. Ms. Hunter arrived at the City Council's August 24, 2004, meeting around 5:30 p.m. (She attended the P&ZB hearing and spoke.) She testified that she was not allowed to go inside the building because she was not a City resident. She wrote comments opposing the proposed plan amendment on her speaker's card -- "7 houses per acre would be ridiculous Against [two underscored lines] rezoning of property at Friday [&] James in Cocoa - 1 house per acre only!!". She wrote this information on the card so her intentions would be known. The upper-right hand corner of her card is marked "NR," although she did not write these letters on the card. She left the public hearing around 9:30 p.m., because she had to work the next day and take care of her children. She knew that the hearing was still going on and acknowledged that her name could have been called after she left. She did not go to the December 14, 2004, adoption hearing. Brian Seaman lives in Canaveral Groves, which is in the unincorporated area of the County and east of the north parcel. FSNE at "BS." He arrived at 6:00 p.m. He testified that he was not allowed in because he was not a City resident. He filled out a speaker's card, but believes that his name was not called. His card was not marked "No Response" or "NR." He testified he remained at the public hearing until approximately 11:45 p.m., when he was told of the Council's vote. See Endnote (He attended the P&ZB hearing and later attended the December adoption hearing held at the Civic Center. He did not speak at those hearings because the issues that were of concern to him had already been raised by others.) The public hearing portion of the transmittal hearing lasted over three hours. There is evidence that names on the speaker cards (CE 10), such as Mr. Seaman, were not called. There is also evidence that there was no response for many of the names as reflected on the cards.15 Nevertheless, citizens spoke during the public hearing portion of the transmittal hearing. Notwithstanding the large turn out, the Mayor and Council took measures to accommodate the larger-than-expected crowd and public comment was received. The City Council learned from the experience and conducted the adoption hearing at the Civic Center. No issues are raised regarding the adequacy of the adoption hearing. There is no persuasive evidence that any person was deprived of the opportunity to submit written objections, comments, or recommendations to the Council prior to, during, or after the Council's consideration of the proposed plan amendment (during the transmittal hearing). The DCA's expert planner, Erin Dorn, testified that Florida Administrative Code Rule 9J-5.004 requires local governments to adopt procedures for public participation. Once the DCA receives an amendment package from a local government, it goes to the plan processing team (PPT). The PPT checks the package for "completeness" to make sure that it includes all information required by law. The PPT does not review the plan amendment. Once the package is complete, it is sent to the planning review team for a substantive review. Review of a plan amendment includes public facilities, natural resources, and transportation. Review of a plan amendment does not include a review of whether every person who wanted to attend the hearing was permitted to do so, or a review of the number of people who attended. Such aspects of public participation are not considered by the PPT, and necessarily the DCA when reviewing a plan amendment for a compliance determination. The DCA received letters from citizens, voicing concerns regarding the Plan Amendment.16
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the Plan Amendment adopted by the City through Ordinance No. 39-2004 is "in compliance." DONE AND ENTERED this 3rd day of July, 2006, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2006.
The Issue Whether Miami-Dade County’s (“the County’s”) comprehensive plan amendment, adopted by Ordinance No. 20-47 on May 20, 2020, is “in compliance,” as that term is defined in section 163.3184, Florida Statutes.1
Findings Of Fact The Parties Petitioner resides, and owns property, in the County. Petitioner made oral or written comments and objections to the County regarding the Plan Amendment during the time period between the County’s transmittal and adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty and authority to adopt and amend its Comprehensive Plan. See § 163.3167(1), Fla. Stat. Krome is a limited liability company, existing under the laws of the State of Florida, with its principal place of business in the State of Florida. Krome owns the property subject to the Plan Amendment, as well as other property within the area affected by the Plan Amendment, and was the applicant for the Plan Amendment. The Subject Property and Surrounding Uses The Subject Property is 5.97 gross acres (approximately 4.6 net acres) of vacant land located outside of the Urban Development Boundary on the southwest corner of SW 177 Avenue (Krome Avenue) and SW 136 Street. It is the northeast corner of a larger 48.33-acre parcel owned by Krome (the “Parent Tract”). Adjacent to the north of the Parent Tract, across SW 136 Street, is a solar farm operated by Florida Power and Light Company (FPL). To the east, across Krome Avenue, and to the south, including the remaining portion of the Parent Tract, are agricultural lands used for row crops. West and south of the Parent Tract (including the Subject Property), the land is developed predominantly with five-acre rural estates, interspersed with small residential farms and agricultural sites ranging between 10 and 30 acres in size. The Property is located within an approximately 11-mile stretch of Krome Avenue where there are presently no gas service stations. The nearest gas service station to the south of the Property is located approximately three miles away. The nearest gas service station to the north of the Property is located approximately eight miles away. The Plan Amendment The Plan Amendment changes the Future Land Use (“FLU”) designation of the Subject Property from the “Agricultural” to the “Business and Office” land use category. The Business and Office category allows for development of a wide range of sales and services uses, including retail, wholesale, personal and professional services, call centers, commercial and professional offices, hotels, motels, hospitals, medical buildings, nursing homes, entertainment and cultural facilities, amusements, and commercial recreation establishments. The category also allows light industrial development, telecommunication facilities, and residential uses (stand alone or mixed with commercial, light industrial, office, and hotels). Krome sought the Plan Amendment for the ultimate purpose of operating a gas service station and other food and retail uses compatible with, and supportive of, the surrounding agricultural and residential community. In recognition that the “Business and Office” land use designation permits a wide variety of uses, Krome proffered to restrict the permitted uses on the Property by submitting a Declaration of Restrictions to be recorded as a covenant running with the land. County Consideration of Plan Amendment In October 2019, County planning staff issued its Initial Report and Recommendations, suggesting denial of the proposed Plan Amendment. The County’s Community Councils are tasked with providing recommendations on proposed amendments to the Comprehensive Plan. The West Kendall Community Council conducted a public hearing on the proposed Plan Amendment on December 16, 2019, at which members of the public commented on the proposal. A representative of Krome made a presentation at the public hearing and submitted presentation exhibits that included: (1) a proposed Declaration of Restrictions; (2) a County memorandum relating to a separate application to allow the establishment of a gas station at SW 177 Avenue and SW 200 Street in Miami-Dade County; (3) a letter from the Dade County Farm Bureau stating that it had no objection to the Application; and (4) a Petition of Support listing 105 members of the community that elected to express support and recommend approval of the proposal. At the conclusion of the December 16, 2019 hearing, the West Kendall Community Council voted to recommend that the proposed Plan Amendment be adopted with acceptance of the proffered Declaration of Restrictions. After previously deferring the matter at a hearing on October 29, 2019, the Miami-Dade County Board of County Commissioners (the “BCC”) voted on December 17, 2019, to adopt the Plan Amendment on first reading. The County’s Planning Advisory Board (“PAB”) serves as the Local Planning Agency to review any matters referred to it by the BCC, pursuant to section 2-108 of the Miami-Dade County Code. On January 8, 2020, the PAB, acting as the Local Planning Agency, conducted a public hearing to address the proposal. Near the conclusion of the hearing, the chairman of the PAB proposed an amendment to the proffered Declaration of Restrictions such that the maximum gross square feet of enclosed, under-roof construction on the Property, excluding fueling islands, would be reduced from 10,000 square feet to 6,000 square feet. Krome’s representative agreed to the proposed amendment. The PAB then voted to recommend that the BCC adopt the Plan Amendment with acceptance of the revised Declaration of Restrictions. After previously deferring second reading of the ordinance on January 23, 2020, the BCC voted nine-to-three to adopt Ordinance No. 20-47 on second reading at a public hearing on May 20, 2020. As part of its adoption of the Plan Amendment, the BCC accepted Krome’s proffered Declaration of Restrictions containing the provisions outlined below. The adopted Declaration of Restrictions states that it is a covenant running with the land for a period of 30 years, and thereafter automatically renews for 10-year periods. The Declaration of Restrictions expressly allows for “[a]ll uses permitted under Article XXXIII, Section 33-279, Uses Permitted, AU, Agricultural District, of the Miami-Dade County Code” along with an “Automobile gas station with mini mart/convenience store” with a maximum of 15 vehicle fueling positions. The Declaration of Restrictions further provides that “[m]echanical repairs, oil or transmission changes, tire repair or installation, maintenance, automobile or truck washing” are prohibited uses, and it limits the maximum gross square feet of enclosed, under-roof construction to 6,000 square feet. Petitioner’s Challenges In the Amended Petition, Petitioner alleges the Plan Amendment is not “in compliance,” specifically contending that it: (1) creates internal inconsistencies with certain existing Comprehensive Plan policies, in contravention of section 163.3177(2); (2) fails to discourage the proliferation of urban sprawl, as required by section 163.3177(6)(a)9.; and (3) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f). Internal Consistency The Comprehensive Plan gives the County Commission flexibility to appropriately balance the community’s needs with land use, environmental, and other Comprehensive Plan policies. It is inherent in the comprehensive planning process that the Comprehensive Plan contains potentially competing goals, objectives, and policies, and that addressing them entails a balancing act rather than an all-or-nothing choice. The Comprehensive Plan expressly recognizes this balancing act in its Statement of Legislative Intent: The Board recognizes that a particular application may bring into conflict, and necessitate a choice between, different goals, priorities, objectives, and provisions of the CDMP. While it is the intent of the Board that the Land Use Element be afforded a high priority, other elements must be taken into consideration in light of the Board’s responsibility to provide for the multitude of needs of a large heavily populated and diverse community. * * * Recognizing that County Boards and agencies will be required to balance competing policies and objectives of the CDMP, it is the intention of the County Commission that such boards and agencies consider the overall intention of the CDMP as well as portions particularly applicable to a matter under consideration in order to ensure that the CDMP, as applied, will protect the public health, safety and welfare. Accordingly, the Comprehensive Plan must be read as a whole, and a plan amendment should not be measured against only certain policies in isolation. Krome’s expert, Kenneth Metcalf, opined that the Plan Amendment affirmatively furthers several Comprehensive Plan goals, objectives, and policies, including Land Use Policies (“LU”) 1G, 1O, and 8E; Conservation Policy (“CON”) 6E; Community Health and Design Policies (“CHMP”) 4A and 4C; Coastal Management Policies (“CM”) 8A and 8F; and Economic Policy (“ECO”) 7A. Petitioner contends that the Plan Amendment is inconsistent with some of those same policies, as well as other policies. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1G, which states: Business developments shall preferably be placed in clusters or nodes in the vicinity of major roadway intersections, and not in continuous strips or as isolated spots, with the exception of small neighborhood nodes. Business developments shall be designed to relate to adjacent development, and large uses should be planned and designed to serve as an anchor for adjoining smaller businesses or the adjacent business district. Granting of commercial or other non-residential zoning by the County is not necessarily warranted on a given property by virtue of nearby or adjacent roadway construction or expansion, or by its location at the intersection of two roadways. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with the allowance in Policy LU-1G for small neighborhood nodes based on its relationship to the adjacent rural residential and agricultural community, especially given the evidence that such adjacent community lacks existing options for gas and convenience goods. He further explained that use of the word “preferably” in Policy LU-1G indicated a preference, not a bright-line rule or requirement, and that the Comprehensive Plan does not contain a definition of “small neighborhood nodes” or any interim step for designating such nodes. Further, the County’s expert, Alex David, opined that the Plan Amendment is not inconsistent with Policy LU-1G. He first noted that locating business developments in clusters or nodes is preferable, but not compulsory. In addition, he explained that the policy allows for small neighborhood nodes, and that this Plan Amendment fits the concept of a small neighborhood node in terms of its location, scale, and function: Location: The Plan amendment is limited to a portion of a quadrant of the intersection of two roads adjacent to a rural community, so it will not be linear development along the Krome Avenue corridor; Scale: The Plan amendment is considered “small-scale” under the Florida Statutes because it involves less than 10 acres in land area. In addition, the Declaration of Restrictions accepted by the County Commission restricts the extent of land uses (other than those permitted under the AU Zoning District) to a convenience retail limited to a maximum of 6,000 square feet and a gas station with 15 fueling positions; and Function: Neither the Comprehensive Plan nor the County Code define the term “convenience store.” However, many other communities define this use as a small retail establishment intended to serve the daily or frequent needs of the surrounding neighborhood population by offering for sale prepackaged food products, household items, over-the-counter medicine, newspapers and magazines, freshly prepared foods, and even access to an ATM. In rural neighborhoods such as those surrounding the location of the Plan Amendment, a convenience store associated with a gas station is often the only place nearby to buy such items. These stores often also serve as a community gathering spot. Based on these characteristics, Mr. David opined that the Plan Amendment would create a small neighborhood node with a gas and convenience use for the surrounding rural farm community, similar to the nodes to the south along Krome Avenue that serve the surrounding communities there. Mr. David also contradicted Petitioner’s contention that the Comprehensive Plan contains a process for designating nodes. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1O, which states: “Miami-Dade County shall seek to prevent discontinuous, scattered development at the urban fringe in the Agriculture Areas outside the Urban Development Boundary, through its Comprehensive Plan amendment process, regulatory and capital improvements programs and intergovernmental coordination activities.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with LU-1O because the development contemplated by the Plan Amendment is designed to serve the adjacent existing rural neighborhoods to the southwest that are in need of gas and convenience goods. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-1O. He explained that this policy aims to ensure that development does not happen in isolation and occurs, instead, where other development already exists. Because the Plan Amendment site is proximate to a contiguous, and nearly continuous grid of, existing development consisting of rural estate residential and small-scale residential farms, the Plan Amendment does not contravene this policy or its purpose. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1P, which states: While continuing to protect and promote agriculture as a viable economic activity in the County, Miami-Dade County shall explore and may authorize alternative land uses in the South Dade agricultural area which would be compatible with agricultural activities and associated rural residential uses, and which would promote ecotourism and agritourism related to the area's agricultural and natural resource base including Everglades and Biscayne National Parks. Petitioner offered no evidence or expert testimony to support the contention that the Plan Amendment is inconsistent with Policy LU-1P. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-1P because that policy allows for alternative land uses that are compatible with agricultural uses, such as Krome’s plans for the store to support local agricultural uses and agri-tourism by selling fresh fruit from local groves and diesel for smaller scale agricultural farmers, as provided in the Declaration of Restrictions. Mr. David opined that the Plan Amendment is not inconsistent with that policy. He explained that the Plan Amendment pertains only to a very small portion (less than six gross acres) of a larger agricultural site, which will continue to be actively used for agriculture, and there is no evidence that the Plan Amendment will impair the viability of the agricultural economy in the County. As Mr. David explained, the County previously determined that the amount of land that is needed to maintain a “viable” agricultural industry is approximately 50,000 acres, and according to the County, the County has about 55,206 acres available. The 5.97 gross acres (approximately 4.6 net acres) of land that the Plan Amendment directly impacts is miniscule in comparison. Mr. David also explained how the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses, as well as promoting economic development in the County’s agricultural area. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-1S, which states: The Miami-Dade County Strategic Plan shall be consistent with the Comprehensive Development Master Plan (CDMP). The Miami-Dade County Strategic Plan includes Countywide community goals, strategies and key outcomes for Miami-Dade County government. Key outcomes of the Strategic Plan that are relevant to the Land Use element of the CDMP include increased urban infill development and urban center development, protection of viable agriculture and environmentally-sensitive land, reduced flooding, improved infrastructure and redevelopment to attract businesses, availability of high quality green space throughout the County, and development of mixed-use, multi-modal, well designed, and sustainable communities. Petitioner offered no expert testimony to support this contention. Petitioner’s reliance on LU-1S is misplaced because that provision requires the Miami-Dade County Strategic Plan to be consistent with the Comprehensive Plan, not the other way around. As such, this policy is irrelevant to the Plan Amendment, as both Mr. Metcalf and Mr. David testified. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-2B, which states: Priority in the provision of services and facilities and the allocation of financial resources for services and facilities in Miami-Dade County shall be given first to serve the area within the Urban Infill Area and Transportation Concurrency Exception Areas. Second priority shall be given to serve the area between the Urban Infill Area and the Urban Development Boundary. And third priority shall support the staged development of the Urban Expansion Area (UEA). Urban services and facilities which support or encourage urban development in Agriculture and Open Land areas shall be avoided, except for those improvements necessary to protect public health and safety and which service the localized needs of these non- urban areas. Areas designated Environmental Protection shall be particularly avoided. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-2B because that policy provides a specific exception for improvements that will serve “localized needs of these non- urban areas,” such as the proposed gas station and convenience store. Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-2B because it does not request, require, or necessitate the expansion of the Urban Development Boundary (“UDB”) or the Urban Expansion Area (“UEA”), nor does it involve or propose the extension of urban services or facilities outside the 2020 UDB or into the Agriculture and Open Land areas. Mr. David explained that gas stations and convenience stores are not “services or facilities,” as those terms are used in the Comprehensive Plan, nor would the gas station or convenience store allowed by the Plan Amendment be an “urban” use. Therefore, urban services and facilities that support or encourage urban development in Agriculture or Open Land areas will continue to be avoided. Mr. David further explained, as County planning staff recognized, the Plan Amendment will not impact key infrastructure and Levels of Service (“LOS”) that exist within the UDB (including, but not limited to, water and sewer, transportation, solid waste, etc.). Although County staff found that, under the Plan Amendment, fire and rescue services for the Property would not meet national industry standards, Mr. David refuted that concern, explaining that the Comprehensive Plan does not require compliance with national industry standards for fire and rescue, nor does the Plan Amendment violate a County LOS standard for fire and rescue. Petitioner contends that the Plan Amendment is inconsistent with Objective LU-7, which states: Miami-Dade County shall require all new development and redevelopment in existing and planned transit corridors and urban centers to be planned and designed to promote transit-oriented development (TOD), and transit use, which mixes residential, retail, office, open space and public uses in a safe, pedestrian and bicycle friendly environment that promotes mobility for people of all ages and abilities through the use of rapid transit services. The Plan Amendment is not located in an existing or planned transit corridor or urban center. Objective LU-7 is not applicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8C, which states: “Through its planning, capital improvements, cooperative extension, economic development, regulatory and intergovernmental coordination activities, Miami-Dade County shall continue to protect and promote agriculture as a viable economic use of land in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8C. He explained that the policy contained a general directive for the County to promote and protect agriculture, but did not prohibit small scale plan amendments that respond to the existing needs of the surrounding agricultural and rural communities, such as the Plan Amendment. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8C. Again, he explained that the Plan Amendment pertains only to a small portion of the Parent Tract, which will continue to be actively used for agriculture; that the uses specified in the Declaration of Restrictions are compatible with agricultural activities and associated rural residential uses; and that those uses will promote economic development in the County’s agricultural area. He also explained that removing the Property from agricultural production would not reduce the number of acres in agricultural production below the threshold needed to sustain agriculture as a viable economic activity in Miami-Dade County. Mr. David further explained that there is no provision in the Comprehensive Plan categorically prohibiting the removal of agricultural land from agricultural production. Petitioner argued that the Plan Amendment would further degrade existing agricultural uses in the area because it could tempt ATV riders to trespass and ride their ATVs over nearby agricultural lands. Mr. David found that speculative concern immaterial to the analysis required by the Comprehensive Plan. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8E, which states: Applications requesting amendments to the CDMP Land Use Plan map shall be evaluated for consistency with the Goals, Objectives and Policies of all Elements, other timely issues, and in particular the extent to which the proposal, if approved, would: Satisfy a deficiency in the Plan map to accommodate projected population or economic growth of the County; Enhance or impede provision of services at or above adopted LOS Standards; Be compatible with abutting and nearby land uses and protect the character of established neighborhoods; 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. Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy LU-8E. As an initial matter, Mr. Metcalf explained that this Policy only requires an evaluation of “the extent to which” the subparts are satisfied, and does not set a threshold or a specific methodology. Regarding subpart (i), Mr. Metcalf explained the Plan Amendment addressed an existing and future need for a gas station, convenience retail products, fresh food, and supporting products for the agricultural industry within the general area, which currently lacks these offerings. In addition, he opined that the gas station would respond to a critical need to reduce fuel shortages during hurricane evacuations. As to subparts (ii-iv), Mr. Metcalf opined that the Plan Amendment would not impede provision of services at LOS standards; would enhance hurricane evacuations; would be compatible with nearby uses because the Parent Tract would continue to be used for agriculture, which would serve as a buffer between the Subject Property and adjacent uses; and that the Subject Property does not contain any environmental or historical resources, features, or systems of County significance. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy LU-8E. He explained, first, that Krome submitted with its application a Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf, establishing that the Plan Amendment will help satisfy an existing deficiency in the Plan map by facilitating a convenience retail opportunity to serve the needs of the local population, who currently must drive on Krome Avenue at least three miles one way south of this location to SW 184th Street, or more than eight miles north, and then east on Kendall Drive (SW 88th Street), to reach the nearest equivalent services. In addition, there was significant support for the application by area residents, as evidenced by the petition submitted by Krome and the public testimony in favor of the Plan Amendment. Second, he explained that the Plan Amendment will not impede the provision of services at or above adopted LOS standards, as County staff noted in its report. On the contrary, with regards to traffic, the Plan Amendment may facilitate a reduction in trip generation and vehicle-miles traveled (“VMT”) on Krome Avenue from the existing residential community to the west and south, by providing a nearby convenience that may be reached without driving several miles north or south on Krome Avenue. Third, he opined that the Plan Amendment is compatible with abutting and nearby land uses and would protect the character of established neighborhoods—the large-scale solar power facility to the north, and the remainder of the 50-acre parcel that will remain in agricultural use to the west and south—will provide an appropriate buffer for the surrounding rural estate residential uses. Krome Avenue at this location is a 4-lane divided arterial with a 40-foot median, which also provides a significant buffer between the Plan Amendment site and the uses across Krome Avenue. In its evaluation, County staff recognizes that the “Business and Office” land use designation and the proposed development could be “generally compatible” with the existing agricultural uses and FPL’s Solar Energy Center. Mr. David opined that the assertion that the land use re-designation “would set a precedent for the conversion of additional agricultural land to commercial uses” is speculative and not only unproven, but refuted by the existing commercial development along the Krome Avenue corridor. The existing isolated uses along Krome Avenue, some of which are the same or similar uses that would be allowed by the Plan Amendment, are long-standing and have not led to urban development or infill in the area. Mr. David also testified that there are “very stringent policies” that restrict further development from occurring along Krome Avenue in this area, including Policies LU-3N and LU-3O. Fourth, Mr. David explained that the Plan Amendment will not degrade historical or archaeological resources, features, or systems of County significance, which is further confirmed by County staff’s own analysis. Regarding impacts to environmental resources, before any development proceeds on the Subject Property, the applicant must apply to all relevant state, regional, and local agencies for the applicable and necessary permits and variances, and if the applicant is unable to obtain such approvals due to environmental concerns, the project will not be permitted to proceed. In other words, while there is no evidence of adverse environmental impacts at the plan amendment stage, the applicant will have to satisfy all environmental requirements in subsequent stages of the development process to proceed with the project. Lastly, Mr. David explained that the Plan Amendment site is not located in an 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; thus, the fifth and final consideration of Policy LU-8E is inapplicable to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy LU-8G, which provides criteria for plan amendments that add land to the UDB. Because the Plan Amendment does not add land to the UDB, Policy LU-8G is irrelevant to the Plan Amendment. Petitioner contends that the Plan Amendment is inconsistent with Policy CHD-4A, which states: “Promote increased production and expand the availability of agricultural goods and other food products produced in Miami- Dade County.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was not inconsistent with Policy CHD-4A because the proposed store would support the local sale and consumption of goods from the community. Similarly, Mr. David opined that the Plan Amendment is not inconsistent with Policy CHD-4A. He explained that there is no metric associated with this aspirational policy, and noted that the approval of the Plan Amendment pertains only to a small portion of a larger agricultural site, the balance of which will continue to be protected and promoted for agricultural use. Moreover, he explained that the uses allowed by the Plan Amendment through the Declaration of Restrictions are limited to those permitted in the AU Zoning District, plus a fueling and convenience retail service use, which could support the sale and consumption of local agricultural goods. Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6D, which states: “Areas in Miami-Dade County having soils with good potential for agricultural use without additional drainage of wetlands shall be protected from premature urban encroachment.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment is not inconsistent with the policy because it affects only a five-acre tract, and because the Plan Amendment was justified by the existing demand. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6D. He noted, first, that according to the County, the Plan Amendment site does not contain jurisdictional wetlands. Second, he explained the Plan Amendment will not result in premature urban encroachment–i.e., a poorly planned expansion of low-density development spread out over large amounts of land, putting long distances between homes, stores, and work, and requiring an inefficient extension of urban infrastructure and services. According to Mr. David, the adopted Plan Amendment is the opposite of these characteristics because: a) it pertains to a very small site, with a range of permitted uses that is specifically limited by the accepted Declaration of Restrictions; b) it will reduce the distance between residents’ homes and local-serving convenience services; and c) it does not involve the extension of urban infrastructure and services. In addition, Mr. David opined that the term “premature” does not apply to the Plan Amendment, as evidenced by the public support of area residents for the gas and convenience uses and the applicant’s expert analysis of area need. Furthermore, Mr. David established that a gas station with a convenience store is not an “urban” use, and, therefore, the Plan Amendment does not allow “urban encroachment.” Petitioner contends that the Plan Amendment is inconsistent with Policy CON-6E, which states: “Miami-Dade County shall continue to pursue programs and mechanisms to support the local agriculture industry, and the preservation of land suitable for agriculture.” Petitioner offered no expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment was consistent with Policy CON-6E because it affected less than five net acres, only 10 percent of the Parent Tract, and would provide convenience goods for the community and local farmworkers. He further explained, again, that the policy does not prohibit small-scale plan amendments that respond to a local need. Further, Mr. David opined that the Plan Amendment is not inconsistent with Policy CON-6E. He explained that the Plan Amendment does not prevent Miami-Dade County from continuing to pursue programs and mechanisms to support the local agriculture industry and the preservation of land suitable for agriculture. Moreover, the addition of the permitted uses on a small portion of an otherwise agricultural site, which will continue to be used for agricultural production, is not inconsistent with this policy. Urban Sprawl Petitioner alleges that the Plan Amendment fails to discourage the proliferation of urban sprawl, contrary to section 163.3177(6)(a)9, Florida Statutes. Petitioner offered no evidence or expert testimony to support this contention. By contrast, Mr. Metcalf opined that the Plan Amendment would not constitute scattered or discontinuous development because, inter alia, it would introduce uses designed to serve the existing nearby community. Mr. Metcalf opined that the Plan Amendment would allow for non-vehicular trips due to the proximity of the rural neighborhoods and would internalize vehicular trips without requiring access to Krome Avenue, consistent with strategies to discourage urban sprawl. Finally, Mr. Metcalf opined that at least six of the eight criteria provided in section 163.3177(6)(a)9.B. were satisfied by the Plan Amendment. Specifically, he opined that: The Plan Amendment will not have an adverse impact on natural resources or ecosystems; The Plan Amendment promotes the efficient and cost-effective provision or extension of public infrastructure and services because the subject property will not be served by public infrastructure and is already served by emergency services, and because it will reduce demand on roads from nearby neighborhoods, thereby reducing operational and maintenance costs; The Plan Amendment promotes walkable and connected communities and provides for compact development and a mix of uses at densities and intensities by providing convenience goods and services within walking or biking distance to nearby residential neighborhoods and local farm workers; The Plan Amendment promotes the conservation of water and energy by reducing water demands as compared to the former use of the Property, and by reducing existing trip lengths otherwise required to access goods and services; The Plan Amendment indirectly supports the preservation of agricultural areas and activities by providing diesel fuel, selling locally grown produce and other agriculturally supportive products, and by maintaining the agricultural use on the remainder of the Parent Tract; The Plan Amendment creates an improved balance of land uses by providing convenience goods and gasoline/diesel fuel in response to the demands of the neighborhood residents and local farm workers; The Plan Amendment remediates the existing, single use, urban sprawl development pattern by providing a commercial use in a compact urban form at an intensity to allow residents and local farm workers to obtain goods, gasoline, and diesel fuel without leaving the neighborhood; and The Plan Amendment does not impact the criterion for open space, natural lands and public open space. Similarly, Mr. David opined that the Plan Amendment would not result in the proliferation of urban sprawl; he analyzed each of the statutory indicators of urban sprawl in section 163.3177(6)(a)9.A. and found that none are present, meaning that the Plan Amendment does not fail to discourage the proliferation of urban sprawl. In addition, he found that four of the statutory indicators of the Plan Amendment that would discourage the proliferation of urban sprawl, are present. He found that the remainder were not applicable. Specifically, Mr. David opined that the Plan Amendment would meet the following four indicators: 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. As Mr. David explained, agriculture is a human development activity. Therefore, the Parent Tract is not in a natural state, nor does it contain natural resources and ecosystems. According to County staff’s own report, the Subject Property does not feature native wetland communities, specimen trees, endangered species, or natural forest communities. There are no jurisdictional wetlands, no water courses, and no federally designated critical habitat on the Subject Property or adjacent properties. The Subject Property is not in a wellfield. Other environmental considerations, including water and stormwater management, and flood protection, are directed through the pertinent permitting agencies at the appropriate time to ensure that any future development minimizes adverse impacts on the general environment. Promotes the efficient and cost-effective provision or extension of public infrastructure and services. As Mr. David opined, the Plan Amendment does not involve or require the provision or extension of County-owned public infrastructure and services. This, therefore, meets the definition of the terms “efficient” and “cost- effective,” since the County will not have to invest time or funding in the extension of such infrastructure and services. The County staff’s own report finds, as a fact, that the amendment would not negatively impact existing infrastructure and service within the UDB. Moreover, the contention that fire and rescue services would not meet national industry standards is irrelevant because: (1) the Comprehensive Plan does not adopt the national industry standard as the LOS; and (2) the Plan Amendment would not negatively impact current estimated travel times for fire and rescue services. Further, as Mr. David testified with respect to the first set of urban sprawl indicators, the Plan Amendment would not disproportionately impact fire and rescue services. V. Preserves agricultural areas and activities, including silviculture, and dormant, unique, and prime farmlands and soils. As Mr. David explained, the Plan Amendment preserves agricultural areas and activities because the balance of the Parent Tract will continue to be preserved as crop land, and because the uses allowed in the proffered Declaration of Restrictions include agricultural uses and a fueling station that could include the sale of diesel, which is in demand for agricultural uses. VII. Creates a balance of land uses based upon demands of the residential population for the nonresidential needs of an area. As Mr. David opined, today the area does not have a balance of land uses, as it is entirely dominated by rural estate residential and agricultural uses. By introducing a gas and convenience use supportive of agriculture, the Plan Amendment will create a better balance of land uses in the area. Today, the local population does not have access to any type of convenience shopping in the vicinity of this location, because it is situated along an 11-mile gap between such uses on Krome Avenue. Contrary to the contention that the applicant failed to demonstrate the use is needed or required by residents, the applicant provided written evidence of support from over 100 neighbors about the need for the proposed nonresidential use and its benefit to their quality of life. Moreover, according to the public hearing record, many residents also attended the public hearings to express their support for the Plan Amendment. Further supporting the finding of need, the corporate representative of Krome testified in detail about the neighborhood’s need for a gas station and convenience store. Data and Analysis Finally, Petitioner alleges that the Plan Amendment “is not based upon the relevant and appropriate data and analysis provided by the County planning staff at the Department of Regulatory and Economic Resources, as required by section 163.3177(1)(f), Florida Statutes.” Petitioner also alleges that the Plan Amendment is based on “the convenience of access to fuel for private property owners in the area and not on relevant data and analysis.” Petitioner’s allegations, both in the Amended Petition and the Joint Pre- Hearing Stipulation, are conclusory and do not supply any discernible rationale for why she contends the Plan Amendment is not based on relevant and appropriate data and analysis. Petitioner offered no evidence or expert testimony to support these contentions. By contrast, Mr. Metcalf opined that the Plan Amendment is based on “relevant and appropriate data and analysis” supporting the Plan Amendment contained in the record. Namely, the following sources constitute such “relevant and appropriate data and analysis”: Mr. Metcalf’s Comprehensive Plan Consistency Evaluation, which contains 78 pages of comprehensive data and analysis supportive of his consistency findings; a petition of support for the Plan Amendment signed by over 100 members of the surrounding community; testimony from community members at various public hearings indicating a need for the Plan Amendment; and a letter from the Dade County Farm Bureau stating that the organization had no objection to the Plan Amendment Further, Mr. David also opined that the Plan Amendment is based on, and supported by, appropriate data and analysis. He explained that the video recordings and the legislative history of the adoption hearings related to the disposition of the Plan Amendment application clearly show that the County Commission duly considered the analysis provided by County staff before making a decision. Commissioners asked staff members thoughtful questions and discussed various findings of the staff report throughout the public hearings. Mr. David explained that County staff’s input is not the only criterion upon which elected officials may rely. Indeed, relevant data and analysis were also submitted by the applicant as part of the Plan Amendment application, including the Comprehensive Plan Consistency Evaluation study prepared by Mr. Metcalf. The Consistency Evaluation study relies on professionally accepted data sources and Mr. Metcalf’s extensive expertise to provide a sound rationale for the requested Plan Amendment. The County Commission considered, and reacted in an appropriate way to, such relevant and appropriate data. The County Commission received and considered community input in the form of public testimony, much of which was in support of the Plan Amendment, as well as the applicant’s petition of support from members of the surrounding community expressing need for local gas and convenience uses. Finally, Mr. David’s expert report itself supplies further data and analysis supporting the Plan Amendment. Other Allegations Petitioner alleges that the Plan Amendment “depletes the Urban Development Boundary and Urban Expansion Areas.” The Comprehensive Plan includes the UDB to distinguish the area where urban development may occur from areas where it should not occur. The Comprehensive Plan defines the UEA as “the area where current projections indicate that further urban development beyond the 2020 UDB is likely to be warranted sometime between the year 2020 and 2030.” Petitioner fails to identify any inconsistency between the Plan Amendment and any UDB or UEA policies based on her assertion that depletion will occur. Moreover, there are no goals, objectives, or policies in the Comprehensive Plan that address the concept of “depleting” the UDB or UEAs. Petitioner also alleges that the County adopted the Plan Amendment “to benefit[] other private property owners and special interests.” Petitioner introduced no evidence to support this allegation, and the allegation is also irrelevant to whether the Plan Amendment is “in compliance.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Miami-Dade County Ordinance No. 20-47, on May 20, 2020, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 16th day of April, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Mary K. Waters Post Office Box 700045 Miami, Florida 33170 Christopher J. Wahl, Esquire Miami-Dade County Attorney's Office Suite 2810 111 Northwest 1st Street Miami, Florida 33128 Alannah Shubrick, Esquire Shubin & Bass, P.A. Third Floor 46 Southwest 1st Street Miami, Florida 33130 Tom Thomas, General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 2021. James Edwin Kirtley, Assistant County Attorney Miami-Dade County Attorney's Office Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami, Florida 33128 Mark E. Grafton, Esquire Shubin & Bass Third Floor 46 SW 1st Street Miami, Florida 33133 David Winker, Esquire David J. Winker, P.A. 2222 Southwest 17th Street Miami, Florida 33145 Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128
The Issue The sole issue is whether the Petition to establish the District meets the applicable factors set forth in Section 190.005, Florida Statutes.
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: The City of Islandia: General Description and Location The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park. Biscayne National Park Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat. The City's Privately Held Land The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead. Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly. Comprehensive Plan Preparation and Adoption The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body, the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law. Format of the City's Adopted Plan The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however: Only the following segments of this document were adopted by the City Council: Goals, Objectives and Policies Capital Improvements Element Implementation section Future Land Use map Monitoring, Updating and Evaluation Procedures Future Land Use Element The future land use element of the City's adopted plan sets forth the following goals, objectives and policies: Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands. Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions. Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through the development code; special care is needed due to limited wellfield and soil absorption areas. Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code. Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development: -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners 4/ -Circulation: pedestrian and golf cart paths -Open space: public and private of 175 acres per permanent resident Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology. Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands. Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code. Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development. Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation. Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format. -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map. -Recreation and Open Space: This category includes primarily the National Park. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element: Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this would suggest a build-out of 5,000 housing units. * * * Needs Assessment: Not Applicable and Other Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units. Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring 78 acres. * * * Future Land Use Plan: Land Use Category- As indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population. * * * Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres. * * * Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units. These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map. Transportation Element The transportation element of the City's adopted plan contains the following goals, objectives and policies: Goal 1- To meet the unique circulation needs of Islandia. Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles. Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities. Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities. Housing Element The following goals, objectives and policies are set forth in the housing element of the City's adopted plan: Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia. Objective 1.1- Achieve and maintain quality housing with supporting infrastructure. Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure. Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition. Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review. Infrastructure Element As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds: Goal 1- To provide adequate private infrastructure to serve the projected limited recreational residential development. Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code. Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by 30 percent). Policy 1.1.2- Require all development to meet the following level of service standards: -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners. Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code. Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/ Policy 1,3- Protect wellfield aquifer recharge areas from development. Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems. Objective 1.4- Each developer shall provide a mechanism for water conservation. Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption. Coastal Management Element The City's adopted plan contains the following goals, objectives and policies relating to coastal management: Goal 1- To conserve, manage and sensitively use the environmental assets of Islandia's coastal zone location. Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat. Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code. Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources. Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality. Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary. Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff. This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine. Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent. Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent. Objective 1.4- Protect the current natural beach and dune configuration. Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio. Goal 2- To minimize hurricane damage both to property and people. Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires. Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems. Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location. Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/ Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants. Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability. Objective 2.4- By 1993, prepare an emergency redevelopment plan. Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop." Objective 2.5- Preserve both resident and general public access to the beach. Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/ Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development. Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service: -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/ -Water: wells providing 300 gallons per residential unit per day. -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically). -Solid Waste: off-island disposal by individual homeowners or other property owners. Conservation Element The following goals, objectives and policies are found in the conservation element of the City's adopted plan: Goal 1- To preserve and enhance the significant natural features of Islandia. Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability. Policy 1.1.1- Continue to prohibit automobiles in the City. Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay. Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention. Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities. Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves. Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils. Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats. Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat. Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands. Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems. Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control. Policy 1.5.2- When the first phase residential development permits are issued, develop an emergency water conservation program. This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities. Recreation and Open Space Element The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies: Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents. Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean. Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs. Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park. Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park. Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/ Objective 1.4- Ensure the preservation of public and private open space. Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development. Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource. Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park. Intergovernmental Element The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination: Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan. Objective 1.1- By 1994, at least three of the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated. Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element. Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms. Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus on a mutually agreeable land use designation for the private islands. Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example. Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination. Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan. Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas. Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries. Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste. Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered: To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated: Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development. Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area. Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division." Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City." As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system." Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed." With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan: Coastal construction should be compatible with the Bay's natural features. . . * * * 8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality. * * * The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/ Capital Improvements Element The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies: Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices. Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council. Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary. This element shall be reviewed annually. Policy 1.1.2- Overall priority for fiscal planning shall be those projects that enhance residential development and the environment, as per Land Use Plan. Policy 1.1.3- In setting priorities, the following kinds of criteria will be used: -Public Safety implications: a project to address a threat to public safety will receive first priority. -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service. -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections? -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life. -Priority will be given to projects on islands experiencing development. Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan. Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service. Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private: -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid Waste: off-island disposal by individual homeowners or other property owners -Public open space: 57 acres per permanent resident Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate. Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures acceptable to regional environmental agencies plus private water and sewer systems. Policy 1.3.2- The development code preparation shall include the consideration of impact fees. Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development. Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner. Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows: Five-Year Schedule of Capital Improvements Not applicable; no deficiencies and no projects planned for 1990-1994 period. Programs For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows: Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment. Data and Analysis If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan: the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area; the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/ whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/ the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/ whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and the need for boat docking and other water-dependent facilities. The City's adopted plan therefore is not supported by appropriate data and analysis. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance. Goal 51.1 of the Regional Plan provides as follows: By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so. Goal 57.1 of the Regional Plan states as follows: New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture. Goal 58.1 of the Regional Plan imposes the following requirement: Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Dade County Dade County is a political subdivision of the State of Florida. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment. Tropical Audobon Society The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
The Issue The issue is whether Plan Amendment 98-51C adopted by the City of Ocala by Ordinance No. 2869 on August 4, 1998, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioner, Shady Historic and Scenic Trails Association, Inc. (SHASTA), has challenged the consistency of a plan amendment adopted by Respondent, City of Ocala (City). The amendment changes the land use on certain real property owned by Intervenor, Norbert M. Dorsey, as Bishop of the Diocese of Orlando (Intervenor). By stipulation, the parties have agreed that SHASTA is a not-for-profit corporation whose members include residents of Marion County, Florida (County). Through the testimony of its registered agent, it was established that SHASTA is a "county- wide organization" formed in 1985 because of its concern "about where growth was going," and the potential impact of growth on the "plan." Another witness (Baldwin) made comments to the City at one of its meetings concerning the adoption of the plan. Whether she is a member of SHASTA is not of record, and it can reasonably be inferred that the witness resides and owns property outside of the City. SHASTA's registered agent also presented testimony at hearing, but whether she resides within the City or in the County is unknown. Finally, while SHASTA's registered agent presented argument during her opening statement concerning the organization's standing, she presented no evidence (through sworn testimony or exhibits received in evidence) that any member of the organization who resides, owns property, or owns or operates a business within the City made comments, recommendations, or objections to the City during the course of its review and adoption of the amendment. Therefore, there is insufficient evidence to demonstrate that Petitioner is an affected person within the meaning of the law. The City is a local government located within the County. It is one of five cities in the State designated by the Department of Community Affairs (DCA) as a "sustainable community" under Section 163.3244, Florida Statutes (1999). To this end, the City has entered into a sustainable community designation agreement with the DCA, and thus its plan amendments are not reviewed by the DCA or the regional planning council. Intervenor is an affected person since it owns the property which is the subject of the amendment. The amendment The City adopted plan amendment 98-51C by Ordinance No. 2869 on August 4, 1998. That amendment changed the land use on Intervenor's property from agriculture to public buildings and facilities. Section 1.1.12 of the City's Future Land Use Element specifies that the public buildings and facilities category "includes areas or facilities that serve the general public," such as "government buildings, public grounds, airports, cemeteries, churches and educational facilities." In making its recommendation, the City's Planning Department considered factors such as the type of soil on the property; the absence of known caves, sinkholes, or wetlands on the site; the suitability of the property for development; the property's location in the City's urban service area; the County's land use designation of the property as an urban land use; and the compatibility of the property with the surrounding land uses, including the proximity of the property to adjacent developments of regional impact (DRI), malls, large movie theaters, shopping centers, and other heavy commercial and retail development. In addition, the Planning Department considered the comments of other state and governmental agencies, including the DCA, St. Johns River Water Management District (SJRWMD), and County. The County did not object to the amendment. Based on the foregoing data and analysis, the Planning Department recommended to the City's Planning and Zoning Commission (Commission) that the plan amendment be adopted. The Commission in turn recommended to the City Council that the amendment be approved. That recommendation was accepted by the City on August 4, 1998. The property The subject property consists of 40 acres and was annexed into the City in 1998. It lies within the boundaries of the City at the southeastern corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue. Both roads are two-lane paved roads designated by the County as special scenic roads. This means that the right-of-way on those roadways cannot be widened or altered, and trees cannot be removed in or adjacent to the right-of-way. Prior to annexation, the property had a low-density residential land use designation in the County, and it was zoned agricultural. However, this zoning was inconsistent with the land use designation and a more likely zoning classification under the County comprehensive plan would have been R-1, which permits a maximum of four dwellings per acre. Had the property been assigned a City zoning classification most similar to the County's R-1, it would have received a low-density residential use allowing five residential units per acre. Intervenor purchased the property for the purpose of building a private school on the site. In the County, schools are located in both rural and urban areas. Under the County's land use designation for the property, schools are an allowable use. Before the property was annexed, it was located within what is known as the City's "urban service area." Under an interlocal agreement with the County, the City had the exclusive right to provide water and sewer services to that area and to condition the provision of such services upon annexation. At the time the plan amendment was adopted, the property immediately south of the subject property was being operated as a thoroughbred horse farm known as Glen Hill Farm. Immediately to the north and across Southwest 42nd Street was property with a land use designation of low-density residential allowing five residential units per acre. That property was previously approved as a planned unit development of mixed commercial and residential uses. The adjacent property on the northwest corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue has been developed as a high-density assisted living facility. Immediately behind the assisted living facility are two DRIs. The first includes retail uses (including a shopping center), professional and medical offices, two large apartment complexes (consisting of more than 700 units), and three or four nursing homes or adult living facilities; this DRI would allow a vocational or technical school with approximately 500 students. The second DRI consists of the Paddock Mall, which includes 580,000 square feet of developed retail use and another 173,000 square feet of available but undeveloped use. Across Southwest 27th Avenue to the west is property commonly known as the Red Oak Farm property, which is the subject of another plan amendment challenge by Petitioner in Case No. 98- 4144GM. That amendment allows medium-density residential use. Finally, the property is located within one mile of the fastest growing and most intensively developed property within the City, which lies in and around State Road 200. The objections raised by Petitioner In its Amended Petition filed on November 2, 1998, SHASTA has alleged that the plan amendment is not in compliance for a number of reasons. They include contentions that the property is unsuitable for a private high school in that all of the land slopes to the south where extensive flooding has occurred (paragraph 9); that the site cannot be engineered to prevent flooding or that control surface water flow by retention ponds will leak into the aquifer (paragraph 10); that the site is vulnerable to stormwater pollution (paragraph 11); that the City has inadequate data and analysis to support development regulations for natural resources protection, including sinkholes and floodplains pursuant to the Conservation Element (paragraph 12); that the City has not specified how sinkholes or solution pipes to the aquifer will be protected pursuant to Policies 1.5 and 1.7 of the Conservation Element (paragraph 13); that the City has violated Policy 1.4 of the Conservation Element by not continuing the County land use designations on the property (paragraph 14); that the City has not distributed proposed interlocal agreements for annexation and future land uses as required by Policy 2.8 of the Future Land Use Element (paragraph 15); that the amendment is not in compliance with Goal II of the Future Land Use Element (paragraph 16); that the amendment is not in compliance with Policy 3.5 of the Intergovernmental Coordination Element (paragraph 17); that the amendment is inconsistent with revisions made by the 1998 Legislature concerning school siting in Section 163.3177(6)(a), Florida Statutes (1999)(paragraph 18); that the amendment does not further "the six broad principles of sustainability," as set forth in Section 163.3244(1), Florida Statutes (1999)(paragraph 19); that extending water and sewer lines to the property is unfair to City taxpayers (paragraph 20); that City taxpayers will be forced to pay a higher rate to fund expansion of City services into the area (paragraph 21); and that the school will not be compatible with adult living facilities located northwest of the property (paragraph 24). Allegations not raised until hearing, such as a contention that the amendment would promote urban sprawl, were deemed to be untimely raised and were not considered. Finally, concerns about the specific design of the school, assuming one is built, are not relevant to a determination of whether the amendment is in compliance. As to the allegation in paragraph 18 concerning the amendment's lack of compliance with school siting requirements in Section 163.3177(6)(a), Florida Statutes, that allegation is irrelevant since the new law became effective more than a year after the amendment was adopted. Likewise, the allegation in paragraph 19 has been found to be irrelevant for the reasons stated in the Conclusions of Law, while the allegation in paragraph 16 regarding Goal II of the Future Land Use Element has no relevance to the amendment since it refers to a transportation concurrency exception/urban area redevelopment area, a matter not in issue here. Finally, the allegations in paragraphs 20 and 21 regarding the potential for taxes being raised are not grounds on which to find an amendment not in compliance. The undisputed (and only) evidence shows that there are no sinkholes or known wetlands on the property; that the property did not have a conservation land use under the County's Comprehensive Plan; that the City has entered into an interlocal agreement with the County establishing an urban service area; that the amendment is compatible with surrounding land uses, including adult living facilities; and that the City considered and analyzed all of the data summarized in Findings of Fact 6 and 7 before it adopted the amendment. Therefore, the allegations in paragraphs 12-15, 17, and 24 of the Amended Petition have not been sustained. Still in issue are the allegations in paragraphs 9-11 of the Amended Petition concerning potential flooding and stormwater pollution. They will be discussed below. The property The property was once one of the three largest horse farms in the County. These farms have already been developed or, as is the case here, are in the process of being developed. The entire City, including Intervenor's property, and most of the land in the County, lie within a Karst sensitive area, which features sinkhole and cave systems. Mapped and documented cave systems are found approximately one-half mile to the west- southwest (Briar Cave) of the property and a like distance to the east (Oak Creek Caverns). However, no sinkholes, caves, or wetland systems have been found on the property, and the rules of the SJRWMD pertaining to Karst sensitive areas do not prohibit the construction in question. The tract is part of a high Floridan Aquifer (Aquifer) recharge area which permits very rapid infiltration of surface waters to the Aquifer, and it discharges into a 100-year-old flood plain. However, the property itself is not located in a flood plain. Two basic soils are found on the property. They are the Kendrick soil and Zuber soil. Due to shrinkage or swelling of the clay and "low strength," these types of soil present "slight" or "moderate" construction limitations. Expert testimony confirmed, however, that through good planning and design, or presite removal of the soils, these limitations could be readily overcome. This was also acknowledged by two of Petitioner's witnesses. At the same time, if SJRWMD regulations for construction of water retention areas in Karst sensitive areas are followed, those limitations would be resolved. Typically, the City does not impose specific requirements concerning stormwater retention or groundwater protection at the comprehensive plan stage. Rather, these are normally imposed through the City's land development regulations at the site plan stage of the process. Presumably, at that point, Petitioner will have an opportunity to raise these types of concerns. The City has had experience with other properties having Karst topography and water recharge features similar to the property in question. For example, on the Heathbrook DRI, the City imposed groundwater protection provisions which other local governments throughout the State have used as a model for other developments. To prevent groundwater contamination, the City uses a tool called a DRASTIC Index (Index), which was prepared by the United States Environmental Protection Agency. The Index is used by the City and a host of other regulatory agencies to determine the potential of property for groundwater contamination. According to the Index, the property is less vulnerable to contamination than approximately seventy percent of the rest of the land in the County. City water facilities are available in the right-of-way on the north and west sides of the property, while City sanitary sewer facilities are approximately one-half mile away. If the project goes forward, Intervenor would be required to run sewer lines from the existing sewer facility to the improvements to be located on its property. If stormwater retention facilities are constructed on the property pursuant to City land development regulations, more pre-development water would be retained on the property than would be the case if the property were not developed. In addition, less runoff would be generated from the property if it were developed under the public buildings and facilities land use than would occur if the property was developed under the City land use most comparable to the County's R-1 classification. The potential for flooding Because the property slopes from the north to the south, stormwater run-off naturally flows over the property to the south and east across Glen Hill Farm to a natural low area or pond located on that farm. The evidence shows that in February and March 1998, when unusually heavy rains occurred, substantial flooding occurred on the farm, causing one of its road to be closed for almost two weeks. Intervenor has entered into an agreement with Glen Hill Farm whereby the farm has agreed to allow a portion of stormwater to continue to flow onto its property. Without such an agreement, the City would have required that Intervenor retain all stormwater from a 100-year storm on its property. A stormwater run-off system and a drainage system can be designed on the property to fully satisfy the SJRWMD's Karst sensitive development regulations. Such a system will retain all post-development run-off created by a 100-year storm. Thus, development of the property is unlikely to cause flooding on adjacent properties. Stormwater runoff As noted above, the SJRWMD has promulgated regulations for the design and construction of drainage systems and drainage basins within Karst sensitive areas, which are designed to protect against stormwater run-off contamination of the underlying aquifer. These regulations are more stringent than those that apply to other areas; if adhered to by Intervenor, they will adequately contain and control stormwater run-off and prevent groundwater contamination. In order to develop the property, Intervenor will be required to go through the site plan approval process with the City and to comply with the SJRWMD Karst sensitive regulations. Sufficient testing has been performed on the property to determine that stormwater retention systems may be designed for the property which will avoid unreasonable risk of groundwater contamination. The land use assigned to the property has less potential for detrimental impact upon the environment than would occur had the County permitted development using an R-1 classification, or a similar one by the City upon annexation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Ocala enter a final order finding Plan Amendment 98-51C to be in compliance. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER , Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2000. COPIES FURNISHED: Darlene Weesner, Registered Agent Shady Historic and Scenic Trails Association, Inc. 655 Southwest 80th Street Ocala, Florida 34476 W. James Gooding, III, Esquire Gilligan, King & Gooding, P.A. 7 East Silver Springs Boulevard Suite 500 Ocala, Florida 34470-6659 Bryce W. Ackerman, Esquire Hart & Gray Post Office Box 3310 Ocala, Florida 34478-3310 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This controversy began when respondent, Narbi International Investments Company, Inc. (Narbi or applicant), made application with respondent, Lake County (County), to rezone a 108.5 acre tract of land from Agricultural to Planned Unit Development (PUD). The land lies one and one-half miles west of U. S. Highway 27 and just north of County Road 474 in the southeastern part of Lake County. It is also within the boundaries of the Green Swamp Area of Critical State Concern. The purpose of the rezoning was to allow Narbi to construct a residential development to be known as Corinthian Park. After certain modifications to the project were made, including a restructuring of the project to eighty single-family residential units, the County adopted Ordinance No. 63-90 on December 18, 1990, which granted the rezoning request. Because the ordinance is a "development order" (DO) within the meaning of Chapter 380, Florida Statutes, the County rendered a copy of the ordinance to petitioner, Department of Community Affairs (DCA), for its review. Concluding that the ordinance was inconsistent with the principles for guiding development in the Green Swamp Area of Critical State Concern as codified in Chapter 28-26, Florida Administrative Code, the Lake County Comprehensive Plan (plan) and the County land development regulations, and had been improperly "rendered" to DCA for its review, DCA filed a petition for appeal of development order with the Florida Land and Water Adjudicatory Commission (FLWAC). The petition was later amended in minor respects. At hearing, petitioner withdrew its contention that the order had been improperly rendered. In addressing the above issues, the parties have presented numerous expert witnesses. As might be expected, there is conflicting testimony on many of the issues. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and the accepted testimony is embodied in the findings below. The Parties Petitioner has been designated as the state land planning agency charged with the responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes. It has the authority to appeal any development order issued in an area of critical state concern within forty-five days after the development order is rendered to the DCA. The appeal herein was timely filed. The County is a political subdivision of the State of Florida and has the responsibility for issuing development orders for developments in unincorporated Lake County. Ordinance No. 63-90 is such a development order and is the subject of this appeal. Narbi is the corporate owner and developer of certain real property in an unincorporated part of southeastern Lake County consisting of approximately 108.5 acres. The eighty-unit project will be known as Corinthian Park. The Proposed Project and Adjacent Properties From a geographical perspective, Narbi's property lies approximately twelve miles south of Clermont, Florida, or just north of the Polk County line, and less than five miles west of the boundaries of Reedy Creek Improvement District (Walt Disney World) and Orange County. The tract of land is odd-shaped with a small part fronting on the north side of County Road 474 and the remainder extending northward through a tract of undeveloped acreage, a small part of which is an abandoned, dead orange grove. Indeed, because of three hard freezes in a seven year period, the County has an abundance of former orange grove operations that are now available for development purposes, and Narbi seeks to convert its property from agricultural purposes to a residential development. Except for the development described in the following finding of fact, the area is largely forests and wetlands, and the area surrounding Narbi's land is vacant. Approximately one mile west of the project site and to the north of County Road 474 lie an asphalt plant and excavation fill area. Both of these activities predated the designation of the Green Swamp as an area of critical state concern. In addition, a corridor of development lies along U. S. Highway 27 to the east. However, that development sits on or near the Lake Wales Ridge, which is a high, dry sandy ridge on the eastern boundary of the Green Swamp area and out of the hydrologic basin of the Green Swamp. The development in that area includes another approved residential development project known as the Greater Groves Subdivision, which was given an approval by the DCA for 150,000 square feet of retail space and 445 homes having a density of 2.75 units per acre, a large, mixed-use tract of land known as South Lake Subdivision having 8,000 units and a DCA-approved density of 13 units per acre, a travel trailer park, a campground and travel trailer park, and migrant housing. In addition, there is a 900 acre project one mile west of Corinthian Park called the Ray Ranch development which is the subject of another DCA challenge. However, at the time of the final hearing, the parties were in the process of executing a settlement agreement, the terms of which are not of record. It is noted that there was no evidence that the Ray Ranch development or any other approved project was comparable in any respect to Corinthian Park or had the same physical characteristics as are found on Narbi's land and thus those developments have no precedential value in this proceeding. The project is designed to have eighty single-family dwelling units on separate lots with a gross density of .74 units per acre. Prior to the approval of the rezoning, the site was zoned agricultural with a permitted density of one unit per five acres. Present plans call for each home, including driveways, to have a maximum 3,000 square feet. A central water system will serve the subdivision but individual septic tanks will be utilized for each home. Narbi proposes to construct the project in three phases consisting of 30, 27 and 23 lots, respectively. However, the third phase cannot be constructed until the County adopts a new stormwater management ordinance that meets the DCA's approval. After the build out is completed, approximately forty-eight percent of the acreage, or fifty-two acres, including all wetlands on the property, will be dedicated to conservation, preservation, recreation and open space areas. At the same time, eight percent of the acreage will have impervious surfaces, roads and houses, while the remaining ninety-two percent will have pervious or noncovered areas. Narbi's property contains 26.1 acres of wetlands and approximately ten acres within the 100 year flood plain. The only alteration to the flood plain will be one road crossing, and all water retention areas are to be located outside of the 100 year flood plain. In addition, stormwater runoff will be treated before going into the flood plain. The remainder of the property consists of pine flatwoods and uplands. The center of the property, which once contained a small orange grove, has been cleared. The features on this property are similar to those found on other property in the immediate area, all of which is zoned agricultural. The Green Swamp and its Significance In 1979, a part of an area known as the Green Swamp was designated by the legislature as an area of critical concern. As such, it is one of only four areas in the state given this designation. The area was accorded special protection because of its significance as a source of potable water, its function as a wildlife habitat and refuge, and its importance as a high recharge area for the Floridan Aquifer. The designated area covers approximately 900 square miles in parts of Lake and Polk Counties and consists largely of undeveloped forested and wetland areas. In addition, five major rivers originate in this portion of the State. It should be noted that all of the land in and around Narbi's project which lies west of U. S. Highway 27 is within the Green Swamp area. The Floridan Aquifer underlies the entire state except for the extreme northwestern corner. It serves as a source of drinking water for one-half of the state's population and thus constitutes the state's principal water supply aquifer. The Green Swamp is a source of recharge (or replenishment through the downward percolation of surface water into the aquifer) of the groundwater in the aquifer thereby allowing the aquifer to maintain its volume and high quality of water. A principal feature of the aquifer is a series of limestone formations which lie below the ground surface keeping the fresh water under pressure. The high point (potentiometric surface) of the pressure system occurs in the Green Swamp thus giving that area critical importance. In the area around Narbi's project, there is a layer of sand overlying the aquifer. There is also a geologic fault that allows direct connection to the aquifer. This means that in this area there is direct recharge into the aquifer with very little filtration to remove contaminants. Even where a clay layer exists over the aquifer, it is not confining because it contains cracks, fissures, and outcroppings of limestone which allow direct contact into the aquifer. Moreover, clay soils do not retain organic compounds, but allow them to filter through to the aquifer. Thus, the aquifer is vulnerable to contamination found in runoff which percolates without filtration into the aquifer. The Documents Governing this Controversy The land use element of the comprehensive plan was originally adopted in February 1977 and has been amended from time to time. It applies within the unincorporated portions of the County. On November 5, 1985, the County adopted Ordinance 1985-19 which brought the plan into conformity with all state regulations regarding the Green Swamp Area of Critical State Concern, including the principles for guiding development. Those principles are codified in Chapter 28-26, Florida Administrative Code. It is noted that in 1986 the DCA determined that the 1977 plan, as amended through 1985, and the land development regulations, as amended through 1985, were in compliance with state law as they applied to those portions of the Green Swamp Area of Critical State Concern within Lake County. That approval is codified in Chapter 9J-8, Florida Administrative Code. The conservation element to the plan was adopted on June 4, 1980, and sets forth various goals, objectives and policies "aimed at protecting the natural environment from misuse." There is also a compendium of land development regulations found in a document known as the Lake County Zoning Regulations, as amended 1988, which are relevant since they provide regulations governing the development of a PUD and include the zoning map which was changed by virtue of the rezoning application. Effective July 9, 1991, the County adopted a new comprehensive plan. However, Narbi's rezoning request is subject to the old plan requirements. Consistency with County Comprehensive Plan According to the amended petition for appeal, as later clarified by the DCA, Ordinance No. 63-90 is inconsistent with the county comprehensive plan in two respects. First, DCA contends that the proposed residential density for Narbi's project is inconsistent with a land use element, three general plan policies and one objective set forth in the comprehensive plan. More specifically, it contends that the approved density contravenes the conservation subsection of the plan categories for residential uses, policies 4, 10 and 11 of the general plan policies, and objective 5 of the conservation element of the plan. All of these items were specifically incorporated into the plan to provide special protection to the Green Swamp Area of Critical State Concern. DCA also asserts that the ordinance is in conflict with Section 3.C. of the land use element (the Urban Containment Policy) in that the project would constitute or contribute to "leapfrogging and uncontrolled urban sprawl." These contentions are addressed separately below. The conservation plan category for residential uses is found in section 4 of the land use element. In all, six plan categories were established to provide a range of residential density to be used in various categories of land use, including conservation areas. As is relevant here, the conservation element provides that county lands lying within the Green Swamp Area of Critical State Concern are determined to be of environmental value and should be "conserved". The conservation element goes on to define the term "conserve" to mean: uses such as parks, agriculture, very low density residential which will not overly damage natural conditions, as well as, "no development" use. The cited general plan policies are found in the land use plan element and were developed for the purpose of "implement(ing) the urban containment policy and to establish policies to develop the land use map, upon which the resulting zoning map will be based." Among them is policy 4 pertaining to residential development in the County. In 1985, the County amended policy 4 by adding subsection E. to provide that all residential development within the Green Swamp Area of Critical State Concern shall conform to the principles of guiding development. Those principles of guiding development are more fully discussed in a subsequent section of this Recommended Order. Also relevant is policy 10 requiring that the County give "full consideration . . . to environmental factors . . . as they pertain to land use" and that a conservation element be established. Finally, policy 11 recognizes agriculture as an important and necessary economic activity within the County, provides that adequate and appropriate water shall be reserved for its continuance, and provides further that urban development shall be discouraged in those portions of the County presently used as agriculture. The last item cited by the DCA is objective 5 of the conservation element which pertains to environmentally sensitive areas. It establishes a goal of preserving "those environmentally sensitive areas . . . in order to safeguard Lake County's natural resources for present and future residents." The above cited provisions of the plan show clearly that the site of Narbi's project is considered to be an environmentally sensitive area which must be afforded special protection. The plan itself uses such terms as "very low density", "no development", "conserve" and "preserve" in describing the type of development to be allowed. At the same time, in order to comply with its plan, the County is obliged to give full consideration to environmental factors, discourage urban type development in portions of the county now zoned agricultural, and preserve sensitive areas for future residents. In devising residential densities for various plan categories, the County has adopted the following guidelines: Estate 1 unit per 3 or more acres Low Density 1.1 - 2.75 units per acre Medium 2.76 - 7.0 units per acre High 7.1 - 15.0 units per acre However, as noted earlier, the conservation element calls for "very low residential" density in lands to be "conserved", such as those in the Green Swamp area where Narbi's project will be located. As can be seen, there is no plan category for "very low residential", and this omission underpins in part the controversy between the parties. At hearing, the parties sharply differed on what gross density falls within the category of "very low residential". Since the plan defines "low density" residential as 1.1 to 2.75 units per acre, the County takes the position that anything below that level of density, including the proposed .74 units per acre for Narbi's project, would necessarily fall within the very low density category. Indeed, it has consistently interpreted the plan in this manner since the 1985 amendment was adopted. The DCA contends that a density of .2 units per acre (or one unit per five acres) is consistent with the conservation element of the plan. This view is deemed to be more credible and reasonable since that element refers to parks, agricultural, very low density and no development uses as being appropriate for the Green Swamp area. This interpretation of the term "very low density" is also consistent with other portions of the plan in that only scattered, residential housing was contemplated in environmentally sensitive lands, the residential density for agricultural lands is one unit per five acres and thus this residential density would be consistent with the lands surrounding Narbi's project, and the DCA's suggested density is lower than the one unit per three acres approved for estates, a category that falls between regular residential and agricultural densities. It is also noted that a one unit per five acres density would be more compatible with the objective of safeguarding the County's natural resources for future residents, and the general policies of discouraging urban type development on lands now zoned agriculture, "conserving" protected lands, and giving "full consideration" to environmental factors. Therefore, it is found that Ordinance 63-90 is inconsistent with the conservation subsection of the plan categories, general plan policies 4, 10 and 11, and objective 5 of the conservation element of the plan. The DCA also contends that the project would constitute or contribute to "leapfrogging and urban sprawl" and thus be violative of section 3.C. (urban containment policy) of the plan. That policy is found on page 1-12 of the land use element of the plan and provides in part as follows: Only limited expansion shall be approved beyond the current limits of any Urban Area or Urban Compact Node until the gross residential density of that existing Urban Area reaches two dwelling units per acre. Further, no urban development should be permitted unless the half section(s) in which it is situated be contiguous with the declared urban area. This limitation does not apply to agricultural uses requiring approval procedures, such as, conditional use permits and site plan approval in the agricultural zoning districts. The intent of this recommendation is to prevent "leapfrogging" and uncontrolled urban sprawl, but without creating an undesirably high density urban environment. * * * The urban containment policy then is the general framework upon which the Lake County Land Use Plan and the resultant implementative ordinances and policies are based. The Urban Containment Policy is based on limited growth in rural areas rather than on existing trends. Almost all proposed development is placed in or around existing urban areas, so that urban services and transportation facilities can be provided economically. Environmentally sensitive areas were avoided whenever possible as were agricultural areas. (Emphasis added) The same policy goes on to establish ten criteria for the location of urban activities. Among them are two which provide that (a) urban development should be "clustered around existing communities" and (b) "areas for rural density residential development are limited to existing areas that have low agricultural potential." It is noted that the County has classified the existing development along U. S. Highway 27 to the east of the project site as being an urban compact node. The County does not view the urban containment policy as being a barrier to the Narbi project for several reasons. First, it does not consider the project as being "urban development" within the meaning of the plan and thus believes the urban containment policy has no application. Second, in light of the high start-up costs for developing orange groves, which was the former use of a small part of the property, it sees no agricultural potential for the land. As to the first reason, the plan considers urban areas to be those areas in which residential use is more than one dwelling unit per gross acre. The plan does not have a similar provision for rural areas in terms of residential density. However, the County has historically interpreted its plan to mean that anything "non-urban" is rural. Since the plan defines the minimum threshold for residential low density in urban areas as being 1.1 units per acre, the County construes all development outside of urban areas to be rural or non-urban so long as the density is less than 1.1 units per acre. Thus, it considers the contention that the project constitutes urban sprawl to be misplaced. As to the second reason, the County forsees no agricultural potential in Narbi's property. Therefore, it views the project as being consistent with the criterion that "areas for rural density residential development are limited to existing areas that have low agricultural potential." On page 1-3 of the land use element, the term "urban sprawl" is defined as "the scattering of generally low-intensive developments in suburban and rural areas." The plan goes on to state that urban sprawl "causes severe problems for local municipalities and the County," imposes a "heavy" financial burden on local jurisdictions for added services, and "yields a low return on a large capital investment" by extending public services through undeveloped lands to outlying developments. After recognizing these adverse impacts, the policy states that its intent is to "prevent 'leapfrogging' and uncontrolled urban sprawl" especially in "environmentally sensitive areas." The County's definition of urban sprawl is similar in many respects to the definition used by DCA. Though the term is not defined by statute or agency rule, the agency has, on a case by case basis, utilized a nonrule policy of not favoring development orders which approve projects that constitute or contribute to urban sprawl. The DCA construes the term to mean a development pattern that is associated with scattered, low intensity, unplanned, uncontrolled development that is usually approved in what are generally rural areas. When this occurs, there is no coordination between such development and public facilities and services or the protection of natural resources. Put another way, urban sprawl results in the inefficient use of public services, higher costs to local government, and a lack of protection for natural resources. Thus, the policy used by DCA is rational, logical and persuasive and is supported by an adequate record foundation. There are three types of urban sprawl: leapfrog development, strip development, or single use pattern of development. Leapfrog development is described in the record as being a spot zone type of development in which vacant areas have been bypassed, and where a single development exists in an outlying area that is not contiguous or connected to an existing residential pattern. It is also a land use that is incompatible with the surrounding land uses. In this case, the Corinthian Park project falls within the category of leapfrog development. Applying the above considerations to the project in question, it is found that the project is inconsistent with the plan's urban containment policy. More specifically, the project falls within the definition of leapfrogging and urban sprawl as defined by the plan and DCA, and most importantly, the County's urban containment policy specifically recommends that this type of growth be "avoided whenever possible" in environmentally sensitive areas. In making this finding, the undersigned has rejected the County's contention that the proposed subdivision is non-urban development and has accepted the DCA testimony which establishes that a level of density no greater than one unit per five acres is properly considered rural density. Therefore, the development is properly characterized as urban. Next, while the land probably has little potential for agricultural purposes as the County suggests, that consideration is but one of many in the determination of whether the project violates the urban containment policy. When weighed against the admonitions that there be "only limited expansion . . . beyond the current limits of an . . . urban compact node", that the purpose of the policy is to "prevent 'leapfrogging' and uncontrolled urban sprawl", that there be "limited growth in rural areas", and that such growth be "avoided whenever possible" in environmentally sensitive areas, it is found that Ordinance 63-90 is in contravention of Section 3.C. of the plan. Consistency With Land Development Regulations This issue involves allegations by the DCA that the proposed increase in residential density for the project is incompatible with subsection 696.20B. of the zoning code and that the site alteration criteria in Rule 28- 28.28.008(7), Florida Administrative Code, have not been met. The latter allegation has been categorized as a land development regulation issue since such regulations, if properly enacted, should require compliance with chapter 28-28. In addition, the County has cited section 696.13 of the zoning code as authorizing the approval of the rezoning application. Findings regarding the validity of these allegations are set forth below. Paragraph B.1. of Section 696.20 provides the following criterion for residential density in a PUD: Density. The criteria for establishing the residential gross density (not including natural water bodies) shall be: a. Compatibility with other zoning districts in the vicinity of subject property with adopted densities in the Lake County Land Use Element of the comprehensive plan. DCA contends that the approved density for Narbi's project is in violation of the above criterion. As noted earlier, the authorized (adopted) residential density for agricultural zoning is one unit per five acres. All of the land surrounding the site of the project is now zoned agricultural. Thus, with a proposed density of .74 units per acre, the project will be inconsistent with the adopted density for the surrounding lands as proscribed by subsection 696.20B. Even though the County's land development regulations do not specifically require compliance with Rule 28-28.008(7)(a), Florida Administrative Code, Ordinance 63-90 must still meet its requirements. That rule pertains to site alteration limitations in the Green Swamp area with the aim of preserving the natural drainage capabilities of major soil associations. The rule limits the amount of site alteration to the following percentages of the area of each association within any given total site: Upland association 60% Pine flatwood association 25% Wetland association 10% In other words, only ten percent of wetlands, twenty-five percent of pine flatwoods, and sixty percent of the uplands can be disturbed. The remainder of the area must remain in its natural state. As now proposed, the project exceeds the criteria for pine flatwoods and upland areas by some twenty acres. That is to say, Narbi proposes to develop approximately twenty acres of pine flatwoods and upland areas that should remain undisturbed under the rule criteria. All of the excess acreage is related to phase 3 of the project which, assuming the County prevails in this action, is still on hold until the County adopts a stormwater drainage ordinance meeting DCA's approval. It is noted, however, that even after the approval of an ordinance, there is no guarantee that this would cause DCA to waive the requirements of the rule. Section 696.13 of the zoning code prescribes a four-step process for a developer to secure final plat approval and construct a PUD. In general terms, these steps are rezoning, preliminary plat or preliminary plan, construction drawings, and final plat. As of the time of hearing, Narbi had only completed the first of the four steps. Later on in the process, Narbi will be required to give the County more detailed engineering and technical data regarding the project, and it will not be allowed to complete construction of the project until the final plat is approved and recorded. The County suggests that since phases 1 and 2 of the project meet the site alteration criteria for both flatwood areas and uplands, Narbi should be allowed to proceed with construction of the project as to those two phases, but not allowed to complete phase 3 until the stormwater drainage ordinance is approved and Narbi can demonstrate compliance with the rule and other criteria through more detailed information. Besides the fact that it would be difficult, if not impossible, to revoke the zoning once Narbi had completed two of the three phases of the project, the criteria in rule 28-28.008(7)(a) are applied to the entire project, and not just on a phase by phase basis. Thus, to demonstrate compliance with the rule, an applicant must show compliance with the site alteration criteria for the total project. In addition, approval of the stormwater drainage ordinance by itself does not necessarily mean that the rule criteria will be waived. Therefore, it is found that Ordinance 63-90 is incompatible with section 696.20 of the land development regulations and rule 28-28.008(7)(a). Consistency with Chapter 28-26 The Florida Cabinet, sitting as the Administration Commission, has promulgated Chapter 28-26, Florida Administrative Code, which defines the boundaries of the Green Swamp Area of Critical State Concern and provides principles for guiding development within that area. These principles are designed to conserve and protect the natural environmental resources and public facilities within the designated area and ecologically linked areas and apply to all development within the critical area. The principles contain eleven objectives which are codified as paragraphs (a) through (k) of rule 28- 26.003(1). Relevant to this proceeding are the objectives in paragraphs (a)-(d) and (g) of rule 28-26.003(1), which seek to "minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas", "(p)rotect . . . ground water and surface water which are necessary for the protection of resources of state and regional concerns", "(p)rotect the water available for aquifer recharge", "(p)rotect the functions of the Green Swamp Potentiometric High of the Floridan Aquifer", and "(p)rotect . . . existing ground and surface-water quality." By its appeal, DCA asserts that Ordinance 63-90 is in violation of each of those objectives and thus is inconsistent with the comprehensive plan which has adopted these objectives. The validity of this allegation turns on whether the use of individual septic tanks for each home in the subdivision will adversely affect the groundwater quality of the Green Swamp, and whether the project itself will negatively impact the groundwater and the Floridan Aquifer. In resolving these factual issues, the undersigned has discounted the County's contention that because it is prohibited by special act from regulating wastewater facilities with an average flow of less than 1200 gallons per day, and residential septic tanks have a much lower average daily flow, the County had no authority to deny the rezoning request on the ground septic tanks would be used at each home site. This is because the County has far wider authority under its plan to disapprove a project because of an applicant's failure to comply with chapter 28-26. The development order requires that, as a prerequisite to obtaining a building permit, the applicant meet the minimum requirements for septic tanks pursuant to Chapter 10D-6, Florida Administrative Code. That chapter, which is administered by the Department of Health and Rehabilitative Services (HRS), provides minimum construction standards for septic tanks on a statewide basis, except for the Florida Keys. Under this chapter, an applicant must obtain a permit from HRS to install a septic tank. It should be noted that these statewide standards are construction standards and not performance-based standards for monitoring environmental degradation. In addition, the standards do not take into account environmentally-sensitive lands such as those having an Area of Critical State Concern designation. Thus, it is found that the chapter 10D-6 requirements are primarily intended to protect the public health as opposed to the environment. On-site sewage disposal systems are made up of two components: the septic tank component and the soil infiltrative component. The tank is nothing more than a holding tank designed to (a) separate solids and floatable materials contained in domestic wastewater and (b) allow anaerobic digestion of the organic materials by anaerobic type organisms. The remaining clear effluent then exits the tank into the soil infiltrative process, which is a network of drain pipes placed in a twelve-inch layer of gravel. The network is more commonly referred to as the drain field. The drain field distributes the effluent evenly throughout that area of land. It is then treated by the soils. After traveling through the soils, the effluent eventually enters the groundwater table. Because the drain field provides the only treatment to the effluent after it leaves the tank, it is important that the soils in which the drain fields are placed have good soil hydraulic conductivities and that the distance from the pipes to the groundwater table be adequate. In the project area where the tanks are to be placed, the water table will be only ten inches below the bottom of the drain field system. In addition, the sands in that area are Immokalee, Myakka and Placid sands and are considered either moderately or severely limited for on-site sewage disposal systems. This is because those types of sand allow the effluent to percolate through the soil more quickly than other types of soil and thus the effluent receives very little treatment prior to entering the groundwater. Comtaminants such as nitrogen, phosphorus, toxic biodegradable and non-biodegradable organic compounds are often present in domestic wastewater and, because of the soil composition and water table elevation, could be expected to enter the groundwater from the septic tanks. Chapter 10D-6 does not provide for follow-up inspections by HRS for residential septic tank systems. An inherent problem with the use of septic tanks is that property owners fail to properly maintain their septic tank systems. As a general rule, maintenance is undertaken only when the organic loading to the system has been substantial enough to make it back up in the home. In addition, a septic tank failure can go undetected long enough for the introduction of contaminants into the groundwater. Although Narbi has agreed to modify its plans and to install 1,000 gallon septic tanks and water savers for toilets and showers to reduce the loading rate in each home to 333 gallons per day rather than the average of 450, there will still be unacceptable levels of contaminants entering the groundwater without adequate treatment. This is true even if the tanks are constructed in accordance with chapter 10D-6. Therefore, it is found that Ordinance 63-90 is inconsistent with the plan in that the adverse impacts caused by the use of individual septic tanks in the density proposed for the project will result in a violation of the objectives in paragraphs (a) through (d) and (g) of rule 28- 26.003(1). The DCA also asserts that the project itself will negatively impact the groundwater and the Floridan Aquifer. As noted earlier, the project sits on the eastern edge of the Green Swamp Area of Critical State Concern. A geologic fault found beneath the surface of the ground allows direct connection to the Floridan Aquifer. At the same time, there is no confining clay layer overlying the aquifer, and the soil in the project area is of the type that provides very little filtration to harmful contaminants which percolate through the soil and into the groundwater. Nitrates are contaminants that are generated from a variety of sources, including human beings and warm-blooded animals. A large amount of nitrates can be expected to be generated in the project area thereby causing contamination of the groundwater. Although it is possible to filter nitrates through complex and expensive technology, the applicant has not proposed this curative measure. It should be noted that soils by themselves do not adequately filter nitrates out of the runoff. There are also 26.1 acres of wetlands on Narbi's property. Because of the interaction between the surface water and groundwater, it is possible over the long-term for the contaminants and runoff to adversely impact the wetlands. A lowering of the groundwater quality will indirectly lower the quality of the wetlands water or its base flow. Once contaminants enter the groundwater, they have a very long residence time. This is because the groundwater is a protected confined medium, not subject to the sun's ultraviolet radiation nor oxidation by air, and it has a very stable PH. Although Narbi has proposed to have stormwater runoff designed to meet the Outstanding Florida Waters (OFW) criteria, this in itself is insufficient to assure that the groundwater will not be harmed. Given these considerations, it is found that Ordinance 63-90 violates the plan in that the project will cause a violation of the objectives in paragraphs (a) through (d) and (g) of rule 28-26.003(1). I. Conditions Under Which the Project Can be Approved The evidence supports a finding that if the proposed density of the project is downsized to one unit per five acres, and all other provisions in the plan are satisfied, as well as the site alteration criteria in rule 28- 28.008(7)(a), the rezoning application may be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding approval of Ordinance 63-90; that the order state that Narbi International Investments Company, Inc. may develop the project if it reduces the density to one unit per five acres and otherwise shows compliance with all provisions in the plan and rule 28-28.008(7)(a); and that Lake County be directed to properly administer and enforce its land development regulations in accordance with chapter 380. RECOMMENDED this 4th day of May, 1992, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6599DRI Petitioner: 1. Accepted in finding of fact 3. 2. Accepted in finding of fact 4. 3. Accepted in finding of fact 5. 4-5. Accepted in finding of fact 8. 6. Accepted in finding of fact 11. 7. Accepted in finding of fact 8. 8-9. Accepted in findings of fact 14 and 15. 10. Accepted in finding of fact 11. 11-12. Accepted in finding of fact 7. Accepted in findings of fact 29 and 30. Partially accepted in finding of fact 6. 15. Accepted in finding of fact 30. 16. Accepted in finding of fact 19. 17. Accepted in finding of fact 20. 18. Accepted in finding of fact 17. 19-20. Accepted in finding of fact 20. 21. Accepted in finding of fact 24. 22-24. Accepted in finding of fact 25. 25. Rejected as being unnecessary. 26-27. Accepted in finding of fact 21. 28. Accepted in finding of fact 23. 29-30. Accepted in finding of fact 26. 31. Rejected as being unnecessary. 32. Accepted in finding of fact 31. 33-36. Accepted in finding of fact 12. 37-40. Accepted in finding of fact 13. 41-42. Accepted in finding of fact 42. 43. Accepted in finding of fact 41. 44. Accepted in finding of fact 44. 45. Rejected as being unnecessary. 46. Accepted in finding of fact 43. 47-51. Accepted in finding of fact 44. 52-54. Accepted in finding of fact 37. 55. Accepted in finding of fact 38. 56-57. Accepted in finding of fact 35. 58-60. Accepted in finding of fact 39. 61. Rejected as being unnecessary. 62-63. Accepted in finding of fact 40. Respondent County: Accepted in finding of fact 5. Accepted in finding of fact 4. Accepted in finding of fact 3. Accepted in finding of fact 11. Accepted in finding of fact 14. Rejected as being unnecessary. 7-8. Accepted in finding of fact 2. Accepted in finding of fact 8. Partially accepted in finding of fact 9. The remainder is rejected. See finding of fact 43. Accepted in finding of fact 44. 12-13. Accepted in finding of fact 10. 14-15. Accepted in finding of fact 9. 16-20. Accepted in finding of fact 20. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 30. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 11. Accepted in finding of fact 13. Accepted in finding of fact 34. Rejected as being unnecessary. Partially accepted in finding of fact 40. Accepted in finding of fact 35. Rejected as being contrary to the more credible evidence. 31-32. Rejected as being unnecessary. 33. Rejected as being irrelevant. 34-35. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. Rejected as being irrelevant. Accepted in finding of fact 40. Partially accepted in finding of fact 40. The remainder has been rejected as being contrary to the more credible evidence. Accepted in finding of fact 40. Rejected as being contrary to the more credible evidence. Partially accepted in finding of fact 44. 43-52. Rejected since the testimony of witness Dehan has been accepted on this issue. Respondent Narbi: Rejected as being irrelevant. Rejected as being contrary to the more credible evidence. Rejected as being unnecessary. 4-7. Rejected as being contrary to the more credible evidence. 8-9. Rejected as being irrelevant for the reasons cited in finding of fact 7. 10. Partially accepted in finding of fact 19. The last sentence is rejected as being contrary to the more credible evidence. 11-12. Rejected as being contrary to the more credible evidence. Rejected as being irrelevant. Partially accepted in finding of fact 24. The last sentence is rejected as being contrary to the more credible evidence. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 31. 17-18. Rejected as being irrelevant. The first sentence is rejected as being contrary to the more credible evidence. The second sentence is accepted in finding of fact 44. Rejected as being unnecessary. Accepted in finding of fact 8. Rejected as being contrary to the more credible evidence. Rejected as being irrelevant. Rejected as being contrary to the more credible evidence. Accepted in finding of fact 40. 26-29. Rejected as being contrary to the more credible evidence. 30. Rejected as being irrelevant. 31-32. These matters were considered in evaluating the testimony of the witnesses. COPIES FURNISHED: Douglas M. Cook, Director Land and Water Adjudicatory Commission The Capitol, PL-05 Tallahassee, FL 32399-0001 L. Kathryn Funchess, Esquire 2740 Centerview Drive Tallahassee, FL 32399-2100 Timothy P. Hoban, Esquire 315 West Main Street Tavares, FL 32778 Max Sabeti 4063 Goldenrod Road Suite 208 Winter Park, FL 32792
The Issue The issue is whether a proposed amendment to the Pinellas County Countywide Future Land Use Plan (FLUP) changing the land use designation on a 22.18-acre parcel located at 2301 Chautauqua Avenue in the City of Clearwater (City) from Residential Suburban/Preservation to Residential Low/Preservation should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In 1988, the Legislature provided the County with countywide planning authority (see Chapter 88-458, Laws of Florida). That same year, the Legislature enacted Chapter 88- 464, Laws of Florida, which amended Chapter 73-594, Laws of Florida, and required the County to develop "a countywide future land use plan" and "other [necessary] elements," also known as the Countywide Comprehensive Land Use Plan of Pinellas County. Among other things, Chapter 88-464 prescribes the process by which changes to land use designations are made within the County. Under that process, all local government comprehensive plans, including the City's, are required to be consistent with the FLUP. Presumably, the laws were enacted because of the County's dense development (it is one of, if not the most, densely developed counties in the State), the large number of incorporated cities and towns (24) within the County, and the desire to have some degree of countywide uniformity in land use planning decisions. The law goes on to provide that amendments to the FLUP "relating to land use designation for a particular parcel of property may be initiated only by a local government that has jurisdiction over the subject property." In this case, the subject property lies within the City; therefore, the proposed change was initiated by the City. Under the review process in place for adopting an amendment to the FLUP, the proposed amendment is first presented to the City, then to the PPC, which consists of 13 representatives from various towns and cities in the County, the School Board, and the County, and finally to the Pinellas County Board of County Commissioners, sitting as the CPA. The subject property is located at 2301 Chautauqua Avenue, Clearwater, Florida. Chautauqua Avenue (also identified as Main Street on some maps) runs for a short distance in a north-south direction parallel to, and just east of, U.S. Highway 19 in the northeastern part of the City. Except for two houses, some tennis courts, and assessory buildings, the 22.18-acre tract of land is largely undeveloped. The land also includes a small pond located in the northwest quadrant and wetlands along its eastern side, which fronts on Lake Chautauqua (the Lake). Mr. Lawrence H. Dimmitt, III, one of the two co-trustees, acquired ownership of the southern half of the property in January 1986, while the remainder of the parcel was not acquired by the Trustee until December 2001. In June 2002, the property was annexed by the City pursuant to a request by the Trustee (to enable City water and wastewater services to be extended to the property). The property is now under contract to be sold to a developer (The Rottlund Company, Inc.), who desires to construct 90 town homes in 34 buildings, assuming the amendment is approved. Since July 21, 1982, the upland portion of the property (16.22 acres) has been classified as RS, which allows 2.5 residential units per acre. The wetlands and some adjacent land totaling around 4.6 acres on the eastern portion of the property next to the Lake are classified as, and must remain, Preservation. In addition, a small pond (1.35 acres) on the property is classified as Water/Drainage Feature. The proposed amendment does not affect the classifications of the wetlands and pond. All of the surrounding property (except the property immediately to the west between Chautauqua Avenue and U.S. Highway 19, which is classified as Commercial Limited) also carries an RS land use designation. The other nearby property along U.S. Highway 19 is classified as some form of commercial or mixed office/residential use. Countrywide Mall, the County's only regional shopping mall, is situated on U.S. Highway 19, less than a mile away. The property is located approximately 700 feet east of U.S. Highway 19 between Second Avenue South and Second Avenue North. U.S. Highway 19 is six lanes wide, was described by witnesses as being the most heavily traveled roadway in the County, and has intense commercial or mixed use development on both sides of the highway. Immediately to the west of the property (between U.S. Highway 19 and Chautauqua Avenue) is a Chevrolet automobile dealership and repair facility owned by the Dimmitts. A Cadillac dealership (also owned by the Dimmitts) is just south of the Chevrolet dealership. The entire eastern boundary of the property fronts on the Lake, while perhaps a dozen or so single-family homes, mainly constructed in the 1990s, sit on large lots scattered throughout the area immediately north of the property. From that area to Enterprise Road, a major arterial east-west roadway approximately 2,000 feet north of the Trustee's property, the land is largely undeveloped. The property immediately to the south is also classified as RS and is also largely vacant at the present time, except for a few single-family dwellings. The land which lies southeast of the property and the Lake is also designated RS and consists of a series of upscale, large, single-family residential subdivisions. The local roads adjacent to and near the property are substandard and do not meet the City or County standards. The main access to the property (from the west) is from U.S. Highway 19 using First Avenue North, which intersects with U.S. Highway 19 next to the car dealership. Because of a median in the middle of U.S. Highway 19, however, cars entering U.S. Highway 19 from First Avenue North can only turn right (northbound).1 The only access from the property to an intersection allowing vehicles to turn north or south on U.S. Highway 19 is provided by traveling south on a series of narrow, meandering, residential County roads (e.g., Third Avenue South, Second Street East, Fourth Avenue South, Union Street, and Soule Road) and eventually reaching Sunset Point Road (State Road 588), an east-west roadway intersecting with U.S. Highway 19 to the west. There is no access to the property from the north. The evidence shows that partly because of the poor road access, the nearby car dealerships and other commercial development, and the commercial lighting at the car dealerships which remains on throughout the night, the property has never been developed. Another contributing factor is that the former long-time owners of the northern half of the property (until it was sold to the Dimmitts in December 2001) had no wish to develop the property while they retained ownership. The Land Use Categories and History of the Area When the County's first comprehensive plan was adopted in 1974, three residential categories were established: low density (up to 7.5 units per acre); medium density (up to 15 units per acre); and high density (up to 30 units per acre). At that time, the Trustee's property and most of the surrounding residential properties were designated the least intensive residential use category and remained unchanged until 1982. In response to the state Growth Management Act, in 1980 the PPC developed more specific residential categories to manage population growth. The low density category was further defined to include five residential categories: Preservation (0.5 units per acre); Residential Conservation (1.0 units per acre); Residential Suburban (2.5 units per acre); Residential Low (5.0 units per acre); and Residential Urban (7.5 units per acre). As noted above, in 1982 the County reclassified the upland portion of the property, as well as the properties to its north and south, and west of the Lake, as RS. Some other areas to the southeast and northwest of the Trustee's land were reclassified at 5.0 dwelling units per acre, which category is now known as RL. In September 1984, two zoning requests "in the neighborhood [of the Trustee's property]" to allow "multifamily development at 5.0 units/acre" were denied by the County, mainly because the area contained "very low density single-family housing, with houses sitting on large lots (mostly about 2 acres in size), used in a residential/agricultural manner." At the same time, the County instructed its staff to "review zoning and Land Use Plan designation in the area to insure protection of the existing character of the land." That same year, the County amended the land use classification on these properties from RL, which permitted 5.0 units per acre, to RS, which permitted only 2.5 units per acre. In 1987, the City annexed a 17.4-acre vacant tract of land directly south of the Lake (and southeast of the Trustee's property). Before annexation, the property was classified as Residential/Open Space. According to a PPC recommendation presented to the County, the City filed an application with the County seeking to amend the CLUP (now known as the FLUP) by changing the land use to RS so that the vacant land would "be compatible with the existing land use pattern in this vicinity." The change was approved by the County. In all, at least thirteen parcels in the Lake Chautauqua area have been reclassified since 1980. Many of these are downzoning changes which merely reflect what had actually been planned, developed, and built pursuant to the dictates of the marketplace. In other words, the change reflected existing development of not more than 2.5 units per acre. There are also two instances when the Commission upzoned parcels in the area, that is, increased the allowable density from Recreation/Open Space to a higher category (7.5 units per acre), but these properties are outlying parcels and not in the immediate area. Most recently (early 2003), a developer proposed (and has pending a request) to develop six lots 130 feet by 600 feet in depth with single-family dwellings on property lying on the western shore of the Lake just north of the Trustee's property. These large lots would be consistent with the development now existing immediately to the west (and just north of the Trustee's property). It is fair to infer from the evidence that the County's intent over the last 25 years or so has been to restrict development in the area around the Trustee's property to single-family residences with a density of no more than 2.5 units per acre. The Application On February 21, 2002, the Trustee filed an application with the City for a change in land use designation on its property from RS and P to RL and P (so as to increase density from 2.5 to 7.0 units per acre). Although not a part of this proceeding, the Trustee also filed an application seeking to rezone the property from Rural Residential to Low Medium Residential and Preservation. The City's Zoning Department reviewed the application, found that all applicable criteria had been met, and recommended approval. The application then proceeded to a public hearing before the City's Community Development Board (CDB) on May 21, 2002. Following the public hearing, the CDB recommended approval of both applications. On June 20, 2002, the matters were taken up by the City Commission. The staff's detailed report recommending approval is found in Petitioners' Exhibit 2. Because of neighborhood opposition, however, the Trustee agreed to amend the application by reducing the density from 7.5 units per acre (RL) to 5.0 units per acre (RS). Thereafter, the City approved the application. This approval was formalized through the adoption of Ordinance No. 6978-02. At that point, the City became the nominal applicant for the amendment. A copy of the amendment was then forwarded to the Department of Community Affairs (DCA). The DCA's review was completed on October 3, 2002, when it advised the City by letter that it had "no objections to the proposed amendment" and that its letter would serve as the DCA's Objections, Recommendations and Comments. The application was submitted to the PPC on August 13, 2002. Following its review, the PPC staff, together with the staff of the Professional Advisory Committee (PAC), which is composed of professional planning staff members from the various municipalities throughout the County, recommended that the application be approved. On September 18, 2002, the PPC, by a 6-5 vote, recommended denial of the application, mainly because of traffic issues. Under the review process, the matter then came before the CPA. However, the City and the Trustee requested that the matter be remanded to the PPC to enable the Trustee to address the traffic issues. A remand was approved by the CPA on October 15, 2002. After reconsideration of the matter, which included proposed changes by the City to mitigate the traffic impact, the PPC staff and PAC unanimously recommended approval of the application. The application then proceeded to the PPC, and by a 9-3 vote on March 19, 2003, the PPC recommended approval. Although land use amendments recommended for approval by the PPC are "rarely" overturned or changed by the CPA, on April 1, 2003, the Board of County Commissioners, sitting as the CPA, unanimously rejected the proposed amendment. The same date, Resolution No. 03-55 was adopted which memorialized this action and indicated that the decision was based "upon the facts presented at the hearing, which included the character of the neighborhood and transportation impacts." According to the parties' Pre-Hearing Stipulation, the rejection was "due to [the amendment's] incompatibility with and negative impact on the established character of the neighborhood and the precedence [sic] of allowing multi-family development into an overwhelming single-family residential area." This appeal followed. The issues in the case Under the Countywide Rules, which were adopted in 1989 and govern changes to the FLUP, depending on their size and nature, plan amendments are classified into two categories: subthreshold amendments and general amendments. The former type of amendment is minor in nature and entails a less rigid review process while general amendments (those that do not qualify as subthreshold amendments) must be evaluated according to six "Relevant Countywide Considerations" (Considerations) found in Sections 5.3.5.1 through 5.3.5.6. Because the proposed amendment falls within the general amendment category, the six Considerations must be reviewed to determine if any come into play. If an amendment adversely impacts a Consideration, it is not consistent with the FLUP. In denying the amendment, the CPA determined that only two Considerations were relevant and would be impacted - Section 5.3.5.2 (Adopted Roadway Level of Service (LOS) Standard) and Section 5.3.5.6 (Adjacent to or Impacting an Adjoining Jurisdiction). All other Considerations were determined to be inapplicable. Although the County's Resolution indicated that the traffic Consideration played a part in its decision to deny the amendment, the parties' Prehearing Stipulation reflects that the CPA no longer considers that Consideration to be in issue. However, because evidence concerning traffic was presented at hearing, albeit more in the context of impacts on the character of the neighborhood than on LOS standards on U.S. Highway 19, a discussion of that Consideration is appropriate. Section 5.3.5.2 provides in part that "the amendment must not be located on or impact a roadway segment where the existing Level of Service (LOS) is below LOS 'D', or where projected traffic resulting from the amendment would cause the existing LOS to fall below LOS 'D'." Here, however, the evidence shows that the portion of U.S. Highway 19 (directly west of the property) between Enterprise Road and Sunset Point Road is already operating at LOS "F". Under the existing land use classification (RS), the Trustee (or developer) can construct as many as 46 single- family homes. At hearing, the developer acknowledged that the property can be successfully developed in that mode. Assuming that the maximum number of homes would be built, regardless of which type of development occurs, the traffic impacts would be essentially the same since a town home generates only 60 percent of the traffic of a single-family home. The evidence also shows that any additional traffic generated by development will have a negligible overall impact (less than three-tenths of one percent of the existing capacity) on U.S. Highway 19, which is already at LOS "F". The Florida Department of Transportation concurs in this finding, and has concluded that the development will not adversely impact that road. As noted above, the plan amendment was initially rejected by the PPC by a 6-5 vote, mainly because of traffic issues, and a concern that the additional traffic onto U.S. Highway 19 at First Avenue South might have a negative impact on that roadway. The City and Trustee then requested that the CPA remand the application to the PPC so that traffic issues could be further addressed. At that time, the City considered two alternatives to alleviate traffic concerns and provide a different access route to the area. First, it considered the possibility of extending Second Avenue South to the east and southeast to connect with, and widen, Lake Shore Drive (a County road), which runs around parts of the northwestern and southwestern sections of the Lake, and eventually provides access to Sunset Point Road, which then runs west to U.S. Highway 19. However, the County declined to participate in that effort and thus this proposal was not considered to be feasible. The City also considered extending Chautauqua Avenue north (over City right-of-way) to Enterprise Road, a main arterial east-west roadway that also intersects with U.S. Highway 19 (and enables the driver to turn either left or right at that intersection). If the road is extended in that fashion, it would provide residents in and near the subject property with access to Enterprise Road, and also provide other area residents with access to a City park that may be built just south of Enterprise Road. As to this alternative, even though the developer's share of costs (using the City's calculations) is only 17 percent, the developer has agreed to pay one-half of the cost of the road improvements. With this improvement, both parties now agree that the traffic Consideration has been resolved. Based on the foregoing, it is found that the plan amendment is consistent with the transportation Consideration and will not adversely impact LOS standards on U.S. Highway Two of the County witnesses conceded as much at the final hearing. Section 5.3.5.6 generally provides that if the property adjoins another jurisdiction, the plan amendment must not adversely impact that jurisdiction. In determining whether the plan amendment is consistent with this Consideration (and does not impact the adjoining County land), reference to the goals and policies within the Countywide Comprehensive Plan is necessary. The Land Use Element Goal provides in part that "[t]he land uses associated with development should be compatible and reasonable in terms of both the land, surrounding uses, and the public interest." Two unnumbered Policies within the same Element further provide that "land development patterns should recognize and support coherent neighborhoods," and that "land planning should weigh heavily the established character of predominately developed areas when changes of use or intensity of development is contemplated." In this case, there are enclaves of County land lying on the northern, southern, and eastern boundaries of the Trustee's land. The County contends that the proposed change is inconsistent with the Consideration because it adversely affects the "character" of the adjoining County land in two ways: (a) by the creation of a new access road to the north through a quiet, residential neighborhood, and (b) by the construction of town homes in an area historically classified as RS, which only allows the construction of single-family homes. If the plan amendment is approved, the City has decided to extend Chautauqua Avenue to Enterprise Road, giving the new (and existing) residents an outlet to the north. This alternative was chosen since the County has declined to participate in the southern alternative. The extension will provide access to a new City park, and the developer will pay more than his fair share to aid in the construction of the road. According to the City, the extension is necessary to mitigate the increased traffic from the new project. Currently, the roads in the area around where the extension will be built can be characterized as secluded and rural, with only a small amount of traffic. Besides the automobiles of the existing residents, the only other vehicles using the roads are those being tested by the nearby Chevrolet dealership after being repaired. If the plan amendment is approved, and the town homes constructed, the project will generate hundreds of new trips per day. Understandably so, existing residents of the area (as well as the County) fear that if the road is extended, it will become a "cut-through" street for non-residents traveling north on U.S. Highway 19 to Enterprise Road and who wish to avoid that intersection. Given the current level of traffic on U.S. Highway 19 (LOS "F"), it is fair to infer that this fear is well-founded. Accordingly, by extending Chautauqua Avenue to Enterprise Road, the character of the existing neighborhood will be adversely impacted by the increased traffic generated by new residents seeking an outlet and non-residents using the street as a cut-through. It is true that some form of traffic mitigation will still be required if the plan amendment is not approved, and single-family homes are built on the Trustee's property. However, when or if the property will be developed, and the extent of such development, is not known, and there is no indication in the record that the City will still seek to mitigate this traffic by extending Chautauqua Avenue. The evidence shows that the established character of the neighborhood is quiet, secluded, and low density residential, with many of the homes having large, oversized lots. As noted earlier, a proposal is now pending before the County to develop the area directly north of the Trustee's property along the Lake with six single-family dwellings on "large estate lots behind a gated wall." By doubling the density on the Trustee's property from 2.5 to 5.0 units per acre, the character of the area would be changed, and the new density would be inconsistent with the historic land use and development pattern of the area. The evidence also shows that the residents who live immediately north of the Trustee's property purchased their land, and built their homes, with the expectation that the area would be "a detached single-family residential community within the 2.5 units per acre limitation." For more than 20 years, the County's land use decisions have been consistent with this expectation. Petitioners' witnesses contend, however, that the town homes will (a) serve as a buffer between the commercial uses which lie on the western side of Chautauqua Road and the existing single-family homes which lie on the eastern side, and (b) provide a transition or gradual stepdown in intensity from the commercial uses along U.S. Highway 19 to town homes to single-family homes, which practice is consistent with good land use planning. However, the area maps and site plan introduced into evidence clearly show that the town homes would not buffer anything except the Lake, since the town homes would run from the Lake all the way westward to the rear of the Chevrolet dealership. In other words, to provide a buffer, logically it would be necessary that the town homes be placed between the commercial areas and the single-family homes. The residential property to the north and south (which purportedly would be buffered) is already located adjacent to, and directly east of, the commercial development along U.S. Highway 19, and the town homes would simply increase the density of the property between the two residential areas by 100 percent. For the same reasons, the construction of town homes would not provide a transition or step down in the intensity of development from west to east since they would not be built between the existing homes and U.S. Highway 19. Based on the foregoing facts, it is found that the proposed amendment will adversely affect the character of the neighborhood (and impact the adjoining County land) and is therefore inconsistent with Section 5.3.5.6 of the Countywide Rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners of Pinellas County, sitting as the Countywide Planning Authority, enter a final order determining that the plan amendment is inconsistent with Section 5.3.5.6 and that the amendment should be denied. DONE AND ENTERED this 8th day of September, 2003, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2003.
The Issue Whether the proposed amendment to the St. Johns County 2015 Future Land Use Map (FLUM), adopted by Ordinance No. 2002-31, is "in compliance" with the relevant provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part, II, Florida Statutes. A second issue raised by St. Johns County (County) and The Estuaries Limited Liability Company (Estuaries) is whether, if the proposed amendment is not "in compliance," it is nevertheless valid and authorized pursuant to Chapter 70, Florida Statutes, the Bert J. Harris, Jr., Private Property Rights Protection Act.
Findings Of Fact The Parties Petitioner, Julie Parker, resides in St. Augustine, Florida, less than one and one-half miles from the proposed project site. Parker also owns other property in St. Johns County. Parker submitted oral comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM Amendment and Ordinance No. 2002-31. The parties agreed that Parker has standing in this proceeding. The County is a political subdivision of the State of Florida. The County adopted its Comprehensive Plan in 1990. The County proceeded with the evaluation and appraisal report process in 1997 and 1998. This process ultimately resulted in the adoption of the 2015 Comprehensive Plan Amendment, Goals, Objectives, and Policies, and Adopted EAR-Based Comprehensive Plan Amendment in May 2000 (May 2000 EAR-Based Plan Amendment), which was subjected to a sufficiency review by the Department and found "in compliance." Estuaries owns the 9.99 acres (the Property) that is the subject of the FLUM Amendment. Estuaries also owns approximately 8.5 acres outside, adjacent to, and west of the Property. The 8.5 acres are subject to a Conservation Easement, which prohibits any development activity thereon. (The total contiguous land owned by Estuaries is approximately 18.5 acres.) The parties stipulated that the legal description of the Property attached to Ordinance No. 2002-31 contains less than 10 acres. Estuaries submitted comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM amendment. Estuaries has standing to participate as a party in this proceeding. The Property The Property is part of a larger tract owned by Estuaries, i.e., approximately 9.9 acres out of a total tract of approximately 18.5 acres. The entire 18.5 acre tract is located on Anastasia Island, a barrier island, which extends from the St. Augustine Inlet to the Matanzas Inlet. According to the 2000 Census, there are approximately 12,000 dwelling units on Anastasia Island. This includes condominium units and single-family units. The approximately 18.5-acre site is also located in the Coastal High Hazard Area under the County May 2000 EAR-Based Plan Amendment. The Property is part of Butler Beach (bordering the Atlantic Ocean), which is an historic area because it was settled in the early 1900's by black citizens and provided them with access to the beach, which was previously unavailable. However, no historic structures or uses have occurred on the Property. The entire 18.5 acre tract is located on the south side of Riverside Boulevard. The Property is located approximately 300 feet west of Highway A1A South (A1A runs north and south). The Intracoastal Waterway and the Matanzas River are west and adjacent to the 18.5 acres. The Estuaries site is also located adjacent to the Guana Tolomato Matanzas National Estuarine Research Reserve (NERR). The Property is vacant, partially wooded, and also consists of undeveloped wetlands. Of the 9.99 acres, approximately 6.7 acres are uplands and developable, and 3.29 acres are wetlands. As noted, the remaining approximately 8.5 acres of the Estuaries' property, and to the west of the Property, is subject to a Conservation Easement in favor of the County. The properties adjacent to the Property include the following: Single-family residential units are located along and on the north side Riverside Boulevard. The existing FLUM designations for this area are Residential Coastal Density A and C, with the existing zoning of open rural (OR). (Residential Coastal Density C permits 2.0 to 4.0 units per acre.) The Intracoastal portion of Butler State Park is to the south of the Property, with a FLUM designation of parks and open space and existing zoning of OR and is not in a conservation area. To the east of the Property is a utility substation site, Butler Avenue, various commercial uses, Island House Rentals or Condominiums (three-story oceanfront condominiums), and the Mary Street Runway. There is another condominium called Creston House, directly south of the Butler Park (ocean portion) area (distinguished from the Butler State Park), consisting of three stories. (Butler Park and Creston House are located east of A1A and southeast of the Estuaries property.) The existing FLUM designations are Coastal Residential Coastal Density A and C, and have existing zoning designations of Residential General (RG)-1 and Commercial General (CG). There are no Residential Density D FLUM land use designations in the contiguous area. In short, the Property is proximate to a state park, a densely developed area comprised of small residential lots of 25 by 100 feet lots, and the two three-story condominiums, which were built prior to the adoption of the County's 1990 Comprehensive Plan. The County's Comprehensive Plan and EAR-Based Amendments On September 14, 1990, the County adopted a Comprehensive Plan-1990-2005, with amendments (the 1990 Plan). Under the 1990 Plan, the Property was assigned a Residential Coastal-A land use designation under the existing FLUM, which meant that residential development was restricted to no more than one residential unit per upland (non-wetland jurisdictional) acre. Under this designation, approximately seven units could have been built on the Property. The zoning on the Property was and is RG-1. According to the County, at least as of a June 11, 1999, letter from the County's principal planner, Timothy W. Brown, A.I.C.P., to Kevin M. Davenport, P.E., the total units which would be allowed on the Property were 116 multi-family units, derived after making a detailed density calculation based in part on using 40 percent of the wetlands used for the density calculation. In May 2000, the County adopted the EAR-Based Plan Amendment, with supporting data and analysis, which the Department of Community Affairs found to be "in compliance." As required by Chapter 163, Part II, Florida Statutes, this would have included data and analysis for the Future Land Use Element (FLUE), which was adopted as part of these plan amendments. This is part of the data and analysis which supports the FLUM Amendment at issue in this proceeding. The May 2000 EAR-Based Plan Amendment continued the Residential Coastal A land use designation of the Property, which allows 0.4 to 1.0 units per acre. (Residential Coastal B allows 2.0 units per acre; Residential Coastal C allows 2.0 to 4.0 units per acre; and Residential Coastal D allows 4.0 to 8.0 units per acre.) The Residential Coastal A designation authorizes residential and non-residential uses, such as schools, public service facilities, police, fire, and neighborhood commercial. Restaurants and banks without drive-thru facilities, gasoline pumps, and professional office buildings are examples of neighborhood commercial uses. The May 2000 EAR-Based Plan Amendment does not limit the lot size, subject to limitations on, for example, impervious surface ratios, which do not change regardless of whether the land use designation is Residential Coastal A or D. Also, any development would also have to comply with the textural provisions of the May 2000 EAR- Based Plan Amendment, including the coastal and conservation elements. The Circuit Court Litigation There are many documents in this case which pertain to the litigation between Estuaries and the County. The civil action was filed in the Circuit Court of the Seventh Judicial Circuit, in and for St. Johns County, Florida, and styled The Estuaries Limited Liability Company v. St. Johns County, Florida, Case No. CA-00271. On February 11, 2000, Estuaries filed a Complaint against the County "relating to certain representations made by the County in connection with the development of certain real property located south of St. Augustine Beach in St. Johns County, Florida." A Second Amended Complaint was filed on or about May 30, 2001. Estuaries claimed that County staff made representations to Estuaries, which resulted in Estuaries having a vested right to develop its Property up to a maximum of 116 multi-family residential units. (The County took the position that Estuaries could build no more than 25 units on the Property.) Estuaries claimed that it had vested rights based upon a claim of equitable estoppel against the County. (One of Estuaries' claims was brought pursuant to the Bert Harris, Jr., Private Property Rights Protection Act, Chapter 70, Florida Statutes.)1 After discovery and the denial of motions for summary judgment, the parties entered into a "Settlement Agreement and Complete Release" (Settlement Agreement). The "General Terms of Settlement" in the Settlement Agreement provided in part: Estuaries shall prepare and file an application to amend the future land use map of the St. Johns County Comprehensive Plan to amend the designation of only that portion of the Property such that Estuaries may build 56 multi-family residential units on the Property and such that the amendment be a "Small-scale Amendment" as defined by the Local Government Comprehensive Planning Act. Estuaries agrees on behalf of itself, its successors and assigns to build not more than 56 units on the Property. County will waive or pay the application fee and will expedite its processing. The parties will forthwith prepare and submit to the Court a joint motion for the approval of this Agreement pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act, §70.001(4)(d)2. During the review and consideration of the amendment application, the County will expeditiously process the Estuaries' revised construction plans and, in connection therewith, the construction codes in effect as of November 13, 2001 (to the extent the County may do so without violating county, state or federal law), the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land Development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply. In all other respects, the revised construction plans shall comply with all other Comprehensive Plan and County ordinances and regulations. On or about November 16, 2001, counsel for the parties signed a Joint Motion, requesting the circuit court to approve the Settlement Agreement pursuant to Section 70.001(4)(d)2., Florida Statutes. On November 16, 2001, Circuit Judge John Michael Traynor, entered an "Order Approving Settlement Agreement pursuant to Bert J. Harris, Jr. Private Property Rights Protection Act." Judge Traynor stated in part: The central issue in this litigation has been the number of dwelling units that would be permitted on the Property. The issues in the case are legally complex and, although the credibility of the testimony and authenticity of the exhibits expected to be introduced was not expected to be substantially in dispute or challenged, the meaning of the testimony and the meaning and inferences to be drawn from such evidence was very much in dispute. The issues included the extent of vested rights, the extent to which estoppel may be applied to the County, contractual liability, and potential liability under the Bert J. Harris, Jr. Private Property Rights Protection Act . . . and the relief requested included the request for a declaration that the Plaintiff is entitled to build up to 116 dwelling units on the Property and damages against the County. Judge Traynor also "Ordered and Adjudged," in part: Pursuant to Florida Statute § 70.001(4)(a) & (c) and applicable law, this Court finds that proper notice of a Bert Harris Act claim was timely provided to the County, and other governmental entities, and the County did make a written settlement offer to the Plaintiff, in accordance with the Bert Harris Act, that was accepted by Plaintiff. Florida Statute § 70.001(4)(c) permits, inter alia, for an adjustment of land development provisions controlling the development of a plaintiff's property; increases or modifications in the density, intensity, or use of areas of development; the transfer of development rights; conditioning the amount of development or use permitted; issuance of a development order, a variance, special exceptions, or other extraordinary relief; and such other actions specified in the statute. While the parties may dispute whether an amendment is necessary to the County's Comprehensive Plan, the parties have agreed that the Plaintiff shall submit a small-scale amendment to the County for consideration and approval pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act. . .; without waiver of either party's rights to contest and defend the necessity of submitting such an amendment, in light of this Court's approval of the settlement agreement pursuant to the Bert Harris Act and applicable law. The Court finds that the Settlement Agreement and Complete Release is fair, reasonable and adequate; is in the best interests of the parties and protects the public interest served by the Local Government Comprehensive Planning and Land Development Regulation Act. . .; and is the appropriate relief necessary to prevent the County's regulatory efforts from inordinately burdening the Property with regard to density, impact on public services, the environment and the public health, safety and welfare of the community and the rights of individuals to reasonably utilize their property and to rely on the representations of government, taking into consideration the risks that both parties had in this litigation. This litigation has been ongoing for more than 18 months, and substantial discovery and record has been presented to the Court that provides ample basis for this Court's approval of this settlement as being fair, reasonable and adequate and appropriate under the Bert Harris Act. There is no evidence before the Court that would suggest that the proposed settlement is the result of any collusion among the parties or their counsel. In fact, the record is to the contrary, whereby counsel on both sides have aggressively and zealously pursued the interests of their respective clients. . . . Judge Traynor directed the parties to implement the terms of the Settlement Agreement, "subject to the right of the public to comment at an appropriate public hearing pertaining to the above referenced small scale amendment to the County's Comprehensive Plan, and shall cooperate to accomplish in good faith the responsibilities under the Settlement Agreement and Complete Release." There is no evidence that Judge Traynor's Order has been rescinded or otherwise modified. There is no statutory authority to collaterally attack Judge Traynor's Order in this proceeding nor is there any authority which provides that this Order can be ignored. Also, this is not the appropriate proceeding to determine whether Estuaries has, in fact, vested rights. Accordingly, Judge Traynor's Order, approving the Settlement Agreement, is accepted as binding authority. The Small Scale Development Application In compliance with Judge Traynor's Order and the Settlement Agreement, on March 26, 2002, Estuaries filed a "Small Scale Amendment Comprehensive Plan Amendment Application Form" with the County. Estuaries requested a change in the Property's FLUM designation from Residential Coastal A, Zoning RG-1 to Residential Coastal D, Zoning RG-1. Estuaries represented, in part, that the Property consisted of 9.99 acres of vacant land, including 3.2 acres of wetlands and approximately 6.7 acres of developable land (uplands) "which will be developed into a 56 unit Multi-Family Condominium." County staff reviewed the application and recommended approval. As part of the agenda item for consideration by the St. Johns County Board of County Commissioners, County staff, in light of the criterion of "Consistency with the Goals, Objectives and Policies of the Comprehensive Plan, State Comprehensive Plan and the Northeast Florida Regional Policy Plan," stated: "[t]he approved Settlement Agreement was filed pursuant to Chapter 70.001." With respect to "Impacts on Public Facilities and Services," County staff stated: "The project has received a Certificate of Concurrency addressing the impacts on transportation, water, sewer, recreation, drainage, solid waste and mass transit. The Certificate of Concurrency is based on impacts of 84 multi-family dwelling units. Pursuant to the Settlement Agreement, the project contains 56 multi-family dwelling units. St. Johns County provides central water and sewer." With respect to "Compatibility with Surrounding Area," County staff stated: "The area is developed with a mixture of residential, commercial, park (Butler Park), and vacant land of various zoning." According to Mr. Scott Clem, the County's Director of Growth Management Services, County staff felt that there were adequate public facilities for a 56-unit project, because Estuaries had previously demonstrated that facilities were available for an 84-unit project. However, County staff expressly noted in the Planning Department Staff Report submitted to the Planning and Zoning Agency that "[t]here are no development plans included in the Application. However, all site engineering, drainage and required infrastructure improvements will be reviewed pursuant to the Development Review Process to ensure that the development complies with all applicable federal, state and local regulations and permitting requirements. No permits shall authorize development prior to compliance with all applicable regulations." At this point in time, County staff were "analyzing the potential for 56 units to be on the property. It was a site specific analysis at that point." On April 18, 2002, the Planning and Zoning Agency unanimously recommended approval of the FLUM amendment. After a properly noticed public hearing, on May 28, 2002, the County approved the FLUM Amendment in Ordinance 2002- 31. In Ordinance 2002-31, the County approved the FLUM Amendment at issue, which changed the FLUM land use classification of the Property from Residential Coastal A to Residential Coastal D. Ordinance 2002-31 also provided: "The Land Uses allowed by this Small Scale Comprehensive Plan Amendment shall be limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height." The Challenge Parker filed an Amended Petition challenging the lack of data and analysis to support the FLUM Amendment; challenging the increase in density of the Property located in a Coastal High Hazard Area; challenging the internal consistency of the FLUM Amendment with the May 2000 EAR-Based Plan Amendment; challenging the decision by the County to process the application as a small scale development amendment; and challenging the failure to provide Parker with adequate notice of a clear point of entry to challenge Ordinance No. 2002-31. Notice The County provided notice, by newspaper, of the Board of County Commissioners' meeting of May 28, 2002. Before this meeting, a sign was placed on the Property, providing notice of the meeting. Parker personally attended the May 28, 2002, meeting and addressed the Commission regarding the FLUM Amendment. Ordinance No. 2002-31 provided: "This ordinance shall take effect 31 days after adoption. If challenged within 30 days after adoption, this ordinance shall not become effective until the state land planning agency or the Administration Commission issues a final order determining the adopted small scale amendment is in compliance." This Ordinance does not advise a person of the right to challenge the Ordinance pursuant to Chapter 120, Florida Statutes, the Uniform Rules of Procedure, or Section 163.3187(3)(a), Florida Statutes. This type of notice is not required for the reasons set forth in the Conclusions of Law. Does the FLUM Amendment, covering 9.99 acres, involve a "use" of 10 acres or fewer, pursuant to Section 163.3187(1)(c)1., Florida Statutes? "A small scale development amendment may be adopted only [if] [t]he proposed amendment involves a use of 10 acres or fewer." Section 163.3187(1)(c)1., Florida Statutes.2 In the Amended Petition and in her Prehearing Stipulation, Parker contends that the "use," which is the subject of the FLUM Amendment, relates to more than the 9.99 acre parcel and, therefore, the FLUM Amendment is not a small scale development amendment defined in Section 163.3187(1)(c)1., Florida Statutes. Parker contended that because the FLUM Amendment authorizes a maximum of 56 residential units to be developed on the Property, and the maximum density under the Residential Coastal D and RG-1 zoning designations is 42.12 units, using the on-site wetlands density bonus, that Estuaries "must be using the off-site wetlands that are contained within the 18.5 acre parcel to obtain the density credit necessary to reach 56 units for the site under" the FLUM Amendment. The 56 residential unit maximum was the product of the circuit court litigation and Settlement Agreement, as approved by Judge Traynor, which resolved the differences between the County and Estuaries regarding the maximum residential density which could be authorized on the Property. Parker also contended that because Estuaries may use a proposed lift station owned by the County off-site, that this causes the proposed "use" of the Property to exceed 10 acres. It appears that at some prior time in the "vesting rights" chronology of events, Magnolia S Corporation, in order to downscale the project, agreed to sell a 40' by 80' parcel to the County, located adjacent to the Property and in the northeast portion, to expand the existing County lift station on Riverside Boulevard. There is a lift station adjacent to the Property that serves as "a repump station that serves the development along Riverside [Boulevard] west of the lift station and serves all the development in St. Johns County on the island south of Riverside Boulevard." It is proposed that sewage effluent from development on the Property would be deposited on site and then pumped into an adjacent force main which eventually ends up in the station. According to Mr. Kevin Davenport, Estuaries' civil engineer, "56 units added to that pump station would be extremely miniscule in the overall amount of sewage that goes through it." Thus, Estuaries anticipates having their own on-site lift station, which "would be pumped through a pipe to the Riverside right-of- way, where it would connect to an existing county-owned pipe which currently goes to the lift station." Mr. Clem stated that "[u]tilities are very commonly done off site where water or sewer distribution or transmission lines are constructed to the site." This would include the use of off- site lift stations. However, the proposed use of the lift station does not necessarily compel the conclusion that the FLUM Amendment exceeds 9.99 acres. If this were so, any proposed use of any off-site utilities would cause a pro rata calculation and increase of the size of the site providing the service, then be added to the 9.99 acres. This is not a reasonable construction of Section 163.3187(1)(c)1., Florida Statutes. Parker also claimed that when the Estuaries granted the County a Conservation Easement for the approximately 8.5 acres (out of 18.5 acres) of wetlands adjacent to the Property, Estuaries "used" this property to secure the FLUM Amendment, and therefore, exceeded the 9.99 acres. The Conservation Easement precludes development activity on the approximately 8.51 acres. ("The purpose of this Conservation Easement is to assure that the Property will be retained forever in its existing natural condition and to prevent any use of the Property that will impair or interfere with the environmental value of the property." Prohibited uses include "[a]ctivities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or fish and wildlife habitat preservation.") The "use" of the 8.51 acres as a potential visual amenity for potential residents on the Property is not a "use" within a reasonable reading of Section 163.3187(1)(c)1., Florida Statutes. Parker also suggested that Estuaries will need to improve Riverside Boulevard (paving and drainage) and the public right-of-way consisting of approximately 1.51 acres, which is not owned by Estuaries. It appears that Riverside Boulevard is already open, improved, and paved. Also, Mr. Clem stated that it is common to have off-site improvements associated with a project, which might include intersection or roadway improvements that are not on or within the project site. Mr. Clem opined that while these improvements would be required for the project, they would have been off-site. Some improvements, such as improvements to Riverside Boulevard, would most likely benefit the general public, and not be limited to the future residents on the Property. It is common for local governments to require improvements to public infrastructure as a condition of development. These off-site improvements do not necessarily make the "development activity" larger than the size of the landowner's site, here the Property. Data and Analysis Parker contended that the FLUM Amendment is not supported by appropriate data and analysis. As noted herein, Estuaries sought approval of a FLUM Amendment for its Property, i.e., a land use change to the FLUM. No text (goals, objectives, and policies) changes to the May 2000 EAR-Based Amendment were requested nor made. This is normal for a "site-specific small scale development activity." Section 163.3187(1)(c)1.d., Florida Statutes. Consideration of the FLUM Amendment in this proceeding is unusual for several reasons. First, the necessity for the FLUM change arose as a result of the Settlement Agreement, approved by Judge Traynor, which resolved the differences existing between the County and Estuaries regarding the number of units which could, as a maximum number, be developed on the Property. Second, the data and analysis, which normally is presented to the local government, here the County, at the time the plan amendment is adopted, is not in its traditional format here, largely, it appears, because of the manner in which consideration of the FLUM Amendment arose. Nevertheless, this situation is not fatal for, under existing precedent, see, e.g., Conclusion of Law 96, data, which was in existence at the time the FLUM Amendment was adopted by the County, may be considered in determining whether there is, in fact, adequate data supporting the FLUM Amendment. The data relied on by the County and Estuaries to support the FLUM Amendment was compiled and initially presented to the County on or about July 6, 1999, when Estuaries sought authorization from the County for a proposed project to construct 84 multi-family residential units on the same general area as the Property. This started the County's development review process. Estuaries began the process at this time, believing that it had "vested rights" to develop the Property. Mr. Clem explained that the development review process is "extremely detailed. It involves 11 or 12 different programs within the [C]ounty, looking at everything from the actual site plan itself, water and sewer provision, for all the things that would go into site construction, roadway design, the environmental considerations. We basically look at how this site will be developed in accordance with the land development code and any other regulations. We ensure that the water management district permits are obtained, if applicable, or other state agencies." This record contains County Department comments which pertain to a host of issues, including but not limited to, drainage, traffic, fire services, urban forestry (trees and landscape on-site), utilities, zoning (e.g., buffers, setbacks), concurrency requirements, etc. County staff raised questions (identified as submittals) on at least four separate occasions followed by written responses by the applicant on at least three occasions. However, not all issues were resolved. A July 1999, Land Development Traffic Assessment, prepared by Beachside Consulting Engineers, Inc., was submitted to the County as part of the request for a concurrency determination. The analysis "indicates that the roadway segments within the impact area will continue to operate at an acceptable LOS through the construction of this project." The "Summary" of the assessment states: "This project meets traffic concurrency standards, as defined by the St. Johns County Concurrency Management Ordinance, for all roads within the traffic area." "Stormwater Calculations" for the 84-unit, multi-family housing development were also provided in a report dated July 7, 1999. The applicant also furnished the County with a "geotechnical report," which analyzed the soil conditions related to storm water ponds and to the placement of the buildings and the support of the buildings on the site. Soil borings and other testing revealed the capabilities of the soil for, for example, percolation rates for the storm water ponds. There is no evidence that there are any specific historic buildings or geological or archeological features on the Property. In July 1999, the applicant submitted an application for concurrency. At that time, County staff analyzed this information to ensure that public facilities and services were in place to serve the project. This application was reviewed in relation to the County's concurrency management provisions of the County's Land Development Code. On September 3, 1999, the County's Planning Department prepared a report regarding this application and recommended "approval of a Final Certificate of Concurrency with Conditions for the development of 84 residential condominium units." (Staff made findings of fact, which included a discussion of traffic, potable water/sanitary sewer, drainage, solid waste, and mass transit.) On September 8, 1999, the Concurrency Review Committee met and adopted the Staff's Findings of Fact with conditions, including but not limited to, the applicant providing a copy of the Department of Environmental Protection permits "necessary for connection to central water and wastewater service prior to Construction Plan approval," and "[t]he applicant receiving approval of construction/drainage plans from the Development Services Department prior to commencement of construction." The Final Certificate of Concurrency with Conditions was issued on October 1, 1999, and was due to expire on September 8, 2001. However, the Settlement Agreement provided, in part, that "the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply." (Emphasis added.) (Ms. Teresa Bishop's (County Planning Director) November 7, 2001, letter indicated, in part, that Estuaries' request for "tolling [of the Final Certificate of Concurrency] cannot be reviewed until the outcome of the pending litigation is known. . . . After the litigation is concluded, your request for tolling may be resubmitted for review." The Settlement Agreement post-dates this letter.) In evaluating a small scale plan amendment, County staff evaluates the availability of public services which, according to Mr. Clem, is "one of the major components," and County staff "is looking at virtually the same issues that [the County] would look at in concurrency to evaluate and make recommendations on small scale amendments." Mr. Clem also advised that the County's analysis of the 84-unit project did not involve, and was not based on, "a specific site plan with buildings at a certain location or parking in a certain location. It was more an 84- unit project with certain data and analysis associated with that site or project." By letter dated October 4, 1999, the Department of Environmental Protection indicated that it had received a "Notification for Use of the General Permit for Construction of an Extension to a Drinking Water Distribution System" submitted for the Estuaries project. The Department stated further: "After reviewing the notice, it appears that your project will have minimal adverse environmental effect and apparently can be constructed pursuant to a general permit as described in Chapter 62-555, F.A.C." The permit expires on October 4, 2004. This permit allows the applicant to demonstrate that it will offer a central water service, available to be served through the County's utility department. This would ensure that there is sufficient potable water available. By letter dated October 6, 1999, the Department of Environmental Protection also issued a permit for the construction of a sewage collection/transmission system (domestic waste). By letter dated November 11, 1999, the St. Johns Water Management District issued a "formal permit for construction and operation of stormwater management system." This permit authorized "[a] new stormwater system with stormwater treatment by wet detention to serve Estuaries Multi-family Development, a 5.88 acre project to be constructed as per plans received by the District on 7/12/1999." This permit did not relieve the applicant "from the responsibility for obtaining permits from any federal, state, and/or local agencies asserting concurrent jurisdiction over this work." Mr. Clem believed that this permit was evidence that "the state agencies ha[d] considered the environmental issues relating to storm water and all the issues that they deal with in issuing a permit." The Property is located in a "development area boundary" as indicated on the FLUM, which means that these areas allow "development potential." Other areas, such as rural silviculture and agricultural lands, are outside the development area and only limited and low density development is allowed. Conservation areas are also designated on the FLUM. Given the location of the Property within the development area boundary, the County thereby eliminated the necessity of producing some of the data normally required.3 Mr. Clem explained: So by being within a development area boundary it's in essence already had rights to develop, depending on the classification what those rights are, whether it's residential, commercial, industrial. So by virtue of the fact that this site [the Property] was already in the developmental boundary, we didn't deal with issues such as need, which is a big issue in the county when we add developmental boundary. Is there need for additional residential units, and so forth. So that is one part of the answer. The other part is when we're looking at changing from one residential classification to another, we're not dealing with the same issues we might have if it was going from residential to commercial or residential to industrial. So in the context of a plan amendment like this, we're looking at what can this land support in terms of density and are there public facilities available? Is it generally compatible with the surrounding area? What are the potential impacts to natural resources? So those things are still analyzed, but they're done in a probably more confined context. And then the other factor is this being a small scale amendment further reduces the amount of data that is typically done. And if it was a major amendment, there's a whole new range of issues when we deal with major amendments. By definition, they can cause more of an impact. For Mr. Clem, the data and analysis which was generated during the concurrency process for the proposed 84-unit project was significant and would be applicable to a proposed 56-unit project. Mr. Clem opined that the data for this small scale amendment was "[f]ar in excess of anything [he had] seen in the county." Environmental Impacts of the FLUM Amendment The area on and around the Estuaries' property is an area of tidal marsh intermixed with upland scrub. Many wildlife species have been seen utilizing the wetlands on and adjacent to the Estuaries' site (the 18.5 acre parcel). These include woodstorks, snowy egrets, roseate spoonbills, little blue herons, tri-colored herons, white ibis, and ospreys. Owls, foxes, raccoons, opossums, fiddler crabs, clams, fish, shrimp, and turtles also frequent the area. Parker's environmental scientist and ecologist, Mr. Robert Burks, testified to the environmental effects of any development of the Property subject to the FLUM Amendment. Mr. Burks has worked with American Institute of Certified Planners (A.I.C.P.) designated planners, providing them with opinions with respect to environmental issues. But he is not an expert in land use planning. The National Estuarine Research Reserve (NERR) is a program of the National Oceanic and Atmospheric Administration, a federal program administered by the Department of Environmental Protection. It is a program to do research and education on estuarine systems. The estuarine ecosystem composed of the Guana, Tolomato, and Matanzas Rivers has been designated as a NERR. There is testimony that development and increases in population in the area, in general, have been responsible for, for example, the decline and closure of shell-fishing and decline of water quality in the area. Conservation Goal E.2 provides: The County shall conserve, utilize, and protect the natural resources of the area, including air, water, wetlands, water wells, estuaries, water bodies, soils, minerals, vegetative communities, wildlife, wildlife habitat, groundwater recharge areas and other natural and environmental resources, insuring that resources are available for existing and future generations. Objective E.2.2 provides: Native Forests, Floodplains, Wetlands, Upland Communities, and Surface Water The County shall protect native forests, floodplains, wetlands, upland communities, and surface waters within the County from development impacts to provide for maintenance of environmental quality and wildlife habitats. Policy E.2.2.5.(a)(1)(b) provides: The County shall protect Environmentally Sensitive lands (ESLs) through the establishment of Land Development Regulations (LDRs) which address the alternate types of protection for each type of Environmentally Sensitive Land. Adoption and implementation of the Land Development Regulations shall, at a minimum, address the following issues: For Wetlands, Outstanding Florida Waters (OFW), and Estuaries: establish and modify buffers between the wetlands/ OFW/ estuaries and upland development as stated in the County's Land Development Regulations (LDRs), and as follows: * * * Except a minimum of a 50 ft. natural vegetative upland buffer shall be required and maintained between the development areas and the St. Johns, Matanzas, Guana and Tolomato Rivers and their associated tributaries, streams and other interconnecting water bodies. Policy E.2.2.13(b)(6) provides: By December 1999, the County shall develop and adopt guidelines and standards for the preservation and conservation of uplands through various land development techniques as follows: (b) The County shall recognize the following vegetative natural communities as Significant Natural Communities Habitat. Due to the rarity of these vegetative communities, a minimum of 10 percent of the total acreage of the Significant Natural Communities Habitat (excluding bona fide agriculture and/or silviculture operations) shall be preserved and maintained by the development. * * * (6) Scrub. Where on-site preservation of the native upland communities are not feasible, the County as an alternative shall accept a fee in lieu of preservation or off-site mitigation in accordance with the County Land Development Regulations. Mr. Burks opined that "generally," and if Goal E.2 is read "literally", the FLUM Amendment did not meet this Goal and afford protection for wetlands, vegetative communities, estuaries, wildlife and wildlife habitat. He perceives that "[a]nytime there's a development there will be impacts to the estuarine--the water bodies because of surficial runoff from the parking lots, from the impervious surfaces, and it will carry pollutants into those areas. And that includes soils also. . . . As far as upland habitat, when you develop an area like this, unless you leave certain parts, the upland habitat will be negatively impacted obviously. There won't be the trees there, the vegetation that was normally there before the development." For Mr. Burks, any development of the Property would generally be inconsistent with the Plan provisions recited above. But, his opinion is specifically based on how each system or plan for the site, or here, the Property, is actually designed--"it would depend on the design of the housing structures themselves and where they were placed. If you design anything in a manner which is going to protect that buffer and literally protect the water quality and the runoff in that area, then you may--it may not violate it." For example, if the Property were developed with 25-foot buffers instead of 50-foot buffers, Mr. Burks says that, from an ecology standpoint, there would be insufficient protection for wildlife, including threatened and endangered species. He offered the same opinion if the FLUM Amendment did not require a minimum ten percent set aside of the total acreage for significant natural communities habitat on the Property, such as, scrub of approximately 6.7 acres, a protected vegetative community existing on the upland portion of the Property. Furthermore, Parker introduced into evidence proposed site plans for the Property dated May 24, 2002, which show, in part, a 25-foot buffer, not a 50-foot buffer.4 Parker contends that these site plans are the best available data and analysis regarding whether the FLUM Amendment is "in compliance." However, the purpose of this proceeding is to determine whether the FLUM Amendment is "in compliance," not whether specific draft, and not approved, site plans are "in compliance" with the May 2000 EAR-Based Plan Amendment or the LDRs. If site plans are approved and a development order issued by the County, Parker, and any other aggrieved or adversely affected party may file a challenge pursuant to Section 163.3215, Florida Statutes. But, this is not the appropriate proceeding to challenge proposed site plans. This is not to say that proposed site plans cannot be considered data and analysis; only that they are not incorporated in the FLUM Amendment and are not subject to challenge here. See The Sierra Club, et al. v. St. John County, et al., Case Nos. 01- 1851GM and 01-1852GM (Recommended Order May 20, 2002; Final Order July 30, 2002). Internal Consistency Parker contended that the FLUM Amendment is inconsistent with several provisions of the May 2000 EAR-Based Plan Amendment. Some of these issues have been discussed above in Findings of Fact 68 to 80, pertaining to environmental considerations. Another issue is whether the FLUM Amendment, which changes the maximum density on the Property, is inconsistent with Policy E.1.3.11 which provides: "The County shall not approve Comprehensive Plan Amendments that increase the residential density on the Future Land Use Map within the Coastal High Hazard Area." See also Policy A.1.5.6 which offers almost identical language. The FLUM Amendment changes the land use designation of the Property, and allows a land use "limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height," and thus allows a potential increase in the density of the Property, located in the Coastal High Hazard Area. This resulted from the Settlement Agreement. In Policy A.1.11.6, [t]he County recognizes that the Plan's Objectives and Policies sometime serve to support competing interests. Accordingly, in such instances, and in the absence of a mandatory prohibition of the activity at issue, it is the County's intent that the Plan be construed as a whole and that potentially competing Objectives and Policies be construed together so as to render a balanced interpretation of the Plan. It is the further intent that the County interpretation of the Plan, whether by County staff, the Planning & Zoning Agency, or the Board of County Commissioners, shall be afforded appropriate deference. County interpretations of the Plan which balance potentially competing Objectives and Policies shall not be overturned in the absence of clear and convincing evidence that the County interpretation has misapplied the Plan construed as a whole. The May 2000 EAR-Based Plan Amendment Goals, Objectives, and Policies must be read in their entirety and individual provisions cannot be read in isolation. Objective E.1.3 requires the County to engage in "post disaster planning, coastal area redevelopment, and hurricane preparedness. The County shall prepare post-disaster redevelopment plans which reduce or eliminate the exposure of human life and public and private property to natural hazards." Mr. Clem opined that Policy E.1.3.11, see Finding of Fact 81, expressed "the general intent of limiting population increases that would result in adverse impacts to hurricane evacuation of the coastal areas," and, in particular, the "barrier islands." (Policy E.1.9.5, under Objective E.1.9 Hurricane Evacuation Time, provides: "St. Johns County shall attempt to limit the density within the Coastal High Hazard Area as allowed by law.") Mr. Clem further stated that the FLUM Amendment, which restricted the Property to a maximum of 56 residential units, from a possible 116 unit maximum, was consistent with the Policy which restricts density within the coastal hazard zone. In rendering his opinions, Mr. Clem balanced the above- referenced Policies with Objective A.1.16, pertaining to "private property rights." When these May 2002 EAR-Based Plan Amendment provisions are read together, it appears that Mr. Clem's interpretations are not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Community Affairs concluding that the FLUM Amendment adopted by St. Johns County in Ordinance No. 2002-31 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2002.
The Issue The issue in this case is whether an amendment to the City of Hallandale's comprehensive plan adopted in Ordinance No. 1999-12 is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties. Petitioner, Mickey Biss, is an individual who resides in Miami, Dade County, Florida. Respondent, City of Hallandale (hereinafter referred to as the "City"), is a municipal corporation located within Broward County, Florida. The City is a political subdivision of the State of Florida. Respondents, Ocean Marine Yacht Club, Inc. and Security Management Corporation (hereinafter collectively referred to as "Ocean Marine"), are corporations organized under the laws of Florida and Maryland, respectively. Intervenor, the Department of Community Affairs (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for, among other things, the review of local government comprehensive plans and amendments thereto pursuant to Part II, Chapter 163, Florida Statutes (hereinafter referred to as the "Act"). Standing. Mr. Biss owns a condominium, unit No. 2109, located at 2030 South Ocean Drive, Hallandale, Broward County, Florida. Mr. Biss' parents reside in the condominium unit. Mr. Biss made oral and written comments to the City during the adoption of the amendment at issue in this case. Ocean Marine and Security Management own parcels of property located at 1935 and 1945 South Ocean Drive, Hallandale, Broward County, Florida (hereinafter referred to as the "Subject Property"). The Subject Property is the subject of the plan amendment at issue in this proceeding. All of the parties proved that they are "affected persons" as those terms are defined in Section 163.3184(1)(a), Florida Statutes. All of the Parties have standing to participate in this proceeding. The City and Its Comprehensive Plan. General The City is located in Broward County, Florida. Broward County is a charter county with county-wide powers over land use planning. The City has adopted the City of Hallandale Comprehensive Plan (hereinafter referred to as the "City's Plan"). The City's Plan has been determined to be "in compliance" as those terms are defined in the Act. The City's Plan includes a Future Land Use Element (hereinafter referred to as the "FLUE") and Future Land Use Maps (hereinafter referred to as the "FLUM"), a Coastal Management Element, a Capital Improvements Element, and other elements required by the Act. Among the land use categories allowed pursuant to the FLUE are residential "High Density" and residential "High Density-2." Residential property designated High Density is subject to a "maximum density of twenty-five (25) dwelling units per net acre." The residential High Density-2 land use category was created by an amendment to the City's Plan adopted by the City on February 5, 1998, through Ordinance No. 1998-3. Residential property designated High Density-2 is subject to a maximum density of 50 dwelling units per net acre. This new land use category was also added to the FLUM. The amendment to the City's Plan to add High Density-2 as a land use category was found to be "in compliance" by the Department. It was also found to be consistent with the Broward County Comprehensive Plan. The High Density-2 land use category is subject to the following limitation: Dwelling units and accessory structures subject to a maximum density of fifty (50) dwelling units per net acre, provided however that any density over 25 dwelling units per net ace may only be permitted by the City Commission on site specific properties by assignment of Flexibility Units in accordance with the Flexibility Rules of the Administrative Rules Document, Broward County Land Use Plan. The High Density-2 land use category of the City's Plan is consistent with the Broward County Comprehensive Plan, which contains a "High (50) Residential" land use category allowing up to 50 dwelling units per acre. The City's Urban Infill Area and Transportation Concurrency Exception Areas The FLUE of the City's Plan establishes an Urban Infill Area in the City. The Urban Infill Area is delineated on the FLUM. The following Objective and Policies concerning the Urban Infill Area are included in the City's Plan: OBJECTIVE 1.17: Establish criteria which encourage development of urban infill and urban redevelopment area(s) to promote economic development, increase housing opportunities, and maximize the use of existing public facilities and services. POLICY 1.17.1: Increase economic development and employment opportunities within urban infill and urban redevelopment area(s). POLICY 1.17.2: Adequate housing opportunities necessary to accommodate all segments of present and future residents shall be provided within urban infill and urban redevelopment area(s). The City's Plan also designates Urban Infill Areas as Transportation Concurrency Exception Areas. FLUE Policy 1.17.4 of the City's Plan provides the following: Designated urban infill and urban redevelopment area(s) shall be excepted from transportation facilities concurrency requirements consistent with Chapter 163, Florida Statutes; however, application will be subject to providing a traffic analysis consistent with the Traffic Circulation Element and potential improvements to minimize impacts. Coastal High Hazard Area The City's Plan includes a Coastal Management Element addressing, among other things, hurricane evacuation from the City's coastal high-hazard area and participation in the development of evacuation plans by Broward County. The FLUE of the City's Plan also includes Policies providing for protection of the City's coastal high-hazard area. The City's Plan, prior to the adoption of the Challenged Amendment, allowed the designation of property located anywhere in the City, including the coastal high-hazard area, as High Density-2. This fact must be considered in interpreting the provisions of the Coastal Management Element and the FLUE of the City's Plan dealing with development within the coastal high hazard area. Flexibility Units. The Broward County Comprehensive Plan (hereinafter referred to as the "County's Plan") includes an Administrative Rules Document. The Administrative Rules Document was adopted to assist local governments, among others, in interpreting the County's Plan. The FLUE of the City's Plan adopts by reference the Administrative Rules Document as they relate to flexibility units. The Future Land Use Maps of the County's Plan divide Broward County into 125 geographic areas designated as "flexibility zones." The number of flexibility units available within each zone is determined by subtracting the number of dwelling units permitted within a flexibility zone by a local government's plan from the number of dwelling units permitted within the same flexibility zone by the County's Plan. Local governments are allowed to, within certain specified limits, rearrange land uses, including residential densities, within flexibility zones located within the local government's jurisdiction. The City is divided into two flexibility zones: Flex Zones Nos. 93 and 94. The FLUE of the City's Plan contains a table on pages 2-28 and 2-32 which sets out the number of flexibility units available in Flex Zone Nos. 93 and 94. The City's Plan allows the use of flexibility units anywhere within either Flex Zone of the City, including areas within the coastal high hazard area. A "Summary" included with the table provides, in pertinent part, that flexibility units may be "assigned to any particular site within the Flexibility Zone to allow for increased residential densities above the amount permitted under the Hallandale Land Use Plan map. . . ." The flexibility units are available for transfer without the need to amend the City's Plan. At the time that the Challenged Amendment was adopted, there were a total of 2,429 flexibility units available within Flex Zone No. 93. The Subject Property. The Subject Property consists of approximately 5.75 acres of land. The parcel of the Subject Property located at 1935 Ocean Drive is vacant. The parcel of the Subject Property located at 1945 Ocean Drive is developed. The developed parcel has an 80-unit motel on it. The motel located on the Subject Property was constructed in 1956. The buildings on the Subject Property are in substantial decay. The Subject Property is surrounded on three sides by property used for high density multi-family residences. The property to the north, Chelsea Hall, has been developed at a density of 54 units per acre. The properties to the east, Malage Towers, Biltmore Mansions, Taromina Apartments, and Hemispheres Ocean, have been developed at densities of 75, 19, 45, and 117 units per acre, respectively. The property to the south, Hemispheres, has been developed at a density of 85 units per acre. Densities in the area surrounding the Subject Property averaged approximately 86 units per acre. The Subject Property lies totally within the City's Urban Infill Area. The Subject Property is, therefore, also considered to be located totally within a Transportation Concurrency Exception Area. The Subject Property also lies within the coastal high-hazard area. The Subject Property is located within the City's Flex Zone No. 93. The Subject Amendment. On June 1, 1999, the City passed Ordinance No. 1999-12, amending the City's Plan by changing the FLUM land use designation for the Subject Property (hereinafter referred to as the "Challenged Amendment"). The Challenged Amendment changed the land use designation of the Subject property from residential High Density to residential High Density-2. The Challenged Amendment was adopted pursuant to the procedures allowed for "small scale" development amendments set forth in Section 163.3187 of the Act. Pursuant to this provision, the City decided that it would elect to have the Department review the Challenged Amendment. The change in land use designation on the Subject Property increased the allowable development of the Subject Property from a maximum of 25 units per acre to a maximum of 50 units per acre through the use of "flexibility units." The Challenged Amendment assigns 143 flexibility units out of the 2,429 available within Flex Zone No. 93 to the Subject Property and specifically provides " . . . the applicant agrees the assignment of 143 Flexibility Units to the parcel is a maximum and agrees the use of density above 25 units per acre will be determined by the City Commission upon review of a future major development plan." Mr. Biss' Challenge. Mr. Biss filed a Petition for Hearing to Challenge Compliance of a Small Scale Development Amendment with the Division of Administrative Hearings. Mr. Biss alleged generally that the Challenged Amendment is not "in compliance" for the following reasons: The Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act because the density of the Subject Property is more than ten units per acre and the Subject Property is not vacant; The Challenged Amendment is contrary to the State Comprehensive Plan. Chapter 187, Florida Statutes (1997). In particular, Mr. Biss alleged that the Challenged Amendment is contrary to Section 187.201(7)(b)22., Florida Statutes (1997), which requires the following: 22. Require local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents. The Challenged Amendment, by increasing densities in the coastal high-hazard area, increases the dangers from hurricanes contrary to Coastal Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan; The Challenged Amendment degrades the level of service standard of Hallandale Beach Boulevard contrary to FLUE Element Policy 1.12.4 and Section 9.3.2.1 of the Transportation Element of the City's Plan; There is insufficient data and analysis to demonstrate that the possible additional 143 residential units in the coastal high-hazard zone will not negatively impact the City's ability to evacuate the coastal high-hazard area; and The Challenged Amendment fails to consider the impacts on public schools contrary to the County's Plan. Qualification as a Small Scale Amendment. The Subject Property is located within the Urban Infill Area and a Transportation Concurrency Exception Area. Therefore, the Challenged Amendment may involve a residential use with a density of more than ten units per acre and still qualify as a small scale amendment. Mr. Biss failed to prove that the Challenged Amendment is not a small scale amendment pursuant to Section 163.3187(1)(c) of the Act. I. The State Comprehensive Plan. The City has prepared plans for evacuation of coastal residents as required by Section 187.201(7)(b)22., Florida Statutes (1997). Mr. Biss failed to prove that the requirements of Section 187.201(7)(b)22., Florida Statutes (1997), concerning the preparation of evacuation plans, apply to the Challenged Amendment. Density Increase in the High-Hazard Area; Coastal Management Element Goals 2 and 3, and Objective 2.2 of the City's Plan, and FLUE Policies 1.9.5 and 2.7.2 of the City's Plan. The Coastal Element of the City's Plan includes Goals 2 and 3, and Objective 2.2 pertaining to the City's high hazard area: GOAL 2: The City of Hallandale Shall Protect Human Health and Safety in the Coastal Area. . . . . OBJECTIVE 2.2: The City shall direct populations away from High-Hazard Areas in concert with the established hazard mitigation strategies developed by Broward County . . . . GOAL 3: The City Shall Discourage or Limit Development in Areas Subject to Destruction by Natural Disasters. The evidence failed to prove that the Challenged Amendment is inconsistent with these Goals or the Objective of the Coastal Management Element of the City's Plan. These Goals and the Objective were intended to provide broad planning guidelines and were not intended to apply specifically to a small scale amendment such as the Challenged Amendment. The Goals and the Objective of the Coastal Management Element relied upon by Mr. Biss must be evaluated with other provisions of the City's Plan. In particular, those provisions which allow the transfer of residential dwelling unit densities through flexibility units anywhere within the City, including the coastal high-hazard area. Because of these existing provisions the Challenged Amendment does not increase densities within the coastal high-hazard area or increase the danger from hurricanes anymore than already allowed by the City's Plan. Although not required by Coastal Management Element Goals 2 or 3, or Objective 2.2 of the City's Plan, even a consideration of the impact of the Challenged Amendment on actual hurricane evacuation times does not support Ms. Biss' challenge. The City's projected hurricane evacuation time for roads which would be impacted by increased density on the Subject Property are less than seven hours. The addition of up to 143 dwelling units will not significantly impact that evacuation time. Ongoing road improvements will even mitigate any such impacts. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Coastal Management Element of the City's Plan. FLUE Policy 1.9.5 of the City's Plan provides: POLICY 1.9.5: The City shall direct populations away from High-Hazard Areas, to the extent legally feasible, through the establishment of redevelopment regulations for High-Hazard Areas by 1998. The City has complied with this Policy by adopting redevelopment regulations. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with this Policy. FLUE Policy 1.9.3 of the City's Plan provides the following: POLICY 1.9.3: Encourage development and redevelopment in the coastal high hazard area to include hazard mitigation measures for beach and beachfront property protection to minimize loss of life and property against beach erosion. This Policy has no relevance to the Challenged Amendment. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with the Policy. The City's Plan does not include a Policy 2.7.2. The FLUE of the City's Plan includes a "Section 2.7.2" which describes the following "Natural Conditions Affecting Development" as part of the description of the dangers from flooding in the City: The danger from hurricanes can be somewhat controlled by limiting future allowable densities in high hazard areas. This subject is more fully addressed in the Coastal Management and Conservation Elements of the Comprehensive Plan. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with Section 2.7.2 of the City's Plan. Impacts on Traffic. FLUE Element 1.12.4 of the City's Plan establishes a level of service standard "D" for City roads. Section 9.3.2.1 of the Transportation Element of the City's Plan recognizes existing traffic circulation problems within the City, including roads impacted by the Challenged Amendment. This Section is not, however, a goal, objective, or policy of the City's Plan. Mr. Biss has argued that the Challenged Amendment degrades the level of service standard for the City on roads which may be impacted by the Challenged Amendment and further exacerbates the traffic circulation problems recognized by Section 9.3.2.1 of the Transportation Element of the City's Plan. The evidence failed to support this argument. While the addition of 143 dwelling units will naturally increase traffic in the area surrounding the Subject Property, Mr. Biss failed to prove the extent of that impact. More importantly, Mr. Biss failed to prove that the impact will be so great as to be considered inconsistent with the City's Plan. Data and Analysis. Mr. Biss has argued that the City did not have sufficient data and analysis to demonstrate that an additional 143 residential units will not negatively impact the City's ability to evacuate the coastal high hazard area. Mr. Biss failed to prove this allegation. Hurricane evacuation times for roads which may be impacted by the Challenged Amendment are well below acceptable hurricane evacuation time standards. An additional 143 dwelling units will not significantly impact those evacuation times. Data relied upon by the City indicated that, after ongoing road improvements, hurricane evacuation times, even with the Challenged Amendment, will decrease. Mr. Biss failed to prove that the City did not have adequate data and analysis to support the Challenged Amendment. Impacts on Public Schools. Mr. Biss failed to prove that the Challenged Amendment did not consider the impacts on public schools contrary to the County's Plan. The Challenged Amendment is not required to be consistent with County's Plan until it is reviewed for "recertification" by the Broward County Planning Council. At the time of recertification, the Challenged Amendment will likely be considered exempt from school concurrency pursuant to Policy 13.01.10 of the County's Plan. Mr. Biss failed to prove that the Challenged Amendment is inconsistent with any provision of the City's Plan dealing with public schools. Mr. Biss also failed to prove that the impact on public schools by the Challenged Amendment will be more than the addition of nine students. Finally, the evidence failed to prove that the Challenged Amendment is inconsistent with Coastal Management Element Policy 3.1.1 of the City's Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the Challenged Amendment to be a small scale amendment and that it is "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ORDERED this 19th day of November, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 19th day of November, 1999. COPIES FURNISHED: Kent Harrison Robbins, Esquire 1224 Washington Avenue Miami Beach, Florida 33139 Clifford R. Steele, Esquire John C. Hanson, II, Esquire Steele & Hanson, P.A. Museum Tower, Penthouse 150 West Flagler Street Miami, Florida 33130 Barbara Hall, Esquire Greenberg, Taurig, et al 515 East Las Olas Boulevard Suite 1500 Fort Lauderdale, Florida 33301 Richard Kane, City Attorney City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Karen A. Brodeen, Assistant General Counsel Office of the General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Arnold Lanner, Mayor City of Hallandale City Hall 400 South Federal Highway Hallandale, Florida 33009 Steven M. Seibert, Secretary Department of Community Affairs Suite 100 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs Suite 315 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
