The Issue Whether Petitioner David Russ has standing to bring these proceedings.
Findings Of Fact Petitioner Russ did not submit oral comments to the local governments between the time of the transmittal hearing for the plan amendment at issue in this case and the adoption of the plan amendment. Petitioner Russ testified that he faxed letters to Tallahassee City Commissioner Ron Weaver and Leon County Commissioner Gary Yordan during the required time period, but this assertion is not corroborated by any other testimony or exhibits. Although Petitioner Russ testified that he used paper- printed original documents to effectuate the fax of the written comments or letters, he did not present any documentary evidence in corroboration. He presented no documents or other evidence of attempts to follow-up or confirm receipt of his faxed comments by the local governments. A reasonable, diligent and thorough search by those personnel charged with responsibility for maintaining correspondence files of City Commissioner Ron Weaver and Leon County Commissioner Gary Yordan, as well as the joint city/county planning department, was conducted in order to locate the written comments purportedly faxed to the local governments by Petitioner Russ. No documents, relating to those written comments and allegedly sent during the comment period for the plan amendment, have been found. Petitioner Russ admitted at the hearing that he possesses copies of all correspondence and pleadings generated by himself in this challenge to the amended plan with exception of those initial written comments. In the course of his testimony, Petitioner Russ speculated with regard to his inability to corroborate his assertion that he did fax written comments. That speculation included his supposition that computerized copies of the documents in his computer may have been lost through possible destruction of the files during a computer repair or renovation, or that he might have saved the documents on a floppy disk which has subsequently been misplaced. The overwhelming evidence clearly and convincingly establishes that the documents are not, and have never been, in the possession of the local governments in this case. Such evidence results in the finding that contrary testimony, absent some extrinsic corroboration that the documents were submitted, cannot be credited.
Recommendation It is recommended that a final order be entered in this case, Division of Administrative Hearings Case Number 97-2750GM, finding that Petitioner Russ is without standing to maintain these proceedings and dismissing his Petition Challenging Plan Amendments And Findings of Compliance. DONE AND ENTERED this 22nd day of August, 1997, at Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1997. COPIES FURNISHED: James V. Cook, Esquire 217 South Adams Street Tallahassee, Florida 32301 James W. Linn, Esquire Cari L. Roth, Esquire Post Office Box 10788 Tallahassee, Florida 32302 Deborah Minnis, Esquire C. Graham Carothers, Esquire Ausley and McMullen Post Office Box 391 Tallahassee, Florida 32302 Julie E. Lovelace, Esquire James R. English, Esquire City Hall 300 South Adams Street Tallahassee, Florida 32301 David J. Russ, Esquire 6823 Donetail Trail Tallahassee, Florida 32308 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 James F. Murley, Secretary Department of Community Affairs Suite 100 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100 Stephanie Gehres Kruer, Esquire Department of Community Affairs Suite 325-A 2555 Shummard Oak Boulevard Tallahassee, Florida 32399-2100
The Issue The issue is whether Plan Amendment 98-51C adopted by the City of Ocala by Ordinance No. 2869 on August 4, 1998, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this land use dispute, Petitioner, Shady Historic and Scenic Trails Association, Inc. (SHASTA), has challenged the consistency of a plan amendment adopted by Respondent, City of Ocala (City). The amendment changes the land use on certain real property owned by Intervenor, Norbert M. Dorsey, as Bishop of the Diocese of Orlando (Intervenor). By stipulation, the parties have agreed that SHASTA is a not-for-profit corporation whose members include residents of Marion County, Florida (County). Through the testimony of its registered agent, it was established that SHASTA is a "county- wide organization" formed in 1985 because of its concern "about where growth was going," and the potential impact of growth on the "plan." Another witness (Baldwin) made comments to the City at one of its meetings concerning the adoption of the plan. Whether she is a member of SHASTA is not of record, and it can reasonably be inferred that the witness resides and owns property outside of the City. SHASTA's registered agent also presented testimony at hearing, but whether she resides within the City or in the County is unknown. Finally, while SHASTA's registered agent presented argument during her opening statement concerning the organization's standing, she presented no evidence (through sworn testimony or exhibits received in evidence) that any member of the organization who resides, owns property, or owns or operates a business within the City made comments, recommendations, or objections to the City during the course of its review and adoption of the amendment. Therefore, there is insufficient evidence to demonstrate that Petitioner is an affected person within the meaning of the law. The City is a local government located within the County. It is one of five cities in the State designated by the Department of Community Affairs (DCA) as a "sustainable community" under Section 163.3244, Florida Statutes (1999). To this end, the City has entered into a sustainable community designation agreement with the DCA, and thus its plan amendments are not reviewed by the DCA or the regional planning council. Intervenor is an affected person since it owns the property which is the subject of the amendment. The amendment The City adopted plan amendment 98-51C by Ordinance No. 2869 on August 4, 1998. That amendment changed the land use on Intervenor's property from agriculture to public buildings and facilities. Section 1.1.12 of the City's Future Land Use Element specifies that the public buildings and facilities category "includes areas or facilities that serve the general public," such as "government buildings, public grounds, airports, cemeteries, churches and educational facilities." In making its recommendation, the City's Planning Department considered factors such as the type of soil on the property; the absence of known caves, sinkholes, or wetlands on the site; the suitability of the property for development; the property's location in the City's urban service area; the County's land use designation of the property as an urban land use; and the compatibility of the property with the surrounding land uses, including the proximity of the property to adjacent developments of regional impact (DRI), malls, large movie theaters, shopping centers, and other heavy commercial and retail development. In addition, the Planning Department considered the comments of other state and governmental agencies, including the DCA, St. Johns River Water Management District (SJRWMD), and County. The County did not object to the amendment. Based on the foregoing data and analysis, the Planning Department recommended to the City's Planning and Zoning Commission (Commission) that the plan amendment be adopted. The Commission in turn recommended to the City Council that the amendment be approved. That recommendation was accepted by the City on August 4, 1998. The property The subject property consists of 40 acres and was annexed into the City in 1998. It lies within the boundaries of the City at the southeastern corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue. Both roads are two-lane paved roads designated by the County as special scenic roads. This means that the right-of-way on those roadways cannot be widened or altered, and trees cannot be removed in or adjacent to the right-of-way. Prior to annexation, the property had a low-density residential land use designation in the County, and it was zoned agricultural. However, this zoning was inconsistent with the land use designation and a more likely zoning classification under the County comprehensive plan would have been R-1, which permits a maximum of four dwellings per acre. Had the property been assigned a City zoning classification most similar to the County's R-1, it would have received a low-density residential use allowing five residential units per acre. Intervenor purchased the property for the purpose of building a private school on the site. In the County, schools are located in both rural and urban areas. Under the County's land use designation for the property, schools are an allowable use. Before the property was annexed, it was located within what is known as the City's "urban service area." Under an interlocal agreement with the County, the City had the exclusive right to provide water and sewer services to that area and to condition the provision of such services upon annexation. At the time the plan amendment was adopted, the property immediately south of the subject property was being operated as a thoroughbred horse farm known as Glen Hill Farm. Immediately to the north and across Southwest 42nd Street was property with a land use designation of low-density residential allowing five residential units per acre. That property was previously approved as a planned unit development of mixed commercial and residential uses. The adjacent property on the northwest corner of the intersection of Southwest 42nd Street and Southwest 27th Avenue has been developed as a high-density assisted living facility. Immediately behind the assisted living facility are two DRIs. The first includes retail uses (including a shopping center), professional and medical offices, two large apartment complexes (consisting of more than 700 units), and three or four nursing homes or adult living facilities; this DRI would allow a vocational or technical school with approximately 500 students. The second DRI consists of the Paddock Mall, which includes 580,000 square feet of developed retail use and another 173,000 square feet of available but undeveloped use. Across Southwest 27th Avenue to the west is property commonly known as the Red Oak Farm property, which is the subject of another plan amendment challenge by Petitioner in Case No. 98- 4144GM. That amendment allows medium-density residential use. Finally, the property is located within one mile of the fastest growing and most intensively developed property within the City, which lies in and around State Road 200. The objections raised by Petitioner In its Amended Petition filed on November 2, 1998, SHASTA has alleged that the plan amendment is not in compliance for a number of reasons. They include contentions that the property is unsuitable for a private high school in that all of the land slopes to the south where extensive flooding has occurred (paragraph 9); that the site cannot be engineered to prevent flooding or that control surface water flow by retention ponds will leak into the aquifer (paragraph 10); that the site is vulnerable to stormwater pollution (paragraph 11); that the City has inadequate data and analysis to support development regulations for natural resources protection, including sinkholes and floodplains pursuant to the Conservation Element (paragraph 12); that the City has not specified how sinkholes or solution pipes to the aquifer will be protected pursuant to Policies 1.5 and 1.7 of the Conservation Element (paragraph 13); that the City has violated Policy 1.4 of the Conservation Element by not continuing the County land use designations on the property (paragraph 14); that the City has not distributed proposed interlocal agreements for annexation and future land uses as required by Policy 2.8 of the Future Land Use Element (paragraph 15); that the amendment is not in compliance with Goal II of the Future Land Use Element (paragraph 16); that the amendment is not in compliance with Policy 3.5 of the Intergovernmental Coordination Element (paragraph 17); that the amendment is inconsistent with revisions made by the 1998 Legislature concerning school siting in Section 163.3177(6)(a), Florida Statutes (1999)(paragraph 18); that the amendment does not further "the six broad principles of sustainability," as set forth in Section 163.3244(1), Florida Statutes (1999)(paragraph 19); that extending water and sewer lines to the property is unfair to City taxpayers (paragraph 20); that City taxpayers will be forced to pay a higher rate to fund expansion of City services into the area (paragraph 21); and that the school will not be compatible with adult living facilities located northwest of the property (paragraph 24). Allegations not raised until hearing, such as a contention that the amendment would promote urban sprawl, were deemed to be untimely raised and were not considered. Finally, concerns about the specific design of the school, assuming one is built, are not relevant to a determination of whether the amendment is in compliance. As to the allegation in paragraph 18 concerning the amendment's lack of compliance with school siting requirements in Section 163.3177(6)(a), Florida Statutes, that allegation is irrelevant since the new law became effective more than a year after the amendment was adopted. Likewise, the allegation in paragraph 19 has been found to be irrelevant for the reasons stated in the Conclusions of Law, while the allegation in paragraph 16 regarding Goal II of the Future Land Use Element has no relevance to the amendment since it refers to a transportation concurrency exception/urban area redevelopment area, a matter not in issue here. Finally, the allegations in paragraphs 20 and 21 regarding the potential for taxes being raised are not grounds on which to find an amendment not in compliance. The undisputed (and only) evidence shows that there are no sinkholes or known wetlands on the property; that the property did not have a conservation land use under the County's Comprehensive Plan; that the City has entered into an interlocal agreement with the County establishing an urban service area; that the amendment is compatible with surrounding land uses, including adult living facilities; and that the City considered and analyzed all of the data summarized in Findings of Fact 6 and 7 before it adopted the amendment. Therefore, the allegations in paragraphs 12-15, 17, and 24 of the Amended Petition have not been sustained. Still in issue are the allegations in paragraphs 9-11 of the Amended Petition concerning potential flooding and stormwater pollution. They will be discussed below. The property The property was once one of the three largest horse farms in the County. These farms have already been developed or, as is the case here, are in the process of being developed. The entire City, including Intervenor's property, and most of the land in the County, lie within a Karst sensitive area, which features sinkhole and cave systems. Mapped and documented cave systems are found approximately one-half mile to the west- southwest (Briar Cave) of the property and a like distance to the east (Oak Creek Caverns). However, no sinkholes, caves, or wetland systems have been found on the property, and the rules of the SJRWMD pertaining to Karst sensitive areas do not prohibit the construction in question. The tract is part of a high Floridan Aquifer (Aquifer) recharge area which permits very rapid infiltration of surface waters to the Aquifer, and it discharges into a 100-year-old flood plain. However, the property itself is not located in a flood plain. Two basic soils are found on the property. They are the Kendrick soil and Zuber soil. Due to shrinkage or swelling of the clay and "low strength," these types of soil present "slight" or "moderate" construction limitations. Expert testimony confirmed, however, that through good planning and design, or presite removal of the soils, these limitations could be readily overcome. This was also acknowledged by two of Petitioner's witnesses. At the same time, if SJRWMD regulations for construction of water retention areas in Karst sensitive areas are followed, those limitations would be resolved. Typically, the City does not impose specific requirements concerning stormwater retention or groundwater protection at the comprehensive plan stage. Rather, these are normally imposed through the City's land development regulations at the site plan stage of the process. Presumably, at that point, Petitioner will have an opportunity to raise these types of concerns. The City has had experience with other properties having Karst topography and water recharge features similar to the property in question. For example, on the Heathbrook DRI, the City imposed groundwater protection provisions which other local governments throughout the State have used as a model for other developments. To prevent groundwater contamination, the City uses a tool called a DRASTIC Index (Index), which was prepared by the United States Environmental Protection Agency. The Index is used by the City and a host of other regulatory agencies to determine the potential of property for groundwater contamination. According to the Index, the property is less vulnerable to contamination than approximately seventy percent of the rest of the land in the County. City water facilities are available in the right-of-way on the north and west sides of the property, while City sanitary sewer facilities are approximately one-half mile away. If the project goes forward, Intervenor would be required to run sewer lines from the existing sewer facility to the improvements to be located on its property. If stormwater retention facilities are constructed on the property pursuant to City land development regulations, more pre-development water would be retained on the property than would be the case if the property were not developed. In addition, less runoff would be generated from the property if it were developed under the public buildings and facilities land use than would occur if the property was developed under the City land use most comparable to the County's R-1 classification. The potential for flooding Because the property slopes from the north to the south, stormwater run-off naturally flows over the property to the south and east across Glen Hill Farm to a natural low area or pond located on that farm. The evidence shows that in February and March 1998, when unusually heavy rains occurred, substantial flooding occurred on the farm, causing one of its road to be closed for almost two weeks. Intervenor has entered into an agreement with Glen Hill Farm whereby the farm has agreed to allow a portion of stormwater to continue to flow onto its property. Without such an agreement, the City would have required that Intervenor retain all stormwater from a 100-year storm on its property. A stormwater run-off system and a drainage system can be designed on the property to fully satisfy the SJRWMD's Karst sensitive development regulations. Such a system will retain all post-development run-off created by a 100-year storm. Thus, development of the property is unlikely to cause flooding on adjacent properties. Stormwater runoff As noted above, the SJRWMD has promulgated regulations for the design and construction of drainage systems and drainage basins within Karst sensitive areas, which are designed to protect against stormwater run-off contamination of the underlying aquifer. These regulations are more stringent than those that apply to other areas; if adhered to by Intervenor, they will adequately contain and control stormwater run-off and prevent groundwater contamination. In order to develop the property, Intervenor will be required to go through the site plan approval process with the City and to comply with the SJRWMD Karst sensitive regulations. Sufficient testing has been performed on the property to determine that stormwater retention systems may be designed for the property which will avoid unreasonable risk of groundwater contamination. The land use assigned to the property has less potential for detrimental impact upon the environment than would occur had the County permitted development using an R-1 classification, or a similar one by the City upon annexation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Ocala enter a final order finding Plan Amendment 98-51C to be in compliance. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER , Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2000. COPIES FURNISHED: Darlene Weesner, Registered Agent Shady Historic and Scenic Trails Association, Inc. 655 Southwest 80th Street Ocala, Florida 34476 W. James Gooding, III, Esquire Gilligan, King & Gooding, P.A. 7 East Silver Springs Boulevard Suite 500 Ocala, Florida 34470-6659 Bryce W. Ackerman, Esquire Hart & Gray Post Office Box 3310 Ocala, Florida 34478-3310 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325A Tallahassee, Florida 32399-2100
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
The Issue Appellant raises three issues on appeal: (1) whether there is competent substantial evidence to support certain findings in the Resolution; (2) whether the Commission departed from the essential requirements of the law by incorrectly applying and interpreting the definition of "public buildings"; and (3) whether the Commission denied Hoover "a fair and impartial hearing" by basing its decision "on a plebiscite from a hostile crowd." For the reasons expressed below, the Commission's Resolution is affirmed.
Findings Of Fact Respondent Jorge L. Cabrera owns a parcel of land on Plantation Key some 2.73 acres in size. It is adjacent to U.S. Highway 1 and was previously zoned BU-2, a medium business district zoning classification. Respondent Cabrera filed his rezoning petition seeking a rezoning to BU-3Y, which would have permitted, among other uses, a cement plant, a petroleum storage and distribution facility, warehouse facilities, the repair and storage of construction equipment, an asphalt plant, or industrial parks. He initially informed the Zoning Department of Monroe County, in conjunction with his application for rezoning, that he intended to use the subject site as a storage area for construction equipment. The Respondent's property is located in a predominantly business area. Immediately across the highway is the State of Florida Highway Patrol Station, through which all trucks passing through the Florida Keys must stop for weighing. The property adjacent to the Respondent's property has a mixture of uses, including a gas tank storage area, a church, a bakery, a trucking company immediately adjacent to the property, heavy equipment storage and a radio transmission tower. To the rear of the property is a parcel owned by Howard Bonebrake consisting predominantly of mangrove wetlands. Howard Bonebrake appeared before the Zoning Board at its April 22, 1982, hearing in Key West, as did representatives of the Upper Keys Association and other residents in the Upper Keys Association and other residents in the Upper Keys and the vicinity of the subject site, in opposition to the proposed rezoning. The Department of Community Affairs is the state land planning agency designated by Chapter 380, Florida Statutes, to undertake statewide comprehensive planning. This project lies within Monroe County, Florida, which is the local government agency which issued the development order respecting the proposed development. On April 19, 1982, at a meeting held in Marathon, Florida, the Board of County Commissioners of Monroe County discussed the Zoning Board meeting which was scheduled for April 22, 1982. The minutes of the County Commission meeting reflected that the following action was taken under the category "Reports and Recommendations of Board Members": A motion was made by Commissioner Blair and seconded by Commissioner Harvey instructing the Zoning Board to Continue the meeting scheduled for April 22, 1982, to the Upper Keys consistent with the Board's policy of holding meetings in the areas affected. Roll call vote was taken and carried unanimously. No copy of a resolution embodying this Commission action has been placed into evidence. On April 22, 1982, the Zoning Board held a public hearing in Key West, Florida. Among the items on the agenda was Respondent Cabrera's rezoning application. Zoning Board Member Dagny Johnson sought to have that rezoning petition continued. A member of the Monroe County Commission, Jerry Hernandez, appeared before the Zoning Board at that hearing and advised the Board that it was the intent of the County Commissioners in that April 19 motion to allow the Zoning Board to decide whether the rezoning application by Cabrera was a "controversial issue" or not. He further advised the Zoning Board that it was the Board of County Commissioners' policy to hold hearings in the area of zoning impact or change when controversial issues were involved. He further advised the Board that the County Commission did not seek to dictate a decision on the location of the public hearing to the Zoning Board, but that that was a decision the Zoning Board must make itself. The chairman of the Zoning Board then stated that he had received no instruction from the County Commission to continue the hearing. Zoning Board Member Johnson then moved to have the Zoning Board hear zoning cases in the area in which the pertinent property is located. That motion failed for lack of a second. The Zoning Board's resolution granting Respondent Cabrera the requested rezoning was appealed to the Monroe County Board of County Commissioners, which affirmed the Zoning Board's decision on August 9, 1982. A motion for rehearing was denied by the County Commission on August 23, 1982. Among the arguments advanced in the appeal to the County Commission and in the rehearing were that the Zoning Board had violated its procedural rules and the County Commission's instructions by hearing the rezoning petition in Key West instead of at the property site on Plantation Key. In spite of the fact that the hearing was conducted in Key West, the adjoining landowner and others in the above association who opposed the rezoning applications had notice of and were in attendance at the rezoning hearing. Under Monroe County's Major Development Ordinance, adopted by reference as Rule 27F-9.17, Florida Administrative Code, parcels of land of five acres or more involved in a zoning application are considered to be major developments, and their developers are required to submit extensive environmental and public service impact statements. The Zoning Board and its staff also have discretionary authority to declare a project slightly smaller than five acres to be a major development and entitled to such detailed survey and study if the anticipated use is likely to be environmentally damaging, or if the projects meet certain other specific major development criteria. Monroe County's Chief Planner, Dr. Jeffery Doyle, testifying on behalf of Petitioner, established that no project under three acres had ever been considered by the Zoning Board or its staff to be a major development, nor has any concrete batching plant in Monroe County been declared to be a major development by the Zoning Board or its staff in the past. Concrete batching plants are different, in terms of environmental impacts, from large cement-producing plants, which pose substantial environmental considerations due to their release of substantial dust and particulate pollutants. Such is not the case with the relatively small concrete batching plant involved in this rezoning application and order. Although there was some speculation regarding large amounts of water which a concrete batching plant might use, water being relatively scarce in the Keys, no potential environmental damage posed by the rezoning and the resultant construction or installation of the concrete batching plant was shown. It was not demonstrated at the hearing before the Zoning Board, nor the Hearing Officer, that this project meets any criteria for being characterized as a "major development." Although a witness for the Petitioner, former County Commissioner Curtis Blair, stated that it was his belief that Monroe County had a policy of hearing zoning applications in the area where the property to be rezoned is located, he was unable to recall any actual adoption of such a policy. He acknowledged that no such rules of procedure for locations of Zoning Board hearings had been placed of record by the County Commission or the Zoning Board and admitted no such rules of procedure for hearing locations had been adopted. Rather, specific requests have been made from time to time of the Zoning Board on specific zoning matters regarding locating the hearings related thereto near the site of the property at issue. The purpose of this supposed "policy" would be to allow citizens most affected by a zoning change to appear and testify regarding it. Representatives of the Upper Keys Citizens Association and the neighbor, Mr. Bonebrake, all of whom oppose the project, were present at the hearing in this instance, however, and testified before the Zoning Board despite the fact that the venue of the hearing was in Key West. At the time the County Commission passed its April 19, 1982, motion regarding the request of the Zoning Board to hold the hearing in Plantation Key, the public notice of the Zoning Board hearing had already been promulgated and published and notices had already been sent to the adjacent property owners. Further, the Zoning Board's agenda had already been promulgated and published. Mr. Blair admitted that the April 19, 1982, motion was never incorporated in a resolution of the Board of County Commissioners. Former Zoning Board Member Dagny Johnson, testifying for the Petitioner, was of the belief that the Zoning Board had a policy to hold meetings in the affected locality, but could not establish the source of any such policy. She admitted that her view of that policy was in the minority and that the other four Zoning Board members did not agree with her that such a policy existed. Although she was certain that all major development projects which were the subject of zoning hearings were heard in the area affected, she could not recall that all other zoning change matters were heard in the affected locality and, in fact, recalled a number of cases where zoning applications were duly agendaed and noticed to the public involving projects outside the locality where the Zoning Board hearing was conducted. Both witnesses Johnson and Doyle for the Petitioner conceded that the applicant's statement of his intended use of the subject property to be rezoned has "no significance" and that the zoning applicant's intended use is not required to be advertised to the public. Rather, the proposed zone change is the subject of public notice. The applicant, once having secured BU-3Y zoning, could erect whatever structure or perform whatever use that zoning permitted, regardless of the use he may have initially proposed in the zoning application. The applicant's intended use could change; and once the property is rezoned, the property can be put to whatever use the applicant and owner chooses, provided it is within the authorized uses of the new zoning. Respondent Cabrera in this instance informed the Zoning Board at the hearing of his ultimate intended use, that is, the erection of a concrete batching plant. This was before his application was finally considered and voted upon. He informed the neighboring landowners personally of the intended use of the property prior to the Zoning Board hearing. Those neighboring landowners were in attendance at the hearing and were given an opportunity to oppose his application. At the Zoning Board hearing of April 22, 1982, Ms. Johnson made a motion calling for the Board to affirm the existence of a policy requiring all zoning changes to be heard in the portion of the Florida Keys where the properties which are the subject of the zoning applications are located. This motion was rejected by the Board, and thus at that point the Zoning Board had not affirmed the existence of such a definite policy. There is no dispute that there is no written rule or policy of the Zoning Board requiring zoning matters to be heard in the locality of the property which is the subject of a zoning application. Further, the Zoning Board's agendas do not show any consistent pattern that such hearings are conducted in the venue of the subject property; rather, some rezoning applications were agendaed in the locality of the property involved, and some were agendaed outside of the area involved in zoning or rezoning applications. It was not shown that the Zoning Board's agendas uniformly set rezoning applications for hearing in the area of impact. Thus, it was not established that any such policy existed in April, 1982, the time period pertinent hereto.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED: That the Petition of the Department of Community Affairs be DENIED. DONE AND ENTERED this 20th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1983. COPIES FURNISHED: Eric Taylor, Esquire Barry F. Chiles, Esquire Assistant Attorneys General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301 Mr. John T. Herndon Secretary Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301 James T. Hendrick, Esquire Albury, Morgan & Hendrick, P.A. 317 Whitehead Street Key West, Florida 33040 E. Baxter Lemmond, Esquire Assistant County Attorney Monroe County 310 Fleming Street Key West, Florida 33040 C. Laurence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301 The Honorable George Dolezal Box 1029, Duck Key Marathon, Florida 33050 The Honorable Bob Graham Governor The Capitol Tallahassee, Florida 32301 The Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 The Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida 32301 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 The Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32301
The Issue The issue is whether Respondent violated Section 112.313(6), Florida Statutes, by misusing her position as a Town Councilperson to obtain a personal benefit, and if so, what is the appropriate penalty.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, Florida Statutes, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, Florida Statutes, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report, recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Ms. Jones is subject to the Code of Ethics. She was first elected to the Town Council of the Town of Pierson, Florida, in 1990, and she served four two-year terms. She served from 1990 to 1994 and then from 1998 until her term ended September 30, 2002. Ms. Jones also sat on county zoning boards for eight or nine years and was on the City Zoning Board prior to being elected to the Town Council. She is knowledgeable with regard to the process of zoning. Pierson, Florida, is a town of about 3400 people. It is known for the production of ornamental ferns. The Pierson Town Council has the power, through adoption of ordinances, to change the zoning of parcels of land within the Town of Pierson. Prior to 1992, this was accomplished by maintaining a file of city ordinances affecting zoning. There was no zoning map. In 1994, a zoning map, printed on a vellum-like medium, was produced. This map, which will hereinafter be referred to as the "official zoning map," actually consisted of three separate sheets. It was precise and accurate in its depiction of the location of individual parcels and roads and streets. However, the lines denoting zoning were crudely drawn with a grease pencil. In 1999, it was believed it lacked completeness in that changes made by ordinance had not been entered upon it. The "official zoning map" of the Town of Pierson was maintained by the Town Clerk. The Town Clerk's duties included maintaining personal control of the map. The Town Clerk, as a matter of policy, would not permit the map to leave the clerk's office unless accompanied by the Town Clerk. The map was locked in a safe in the clerk's office except when it was being viewed by someone in the presence of the clerk. This policy was in place in order to deter the possibility that someone might surreptitiously alter the map. Robert Allen Keeth (Mr. Keeth), is employed as a planner for the Volusia County Metropolitan Planning Organization (MPO). The Town of Pierson contributes to the cost of the operation of the MPO, and receives services from it. As a planner for the MPO, Mr. Keeth works with the Town of Pierson and he has done so since at least the early 1990's. In accomplishing these duties, he works with the Town Council; the town attorney, Noah McKinnon; the Planning Commission; and other citizens of Pierson. He has known Ms. Jones since the early 1990's. With substantial input from Mr. Keeth, the Town of Pierson adopted a comprehensive land use plan, entitled the Unified Land Development Regulations (ULDR). The Town Council adopted the ULDR on February 22, 1994. Since its adoption, the ULDR provides a regulatory scheme for storm water management, resource protection, signs, and zoning, among other things. The ULDR also provides a method for amending the zoning scheme. Section 10.6.1 provides for the application process; Section 10.6.2 provides for Planning Commission review and for a public hearing; Section 10.6.3 provides for a Town Council review and a public hearing after due public notice; and Section 10.6.4 provides that amendments to zoning must be made consistent with the comprehensive plan by amending the plan if necessary to achieve that goal. The fee for amending a zoning classification of a parcel of land, during times pertinent, was set at $150. By 1995, digitalized mapping became commonplace and Mr. Keeth suggested to the Town Council, during 1995, that the official zoning map of the Town of Pierson be replaced with a digital map. The council agreed that a digital map should be prepared and adopted. The council did not immediately act on this decision. It was probable that there would be some changes in connection with the adoption of the digitalized map. This was because the "official town map" then in use was crudely drawn and might not be completely accurate in some respects and because ordinances had been passed affecting zoning which were not reflected on the "official zoning map." Moreover, when one changes an original map to a digital map it is unlikely to scale correctly or align correctly. The process of preparing a digitalized map is not designed to bypass the processes set forth in Sections 10.6.1 through 10.6.4 of the ULDR. The creation of a new map through digitalization was described by Mr. Keeth as "replacing a map." "Replacing a map" is a form of administrative rezoning. Administrative rezoning occurs when, after notice and hearing, an authorized governmental body changes the zoning of a parcel of property without receipt of an application from the owner. Section 166.041, Florida Statutes, addresses administrative rezoning. On or about November 25, 1998, Mr. Keeth prepared a written proposal to the Town Council with regard to creating a digital zoning map. Shortly thereafter, subsequent to approval by the Town Council, Mr. Keeth began preparing a new zoning map for the Town of Pierson. It was Mr. Keeth's understanding that Samuel Bennett, Chairman of the Town Council, would work with him in preparing the new map. Mr. Keeth and Ms. Jones had discussions with regard to the process involved with producing an accurate digitalized map. It was understood that it was possible that zoning changes might be affected which were not supported by any ordinance. This would not occur, in Mr. Keeth's opinion, until after public workshops and hearings. Ms. Jones, during times pertinent, owned a parcel of property in the northeast quadrant of the Town of Pierson on Minshew Road. This property was zoned A-1 (agriculture). It was a ten-acre parcel and the sole improvement was a packing shed. The packing shed occupied a small part of the ten acre parcel. Ms. Jones, during times pertinent, also owned a fence company in DeLand, Florida. She determined that she could reduce operational costs with regard to the fence company by moving the fencing materials associated with the business to the parcel on Minshew Road. Ms. Jones was paying rent in excess of $1,600 per month to store the materials in DeLand. In order to store the materials on the Minshew road property it was necessary to change the zoning classification of the parcel to B-1 (general retail commercial development). Mr. Keeth and Ms. Jones discussed the Minshew Road parcel and Ms. Jones revealed that she wanted to change the designation to B-1 (general retail commercial development), or to B-2 (heavy commercial and industrial development) or in any event, to a designation which, in Mr. Keeth's opinion, would allow the storage of fencing materials on the property. Mr. Keeth said that it would be permissible for her to pencil in the change she desired. She penciled in this change on the "official zoning map" in March or April in 1999. The pencil change was accomplished immediately subsequent to a meeting of the Town Council. The suggestion for change accomplished by Ms. Jones was not made surreptitiously. Ms. Jones told Mr. Keeth that she did not want it to appear that she was getting any special favors because of her position. Mr. Keeth told her he did not see a problem with the change and told her she could, "Pencil it in on the map," referring to the "official zoning map." By May 7, 1999, Mr. Keeth had prepared an initial draft map and on that date he sent a memorandum to the Pierson Town Council suggesting they review the initial draft map at Town Hall and forward comments to him by May 21, 1999. This map cannot be located. Another was created prior to November 29, 1999, which bore the date "November 29, 1999." On this map, Ms. Jones' parcel was labeled B-2 (heavy commercial and industrial development) rather than the B-1 which had been entered in pencil by Ms. Jones. The only other person to make pencil marks on the map was Samuel Bennett, who was also a town councilperson. Mr. Keeth considered these marks to be "suggestions" rather than changes. Mr. Keeth knew of no formal process, nor was the council aware of any formal process, for converting the "official zoning map" to a digital map. However, it is clear that Mr. Keeth believed that public workshops would be convened as part of the process and he believed that the Town Council would have to approve the final draft by ordinance. That he was correct in that belief is evidenced by the process which eventually resulted in the adoption of a final map on September 12, 2000, using that process. There were several draft maps produced during the period November 1999 through the winter and spring of 2000, but the drafts were not numbered or dated. As many as six draft maps were produced some of which never left Mr. Keeth's office. The maps were stored in the hard drive of his computer. On some drafts the words "Ordinance number ## , Jan ## , 2000" appeared. Changing a zoning classification from agriculture to business use does not automatically mean that the market value of the property is enhanced. However, because people do not ordinarily act contrary to their economic interest, it is found that the zoning suggestion made by Ms. Jones, would have represented value to her had the change been made. Moreover, as noted above, the suggestion, had it resulted in a change in zoning, would have allowed Ms. Jones to store materials at no cost instead of the $1,600 per month she was paying to store them in DeLand. Many citizens of the Town of Pierson eventually learned of the penciled changes. As a result, rumor and innuendo with regard to the changes coursed through the community. During this period, Ms. Jones confronted Deborah LeBlanc, the Town Clerk, and accused her of being insubordinate and stated that, "Your memory doesn't have to be so good." This indicates that Ms. Jones was aware that she should not have made the marks on the map. On April 14, 2000, Ms. Jones asked Mr. Keeth to remove her pencil marks and asked that the zoning for the Minshew Road property remain as it was before the "replacing a map" process was initiated. As late as the July 11, 2000, Town Council meeting, the Minshew Road change was still displayed on the draft. By late June or early July 2000, citizens were vigorously complaining to the Town Clerk and others about the Jones and Bennett changes. The issue became one of wide-spread interest in Pierson. In early July, Mr. Keeth concluded that the matter was getting out of hand. On July 10, 2000, in a memorandum to the Town Council, he noted that there was a perception that the map was being amended without full disclosure and review. Amendments were made on the draft maps as the result of other citizens making suggestions to Mr. Keeth. These amendments affected the Community Christian Assembly, Lois Taylor, Wilsey Bennett, and Shane Crosby. These suggestions were discussed at the July 11, 2000, Town Council meeting. In the case of Wilsey Bennett the changes were made to conform to an existing use. In the case of the Community Christian Assembly, the property was subject to a special exception. Neither the Town Council, nor the unhappy and vocal citizens present at the council meeting of July 11, 2002, indicated that there was any question about the propriety of these changes. There is no evidence in the record as to the circumstances of the amendments in the case of Taylor or Crosby. It cannot be determined if these amendments resulted in substantial changes or whether they were made to reflect existing uses or to indicate prior changes which should have been previously placed on the "official zoning map." By whatever process used, the changes were not made by merely penciling in the change and neither the Town Council, nor the unhappy and vocal citizens attending the council meeting of July 11, 2002, indicated that there was any question about the propriety of these changes. At a Town Council meeting on July 13, 2000, it was decided that Mr. Keeth would work with the Town Clerk to prepare another zoning map which represented the current state of zoning. This was to be done by looking at town records and the "official zoning map," without reference to the pencil marks entered with regard to Ms. Jones' or Mr. Bennett's property, and without reference to any other suggestions for change. At a Town Council meeting on September 12, 2000, it was affirmatively decided that the digitalized zoning map would be accepted which reflected only changes supported by properly prepared ordinances. A final draft was approved by Ordinance Number 00-03.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a final order and public report be entered finding that Respondent, Bonnie A. Jones, violated Subsection 112.313(6) Florida Statutes. It is further recommended that the Commission recommend that she receive a reprimand. DONE AND ENTERED this 7th day of January, 2003, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 2003. COPIES FURNISHED: Basyle J. Tchividjian, Esquire 145 East Rich Avenue DeLand, Florida 32720 James H. Peterson, III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling, Agency Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709 Virlindia Doss, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue Whether the Sunshine Ranches Homeowner's Association, Inc. (Association) and the Environmental Coalition of Florida, Inc. (Coalition) are "affected persons," entitled to challenge Broward County's 1989 comprehensive plan pursuant to Section 163.3184(9), Florida Statutes? Whether Oriole Homes Corporation is an "affected person" entitled to be granted intervenor status in Case No. 89-2645GM? Whether Broward County's 1989 comprehensive plan is not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, as alleged by the Association and the Coalition?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Broward County: A General Overview Broward County is one of Florida's coastal counties. It is located in the southeastern part of the state and is bordered on the north by Palm Beach County, on the south by Dade County, on the west by Collier County and on the east by the Atlantic Ocean. Within the boundaries of Broward County are approximately 1,200 square miles of land and water. The western two thirds of the County are in the Everglades and are designated conservation areas. They are separated from the eastern third of the County by a series of dikes and levees. Development of the eastern third of the County began in the coastal area and has moved westward. The movement has not always been orderly. Some areas to the west have been developed despite the absence of infrastructure to service the development. Broward County is the second most populous county in the State of Florida. The average population density in the eastern third of the County is approximately 3,000 residents per square mile, which is comparable to the population density of Detroit, Michigan and Brooklyn, New York. There are 28 incorporated municipalities located in Broward County. Cooper City is one of these incorporated municipalities. Broward County has a Home Rule Charter. Under the Charter, a seven- member County Commission (Commission) governs the County. Article VI of the Charter addresses the issue of land use planning. It directs the Broward County Planning Council (Council) to "prepare and propose," and the County Commission to adopt, a countywide land use plan. This article of the Charter further provides: Within six (6) months after adoption of the County Land Use Plan each governmental unit [incorporated municipality] may submit its own land use plan. . . If the governmental unit plan is in substantial conformity with the County Land Use Plan of the Council, it shall be deemed certified. Until such time as the governmental unit plan is in substantial conformity with the County Land Use Plan, as interpreted by the Council, the County Land Use Plan will be the effective plan for the governmental unit involved. If a governmental unit fails to submit a plan in due course, then the County Land Use Plan will be effective. With respect to the subject of platting, Article VI of the Charter states as follows: The legislative body of each municipality within Broward County and the County Commission for the unincorporated area shall, within six (6) months after the effective date of this Charter, create a mandatory plat ordinance. No plat of lands lying within Broward County, either in the incorporated or unincorporated areas, may be recorded in the Official Records prior to approval by the County Commission. The County Commission shall enact an ordinance establishing standards, procedures and minimum requirements to regulate and control the platting of lands within the incorporated and unincorporated areas of Broward County. The governing body of each municipality may enact an ordinance establishing additional standards, procedures, and requirements as may be necessary to regulate and control the platting of lands within its boundaries. Article VIII of Broward County's Home Rule Charter establishes a nine- member Environmental Quality Control Board (EQCB) vested with regulatory authority in matters relating to air and water quality, including the authority to regulate dredge and fill activity in the County. The construction industry plays a very significant role in Broward County's economy. It is directly responsible for 10 to 12% of the jobs in the County. Agriculture, on the other hand, contributes very little to the County's economy. Since 1955, there has been a steady decline in the amount of land devoted to agricultural uses. Sunshine Ranches Homeowner's Association, Inc. The Sunshine Ranches Homeowner's Association, Inc. is now, and has been since December 11, 1968, a nonprofit Florida corporation. It currently has approximately 290 members who own homes or property in an area of Broward County known as Sunshine Ranches. The Association was formed to promote the common interests of its members. In furtherance of this objective, the Association appears on behalf of its members before the County Commission and represents them in administrative and legal proceedings. Oriole Homes Corp. Oriole Homes Corp. is a Florida corporation. It is the fee title owner of Imagination Farms, a 235 acre parcel of land located in Sunshine Ranches. Environmental Coalition of Florida, Inc. The Environmental Coalition of Florida is a nonprofit Florida corporation that was formed in 1978. It conducts its business from its headquarters in Broward County. As its name suggests, the Coalition is comprised of citizens concerned about Florida's environment. Many of its members own property in Broward County. Some own and operate businesses in the County. In representing the collective views of its members on environmental issues, the Coalition frequently clashes with developers. Sunshine Ranches: The Community Sunshine Ranches is a horse-oriented community of estate homes and working ranches located in the southwest quadrant of the eastern third of Broward County (S.W. Broward), a rapidly developing area of the county which is also the site of four Developments of Regional Impact. The community is within the area designated as "urban" on the Florida Department of Transportation's Federal System Map for Broward County. It is bounded on the north by Griffin Road, on the south by Old Sheridan Street, on the west by Volunteer Road (also known as S.W. 148th Avenue), and on the east by Flamingo Road. These perimeter roadways are all major thoroughfares and, consequently, not only do they provide access to and from the Sunshine Ranches community, they also effectively buffer the community from the residential and commercial development that surrounds it. Interstate 75, while not adjacent to the community, is only a short distance to the west. Sunshine Ranches has an area of approximately four square miles (2,700 acres) which is divided into 664 parcels. Parcels of five acres or more constitute approximately 49% of the total acreage of Sunshine Ranches and 13% of the total number of parcels in the community. Parcels of two to five acres represent approximately 41% of the total acreage and 54% of total number of parcels. Parcels of under two acres make up 10% of the total acreage and 33% of the total number of parcels. Some of these parcels are under an acre in size. The average parcel in Sunshine Ranches is four acres. Approximately 500 families live in Sunshine Ranches. They reside in single-family homes situated on relatively large lots in a rustic setting. These residential properties sell for in excess of $100,000.00. Infrastructure in Sunshine Ranches is limited. Most homes have septic tanks and wells rather than central sewer and water service, a situation that is undesirable particularly in light of the groundwater contamination problem the area has experienced. All but the major roadways in the community are unpaved. Street lights are scarce. There is no unified or central drainage system in the community. Drainage is accomplished in this flood prone area on a site-by-site basis by the individual landowner. 1/ There are no retail establishments located in Sunshine Ranches. Residents, however, do not have to travel far outside the community to meet their consumer needs inasmuch as there is nearby shopping. Although Sunshine Ranches is predominately a residential community, there is commercial activity which takes place within its boundaries, principally on the 68 working ranches in the area. Because of its soil and climatic conditions, drainage problems and parcel sizes, the Sunshine Ranches area is not ideally suited for commercial crop cultivation. Furthermore, as a general rule, parcels in Sunshine Ranches are not large enough to sustain a profitable beef or dairy cattle operation. Consequently, those who own or lease the ranches in the area do not engage in these commercial agricultural pursuits to any significant degree. Rather, the primary commercial activity on these ranches involves horses used for racing, showing and recreational riding. There are ranches where horses are bred and raised, where they are boarded and otherwise cared for, and where they are trained. 2/ The services these horse ranches provide help to support the state's horse racing and equestrian industries. A study conducted after the adoption of Broward County's 1989 comprehensive plan by Dr. James Nicholas, an expert in land development economics, found that the horse-related commercial activity in Sunshine Ranches adds 6.4 million dollars in personal income to the Broward County economy. In addition to the horse ranch operators and their employees, among the recipients of the personal income attributable to operations on these farms are veterinarians, farriers, and feed and supply store owners and workers. In 1988, of the 2,600 net acres of land in Sunshine Acres that were subject to ad valorem taxation, 470 acres on 55 separate parcels were granted an agricultural exemption by the Broward County Property Appraiser pursuant to Section 193.461, Florida Statutes. Many of these exempted parcels qualified for such an exemption, not because the Property Appraiser believed that they met the current statutory requirements, but because of the Property Appraiser's policy of "grandfathering" parcels that had received agricultural exemptions under the law prior to its revision. In the absence of such a policy, very few parcels in Sunshine Ranches would have been granted an agricultural exemption. The Property Appraiser does not consider the horse-related activities that take place on the working ranches in Sunshine Ranches to be agricultural in nature inasmuch as they do not involve the production of food or fiber. 3/ Over the past four to five years, the Property Appraiser has received applications from Sunshine Ranches property owners seeking agricultural exemptions for parcels not previously exempted. The only such applications that have been granted have been those seeking exemptions for bona fide commercial nurseries. The continuing commercial viability of the working ranches in Sunshine Ranches is threatened by the increasing land values in the area which provide an inducement to those who own the land upon which these ranches are situated to convert the land to more profitable uses. When the community was in its infancy, land in Sunshine Ranches was relatively inexpensive because it was plentiful and far to the west of the existing urban development in the County. During these early stages of the community's existence, an acre of land in Sunshine Ranches could be purchased from $1,000.00 to $2,000.00. As development activity in S.W. Broward has accelerated, 4/ there has been a corresponding increase in the value of property in Sunshine Ranches. Currently, land in Sunshine Acres is selling at a minimum of $50,000.00 for a single acre. Large tracts of land carry a purchase price of at least $20,000.00 per acre. As one might expect in view of the soaring land values in the area, the recent trend in Sunshine Ranches has been toward the construction of homes, not ranches. Horses are found in Sunshine Ranches not only on the working farms, but on land used exclusively for residential purposes as well. There is approximately one horse for every two acres of land in Sunshine Ranches. All feed and supplies for these horses must be purchased from outlets outside the community because there are no such stores in Sunshine Ranches. Imagination Farms Imagination Farms is situated in the northeastern section of Sunshine Ranches within the municipal boundaries of Cooper City. It is the only property in Sunshine Ranches that is not in the unincorporated area of Broward County. For at least the past 20 years, Imagination Farms has been used for pastureland for dairy cattle. Oriole, however, has plans to develop it into a residential community of single-family homes. Existing water and sewer lines are located directly across the street from the western edge of the property on the other side of Flamingo Road. Until 1989, the Imagination Farms parcel was classified as agricultural by the Broward County Property Appraiser for ad valorem tax purposes. In 1989, Oriole, which had recently purchased the property, sought an agricultural exemption for the property, but its application was denied because the Property Appraiser was of the view that the primary use of the land was for development, not agriculture. According to the jurisdictional determinations made by the Broward County EQCB, the Florida Department of Environmental Regulation (DER) and the United States Army Corps of Engineers, there are approximately 13 to 14 acres of wetlands in Imagination Farms. Although based in part upon a visit to the property that was made in February, 1989, these jurisdictional determinations did not become final until after the adoption of Broward County's 1989 comprehensive plan. The wetlands in Imagination Farms are marginally productive. Because of their relatively small size, they are not particularly effective in removing from storm water nutrients that lower water quality. Pre-1989 Land Use Designations of Property in Sunshine Ranches Under Broward County's 1977 comprehensive plan, all land in Sunshine Ranches, including Imagination Farms, was originally designated for residential use at a maximum density of one unit per acre. Zoning classifications applicable to Sunshine Ranches were E-1 and E-2. The E-1 classification permitted a residential density of no more than one single-family dwelling unit per acre. The E-2 classification, which applied to the major portion of land in Sunshine Ranches, created an "agricultural estate district . . . intended to apply to areas to be used for single family dwelling plots of 1.8 acres or more with vocational agricultural use of land allowed." The purpose of the E-2 classification was to allow certain agricultural activities on the land and to prohibit others that may be considered objectionable by the residents of the area. In 1988, after Oriole's purchase of Imagination Farms, the County Commission considered a request that it amend the 1977 comprehensive plan by changing the land use designation of Imagination Farms to L-3, a residential land use designation permitting a maximum density of three units per acre. Broward County Planning Council staff recommended that the County Commission deny the request for the following reason: This amendment is . . . also located in the Sunshine Ranches area. The Ranches are a viable low density area. Staff believes Estate is the proper land use designation for the area. This amendment would extend into the heart of Sunshine Ranches and would significantly change the character of the area. The Planning Council also recommended against approval of the requested amendment. Furthermore, the Department of Community Affairs, in a letter dated July 15, 1988, expressed its view that the proposed amendment was "not consistent with the stated goals and objectives of the [1977] Comprehensive Plan." Nonetheless, on August 31, 1988, the County Commission voted to approve the amendment with the following conditions: [T]he restrictive covenant[s] [relating to the property] be amended to limit a maximum density of 2.0 units to the acre; that the developer provide sewer and water to all lots including Estate within the development; that the developer agrees to oversized water lines sufficient to serve the entire Sunshine Ranches area; that there be two tiers of Estate one acre lots on the north, south, southeastern and the western boundaries of the property; the entire property be limited to single family development only; street lighting be prohibited from the perimeter Estate zoned areas and only low intensity street lighting be permitted on the internal portions of the property; there be no access to Southwest 136th Avenue, access to be limited to Flamingo Road. The buffer zones on the northern and southern portion of the property, the lake in the northeastern portion of the property and the 5 acre park on the southeastern boundary of the property as represented at the meeting be included in the restrictive covenant requirement. The total density be limited to no more than 2 units to the acre, and there be single family detached homes with no zero lot line properties permitted. This all to become a note on the face of the plat as a part of the public records and be part of a recorded instrument subject to an agreement approved by General Counsel. On or around November 10, 1988, restrictive covenants pertaining to the Imagination Farms property were filed as a matter of public record and they thereafter were approved by the Board of County Commissioners. The restrictive covenants provided as follows: The Property shall be developed at an average density not to exceed 2.0 dwelling units per acre. The residential development of the Property shall be limited to single-family, detached dwelling units. No Zero Lot Line dwelling units shall be permitted. Two (2) rows of residential lots, each lot being at least 35,000 square feet in size (i.e., "builders acre"), shall be located along the following described boundaries of the Property: (1) The Western Boundary of Tracts 25 through 32, excepting therefrom the North 100 feet of Tract 32; (2) the Southern boundary of Tracts 24 and 25; and (3) the Eastern boundary of Tracts 21 through 24; Section 35, Township 50 South, Range 40 East, Florida Fruit Lands Co. Subdivision No. 1, according to the Plat thereof as recorded in Plat Book 2, Page 17, of the Public Records of Dade County, Florida. Central potable water and sanitary sewer service shall be provided to each residential unit constructed on the Property prior to the issuance of a certificate of occupancy for that dwelling unit. Platting of the Property shall be subject to the additional condition that the potable water main to be installed on the Property shall have sufficient capacity to provide potable water service to the residential dwelling units to be constructed on the Property and the real property which is located [in the remaining portions of Sunshine Ranches], based on land use designations in effect at that time. Such capacity shall be determined in accordance with standards applied by the Broward County Office of Environmental Services. No street lights shall be located within the two (2) rows of residential lots described [in (c) above]. Street lights located within the remainder of the Property shall be designed so as to preclude the illumination thereby of any land area located adjacent to the Property with a residential land use designation. The only vehicular access to the Property shall be from Flamingo Road. An open space buffer area having a minimum width of one hundred feet (100') and consisting of natural vegetation, landscaping and/or water bodies shall be located along the Northern boundary of Tracts 1, 16, 17 and 32, excepting therefrom the east 660 feet of Tract 1, Township 50 South, Range 40 East, Florida Fruit Lands Co. Subdivision No. 1, according to the Plat thereof as recorded in Plat Book 2, Page 17, of the Public Records of Dade County, Florida. An open space buffer area having a minimum width of (50') and consisting of natural vegetation, landscaping and/or water bodies, shall be located along the Southern boundary of Tracts 3 and 13 and the Eastern Boundary of Tract 13, Township 50 South, Range 40 East, Florida Fruit Lands Co. Subdivision No. 1, according to the plat thereof as recorded in Plat Book 2, Page 17, of the Public records of Dade County, Florida. A local park, being at least five (5) acres in size, shall be located on the Property. The exact location and configuration of such park shall be determined by the City of Cooper City, Florida. Preparation and Adoption of the 1989 Comprehensive Plan The countywide future land use element of Broward County's 1989 comprehensive plan was drafted by the Broward County Planning Council. The remaining elements of the plan were prepared by the Broward County Office of Planning. In preparing these other elements of the plan, the Office of Planning utilized a service area planning approach. Service area planning is "planning for county owned and/or operated systems some of which cross municipal boundaries and planning for the natural resources of the County." The Office of Planning opted to use the service area method of planning for the following reason: The unincorporated area of Broward County is distinct from most other local political jurisdictions by virtue of its geographically fragmented nature which has resulted from unmanaged and prolific annexation activities over the past several years. The existence of multi-jurisdictional contracts for service between the County and adjacent municipalities also diminishes the practicality of comprehensive planning for a politically defined planning area. Therefore, comprehensive planning for the legal boundaries of the unincorporated area, which does not have the geographic characteristics of a typical local government and does not function as an integrated whole, has been modified in favor of a service area planning approach. On October 1, 1988, the County Commission transmitted all elements of its proposed comprehensive plan to the Department of Community Affairs (DCA, Department). Upon its receipt of the proposed comprehensive plan, DCA distributed copies of it to other governmental agencies, including the Florida Department of Environmental Regulation, and solicited their comments. After obtaining these agencies' input and conducting its own review of the proposed plan, DCA, on January 10, 1989, sent to the County Commission its written objections, recommendations and comments concerning the plan. DCA objected to, among other things, the analysis of the suitability of the vacant land in S.W. Broward for the uses designated in the proposed plan. It believed that the analysis was inadequate and did not support the land uses designated. On March 1, 1989, the County Commission adopted the final version of the County's 1989 comprehensive plan. It did so over the objections of the Association and the Coalition. Oriole also participated in the proceedings that culminated in the plan's adoption. During these proceedings, it expressed its disagreement with the position taken by the Association regarding the appropriate land use designation of the Imagination Farms parcel. The adopted version of the County's comprehensive plan was sent to DCA. Following its review of the adopted plan, DCA issued a notice announcing its intention to find the plan "in compliance." Contents of Broward County's 1989 Comprehensive Plan: Volume I Future land Use Designations Volume I of Broward County's 1989 comprehensive plan contains the countywide future land use element. An integral part of this element of the plan is the future land use map (FLUM). It shows the proposed distribution, extent and location of land uses for the entire land area of Broward County. There are 21 land use categories represented on the FLUM, nine of which are residential in nature. "Residential uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas used predominantly for housing." Volume I, Chapter IV(B) of the plan indicates that the "areas designated for residential use on the [FLUM] are intended primarily for dwellings, but that other land uses related to a residential environment . . . may also be appropriate therein." "Agriculture" is specifically identified as being among those related uses that are permissible in areas with residential designations. The nine residential land use categories shown on the FLUM are as follows: E (up to one dwelling unit per gross acre permitted); L-2 (up to two dwelling units per gross acre permitted); L-3 (up to three dwelling units per gross acre permitted); L-5 (up to five dwelling units per gross acre permitted); LM (up to ten dwelling units per gross acre permitted); M (up to sixteen dwelling units per gross acre permitted); MH (up to 25 dwelling units per gross acre permitted); H (up to 50 dwelling units per gross acre permitted); and Irregular. The higher the residential density of an area, the more efficiently the potable water, sanitary sewer, solid waste and drainage needs of the residents can be met. Accordingly, E is the least efficient residential land use category in terms of meeting these basic needs. L-2 is the next least efficient residential land use category. L-2 is a new residential land use category. Under the prior comprehensive plan, there was no intermediate category between E and L-3. The L-2 category was created to fill this void. It was designed to result in residential communities with lot sizes that were larger than those found in areas designated L-3, but not so large that it would be too costly to provide central water and sewer service to the residents. The prevailing view at the time of the preparation and adoption of the 1989 comprehensive plan was that two dwelling units per acre was the lowest residential density at which it would be economically feasible to provide such service. No formal studies, however, were conducted to confirm this view. The following nonresidential land use categories are also found on the FLUM: Agricultural; Commercial; Commercial Recreation; Community Facilities; Conservation; Employment Center; Industrial; Office Park; Recreation and Open Space; Regional Activity Center; Transportation; and Utilities. "Agricultural uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas which are predominantly used for the cultivation of crops and livestock including: cropland; pastureland; orchards; vineyards; nurseries; ornamental horticulture areas; confined feeding operations; specialty farms; and silviculture areas." Volume I, Chapter IV(B) of the plan provides, in pertinent part, as follows with respect to areas designated for "agricultural use:" Agricultural areas are designated on [FLUM] to promote agriculture and agricultural related uses. Residential development may occur within specific limits. Uses permitted in areas designated agricultural are as follows: Agricultural and related uses may be broadly defined by the local government entity to include the following: cultivation of crops, groves, thoroughbred and pleasure horse ranches, private game preserves, fish breeding areas, tree and plant nurseries, cattle ranches and other similar activities. Residential uses at a maximum of one (1) dwelling unit per two (2) net acres or greater or one (1) dwelling unit per two and one-half (2 1/2) gross acres or greater. . . . Neighborhood support business and retail facilities up to one (1) acre per 250 acres. No one contiguous site may exceed ten (10) acres. . . . "Commercial uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas that are predominantly connected with the sale, rental and distribution of products, or performance of services." "Conservation uses" are defined in Volume I, Chapter IV(A) of the plan as "activities within land areas designated for the purpose of conserving or protecting natural resources or environmental quality and includes [sic] areas designated for such purposes as flood control, protection of quality or quantity of groundwater or surface water, floodplain management, fisheries management, or protection of vegetative communities or wildlife habitats." Volume I, Chapter IV(B) of the plan states that "[c]onservation areas are designated on the [FLUM] to protect major reserve water supply areas and natural reservations." Accordingly, lands so designated are permitted to be used for only very limited purposes under the plan. The entire western two-thirds of the County is designated on the FLUM for "conservation uses." In contrast, only certain public lands in the eastern third of the County are so designated. The vast majority of the land has a non- conservation land use designation which allows development. The entire Sunshine Ranches area, including Oriole's Imagination Farms parcel, is designated on the FLUM for "residential uses." By designating the area for "residential uses" rather than for "agricultural uses," as the County Commission has designated certain other lands in the County, including lands to the west of Sunshine Ranches, the Commission has made it less likely that the working ranches in Sunshine Ranches will survive. Such action, however, will tend to have a positive impact on the County's construction industry. The Imagination Farms parcel has an L-2 designation. 5/ The balance of Sunshine Ranches has an E designation. While these designations are not identical, neither are they inherently incompatible. Of the 21 land use categories on the FLUM, L-2 is the most akin to E. While the maximum allowable residential density under the plan for Imagination Farms (two dwelling units per acre) is higher than that for the rest of Sunshine Ranches (one dwelling unit per acre), it is lower than the average maximum allowable residential density under the plan for S.W. Broward as a whole, which is 3.39 dwelling units per acre. Immediately adjacent to the Sunshine Ranches area, in all directions, are lands that, like the Imagination Farms parcel, have a designation other than E. Immediately to the north are lands designated Commercial. Immediately to the south are lands designated Irregular Residential (4.5 dwelling units per acre). Immediately to the west are lands designated L-3, L-5, Commercial and Transportation. Immediately to the east are lands designated L-5, LM, Commercial, Industrial and Irregular Residential (3.8 dwelling units per acre). The only lands immediately adjacent to Sunshine Ranches that have an E designation are to the north on the other side of Griffin Road. S.W. Broward is the site of land designated on the FLUM for use as a Regional Activity Center. This land is located in close proximity to the Sunshine Ranches area. Volume I, Chapter IV(B) of the plan states the following with respect to Regional Activity Centers: The Regional Activity Center land use designation . . . is intended to encourage development or redevelopment of areas that are of regional significance. The major purposes of this designation are to facilitate mixed-use development, encourage mass transit, reduce the need for automobile travel, provide incentives for quality development and give definition to the urban form. This designation will only be applied to areas that are of regional significance. . . . In addition to the examples cited above in and around the Sunshine Ranches area, there are many other instances on the FLUM where adjacent lands have been assigned different residential land use categories. This provides the County's current and prospective residents with a variety of housing options. Furthermore, to the extent that it results in a higher residential density than would otherwise be the case, it promotes the efficient use of land. It is a well accepted planning technique to make changes in residential densities along rear lot lines. The County has used this technique extensively in developing its FLUM. The change in density made in the Sunshine Ranches area is but one example of the use of this technique. Roadways and other man-made courses also serve as boundary lines between adjacent lands that have different land use designations on the FLUM. Wide roadways, particularly when combined with a waterway or canal, provide buffering that is generally superior to that provided by landscaping or walls. They are commonly used to separate residential properties from lands used for other purposes. Rear lot line separation, however, is traditionally employed where the lands in question are designated for residential uses, but at different allowable maximum densities. Local Government Flexibility Although the FLUM prescribes land use designations on a countywide basis, there are "flexibility" provisions in Volume I of the plan designed to afford incorporated municipalities in the County a limited amount of discretion in fashioning a land use plan which meets the particular needs of their community. These provisions provide for the creation of "flexibility zones," which are defined in Volume I, Chapter IV(A) as "geographic area[s], as delineated on the flexibility zone boundary maps in the Administrative Rules Document of the Broward County Planning Council, within which residential densities and land uses may be redistributed through the plan certification process." 6/ Under these provisions "5% of the area designated for residential use on the Future Broward County Land Use Plan Map (Series) within a flexibility zone may be used for offices and/or retail sales of merchandise or services[, provided that n]o added contiguous area used for offices and/or retail sales of merchandise or services may exceed ten (10) acres." These provisions further permit local land use plans to assign "20 percent of the industrial land designated on the Future Broward County Land Use Plan Map (Series) within a flexibility zone" for "[c]ommercial and retail business uses" and for "[h]otel, motel and similar lodging" if "certified by the Broward County Planning Council." Because of these "flexibility" provisions, it is necessary to look beyond the FLUM to determine whether particular parcels of property that are designated on the FLUM for residential uses or for industrial uses and, in addition, are within a "flexibility zone," may be used instead for offices or retail sales, in the case of parcels designated residential, or for commercial purposes or lodging, in the case of parcels designated industrial. Volume I of the plan also provides for the redistribution of residential densities shown on the FLUM through the use of "flexibility units" and "reserve units," which are described as follows in Volume I, Chapter IV(B) of the plan: Flexibility Units. "Flexibility units" mean the difference between the number of dwelling units permitted within a flexibility zone by the Future Broward County Land Use Plan Map (Series) and the number of dwelling units permitted within the flexibility zone by a local government entity's certified future land use plan map. Since the certified local land use plan map may be more restrictive than the Future Broward County Land Use Plan Map (Series), available flexibility units may be utilized by a local government entity to rearrange residential densities. . . . Rearrangement of residential densities utilizing flexibility units will be administered within "flexibility zones." The boundaries of and rules governing "flexibility zones" and rearrangement of residential densities therein . . . will be established within the Broward County Planning Council's "Administrative Rules Document." The maximum number of dwelling units permitted in a flexibility zone by a local land use plan map shall not exceed the number of dwelling units permitted in the flexibility zone by the Future Broward County Land Use Plan Map (Series). Reserve Units. "Reserve units" mean additional permitted dwelling units equal up to two percent (2%) of the total number of dwelling units permitted within a flexibility zone by the Future Broward County Land Use Map (Series). Local government entities may establish provisions within their land use plans . . . to allocate residential densities, utilizing reserve units, which exceed those shown on the local land use plan map. Allocation of reserve units will be administered within "flexibility zones" and not require amendment of the certified local land use plan. The boundaries of and rules governing "flexibility zones" and allocation of reserve units therein . .. will be established within the Broward County Planning Council's "Administrative Rules Document." The number of reserve units in a flexibility zone will be fixed at the adoption of the Future Broward County Land Use Map Plan (Series). The number of reserve units assigned to a parcel designated for residential use on the local land use plan map may not exceed 100% of the maximum number of dwelling units indicated for the parcel by the local land use plan map. However, the local land use plan, the zoning, and the applicable land development regulations shall not permit any density higher than fifty (50) dwelling units per gross acre. Goals, Objectives and Policies Volume I of the plan also sets forth various goals, objectives and policies relating to future land use in the County. They are found in Chapter II of Volume I. A "goal" is defined in Volume I, Chapter IV(A) of the plan as "the long-term end toward which programs and activities are ultimately directed." An "objective" is defined in Volume I, Chapter IV(A) of the plan as a "specific, measurable, intermediate end that is achievable and marks progress toward a goal." A "policy" is defined in Volume I, Chapter IV(A) as the "way in which programs and activities are conducted to achieve an identified goal." The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to residential uses: Goal 01.00.00- Provide residential areas with a variety of housing types and densities offering convenient and affordable housing opportunities to all segments of Broward County's population while maintaining a desired quality of life and adequate public services and facilities. Objective 01.01.00- Accommodate the projected population of Broward County by providing adequate areas on the Future Broward County Land Use Plan Map (Series) intended primarily for residential development, but which also permit those non-residential uses that are compatible with and necessary to support residential neighborhoods. * * * Policy 01.01.03- Local certified land use plans may establish provisions which allow residential densities to exceed those shown on the local future land use plan map in accordance with the "reserve unit" provisions and restrictions contained in [Volume I, Chapter IV(B) of the plan]. Policy 01.01.04- Local certified land use plans may permit offices and neighborhood retail sales of services and merchandise within areas designated for residential use subject to the provisions and restrictions identified within [Volume I, Chapter IV(B) of the plan]. Objective 01.02.00- Establish flexibility within the Broward County Land Use Plan in order to facilitate the rearrangement of residential densities, and allow local government entities and the private sector to respond to changing conditions. Policy 01.02.01- Local certified land use plans may rearrange the residential densities shown on the Future Broward County Land Use Plan Map (Series) utilizing "flexibility units" and/or "reserve units" as identified in [Volume I, Chapter IV(B) of the plan] and in accordance with the rules established within the Broward County Planning Council's "Administrative Rules Document" and the Chapter 163, Florida Statutes plan adoption and amendment process. Policy 01.02.02- Rules for the creation of "Flexibility Zones" and rearrangement of residential densities within their boundaries, utilizing "flexibility units" and/or "reserve units," shall be established within the Broward County Planning Council's "Administrative Rules Document." Objective 01.03.00- Correlate the impacts of residential development with the regional roadway network of Broward County and all existing and planned transit facilities to ensure the adequacy and safety of all transportation facilities. Policy 01.03.01- Residential densities in the Low to Medium ranges should be located with access to existing minor arterials and collector streets. Policy 01.03.02- Residential densities in the Medium High and High ranges should be located with adequate access to major and minor arterials, expressways and mass transit routes. Objective 01.04.00- Local government shall adopt subdivision and other development regulations promoting well-planned, orderly, and attractive development which is consistent with locally adopted capital improvements elements and the goals, objectives and policies of the Broward County Land Use Plan. Policy 01.04.01- Subdivision regulations shall incorporate a review process for assessing the adequacy of public services and facilities. New residential development shall be established only within those areas where adequate public services exist, or are scheduled to be available in accordance with a local government entity's adopted Capital Improvements Element. Policy 01.04.02- Subdivision regulations shall provide for both the timely completion and regular maintenance of all required capital improvements and amenities. * * * Policy 01.04.04- The land development codes and regulations of local government entities shall protect whenever possible existing and planned residential areas, including single family neighborhoods, from disruptive land uses and nuisances. * * * Objective 01.06.00- Develop and implement land use controls which promote residential neighborhoods that are attractive, well- maintained and contribute to the health, safety and welfare of their residents. * * * Objective 01.07.00- Develop programs to provide a complete range of affordable housing opportunities necessary to accommodate all segments of Broward County's present and future population. The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to commercial uses: Goal 02.00.00- Provide a complete range of convenient and accessible commercial facilities sufficient to serve Broward County's resident and tourist population. * * * Objective 02.04.00- Provide a sufficient level of commercial development to accommodate the population and economy of Broward County while ensuring that the planned level of service on the regional road network is achieved and maintained. * * * Policy 02.04.02- The land use plans of local government entities shall contain commercial land use policies which form the basis for those land development codes and regulations that are necessary to protect adjacent residential areas. Policy 02.04.03- Local government entities shall employ their local land use plans and zoning ordinances to establish differing intensities of commercial development compatible with adjacent and surrounding land uses. Policy 02.04.04- To allow both the public and private sectors to respond to changing conditions and permit the appropriate location of neighborhood commercial uses within or adjacent to established residential neighborhoods, the Broward County Land Use Plan shall permit up to 5% of the area designated residential within a flexibility zone to be used for neighborhood commercial uses, subject to restrictions identified within [Volume I, Chapter IV(B) of the plan]. Policy 02.04.05- Local certified land use plans may decrease by 20 percent the lands designated Commercial on the Future Broward County Land Use Plan Map (Series) within a flexibility zone in accordance with the rules established within the Broward County Planning Council's "Administrative Rules Document" and the Chapter 163, Florida Statutes plan adoption and amendment process. The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to industrial uses: Goal 03.00.00- Achieve a more diversified local economy by promoting tourism and industrial growth and providing optimum protection of the County's environment and maintaining a desired quality of life. Objective 03.01.00- Provide additional opportunities for expanding Broward County's economic base by designating the amount of industrial acreage on the Future Broward County Land Use Map (Series) which will accommodate Broward County's projected year 2010 population and/or labor force. * * * Policy 03.01.06- Local certified land use plans may permit twenty (20) percent of designated industrial areas to be used for certain retail, service and tourist-related land uses, subject to the restrictions identified in [Volume I, Chapter IV(B) of the plan]. The following are among the goals, objectives and policies set forth in Volume I of the plan that relate to agricultural uses: Goal 04.00.00- Conserve and protect agricultural lands and uses. Objective 04.01.00- Encourage the retention of agricultural lands and uses through the utilization of financial incentives and creative land development regulations. Policy 04.01.01- Innovative public measures, including tax relief techniques, purchase or transfer of development rights and other measures, should 7/ be instituted to encourage the retention of existing agricultural lands and uses. Policy 04.01.02- Local land use plans, consistent with the requirements of the Regional Plan for South Florida, should inventory and identify locally important agricultural lands and encourage agricultural activities as the primary uses on such lands. Policy 04.01.03- Encourage the retention and expansion of agricultural and related activities which are compatible with the environmental sensitivity of identified agricultural lands, consistent with the provisions of the "Florida Right to Farm Act," Section 823.14, Florida Statutes. * * * Policy 04.02.02- The Broward County Planning Council shall review all permitted uses of the Agricultural land use category and make revisions by 1990, to address the issue of preserving and protecting agricultural lands. Policy 04.02.03- Agricultural areas designated on the Future Broward County Land Use Map (Series) shall permit residential development and local government entities may permit the clustering of dwelling units consistent with those standards contained within [Volume I, Chapter IV(B) of the plan]. Although there is no land use category in the plan denominated as "rural," the subject of "rural areas" is addressed in the following goal, objective and policies set forth in Volume I, Chapter II of the plan: Goal 07.00.00- Ensure the preservation of rural areas. Objective 07.01.00- Define, inventory and protect those existing "rural areas" within Broward County. Policy 07.01.01- Define and inventory all "rural areas" within Broward County during 1989, and study and make recommendations regarding the relationships between the Conservation, Agricultural and Estate [E] land use categories 8/ and the appropriateness of those uses and densities within the "rural areas" of Broward County. 9/ Policy 07.01.02- During 1989, the Broward County Planning Council shall develop any necessary policies and/or land use regulations for the protection of "rural areas" to be incorporated within the Broward County Land Use Plan. Policy 07.01.03- During 1989, the Broward County Planning Council shall analyze the relationship between identified rural areas and potable water and wastewater treatment facilities and develop any necessary policies and/or land use regulations, which will assure that such areas are adequately served in an environmentally sound manner, to be incorporated into the Broward County Land Use Plan. The following are among the goals, objectives and policies in Volume I of the plan that relate to the matter of public facilities and phased growth: Goal 08.00.00- Phase growth consistent with the provision of adequate regional and community services and facilities. Objective 08.01.00- Coordinate future land uses with the availability of regional and community facilities and services sufficient to meet the current and future needs of Broward County's population and economy without endangering its environmental resources. Policy 08.01.01- Local government entities shall implement development review procedures to assure that facilities and services meet established county-wide and municipal level of service standards concurrent with the impacts of development pursuant to Objective 08.06.00. * * * Policy 08.01.03- Local government entities which authorize development permits shall implement procedures which identify the cumulative impacts of proposed development on public service and facilities. Policy 08.01.04- In order to protect the health, safety, and welfare of Broward County's residents, development should not be permitted in those portions of Broward County with inadequate potable water and wastewater treatment facilities. Policy 08.01.05- Packaged wastewater treatment facilities should be connected to centralized facilities which have been approved by the appropriate governmental agencies. Policy 08.01.06- Broward County shall continue to monitor and study the impacts of septic tanks on Broward County's water supply. Policy 08.01.07- Broward County shall, by 1991, develop regulations requiring new development to be serviced by centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. Policy 08.01.08- Local government entities shall require all new commercial and industrial development to be serviced by centralized wastewater systems where financially feasible. Policy 08.01.09- Private septic tanks and wells in Broward County should be phased out and replaced with centralized water and wastewater systems, where necessary, to protect the health, safety, and welfare of Broward County's residents. * * * Objective 08.02.00- Continue to enforce the countywide platting requirements of the Broward County Charter and ensure that land development within Broward County meets the minimum standards of the Broward County Land Development Code. * * * Objective 08.03.00- Discourage urban sprawl 10/ and encourage a separation of urban 11/ and rural land uses 12/ by directing new development into areas where necessary regional and community facilities and services exist. Policy 08.03.01- By 1990, Broward County shall review and revise, where necessary, its land development code to ensure that new development is directed to areas which have the land use, water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Policy 08.03.02- Promote infill development through the provision of potable water and sanitary sewer service to those developed portions of Broward County which are currently inadequately served. Policy 08.03.03- When extending new services to undeveloped portions of Broward County, priority shall be given to those areas where other facilities and services are available or are anticipated to be provided concurrent with the extension of such new services. Policy 08.03.04- Regional or community libraries, clinics, civic centers, cultural facilities and other public facilities should be located in areas of concentrated activity, such as downtown areas and community or regional shopping centers in order to allow multi-purpose trips, provide easy access by mass transit and economize on parking areas. Policy 08.03.05- Except for schools, regional and community facilities shall be located close to major traffic corridors and mass transit routes adequate to carry the volume of traffic generated by such facilities. * * * Objective 08.06.00- Concurrence management systems shall be established to effectively monitor and manage new growth, in conformance with Florida's Local Government Comprehensive Planning and Land Development Regulation Act. Policy 08.06.01- Local government entities shall establish concurrence management systems to effectively manage new growth and to ascertain whether necessary facilities identified within their local Capital Improvements Elements are being constructed in accordance with the schedules in their local plans and to measure the development capacity of such facilities in a given area at a given time. Policy 08.06.02- Those facilities which are subject to the local concurrence requirements include: traffic circulation, recreational, drainage and flood protection, potable water, solid waste and sanitary sewer facilities. * * * Policy 08.06.04- The Broward County Land Development Code plat approval process will require that necessary regional facilities and services be available concurrent with the impacts of development through any of the following situations: The necessary facilities are in place at the time a Broward County plat approval is issued, or a Broward County plat approval is issued subject to the condition that the necessary facilities will be in place when the impacts of development occur. The necessary facilities are under construction at the time a Broward County plat approval is issued. The necessary facilities are the subject of a binding contract executed for the construction of those necessary facilities at the time a Broward County plat approval is issued. The necessary facilities have been included in the Broward County or municipal annual budget at the time a Broward County plat approval is issued although the facilities are not yet the subject of a binding contract for their construction, the unit of local government shall make a determination that it will not remove the budgetary provision for the necessary facilities from their budget. Policy 08.06.05- Within one year from the submission of the updated Broward County Land Use Plan, Broward County shall adopt and implement a concurrence monitoring system to ascertain whether necessary facilities identified within the Capital Improvements Element of the Broward County Comprehensive Plan are being constructed in accordance with the schedules in the Plan and to measure the development capacity of such facilities in a given area at a given time. Goal 09.00.00 is to "[p]rotect Broward County's natural and historic resources through well-planned patterns of growth and development." Objectives 09.01.00 through 09.07.00 and Objectives 09.09.00 and 09.10.00 deal with the protection of natural resources in general and waterwells, cones of influence, beaches, shores, marine resources, floodplains, surface water, groundwater, wetlands, soils and minerals in particular. Objectives 09.01.00, 09.05.00 and 09.09.00, along with their accompanying policies, are especially significant in the context of the instant case. Objective 09.01.00 and its accompanying policies provide as follows: Objective 09.01.00- Broward County shall monitor and protect those Natural Resource Areas (which are considered to be environmentally sensitive lands) designated as Local Areas of Particular Concern on the Future Broward County Land Use Plan Map (Series). Policy 09.01.01- Natural Resource Areas that have been found to comply with the definition of Local Areas of Particular Concern have been identified on a Map of Local Areas of Particular Concern within the Future Broward County Land Use Map Series. Policy 09.01.02- Local Areas of Particular Concern are declared to be environmentally sensitive lands and upon adoption of this plan shall be subject to the provisions of the Broward County Land Development Code regarding environmentally sensitive lands. Policy 09.01.03- Broward County shall implement strategies for the protection of Local Areas of Particular Concern and other environmentally sensitive lands such as: acquisition by public or private organizations; establishment of a County trust fund for acquisition; adoption of innovative land development regulations; conservation easements; transfer of development rights; deed restrictions; and restrictive covenants. Policy 09.01.04- Land development codes and regulations should address the mitigation of Local Areas of Particular Concern when other strategies such as those within Policy 09.01.03 have been exhausted. Policy 09.01.05- Discourage activities in the vicinity of Local Areas of Particular Concern which would have a detrimental impact upon such areas. Policy 09.01.06- Encourage local government entities to protect natural resources through the implementation of land development regulations and procedures that promote the acquisition, retention and management of such areas. Policy 09.01.07- During 1989, Broward County shall conduct a review of areas containing natural resources as depicted in the Natural Resource Map Series and shall determine whether the designation and regulation of additional Environmentally Sensitive Lands is appropriate. Policy 09.01.08- During 1989, Broward County shall adopt lot clearing regulations aimed at preserving native vegetation within areas identified pursuant to Broward County's land clearing ordinance. Policy 09.01.09- Broward County should develop and adopt regulations to eliminate invasive exotic vegetation. 13/ Policy 09.01.10- Local landscaping ordinances should encourage the use of native vegetation and include lists of plant species which require minimal watering and fertilization. Policy 09.01.11- Broward County shall endeavor to develop a system of positive incentives for the purpose of encouraging private landowners to protect Local Areas of Particular Concern. Policy 09.01.12- During 1989, Broward County shall develop and implement a program to purchase selected Local Areas of Particular Concern and to purchase and enhance other areas found to be environmentally sensitive lands. Policy 09.01.13- At the time of development review or public acquisition within a Local Area of Particular Concern, Broward County shall develop a management strategy which identifies the entity responsible for the maintenance and protection of the natural area. Objective 09.01.00 and its accompanying policies must be read in conjunction with Natural Resources Map III. B. of the Future Broward County Land Use Plan Map (Series), which will be discussed later in these Findings of Fact, and with the provisions of Volume I, Chapter IV(A) and (D) of the plan dealing with Local Areas of Particular Concern. A "Local Area of Particular Concern" is defined in Volume I, Chapter IV(A) of the plan as follows: [A]n area designated on the Natural Resource Map Series of the Broward County Land Use Plan which has been declared to be environmentally sensitive. Those areas are subject to environmental impact report provisions of the Broward County Land Development Code 14/ and policies under Objective 09.01.00. The criteria for Local Areas of Particular Concern are contained in [Volume I, Chapter IV(D) of the plan]. Volume I, Chapter IV(D) of the plan states that "Local Areas of Particular Concern may be designated in six categories according to the types of resources present:" marine resource category; natural landforms and features category; native vegetative communities category; wildlife category; economic resource category; and cultural resource category. It describes a Local Area of Particular Concern in the native vegetative communities category as an "area which shows a predominance of native vegetation associated with one or more of the following ecological communities: beach and dune community; coastal strand forest community; mangrove community (saltwater swamp); scrub community; pine flatwoods community; high hammock community; low hammock community; cypress wetland community (freshwater swamp); and Everglades community (freshwater marsh). It further provides that, in order to be designated a Local Area of Particular Concern in the native vegetative communities category, an area must meet at least three of the following five criteria: Uniqueness- The site contains a significant sample of rare or endangered species, or, the site is among a small number of sites in Broward County representing a particular ecological community. Diversity- A significant sample of two or more ecological communities are contained within the site. Low level of Exotic Invasion- The degree and nature of exotic invasion on the site is such that it can be easily managed or mitigated. Potential for Protection- Ownership patterns, development status and the other factors make the resources of a site likely to be successfully protected. Geography- The site has proximity to other resources which would heighten its value as a [Local Area of Particular Concern]. Objective 09.05.00 and its accompanying policies deal with the protection of wetlands. They provide as follows: Objective 09.05.00- Protect the wetlands, hydric soils and the vegetative communities historic to the areas within Broward County for their natural functions, such as storing freshwater, filtering stormwater runoff and preventing erosion. Policy 09.05.01- The Code of Regulations of the Broward County Environmental Quality Control Board shall protect those wetland areas which are within their jurisdiction. 15/ Policy 09.05.02- The jurisdictional boundaries of the landward extent of regulated waters in Broward County are determined by wetland plant indicator species adopted by the Florida Department of Environmental Regulation, pursuant to Section 403.817 Florida Statutes as utilized by the Environmental Quality Control Board. Policy 09.05.03- To provide increased protection for isolated small wetlands, Broward County shall request the Environmental Quality Control Board to establish a local isolated small wetlands protection program. 16/ Policy 09.05.04- Wetlands should be protected through techniques such as utilizing them as water retention/detention areas and regulating them through development codes. Policy 09.05.05- Land development codes and regulations shall address mitigation of wetlands when alternative strategies such as those within Policy 09.01.03 have been unsuccessful. Policy 09.05.06- Broward County shall complete an inventory of all wetlands areas in southwestern Broward by 1990 and identify those areas on the Wetlands Map of the Natural Resource Map Series of the Future Broward County Land Use Plan Map (Series). Objective 09.09.00 and its accompanying policies address drainage and stormwater management. They provide as follows: Objective 09.09.00- Eliminate flooding problems while preserving groundwater quality through planned growth, the provision of drainage and stormwater management systems and the adoption of appropriate development codes and regulations. Policy 09.09.01- New development shall provide water storage capacity equal to that which existed under predevelopment conditions consistent with the water management regulations and plans of the South Florida Water Management District, Broward County Environmental Quality Control Board, Broward County and independent drainage districts. Policy 09.09.02- New non-residential development shall provide pre-treatment for stormwater runoff through grassy swales, wetlands filtration, ex-filtration trenches or other means consistent with the Best Management Practices of the South Florida Management District. Policy 09.09.03- Broward County shall, in cooperation with the appropriate agencies, prepare studies to determine if additional regulations or programs are needed to ensure a comprehensive approach to identified stormwater management problems and the protection of groundwater quality. Policy 09.09.04- Broward County shall, prior to approving land use plan amendments in the flood prone portions of the County, determine that the subsequent development will be served by adequate stormwater management and drainage facilities, not adversely affect groundwater quality or environmentally sensitive lands and not increase saltwater intrusion or areawide flooding. 17/ The subject of mixed land uses is treated in Goal 10.00.00 and its accompanying objectives and policies. 18/ They provide, in pertinent part, as follows: Goal 10.00.00- Promote the efficient use of public facilities and services through planned communities with mixed land uses. Objective 10.01.00- Encourage the use of innovative land development regulations and techniques, for both residential and non- residential development in order to promote planned communities and activity centers designed for efficient use of public services and facilities. Policy 10.01.01- Encourage the use of mixed land use development regulations in those areas where compatible mixed land use patterns currently exist or are planned. Policy 10.01.02- Local government entities should apply the Employment Center land use designation of the Broward County Land Use Plan to lands utilized or planned for mixed non-residential development. * * * Objective 10.02.00- Encourage attractive and functional mixed living, working, shopping and recreational activities by establishing within the Broward County Land Use Plan a Regional Activity Center land use category. Policy 10.02.01- Local government entities may propose land areas for designation as Regional Activity Centers within the Broward County Land Use Plan, consistent with the rules and procedures contained within the Regional Activity Center Permitted Uses subsection of [Volume I, Chapter IV(B) of the plan]. Policy 10.02.02- Modes of mass transit should be encouraged to serve Regional Activity Centers to reduce reliance upon automobile travel. Policy 10.02.03- To facilitate public transit access, integrated transportation systems should be encouraged to serve Regional Activity Centers. * * * Policy 10.02.06- Local land use plans should provide for adequate housing opportunities within Regional Activity Centers to allow people to both live and work within such areas. Other noteworthy goals, objectives and policies set forth in Volume I of the plan are the following: Goal 11.00.00- Provide levels of service for public facilities and services sufficient to meet the existing and future needs of Broward County's population. Objective 11.01.01- Ensure that public facilities and services meet those level of services standards established within the Broward County Comprehensive Plan and local comprehensive plans. * * * Policy 11.01.03- To maintain those level of service standards identified within the Broward County Comprehensive Plan and local comprehensive plans, Broward County shall, prior to final action on amendments to the Broward County Land Use Plan, determine whether adequate public facilities and services will be available when needed to serve the proposed development. Policy 11.01.04- Prior to plat approval, Broward County and/or the appropriate local governmental entity shall ensure that the public facilities and services necessary to meet the level of service standards established within the Broward County Comprehensive Plan and affected municipal comprehensive plan will be available concurrent with the impacts of development, consistent with Chapter 163.3202(g) Florida Statutes and the concurrence management policies included within Goal 8.00.00 of the Broward County Land Use Plan. * * * Goal 12.00.00- Coordinate transportation and land use planning activities to ensure adequate facilities and services are available to meet the existing and future needs of Broward County's population and economy. * * * Policy 12.01.04- Broward County and its local government entities shall consider the individual and cumulative impacts of land use plan amendments on the existing and planned transportation facilities within the County. Policy 12.01.05- Transportation facilities and services should be developed in a manner which encourages infill development and promotes the efficient use of urban services. * * * Objective 13.02.00- Establish procedures to ensure consistency and coordination among the Broward County Land Use Plan, the State of Florida Comprehensive Plan, the Regional Plan for South Florida, plans of municipalities and the Broward County School Board, plans of other units of local government which provide services but do not have land use regulatory authority and the comprehensive plans of adjacent counties. * * * Objective 13.04.00- Provide and utilize coordination mechanisms to ensure that the impacts of development proposed in the 1989 Broward County Land Use upon development in the municipalities, county, adjacent counties, the region and state are addressed. * * * Goal 14.00.00- Eliminate areas of blight and incompatible land uses. * * * Objective 14.02.00- Develop and implement land use programs to encourage the elimination or reduction of existing incompatible land uses and prevent future incompatible land uses. Policy 14.02.01- The compatibility of existing and future land uses shall be a primary consideration in the review and approval of amendments to the Broward County and local land use plans. Policy 14.02.02- Local land use plans shall ensure that commercial, industrial and other non-residential land use plan designations are located in a manner which facilitates their serving, but does not adversely impact existing and designated residential areas. Policy 14.02.03- In order to prevent future incompatible land uses, the established character of predominantly developed areas shall be a primary consideration when amendments to the Broward County Land Use Plan are proposed. Policy 14.02.04- Broward County's local government entities shall minimize the impacts of existing incompatible land uses through requirements within their land development codes and regulations, such as buffering and setbacks. Contents of Broward County's 1989 Comprehensive Plan: Volume III Volume III of Broward County's 1989 comprehensive plan references, discusses and analyzes the surveys, studies, and data supporting the countywide future land use element set forth in Volume I of the plan. The aforementioned surveys, studies and data are based upon professionally accepted methodologies. In those instances where the County Commission did not perform its own special studies and surveys or collect original data, the surveys, studies and data upon which it relied in adopting the countywide future land use element represented the best reliable information it was able to obtain from other sources in the time it had available to it. 19/ Volume III, Chapter I of the plan contains an inventory of existing land uses in the County. The inventory reflects that "[v]acant land occupies about 36% of the [eastern third] of Broward County totalling approximately 92,000 acres or 144 square miles" and that "the vast majority of these vacant acres are situated in southwest and northwest Broward County, [although] there are still many areas [to the east] which are available for future growth and development." Volume III, Chapter I of the plan also discusses and analyzes the various maps that were developed to identify the natural resources in the County. One of the maps referenced in Volume III, Chapter I is Map III.C. of the Natural Resource Map Series-Eastern Broward County. It was adopted by the County Commission on March 1, 1989, as the map depicting wetlands in the eastern third of Broward County (wetlands map). 20/ The wetlands map that the County Commission submitted with its proposed comprehensive plan to the Department of Community Affairs identified only wetlands east of Flamingo Road. It was based upon a South Florida Water Management District Land Use and Land Cover Classification Survey and a 1987 survey conducted under the auspices of the Coalition of natural areas in the County east of Flamingo Road. In its written comments regarding the proposed plan, the Florida Department of Environmental Regulation (DER) objected to the wetlands map submitted with the proposed plan because "a review of the U.S. Fish and Wildlife Service Wetland Inventory Map for parts of Region 5 of Broward County [S.W. Broward] indicate[d] more forested and non-forested wetlands than [were] shown on the [map]." The County was made aware of this objection and the matter was referred to the staff of the Broward County Planning Council. Planning Council staff began the task of revising the wetlands map to reflect the wetlands in S.W. Broward. The task was a difficult one given the limited amount of time available to complete the project and the lack of accurate, complete and up-to-date information concerning the location of wetlands in the area. The U.S. Fish and Wildlife Service Wetland Inventory Map referenced in DER's written comments to the proposed plan was not current. It reflected conditions as they existed in 1979. Because S.W. Broward had experienced substantial development activity since that time, the U.S. Fish and Wildlife Service's map was of only historic value. Furthermore, the wetlands determinations reflected on the map were based only upon one factor: vegetation. As mentioned above, the Broward County EQCB has regulatory authority over wetlands in the County. DER and the U.S. Army Corps of Engineers (Corps) also have such authority. Before these three agencies exercise their regulatory authority, they first must determine whether there are wetlands involved and, if so, to what extent they exist. In making these jurisdictional determinations, they examine, not one, but three factors: dominant vegetation; 21/ hydrology; and soils. 22/ Neither the Broward EQCB, DER nor the Corps had a map depicting those lands that had been determined to be jurisdictional wetlands in S.W. Broward. Planning Council staff asked the EQCB to produce such a map. The EQCB responded that there was not sufficient time to do so. Although it did not have a map, the Corps did have information in its files concerning previous jurisdictional determinations it had made. This information was contained on several hundred quad sheets. Because the Corps makes jurisdictional determinations in a piecemeal fashion, the information concerned only a limited number of properties in the S.W. Broward area. Furthermore, some of these determinations were no longer valid because they had been made more than two years previous. 23/ Planning Council staff, confronted with the foregoing, sought to enlist the assistance of Ann Buckley. Buckley is a botanist. Her undergraduate degree is in zoology, but she has taken numerous graduate level courses in botany and has had extensive experience in compiling plant lists. At the time she was contacted regarding the matter, Buckley had had little or no experience in determining the existence and extent of wetlands based upon all three indicators relied upon by the EQCB, DER and the Corps in making jurisdictional determinations. Nonetheless, she was approached by Planning Council staff, none of whom had any expertise in the identification of wetlands, 24/ because she was in the process of conducting a vegetative cover study of parts of the County, including S.W. Broward. The study was the subject of a contract between the County and the Coalition. Buckley was working on the project as a subcontractor. Buckley told the Planning Council staff member who contacted her that she believed that the findings of her study could be used to prepare a wetlands map of S.W. Broward. Notwithstanding that neither the Coalition's contract with the County, nor her contract with the Coalition, required that wetlands be identified, Buckley agreed to provide Planning Council staff with information concerning the location of wetlands in S.W. Broward. As she had promised, Buckley furnished Planning Council Staff with such information. The information was provided in the form of a map that Buckley had prepared. According to the map, all but the developed areas of S.W. Broward were wetlands. There were areas shown on the map, however, as developed that were actually undeveloped. The wetlands on Buckley's map were shown as being either intact (in blue), managed (in blue and white stripes) or populated by malaleuca (in green). Developed areas were also depicted on the map (in red). Rock pits were not specifically identified on the map. The entire 235 acre Imagination Farms parcel was depicted on the map as managed wetlands. There were other areas shown on the map as wetlands that were subsequently determined not to be jurisdictional wetlands. Furthermore, there were areas, like the Imagination Farms parcel, that were being used as pastureland and had depressions where smartweed grew, but were not shown on the map as wetlands. Buckley's map reflected the preliminary findings of her study, which she had not yet completed. She so advised Planning Council staff and cautioned that her information needed to be supplemented. Buckley had based her map upon information she had obtained from a review of the U.S. Fish and Wildlife Service's 1979 wetlands map and a 1984 soil survey published by the U.S. Soil and Conservation Service, from an examination of aerial photographs taken in 1987 of the S.W. Broward area, 25/ and from recorded observations she had made while flying over the area in a helicopter at low altitudes and ground-truthing 50% of the sites in the area. 26/ Buckley had also contacted the Corps and the U.S. Environmental Protection Agency in attempt to acquire information that she could use to prepare the map, but these agencies had little, if any, information to share with her. Planning Council staff had not told Buckley what criteria she was to use in determining what areas in S.W. Broward were wetlands. She therefore developed her own criteria. If an area, according to the 1984 U.S. Soil and Conservation Service soil survey, had hydric soil and if it, in addition, had plants that were listed as wetlands species on plant lists set forth in the manuals she consulted, Buckley classified the area as a wetland. She did not take into account hydrology, nor did she consider the relative dominance of the wetlands vegetation in the area under examination, in making her wetlands determinations. After receiving Buckley's wetlands map, Planning Council staff did not conduct any study of their own to verify the accuracy of the map. They did show the map, however, to EQCB representatives, who expressed concerns that the map was not consistent with jurisdictional determinations that had been made by the EQCB. Notwithstanding these concerns, Planning Council staff used Buckley's map to prepare a wetlands map of S.W. Broward and submitted the map it had prepared to the Planning Council. The Planning Council considered the map at a public hearing held in late February, 1989, a matter of days before the County Commission's March 1, 1989, adoption hearing. Considerable testimony was taken at the Planning Council hearing. Many of the people who spoke at the hearing were critical of the map. They voiced their opinion that the study conducted by Buckley, upon which the map was based, was not objective. The Planning Council rejected the map with which it had been presented by its staff. It recommended that the County Commission adopt a wetlands map which showed the Everglades buffer strip as the only wetlands area in S.W. Broward. It further suggested that the County Commission insert language in the comprehensive plan requiring further study of the matter so that a more accurate wetlands map could be prepared. When the wetlands map recommended by the Planning Council came before the County Commission for consideration at the Commission's March 1, 1989, adoption hearing, a representative of the Coalition urged the Commission to instead adopt the map Planning Council staff had prepared based upon Buckley's map. Buckley's map thereupon became the subject of heated public debate and criticism. Members of the public came forward and attacked Buckley's map as being imprecise and inaccurate. Among the matters brought to the attention of the County Commission was that, although Buckley had determined that the entire Imagination Farms parcel constituted wetlands, representatives of the EQCB, DER and the Corps had recently concluded otherwise. Buckley was given an opportunity by the County Commission to speak and to defend her map. During her presentation she was interrupted by her critics in the audience. She became unnerved and was unable to coherently explain to the Commission how she arrived at her findings. Given Buckley's failure to effectively rebut the persuasive arguments of her detractors, the County Commission reasonably determined that Buckley's map, as well as the map that Planning Council staff had prepared based upon her map, were unreliable and therefore should not be adopted. 27/ The County Commission recognized that there were wetlands in S.W. Broward that were not depicted on the map 28/ transmitted by the Planning Council, although it was unsure as to exactly where they were located. The map therefore, in the view of the County Commission, needed to be supplemented. The County Commission decided that the map should show, in addition to what the Planning Council had suggested, "[e]xisting wetland vegetation as identified on vegetation association maps of approved Developments of Regional Impact (DRI's)" and "[m]itigation areas, natural preserves, littoral zones and other wetland areas to be created and/or protected per the Master Plans of approved DRI's." The information upon which these additions to the map were to be based was readily available. There was no other readily available information upon which the County Commission felt it could rely to supplement the Planning Council's map. 29/ Accordingly, it adopted a wetlands map which did not depict any wetlands in S.W. Broward outside the Everglades buffer strip and approved Developments of Regional Impact. In addition, it committed Broward County to conducting a complete study of wetlands in S.W. Broward. 30/ The study is referenced in the following note that appears on the wetlands map adopted by the County Commission: Policy 09.05.06 provides that Broward County shall complete an inventory of all wetland areas in southwestern Broward by 1990 and identify those areas on the Wetlands Map (Map III.C.) of the Future Broward County Land Use Plan Map (Series). Immediately above this note on the map is the statement that "Objective 09.05.00 and its policies ensure the protection of wetlands." The adopted wetlands map also contains the following disclaimer: The Wetlands Map of the Future Broward County Land Use Plan Map Series is incorporated pursuant to the requirements of Section 163.3177(6) Florida Statutes, and does not represent the wetland jurisdictional boundaries of the landward extent of regulated waters as provided for in the Code of Regulations of the Broward County Environmental Quality Control Board. Another map discussed in Volume III, Chapter I of the plan is Map III.B. of the Natural Resource Map Series-Eastern Broward County. This map was adopted by the County Commission on March 1, 1989, as the map depicting Local Areas of Particular Concern and regional parks, as well as Natural Resource Areas in the unincorporated area. Volume III, Chapter I gives the following description of the process which resulted in the selection of the sites that are designated on the map as Local Areas of Particular Concern: The inventory of Environmentally Sensitive Lands 31/ was developed from the comprehensive study prepared by the Environmental Coalition of Broward County in 1987. This study identified approximately 200 sites that were deemed as significant natural areas within Broward County east of Flamingo Road. Of the original list of sites, 137 were transmitted to the Department of Community Affairs by the County Commission during September of 1988 with a commitment to further study and revise the map. During the interim, 13 sites were deleted because they have been destroyed. The remaining 124 sites were reviewed by County staff utilizing the criteria found in Section 8.[g].3 of [Volume I, Chapter IV(D) of the plan]. A total of 63 sites were sent forward for consideration as Local Areas of Particular (LAPC's). Following several public hearings, 39 sites were designated by the County Commission as LAPC's and will receive an additional level of protection under the Broward County Land Development Code. The LAPC sites are depicted on map III.B. Each site is summarized in Table I-3. The foregoing narrative accurately describes how these Local Areas of Particular Concern were selected. Those sites identified as natural areas in the Coalition's 1987 study 32/ that were not selected were eliminated as candidates for selection based upon the recommendations of staff who had visited the sites and upon testimony given at public hearings. Sites were eliminated for a variety of reasons, including their small size, their lack of uniqueness, the inferior quality of their vegetation, the development they had already experienced, the absence of potential and/or need for their protection, and the failure to give proper notice to their owners of their possible selection as Local Areas of Particular Concern. One site, known as the Harris scrub site, was eliminated because it was believed that its designation as a Local Area of Particular Concern would have an adverse impact on the County, notwithstanding that the botanical information presented to the County Commission reflected that the site was of "good quality." The sites selected by the County Commission as Local Areas of Particular Concern were, from a botanical perspective, among the best in the County. Some sites that were not selected as Local Areas of Particular Concern, including the Harris scrub site, were designated by the County Commission as Natural Resource Areas. As such, these sites were subject to the protection offered by Broward County Ordinance 89-6, which prohibits, with limited exceptions, the clearing of Natural Resource Areas before a site plan has been approved. To qualify as a Natural Resource Area a site must have a predominance of one of the native vegetative communities referenced in Volume I, Chapter IV(D) of the plan. Before a site may be designated a Local Area of Particular Concern or a Natural Resource Area notice of the public hearing at which the matter will be considered must be given to the site's owner. The other maps adopted by the County Commission as part of the Natural Resource Map Series show: existing and planned waterwells and cones of influence (Map III.A.); floodplains (Map III.D.); mineral resources (Maps III.E. and IV.B.); beaches, shores, rivers, harbors, drainage canals, major lakes and estuarine systems (Map III.F.); soils (Maps III.G. and IV.C.); and wetlands in the western two thirds of the County (Map IV.A.) These maps are also discussed and analyzed in Volume III, Chapter I of the plan. Volume III, Chapter II of the plan examines the location, 33/ character and magnitude of the existing vacant and undeveloped in Broward County to determine its suitability for use. Included is an examination of soils, topography, flood prone areas, wetlands, historic resources, environmentally sensitive lands, and water wellfields. The following observations are made in this portion of the plan with respect to flood prone areas: The 1982 Southwest Broward Study by SFWMD, notes that large portions of the area north of Hollywood Boulevard are prone to flooding with the potential for long periods. While existing floor elevations are above the flood stage, lawn, driveways and unimproved roads will be under water frequently. The SFWMD study also indicates that the area south of Hollywood Boulevard is also prone to being inundated to flooding due to low elevations, lack of slope and poor percolation characteristics. The natural drainage in southwest Broward due to topography is towards the southeast. * * * Development and redevelopment in areas that are flood prone require special development considerations. First, the raising of building pad elevations to meet the FEMA requirements. Secondly, the development of on-site drainage systems that provide sufficient site drainage and retain/detain stormwater runoff quantity and quality that meets the requirements of the SFWMD, Broward County Environmental Quality Control Board and, if applicable, the requirements of the local drainage district. The 1982 Southwest Broward Study by SFWMD provides information on the subsurface and ground water quality impacts based on anticipated future land uses in southwest Broward. * * * The 1982 Study is the best available data which provides information on the water quality impacts of southwest Broward. The study indicated future development in southwest Broward that is consistent with the 1982 land use plan, utilizes best management practices and is in compliance with the retention/detention criteria of the SFWMD [and] should have minimal impact on the aquifer and natural systems. The examination of wetlands includes the following analysis of wetlands in S.W. Broward: Within S.W. Broward the significant wetland communities occurring are non-forested fresh water wetlands (see NR Map No. III.C). These wetlands consist of three subcategories: wet prairies, managed wetlands and wetlands that have been impacted by invasive exotic species. The wet prairies have good representation of wetland plants. The soil is generally moist, and in many instances, with standing water. The managed wetlands have wetland flora intact although the flora is suppressed by management techniques such as mowing. The impacted wetlands have over fifty (50) percent cover of invasive exotic species as Malaleuca quinquenervia (Malaleuca) and Schinus terebinthifolious (Brazilian pepper). The native flora is suppressed but would return if the exotic species were removed. Environmentally sensitive lands are analyzed as follows: During 1989, Broward County has committed itself to a comprehensive program to identify and protect environmentally sensitive lands. This program is discussed in detail under the heading "Environmentally Sensitive Lands" in [Chapter I] of this Volume. In addition, Policy 09.01.07 calls for a review of areas containing natural resources during 1989 as depicted in the Natural Resource Map Series and the determination as to whether the designation and regulation of additional Environmentally Sensitive Lands is appropriate. The Broward County Commission shall conduct a review of the following maps and, utilizing the criteria enumerated herein or utilizing additional or alternative criteria reviewed and approved by the County Commission, make a determination whether the designation and regulation of additional Environmentally Sensitive Lands is [appropriate]: Existing and Planned Potable Water Wells and Zones of Influence Wetlands Flood Plains and Flood Prone Areas Mineral Resources Beaches, Rivers, Harbors, Canals, Major Lakes and Estuarine System Soils Local Areas of Particular Concern NR Map No. III.B. identifies several sites throughout the county that in addition to being designated natural areas . . . have also been afforded some level of protection through the local area of particular concern designation. However, there are many sites that are contained in the natural areas study within the County which should be offered a degree of protection through the land use planning process. Inasmuch as many of these areas will require platting through Broward County prior to the issuance of development permits it would be appropriate to offer the same level of protection to these areas as are afforded LAPC and urban wilderness areas. 34/ The most expeditious manner to approach protection for these areas is to amend the Broward County Land Development Code (Ordinance No. 86-91) to require environmental impact assessments for plats including these sites prior to plat approval. Volume III, Chapter II of the plan contains the following conclusion regarding the suitability of land in the eastern third of Broward County for development: This portion of the document has assessed the suitability to develop Broward's vacant land relative to soils, topography and development in flood prone areas, wetlands, historic resources and environmentally sensitive lands. The analysis reveals that, for the most part, these factors do not play a significant role in developing vacant land. The major reasons for this is that current development economics allow site work to be accomplished within acceptable budget constraints such as soil modifications, the addition of fill to elevate sites and development of on-site stormwater retention/ detention facilities can be provided. In southwest Broward however, the development of vacant land should be required to meet criteria that minimizes impacts to water quality, drainage and natural systems. With this criteria in place, the land is suitable for development, although additional site development costs will be necessary to account for poor soil conditions and lower ground surface elevations. With the continuance of the Everglades buffer areas, along the west side of U.S. 27, the development of southwest Broward is not anticipated to impact the quality of the natural areas associated with the Everglades Conservation Area. Volume III, Chapter III of the plan analyzes the availability of facilities and services to meet the needs of existing land uses and land for which development orders have been issued. The facilities and services examined include those relating to sanitary sewage, solid waste, drainage, and potable water. Volume III, Chapter IV of the plan discusses roadways in the County and their existing levels of service. Volume III, Chapter V of the plan examines the redevelopment needs of the County. Volume III, Chapter VI of the plan projects, on both a countywide and subregional basis, the County's future population and the amount of land needed to accommodate the projected population. Among the projections regarding the County's future land needs are those which forecast the amount of land that will be needed for residential use. It is projected that in the year 2010, a total 121,148 acres of land will be needed on a countywide basis for residential use, as compared to the 99,510 acres of land that are currently used for residential purposes countywide. This additional land will be needed because, as Volume III, Chapter VI of the plan reflects, the County's resident population is expected to increase by 411,360 (based upon 1987 population figures) 35/ to 1,592,358 in the year 2010. 36/ Table VI-11, which is found in Volume III, Chapter VI of the plan, reflects that the FLUM designates a total of 152,000 acres of land in the County for various residential uses, which is 30,852 acres of land more than is projected to be needed in the year 2010. 37/ According to the projections set forth in Volume III, Chapter VI of the plan, 44% of the "new residential acreage" in the year 2010 will have single family housing, and multifamily housing will occupy the remaining acreage. No projection is made, however, as to the amount of land that will be needed in the L-2 land use category or in any of the other individual residential land use categories. Contents of Broward County's Comprehensive Plan: Volumes II & IV Volume II of Broward County's 1989 comprehensive plan sets forth the plan's remaining elements. These elements are as follows: future unincorporated land use element; traffic circulation element; bikeways element; mass transit element; Port Everglades element; Fort Lauderdale/Hollywood International Airport Element; general aviation element; housing element; redevelopment element; sanitary sewer element; solid waste element; potable water element; drainage and natural groundwater aquifer recharge element; coastal management element; conservation element; recreation and open space element; intergovernmental coordination element; and capital improvements element. These elements each contain goals, objectives and policies, as well as a description and analysis of pertinent existing conditions. The appendices to these elements are found in Volume IV of the plan. The plan's conservation element states as follows with respect to the geographic scope of its applicability: Section 8.04 of the Broward County Charter gives the County authority to protect the environment by prohibiting or regulating air or water pollution, or the destruction of the resources of the County. The service area for this Element is, therefore, considered to be the entire County to the extent that it addresses air and water quality and the protection of natural resources. The element includes a discussion and analysis of the natural resources found within the County's jurisdictional boundaries and their potential for conservation and protection. Floodplains, wetlands, and vegetative communities are among the natural resources discussed and analyzed. The following comments are made concerning the County's wetlands: The Conservation Areas, which consist of 710 square miles, west of the developable area of the County are a major wetland of great importance; one of their primary functions is water storage. (See Drainage/Natural Groundwater Aquifer Recharge Element). In 1981, there were approximately 5,300 acres of wetland existing in the unincorporated area of Broward County east of the Conservation Areas. The majority of those wetlands are dominated by Malaleuca, an exotic species which forces out native vegetation. Most of the other wetlands are categorized as sawgrass. An inventory of existing wetlands in the unincorporated area in 1981, including acreage, generalized locations, and type of wetland is provided in Appendix 19-4. * * * No current inventory of freshwater wetlands in Broward County exists, although it is known that many acres have been lost due to fill, drainage, saltwater intrusion, and drawdown of the water table. Appendix 19-4 reflects information gleaned from the South Florida Water Management District Land Use and Land Cover Maps that were published in 1981. The County's vegetative communities are addressed in the following narrative found in the plan's conservation element: Broward County consists of a variety of diverse ecological [vegetative] communities. Nine ecological communities have been identified and described by the Interpretive Section of the Parks and Recreation Division. Numerous species of plants and wildlife inhabit those communities including twenty species of endangered, threatened, or rare plants, mammals, birds, and reptiles. Listings of dominant plants and wildlife can be found according to ecological community in Appendix 19-1. Endangered, threatened, rare and species of special concern are noted. An inventory of birds sighted in Broward County regional parks is also included in Appendix 19-3. The inventory consists of over 200 species and is considered representative of the birds which can be found throughout the County. The nine vegetative communities identified in Appendix 19-1 are as follows: beach and dune community; coastal strand forest community; mangrove community; scrub community; pine flatwoods community; high hammock community; low hammock community; cypress wetland community; and Everglades community. Appendix 19-1 gives a general description of these communities and provides information regarding their geology and soils, dominant plant and animal species, current status and the impact that development has had on them. The plan's conservation element also contains a discussion of the existing County programs that serve to protect its natural resources. Among the programs described and explained are those dealing with Local Areas of Particular Concern, Natural Resource Areas, Urban Wilderness Areas and tree removal. Information concerning sites that have been designated as Local Areas of Particular Concern, Natural Resource Areas and Urban Wilderness Areas, including their location, is set forth in Appendices 19-7 and 19-8. Objectives 1 through 4 and Policies 1 through 10 of the plan's conservation element provide as follows: Objective 1- Update Broward County's existing data base of native vegetative communities by 1990. Policy 1- To update the native vegetative communities data base the County shall include those areas designated as Environmentally Sensitive Lands on the Natural Resource Map Series as well as lands currently listed as LAPC's, Urban Wilderness Areas and those lands currently on the Urban Wilderness Inventory. The Native Vegetative Communities Data Base should be submitted to the Broward County Board of Commissioners for acceptance, upon completion along with the criteria utilized in the selection of lands for inclusion in the Data Base. Objective 2- Develop a system to monitor development activities occurring on lands listed on the Native Vegetative Communities Data Base. Policy 2- The County should develop a computerized inventory of the Native Vegetative Communities Data Base for access during the development review process. If a site is in the Data Base, the proposed site plan should include the incorporation of the natural vegetative community to the greatest extent possible. Objective 3- Revise the lists of natural resources protected through both the LAPC and the UWA Programs. Policy 3- The Native Vegetative Communities Data Base should be the source of new areas suitable for designation as Local Areas of Particular Concern (LAPC), (Map 19-1 and Appendix 19-8). Land should be selected for designation if the characteristics of one of the six LAPC categories has been satisfied. If any of the existing designated LAPC's no longer possess the characteristics of an LAPC, they should be eliminated from the list. Policy 4- The Native Vegetative Communities Data Base should be used for selecting resources for preservation as Urban Wilderness Areas (UWA). The Urban Wilderness Advisory Board should work with the Office of Planning in selecting areas to be recommended for acquisition as Urban Wilderness Areas (UWA). The UWAs recommended for acquisition should include cost estimates and be financially feasible. Policy 5- Urban Wilderness Areas (UWA) and other appropriate publicly owned lands should be designated as natural reserves on the Broward County Land Use Plan Map under the conservation land use category. Upon completion of the update of the native vegetative communities data base the Broward County Planning Council and the Broward County Office of Planning should study the native vegetative areas to determine which merit designation as LAPC's or purchase and preservation as UWAs. Policy 6- By 1990 the County shall develop a wide range of programs for the conservation of native vegetative communities, such as: acquisition, easements, innovative land development regulations, and incentive programs. Policy 7- Information from the Native Vegetative Communities Data Base shall be made available to local municipalities in order to coordinate resource management activities. Data Base information, provided to the local municipalities, would become the basis for resource "networking." This would establish intra-county vegetative corridors linking LAPC's and UWA's with other green-space areas. Objective 4- Amend the Broward County Tree Preservation Ordinance to promote the maintenance of native vegetative communities by 1990. Policy 8- By 1990 landscaping regulations should be created [which] address the preservation of existing native vegetative communities and the use of native vegetative materials. Policy 9- By 1990 lot clearing regulations should be created which will be effective in preserving native communities, conserving wildlife habitat and eliminating exotics from the local landscap[e]. The SFWMD Model Landscape Code includes land clearing and vegetation preservation procedures which could be used as a basis for revising the County's Ordinance. Policy 10- The lot clearing permitting process should concern those properties listed on the native vegetative cover data base. Coastal management issues are treated in the plan's coastal management element, which includes a natural disaster component and a deepwater port component, as well as other provisions. The natural disaster component applies to those areas in the County delineated in the Broward County Coastal Hurricane Evacuation Plan as being vulnerable to the effects of a hurricane and requiring evacuation, whether they are located in an incorporated municipality or in the unincorporated area of the County. The Port Everglades Authority (Authority) is an independent governmental entity responsible for the management of Port Everglades, a port located in Broward County. The Authority has adopted a Master Plan for the Port. The Master Plan was adopted by the County Commission as the deepwater component of the coastal management element of the County's comprehensive plan. The remaining portions of the plan's coastal management element apply primarily to the unincorporated coastal areas in the County. To the extent, however, that these remaining portions of the plan address programs administered on a countywide basis, such as beach preservation and renourishment programs, they are applicable to those areas served by these programs regardless of whether the areas in question are in the unincorporated part of the County. The coastal management element refers to the two coastal areas in the unincorporated portion of the County as the North Unincorporated Coastal Area (NUCA) and the South Unincorporated Coastal Area (SUCA). The NUCA is comprised of approximately 211 acres. It is almost fully developed. There are only three vacant lots in the area. The development in the area is predominately residential, although there is some commercial development. The SUCA, at approximately 198 acres, is slightly smaller than the NUCA. It falls within the area that is subject to the jurisdiction of the Port Everglades Authority. The view is expressed in the analysis section of the coastal management element that, because "the unincorporated coastal areas are almost fully developed, there is little that can be done to minimize conflicts between land uses and the natural resources of the area." It is further stated that "inasmuch as the unincorporated coastal areas are built out, development activities are expected to be very limited and to have no measurable impact on infrastructure." The plan's coastal management element includes the following goal, objectives and policies: Goal- Manage development activities in Broward County's coastal area to maximize aesthetic, environmental, recreational, and economic values. Objective 1- Renourish the Hollywood/Hallandale beach in 1990 in accordance with the EPD's [Broward County Erosion Prevention District's] Beach Management Plan. Policy 1- Maintain Broward County's beaches to a width of approximately 150 feet. Policy 2- Continue to support the EPD Beach Management Plan as a means of conserving the barrier islands resources. Objective 2- Improve the value of beaches and dunes as a protective device for upland development. Policy 3- Enforce and monitor compliance with the Coastal Construction Control Line Regulations. Policy 4- Permit and monitor development in the unincorporated coastal areas to ensure proper compliance with state and local regulations. Objective 3- Encourage local governments and property owners to protect existing beach vegetation and to revegetate the beach, where appropriate. Policy 5- The Broward Soil and Water Conservation District, with assistance from the USDA Soil Conservation Service, shall continue to provide technical assistance to coastal communities interested in implementing conservation plans. Objective 4- Provide for and maintain public access to the beach including parking facilities at a minimum of one-half mile intervals in the Coastal Area. Policy 6- The County should work with the coastal local governments to develop a plan for maximizing public access to the beach. * * * Policy 7- The County should develop proposals for public parking provision which could be implemented by all local governments interest[ed] in increasing the recreational value of Broward County's beaches. * * * Objective 6- Protect, conserve, and enhance remaining coastal wetlands, living marine resources, coastal barriers, and wildlife habitat, as applicable in the North and South Unincorporated Coastal Area. Policy 9- The County shall limit the specific and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources and beach dune system through the review of developments by the Development Review Committee (DRC), the Broward County Environmental Quality Control Board (EQCB), and the Broward County Building and Zoning Enforcement Division (BZED). Objective 7- Maintain or improve estuarine environmental quality in the Unincorporated Areas. Policy 10- The County shall provide for restoration or enhancement of disturbed or degraded natural resources and programs to mitigate future disruptions or degradations through the Broward County Land Development Code. Objective 8- Provide criteria or standards for prioritizing shoreline uses, giving priority to water-dependent uses. Policy 11- The County shall maintain the existing zoning of the NUCA which gives priority to residential uses having water dependent accessory uses such as dockage and facilities for mooring pleasure boats, yachts, and non-commercial watercraft. Objective 9- Coordinate efforts and existing resource protection plans where possible to protect estuaries within the jurisdiction of more than one local government. Policy 12- The County shall monitor for potential development impacts on estuaries through participation on the Development Review Committee (DRC), the Technical Advisory Committee (TAC), and the Environmental Quality Control Board (EQCB). Policy 13- The County shall coordinate its plans with existing resources protection plans of other agencies through participation on the DRC, TAC, and EQCB. The following are among the objectives and policies found in the plan's drainage and natural groundwater aquifer recharge element: Objective 8- Complete a comprehensive assessment of water management in Broward County by 1991. Policy 14- The comprehensive assessment should be phased to address critical areas in order of priority beginning with Southwest Broward County in accordance with an agreement between Broward County and the South Florida Regional Planning Council. Policy 15A- A study involving municipalities, local water control/drainage districts, the SFRPC, SFWMD, DER, and Broward County shall be conducted to integrate master plans of local districts, EQCB/WRMD water management plans, and other pertinent information for analysis and assessment to perform a determination of any deficiencies and present proposals for their rectification. Policy 15B- The study will involve an assessment of intergovernmental relationships among local and regional water managers. Policy 16- Until the water management assessment is complete, Broward County shall, prior to approving land use plan amendments in the flood prone portions of the County, require an applicant for a land use plan amendment to provide sufficient data and analysis for the County to make a determination that the subsequent development will be served by adequate stormwater management and drainage facilities and shall not adversely affect groundwater quality or environmentally sensitive lands, and not increase saltwater intrusion or area wide flooding. 38/ Policy 17- In order to prevent a degradation of the drainage level of service within Southwest Broward County, prior to the completion of the assessment, future development shall be designed to remove stormwater from non-water management areas, including but not limited to yards, within 72 hours of the end of the ten year design rainfall. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The following are among the goals and policies found in the Regional Plan: Policy 37.1.4- Individual drainage systems should not adversely impact the water quantity or quality of the surrounding area. Policy 37.1.5- If an off-site water supply is proposed for a new development, confirmation, in writing and prior to construction, from the agency providing the water supply that it will have the capacity to serve the increased demand will be provided to the agencies reviewing the project. Goal 38.1- Beginning in 1987, reduce ground and surface water contamination. Policy 38.1.3- New septic tank systems will be permitted only in low density residential (no more than 2.9 DU per acre) areas and commercial developments not producing more than 1,500 gallons of waste per day, provided the area is serviced by public water supplies. These areas will be connected to regional facilities when they are available, subject to State and local regulations. Policy 39.1.3- Whenever a functional wetland or deep water habitat is degraded or destroyed, mitigation shall be provided either through the creation of new wetland and deep water habitat, through the restoration of degraded habitat or through the enhancement of functions and values provided by existing habitats. Policy 39.1.14- The cumulative impacts of small developments and projects should be addressed in all planning programs. Policy 46.1.4- Developments shall pay their fair share of the cost of providing for the recreational needs of the residents of the State. Goal 57.1- New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. Policy 57.1.1- Decisions regarding the location, rate, and intensity of development should be based on the available capacity of the systems required or will be programmed to serve that development. Policy 57.1.3- Permit new development only when and where excess capacity exists, is programmed, or where funding is otherwise made available. Policy 58.1.7- Encourage the compatibility of adjacent land uses. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. The following are among the policies of the State Comprehensive Plan: "[e]nsure that new development is compatible with existing and local and regional water supplies;" "[p]rotect aquifers from depletion and contamination through appropriate regulatory programs and incentives;" "[p]rotect surface and groundwater quality and quantity in the state;" "[e]liminate the discharge of inadequately treated wastewater and stormwater runoff into the waters of the state;" "[d]evelop a system of incentives and disincentives which encourages a separation of urban and rural land uses, 39/ while protecting water supplies, resource development, and fish and wildlife habitats;" "[p]rovide incentives for developing land in a way that maximizes the uses of existing public facilities;" "[a]llocate the costs of new public facilities on the basis of the benefits received by existing and future residents;" and "[e]ncourage the development of a business climate that provides opportunities for the growth and expansion of existing state industries, particularly those industries which are compatible with Florida's environment."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs enter a final order in Case No. 89-2645GM and Case No. 89-2646GM finding that Broward County's 1989 comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of June, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1990.
The Issue The issue is whether the plan amendments adopted by the City of St. Pete Beach (City) by Ordinance No. 2008-15 on August 26, 2008, are in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: The Parties The City is a municipality in southwestern Pinellas County. Following an Evaluation and Appraisal Report (EAR) process, the City adopted its current Plan in 1998 (also known as the 2010 Plan), which has been found to be in compliance. Since 2007, municipalities within Pinellas County have participated in the Pilot Program for adoption of comprehensive plan amendments. The statutory process is described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. Although the City must send a transmittal package to the Department (and other designated agencies and entities) for its preliminary review, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, the Department "may provide comments regarding the amendment or amendments to the local government." Id. It may also initiate an administrative proceeding to challenge whether such amendments are in compliance, but it chose not to do so here. The amendments in dispute were adopted under the Pilot Program. Petitioner is a resident of, and owns property in, the City, and he submitted oral and written comments and objections concerning the proposed amendments. As such, he is an affected person and has standing to participate in this proceeding. The parties have stipulated that Lorraine Huhn and Deborah Nicklaus reside and own property within the City, and that both individuals submitted comments to the City during the transmittal public hearing on June 16, 2008, and/or the adoption public hearing on August 26, 2008. Therefore, they are affected persons and have standing to participate. According to the parties' Pre-Hearing Stipulation, SOLV is a Florida non-profit corporation with a principal address of 6370 Gulf Boulevard, St. Pete Beach, Florida. The parties have also stipulated that SOLV operates a business within the City. Whether it submitted comments to the City between the transmittal hearing on June 24, 2008, and the adoption hearing on August 26, 2008, is in dispute. SOLV's President, Lorraine Huhn, presented comments at the City's adoption hearing on August 26, 2008. See Petitioner's Exhibit 15, pages 63-64. During her brief oral presentation to the City Commission in support of the amendments, she did not state that she was speaking on behalf of SOLV, and at no time did she refer to that organization. However, on August 2, 2008, Ms. Huhn sent an email on behalf of SOLV to the City Clerk, which arguably can be interpreted as written support for the Ordinance being challenged. See Intervenors' Exhibit 9. Also, an email authored by the City Manager on August 1, 2008, indicates that SOLV representatives met with City representatives on July 31, 2008, to discuss the proposed amendments. See Intervenors' Exhibit 10. Since these written and oral comments were submitted between the transmittal and adoption hearings, SOLV meets the definition of an affected person and has standing to participate in this proceeding. Background By way of background, the City was initially incorporated in 1957 as St. Petersburg Beach by consolidating the towns of Pass-a-Grille, Don CeSar, Belle Vista, St. Petersburg Beach, and certain unincorporated areas of Pinellas County. It occupies a six-mile long barrier island (known as Long Key), which lies between the Gulf of Mexico and Boca Ciega Bay, with a maximum width of three-quarters of a mile and an area of approximately 2.25 square miles or 1,286.14 acres. The name was shortened to St. Pete Beach in 1994 to lessen the confusion with the City of St. Petersburg, which lies to the east. The City has about 4.5 miles of beaches and is very densely populated. Most of the City has been developed with only 13.40 acres, or around one percent of the land, vacant and undeveloped. The entire City is within the flood plain, and much of the City is within the Coastal High Hazard Area (CHHA). The current population is around 10,000. To place the current dispute in proper perspective, a history of events that began in 2002 is necessary. With the assistance of a consulting firm, beginning in April 2002 the City initiated redevelopment planning efforts for various areas within the City including Corey Avenue/Blind Pass Road, Pass-a- Grille, Gulf Boulevard, and residential neighborhoods. The intention of this effort was to define the starting point for subsequent master planning efforts by the City. A Final Report (also known as the Visioning Statement or Plan) was issued by the consulting firm in July 2002. See Respondent's Exhibit 1. This was followed by a master planning process by another consulting firm, which was intended, among other things, to develop a strategy for dealing with the redevelopment of older and outdated properties within the resort area of the City (along the Gulf of Mexico), rather than having them converted into residential condominiums because of existing regulatory restrictions. The final Master Plan was presented to the City Commission in August 2003. See Respondent's Exhibit 3. In response to the Master Plan, on June 28, 2005, the City enacted Ordinance 2004-24, known as the City's Community Redevelopment Plan (Redevelopment Plan), which implemented many of the recommendations in the Master Plan. See Respondent's Exhibit 8. Among other things, the Redevelopment Plan created a new land use category, the Community Redevelopment District, which included two sub-districts, the Gulf Boulevard Redevelopment District, depicted on Map 10 of Exhibit 8, and the Downtown Redevelopment District, depicted on Map 11 of the same exhibit. The amendment was intended to establish standards for redevelopment in the so-called "resort" area of the City, which runs north-south along Gulf Boulevard adjacent to the beach on the western side of Long Key, while the same thing was intended for the core downtown area. Although Petitioner is correct that Ordinance No. 2008-15 differs from Ordinance No. 2004-24 in some respects, there are many similarities between the two, including the creation of the two Redevelopment Districts, additional character districts within the two main Districts, and the maps of the Districts. Also, both Ordinances have many of the same Goals, Objectives, and Policies, and both include unnumbered narrative text setting out allowable uses as density and intensity standards. On August 19, 2005, Petitioner and a non-profit association filed a challenge to Ordinance No. 2004-24 under Section 163.3184, Florida Statutes. See Citizens for Responsible Growth and William C. Pyle v. Department of Community Affairs and City of St. Pete Beach, DOAH Case No. 05- 3159GM. The challengers later voluntarily dismissed their petition, the case was closed on October 17, 2005, and the Department found the amendments to be in compliance. Under the City's Charter, however, citizens may petition to require reconsideration by the City Commission of any adopted ordinance and, if the City Commission fails to repeal an ordinance so reconsidered, to approve or reject it at a City election. See Petitioner's Exhibit 26; § 7.02, City Charter. (Ten percent of the qualified registered voters in the City must sign a petition in order to have an ordinance placed on the ballot for approval or disapproval.) Petitioners in DOAH Case No. 05-3159GM were instrumental, at least in part, in securing the necessary number of voters to sign a petition, and a majority of the registered voters in the City later voted to repeal the Ordinance in 2006. Pursuant to that vote, the City Commission repealed Ordinance No. 2004-24 and it never took effect. In 2008, six ordinances (Ordinance Nos. 2008-09 through 2008-14) were proposed as citizen initiatives. After the City refused to act on the six initiatives, SOLV and others filed suit against City officials seeking a vote on the six ordinances. See Save Our Little Village, Inc., et al. v. Commissioner Linda Chaney, et al., Case No. 08-2408-CI-8 (6th Circuit, Pinellas County). On March 31, 2008, the City adopted Resolution 2008-09 approving a Settlement Agreement in the law suit. See Joint Exhibit 1, Appendix C. The Settlement Agreement required the City to transmit and adopt the Ordinance being challenged here subject to various conditions and limitations, if the voters approved Ordinance No. 2008-10, which was a Petition by SOVL proposing an ordinance to amend the Countywide Future Land Use Plan. (The City is required by the Countywide Plan Rules to transmit the countywide plan map amendment to the Pinellas County Planning Council for its review in order to adopt the City plan amendment. This process is described in Petitioner's Exhibit 33.) Notably, the City's staff did not prepare the text or the accompanying supporting data for Ordinance No. 2008-15; rather, the text and all supporting data were prepared by SOLV. The voters approved Ordinance No. 2008-10 on June 3, 2008, which provided for the review and approval of the amendments being challenged here. Pursuant to the results of the referendum, on June 16, 2008, the City approved Ordinance Nos. 2008-15, 2008-24, and 2008-25. Only the first Ordinance is in issue here; the other two are not contested. As required by Section 163.32465(4)(a), Florida Statutes, the amendments were then transmitted to the Department, Department of Environmental Protection, Department of Education, Department of State, Department of Transportation District Seven, Tampa Bay Regional Planning Council, Southwest Florida Water Management District, and Pinellas County Planning Department for their review and comment, if any. Comments on the amendments were offered by the Department on August 1, 2008, and by the Department of Transportation, Department of Education, and Tampa Bay Regional Planning Council. On August 26, 2008, the City adopted Ordinance No. 2008-15. Petitioner's challenge was then timely filed with the Division of Administrative Hearings on September 24, 2008. See § 163.32465(6)(a), Fla. Stat. ("[a]ny 'affected person' as defined in s. 163.3184(1)(a) may file a petition with the Division of Administrative Hearings . . . within 30 days after the local government adopts the amendment"). The Ordinance Ordinance No. 2008-15 establishes a new land use category, the Community Redevelopment District, which includes the Downtown and Gulf Boulevard Redevelopment Districts comprised of eleven character districts, and implements that change by amending the FLUM and certain text provisions within the FLUE and HE. The two new Districts comprise approximately twenty percent of the total land area of the City, or around 248.25 acres. The amendments are found in Attachment A, consisting of 115 pages, which is attached to the Ordinance. Attachment A includes six maps found on page 40 (Map 1 - Community Redevelopment Districts Location); page 41 (Map 2 - Gulf Boulevard Redevelopment Character Districts); page 42 (Map 3 - Downtown Community Redevelopment District 1); page 110 (Map 10 - Future Land Use Map - Gulf Boulevard Redevelopment District, Proposed Future Land Use); page 111 (Map 11 - Future Land Use Map - Downtown Redevelopment District, Proposed Future Land Use); and page 112 (Map 12 - Coastal High Hazard Area - Storm Surge for Category 1 (2007), St. Pete Beach, FL). Pages 1 through 6 are introductory material outlining the need for redevelopment. Pages 7 through 112 pertain to the Future Land Use Element, while pages 113 through 115 relate to the Housing Element. Because SOLV (rather than the City) prepared Attachment A, this is probably the reason why some parts of the lengthy Attachment A have been drafted in narrative style. Besides Attachment A, support documentation for the amendments is attached to the Ordinance and includes the legal notices published in a local newspaper; Citizen Courtesy Information Lists; Commission and Planning Board Agendas; excerpts from Division 31 of the City's Land Development Code; copies of various Ordinances; and a 127-page Special Area Plan submitted to the Pinellas Planning Council and Countywide Planning Authority in support of the amendment that was necessary in order for the City to adopt the Ordinance. In addition, the data and analyses used for the adoption of Ordinance No. 2004-24 were relied upon to support the amendments, including the Visioning Plan and the Master Plan. Petitioner's Objections In paragraphs 9 through 25 of his Petition, which are in the section entitled "Disputed Issues of Material Fact And/or Mixed Disputes [sic] Issues of Fact and Law," Dr. Pyle contends that the amendments adopted by the Ordinance are not in compliance for numerous reasons. The parties' Pre-Hearing Stipulation also states that "the Disputed Issues of Material Fact and/or Mixed Questions of Fact or Law set forth in the Petition for Administrative Hearing in this matter remain disputed issues for the purposes of the final hearing." In his Proposed Recommended Order, however, Petitioner states in a more concise fashion that the amendments are not in compliance because they: are not clearly based upon appropriate data, including data required for the FLUE; [are not] based upon and supported by an appropriate analysis of the best available data; did not demonstrate "need"; [are] inconsistent with the State Comprehensive Plan; [are] not "financially feasible"; [do] not meet format requirements; [do] not contain two planning periods; establish a mixed-use FLUM designation of CRD [Community Redevelopment District] that [does] not meet the statutory and rule requirements; [are] internally inconsistent; and [do] not meet the minimum procedural and notice requirements. These objections will be considered below, although not in the order listed above. Procedural Irregularities Petitioner contends that the City failed to follow certain notice requirements and therefore he was unduly prejudiced by these irregularities. Specifically, he claims that the notices published by the City in the St. Petersburg Times on June 8 and August 20, 2008, did not advise the public of all amendments, particularly one relating to the Resort Facilities Overlay District; did not include a map showing areas subject to the FLUM amendments in relation to major streets; did not advise that the City was amending the coastal construction control line (CCCL) definition in the Preservation land use category; and the actual changes being made "did not comport with the title of the adopted Ordinance." Copies of the published notices, albeit in very small and sometimes illegible print, are found in Joint Exhibit 2. Assuming all of these notice deficiencies are true, Petitioner did not establish that he was prejudiced by any irregularities. Besides being intimately involved in this controversy since its inception in 2002, the evidence shows that he attended both the transmittal and adoption hearings of Ordinance No. 2008-15; that he addressed the City Commission at both meetings; that he was provided copies of all pertinent documents; that through counsel he filed a Petition requesting a formal evidentiary hearing, which raises a litany of compliance issues; that he was allowed to conduct discovery; and that he was given an opportunity to fully litigate each issue in his Petition. The contention that he was prejudiced by procedural irregularities is hereby rejected. Planning Time Frames Petitioner alleges that the Plan, as amended, does not set forth either a short-term planning time frame for the five- year period following adoption, or a long-term planning timeframe for at least a ten-year period following adoption. He contends that this is inconsistent with Florida Administrative Code Rule 9J-5.005(4), which requires that "[e]ach local government comprehensive plan shall include at least two planning periods: one for at least the first five year period subsequent to the plan's adoption and one for at least an overall 10-year period." See also § 163.3177(3)(a)5., Fla. Stat. The existing Plan includes at least two planning periods, a Capital Improvements Plan (CIP) covering the first five years after the adoption of the Plan in 1998, and the School Board's Five-Year Work Program for fiscal year 2007-08 through 2011-2012. Although the CIP was first adopted in 1998, the statutory deadline for all local governments to transmit an updated CIP was December 1, 2008, or after the amendment was adopted. Also, the existing Plan utilized a population estimate from the Bureau of Economic and Business Research (BEBR) to project population for the City for the upcoming ten-year period. Besides the above time frames, the new amendment contains two other planning time frames for implementation of the redevelopment incentives in the Plan. First, it contains a Residential Unit Reserve section for the new District, holding specific numbers of residential units in reserve in three of the character districts (Downtown Core Residential District, Commercial Corridor Blind Pass Road District, and Commercial Corridor Gulf Boulevard District) for the first five years after adoption of the plan amendments. See Joint Exhibit 2, pages 106-107. This allows the City to evaluate the effectiveness of the redevelopment incentives in the amendment without releasing all residential density otherwise authorized. Second, the amendment contains a General Residential Unit Density Pool Reserve of 195 residential units in the Large Resort District which cannot be released in the first ten years after adoption of the amendment. See Joint Exhibit 2, page 108. Like the other provision, this planning tool allows the City to reevaluate the effectiveness of the redevelopment incentives in the amendment prior to authorizing additional density. Petitioner's own planner agreed that these time frames were part of the planning period for the proposed amendment. While Petitioner contends that the time periods are "minimum waiting periods not tied to any fixed time frame," it is reasonable to infer from the evidence that they will become operative once the Ordinance is implemented. The preponderance of the evidence shows that the Plan, as amended, complies with the requirement for two planning time frames and is not inconsistent with either the rule or statute. Mixed-Use Categories Florida Administrative Code Rule 9J-5.006(4)(c) encourages mixed use categories of land and provides that if they are used, "policies for the implementation of such mixed uses shall be included in the comprehensive plan, including the types of land uses allowed, the percentage distribution among the mix of uses, or other objective measurement, and the density and intensity of each use." Petitioner contends that FLUE Policy 2.1.1 establishes a new mixed use district (the Community Redevelopment District) but the Plan, as amended, does not contain the requirements set forth in the rule. The Community Redevelopment District is a mixed use land use category, as is each of the character districts included within the two sub-districts. The Plan identifies four character districts within the Gulf Boulevard Redevelopment District (Large Resort, Boutique Hotel/Condo, Activity Center, and Bayou Residential) and seven character districts within the Downtown Redevelopment District (Town Center Core, Town Center Corey Circle, Town Center Coquina West, Downtown Core Residential, Upham Beach Village, Commercial Corridor Blind Pass Road, and Commercial Corridor Gulf Boulevard). FLUE Policy 2.1.1 incorporates the development standards found in the "Community Redevelopment District" section of the FLUE for the two larger sub-districts and eleven smaller character districts. Therefore, it provides the policies required for the implementation of the new land use category. These policies govern the distribution, location, and extent of uses and densities and intensities of uses within the sub-districts. They also establish the boundaries, uses, densities, and intensities of use for the eleven character districts. The types of land uses allowed in each character district are clearly listed in a section of the text amendment corresponding to each character district titled "Permitted Uses and Standards." See Joint Exhibit 2, Attachment A, pages 75, 79, 82, 84, 91, 93, 98, 100, 102, and 105. For example, in the Large Resort District, primary uses are hotel, motel, resort condominium, and medium density multi-family residential. Id. at page 75. The density and intensity standards for each type of use allowed within each character district are also listed in the same sections of the Attachment. For example, the maximum density of residential development in the Boutique Hotel/Condo District is eighteen units per acre. Id. at page 75. Finally, the policies for each character district provide objective criteria governing the actual mix of uses permitted on any redevelopment site within the Community Redevelopment District. The location of each allowable use will be distributed throughout each district. For example, the Downtown Redevelopment District creates a traditional downtown core area with traditional downtown core services surrounded by residential neighborhoods buffered from commercial intrusion. See Joint Exhibit 2, Attachment A, page 36. On the other hand, the Gulf Boulevard Redevelopment District is a core resort and shopping destination for residents and visitors. Id. The Community Redevelopment District does not use a percentage distribution among the mix of uses since the City is essentially built out and already has a mix of uses within the newly-created districts. Therefore, the plan amendment accomplishes a distribution of mix of land through location of uses in multi- story buildings, rather than a percentage distribution of mix. By doing so, it satisfies the requirement of the rule. See, e.g., The University Park Neighborhood Association, Inc. v. Department of Community Affairs, et al., DOAH Case No. 92- 0691GM, 1993 Fla. ENV LEXIS 19 (DOAH Nov. 2, 1992, DCA Feb. 24, 2003). Therefore, it is found that Petitioner failed to demonstrate by a preponderance of the evidence that the amendment is inconsistent with the rule. Preservation District The plan amendment is based upon the City's Visioning Plan and Master Plan. See Respondent's Exhibits 1 and 3. Neither document contains any recommendation that the City's Preservation Land Use District be revised in any way. In the existing 2010 Plan, the Preservation District is defined in FLUE Policy 1.1.1 as those beaches seaward of the CCCL, Fuller Island, and other environmentally significant natural resource areas. No development is allowed in the Preservation District except dune walkovers. Ordinance No. 2008-15 renumbers Policy 1.1.1 as 2.1.1 and makes a one-word change (underscored below) in the definition of the Preservation District so that it now reads as follows: Preservation (P), applied to the beaches seaward of the Florida Coastal Construction Control Line, Fuller Island and other environmentally significant natural resource areas; such designated areas shall not be developed except to provide beach access dune walkovers from adjacent developed properties under the provisions of the City's Beach Management Regulations. Petitioner argues that the effect of this change is to establish a new boundary line for the Preservation District (further seaward in some instances) and to no longer use the setback line previously used by the City, which was known as the Coastal Construction and Excavation Setback Line. He further contends that the City's setback line and the Florida (State) CCCL encompass different areas along the beach. In some cases, the City's setback line is more seaward than the State, and vice versa. Petitioner contends that the data and analysis for the 2010 Plan "implies" that the location of the Preservation land use category should be based upon the more restrictive of the City setback line or State CCCL, that is, whichever is less seaward. It is fair to infer from the evidence that the underlying reason for raising this claim is that an old Travelodge motel sits just south and east of Petitioner's condominium building and is scheduled to be redeveloped as a new high-rise condominium. Petitioner is concerned that if the State CCCL (rather than the City setback line) is used, it will allow the new building to be constructed closer to the Gulf of Mexico, presumably reducing his view and beach access. The City's witness Holly established that the City does not have a CCCL. Rather, it has an excavation and setback line. He further established that the City has consistently enforced the Preservation District geographically as the area seaward of the State CCCL. Also, the City's land development regulations implementing the existing Plan define the Preservation District as the property seaward of the State CCCL. The Countywide Plan also uses the State CCCL. The amendment is clarifying in nature and is intended to make the text in the City's Plan consistent with the Countywide Plan and existing enforcement practices. As explained by Mr. Holly, the City's setback line predates the establishment of the State CCCL, and functions much in the same manner as the State CCCL "in that it precludes structural development seaward of that line without specific application for approval of variance for those standards." See Transcript, page 415. Petitioner has failed to establish by a preponderance of the evidence that this clarifying change in the definition of the Preservation District in FLUE Policy 2.1.1 is not supported by adequate data and analysis. Format of Plan Amendment Petitioner next contends that the plan amendment is inconsistent with Florida Administrative Code Rule 9J-5.005(1), which contains general format requirements for comprehensive plans. For example, he points out that there are lengthy unnumbered narrative sections in Attachment A that apparently supplement the numbered sections, that the references to the land development regulations do not identify the specific land development regulation adopted by reference, that the series of maps are not labeled properly, and that the maps do not include north-south arrows or a scale. The amendment contains specific goals, objectives, and policies for the Community Redevelopment District. See Joint Exhibit 2, pages 43-48. It also contains goals, objectives, and policies for the two redevelopment districts, numbered policies for each character district, as well as unnumbered text setting forth permitted uses and standards for each character district. See Joint Exhibit 2, pages 67-70, 71-77, 78-80, 83-85, 86-90, 90-92, 92-94, 94-97, 97-98, 99-101, 101-103, and 104-106. The deposition testimony of Michael McDaniel, Chief of the Department's Office of Comprehensive Planning, established that while they are not typically used, the narrative sections of Attachment A are permissible to explain the goals, policies, and objectives. He further stated that nothing in the governing statutes or rules requires that all material adopted as part of a plan be labeled as, or be in the form of, a goal, policy, or objective, that many variations of format are found in plans adopted by local governments throughout the State, and that the Plan, as amended, is not inconsistent with any requirement. As to the makeup of the maps, Mr. McDaniel stated that while the Department prefers that maps be labeled as future land use maps, and that they contain the detail suggested by Petitioner, a failure to do so does not render the plan amendment not in compliance. Finally, he stated that the Department staff had no difficulty in understanding the maps or map series when they were reviewed by the Department in July 2008. Notably, the Department did not address any of these format issues when it prepared comments to the proposed amendment on August 1, 2008. Petitioner has failed to show by a preponderance of the evidence that the plan amendment is inconsistent with the requirements of Florida Administrative Code Rule 9J-5.005(1). Data and Analyses Petitioner alleges that the City failed to rely upon the best available data sources to support the amendment, that a proper analysis of the data was not made, and that the City did not react to the data in an appropriate way, as required by Florida Administrative Code Rule 9J-5.005(2). Petitioner presented no expert testimony or other evidence supporting the claim that the plan amendment lacked supporting data and analysis. Although he introduced into evidence various documents on the theory that this information constituted better data than that used by the City, the evidence does not support this allegation. For example, various documents concerning hurricane evacuation times were submitted, including the Tampa Bay Regional Hurricane Evacuation Study Update 2006, the Pinellas County Local Mitigation Strategy (LMS), and the 2008 Statewide Emergency Shelter Plan. See Petitioner's Exhibits 4, 16, and Since the plan amendment does not increase density, however, it does not conflict with established hurricane evacuation times. Also, the City is not increasing population to be evacuated to other zones; therefore, the Statewide Emergency Shelter Plan is irrelevant. Finally, the amendment is not contrary to any mitigation strategies in the LMS. Population estimates for the year 2006 prepared by the BEBR were introduced by Petitioner, presumably for the purpose of showing that more current population data should have been used, rather than the 2000 Census data relied upon by the City. See Petitioner's Exhibit 21. However, there is no requirement that the City update its population estimates and projections each time it adopts an amendment. According to Mr. McDaniel, this is normally done every seven years at the time of the EAR. In any event, the BEBR estimates an increase in population in the City of only 48 persons during the six-year period from 2000 to 2006 (from 10,002 to 10,050). Petitioner also introduced a list of claims for flood losses within the last ten years in the City for the purpose of demonstrating that the City failed to consider the location of these properties in adopting the amendment. However, the evidence shows that redevelopment policies in the amendment would bring existing older structures up to National Flood Insurance Protection standards. A list of Licensed Dwelling Units was also introduced to show that the list relied upon by the City was incomplete and failed to include a motel in close proximity to Petitioner's condominium. Assuming that this is true, the error was minor and did not affect the overall validity of the City's data. The plan amendment is supported by the City's visioning project, economic analysis, master planning project, and evaluation of infrastructure capacity and availability of services. It is also supported by data submitted by SOLV to the County in support of the amendment to the Countywide Future Land Use Plan, which includes the Special Area Plan. The more persuasive evidence supports a finding that there is relevant and appropriate data supporting the amendment, that the data was properly analyzed, and that the City reacted in an appropriate manner. Internal Inconsistency Petitioner further alleges that the plan amendment is internally inconsistent with Intergovernmental Element Policy 1.5.3, which requires that the City coordinate with the Pinellas County Emergency Management Department when adopting map amendments resulting in an increase in population within the CHHA. Under the existing definition of the CHHA in the 2010 Plan, the entire City is within the CHHA. The amendment implements a new definition, as required by Section 163.3178(2), Florida Statutes, which removes some parts of the City from the CHHA. Because the new amendment does not relate to either hurricane shelters or evacuation routes, and does not increase the residential density in the CHHA, compliance with the cited policy was not required. Petitioner further alleged that FLUE Policy 4.1.1 is internally inconsistent with Goals 2 and 3 of the Conservation and Coastal Element as well as the implementing objectives for those Goals. However, no testimony or other credible evidence was offered on this issue and the claim must fail. The preponderance of the evidence supports a finding that the Plan, as amended, in not internally inconsistent with other Plan provisions. Need Petitioner contends that the City did not prepare an analysis of need for future land uses authorized by the Ordinance, that it did not prepare an updated existing land use map series, that no tabular form of the approximate acreage and general range of density and intensity of each existing land use was prepared, and no population projections were presented, as required by Florida Administrative Code Rule 9J-5.006(1)(a), (b), (c), and (g). Therefore, he argues that the plan amendment is not supported by a demonstration of need for the new land use category to accommodate the anticipated growth. The supporting documentation for the plan amendment demonstrates the need for redevelopment of the City's lodging establishments, the need for additional height for tourist lodging uses in order to prevent conversion of those uses to condominium uses, and the need for aesthetic and other design changes to the City's building facades, streetscapes, and public areas with the redevelopment area. See Joint Exhibit 2, Attachment A, pages 1-3. The plan amendment does not propose new density to accommodate new populations. In fact, it reduces the overall residential density in the City, and the total amount of dwelling units, temporary lodging units, and non-residential (commercial) floor area ratio will also be reduced. Because the plan amendment does not increase the total amount of development, but is simply a plan for redevelopment of existing uses, there is no requirement that a need analysis be prepared. Financial Feasibility Petitioner also contends that the Plan, as amended, has not been shown to be financially feasible and does not include an updated five-year CIP. See § 163.3177(3)(a)5., Fla. Stat. ("the comprehensive plan shall contain a capital improvements element [which] set[s] forth: . . . [a] schedule of capital improvements . . . "). The statutory requirement for a CIP applies to projects necessary to ensure that adopted levels of service (LOS) standards are achieved and maintained. It applies to all public facilities and services for which an LOS standard is adopted pursuant to Section 163.3180, Florida Statutes. This was confirmed by the testimony of Mr. McDaniel. The evidence shows that all relevant City infrastructure facilities are operating at or above the adopted LOS. Therefore, there are no deficiencies which need correction in order to implement the redevelopment plan. As further confirmed by Mr. McDaniel, if a plan has been found to be in compliance, and the local government proposes changes that do not create a need for capital improvements, the plan amendment does not need to include an amendment to its CIP. In this case, the amendment does not increase the total permissible amount of residential density or non-residential use within the Community Redevelopment District, and no additional infrastructure capacity is needed. Petitioner's expert identified certain infrastructure projects for which he contended an updated CIP is needed, such as sidewalks, street lighting, and bike lanes. While these types of projects are all integral to the proposed redevelopment plan, they are not subject to concurrency or the financial feasibility standard. Even if they were, Petitioner's expert agreed such improvements could be accomplished through private investment when permits for projects are issued. Because Petitioner failed to show that the plan amendment would require the construction of any new or expanded public facilities to provide additional capacity to serve the development, his contention that the plan is not financially feasible must necessarily fail. Other Contentions All other contentions not discussed herein have been considered and rejected because no evidence on the issues was presented or the more credible and persuasive evidence supports a finding that the contentions are without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendments adopted by Ordinance No. 2008-15 are in compliance. DONE AND ENTERED this 4th day of May, 2009, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 2009.
The Issue The issue is whether to approve Petitioners' application for a beneficial use determination (BUD) on their property in Key Largo, Florida, and if approved, to determine the type of relief that is appropriate.
Findings Of Fact Petitioners purchased their property in September 2006 for $60,000.00 (or at the peak of the Florida housing boom). The parcel is located at the corner of Meridian Avenue and Lycaloma Avenue, mile marker 94.5, on the Gulf of Mexico side of U.S. Highway 1 in Key Largo. It is also identified as Block 9, Lot 1, Section 3 of the Bay Haven Subdivision, an older, partially-developed subdivision comprised of four sections and several hundred lots. Since September 15, 1986, the subdivision, including Petitioners' lot, has been zoned Suburban Residential (SR), which allows only one residential unit per two acres. No challenge to that action was taken by any person, and no contention has been made that the County failed to follow the established procedure for adopting its LDRs. A challenge to the validity of the LDRs is now barred by the statute of limitations.1 See § 95.11(3)(p), Fla. Stat. The Bay Haven Subdivision is located in South Key Largo and was first platted after World War II. Building permits for all existing homes in the subdivision were applied for before the zoning change became effective in September 1986. Due to the SR restrictions, around 250 lots remain vacant at this time, including 99 in Section 3 where Petitioners' lot is located. Many of these vacant lots have been deeded by their owners to the County for conservation purposes in exchange for points that can be used with a Rate of Growth Ordinance (ROGO)2 allocation to develop other property in the County. Petitioners' corner lot lies at the intersection of two streets and has an irregular shape with a large radius at the intersection. It is bordered on two sides by single-family homes, measures 8,276 square feet, or around 0.19 acres, and is somewhat larger than the typical subdivision lot size of 5,000 square feet. Mr. Beauchamp, who resides in Wisconsin, testified that he purchased the property with the expectation of building a home when he retired as an air traffic controller. Before purchasing the property, he assumed that it was zoned Improved Subdivision (IS) because this was the zoning incorrectly shown on the multiple listing service sheet provided by his realtor. Neither Mr. Beauchamp nor his realtor was familiar with County zoning classifications or permissible uses for the parcel.3 Sometime in 2006 they visited a County office to secure further information. Mr. Beauchamp says they spoke with two unidentified "planners," who told them that a single-family home could be built on the property. However, nothing was confirmed in writing, and there is no record of the meeting. Other than this meeting, neither Mr. Beauchamp nor his realtor took any other steps to verify the zoning on the property and/or any development restrictions that might apply. Based solely on the oral advice given by these two unnamed County employees, the Beauchamps purchased the lot. According to Petitioners' expert, Robert Smith, before purchasing a vacant lot in the Keys, normal due diligence would require a prospective purchaser to arrange a pre-application conference with Planning Department staff and secure a written Letter of Understanding confirming the rights of the property owner. See § 110-3, M.C.C. However, Petitioners (and their realtor) did not complete appropriate due diligence; they simply checked with an unidentified County employee and without any other assurance purchased the property.4 In May 2012, Petitioners' agent, Randy Wall, a builder and former Planning Commissioner but not an attorney, met with a representative of the County Building Department to begin the process of securing approval to build a single-family residence on the property. Mr. Wall was advised that the zoning on the property was SR, which allows only one dwelling unit per two acres. This was confirmed in an email dated July 13, 2012, from the Assistant Director of Planning, which stated as follows: The parcel has a zoning designation of SR which requires Two (2) acres per residential unit. As noted by planning staff, this parcel does not have sufficient land area for the zoning and associated density. At the meeting, Mr. Wall also inquired about the possibility of changing the zoning on the property from SR to IS (which would allow construction of a single-family home), but decided not to pursue that option because he recognized the poor prospects of securing a zoning change for a single lot in a large subdivision, when scores of other lots were subject to the same restriction. He assumed, probably correctly, that this might invite a spot zoning challenge. Other than having a discussion with County representatives, Mr. Wall did nothing more. He did not file an application for a residential dwelling unit allocation under the County's ROGO process, or any other formal application for relief, such as a change in the zoning district or land use designation, a variance, or an exception. Believing that the County staff would "fix the problem" because the County had made "a mistake" in reclassifying the entire subdivision as SR, Mr. Wall prepared and filed a BUD application, which was eventually deemed to be complete on September 27, 2013. The BUD process is intended "to provide a means to resolve a landowner's claim that a [LDR] or comprehensive plan policy has had an unconstitutional effect on property in a nonjudicial forum." § 102-103(a), M.C.C. An applicant for a BUD must include a statement "describing the [LDR], comprehensive plan policy, or other final action of the county, which the applicant believes necessitates relief under this division." § 102-105(b)(5), M.C.C. The application at issue simply stated that "the adoption of the land use designation of SR for the subdivision of Bay Haven constituted a compensable taking." The application did not refer to any comprehensive plan policy or final action taken by the County. As relief, the application requested that the County take one of the two following actions: (a) change the Future Land Use Map and zoning designations to allow a residence to be built on the lot; or (b) notwithstanding the SR zoning, issue a permit for development. The BUD process requires applicants to state whether they are alleging a facial or as-applied regulatory taking as the basis for administrative relief. See § 102-104, M.C.C. Unless a landowner asserts that a LDR or comprehensive plan provision, on its face, has caused a taking of his property, relief is permitted only after "the landowner has received a final decision on development approval applications from the county, including building permit allocation system allocations, appeals, administrative relief pursuant to section 138-54, and other available relief, exceptions, or variances." Id. Mr. Wall did not formally apply for any type of development approval and received no final decision, as contemplated by the Code. However, Mr. Wall testified that he "understood" the County was waiving that requirement in this instance. He also stated in the application that "Joe Haberman contracted [sic] the Beauchamps and informed them that staff had deemed this phase unnecessary and to move directly to submitting a [BUD] application." Other than this assertion, there is no evidence to confirm this understanding, and the County's Principal Planner testified that a waiver had not been granted. She also confirmed that no development approval application had been filed, and no final decision had been made, both required by the Code in order to seek relief under an "as applied" theory. Therefore, rightly or wrongly, as plainly stated in the application, Petitioners' basis for relief is that the LDR on its face constitutes a taking of their property.5 Besides a single-family home, which is impermissible here due to size limitations of the lot, two other uses are permitted as of right in the SR district: community parks and beekeeping. See § 130-94, M.C.C. Also, a property owner may apply for a minor conditional use, subject to approval by the Planning Director. Permissible minor conditional uses include public or private community tennis courts and swimming pools; public buildings and uses; parks and community uses; institutional uses; and churches, synagogues, and houses of worship. Id. However, Mr. Beauchamp testified that he is not interested in any of these uses since he believes most, if not all, would be offensive to a residential neighborhood or simply impractical due to the size of his lot. The property can also be sold to the owners of adjacent Lot 11 to be used as a side yard, its use before being purchased by Petitioners. Finally, the Principal Planner testified that there are transferable development rights (TDRs) on the property, whose value at this time is unknown. See § 130-160, M.C.C. Therefore, the Beauchamps are not deprived of all economically beneficial use of their property. Cf. § 102-110(c), M.C.C. ("[t]he highest, common, or expected use, is not intended as an appropriate remedy, unless expressly required by applicable statute or case law"). There was no evidence from a property appraiser on the fair market value of the parcel, as encumbered by the regulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners deny Petitioners' application for relief under the BUD Ordinance. DONE AND ENTERED this 10th day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2014.
