Conclusions On July 27, 2011, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File And Relinquishing Jurisdiction to the Department.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-168 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below in the manner described, on this é day of August 2011. Paula Ford, Agency Clerk a DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail: K. Richard Blount, RN, AICP David C. Schwartz, Esq. Post Office Box 14642 Alachua County Attorney’s Office Gainesville, FL 32604 Post Office Box 2877 Gainesville, FL 32602-2877 By Filing with DOAH: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550
The Issue The issue is whether the Petition to Establish the Coastal Lake Community Development District should be granted pursuant to Chapter 190, Florida Statutes, and Florida Administrative Code Chapter 42-1. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue Whether the Alachua County Comprehensive Plan Amendment adopted by Ordinance No. 20-05 on February 5, 2020 (the “Plan Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1
Findings Of Fact The Parties and Standing Petitioner is a Delaware limited-liability company authorized to do business in the State of Florida. Petitioner owns and operates the Legacy at Fort Clarke, a 444-unit apartment complex located on Fort Clarke Boulevard, approximately 100 feet from the property that is the subject of the instant plan amendment challenge (the “subject property”). Petitioner, through its representatives, submitted oral and written comments to Alachua County (“the County”) during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. The County is a political subdivision of the State of Florida, with the duty to adopt and amend its comprehensive plan in compliance with the Act. See § 163.3167(1), Fla. Stat. Intervenor, Fickling, is a Georgia corporation authorized to do business in the State of Florida. Intervenor, NGI, is a Georgia limited-liability company, and is the contract purchaser of the subject property, currently owned by The Gainesville Church, Inc. (“the Church”). James R. Borders is NGI’s president. NGI registered with the Secretary of State to conduct business in Florida on July 22, 2020. NGI is a wholly-owned subsidiary of NGI Investments, LLC, a Georgia limited-liability company which has been registered to conduct business in Florida since 2013. On June 6, 2019, NGI Investments, LLC, and Fickling submitted a letter of intent to purchase the subject property from the Church. In the letter, NGI Investments, LLC, is identified alternatively as “Novare Group.” On July 19, 2019, NGI entered into a purchase and sale agreement with the Church to purchase the subject property, which is signed by Mr. Borders, as Manager of NGI. In the agreement, Fickling is identified as an entity authorized to accept notices on NGI’s behalf related to the agreement. Fickling appears to operate as broker/developer of the subject property. Todd Anderson is the senior vice-president of development for Novare Group (“Novare”), a residential multifamily development group founded in 1992. Mr. Anderson testified that NGI Investments and NGI are known in the development industry as Novare. Since 1992, Novare has developed over 50 multifamily projects—16,000 multifamily residential units—primarily in the southeast United States. Novare began partnering with Fickling in 2017 on a joint venture program called “Lullwater.” The joint venture has developed Lullwater at Blair Stone, an apartment complex in Tallahassee, Florida; Lullwater at Big Ridge, an apartment complex in Hixson, Tennessee; and Lullwater at Jennings Mill, an apartment complex in Athens, Georgia. Lullwater is an ongoing joint venture program with two pending development projects in Florida—the subject property and a site under contract in Ft. Myers. NGI/Novare has a verbal general partnership agreement with Fickling, and is not a registered limited partnership. Shortly prior to closing on each property to develop a project in the Lullwater program, NGI/Novare executes a written joint venture agreement with Fickling. Up to that point, the entities share expenses related to pre-development costs, including pursuit of comprehensive plan amendments and rezonings necessary to secure project approval. Losses on any project are also shared equally. As of the date of the final hearing, NGI/Novare and Fickling had expended almost $500,000 in pre-acquisition costs to develop the subject property, including hiring an engineer, Jay Brown, to prepare the Plan Amendment application, and an attorney and experts to represent the Intervenors at the public hearings, as well as in this proceeding. The exact contribution from each of the partners will be “trued up” at a later date. If the instant plan amendment is not approved, the Intervenors stand to lose the investment of approximately $500,000, as well as the time and effort expended on the project thus far, as well as the opportunity costs associated with having devoted time and resources to this project as opposed to others in the Lullwater program. At the local planning agency public hearing on November 20, 2019, Jay Brown made a presentation regarding the Plan Amendment. He stated, “I’m here to represent a joint venture of development group that’s made up of two companies, the Fickling Company and the Novare Group.” When Mr. Brown made his presentation on the underlying rezoning application at the same meeting, he stated that he was “representing the Fickling Company and Novare Group[.]” Again at the December 10, 2019 County Commission public hearing, Mr. Brown indicated he was representing the developers Fickling and Novare. At the February 25, 2020, adoption hearing, Mr. Brown presented on behalf of the developers. Although he did not identify them by name, he referred to the presentation he had made before that same body on December 10, 2019. The Subject Property and Surrounding Uses The subject property is 25.64 undeveloped acres located on Fort Clarke Boulevard in Gainesville, Florida. It is located in the Alachua County Floridan Aquifer High Recharge Area, which, according to the Comprehensive Plan, is an “[a]rea[] where stream-to-sink surface water basins occur and [an] area[] where the Floridan Aquifer is vulnerable or highly vulnerable.” The subject property is located in an area where the aquifer is highly vulnerable. The subject property is designated “institutional” on the County’s Future Land Use Map (“FLUM”). Under the institutional FLUM designation, the subject property could be developed for a public or private educational use, daycare center, nursery school, community service (e.g., fire and emergency services, law enforcement, or health facilities), public utility or other infrastructure, religious facility, or cemetery. The uses surrounding the subject property are a mix of residential and institutional. Immediately to the west and south is the Eagle Point subdivision, with a FLUM designation of low-medium density residential, which allows residential density at up to four dwelling units per acre (“4 du/acre”). The subdivision is built out at 2 du/acre. Two apartment communities are located across Fort Clark Boulevard from the subject property—Legacy at Fort Clarke (owned by Petitioner) and The Paddock Club Gainesville—both of which are designated medium density on the FLUM, allowing residential development at a density of up to 8 du/acre. Institutional uses border the property on the north and immediate east. A County fire station is located north of the subject property, and a senior living facility is located directly across Fort Clarke Boulevard from the subject property in a “corner” adjoining both Legacy at Fort Clarke and Paddock Club apartments. The subject property is located in the Urban Cluster, which is, according to the Comprehensive Plan, “[a]n area designated on the [FLUM] for urban development, which includes residential densities ranging from one unit per acre to 24 units per acre or greater, non-residential development, and is generally served by urban services.” The Plan Amendment The Plan Amendment changes the FLUM designation of the subject property from institutional to medium-high density residential, allowing development at up to 14 du/acre. The Comprehensive Plan designates Fort Clarke Boulevard as an “Express Transit Corridor” and a “Rapid Transit Corridor.” All new multifamily development along the corridors must be developed as a Traditional Neighborhood Development (“TND”), a compact, mixed-use development which allows for internal capture of vehicle trips and encourages walking and bicycling as the primary means of mobility. TNDs are required to develop with a village center and gridded street network emanating outward from the village center, and are entitled to a development density bonus. Due to its location along the corridors, and the allowable density bonus, the subject property under the Plan Amendment can be developed at a maximum residential density of 16 du/acre.2 Based on the acreage of the subject property, the Plan Amendment authorizes a maximum of 410 dwelling units. The Comprehensive Plan requires TNDs to include non-residential uses at intensities specified in Future Land Use Element (“FLUE”) Policy 1.6.5.2. Based on the acreage of the subject property, the Plan Amendment authorizes a maximum of 267,500 square feet (“s.f.”) of non- residential uses. 2 Policy 1.6.5.1 provides that a TND contiguous with a Rapid Transit or Express Transit corridor is entitled to an additional 8 du/acre in the village center and an additional 6 du/acre in the transit-supportive area outside the village center. Based on the policy, it appears the Plan Amendment authorizes the subject property to be developed at a density greater than 16 du/acre. However, the parties stipulated that the maximum development density of the subject property is 16 du/acre and that stipulation is accepted by the undersigned. Challenges to the Plan Amendment Petitioner alleges (as stipulated by the parties) that the Plan Amendment: (1) creates internal inconsistencies with the existing Comprehensive Plan, in contravention of section 163.3177(2); (2) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f); (3) is not “based upon surveys, studies, and data regarding the area, as applicable, including … the character of undeveloped land,” as required by section 163.3177(6)(a)2., and not based on an “analysis of the suitability of the plan amendment for its proposed use considering the character of the undeveloped land, soils, topography, natural resources, and historic resources on site,” as required by section 163.3177(6)(a)8.; and (4) is inconsistent with the RPC Plan, in violation of section 163.3184(1)(b). Petitioners further contend Respondent violated public participation requirements for adoption of the Plan Amendment. The challenges generally raise concerns with the impact of the Plan Amendment on area schools, transportation facilities, the Floridan Aquifer, and compatibility with surrounding uses. School Capacity Issues Petitioner alleges the County failed to properly analyze the impact of the Plan Amendment on the County’s school system, and maintains that the Plan Amendment will “overburden already overcrowded schools that serve neighborhood residents.” Suzanne Wynn, director of community planning for the School Board of Alachua County (“SBAC”), performed a school capacity analysis of the Plan Amendment. Ms. Wynn testified that the purpose of a school capacity analysis is to put the school board on notice of an estimated number of students anticipated to be generated from a plan amendment which increases residential density, so the school board can factor that in for future facility planning. In calculating the student impact of the Plan Amendment, Ms. Wynn made a couple of errors, which are reflected in her initial Report: First, she utilized 256 as the total number of dwelling units authorized by the Plan Amendment, which does not account for the density bonus. Second, she applied a student generation multiplier of .08 students per multifamily unit, rather than the correct multiplier of .09. Prior to the County’s adoption of the Plan Amendment, Ms. Wynn’s analysis was updated with the correct number of dwelling units. Utilizing 410 as the maximum number of dwelling units authorized by the Plan Amendment, Ms. Wynn confirmed that the estimated number of students generated from the Plan Amendment is a total of 57, allocated as follows: 33 elementary, 12 middle, and 12 high. At final hearing, Ms. Wynn presented a corrected Report. Utilizing the correct student generation multiplier, the Plan Amendment is projected to generate a total of 63 students, allocated as follows: 37 elementary, 13 middle, and 13 high. In her initial Report, Ms. Wynn concluded that “[s]tudent generation by the [Plan Amendment] at the elementary, middle, and high school levels can be reasonably accommodated during the five, ten, and twenty-year planning period through planned capacity enhancement and management practices.” Ms. Wynn testified that the updated student generation numbers contained in the corrected Report did not cause her to change her conclusion. The number of students generated by the maximum density allowed under the Plan Amendment can be accommodated during the school board’s applicable planning periods through capacity enhancements and management practices. The SBAC 2019 Annual Report on School Concurrency (“2019 Concurrency Report”) notes that “significant growth [in middle school students] is anticipated in the next five years, followed by slower growth rates during the latter part of the 10-year planning period.” The subject property is located in the Fort Clark School Concurrency Service Area (“SCSA”), in which the middle school is operating above capacity and enrollment “is expected to exceed capacity during the ten-year planning period.” The 2019 Concurrency Report notes that the deficiencies in the Fort Clarke SCSA are addressed in the SBAC 2019-2030 Strategic Plan. In other words, the SBAC has already anticipated increased enrollment at the middle school serving the subject property, and has plans to reduce overcrowding and accommodate new students through its strategic planning process. Petitioner argued that the specific plans to reduce overcrowding and accommodate new growth in the Fort Clark SCSA were not introduced in evidence and Ms. Wynn’s testimony was speculative. However, Petitioner introduced no evidence to refute Ms. Wynn’s testimony and her conclusion that the SBAC can accommodate the new middle school students estimated to be generated by the Plan Amendment. Petitioner next argues that the Plan Amendment is internally inconsistent with Public School Facilities Element (“PSFE”) Policy 1.1.3, which governs the geographic basis for school capacity planning, and Policy 1.1.5, which describes the SBAC report to the County. In describing the analysis of Plan Amendments to be performed by the SBAC, Policy 1.1.3 specifically provides, “[f]or purposes of this planning assessment, existing or planned capacity in adjacent SCSAs shall be not be considered.” Petitioner alleges Ms. Wynn relied upon existing or planned capacity outside the Fort Clark SCSA in conducting her analysis, in violation of Policy 1.1.3. It is important to note that Policy 1.1.3 requires the SBAC to assess the Plan Amendment “in terms of its impact (1) on the school system as a whole and (2) on the applicable SCSA(s).” Ms. Wynn’s analysis states, in pertinent part, as follows: The [Plan Amendment] is situated within the Fort Clark [SCSA] … [which] contains one middle school with a capacity of 900 seats. The current enrollment is 1,042 students representing a 116% utilization compared to an adopted LOS standard of 100%. The [Plan Amendment] petition is projected to generate 13 middle school students at buildout. Districtwide middle school capacity is well within the 100% LOS throughout the 10 year planning period. The School District is evaluating options for relieving capacity deficiencies at Fort Clark Middle. Ms. Wynn’s analysis does not ignore the impact of the Plan Amendment on the applicable SCSA. Implicit in Ms. Wynn’s analysis is the conclusion that the Fort Clark SCSA does not have adequate capacity to accommodate the maximum number of students estimated to be generated by the Plan Amendment. Ms. Wynn’s analysis also assesses the impact of the Plan Amendment districtwide, as required by the Policy, concluding that there is adequate capacity within the applicable planning periods. Finally, Petitioner contends that Ms. Wynn’s analysis falls short of the Policy’s direction to “include its recommendations to remedy the capacity deficiency including estimated cost” if the SBAC “determines that capacity is insufficient to support the proposed land use decision.” Ms. Wynn’s report does not conclude that a capacity deficiency exists within the district to accommodate the new middle school students estimated to be generated by the Plan Amendment. If no deficiency is determined, no recommendation to remedy a deficiency is required. While the report indicates a deficiency in the Fort Clark SCSA, there is no requirement that the students be accommodated within that particular SCSA. Perhaps the SBAC plans include changing school zones to accommodate those students at a school other than Fort Clark Middle, where capacity does exist. Perhaps it plans to build a new middle school that will add capacity. Perhaps it plans to add portables at Fort Clark Middle. Whatever the plans are, Ms. Wynn’s conclusion that the projected number of students “can reasonably be accommodated during the five, ten, and twenty year planning period through planned capacity enhancement and management practices” was unrebutted.3 Transportation Issues Petitioner contends that the analysis of the transportation impact from the Plan Amendment is flawed because: (1) it was not based on the maximum buildout allowed by the Plan Amendment; and (2) failed to meet the requirements of Policy 1.1.6.11 of the Transportation Mobility Element (“TME”). Based on the maximum development potential of 410 multifamily dwelling units and 267,500 s.f. of non-residential development, the County determined the Plan Amendment will generate approximately 9,364 new daily vehicular trips to Fort Clark Boulevard. Petitioner asserts that this analysis is erroneous because the methodology employed by the developer allocated the 267,500 s.f. of non- residential development evenly between retail and office. Petitioner asserts that, because the County’s land development code allows the non-residential square footage to be developed at up to 75 percent retail, the project should have been analyzed based on a 75/25 retail-to-office split. Petitioner argues that failure to analyze the traffic generation in that way undercounts the vehicular trips to be generated by the Plan Amendment at its maximum development potential. Petitioner introduced the testimony of John P. Kim, who was accepted as an expert in transportation planning and engineering. Mr. Kim offered no testimony regarding the use of the 75/25 retail-to-office split versus the 3 Petitioner complained that Ms. Wynn’s testimony lacked specificity and found fault with Respondent for not introducing the SBAC Strategic Plan into evidence to support its position that the anticipated students can be accommodated with planned capacity improvements. However, Petitioner, not Respondent, carries the burden of proof in this case to demonstrate that the “planned capacity enhancement and management practices” are insufficient to accommodate those students. 50/50 retail-to-office split for non-residential uses allowed under the Plan Amendment. Petitioner introduced no evidence that the methodology utilizing the 50/50 retail-to-office split was not a professionally-acceptable methodology for calculating trip generation based on the maximum development potential of the subject property under the Plan Amendment. Next, Petitioner argues that the Plan Amendment is not supported by a roadway-capacity analysis for any of the major roadways that will serve the subject property. Petitioner maintains that the applicants for the Plan Amendment were required to submit a study demonstrating that adopted Level of Service (“LOS”) guidelines on those roadways can be achieved given the projected traffic generation from the Plan Amendment. To that end, Petitioner alleges the Plan Amendment is inconsistent with TME Policy 1.1.6.11, which provides as follows: Large scale comprehensive plan amendments to the [FLUE] or Map that result in a greater transportation impact shall require the entity requesting the amendment to demonstrate that the adopted LOS guidelines for the affected Urban Transportation Mobility District are achieved and that additional required infrastructure is fully funded. Applicants may only include projects that are fully funded and scheduled to commence construction within one (1) year of approval of the Comprehensive Plan Amendment. Petitioner’s expert, Mr. Kim, expressed his opinion that the policy requires the applicant to demonstrate that the LOS guidelines can be achieved under the Plan Amendment, and that the additional infrastructure required to achieve the guidelines is “fully funded and scheduled to commence construction within one (1) year of approval of the Plan Amendment.” Mr. Kim prepared an analysis to demonstrate that the Plan Amendment will prevent achievement of the applicable LOS guidelines, as the basis for his opinion that the Plan Amendment is not supported by adequate data and analysis, and inconsistent with TME Policy 1.1.6.11. Mr. Kim analyzed the project’s impact on the specific segment of Fort Clark Boulevard immediately adjacent to the subject property, utilizing roadway capacity data from the 2018 Multimodal Level of Service (“MMLOS”) Report published by the Metropolitan Planning Organization for the Gainesville Urbanized Area. According to the report, that segment of Fort Clark Boulevard has an adopted LOS of “D” and a maximum service volume of 13,985 vehicles per day. The report indicates the particular segment has available capacity for only 1,319 daily vehicles. Mr. Kim concluded that the capacity for 1,319 daily vehicles will easily be exceeded by the 9,364 trips projected to be generated from development allowed under the Plan Amendment. Mr. Kim also looked at the capacity of the two roadways at which Fort Clark Boulevard terminates—Northwest 23rd Avenue to the north, and Newberry Road to the south—and found that they are both operating at above their capacity, according to the report. In Mr. Kim’s opinion, the traffic projected to be generated by development anticipated under the Plan Amendment will further deteriorate the LOS on those roadways. The 2018 MMLOS Report shows the segment of Fort Clark Boulevard and Northwest 23rd Avenue, which were analyzed by Mr. Kim, as located within a Transportation Concurrency Exception Area (“TCEA”). The Florida Legislature repealed the statewide requirement for traffic concurrency in 2011. See ch. 2011-139, § 15, Laws of Fla. In 2019, the County rescinded transportation concurrency as a part of its Evaluation and Appraisal of its comprehensive plan. See § 163.3191(1), Fla. Stat. (“At least once every 7 years, each local government shall evaluate its comprehensive plan to determine if plan amendments are necessary to reflect changes in state requirements in this part since the last update of the comprehensive plan[.]”). The County also changed its areawide LOS standards to “guidelines.” These changes are reflected in the County’s 2040 Comprehensive Plan, adopted December 13, 2019, and against which this Plan Amendment is compared for internal consistency. Mr. Kim has never conducted transportation analysis in Alachua County prior to the case. Likewise, Mr. Kim has not performed transportation analyses in any local government which has repealed transportation concurrency. Mr. Kim testified that he understood the County’s transportation mobility system utilizes an area-wide capacity analysis, as opposed to individual roadway capacity. Mr. Kim’s analysis was wholly irrelevant to the County’s area-wide capacity analysis. Under the County’s system, the County is divided into three transportation mobility districts: Northwest, Southwest, and East. The Plan Amendment is located in the Northwest District. The County’s expert in land use and transportation, Chris Dawson, is the County’s transportation planning manager. Mr. Dawson analyzed the Plan Amendment for transportation impacts. Mr. Dawson determined that sufficient capacity exists in the Northwest Mobility District for the additional 9,364 new daily trips generated from the Plan Amendment under the maximum development potential. For his analysis, Mr. Dawson utilized the data and analysis compiled for the County’s 2019 Evaluation and Appraisal of the Comprehensive Plan. That data showed a maximum service volume of 408,655 trips in the Northwest District, and an average annual daily trip volume of 265,237. In other words, available capacity exists in the district for an additional 143,418 trips, well below the projected generation of 9,364 trips. Mr. Dawson opined that the Plan Amendment will not prevent the Northwest District LOS guidelines from being achieved. Petitioner criticized Mr. Dawson’s analysis as based on incorrect data because the transportation mobility district level of service analysis contained in the Evaluation and Appraisal Report (“EAR”) was based on the County’s 2017 data. Petitioner opined that Mr. Dawson should have updated those trip counts to account for development approved since 2017 in the Northwest District. Ms. Brighton conducted the traffic generation analysis for Intervenors. She testified that, given the available land in the Northwest District, it is unrealistic to assume that the growth in the last three years would have consumed all the roadway capacity in the District. In fact, she testified that, even if the County collected new raw data of actual trips, the capacity may be even higher than it was in 2017, because growth is not realized in every year; some years are even marked by negative growth. Petitioner did not introduce any readily-available data which was more recent than that relied upon in the County’s 2019 EAR update. Petitioner’s overarching concern is that Fort Clark Boulevard is a two- lane road, operating at either near or over capacity, unable to handle the new trips anticipated to be generated by development allowed under the Plan Amendment; that the County has no plans to widen the roadway to improve capacity; and that, even if the County is relying on total capacity in the District, rather than a summation of the capacity of each individual roadway in the District, it failed to update the 2017 data to determine actual capacity at the time the Plan Amendment was adopted. The County’s multi-modal approach to transportation planning anticipates congestion along certain corridors, and encourages compact, higher-density development in the Urban Cluster to support transit use. See TME Policy 1.1.3 (“The intent of the [mobility districts] are … [t]o recognize that certain roadway corridors will be congested and that congestion will be addressed by means other than solely adding capacity for motor vehicles and maintaining roadway level of service on those corridors.”). Congestion would actually serve the County’s goal of increasing demand for transit options and bicycle and pedestrian use in lieu of creating road capacity by traditional means, such as road-widening, adding lanes, and creating or extending turn lanes. See TME Policy 1.1.5 (“Over the time horizon of the Comprehensive Plan, as the densities and intensities within the Urban Cluster necessary to support transit are realized, the County shall transition from providing new capital infrastructure for a multi-modal transportation network to providing frequent transit service along rapid transit corridors.”) In the Comprehensive Plan, Capital Improvements Element (“CIE”), the County has planned two dedicated transit lanes on Fort Clark Boulevard, between Newberry Road and Northwest 23rd Avenue, the segment immediately adjacent to the subject property. This improvement is planned to implement the County’s designation of Fort Clark Boulevard as a rapid transit corridor. Development projects in the Urban Cluster are charged a multi-modal transportation mobility fee (“fee”) in satisfaction of their obligation to mitigate transportation impacts within the applicable district. Intervenors are expected to pay a fee of approximately $1 million to the County in mitigation. Petitioner elicited testimony from the transportation experts that the County is not required to spend the fee on Fort Clark Boulevard. It is true that the County can spend the fee on improvements anywhere within the District; however, given the structure of the Comprehensive Plan, it is most likely the funds will be spent to further planned improvements adopted in the CIE. See TME Policy 1.1.6 (“The Multi-Modal Infrastructure Projects in the [CIE] are identified to meet the adopted level of service guidelines and proactively address projected transportation needs from new development and redevelopment within the Urban Cluster by 2040”). Compatibility Petitioner alleges the maximum density and intensity of development allowed under the Plan Amendment is incompatible with surrounding uses, especially the low-density residential neighborhood to the west and south of the subject property. Petitioner introduced the testimony of Cecelia Ward, who was accepted as an expert in land use and comprehensive planning. Ms. Ward opined that residential density of up to 16 du/acre is incompatible with low- density residential and community institutional land uses in the area. Further, she opined that the scale and intensity of the non-residential uses allowed by the TND were inconsistent with the character of the existing neighborhood. The Comprehensive Plan does not define “compatibility.” The Act defines “compatibility” as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. Both the Intervenors’ land use planning expert, David Depew, and the County’s principal planner for development services, Jeffrey Hays, agreed that merely locating high-density residential development adjacent to low- density residential development is an insufficient basis on which to determine an unduly negative influence over time. All five higher-density TNDs in the County are located adjacent to existing lower-density residential development. No evidence was introduced to suggest that the proximity of TNDs to those neighborhoods has destabilized the low-density residential neighborhoods. Moreover, the Comprehensive Plan specifically addresses compatibility between TNDs and single-family developments. FLUE Policy 1.2.1 provides that “appropriately scaled and designed non-residential land uses are compatible with single family or multi-family residential development” in mixed-use TNDs. Despite Ms. Ward’s opinion that the Plan Amendment would allow non-residential development out of scale with surrounding neighborhoods, she admitted that the specific site-design policies for TNDs would apply to the Plan Amendment. Further, the Comprehensive Plan policies governing neighborhood design and site standards will also apply to the development allowed under the Plan Amendment. Those policies provide that “[u]rban development shall incorporate design techniques to promote integration with adjacent neighborhoods.” FLUE Policy 1.4.1.4. Design techniques include “transitional intensity (types of uses), stepped density, buffering, boundaries, landscaping and natural open space.” FLUE Policy 1.4.1.4(a). The Plan provides that “[s]pecial attention shall be provided to the design of development and neighborhood edges, which shall be designed to be integrated into the surrounding community.” FLUE Policy 1.4.1.4(c). Ms. Ward opined that the existing institutional designation provides for greater compatibility between development proposed on the subject property and the adjoining neighborhood. FLUE Policy 5.2.1 lists the threshold criteria which must be met to establish an institutional use. Ms. Ward specifically identified the following two criteria: (1) “Compatibility of the scale and intensity of the use in relationship to surrounding uses, taking into account impacts such as noise, lighting, visual effect, traffic generation, [and] odors”; and (2) “Preservation and strengthening of community and neighborhood character through design.” Ms. Ward expressed the opinion that removing the subject property from the institutional designation removes these protections for the adjacent low-density neighborhood. However, the TND-specific design policies likewise require establishment of compatibility through project design, scaling, and integration with the adjacent neighborhoods. Just because the TND policies do not specifically cite “noise, lighting, [and] visual effect,” does not mean the County will not consider those development aspects in approving the specific site design for the subject property. The nature of institutional uses makes it more likely that off-site impacts will be incompatible with residential, hence the need for enhanced analysis of those specific types of impacts. For example, emergency fire and law enforcement uses are more likely to generate offsite noise impacts than an adjoining residential or mixed use; and public utility uses are more likely to generate offsite lighting impacts, due to security lighting needs. The Plan Amendment does not jeopardize the stability of the adjacent single-family neighborhood by “removing protections” provided under the institutional land use category, as suggested by Ms. Ward. Data on Suitability Petitioner alleges the Plan Amendment is not supported by relevant data and analysis concerning the suitability of the subject property for the density and intensity of development allowed. County staff performed a suitability analysis related to the Plan Amendment application as part of its review. The suitability analysis included consideration of significant habitat areas, location in flood zones, impact on aquifer recharge, appropriateness for the level of density, and the availability of water and sewer, emergency services, solid waste, and other public utilities to serve the allowable development. At hearing, Petitioner focused on the location of the subject property in the high aquifer recharge area, alleging the County did not analyze data to determine if the TND development was suitable for this site. Mr. Hays testified that the staff review included consideration of the location of the subject property within that sensitive area. Mr. Hays explained that the County has adopted special storm-water treatment criteria for development within the high aquifer recharge area. In formulating her opinion that the site is not suitable for the density and intensity of development allowed under the Plan Amendment, due to its location in the high aquifer recharge area, Ms. Ward did not consider the County’s development regulations for karst-sensitive lands that comprise much of western Alachua County. Further, the impact on the aquifer as a regional resource was evaluated by the North Central Florida Regional Planning Council (“RPC”) during its review of the Plan Amendment. The RPC found that “significant adverse impacts [to the Floridan Aquifer] are not anticipated as the County Comprehensive Plan contains goals and policies to mitigate impacts to the [aquifer].” Petitioner did not prove the Plan Amendment is not supported by data and analysis regarding the suitability of the subject property for the development allowed thereunder. Consideration of Alternatives Petitioner alleges the Plan Amendment is inconsistent with FLUE Policy 7.1.24, which provides, as follows: Prior to amending this Element, every consideration shall first be given to alternatives to detailed map changes. Such alternatives might include clarifying text amendments and additional policy statements. Ultimately, Petitioner’s argument is that the subject property is more appropriate for low-density or medium-density, rather than the medium-high density category applicable under the Plan Amendment. Petitioner sought to prove that the County did not consider a lower-density on the subject property as an alternative. However, the policy requires the County to consider alternatives to detailed map changes; not alternative types of map changes. The alternatives contemplated by the policy are “clarifying text amendments” and “additional policy statements.” Ms. Ward suggested three alternatives that could have, and perhaps should have, been considered by the County: (1) a change to low-density or medium-density category; (2) a text amendment to allow TNDs within institutional parcels along the Fort Clark Boulevard (as an express transit corridor); and (3) additional policy statements that would allow residential use while providing “compatibility provisions” to ensure “protection in terms of compatibility and intensity and density.” Ms. Ward’s first suggestion is a different type of map amendment, which, as addressed above, is not the type of alternative contemplated by the policy. Ms. Ward’s second suggestion is hardly a “clarifying” text amendment. It takes the form of an overlay amendment authorizing a new use (TNDs) on a limited number of properties (institutional) in a specified location (along Fort Clark Boulevard). Further, this suggestion does not address the heart of the issue—what density of residential development would be allowed on the subject property. TNDs only provide for density bonuses; the base density is established by the underlying land use category, which, in this case, is institutional, and which provides for no residential density. Ms. Ward’s third suggestion was not fully fleshed-out at the final hearing. It appears she was suggesting an amendment to allow residential uses in the institutional land use category, which would include specific provisions to protect those residential uses from the inevitable incompatibility with existing institutional uses already developed on those sites. At any rate, the suggestion is again, more than a mere “clarifying text amendment.” Mr. Hays testified that the only alternative text amendment he could envision that would accomplish the applicant’s goal of developing the property for residential, would be an amendment to allow residential development in the institutional category. Mr. Hays testified that such a change would have unintended, and potentially negative, consequences when applied to all the institutionally-designated properties in the County. Moreover, Mr. Hays testified that there is no alternative that he, as a professional planner, would recommend to the Board of County Commissioners. On this issue, Mr. Hays’ testimony is accepted as more persuasive than Ms. Ward’s. Other Alleged Internal Inconsistencies Petitioner alleges that adoption of the Plan Amendment creates internal inconsistencies in the Comprehensive Plan, specifically between the Plan Amendment and the FLUE Goal and Principles, which read as follows: Goal Encourage the Orderly, Harmonious, and Judicious Use of Land, Consistent with the Following Guiding Principles. Principle 1 Promote sustainable land development that provides for a balance of economic opportunity, social equity including environmental justice, and protection of the natural environment. Principle 2 Base new development upon the provision of necessary services and infrastructure, focus on urban development in a clearly defined area and strengthen the separation of rural and urban uses. Principle 3 Recognize residential neighborhoods as a collective asset for all residents of the county. Principle 4 Create and promote cohesive communities that provide for a full-range and mix of land uses. The Goal and Principles at issue are aspirational in that they do not specifically mandate any action that can be objectively or quantitatively measured for consistency. Rather, the Goal and Principles express a community vision. In short, they are not self-enforcing. The policies contained within the Comprehensive Plan establish the means by which the County intends to achieve its Goal, consistent with the Principles established in each element. It is to the policies that one must look to be informed about how the Comprehensive Plan will be applied to a particular property or situation. When determining internal consistency, it is necessary to consider the Comprehensive Plan as a whole and goals must not be taken out of context as Petitioner has done in this case. For example, Petitioner’s expert planner, Ms. Ward, objected to siting the density and intensity represented by the requirement of this Plan Amendment to build out as a TND because it would be in conflict with the FLUE Goal of “orderly and harmonious” development. Ms. Ward confined her analysis to the limited context of the FLUE Goal and Principles and did not consider the implementing FLUE general strategies or policies. Had she examined the policies, the County’s express intent to increase density within the Urban Cluster for myriad reasons would have been evident. Petitioner did not prove that the Plan Amendment renders the Comprehensive Plan internally inconsistent with the cited Goal and Principles. Public Participation Petitioner contends that the County failed to comply with public participation requirements of both the Act and the Comprehensive Plan in adopting the Plan Amendment. FLUE Policy 7.1.25 provides that “[a]ll amendments to the Comprehensive Plan shall meet the requirements of Chapter [sic] 163.3181, Florida Statutes for public participation in the comprehensive planning process.” The County requires the applicant for a large-scale plan amendment to hold a noticed neighborhood workshop prior to the public hearings on the plan amendment. Intervenors’ agent conducted the required neighborhood workshop on August 22, 2019, and Petitioner’s representative, Lisa Allgood, attended that workshop. During the County’s review of the Plan Amendment application, Petitioner submitted written comments, through its agent, Steven Tilbrook, to the County through email communications with County staff and commissioners. The County held three separate, properly-noticed, public hearings; one before the local planning agency, and two before the full County Commission. Petitioner participated in all three public hearings through its representative, Mr. Tilbrook. Nevertheless, Petitioner alleges that its rights were violated because the applicant was given more time to make its presentation at the public hearings than Petitioner was to make its comments. It is difficult to determine exactly how much time Petitioner was afforded at the public hearings based on the transcripts. At the local planning agency public hearing, Petitioner’s presentation continued for several pages of transcript, and at one point, the chair extended Petitioner an additional ten minutes. At the first County Commission public hearing, Petitioner was given ten minutes, but gave an uninterrupted presentation of an unknown length, followed by a presentation by Petitioner’s expert transportation planner. Following the presentation, one of the commissioner’s engaged Mr. Tilbrook in a question and answer session. At the second County Commission public hearing, Petitioner’s transportation expert addressed the commissioners, as well as Petitioner’s corporate representative, Ms. Allgood, and attorney, Mr. Tilbrook. Following adoption of the Plan Amendment, Petitioner timely filed a Petition challenging the Plan Amendment, which gave rise to the instant proceeding. Regional Policy Plan Petitioner further alleges that the Plan Amendment is not in compliance because it is inconsistent with the RPC Plan, specifically Goals 5.1 and 2.14. Regional Goal 5.1 states the regional goal to “[m]itigate the impacts of development to the Regional Road Network as well as adverse extrajurisdictional impacts while encouraging development within urban areas.” Goal 5.1 is implemented by Policies 5.1.1 through 5.1.4, which describe how the RPC determines mitigation of local government plan amendment impacts to regional resources. Policy 5.1.1. provides that “within … urban development areas where the local government comprehensive plan includes goals and policies which implement Transportation Planning Best Practices, adverse impact to the Regional Road Network are adequately [mitigated].” In other words, where a plan amendment is located in an urban development area, and the local government comprehensive plan contains transportation planning best practices, the RPC Plan deems the impacts from a local government plan amendment on the regional roadway network “mitigated.” The Plan Amendment is located in the Urban Cluster, an area of the County designated for urban development. Fort Clark Boulevard, also known as State Road 26 (“S.R. 26”), is part of the regional road network. Section 163.3184(3)(b)2. requires the regional planning agency to review a local government plan amendment and comment specifically on “important state resources and facilities that will be adversely impacted by the amendment if adopted.” The RPC reviewed the Plan Amendment and determined that “the County Comprehensive Plan Transportation Element contains policies consistent with Best Transportation Planning Practices contained in the [RPC Plan].” The RPC concluded, consistent with Goal 5.1 and Policy 5.1.1., that adverse transportation impacts of the Plan Amendment to the regional road network “are adequately mitigated.” Nevertheless, Ms. Ward testified that, based on Mr. Kim’s transportation impact analysis, “there was nothing to rely on as transportation best planning practices in the review of this amendment application.” Petitioner introduced no evidence to refute the RPC’s determination that the County’s Comprehensive Plan contains policies “consistent with Best Transportation Planning Practices contained in the [RPC Plan].” Regional Goal 2.14 establishes the RPC’s intent to “[e]nsure future growth and development decisions maintain a balance between sustaining the region’s environment and enhancing the region’s economy and quality of life.” Goal 2.14 is implemented by Policies 2.14.1 and 2.14.2, which establish the desire of the RPC to “[c]reate and sustain vibrant, healthy communities that attract workers, businesses, residents, and visitors to the region”; and “Promote and incentivize local government in the development of vibrant city centers,” respectively. Petitioner presented no evidence that the Plan Amendment would not create a community that would attract workers, businesses, residents, and visitors to the region. Petitioner presented no evidence that the Plan Amendment would not develop as a vibrant city center. Instead, Ms. Ward opined that the Plan Amendment violates the “balance” required by Goal 2.14 because the density and intensity of development on the subject property will negatively affect surrounding communities. This is a restatement of Petitioner’s compatibility argument. Petitioner did not prove the Plan Amendment is incompatible with the adjacent low-density residential development. Petitioner did not prove the Plan Amendment is inconsistent with the RPC Plan.
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 Comprehensive Plan Amendment adopted by Ordinance No. 20-05 on February 5, 2020, is “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 1st day of December, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2020. COPIES FURNISHED: Joni Armstrong Coffey, Esquire Akerman LLP Suite 1100 98 Southeast 7th Street Miami, Florida 33131 (eServed) Kristofer David Machado, Esquire Akerman LLP Suite 1100 98 Southeast 7th Street Miami, Florida 33131 (eServed) Sylvia Torres, Esquire Alachua County 12 Southeast 1st Street Gainesville, Florida 32601 (eServed) Patrice Boyes, Esquire Patrice Boyes, P.A. Suite 1120 5700 Southwest 34th Street Gainesville, Florida 32608 (eServed) Corbin Frederick Hanson, Esquire Alachua County 12 Southeast 1st Street Gainesville, Florida 32601 (eServed) Stephen K. Tilbrook, Esquire Akerman LLP Suite 1600 350 East Las Olas Boulevard Fort Lauderdale, Florida 33301 (eServed) Wesley J. Hevia, Esquire Akerman LLP Suite 1100 98 Southeast 7th Street Miami, Florida 33131 (eServed) Bryan West, Esquire Akerman LLP Suite 1100 98 Southeast 7th Steet Miami, Florida 33131 (eServed) Mark Buckles, Interim General Counsel Department of Economic Opportunity Caldwell Building, MSC 110 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Dane Eagle, Executive Director Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Janay Lovett, Agency Clerk Department of Economic Opportunity Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
Findings Of Fact In 1987 the City of St. Petersburg sought permission to file an application for an Areawide Development of Regional Impact (DRI) for the Intown Area. On July 23, 1987, notice was sent to each property owner within the proposed Areawide DRI. The notice indicates that a public hearing would be held on August 27, 1987, from which the St. Petersburg City Council would decide whether to authorize the City of St. Petersburg to proceed to apply for the DRI. Petitioner, John Warren, received said notice and owns property within the area encompassing the Areawide DRI. Further notices were provided to property owners within the area, including a notice of the petition filed by the City which was published in the St. Petersburg Times on July 27, 1987; a notice to property owners dated September 1, 1987, advising that the City was authorized to proceed with the Intown Areawide DRI; and three other notices regarding public hearings and consideration of the DRI. After all required notice, the St. Petersburg City Council considered the proposed Areawide DRI on December 15, 1988, and formally adopted the DRI by Ordinance No. 1072-F. The ordinance was signed on December 15, 1988. A Notice of Adoption of a Development Order was executed and recorded in the public records on December 20, 1988. The development order enacted on December 15, 1988, was transmitted to the Department of Community Affairs and the Tampa Bay Regional Planning Council on December 19, 1988, and to the City Clerk on December 20, 1988. A certified copy of the DRI Ordinance 1072-F as enacted on December 15, 1988, is a part of the record as Exhibit K and it is incorporated by reference. Thereafter the Tampa Bay Regional Planning Council appealed the DRI pursuant to Section 380.07(2), Florida Statutes, to the Florida Land and Water Adjudicatory Commission. The City and Tampa Bay Regional Planning Council reached an agreement for settling the appeal and said settlement was finalized in the Stipulated Settlement Agreement. Pursuant to the Stipulated Settlement Agreement, the St. Petersburg City Council, at its February 2, 1989, meeting, adopted the terms of the Settlement Agreement, modified Ordinance 1072-F to incorporate the settlement terms, and adopted Ordinance 1072-F as modified. Based upon the settlement and modification of the DRI by the St. Petersburg City Council, on February 7, 1989, the Tampa Bay Regional Planning Council filed a Notice of Voluntary Dismissal of its appeal to the Florida Land and Water Adjudicatory Commission. The Florida Land and Water Adjudicatory Commission entered a Final Order of Dismissal on February 20, 1989. Warren filed his Petition on Appeal on March 20, 1989. The Petition is filed pursuant to Sections 380.06(25)(h) and 380.07, Florida Statutes, and Rule 42-2.002, Florida Administrative Code.
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 granting the Amended Motion to Dismiss and dismissing the Petition on Appeal filed by John Warren. DONE and ENTERED this 16th day of June, 1989 in Tallahassee, Florida. DIANE K. KIESLING 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 16th day of June, 1989. COPIES FURNISHED: Peter B. Belmont Patty Woodworth, Secretary Attorney at Law Planning and Budgeting 511 31st Avenue North Executive Office of the Governor St. Petersburg, Florida 33704 The Capitol, PL-05 Tallahassee, Florida 32399-0001 Michael S. Davis Mirelle Murphy James Honorable Bob Martinez Mark A. Winn Governor, State of Florida Attorneys at Law The Capitol Post Office Box 2842 Tallahassee, Florida 32399 St. Petersburg, Florida 33731 Honorable Robert A. Butterworth Roger S. Tucker Attorney General Attorney at Law State of Florida Tampa Bay Regional Planning The Capitol Council Tallahassee, Florida 32399-1050 Suite 209 9455 Koger Boulevard Honorable Doyle Conner St. Petersburg, Florida 33702 Commissioner of Agriculture State of Florida Jeffrey N. Steinsnyder The Capitol Attorney at Law Tallahassee, Florida 32399-0810 Department of Community Affairs 2740 Centerview Drive Honorable Betty Castor Suite 138 Commissioner of Education Tallahassee, Florida 32399-2100 State of Florida The Capitol James C. Vaughn, Jr. Tallahassee, Florida 32399 Governmental Analyst Florida Land and Water Honorable Jim Smith Adjudicatory Commission Secretary of State The Capitol State of Florida Tallahassee, Florida 32399 The Capitol Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Honorable Gerald Lewis Commissioner Comptroller, State of Florida State of Florida The Capitol The Capitol Tallahassee, Florida 32399-0350 Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue is whether the Petition to Amend the Boundaries of the Crossings at Fleming Island Community Development District (Petition) meets the applicable criteria set forth in Chapter 190, Florida Statutes (2007)1, and Florida Administrative Code Rule Chapter 42-1. The purpose of the local public hearing was to gather information in anticipation of quasi-legislative rulemaking by the Florida Land and Water Adjudicatory Commission (Commission).
The Issue Whether Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Each of the four Petitioners owns property in Escambia County and submitted written or oral comments regarding the Plan Amendment to the County between the date the Plan Amendment was transmitted to the Department of Economic Opportunity (“Department”) and the date it was adopted by the County Commission. Escambia County is a political subdivision of the State of Florida, with the duty and responsibility to adopt and maintain a comprehensive land use plan, pursuant to section 163.3167, Florida Statutes (2019). Existing Conditions There are approximately 610 square miles of land in the unincorporated County. Of that, almost half (48.75 percent) is designated for agricultural use. Escambia County can be roughly described as an hourglass shape. The northern portion is dominated by agricultural uses and is overwhelmingly designated as Agricultural on the County’s 2030 Future Land Use Map (“FLUM”). The Agricultural (“AG”) land use category allows a maximum residential density of one dwelling unit per 20 acres (“1du/20 acres”). In contrast, the southern portion has a much more urban development form. The central urban core, located west of the City of Pensacola, is designated as Mixed-Use Urban, with a sprinkling of Industrial designations, and Commercial designations along the major thoroughfares. Radiating out to the north and west of the urban core is a swath of Mixed-Use Suburban, with some areas designated for Recreation, and Commercial along major thoroughfares. Farther west are lands designated for Conservation, which extend to the Perdido River, the County’s western boundary. The “neck” of the hourglass serves as a transition between the agricultural northern portion and the urban and suburban southern portion of the County. The dominant future land use categories in this area are Agriculture, Mixed-Use Suburban, and a category critical to this case, Rural Community, or “RC.” Rural Communities According to the Comprehensive Plan (“the Plan” or “the existing Plan”), the RC FLUM category is: ntended to recognize existing residential development and neighborhood serving nonresidential activity through a compact development pattern that serves the rural and agricultural areas of Escambia County. The designation was applied to pockets of mixed residential and commercial developments that served the agricultural areas in existence when the Plan was originally adopted. The FLUM depicts roughly 20 RCs in the County, almost all of which are located in the northern portion. The uses allowed in RC are agriculture, silviculture, residential, recreational facilities, public and civic, and compact traditional neighborhood supportive commercial. Development is limited to a residential density of two units per acre (“2du/acre”), but does not impose a cap on the intensity of commercial development. The County’s policy in establishing and maintaining RCs is best reflected in Goal FLU 3 and its implementing Objective and Policies, which read, as follows: GOAL FLU 3 Rural Strategies Escambia County will promote rural strategies, including protecting agriculture, silviculture, and related activities, protecting and preserving natural resources and guiding new development toward existing rural communities. OBJ FLU 3.1 Rural Development All new development within the rural areas, including commercial development, that is compatible with the protection and preservation of rural areas[,] will be directed to existing rural communities. Policies FLU 3.1.1 Infrastructure Expenditures. Escambia County will limit the expenditure of public funds for infrastructure improvements or extensions that would increase the capacity of those facilities beyond that necessary to support the densities and intensities of use established by this plan unless such expenditures are necessary to implement other policies of this plan. FLU 3.1.2 Water Facility Extensions. Escambia County will coordinate with potable water providers on any extensions of potable water facilities in the rural area. FLU 3.1.3 FLUM Amendments. During consideration of FLUM amendments, Escambia County will consider the impacts of increased residential densities to the agriculture and silviculture industries as well as public facility maintenance and operation expenditures (i.e., roads, water, sewer, schools) needed to serve the proposed development. FLU 3.1.4 Rezoning. Escambia County will protect agriculture and the rural lifestyle of northern Escambia County by permitting re-zonings to districts, allowing for higher residential densities in the RC future land use category. FLU 3.1.5 New Rural Communities. To protect silviculture, agriculture, and agriculture-related activities, Escambia County will not support the establishment of new rural communities. Designated Sector Area Plan The Designated Sector Area Plan (“DSAP”) was created and adopted in the Plan in 2011, and comprises approximately 15,000 acres in the transitional area between the urban and suburban south County and rural and agricultural north County. The DSAP plans for the location of traditional urban neighborhoods, new suburban and conservation neighborhoods, and regional employment districts, and includes the location of existing and planned public facilities to serve the new development. As noted by the County’s Development Director, Horace Jones, in August 2018, the primary purpose of the DSAP was to “prevent urban sprawl into the agrarian and rural communities . . . so that we can’t continue to intrude upon those prime farmland areas, upon those large parcels of land in the AG category.” At the final hearing, Mr. Jones several times confirmed that the purpose of the DSAP was to prevent urban sprawl into the agricultural areas of the County. As noted by the County’s Senior Urban Planner, Juan Lemos, in August 2018, “We haven’t gotten to that point where we need those agricultural lands to build houses for people . . . or to develop businesses[.]” At final hearing, Mr. Lemos confirmed that his opinion on that issue has not changed.3/ The Plan Amendment The Plan Amendment, plainly and simply, deletes FLU 3.1.5 in its entirety. The Plan Amendment represents a policy change by the County to allow consideration of plan amendments establishing new RCs in the County. Petitioners’ Challenges Petitioners allege the Plan Amendment is not “in compliance” because it: (1) creates internal inconsistencies in the existing Plan; (2) is not based on relevant and appropriate data and an analysis by the local government; and (3) fails to discourage urban sprawl. Internal Inconsistencies Petitioners allege the Plan Amendment is inconsistent with FLU Goal 3, “Rural Strategies,” and Objective 3.1, “Rural Development.” The Goal provides that, in rural areas, the County will “guide[] new development toward existing [RCs],” and the Objective provides that “[a]ll new development within rural areas . . . will be directed to existing [RCs].” The language of both the Goal and Objective is clear and unambiguous. Establishment of new RCs in the rural areas of the County will not guide new development to existing RCs, and will be contrary to both the Goal and the Objective. However, the Plan Amendment neither establishes new RCs nor creates a policy supporting the establishment of new RCs. It merely deletes a policy expressing the County’s intent not to support new RCs. Absent an express policy in the County’s existing Plan, the Plan Amendment is not internally inconsistent with FLU Goal 3 and Objective 3.1.4/ The preponderance of the evidence does not support a finding that the Plan Amendment creates internal inconsistencies in the existing Plan. Data and Analysis The County agenda items for transmittal and adoption hearings on the Plan Amendment were devoid of any supporting data or analysis. The County’s transmittal package to the Department and other reviewing agencies contained only the ordinance adopting the Plan Amendment accompanied by a cover letter. The Plan Amendment reflects a policy change by the County to consider allowing establishment of new RCs. The Plan Amendment does not change the land use of any particular parcel of land in the County, and does not change the uses allowed, or the density or intensity of development allowed thereon. The Plan Amendment does not, in and of itself, require the expenditure of public funds, nor does it immediately impact the provision of public services in the rural areas of the County. Whether the County will establish any new RCs in the rural areas of the County depends on whether a property owner proposes one in the future, and whether the County approves said proposal, after consideration of all applicable Plan policies. The agenda items for both the transmittal and adoption hearings on the Plan Amendment contain the following as background for the Plan Amendment: The Escambia County Board of County Commissioners finds that an amendment to its Comprehensive Plan is necessary and appropriate based on the changing needs within the County; and it is in the best interest of the health, safety, and welfare of the County to amend its Comprehensive Plan. (emphasis added). At the final hearing, the County offered no data to establish the “changing needs within the County” referenced in the background statement. In effect, the County offered no data or analysis at final hearing to support the Plan Amendment. Mr. Jones testified that “there were some discussions [among Commissioners] on why they were adopting this and why they felt it was necessary.” He stated, “the record reflects that they stated that basically it was to give someone an opportunity for them to make a request to make an application [for RC].” Mr. Jones’s hearsay testimony was not corroborated by any non-hearsay evidence. In a series of leading questions, Mr. Jones affirmed that the County Commissioners “found that FLU 3.1.5 restricted the ability of landowners to even request a change to the rural community future land use category,” and “found that the [Policy] restricted the ability of landowners to construct residences due to the density limitations of only one dwelling unit per 20 acres.” Mr. Jones’s testimony was neither credible nor persuasive. Mr. Jones’s explanation of the reason for the Plan Amendment was undermined by his subsequent testimony that the Commission had the authority to approve a plan amendment, changing the designation of property from AG to RC, even without repealing Policy FLU 3.1.5. If that is true, there is absolutely no basis for the Plan Amendment.5/ In a series of leading questions from his counsel, Mr. Jones agreed that “this text amendment was necessary to allow . . . existing residential areas [within AG] to change to RC in order to come into the appropriate future land use category” and “determined that there were areas within the agricultural future land use designation which would benefit from the ability to change to a rural community future land use category.” However, Respondent offered no evidence of the location of any such residential areas outside of existing RC communities, or an explanation of why the assigned AG designation was inappropriate. Nor did Mr. Jones expound on the benefit the Plan Amendment would allegedly bestow on property in the agricultural areas. This testimony was conclusory and lacked foundation. Mr. Jones’s testimony was further undermined by his refusal to speak for the Commission when questioned by the Petitioners regarding the Commission’s reasons for the Plan Amendment, contrasted with his eager agreement with leading statements from his counsel offering reasons for the Plan Amendment. On redirect, when Mr. Jones responded to Petitioner Rogers’s question regarding the County’s reasons for adopting the Plan Amendment, he referred generally to “economic reasons” and vaguely referred to “other public reasons as she previously stated,” deferring to his counsel’s leading questions. (emphasis added). Mr. Jones’s testimony that the Commission’s justification for the Plan Amendment is to allow property owners to apply for a change is unreliable hearsay evidence, later contradicted by his own testimony that the Commission could have approved a land use amendment to that effect prior to adoption of the instant Plan Amendment. Mr. Jones’s testimony is rejected as unreliable and unpersuasive. The preponderance of the evidence supports a finding that the Plan Amendment is not supported by any relevant data or an analysis thereof. Urban Sprawl Petitioners’ final contention is that the Plan Amendment fails to discourage urban sprawl as required by section 163.3177(6)(a)9. That section lists 13 “primary indicators” that a plan amendment does not discourage the proliferation of urban sprawl. Of those, Petitioners allege the Plan Amendment meets the following primary indicators: Promotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are suitable for development. Promotes, allows, or designated urban development in radial, strip, isolated, or ribbon patterns generally emanating from existing urban developments. * * * Fails to adequately protect adjacent agricultural areas and activities, including silviculture, active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. Fails to maximize use of existing public facilities and services. * * * Allows for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. * * * Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. In support of this allegation, Petitioners presented the testimony of Christian Wagley, who was accepted as an expert in sustainable development and environmental planning. Mr. Wagley testified that the Plan Amendment will allow a forty-fold increase in density of development allowed in the largely rural, agricultural northern county area (i.e., the increase in density between that allowed in the Agricultural category: 1du/20 acres--and that allowed in RC: 2du/acre), and significantly diminish available Agricultural lands and increase demand for urban services outside the urban area. Mr. Wagley’s testimony is based on the assumption that the County will actually approve, in the future, new RCs in the largely agricultural northern portion of the County. That assumption is insufficient to form the basis of a finding of fact in the instant case. The Plan Amendment does not convert any Agricultural lands to the RC category. It does not “promote, allow, or designate” urban development in the rural areas of the County; “promote, allow, or designate” development in a radial, strip, or isolated pattern; fail to maximize use of existing public facilities and services, or allow for land use patterns which disproportionately increase the cost of providing and maintaining public facilities and services; fail to provide a clear separation between rural and urban uses; or discourage or inhibit infill development or redevelopment. Petitioners introduced a map depicting the United States Department of Agriculture prime soils overlayed on the Agriculturally-designated lands in the County. While this map demonstrates that prime farmland is plentiful in the northern agricultural area of the County, it does not prove that the Plan Amendment fails to protect adjacent agricultural areas and activities, passive agricultural activities, and dormant, unique, and prime farmlands and soils. The preponderance of the evidence does not support a finding that the Plan Amendment fails to discourage urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order finding Escambia County Comprehensive Plan Amendment CPA 2018-02, adopted by Ordinance No. 2019-09 on February 7, 2019, is not “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 9th day of January, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2020.
The Issue May this appeal be dismissed as moot due to the impossibility of the development order being granted?
Findings Of Fact This case involves Florida Rock's May 20, 1992, application for a development order to the Citrus County Department of Development Services (LDDS or Department) for a mining operation. Sometime after 1980, the real property at issue had been designated "extractive" on the Future Land Use Map (FLUM). Citrus County's 1986 Comprehensive Plan designated Florida Rock's real property as "extractive." In 1990, after the State of Florida, Department of Community Affairs challenged the "extractive" designation in the County's 1989 plan amendments, the site continued to be designated "extractive." Citrus County simultaneously enacted its Citrus County Land Development Code (LDC or Code). At all such times, zoning and all maps also embraced the same "extractive" designation. Citrus County maintains two sets of land use maps. The Comprehensive Land Use Plan (CLUP or Comprehensive Plan) has a FLUM (a generalized land use map) and the LDC has attached to it atlas maps on a smaller scale. The LDC maps are identical to the county tax assessor tax maps and show individual parcels/lots of record. Such parcels defined by the Comprehensive Plan and LDC text have a land use designation as associated with each. Mining operations are permitted on real property designated "extractive." Under the LDC, when an application is submitted, it must be reviewed for completeness and the applicant notified within three days of whether the application is deemed complete or incomplete. If the application is deemed incomplete, the applicant must be advised of how the application should be amended or supplemented in order to be deemed complete for technical review. The applicant then may amend or supplement the application. Once a determination of completeness has been made, a technical review must be completed by each member of the technical review team within ten days, and thereafter, a series of committee meetings and public hearings may follow. During this portion of the procedure, amendments to the application may be required before the development order is ultimately granted or denied. Citrus County's land use amendment process began on April 10, 1992, before Florida Rock's application was submitted to the LDDS. Florida Rock had actual notice on April 10, 1992, that a change in its property designation from "extractive" to "rural residential" was pending, but no moratorium on development orders was imposed. Thus, the "rush to the Commission" began.1 On May 20, 1992, Florida Rock's application for a development order to permit mining on its real property was submitted to the Citrus County LDDS. The Department made four sequential determinations of incompleteness. At no time did Florida Rock ever amend its application or submit any supplemental material. On December 22, 1992, Citrus County's Board of County Commissioners adopted Ordinance 92-A73, to change the designation of the subject real property on the Comprehensive Plan from "extractive" to "rural residential." The ordinance does not recite any retroactive effect. No moratorium on development orders was imposed. Mining operations are prohibited on real property designated as "rural residential." On December 28, 1992, the Department made the determination of incompleteness which gave rise to this instant proceeding. Florida Rock has not affirmatively plead and has not proven that the Department made any of its incompleteness determinations arbitrarily, capriciously, discriminatorily, in bad faith or solely for purposes of delaying the process of a technical review on the merits of the project. In the absence of any formal allegation and affirmative proof, no improper motive or improper purpose by the Department can be found.2 The December 28, 1992, determination of incompleteness noted, in the following terms, the refusal of the applicant to supply certain assurances: The applicant is exempt from Section 4344 of the LDC only in regards to the bonafide [sic] agricultural or forestry purposes. Commercial forestry involves the harvesting or marketable timber not the wholesale clearing of all vegetation. Therefore, the impact on protected trees as defined by Section 4342.A and 4344.B needs to be addressed as it regards compliance with Section 4344 of the LDC. The application needs to reflect how this will be accomplished. Contrary to your statement, this item was previously referenced as Item 11 in my letter of May 29, 1992. While vegetative removal of unprotected trees as defined in Section 4343.A.6. of the LDC is acceptable, the issue of protected trees as defined in Section 4344.B of the LDC is still unaddressed in your application submittal. The submitted site plan indicates a setback of less than the 3000 feet from residentially committed areas as required by Section 4525.A.8.1 and 4531.E.1. of the LDC regarding expansion of existing mines. Interpretation of the LDC is addressed in Section 1410 of the LDC and so the attached interpretation is not applicable. Please revise your site plan to reflect this set back or resubmit your application after vesting pursuant to Section 3160 through 3163 of the LDC has been determined. Pursuant to Section 380.06(4)(b)F.S., Citrus County believes that Florida Rock Industries operations within Hernando/Citrus Counties may exceed DRI threshold. Therefore, please provide a letter from DCA resolving this matter. In regard to your position that DCA has not formally requested a binding letter, please note that the above referenced citation specifies the state land planning agency or local government with jurisdiction over the land on which a development is proposed may require a developer to obtain a binding letter. Based on information made available to this Department, we believe a determination is called for. In regards to the requested items 23 through 34 of my letter of May 29, 1992, please be advised that Section 4659.F. of the LDC requires proof of compliance with all applicable Citrus County regulations and policies. This includes the Comprehensive Plan (C.O. 89-04) and its amendments. The information requested is to assure that the proposed development will be in compliance with the Comprehensive Plan. None of the reasons listed in the December 28, 1992, determination of incompleteness specifically stated that Florida Rock could not qualify for a development order for mining because its real property had just become designated by the December 22, 1992, ordinance as "rural residential," instead of "extractive." Indeed, the December 28, 1992, determination of incompleteness did not mention the ordinance change at all. However, its fourth paragraph concerns the requirement that an applicant establish its real property's consistency with the Comprehensive Plan. The County has taken the position that, without using the terms "extractive use" or "rural residential," paragraph four encompasses the change of ordinance as well as all matters pertaining to the Comprehensive Plan. Under the statutes in effect on December 22, 1992, Ordinance 92-A73 was not effective until filed with the Secretary of State. (See the face of the ordinance). The exact date of its filing was not stipulated, but it was agreed that filing occurred sometime in December 1992. Under Florida's growth management process, the newly adopted ordinance also was transmitted to the State of Florida, Department of Community Affairs, which would then issue a report before the new ordinance became part of the Citrus County Comprehensive Plan.3 On January 3, 1993, Florida Rock challenged, pursuant to Section 163.3184(9), Florida Statutes, the new ordinance as it progressed through the Florida Department of Community Affairs' review process. On January 19, 1993, Citrus County's LDDS sent a letter to Florida Rock, further interpreting its December 28, 1992, determination of incompleteness. That letter also made no specific mention of the ordinance amendment and did not amend the fourth paragraph of the incompleteness determination. It provided, in pertinent part: For the record, my letter of December 28, 1992, was not a "Denial" but rather a determination of incompleteness pursuant to Section 2222.B.1 of the Land Development Code. In response to your question of January 12, 1993, I was not persuaded by your argument in regards to access by way of Parcel 22100 lying in Section 36, Township 20 South, Range 19 East, but did recognize the driveway onto County Road 581. Florida Rock declined to amend its application or supply the information requested. On January 26, 1993, Florida Rock initiated the instant administrative appeal of the December 28, 1992, determination of incompleteness. However, by agreement of Florida Rock and Citrus County, the appeal was abated until January 13, 1999 (see the Preliminary Statement), when it was transferred from a local hearing officer to the Division of Administrative Hearings. Florida Rock's challenge of the ordinance before the Florida Department of Community Affairs also did not progress in a timely manner. On February 6, 1998, Florida Rock's challenge to the new ordinance was dismissed. The effect thereof is that the Florida Department of Community Affairs has found, and entered a Final Order pronouncing, Citrus County Ordinance 92-A73 to be in compliance with Chapter 163, Florida Statutes, pertaining to Florida's Local Government Comprehensive Planning and Land Development Act. That Final Order, as final agency action, was not appealed. By any interpretation, Citrus County's Comprehensive Plan, embracing the new ordinance's land use designation of Florida Rock's property as "rural residential" has been in effect since February 1998, as have been coordinated zoning, FLUM, and LDC atlas maps. Since December 22, 1992, the ordinance has designated Florida Rock's proposed site as "rural residential," which precludes the proposed mining operation. Since February 1998, the Comprehensive Plan, FLUM, and LDC atlas maps have all embraced, and currently all of them now embrace, the ordinance, and all of them prohibit mining or "extractive use" of the real property in issue.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Citrus County Department of Land Development Services enter a final order dismissing the appeal for mootness. DONE AND ENTERED this 4th day of June, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 4th day of June, 1999.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: The Parties and the Amendment DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments. Final agency action with regard to plans and plan amendments found not "in compliance" by DCA is taken by the Governor and Cabinet, sitting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes. The City is a municipality located in Broward County. As a municipality, it is required by Chapter 163, Part II, Florida Statutes, to adopt a comprehensive plan. The City adopted its comprehensive plan (the "Comp Plan") in June of 1989. The two planning periods addressed in the Comp Plan are five year and ten year periods. Subsequent to adoption of the Comp Plan, the City has adopted at least two amendments which were found to be "in compliance" by DCA. A third amendment, which was adopted at the same time as the amendment at issue in this proceeding, was the subject of a "compliance agreement" at the time of the hearing in this case. The amendment which is at issue in this case was adopted by the city on September 3, 1991 as Ordinance No. 91-77. (This amendment is hereinafter referred to as the "Amendment" or the "Plan Amendment"). The Amendment revised the Recommended Traffic Circulation Plan Map and the Future Functional Classification Map of the City's Comprehensive Plan to remove approximately 10.46 acres of Oaks Drive right-of-way, a local road, from the traffic circulation network. The portion involved was the northern segment located from Oaks Way to Oaks Terrace. Prior to adoption of the Amendment, a draft of the proposal was reviewed by DCA which issued its objections, recommendations and comments in the form of a letter to the Mayor of the City dated July 5, 1991. (This letter is hereinafter referred to as the "ORC.") After receiving the ORC, the City adopted the Amendment. The adopted Amendment was not changed from the proposed amendment. Following the adoption of the Amendment, the City transmitted to DCA the following: a September 4, 1991 transmittal cover letter; Ordinance No. 91- 77; the Traffic Circulation Element goals, objectives and policies from the Comp Plan in place at the time of the Plan Amendment; the application for the Plan Amendment submitted by the developer to the City; a traffic circulation study prepared by Tinter Assoc. (the "Tinter Study") which was part of the application; and the City's Response to DCA's ORC. After receipt and review of the adopted Amendment and the other documents in the transmittal package, DCA initiated this proceeding. The Site and the County Plan The segment of road which is abandoned by the Amendment is adjacent to the "Oaks Tract", a 51.7 acre site within a development known as the Palm Aire Development. The Palm Aire Development lies to the west of Powerline Road, east of Florida's Turnpike, and south of Atlantic Boulevard. The Oaks Tract is part of the northern portion of the Development and is bordered by Broward County Water Management District No. 4 Canal on the west and South Florida Water Management District C-14 Canal on the north and east. Beyond the C-14 Canal to the north is Atlantic Boulevard. To the south of the site is a golf course and condominiums which are part of the Palm Aire Development. The Comp Plan's data and analysis describes Atlantic Boulevard as the City's main arterial. It is a six lane road from Florida's Turnpike east to I- 95 and a four lane road from I-95 to its eastward terminus at the beach. The data and analysis notes that future plans along Atlantic Boulevard include the construction of an interchange at Florida's Turnpike. The Palm Aire Development is one of the facilities which the data and analysis mentions as served by Atlantic Boulevard. The segment of Atlantic Boulevard at issue in this proceeding is the portion of Atlantic Boulevard west of Powerline Road. The plat for the Oaks Tract Subdivision, which is described as Palm Aire Oaks Course Estates Section 3, was approved by the Broward County Commission and recorded in 1980. At that time, the subdivision was planned for 1182 high-rise units. In 1986 or 1987, the County and owners of the subdivision entered into an agreement which resulted in an amendment to the subdivision's development level. Based on this revised agreement, the Oaks Tract Subdivision was planned for 1180 units of mixed types: single family detached units, townhouse units, garden apartments, and high-rise units. In other words, the development plan was no longer exclusively high-rise multi-family units. Impact fees were assessed by the County when the plat was initially approved. Additional road impact fees were assessed at the time of the change in the development mix. At the time of the original plat approval, the owners of Oaks Tract conveyed the Oaks Drive right-of-way to the City. As of the date of the hearing in this case, most of the Oaks Drive right-of-way was not paved. Only a small portion at the beginning and end of this segment had been paved. When the original plat was approved and recorded in 1980, there was no segment of Atlantic Boulevard to the north of Oaks Tract. That portion of Atlantic Boulevard was not constructed until the mid-1980's. At the time of original plat approval, neither the County nor the City analyzed or required concurrency. The City did not have any concurrency requirements until January 1, 1990, when such requirements first appeared in the City's land development regulations. The County first implemented concurrency requirements in 1989. Under the County's current regulations, a concurrency analysis is done prior to plat approval. While the current procedure for plat approval necessarily includes a determination that the traffic concurrency requirements of the regional road network have been met, such a determination was not required in 1980 when the plat for the Oaks Tract was approved. The Broward County Comprehensive Plan (the "Broward Comp Plan") was adopted in March of 1989. In the Traffic Circulation Element of the Broward Comp Plan, the adequacy of the regional road network is addressed. The regional road network consists of state arterial and collector roads and all county collector roads. FDOT Road Classifications And Level Of Service Standards The Florida Department of Transportation ("FDOT") is responsible for classifying roadways into hierarchical categories based on overall function in the regional transportation system. FDOT has adopted a functional classification system which categorizes the various roadway systems as part of the State Highway System, the County Road System or the City Street System. The State Highway System is a network of regional roads whose primary purpose is to move and transport people and goods in an efficient and safe manner. The roads in this network serve intrastate, intra-regional and intra-urban area trips. They are not designed to provide access to or serve adjacent land, which is a function of local roads. As noted above, the segment of Atlantic Boulevard at issue in this case is classified as a principal arterial road. It is part of the State Highway System. A principal arterial road is the highest level of road under the FDOT functional classification system. A principal arterial is a major highway serving regional activity centers and is designed primarily to move traffic, not provide access to adjacent land. Under the FDOT Highway Capacity Manual, roads are rated from "A" to "F" to measure the quality of service of a road. This FDOT manual sets forth level of service standards based on the speed which an average driver can maintain over a section of road. A level of service of "A" is the highest rating and "F" is the lowest. Under the FDOT Highway Capacity Manual, the level of service standard for an arterial road is "D" which reflects an average travel speed of 17 miles per hour. An arterial road which operates under capacity would reflect an average travel speed of under 17 miles per hour. The "E" level of service describes arterial roads with an average travel speed of between 13-16 miles per hour. If an arterial operates at less than 13 miles per hour, it is described as operating at a level of service of "F". Several factors affect the average travel speed of a road. The primary factor which slows travel speed is signalized intersections. Other factors include whether the road is divided, the level of development adjacent to the road, the number of driveways, and the types of traffic. FDOT rules relating to minimum level of service standards require principal arterials, such as Atlantic Boulevard, to operate at a level of service of "D". The comprehensive planning process seeks to insure that local land use decisions are consistent with these level of service standards. The type of analysis for arterial roads recognized and strongly recommended by FDOT to measure level of service is a peak hour analysis. Peak hour analysis is based on operating conditions of the 30th busiest hour in the year. Level Of Service For Atlantic Boulevard In order to assess whether the level of service for a road in the regional road network has been exceeded, Broward County developed and applies a "trips model." This "trips model" considers both trips generated by existing development and expected trips from committed development. Committed development is unbuilt development which has been vested or otherwise approved through development order for future development activity. When the County determines that a property is vested, the traffic is considered as committed on the regional road network. The determination applies to a certain level of development and does not designate specific roads for which the trips are vested. Around the time of the adoption of the Broward Comp Plan, the County made an assessment of the regional transportation network. The County determined that any road segment that was operating at level of service "D" or better just prior to the adoption of the Broward Comp Plan would be assigned a level of service standard of "D" in the Broward Comp Plan. The level of service standard adopted in the Broward Comp Plan in March of 1989 for the pertinent segment of Atlantic Boulevard is "D." This level of service standard has not been amended and remains in effect. To establish this standard, the County applied the "trips model" to the portion of Atlantic Boulevard to the north of the Oaks Tract and determined that, based on existing and committed development, this portion of Atlantic Boulevard was operating at a level of service of "D" or better. This analysis took into consideration the Palm Aire Development, including the Oaks Tract. The County concluded that development of the Oaks Tract was vested and calculated 5300 vested trips per day for the Oaks Tract Subdivision. In Broward County, municipal plans are required by the County to be at least as stringent on level of service standards as the County's plan. The City has adopted the County's standard for Atlantic Boulevard in the traffic circulation elements, goals and objectives of its Comp Plan. In the data and analysis submitted by the City to DCA in support of its Comp Plan, a system overview and analysis of the existing roadway conditions for daily and peak hour periods is set forth. Based on this analysis, the City developed a travel demand modeling process to identify future traffic conditions for short-range (1994) and long-range (2010) planning periods. The Comp Plan's data and analysis includes existing traffic volumes based on peak season and average daily traffic analysis. "Peak season" is considered to be the first quarter of the calendar year while average daily conditions reflect a year round situation based on the average of traffic counts performed in winter and summer seasons. Traffic Circulation Policy 02.05.02 of the Comp Plan provides: After January 1990, or when required by state statute, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS [level of service] "D" on all arterial and collector roadways where existing plus committed traffic allows and maintain traffic conditions on all other roadway segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City. In Traffic Circulation Policy 02.05.02, the City establishes level of service standards for all arterial and collector roadways, where existing plus committed traffic allows, as "D" based on both daily and peak hour (not peak season) analyses. In order to be consistent with this policy, a level of service of "D" must be maintained under both daily and peak hour analysis. Rule 9J-5.0055(1)(d), Florida Administrative Code, requires that, in analyzing and establishing level of service standards for roads, a local government must, to the maximum extent feasible, adopt level of service standards which are compatible with the level of service standards established by FDOT. In addition, the local government should insure that adopted level of service standards will be maintained prior to issuance of a development order. Oaks Drive The Oaks Drive right-of-way is designated a local collector road in the City's Comp Plan. This right-of-way is depicted on the Comp Plan's future traffic conditions map series. The Plan Amendment which is the subject of this proceeding would change two of the four maps in that series, the "Recommended Traffic Circulation Plan" and the "Future Functional Classifications" maps, to reflect the removal of this right-of-way. The Oaks Drive right-of-way, as originally conveyed to the City, provided two access points into and out of the Oaks Tract Subdivision. Neither of those access points was directly connected to Atlantic Boulevard. The Bridge To Atlantic Boulevard In approximately May of 1989, the developer of Oaks Tract requested a roadway alteration permit from FDOT to build a bridge over the C-14 canal and connect the Oaks Tract Subdivision with Atlantic Boulevard. The application did not indicate, nor could it be gleaned from the information contained therein, that the Oaks Drive right-of-way would be abandoned at a future date. In order to receive the FDOT permit, neither the developer nor the City was required to demonstrate that the level of service on Atlantic Boulevard would be maintained. The road alteration permit was issued in approximately September of 1989. At the time of the hearing in this case, the access road and bridge between Atlantic Boulevard and the Oaks Tract was completed and approximately $450,000 had been expended on construction and engineering costs. Subsequent to the issuance of the roadway alteration permit, the developer of Oaks Tract requested the City to abandon the Oaks Drive right-of- way. The City advised the applicant that the abandonment would require an amendment to the Comp Plan as well as an abandonment authorization. Three right-of-way vacation requests were submitted to the City by the owners of Oaks Tract on October 12, 1990, March 13, 1991 and April 23, 1991. The right-of-way abandonment requests were forwarded to FDOT for approval. The requests did not reflect or reveal that, as a result of the abandonment, the only access to Oaks Tract would be across the new bridge spanning the C-14 canal to Atlantic Boulevard. This result was not clearly reflected in any information provided to FDOT prior to the initiation of this case. Because the right-of-way was not adjacent to a state road and the requests as written did not appear to affect a state road, FDOT did not raise any objection to the abandonments. At the hearing in this case, FDOT's representatives testified that the FDOT now objects to the vacation of the right-of-way because it would result in an exclusive access to Oaks Tract via the bridge to Atlantic Boulevard. FDOT is concerned that, by creating an exclusive access, all of the traffic generated by the development would be routed to Atlantic Boulevard thereby lowering the level of service on Atlantic Boulevard. DCA Review Of The Amendment The City approved the right-of-way abandonment requests submitted by the developer. Ultimately, the City also adopted the Plan Amendment to modify the Comp Plan to reflect the removal of Oaks Drive from the traffic circulation network. As noted above, prior to adopting the Amendment, the City sent the proposed Amendment to DCA for review as required by Section 163.3184, Florida Statutes, and Rule 9J-11.006(1), Florida Administrative Code. The documentation submitted to DCA included the Tinter Study. This Study is a "build-out" study which assesses traffic circulation patterns after the Oaks Tract development is completed. The time frame for build-out was estimated to be three years. Therefore, the Study addresses a projected three year period in the future. The Tinter Study was designed to support the right- of-way abandonment request, not the Comp Plan amendment. The Tinter Study is insufficient to support an amendment to the Comp Plan because its focus is too limited. The Study is concerned only with the impact of development from the Oaks Tract subdivision. To support a future traffic conditions map amendment, the impacts of other development which may occur in the area throughout the entire planning period (through year 2010), not just the impacts of the Oaks Tract subdivision over the next three years, should have been analyzed in order to properly evaluate whether the level of service will be maintained on Atlantic Boulevard. For example, the impact of the nearby Arvida Pompano Beach DRI was not considered in the Tinter Study even though that development will certainly affect the traffic on Atlantic Boulevard. The Tinter Study also failed to address the need for a traffic signal at the new access onto Atlantic Boulevard and/or at the future Florida's Turnpike interchange. A proper study of future impacts to Atlantic Boulevard would have addressed the need for and/or possibility of two additional traffic signals at these locations. Consideration of the need for these signals could alter the analysis of the capacity and the level of service of Atlantic Boulevard. Under the FDOT Level of Service Manual, if two new signals were added, the applicable classification of the road based on signalization would drop from Group "C" to Group "D," resulting in a lowering of the operating level of service to "F." Because it was designed as a "build-out" study to support a vacation of the right-of-way, the Tinter Study did not explore alternative traffic patterns such as leaving open access points on Oaks Drive leading to roads other than Atlantic Boulevard. Other access points could possibly mitigate impacts on the level of service of Atlantic Boulevard. The Tinter Study includes the following conclusion: [D]evelopment of the site based on the proposed Traffic Circulation Plan would result in a decrease in operating Level of Service on Atlantic Boulevard from Powerline Road to the proposed site access location from 'D', the maximum acceptable standard, to 'E'. The Study also concludes that, if the change was not made and the existing Traffic Circulation Plan remained in effect, at least three local collector roadways would exceed the City's minimum standards as a result of the development of Oaks Tract. As noted above, DCA issued its ORC in the form of a letter to the Mayor of the City dated July 5, 1991. That letter set forth DCA's position that the proposed Amendment was not supported by adequate and relevant data and analysis. Specifically, DCA expressed concern that creating a single access to the site from Atlantic Boulevard could result in a lowering of the level of service for this segment of Atlantic Boulevard from "D" to "F". As indicated above, after receiving the ORC, the City adopted the Plan Amendment with no significant modifications. When the City transmitted the adopted Plan Amendment to DCA, it included a "Response to DCA Objections, Recommendations and Comments Re: Traffic Circulation Element Amendment 91-03 Oaks Drive" (the "Response") attached to which was a letter dated August 22, 1991 from Walter H. Keller, Jr., a traffic planning engineer. The City's Response disputed DCA's conclusion that the level of service for the segment of Atlantic Boulevard would decrease from "D" to "F". The City contended that the Tinter Study's conclusion reflecting a decrease in level of service from "D" to "E" was based on a worst-case, peak season condition scenario. According to the City, average annual operating conditions for all the studied roadways would not be affected by the Amendment. The City cited to the letter from Mr. Keller to support this conclusion. That letter stated that ...[t]he proposed amendment will not impact adopted LOS standards. Furthermore, the proposed revised network will provide relief for the over capacity link on Powerline Road between Atlantic Boulevard and Palm Aire Drive North. Pompano Beach traffic circulation standards require LOS "D" to be maintained on an average daily basis. The amendment will not cause average conditions to exceed LOS Standards. This condition is based on the traffic circulation study performed for the proposal and the seasonal traffic analysis included in the City's traffic circulation element. In addition, the proposed network resulting from the Amendment will decrease traffic on Powerline Road between Atlantic Boulevard and Palm Aire Drive North by approximately 1800 trips per day. The City's Response to DCA's ORC also noted that FDOT had issued the permits for the access bridge to Atlantic Boulevard and that the bridge was under construction. The Response pointed out that The subject property is platted and vested for the trips expected to be generated by the proposed development. Based on this information, the proposed amendment satisfies transportation concurrency requirements for the City of Pompano Beach Comprehensive Plan. The documentation submitted by the City with the adopted Amendment did not alleviate DCA's concerns regarding the Amendment. In particular, DCA noted that Figure 6B of the Tinter Study and its accompanying chart show projected daily peak-season traffic volumes on Atlantic Boulevard at build-out. The portion of Atlantic Boulevard between Powerline Road and the new access to Oaks Tract is projected to serve 50,256 trips at a level of service of "E" and the portion of Atlantic Boulevard west of the new access to Lyons Road is projected to serve 45,943 trips at a level of service of "D." Thus, despite the conclusory language in the Response and in Mr. Keller's letter, the Tinter Study clearly shows that there will be some increased traffic on Atlantic Boulevard as a result of the Amendment. DCA noted with concern the Study's conclusion that: The only impact expected from the development of the site given the proposed Traffic Circulation Plan would be a decrease in the operating Level of Service from "C" to "E" for the link of Atlantic Boulevard from the site to Powerline Road. As mentioned, considering the existing plan, the link would decrease from Level of Service "C" to "D". Explaining The Tinter Study The Tinter Study includes the conclusion that: The development of the property based on the proposed Traffic Circulation Plan would create a negligible impact upon the roadway network in comparison with development of the property based on the Existing Traffic Circulation Plan. Unfortunately, The Tinter Study did not attempt to analyze the expected impact of the Plan Amendment by utilizing a methodology that could be easily compared to the calculation of the level of service standard set forth in the Broward County Plan. Instead, the Tinter Study was based upon existing operating level of service data to which was added the projected increase in average daily traffic and peak-season volume expected as a result of the buildout. Under these circumstances, comparing the conclusions of the Tinter Study to the policies and goals of the Comp Plan is very confusing and can be the functional equivalent of comparing apples to oranges. At the hearing, Andrew Sebo, the traffic engineer who prepared the Tinter Study, testified and attempted to explain certain of the conclusions set forth in the Study. He contended that the level of service for average daily traffic conditions on Atlantic Boulevard would not increase as a result of the Amendment. To support this conclusion, he presented revised calculations applying the Group C figures of the FDOT Manual to the data from the Tinter Study. These calculations are of questionable value since they, like the Tinter Study, apparently fail to take into account the possible addition of traffic lights on the relevant portion of Atlantic Boulevard. Mr. Sebo also testified that there would be no increase in level of service on a peak-hour basis for Atlantic Boulevard as a result of the Plan Amendment. He claimed that the calculations in the Tinter Study used a peak- season analysis which resulted in a much higher traffic volume than average annual daily traffic volume or peak hour measurements. He pointed out that the Study assumed that there would be a 15% growth in traffic over the three years of the study. This assumption of a 5% annual growth in traffic consisted of a 3% projection attributable to traffic growth with the remaining 2% coming from "committed development" traffic. Since the committed development traffic was factored into the Comp Plan's level of service determinations, Mr. Sebo contends that this 2% was double-counted in determining whether the Plan Amendment will result in a degradation of the level of service on Atlantic Boulevard. He also contends that the assumption of an annual 3% growth in traffic was probably overstated since the actual growth over the proceeding three years was much less than that. Mr. Keller confirmed some of these contentions. However, neither of these witnesses specifically addressed the increase in traffic on Atlantic Boulevard throughout the applicable planning periods set forth in the City's Comp Plan. Furthermore, it does not appear that either witness considered the possible need for a new traffic signal. Even with the clarifications provided by Mr. Sebo, there are some unexplained inconsistencies and/or ambiguities regarding the Tinter Study. For example, the Study assumes 5.92 trips per day per unit for the Oaks Tract development. Utilizing a formula set forth in the Institute of Transportation Engineer's Manual (the "ITE Manual"), this assumption would result in 7,131 trips per day. (7,131 = 1,196 x 5.92 + 51). Mr. Keller contends that 5.92 trips was probably excessive for a development like Oaks Tract. However, the ITE Manual sets forth the following trip generation projections: high-rise-4 trips per day per unit; garden apartments-6.8 trips per day per unit; townhouses-7.8 trips per day per unit; single family-10 trips per day per unit. As noted above, Oaks Tract, changed in 1986 or 1987 from all high-rise units to a mixed type of development comprised of single family detached homes, townhouses, garden apartments and high-rises. The Study's premise that the "[Apartment] category was selected as it has the highest trip generation rate of the various multi-family residential development categories listed in the [ITE] report" is apparently incorrect because townhouses are higher trip generators than apartments in the multi-family classification. Moreover, single family units, which are the highest trip generators of all, were not included in the analysis even though they will be part of the development. Thus, the Study arguably underestimated the number of trips. It should be noted that the county in its Comp Plan only considered 5,300 trips per day in calculating the committed traffic for Atlantic Boulevard from Oaks Tract. While the discrepancy between this figure and the calculations in the Study may be the result of the elimination of other access points, no clear explanation has been provided. The Study notes that peak hour traffic volumes were collected for the Study. However, no peak hour analysis was done for future traffic conditions. No explanation was provided in the Study as to why peak hour analysis was not done in accordance with Traffic Circulation Policy 02.05.2. As indicated above, at the hearing Mr. Sebo attempted to extrapolate a peak hour analysis from the information in the Study. This testimony was not persuasive because it did not take into account the possible addition of a new signal at the access point and/or at the turnpike interchange. Moreover, this testimony was not correlated with the evidence presented regarding the existing operating level of service for Atlantic Boulevard as calculated in accordance with the "trips model." At the hearing, DCA presented evidence that, subsequent to the adoption of the Broward Comp Plan, the operating level of service of Atlantic Boulevard as measured by the "trips model" has degraded from "D" to "E." This determination includes existing plus committed traffic. As noted above, under the "trips model", only 5300 trips per day from the Oaks Tract Subdivision were included as part of the committed traffic volumes. An addition of 1831 trips would further burden Atlantic Boulevard, which according to the evidence presented by DCA, is currently overcapacity and operating below its established level of service standard of "D." Neither Mr. Sebo's testimony nor any other evidence presented by the City specifically addresses this issue. In sum, because the Tinter Study did not adequately take into account impacts of adjacent development over the remainder of the planning period and did not analyze the impact of the Amendment in the context of the City and County's Comp Plans, it is not adequate to support the Amendment. The City's Response to the OCR did not adequately clarify the many questions raised by the Tinter Study. While the evidence at the hearing provided some elucidation, it still did not resolve all the issues. Consistency Issues DCA argues that the Amendment is internally inconsistent with several policies set forth in the City's Comp Plan. 1/ For example, DCA contends that the Plan Amendment is internally inconsistent with Traffic Circulation Policy 02.05.2 of the Comp Plan because the Tinter Study indicates that the change in the Traffic Circulation Network would lower the level of service of a portion of Atlantic Boulevard, an arterial road, to below the level of service standard of "D" adopted by that policy. As discussed above, the Tinter Study's reference to a deterioration in level of service was not predicated on the same methodology used in the Broward Comp Plan. Thus, there are some unresolved questions as to the actual impact of the Amendment on the level of service for Atlantic Boulevard. Accordingly, it is more accurate to conclude that the Amendment is not based on adequate data and analysis. In order to support the Amendment, the data and analysis should have demonstrated that the level of service as determined in accordance with the Broward Comp Plan would be maintained or improved. Alternatively, the City should have articulated a justification for lowering the level of service. Traffic Circulation Objective 02.03 of the City's Plan states: When reviewing development proposals, provide for minimal negative impacts associated with access point locations, and provide for safe and efficient on-site traffic circulation and parking, including provisions for handicapped users. The evidence in this case indicates the new access point may have a negative impact by lowering the level of service of a state road. While retaining the existing traffic circulation network could result in a deterioration of local roads or perhaps other state roads as Oaks Tract is developed, the choice between these two alternatives has not been fully explored and/or justified. Absent evidence that efforts have been undertaken to minimize negative impacts associated with the new access point, the Amendment, viewed in isolation, is inconsistent with Traffic Circulation Objective 02.03. Traffic Circulation Policy 02.05.01 of the Comp Plan states: Adopt the LOS standards as outlined and, for those facilities less than LOS "D", coordinate the designation of special transportation areas with the appropriate state, regional and county planning agencies. Under this policy, a special transportation area designation could have been adopted by the City if the level of service of Atlantic Boulevard will fall below "D". No such special transportation area is identified in the Amendment. The City's Comp Plan contains several other policies and objectives that may be contravened if the Amendment leads to the degradation of the level of service of Atlantic Boulevard. Traffic Circulation Policy 02.05.06 states: After January 1990, or when required by state statute, the City will only issue development permits for projects impacting links identified from Policy 02.05.05, under the following circumstances: . An approved traffic impact study shows that projected traffic conditions are not degraded below LOS "D" at project buildout. . There is an approved Action Plan accompanying the traffic impacts of the proposed development where an Action Plan refers to any combination of accepted transit, ride-sharing, transportation systems management methods, etc. of traffic impact mitigation. . The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Commission determines they will be under contract during the same fiscal year. . The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Traffic Circulation Objective 02.07 states: Protect and obtain future rights of way necessary for transportation purposes. Traffic Circulation Objective 02.08 states: The City shall coordinate with the plans and programs of the Broward County Metropolitan Planning Organization (MPO), Broward County and the Florida Department of Transportation's Five Year Transportation Plan. Traffic Circulation Policy 02.09.04 states; Approve additional city development in concert with maintenance of the adopted level of service standard. The Amendment, viewed in isolation, is potentially inconsistent with Policy 02.05.06, Objective 02.07, Objective 02.08 and with Policy 02.09.04 because the development activity associated with the Amendment (vacating an existing right-of-way and creating an exclusive access to Atlantic Boulevard) may degrade the level of service for Atlantic Boulevard. The South Florida Regional Policy Plan is the regional policy plan which applies to the City. Public Facilities Policy 18.1.3 of the regional policy plan states: Encourage the use of mechanisms that provide incentives for development to use existing public facilities and services. Transportation Policy 20.1.7 of the regional policy plan states: Encourage the uses of transportation through management strategies to reduce the congestion and to maximize the use of existing transportation facilities. Transportation Policy 20.1.13 of the regional policy plan states: Local governments should adopt or amend their ordinances to protect or preserve transportation corridors and rights of way identified in local government comprehensive plans or in the state or regional plan. The Amendment, viewed in isolation, arguably conflicts with Public Facilities Policy 18.1.3, Transportation Policy 20.1.7, and Transportation Policy 20.1.13 because, rather than encouraging the use of, protecting and preserving an existing right-of-way, the City is eliminating it. The City has not demonstrated that any policies or goals of the regional policy plan will be achieved by the Amendment and/or that the Amendment would in any way further the South Florida Regional Policy Plan construed as a whole. State Comprehensive Plan Transportation Policy 20(b)3. states: Promote a comprehensive transportation planning process which coordinates state, regional, and local transportation areas. Contrary to Transportation Policy 20(b)3, there was no coordination of the City's action with the county or state transportation plans. Furthermore, the evidence does not reflect that any State Comprehensive Plan goals or policies will be furthered by this Plan Amendment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs submit this Recommended Order to the Administration Commission for entry of a final order determining that the subject plan amendment is not in compliance for the reasons set forth above. DONE and ENTERED this 2nd day of November, 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 2nd day of November, 1992.
