The Issue Whether Orange County Comprehensive Plan Amendments 2015-2- P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on July 12, 2016 (the Plan Amendments), are “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2016).1/
Findings Of Fact The Parties and Standing Petitioners, Seerina Farrell, Ariel Horner, Adele Simons, Marjorie Holt, and Kelly Semrad (the Individual Petitioners), own property and reside in the County. The Individual Petitioners submitted written or verbal comments, recommendations, or objections to the County during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of same (the Comment Period). Petitioner, Ronald Brooke, owns property and resides in the County. Petitioner Brooke submitted written or verbal comments, recommendations, or objections to the County during the Comment Period. Petitioner, Corner Lakes, owns property adjacent to the property subject to the Plan Amendments and operates a business in the County. Corner Lakes, by and through its representative, submitted comments, recommendations, or objections to the County during the Comment Period. The County is a political subdivision of the State of Florida with the duty and responsibility to adopt and amend a comprehensive growth management plan pursuant to section 163.3167. Intervenor Banksville is one of the co-applicants for the Plan Amendments and owns real property directly affected by the Plan Amendments. Banksville timely submitted oral or written comments to the County in support of the Plan Amendments during the Comment Period. Intervenor CHCG is one of the co-applicants for the Plan Amendments and is the agent of one of the owners of property directly affected by the Plan Amendments. CHCG timely submitted comments to the County in support of the Plan Amendments during the Comment Period. The Rybolt Intervenors are owners of property directly affected by the Plan Amendments and submitted comments to the County in support of the Plan Amendments during the Comment Period. The Property The property subject to the Plan Amendments is 2,796 acres of land located in eastern Orange County between State Road 50 (SR 50 or Colonial Drive) on the south and the Orange/Seminole County line on the north. The property lies wholly within the Econlockhatchee River Basin (Econ River Basin) and is open, active pasture land. The southern portion of the property is bounded on the west by South Tanner Road, a county road that intersects with SR 50 on the southwest corner of the subject property. Just beyond South Tanner Road to the west lies the Econlockhatchee Sandhills Conservation Area (ESCA). The northern portion of the subject property is directly adjacent to the County-mandated area buffering the Econlockhatchee River (Econ River). The subject property is bounded on the east by existing vested residential neighborhoods known as “rural settlements.” Corner Lake rural settlement is adjacent to the southern portion of the property, and Lake Pickett rural settlement is adjacent to the northern portion. Both of the adjoining rural settlements are served by Chuluota Road, another county road which intersects with SR 50 just beyond the frontage of the subject property. Chuluota Road runs north, where it intersects with Lake Pickett Road, which roughly bisects the subject property, and continues to run north to its intersection with McCulloch Road at the Seminole County border. The ESCA is approximately 710 acres of undeveloped property east of the Econ River previously used as pasture. Intervenors, Rolling R. Ranch and Rybolt, conveyed the property to the St. Johns River WMD in November 2008. The following language in the Agreement for Sale or Purchase is relevant to the case at hand: It is the intention of the Seller [Intervenors Rolling R. Ranch and Rybolt] to develop Seller’s Retained Lands into a mixed use project with Development of Regional Impact review and approval for substantial density. . . . Buyer expressly agrees Buyer, as a neighboring property owner, shall not require any buffering or setbacks on Seller’s Retained Lands. In the event any local authority requires a setback between the Property and the Seller’s Retained Lands, Buyer will accept 50% of such setback to be placed upon the Property up to a maximum of 35 feet. No roads, swales, ditches, fencing, landscaping, or other improvements shall be constructed by Seller within any setback area on the Property. The ESCA is owned by the St. Johns River WMD and, in part, by the County. The ESCA is a significant natural resource managed for a public benefit, namely, protection of the Econ River Basin, within which the Plan Amendments are located. The ESCA also hosts hiking and horseback riding trails and is open to the public for passive recreation use. The Plan Amendments The Plan Amendments comprise both a text amendment to the Future Land Use Element (FLUE) of the County’s Comprehensive Plan and an amendment to the County’s FLUM. The Text Amendment The text amendment creates “Lake Pickett” (LP) as a new future land use category within FLUE Goal 6: Protection of Rural Land Resources and Other Assets. LP is codified in FLUE Objective 6.8, which limits the application of the category to the area designated as the “Lake Pickett Study Area,” or LPSA, established on the County’s FLUM by the corresponding map amendment, and describes the geographic boundaries of the LPSA. Acknowledging that the new category will allow dense development within rural areas, Objective 6.8 provides that “[t]he LP designation manages the transition of development from surrounding rural neighborhood densities and preservation areas to more dense development clustered towards the center of the [LPSA].” Objective 6.8 provides that “[c]ompatibility is ensured on LP designated lands through the use of ‘Transect Zones’,” among other practices. “Transect Zones allow development to occur by gradually transitioning from less to more dense development.” The objective continues, as follows: Each Transect Zone shall have a stated density unique to that Transect, and each series of Transect Zones shall build upon each other from the least dense Transect to the most dense Transect. Transect Zones allow contiguous rural character to be preserved which may include like-to-like lot configurations along the boundary. Objective 6.8 is implemented by new Policies 6.8.1 through 6.8.15, which establish “Guiding Principles” for all future development in the LPSA; define the type, density and intensity of development in each Transect Zone; provide for buffers and other compatibility measures along the perimeter; and provide requirements for open space, community space, agricultural uses, community centers, the street network, trail system, a “green infrastructure plan,” neighborhood schools, and service by public infrastructure, including water and wastewater. Policy 6.8.2 provides for the following Transect Zones: T1 Natural/Wetland: “[N]atural lands” and areas that will remain undeveloped and/or designated for agriculture use, passive recreation, conservation, or related activities ” T2 Rural: “[S]parsley settled lands in open or cultivated states.” The policy allows an “average density” of two dwelling units per acre (2du/acre). T3 Edge: “[P]redominately single-family detached residential uses within walkable neighborhoods” and includes community buildings, community gardens and parks, and “central focal point uses” which are undefined. The policy allows an “average density” of 5du/acre, a maximum floor area ratio (FAR) of .25, or a combination thereof. T4 Center: Allows a “mix of residential . . . and non-residential uses, including commercial, office, service, and civic uses that serve a Lake Pickett community as well as the surrounding area.” The policy allows an “average residential density” of 6du/acre and an “average non- residential intensity” of .15 FAR. The policy requires location of “higher concentrations of development” within the “most southerly portion” of the Lake Picket Study Area “adjacent to SR 50, at a maximum FAR of 1.0.” Policy 6.8.8 calls for development of two separate communities: one north and one south of Lake Pickett Road. Policy 6.8.9 requires development to be organized into neighborhoods, maximum size of 125 acres each, organized around a “centralized focal point” such as a park, community garden, community center, civic building or use, day care facility, or “a similar type of use.” Neighborhoods shall contain a mix of housing styles and/or lot sizes “located within a 1/4-mile from the centralized focal point,” which shall “average a minimum of one acre in size,” and be connected to trails or “complete streets.” Policy 6.8.14 requires all development within the LPSA to be served by public water, wastewater, and reclaimed water facilities operated by the County, but acknowledges the County may require the developer to prepay for a portion of the capacity necessary to serve the development. Objective 6.9 and its implementing policies dictate the process for the property owners to obtain a FLUM amendment to LP. The FLUM amendment application must include a draft Conceptual Regulating Plan (CRP), a proposed development program, a justification statement, an Orange County Public Schools (OCPS) Consistency Determination Application, a Transportation Study, and a proposed community meeting schedule. The CRP is described as “a general and illustrative representation of the proposed development and location of the transects.” Policy 6.1.9 requires the following items to be depicted on the CRP, or attachments thereto: General location of Transect Zones; General location and types of the proposed agricultural uses (if applicable), natural areas, and transitional treatments; Location of existing and planned major roadways, trails or other transportation nodes; Location of potential and required connections, including external connections to adjacent roadways and those between the two Lake Pickett communities, and required internal connections between neighborhoods; General location of public school sites and a copy of the application for a Capacity Enhancement Agreement with OCPS; Net developable area for the project and for each of the Transect Zones; and Overall proposed community development program. According to Policy 6.1.9, a “CRP shall be provided during the transmittal process, and shall be refined throughout the review process” for the FLUM amendment. Properties obtaining the LP FLUM designation must be rezoned to Lake Pickett Planned Development (LP PD). The PD Regulating Plan (PD-RP) establishes the final locations of Transect Zones, open space and preservation areas, streets, neighborhoods, schools, trails, and parks. The text amendment does not require the PD-RP to be incorporated with the FLUM amendment to LP. The proposed development plan, including average densities and intensities by Transect Zone “shall be included and adopted as part of the Lake Pickett PD-RP.” The policy provides the development program “shall be substantially consistent with the program submitted with the CRP and approved with the LP FLUM amendment.” If the developer requests to increase the development totals for a Lake Pickett PD-RP, such change must be approved through an application to amend the Comprehensive Plan. The Map Amendment The FLUM amendment redesignates 1,237 acres of land, the southern portion of the LPSA, from the Rural to the LP category. The property encompasses “Lake Pickett South,” which is roughly bounded by Lake Pickett Road on the north, East Colonial Drive to the south, Chuluota Road on the east, and South Tanner Road on the west. The ESCA lies west of South Tanner Road, the property’s western boundary. The applicants proposed a FLUM amendment for the North Lake Pickett Community, which was not approved by the County and is not considered in the case sub judice. The property subject to the amendment is currently undeveloped and has a FLUM designation of Rural with a density limitation of 1du/10 acres. The LPSA is located wholly outside of the County’s Urban Service Area (USA). USA/RSA Concept The County employs the USA concept as “an effective fiscal and land use technique for managing growth.” The USA identifies areas where the County has primary responsibility for providing infrastructure and services to support urban development. The County has an overarching goal to direct its growth to the USA. FLUE Objective 1.1 states the County “shall use urban densities and intensities . . . to direct development to the [USA] and to facilitate such development.” Policy 1.1.1 states, “Urban uses shall be concentrated within the [USA]” except as specified in particular designations. Policy 1.2.2 requires that “Urban development during the 2007-2030 planning period . . . will occur only in the [USA]” and established exception areas. As part of its year 2000 update to the Comprehensive Plan, the County amended the plan consistent with a “strategy to focus development within the County’s USA.” See Policy 6.2.1. The USA boundary and acreage are based on the supply of usable land needed to accommodate the County’s population and employment forecasts through the year 2030. Policy 1.2.2 prohibits urban development outside the USA boundary, with certain inapplicable exceptions, during the 2007-2030 planning period. Residential development densities allowed within the USA range from Low Density Residential (LDR), up to a maximum of 4du/acre, to High Density Residential (HDR), up to a maximum of 50du/acre. That portion of the County outside the USA is designated as the Rural Service Area (RSA). The RSA designation is a tool for “managing agricultural lands, environmental lands, and historic resources.” To preserve and promote the “intended rural character” of the RSA, the County regulates the scale, density, and intensity of new development in the RSA. The only FLUE category correlating with the RSA is “Rural,” in which the County limits residential development to a maximum density of 1du/10 acres. Zoning Districts which correspond with the Rural land use category are Agriculture 1 (A-1), Agriculture 2 (A-2), Agriculture Residential (A-R), and Rural Country Estate Residential (R-CE-5). Exceptions to RSA Density Limitation The FLUE recognizes specific, established exceptions to the density limitation of residential development at 1du/10 acres within the RSA. These include Rural Settlements, Growth Centers, Specific Area Plans (SAP), and the Innovation Way (IW) Overlay. 1. Rural Settlements When the Comprehensive Plan was adopted in 1991, some “pockets” of existing development at densities greater than 1du/10 acres were intentionally excluded from the USA. These “rural settlements” are essentially “grandfathered” from the prohibition against urban densities within the RSA. Rural settlements recognize the need to maintain agricultural areas and rural uses in the RSA, while providing for rural communities. Some rural settlements “allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas.” Pursuant to Policy 6.2.1, rural settlements may not be expanded beyond their current boundaries and the County may not establish any new rural settlements.2/ Rural Settlement (RS) categories were established at a range of densities between 1du/5 acres (RS 1/5) to 2du/acre (RSLD 2/1). These categories recognize and preserve the development patterns that existed at the time the Comprehensive Plan was adopted. Not all rural settlements were built out at the time of plan adoption. No plan amendments may be approved within rural settlements to RSLD (2du/acre) or higher densities, except for certified affordable housing projects. No plan amendments may be approved for densities in rural settlement at densities higher than 1du/acre. Lake Pickett South is located adjacent to the Corner Lake rural settlement, which is designated LDR and is built out at 4du/acre. Pursuant to Policy 6.2.15, new residential development in a rural settlement is restricted to a density of 2du/acre, which may only be located in limited areas adjacent to higher density or intensity urban development in adjacent municipal jurisdictions. 2. Specific Area Plans In 1995, the County created a Village land use classification to realize a long-range planning concept for Horizon West, a 16,846-acre development in west Orange County. FLUE Goal 4 and Objective 4.1 describe the purpose of the classification, as follows: GOAL FLU4 HORIZON WEST. It is Orange County’s goal to ensure sustainable, quality development in Southwest Orange County to allow a transition from rural to urban uses while protecting environmental quality. OBJ FLU4.1 The Village land use classification has been designed to address the need to overcome the problems associated with and provide a meaningful alternative to the leap-frog pattern of sprawl now occurring in western Orange and eastern Lake County; create a better jobs/housing balance between the large concentration of employment in the tourism industry and surrounding land uses; create a land use pattern that will reduce reliance on the automobile by allowing a greater variety of land uses closer to work and home; and, replace piecemeal planning that reacts to development on a project-by-project basis with a long-range vision that uses the Village as the building block to allow the transition of this portion of Orange County from rural to urban use through a specific planning process that uses a creative design approach to address regional, environmental, transportation, and housing issues. The Village land use classification shall be implemented through the adoption of Specific Area Plans (SAPs) for the Villages and a Town Center. FLUE Goal 4 is a long-range planning tool undertaken by the County in cooperation with the state land planning agency pursuant to section 163.3245, titled “Sector Plans.” This alternative to the Development of Regional Impact state review process was initiated by the 1998 Legislature to “promote and encourage long-term planning for conservation, development, and agriculture on a landscape scale,” and to “avoid duplication of effort” of data-gathering and analysis for developments of regional impact “while ensuring the adequate mitigation of impacts to applicable regional resources and facilities[.]” FLUE GOAL 4, Objective 4.1, and their implementing policies comprise 40 pages of the County FLUE and comprehensively govern the development planning for the area. The concept envisions development of a series of master planned “Villages,” ranging from 1,000 to 3,500 acres, with between two and four neighborhoods complete with diverse housing types, shops, workplaces, schools, parks, and civic facilities. Each Village is modeled on “an urban development pattern,” complete with a Village center, containing a mix of residential, office, commercial, institutional and public uses to serve surrounding neighborhoods; neighborhood centers, with a school, park, or other “focal point,” and convenience retail operations and offices to serve the immediate neighborhoods; and neighborhoods with open space, varying lot sizes and housing types, locating higher density housing closer to the neighborhood center. The approval process for Horizon West Village SAPs, includes development first of a recommended plan, based on public and County staff input on a presentation of alternative master plans at public workshops, then refinement of the recommended plan, through additional informational workshops, and submittal of a Final Master Plan to the County for review. The Village SAP is structured to require a minimum net density of 5du/acre. Thus, Horizon West is a specific exception to the density limit of 1du/10acres in the RSA. In the case at hand, the Intervenors have not applied for a SAP. However, the LPSA text amendment mirrors many of the development characteristics of Horizon West Village concept. 3. Growth Centers The Growth Center FLUE designation is available only as a Joint Planning Area with an outside jurisdiction (i.e., adjoining county or municipal government). Growth Centers recognize urban development outside of, and adjacent to, the unincorporated areas of the County. The County has established two Growth Centers: a Northwest Growth Center and a Growth Center/Resort located in the southeast. The density and intensity of the growth centers is established through a Planned Development (PD) process. 4. Innovation Way Overlay District The Innovation Way (IW) Overlay is established by FLUE Objective 5.1, which reads as follows: The Innovation Way Overlay is a conceptual transect-based overlay designation where the County envisions a transit-ready, multi- modal mixed-use, walkable community with sustainable economic development, adequate public infrastructure, and the protection and resource management of environmentally sensitive areas. The IW Overlay utilizes transect-based planning and “incremental urbanism” to “design complete communities requiring walkable streets, mix of uses, transportation options, and housing diversity.” FLUE Policy 5.1.5. The IW “Conceptual Urban Form” is adopted on the County FLUM as the “generalized and illustrative location and extent of transect zones that collectively depict the desired urban form for Innovation Way.” Similar to the plan amendment process provided for LP, the IW plan amendment process requires rezoning through as a PD, which will determine the adopted boundaries and locations of transect zones. The “proposed location of the transects shall be illustrated on the [Conceptual Regulating Plan] during the [FLUM] amendment process and finalized in the approved IW-PD- RP.” FLUE Objective 5.2. The IW Overlay district utilizes transect zones T1 through T5, and T-SD, a special district zone. Zone T3 accommodates neighborhood development which must be “walkable, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space.” Each neighborhood must contain a central “focal point.” Although the specific density will be set in the PD-RP, FLUE Policy 5.1.7 establishes a “planned yield” of 3-4du/acre within T3, with a range of 1-10du/acre. Zone T4 accommodates town centers within IW, and provides “a mix of residential, office, retail, light industrial, and high-tech/clean-tech uses.” FLU Policy 5.1.7 establishes a “planned yield” of 7du/acre within T4, with a range of 4- 20du/acre. The development pattern of the LP district is substantially similar to the urban form described for IW, and the use of transect-based planning to transition from surrounding rural development to more dense development within RP. Expansion of the USA The County allows for expansion of the USA boundary only in limited circumstances. FLUE Objective 1.3 and implementing policies provide a process for evaluating applications for expansion of the boundary. An applicant must submit data and analysis to demonstrate that the development would not constitute urban sprawl and is needed to satisfy acreage demands of the projected population. FLUE Policy 1.2.4 lists the applications which have met the criteria and are recognized as expansions to the USA boundary. The list contains approximately 38 developments ranging in size from 1.23 acres to 2,549 acres. In the case at hand, Banksville and CHCG have not applied for an expansion of the USA to encompass the LPSA. In fact, Jim Hall, one of the developer’s consultants, expressed his dismissal of an expansion to the USA to accommodate LPSA because expansions have “a ton of rules” associated with them. Challenges to the Plan Amendments A. Internal Inconsistency Petitioners allege the Plan Amendments are internally inconsistent with a number of Comprehensive Plan goals, objectives, and policies. Principle among them are the goals, objectives, and policies establishing the USA/RSA development framework: FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objective 1.2, Policies 1.2.1 and 1.2.23/; Goal 6, Objective 6.1, and Policies 6.1.1, 6.1.2, and 6.1.3. The implicated goals, objectives, and policies read, as follows: GOAL FLU1 URBAN FRAMEWORK. Orange County shall implement an urban planning framework that provides for long-term, cost-effective provision of public services and facilities and the desired future development pattern for Orange County. OBJ FLU1.1 Orange County shall use urban densities and intensities and Smart Growth tools and strategies to direct development to the [USA] and to facilitate such development (See FLU1.1.2.B and FLU1.1.4). The [USA] shall be the area for which Orange County is responsible for providing infrastructure and services to support urban development. POLICIES FLU1.1.1 Urban uses shall be concentrated within the [USA], except as specified for the Horizon West Village and Innovation Way Overlay (Scenario 5), Growth Centers, and to a limited extent, Rural Settlements. * * * OBJ FLU1.2 URBAN SERVICE AREA (USA) CONCEPT; USA SIZE AND MONITORING. Orange County shall use the [USA] concept as an effective fiscal and land use technique for managing growth. The [USA] shall be used to identify the area where Orange County has the primary responsibility for providing infrastructure and services to support urban development. POLICIES FLU1.2.1 The [USA] boundary, and its acreage allocation, shall be based on the supply of usable land needed to accommodate the County’s population and employment forecasts by Year 2030 with respect to the County’s desired development pattern, the County’s ability to provide urban services and facilities, and the County’s urban strategies to achieve its desired development pattern. FLU1.2.2 Urban development during the 2007- 2030 planning period, as identified in FLU1.2.1, will occur only in the [USA] and the established boundary for the Horizon West SAP (identified on Map 2 in the Future Land Use Element of the Comprehensive Plan) and the Innovation Way Overlay (Scenario 5) . * * * GOAL FLU6 PROTECTION OF RURAL LAND RESOURCES AND OTHER ASSETS. The County will manage land uses within the [RSA], including agricultural lands, environmental land including the Wekiva Area, historic resources and Rural Settlements, so as to conserve these assets and their values. OBJ FLU6.1 RURAL SERVICE AREA. Orange County shall designate that portion of the County outside the [USA] as the [RSA]. The intended rural character and assets of the [RSA] shall be promoted through the following policies. POLICIES FLU6.1.1 The Future Land Use correlation for the [RSA] is: Future Land Use (R) Zoning Rural/Agricultural (1DU/10 AC) A-1, A-2, A-R, R-CE FLU6.1.2 Orange County shall enforce criteria to ensure the scale, and density and/or intensity of development within the [RSA] so that it promotes the intended rural character. The regulations may include, but shall not be limited to, height limitations and buffer requirements. FLU6.1.3 Residential uses in areas designated Rural shall be limited to a maximum density of 1du/10 acres. Density shall refer to the total number of units divided by developable land area, excluding natural water bodies and conservation areas (wetland areas). Agriculturally zoned areas that do not have active agricultural use may be rezoned to an appropriate residential category. Cluster zoning shall not be permitted in the [RSA] except where required for the protection of significant environmental features, such as Wekiva Study Area, Class I conservation area or rare upland habitat. Petitioners allege the Plan Amendments are inconsistent with the above-cited provisions because they allow urban development within the RSA, contrary to policy direction to concentrate urban uses within the USA; contrary to policies which prohibit urban development outside of the USA, Horizon West, and I W Overlay through 2030; and inconsistent with these strategies to achieve “the County’s desired development pattern” separating urban from rural uses through the USA/RSA tools. Respondent and Intervenors meet this allegation with an argument that the LP category does not constitute urban development. Indeed, much of the expert witness testimony on all sides focused on the issue of whether the development authorized by the Plan Amendments is urban in character. The experts agreed that the Comprehensive Plan does not define “urban development” and that the County has discretion to determine the characteristics of urban development within its jurisdiction. The experts further agreed that the “urban-ness” of development is not solely a factor of density, but also depends on factors, such as the uses themselves, as well as buffering, height limitations, and relationship between uses. The experts are correct that the Comprehensive Plan contains no glossary definition of “urban development,” which determines the specific threshold at which residential density becomes “urban.” The experts disagreed over whether a residential density of 4du/acre was rural or urban, and the parties’ arguments in their Proposed Recommended Orders rely on that testimony to varying degrees. None of the expert witness testimony on the issue of urban versus rural was persuasive. Testimony regarding whether 4du/acre was urban or rural was essentially irrelevant, in light of the fact that the Plan Amendments authorize densities of 6du/acre in T4. Whether 4du/acre is an urban or rural density is not dispositive of the issue. Moreover, because the Plan Amendments regulate density in terms of averages, they authorize densities greater than 4du/acre and 6du/acre in T3 and T4 zones. The experts on all sides ignored the plethora of evidence within the Comprehensive Plan itself that reflects the County’s determination of what constitutes urban development. The testimony of Petitioners’ experts, combined with the Comprehensive Plan itself, was the most reliable and persuasive evidence on this issue. For residential development within the USA, the Comprehensive Plan identifies four corresponding FLUM categories, ranging from LDR at up to 4du/acre, to HDR at up to 50du/acre. By contrast, for residential development within the RSA, the County has identified only one corresponding FLUM category, Rural/Agricultural at 1du/10 acres. See Policy 6.1.1. It is of primary importance to note that this is the only future land use category which corresponds with the RSA. In setting its goals for future development within the RSA, the County has adopted a policy limiting future residential development to a very low density. Even where the Comprehensive Plan acknowledges and grandfathers the preexisting “rural settlements” within the RSA at densities greater than 1du/10 acres, the Comprehensive Plan restricts the density of future buildout. The Comprehensive Plan recognizes rural settlements with LDR and Low-Medium Density Residential (LMDR) (max. 10du/acre) FLUM designations, but prohibits other properties within rural settlements from being amended to allow future development at those densities (except for certified affordable housing projects). See Policy 6.2.7. In fact, the Comprehensive Plan prohibits any FLUM amendments to residential densities in rural settlements exceeding 1du/acre. See Policy 6.2.9. Further, the boundaries of rural settlements may not be expanded, and no new rural settlements may be established. See Policy 6.2.1. In summary, the Comprehensive Plan acknowledges preexisting rural settlements in the RSA at densities as high as 10du/acre, but recognizes those as urban, not rural, densities. Even recognizing those urban densities preexisted the RSA designation, the Comprehensive Plan limits future changes to a much lower density of 1du/acre. Much of Respondent and Intervenors argument turned on the fact that the development surrounding the LPSA was at densities as high as 4du/acre, which was not inconsistent with the density proposed for the LPSA. This argument misses the point that the County grandfathered in those densities as urban within the RSA. The argument that the maximum densities proposed for the LPSA, up to 6du/acre in T4, is consistent with surrounding development is a red herring. It ignores the clear direction the Comprehensive Plan has set for future development, regardless of the exceptions that exist. It is contradictory for the County to treat the preexisting densities as exceptions, but justify the Plan Amendments, which propose future similar densities, based on the existence of those exceptions. In an apparent attempt to overcome the fact that the LPSA densities are similar to surrounding development and, thus, may be found to be urban densities, Respondent and Intervenors argue that density must be calculated based upon the net allowable acreage of the community, rather than the acreage of the individual T3 or T4 zone. Lake Pickett South contains 835 developable acres and the LP category authorizes 2,078 dwelling units across that community. Calculated using that method, the average net residential density for Lake Pickett South is 2.49du/acre. Hence, the proponents argue, the Plan Amendments authorize development at densities lower than the surrounding vested communities, thus, the LPSA development is at rural densities. Assuming, arguendo, Respondent’s and Intervenors’ contention is true, then the Plan Amendments cluster the average density of 2.49du/acre within the T2, T3, and T4 zones at densities as high as 6du/acre. Under that scenario, the Plan Amendments are internally inconsistent with FLUE Policy 6.1.3, which does not allow clustering of development within the RSA. As all the experts agreed, density alone does not determine whether the development authorized by the Plan Amendments is urban as opposed to rural. Other considerations include the uses authorized, as well as the development pattern and restrictions thereon. The Comprehensive Plan, clearly and specifically, articulates exceptions to the 1du/10acre density limit for future development in the RSA based upon particular considerations. For Horizon West, the consideration is the Village program of development directed at comprehensive, rather than piecemeal, development of a huge undeveloped area in the County’s southwestern area. For the Growth Centers, it is the recognition of the impact of development in the unincorporated County on adjoining local governments, and requiring joint planning for that development. Significantly, the Comprehensive Plan recognizes these exceptions as urban development, based upon both the densities and intensities of uses allowed, as well as development patterns and restrictions. The Comprehensive Plan recognizes Growth Centers as urban development implemented through PD zoning. See Policy 1.1.4.F. Villages within Horizon West have been approved with minimum overall net densities as high as 4du/acre (Village H and Town Center) and as high as 7du/acre (Village I). See Policy 4.1.4. These residential densities are recognized as urban densities. Furthermore, the development plan for Village development is specifically recognized in the Comprehensive Plan as an “urban development pattern.” See Policy 4.1.1 The characteristics identifying the Villages as an urban development pattern include the following: The requirement for a “series of integrated neighborhoods containing housing, shops, workplaces, schools, parks, and civic facilities essential to the daily life of Village residents.” The Village, and each neighborhood, shall be developed with a “center focus,” such as commercial, civic, cultural or recreational uses. Housing must be within a 1.2 mile radius of the Village Center, and where possible, housing units within a neighborhood should be within one-half mile of the neighborhood center. Neighborhoods shall encourage development of a variety of lot sizes and housing types. Each Village must have a well-defined edge, such as greenbelts or wildlife corridors permanently protected from development, as well as open space to serve the residents recreational needs in the form of squares, greens and parks. See Policy 4.1.1A., B., E., F., and G., and 4.1.5 In addition to the requirement for “ample open space,” in the form of squares, greens, and parks, an additional 7.5 percent of the developable land within each project must be permanently allocated to public open space. The LPSA encompasses a smaller land area than Horizon West, and will develop on a smaller scale, but in a very similar development pattern under the Plan Amendments. Similar to the “Village Principles” for Horizon West, the LP “Guiding Principles” require that each of the two communities: Be organized as neighborhoods designed around a “centralized focal point,” such as a park, community center, or civic building/use. Interconnect the communities within the LPSA by a multi-purpose trail linking each neighborhood focal point, such as the school or civic use. Have a minimum 35 percent open space, which may be comprised of both preservation areas, agricultural areas, buffers, neighborhood parks, and trail systems, as well as civic uses, community centers, and other built facilities. In addition, the LP Guiding Principles require each neighborhood to: Provide for a mix of housing styles and/or lot sizes. Be walkable, and no more than 125 acres in size. Locate housing within a quarter mile of the central focal point. Connect the central focal point to trails or “complete streets,” as well as schools and community parks. The Plan Amendments authorize a pattern of development in the LPSA recognized in the Comprehensive Plan as an urban development pattern.4/ Like the IW Overlay district, the RP category utilizes transect-based planning to provide a transition from rural uses outside the LPSA, to the more dense and intense uses at its core. The transect-based approach is specifically recognized by the Comprehensive Plan as comprising an “urban form” of development.5/ See Policy 5.1.2. Further, the development pattern for LP is similar to IW: T2 Low density development in a traditional rural setting; T3 Walkable neighborhoods, highly connected by streets, trails and pedestrian paths, and adequately served by parks and open space; Neighborhoods designed around a central focal point with dwellings located in close proximity thereto; School sites centrally located to serve neighborhoods; T4 Town Centers with a mix of residential, office, retail, etc. The Comprehensive Plan further identifies certain uses as urban, rather than rural. Policy 1.1.4 denotes office, commercial, industrial, institutional, and educational uses, as “predominantly urban” in use. The policy notes that these uses are predominantly found in the USA, but “may also be located within the rural settlements on a limited basis.” The policy goes on to acknowledge these uses are available in the USA as “Urban Mixed Use Option,” such as PD category. This policy also acknowledges allowance of these types of urban development within the RSA exception areas--Horizon West, International Drive Activity Center, and Growth Centers--as discussed previously. By contrast, Objective 6.1 and its implementing policies address only rural residential, agricultural, and agribusiness uses, and some institutional uses (e.g., wastewater treatment plants and landfill facilities) as allowable future land uses in the RSA. This section of the Comprehensive Plan also allows for consideration, by special exception, location of uses “that by their nature are appropriate to locate in the [RSA],” such as hazardous operations, gun ranges, landfills, and kennels. The Plan Amendments authorize development of predominantly urban uses within the RSA, but not within rural settlements or one of the previously designated exception areas. Nevertheless, Respondent and Intervenors maintain that development authorized by the Plan Amendments is not urban because the Plan Amendments “prohibit development which would have an overall urban density or intensity.” It is undisputed that the LPSA will allow residential development at a density of up to 5du/acre in T3 zones, and up to 6du/acre in T4 zones. Respondent and Intervenors refer to these as “small pockets of property” within the RSA which would have higher densities “more associated with urban development levels.” However, Respondent and Intervenors argue these small pockets are not prohibited by Policy 1.1.1 which requires that “[u]rban uses shall be concentrated in” rather than “limited to” the USA. Respondent and Intervenors ignore the language that the existing Comprehensive Plan also specifically limits future urban densities, which are not “concentrated in” the USA, to Horizon West, Growth Centers, IW Overlay, and “to a limited extent,” Rural Settlements. The policy language does not allow urban density anywhere else within the RSA. Instead, the policy directs urban densities outside of the USA to areas previously designated and planned for those densities. Based on the preponderance of the evidence, under the existing Comprehensive Plan, the density, uses, and pattern of development authorized by the Plan Amendments is urban, rather than rural. Jim Hall, Intervenors’ planning expert, acknowledged that he based the LPSA concept on these “exception areas” where “new rules” apply. Additionally, Dwight Saathoff, contractor purchaser of portions of Lake Pickett South, as much as admitted that the development approved for Lake Pickett South is urban, rather than rural, when he prepared a power point presentation for the adoption hearing. Based on the power point, Mr. Saathoff testified that “the Rural Service Area acreage would go from 58.6 percent of the total land, and with the Grow, it would be 58.4 percent. The Urban Service Area land was 41.4 and 41.6 with approval of the Grow.” [Tr. 595:3-6]. Mr. Saathoff’s testimony further supports a finding that the project converts rural land to urban use, without expanding the USA boundary to do so. The Plan Amendments are inconsistent with FLUE Goal 1, Objective 1.1, Policy 1.1.1, Objectives 1.2, Policies 1.2.1 and 1.2.2; Goal 6, Objective 6.1, Policies 6.1.1, 6.1.2, and 6.1.3.6/ Petitioners next challenge the Plan Amendments as inconsistent with FLUE Objective 1.3 and Policies 1.3.1 and 1.3.2. FLUE Objective 1.3 is titled “Application for Urban Service Area Expansion,” and prohibits new expansions of the USA unless supported by data and analysis that the expansion is consistent with other objectives, and requires expansions to be evaluated by the criteria established in Policies 1.3.1 and 1.3.2. Intervenors did not submit the Plan Amendments as an application to expand the USA boundaries. The Plan Amendments do not implicate this objective and these policies. The Plan Amendments are not inconsistent with FLUE Objective 1.3 and Policies 1.3.1 and 1.3.2. Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Objectives 6.2 and 6.3. FLUE Objective 6.2 reads as follows: RURAL SETTLEMENT. Rural Settlements provide for a rural residential lifestyle. In some instances, Rural Settlements allow a transition of rural uses adjacent to the [USA] while avoiding development in active agricultural areas. Rural Settlements were intended to recognize and preserve existing development patterns at the time the CP was adopted in 1991. The creation of Rural Settlements recognized the need to maintain agricultural and rural uses in the [RSA], while providing for rural communities. The Plan Amendments do not propose a rural settlement, a land use change within a rural settlement, or a boundary expansion of an existing rural settlement. Petitioners offered no persuasive evidence that the Plan Amendments implicate this policy. FLUE Objective 6.3 reads as follows: OBJ FLU6.3 Orange County shall protect and preserve certain existing Rural Settlements and their established neighborhoods, which by their particular location may be impacted by adjacent urban uses. This objective shall be made measurable by implementing the following policies: Petitioners did not challenge the Plan Amendments as inconsistent with any of the implementing policies, which enumerate development restrictions and procedures applicable to the following rural settlements: Lake Hart/Lake Whippoorwhil, Lake Avalon, and Wedgefield. The LPSA is not located in proximity to the listed rural settlements and Petitioners introduced no evidence that the Plan Amendments would have any impact on those rural settlements. The Plan Amendments are not inconsistent with FLUE Objectives 6.2 and 6.1. Petitioners also challenge the Plan Amendments as inconsistent with FLUE Goal 2, Objective 2.1, and Policy 2.2.17 which read, as follows: GOAL FLU2 URBAN STRATEGIES. Orange County will encourage urban strategies such as infill development, coordinated land use and transportation planning, and mixed-use development, which promote efficient use of infrastructure, compact development and an urban experience with a range of choices and living options. * * * OBJ FLU2.1 INFILL. Orange County shall promote and encourage infill development through incentives identified in the Land Development code for relatively small vacant and underutilized parcels within the County’s established core areas in the [USA]. * * * FLU2.2.17 Throughout the planning horizon, the County shall provide policy and program mechanisms that further the principles of sustainability, including limiting urban sprawl, protecting wildlife and environmentally sensitive natural areas, promoting efficient use of land and water, and creating an environment conducive to quality building and promoting sustainable economic development. The Plan Amendments interfere with and contradict the stated goal of promoting urban strategies such as infill. The Plan Amendments do, as Petitioner’s expert testified, exactly the opposite by directing urban development to areas outside the USA.7/ Objective 2.1, by its plain language, provides strategies applicable only to “relatively small vacant and underutilized parcels within” the [USA]. The objective is inapplicable to the LPSA. The cited policy requires the County to undertake policies and programs to limit urban sprawl, protect wildlife and environmentally sensitive areas, and promote efficient use of land and water. Petitioners presented no evidence that the County has not undertaken such broad policies and programs. The County introduced in evidence its Conservation Ordinance (Article X, Orange County Land Development Code), and its Econ River Protection Ordinance (Article XI), local programs appearing to implement Policy 2.2.17. Whether the Plan Amendments conflict with any of the implementing land development regulations is a matter beyond the scope of this proceeding. The Plan Amendments are inconsistent with FLUE Goal 2, but, at least arguably, consistent with Objective 2.1 and Policy 2.2.17. Petitioners next challenge the Plan Amendments as internally inconsistent with FLUE Policy 6.4.7, which reads as follows: Orange County shall provide for compatible public and/or private land uses adjacent to significant natural resources that are managed for public benefit. Methods of protection to be considered may include, but shall not be limited to, coordination with appropriate State agencies, Notice of Proximity, the use of density and intensity limitations on land use and development, and the use of buffers. Petitioners contend that the proposed LPSA is inconsistent with this policy due to its proximity to the ESCA. The ESCA is adjacent to the western boundary of the LPSA along South Tanner Road. Proposed policy 6.8.3 notes that “[l]ands located along the perimeter within the [LPSA] shall be compatible with adjacent land outside of the [LPSA], with the exception of the [ESCA].” (emphasis added). Thus, the text amendment acknowledges that the development proposed within the LPSA may not be compatible with the adjacent ESCA. To protect the adjacent ESCA from the impacts of development proposed within the LPSA, the text amendment requires “transitional treatment of the edges” of the LPSA, including a minimum 100-foot vegetative buffer along South Tanner Road “to preserve existing rural view sheds or create a visual buffer from the proposed development within Lake Pickett Communities.” The buffers must consist of “Florida native plant species, as required by Chapter 15 Article XI” of the County Code. The proposed policy also requires these buffer areas to be utilized only as natural/wetland zones. The approved RP for Lake Pickett South depicts all property adjacent to South Tanner Road as either T1 wetlands or T1 natural, with the exception of the property at the corner of SR 50 and Tanner Road, which is designated T4 with no buffer along South Tanner Road. Just inside the buffer, the RP designates property within Lake Pickett South for either T2 (2du/acre), stormwater retention, or agricultural (working farm) uses. The RP places higher density and intensity uses further from the “edge,” thus further from the border with the ESCA. The Plan Amendments were reviewed by both the St. Johns River WMD and the South Florida WMD (SFWMD). The St. Johns River WMD reported on September 9, 2015, that its review “focused on flood protection and floodplain management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted.” The applicable staff had no comments on the proposed amendments, but noted that the property subject to the amendments is located within the WMD’s Econ River Hydrologic Basin and any environmental resource permit will have to meet additional surface water management basin criteria. The SFWMD reported, “There appear to be no regionally significant water resource issues; therefore, the District has no comments on the proposed amendment package.” The Department of Environmental Protection “conducted a detailed review [of the Plan Amendments] that focused on potential adverse impacts to important state resources and facilities, specifically . . . wetlands and other surface waters of the state; federal and state-owned lands and interest in lands . . . .” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.” The County coordinated with appropriate state agencies for siting the LPSA adjacent to the ESCA. The RP reflects the use of buffers and density and intensity limitations as methods to protect the adjoining ESCA from development within Lake Pickett South. The text amendment reflects the use of “edge” buffers and transitional density and intensity limitations, through the transect zone approach, to achieve compatibility with the adjacent ESCA. The Plan Amendments are not inconsistent with FLUE Policy 6.4.7. Similarly, Petitioners allege the Plan Amendments are inconsistent with FLUE Objective 8.2, which reads as follows: COMPATIBILITY. Compatibility will continue to be the fundamental consideration in all land use and zoning decisions. For purposes of this objective, the following policies shall guide regulatory decisions that involve differing land uses. Petitioners did not identify any implementing policy with which the Plan Amendments are alleged to be inconsistent. Compatibility is not defined by the Comprehensive Plan. Compatibility is defined by the Community Planning Act as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. The parties did not dispute that this definition was applicable to analyzing consistency with Objective 8.2. Petitioners allege the development authorized by the Plan Amendments is incompatible with (1) adjacent rural settlements, and (2) its location in an important wildlife corridor. Petitioners first allege the LPSA is incompatible with the adjacent Corner Lake Estates and Lake Pickett rural settlements, due to the density, intensity, and mix of uses allowed by the Plan Amendments. The Lake Pickett rural settlement located adjacent to the LPSA on the northeast is vested at 1du/acre. The Corner Lakes rural settlement has an existing density of 4du/acre. As discussed previously, these densities are grandfathered from the RSA density limitation of 1du/10acres. The Comprehensive Plan clearly establishes densities of no greater than 2du/acre for future development in rural settlements. Regardless of whether the existing density of these two rural settlements is 4du/acre or greater, the Comprehensive Plan limits future development within the settlements to lower densities more consistent with the RSA. Because no RP has been approved for the northern section of the LPSA, it is impossible to discern what specific density of development may be allowed adjacent to the Lake Pickett rural settlement. Proposed Policy 6.8.3 will apply to development of the north LPSA, which provides that “lands located along the perimeter within the [LPSA] shall be compatible with adjacent lands outside of the [LPSA] . . . .” Aside from the statement that “substantial buffers consisting of Florida native plant species, as required by Chapter 15 Article XI of the Orange County Code, shall be used to replace or enhance perimeter transition treatment,” the Plan Amendments contain no specific requirement for buffer size between the LPSA and the Lake Pickett rural settlement.8/ Mr. Hall, accepted as an expert in land use planning and growth management, testified at length regarding the “edge” treatment, buffering, and lot sizes, designed to make the layout of Lake Pickett South compatible with the adjoining Corner Lakes rural settlement. The edges of Lake Pickett South abutting Corner Lake are all designated as wetlands, buffer areas, or stormwater facilities, with the exception of a strip of T3 residential at 4du/acre with minimum 50-foot lots. However, this strip adjoins existing undeveloped natural buffer area within Corner Lake, not existing residential lots. Overall, Lake Pickett South allows urban development to locate next to the existing Corner Lake rural settlement. The overall density, intensity, and mix of uses allowed in Lake Pickett South is inconsistent with the single-use residential rural community setting of Corner Lake. However, given the transect-based planning approach and the buffering and “edge” treatments required by proposed Policy 6.8.3, it is at least arguable that the development is compatible with the adjacent rural settlements. Petitioners next allege the LPSA is inconsistent with FLUE Objective 8.2 because it is located within an important wildlife corridor and introduces physical obstacles which impede movement of wildlife through the corridor. None of the Petitioners addressed this particular objective in their Proposed Recommended Order.9/ Petitioners did not prove that the LPSA is inconsistent with FLUE Objective 8.2, which specifies compatibility as the fundamental consideration in all land use decisions. Petitioners next challenge the Plan Amendments as inconsistent with Conservation Objectives C1.7 and C1.9. Objective C1.7 reads as follows: OBJC1.7 Orange County shall manage and protect plant and wildlife species designated as threatened, endangered or species of special concern through programmatic and planning approaches for ecosystem analysis and through adoption of land development regulations. The final environmental surveys conducted by Intervenor Banksville’s consultant, Bio-Tech Consulting, Inc., revealed the presence of six wildlife10/ species designated by the Florida Fish and Wildlife Conservation Commission (FWC) as either threatened, endangered, or of special concern. The County’s conservation regulations are limited to identification and protection of wetlands and the watershed of the Econ River Basin. The County has no regulatory authority over wildlife conservation or preservation. Petitioners introduced credible expert witness testimony regarding the presence of wildlife in the LPSA, and opinions regarding the adverse effects which development in the area, as proposed, is likely to cause. Petitioners clearly would have the County regulations go further to address, or perhaps prohibit, development impacting the wildlife habitats. The question at hand, however, is not whether the County’s adopted “programmatic and planning approaches for ecosystem analysis,” and the County’s land development regulations, adequately address the stated objective, to “manage and protect plant and wildlife species designated as threatened, endangered.” The inquiry in this case is limited to whether the Plan Amendments, as proposed, are inconsistent with the stated objective. Petitioners did not prove that the Plan Amendments are inconsistent with Objective C1.7. Objective C1.9 reads as follows: OBJ C1.9 Orange County shall require the protection of natural resources by minimizing adverse impacts from adjacent developments. This objective shall be made measurable by implementing the following policies. Petitioners are clearly concerned with the impact of the Plan Amendments on the plant and wildlife habitats in the adjoining ESCA. Petitioners’ expert ecologist testified extensively regarding the impact of new communities on the ESCA --increased passive recreational use, such as horseback riding, hiking, and picnicking, as well as the impact of domesticated pets on wildlife in the ESCA. Petitioners’ experts were insistent that the text amendment does nothing to minimize these adverse effects because proposed FLUE Policy 6.8.3 requires no buffer for the ESCA.11/ On the contrary, Policy 6.8.3 requires a minimum 100-foot native vegetated buffer along South Tanner Road, the border between the LPSA and the ESCA. Petitioners did not identify any measurable policy implementing Objective C1.9 with which the Plan Amendments are alleged to be inconsistent. Policy C1.9.2 mirrors the requirements of FLUE Policy 6.4.7, requiring “enhanced protective mechanisms, such as, but not limited to . . . buffers, vegetative buffers, setbacks, density restrictions, easements . . . that will permit continued habitat management practices in areas adjacent to major managed natural resources.” As discussed previously, the Plan Amendments incorporate buffers and density and intensity limitations, through the use of transect-based planning, to address the impact of the proposed development on the adjacent ESCA. Petitioners did not establish that the Plan Amendments are inconsistent with Objective C1.9. Petitioners allege the Plan Amendments are inconsistent with Conservation Goal 2, Objective 2.3, and Policy 2.3.1, which read as follows: GOAL C2 Orange County’s goal is to protect, enhance and maintain the unique and irreplaceable values, functions, diversity and benefit of the natural resources within the Econlockhatchee River Basin, Wekiva Protection Area and the Lake Apopka Drainage Basin. * * * OBJ C2.3 Orange County shall protect and preserve the surface water quality and quantity, wildlife populations and habitat, aesthetics, open space, historical and archaeological resources, floodplains, wetland areas, native upland areas and recreation lands of the Econlockhatchee River Basin by implementing the following policies. * * * C.2.3.1 The Land Development Code shall provide for the protection of the Econ River Basin through mechanisms such as upland buffers, specific restrictions within a 2,200 foot total width protection zone, requiring habitat and historical/archaeological resource assessments and protection, allowing for mitigation, open space or density credits, requiring landscaping to include use of native plant species, utilization of wetland areas as part of drainage facility systems, requiring State or Federal listed species protection, clustering of development, restricting floodplain encroachment, and limiting forested habitat fragmentation. Petitioners introduced no evidence to support a finding that the County’s land development code fails to provide the listed protections for the Econ River Basin. Respondent and Intervenors introduced in evidence Article XI of the County code, titled “Econlockhatchee River Basin Protection.” The article includes basin-wide regulations which include management plans for protection of endangered, protected, and species of special concern, use of native plant species in landscaping, regulations to limit adverse impact of development on hydrologic functions of conservation areas, upland buffers of 50 feet for conservation areas, and limits on discharge rates for stormwater management systems. John Miklos, Intervenor’s expert in environmental and ecological assessments and environmental and ecological planning, testified, credibly, that the County’s land development code is even more stringent than the St. Johns River WMD requirements because it imposes development restrictions within a 2,200 foot corridor on either side of the Econ River, in addition to the 1,100 foot “critical area regulations” imposed by the St. Johns River WMD. The article also contains specific regulations for a “critical area” defined as the main river channel extending 1,100 feet landward of the Econ River and its major tributaries. Nothing in the Plan Amendments exempts the development authorized thereby from the requirements of Article XI. Petitioners did not prove the Plan Amendments are inconsistent with Conservation Goal C2, Objective 2.3, and Policy C2.3.1. Petitioners next allege the Plan Amendments are inconsistent with Transportation Element Goal T1 and Policy T1.1.1.3, which read, as follows: GOAL T1 A safe, accessible, convenient, efficient and financially feasible multimodal transportation system which minimizes environmental impacts. * * * T1.1.1.3 Whenever reasonably possible, future roadway projects shall be designed to promote livability and land use- transportation integration, in part by avoiding the severing or fragmenting of existing neighborhoods. The County will coordinate with FDOT, the Central Florida Expressway Authority, and other appropriate entities to help ensure that limited access and other roadway projects which are constructed by them avoid or minimize negative impacts to existing neighborhoods, wildlife corridors, and sensitive natural areas and to coordinate these projects with conservation and land use decisions. Petitioners introduced no credible evidence that the transportation improvements necessary to serve the proposed development would sever or fragment existing neighborhoods or that the County would not coordinate the improvements to SR 50 with appropriate state agencies. Chuluota Road will require widening in conjunction with the proposed development. That road serves both Corner Lake and Lake Pickett rural settlements, but there is no evidence that the road project would sever or fragment those neighborhoods. Petitioners also alleged the Plan Amendments were inconsistent with Neighborhood Element Objective N1.1, which reads, “Orange County shall ensure that future land use changes are compatible with or do not adversely impact existing or proposed neighborhoods.” For the reasons cited in the discussion related to consistency with FLUE Objective 8.2, the Plan Amendments are consistent with adjoining neighborhoods based on the edge treatment requirements and transect-based approach to density. Finally, the Petitioners challenge the Plan Amendments as internally inconsistent with the Potable Water Element Goal 1, Objective 1.1 and Policies 1.4.2 and 1.4.3, which read, as follows: GOAL PW1 It is Orange County’s goal to provide an efficient and adequate level of water service and facilities in a cost effective manner to accommodate existing and future development. OBJ PW1.1 Orange County shall continue to provide for the correction of its existing water system deficiencies. This objective shall be made measurable by implementing the following policies. * * * PW1.4.2 Potable water service shall not be extended to areas outside the [USA] except in the following circumstances: The facilities to be extended will serve a Growth Center or other exception areas as provided in the Comprehensive Plan (CP); The Board of County Commissioners has made an affirmative finding that a public health hazard exists for existing development. Such facilities shall not serve as the basis for additional new development; The facilities are to be extended to provide adequate fire flows to existing developments which are located within one- half (1/2) mile of an existing waster transmission main; For approved sector plans as provided for in the CP; and The circumstances described under Policy PW1.5.2 and Policy PW1.5.3.12/ The Petitioners presented no evidence regarding deficiencies in the county’s water system or how the instant amendment would relate to the county addressing said deficiencies. No evidence was introduced on which to base a finding that providing water service to the LPSA would be inefficient, inadequate, or not cost-effective. The Plan Amendments do not require extension of water utilities to serve the proposed development. The County utilities department evaluated the Plan Amendments and reported that water mains on SR 50, Lake Pickett Road, and North Tanner Road are available to serve the development, as well as wastewater mains in the vicinity. The developer will be paying to connect the development to the existing water mains, as well as install the water and wastewater infrastructure within the development boundaries. The Plan Amendments are not inconsistent with PW Goal 1, Objective 1.1, and Policies 1.4.2 and 1.4.3. Urban Sprawl Petitioner Brooke additionally challenges the Plan Amendments as contrary to section 163.3177(6)(a)9., which provides that “any amendment to the future land use element shall discourage the proliferation of urban sprawl.” The Act defines urban sprawl as “a development pattern characterized by low density, automobile-dependent development with either a single use or multiple uses that are not functionally related, requiring the extension of public facilities and services in an inefficient manner, and failing to provide a clear separation between urban and rural uses.” The statute sets forth 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl, and eight factors which, if met, determine a plan amendment discourages urban sprawl. Petitioner’s expert testified that the Plan Amendments are characterized by the at least nine of the indicators of sprawl. Intervenors’ expert disagreed. The first primary indicator implicated by Petitioner Brooke is that the development “[p]romotes, allows, or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while not using undeveloped lands that are available and suitable for development.” § 163.3177(6)(a)9.a.(II)., Fla. Stat. The Plan Amendments do direct urban development to locate within a rural area. The evidence did not establish how far the LPSA is located from the boundary of the USA.13/ Based upon Map 11 of the FLUM series, Corner Lake rural settlement is located 1.5 miles east of the USA boundary. The LPSA is located west of Corner Lake, thus closer than 1.5 miles from the USA boundary. Intervenors demonstrated the location of major employment centers within two miles of the LPSA, including the University of Central Florida and the Central Florida Research Park, both of which are located within the USA. The LPSA is not located at a substantial distance from existing urban areas. Assuming, arguendo, the location of the LPSA was considered to be at “a substantial distance” from existing urban areas, Petitioner Brooke introduced no evidence of undeveloped lands within or closer to the USA which are available and suitable for the proposed development. Petitioner Brooke did not prove that the Plan Amendments meet primary indicator (II). Petitioner next contends that the Plan Amendments fail to “adequately protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater recharge areas, lakes, rivers . . . .” § 163.3177(6)(a)9.a.(IV), Fla. Stat. As previously addressed, the Plan Amendments do not exempt the development from the County’s existing land development code requirements for identification and protection of conservation areas and special protection for the Econ River Basin, which are the County’s primary protection and conservation mechanisms. It is clear that Petitioners wish the County regulations went further, but that issue is beyond the scope of this proceeding. Petitioner did not prove that the Plan Amendments trigger primary indicator (IV). Petitioner next contends that the Plan Amendments “[f]ail[] to adequately protect adjacent agricultural areas and activities, including active agricultural and silvicultural activities, passive agricultural activities, and dormant, unique, and prime farmland and soils.” § 163.3177(6)(a)9.a.(V). Adjacent uses to the south and east of the LPSA are rural residential settlements. The ESCA is adjacent to the west. No evidence was introduced establishing the uses to the north in Seminole County. No evidence was introduced to establish the use of adjacent rural settlement for any agricultural or silvicultural activities, either active or passive. The only evidence demonstrated that Corner Lake consists of residences and wetland conservation areas. Petitioner did not prove that the Plan Amendments trigger primary sprawl indicator (V). Primary indicator (XI) is that the development “[f]ails to maximize use of existing public facilities and services.” Potable water and wastewater facilities exist, and uncommitted capacity is available to serve the development as proposed. The County utilities department reviewed the Plan Amendments and reported sufficient plant capacity to serve the development at adequate levels of service. Parks and Recreation also reviewed the Plan Amendments and reported sufficient acreage capacity to serve the proposed development. The County fire rescue department reported that those portions of the property which are within 2.5 miles of Station 82 are within an “optimal emergency services delivery” area. Other portions are not within an optimal delivery area, but are within a seven-minute response time. Anecdotal testimony from the Corner Lakes HOA President regarding a delayed response time to a residential security alarm is not competent evidence on which to base a finding that the existing emergency response service is inadequate. The development will require significant investments in public roadway facilities in order to meet level of service requirements. Several segments of the major county roadways to be impacted by the development authorized by the Plan Amendments, Lake Pickett Road and Chuluota Road, are already overcapacity. Segments of SR 50 currently operate at an acceptable level of service, based on a six-laning project currently underway, but are projected to operate at an unacceptable level of service by the 2035 planning horizon. Transportation analysis shows significant and adverse impacts from the proposed development on all three roadways (at varying rates depending on the time of the day modeled). In order to approve the Plan Amendments, the developer has entered into a Transportation Network Agreement, and corresponding Term Sheet, by which it has committed to pay an estimated $16,000,000 to the State for widening impacted segments of SR 50, and an estimated $14,844,000 to the County for widening Chuluota Road from SR 50 to Lake Pickett Road. The Plan Amendments do not fail to maximize use of existing transportation infrastructure. The existing infrastructure is, apparently, over-maximized. The Plan Amendments do not trigger primary sprawl indicator (XI). Next, Petitioner Brooke argues the Plan Amendments “[f]ail[] to maximize use of future public facilities and services.” § 163.3177(6)(a)9.a.(VII), Fla. Stat. Because the Comprehensive Plan provides a strategy of designating the USA as the area for which the County is responsible for providing infrastructure and services to support urban development, Petitioner Brooke argues that location of urban development outside the USA fails to maximize use of future public facilities and services. While Petitioner Brooke’s arguments sounds theoretically correct, it is not supported by the evidence. The evidence shows that the potable water and wastewater service lines previously constructed under the Econ River are sized for capacity to serve the demands generated by the Plan Amendments, and that the plant capacity exists as well. Petitioner introduced no evidence that service capacity to meet the future demand generated by the Plan Amendments would reduce, or otherwise interfere with, the County’s ability to provide those services to development inside the USA. Moreover, the Plan Amendments dictate that the developer, rather than the County, will incur the costs of constructing connections to the existing potable water and wastewater lines. As to the transportation facilities, the impacted segments of Lake Pickett and Chuluota Road are currently deficient and included in the County’s long-range transportation plan for widening as “partnerhip projects,” meaning the County requires a partner to fund these future projects. Through the transportation funding agreements, the Plan Amendments will provide the funding partner the County needs to eliminate the current backlog on these roadways, as well as mitigate the projected impacts of the future development. The Plan Amendments do not fail to maximize use of future public facilities and services, which is primary urban sprawl indicator (VII). Petitioner Brooke next cites primary indicator (VIII), that the Plan Amendments “[a]llow for land use patterns or timing which disproportionately increase the cost in time, money, and energy of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government.” § 163.3177(6)(a)9.a.(VIII), Fla. Stat. Petitioner introduced no evidence of increased costs associated with providing services to the development authorized by the Plan Amendments, with the exception of transportation. As previously discussed, the Plan Amendment actually reduces the County’s cost to provide transportation services to existing and committed developments through the planning horizon, and funds much of the cost to improve the impacted roadways to serve the new development. Petitioner did not prove the Plan Amendments trigger primary urban sprawl indicator (VIII). Next, Petitioner implicates section 163.3177(6)(a)9.a.(IX), that the Plan Amendments fail to provide a clear separation between rural and urban uses. On this primary indicator, Petitioner is correct. The Plan Amendment directs urban uses to a location surrounded by development recognized in the Comprehensive Plan as rural agricultural, rural residential, and conservation, or specified exceptions thereto. The Plan Amendments do trigger primary urban sprawl indicator (IX). Petitioner Brooke next argues the Plan Amendments constitute urban sprawl because they “discourage[] or inhibit[] infill development or redevelopment of existing neighborhoods and communities.” § 163.3177(6)(a)9.a.(X). Fla. Stat. As previously found, the Plan Amendments direct urban development to the RSA, which is contrary to an urban infill strategy. The Plan Amendments discourage infill by authorizing urban development outside of the designated urban area. The Plan Amendments do trigger primary urban sprawl indicator (X). Lastly, Petitioner Brooke alleges the Plan Amendments “result[] in poor accessibility among linked or related land uses.” § 163.3177(6)(a)9.a.(XII), Fla. Stat. Petitioner’s expert, Ms. Diettrich, opined that the proposed development is not sited adjacent to or continuing from any related use, thus fails to connect related uses. Based on that evidence alone, the undersigned was unable to find that the Plan Amendment triggers primary indicator (XII). Altogether, Petitioner proved the Plan Amendments trigger two primary indicators of urban sprawl. Once primary sprawl indicators are identified, the urban sprawl analysis shifts to whether the Plan Amendments meet four of eight criteria which determine that an amendment discourages urban sprawl. Respondent and Intervenors introduced testimony from their expert planner, Mr. Hall, that the Plan Amendments satisfy six of the criterion: (1) promote the efficient and cost- effective provision or extension of public infrastructure or services; (2) promote walkable and connected communities and provide for compact development and a mix of uses at densities and intensities that will support a range of housing choices and a multimodal transportation system; (3) promote the conservation of water and energy; (4) preserve agricultural areas and activities; (5) preserve open space and natural lands and provide for public open space and recreation needs; and (6) create a balance of land uses based upon demands of the residential population for the nonresidential needs of the area. Mr. Hall testified that the LPSA promotes efficient and cost-effective provision or extension of public infrastructure because the developer is paying, rather than the County. That arrangement is more cost-effective than taxpayer investment. Proposed policies 6.8.6, 6.8.12, and 6.8.13 require the neighborhoods within the LPSA to be designed as walkable and with interconnected greenspaces, trails, and paths. However, the LPSA does not promote a range of housing choices. Proposed policy 6.8.2 limits T3 to single-family detached housing, with some single-family attached housing limited to the perimeter and close to T4. Zone T4 allows single-family attached and “vertically-integrated uses,” which is undefined. Multifamily uses are prohibited. The proposed development does not promote a multimodal transportation system. The Department of Transportation reports there are “no transit service links adjacent to the project site,” and although “significant transit improvements are planned for the UCF/East Orange County area over the next six to 10 years,” funding for the projects had not been identified. The Plan Amendments do promote conservation of water and energy through the requirement in proposed FLUE Policy 6.8.4 that each community adhere to a “Green Infrastructure Plan” including a Master Stormwater Plan utilizing Low Impact Development (LID) practices, and a Master Conservation, Open Space and Community Space Plan identifying connections of the internal greenspaces to countywide trail systems. The Plan Amendments do require a substantial amount of open space and natural lands, and provide for public open space and recreation needs. Pursuant to proposed Policy 6.8.6, each community within the LPSA must provide 35 percent open space, no more than five percent of which may be community spaces.14/ Further, each neighborhood will be organized around a community focal point, such as a community park, garden, center, etc. Finally, the LPSA is designed with a mix of land uses to meet many of the demands of the residents in the area for nonresidential needs. Zone T4 areas will include commercial, office, service and civic uses to serve the communities, “as well as the surrounding area.” The LP Guiding Principles and Policies meet four of the criterion which determine that a plan amendment discourages urban sprawl. Petitioners did not prove that the Plan Amendments fail to discourage the proliferation of urban sprawl. Data and Analysis The next basis on which Petitioners challenge the Plan Amendments is supporting data and analysis. Section 163.3177(1)(f) requires all plan amendments to be “based on relevant and appropriate data and an analysis by the local government that may include, but not be limited to, surveys, studies, community goals and vision, and other data available on that particular subject at the time of adoption of the . . . plan amendment.” The statute continues, “To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the . . . plan amendment.” Id. The Individual Petitioners, with the exception of Petitioner Brooke, maintain that the Plan Amendments do not react appropriately to data and analysis regarding the impact of the Plan Amendments on natural resources and environmentally sensitive areas within the LPSA and the adjacent ESCA.15/ For purposes of this section, these Petitioners will be referred to as the “Farrell Petitioners.” Petitioner Brooke additionally maintains the Plan Amendments do not react appropriately to the community goals and vision codified by the USA/RSA concept. 1. Natural Resources On the issue of natural resources and environmentally sensitive areas, the Farrell Petitioners presented the testimony of Ariel Horner, who was accepted as an expert in Florida ecology and ecosystem conservation. Ms. Horner performed research in the ESCA during her undergraduate and graduate studies, and currently teaches courses in ecology and conservation utilizing the ESCA as a teaching tool. The Farrell Petitioners introduced photographs taken by Ms. Horner utilizing game cameras installed in the ESCA in March and April 2015, and February and March 2016. The photographs depict a number of “listed species,” including the Florida black bear, Sherman’s fox squirrel, gopher frogs, and ovenbirds. The pictures document the presence of endangered, threatened, or species of special concern, within the ESCA. Ms. Horner testified extensively regarding the habitat requirements for these species and expressed her expert opinion that these same species are very likely present on the LPSA property as well. Ms. Horner’s opinion regarding the habitat needs of the various listed species was informed, in part, by management plans prepared by the FWC. Petitioners did not introduce any FWC management plans into evidence and Ms. Horner did not use any excerpts or maps from said plans as demonstratives. The Farrell Petitioners also offered the testimony of Dr. John Fauth, accepted as an expert in conservation biology, vertebrate and invertebrate zoology, and statistical analysis. Dr. Fauth testified that the LPSA is located within a bio diversity hotspot, the North American Coastal Plain, which data that does not support development of the property for the density and intensity authorized by the Plan Amendments. The North American Coastal Plain extends from southeast Texas east to Florida and north along the east coast as far as coastal Connecticut and Massachusetts. Within the southeast, the plain includes the entirety of Louisiana and Mississippi, large portions of Alabama, Georgia, and North and South Carolina, Arkansas, and western Tennessee. The presence of the LPSA within this vast region was not persuasive evidence to support any specific development restriction on the particular parcel. Both Dr. Fauth’s and Ms. Horner’s expert opinions regarding the high ecological value of the LPSA, is due to its location within a regional wildlife corridor. Dr. Fauth testified extensively regarding the importance of maintaining corridors for listed species, such as the Florida panther and black bear, to travel from southern to northern Florida and further on to other areas within the North American Coastal Plain. The ability of species to migrate without barriers from human development is important to mating, feeding, reproduction, and many other essentials for long-term viability of various listed species. The Farrell Petitioners introduced, through the testimony of Dr. Fauth, a map from the St. Johns River WMD Management Plan for the ESCA. The map depicts the location of the ESCA within a “larger, multi-corridor system.” The map encompasses east Orange and Seminole, south Volusia, and western Brevard counties. The map depicts “District-Owned Conservation Easements,” “FNAI [Florida Natural Areas Inventory] Public Lands,” “Management Areas,” including managed preserves, state forests, and conservation areas; as well as, properties designated “Priority 1” through “Priority 5.” The map does not indicate what the priority properties are listed for and no witness testified to the meaning of the priority areas. Based on the totality of the evidence, the undersigned infers the properties are designated by priority for public acquisition. The LPSA lies within a corridor extending between the Hal Scott Regional Preserve in southeastern Orange County to the Little Big Econ State Forest north in Seminole County. Further east lie the Bronson State Forest and the Seminole Ranch Conservation Area, extensive “Management Areas” in the region. The scale of the map is large, and no witness testified as to the exact location of the LPSA on that particular map. Based upon the evidence of record, it appears the LPSA lies wholly within an area designated “Priority 1.” The LPSA is one of thousands, if not tens or hundreds of thousands, of Priority 1 properties within the corridor between the Hal Scott Regional Preserve and the Little Big Econ State Forest. No evidence of record supports a finding that development of the ESCA will prevent wildlife from traversing the larger corridor, or prevent the WMD from acquiring other properties or conservation easements that could, eventually, link the preservations areas. The St. Johns River WMD staff reviewed the proposed Plan Amendments “focused on flood protection and floodplain management, wetlands and other surface waters . . . as they relate to important state resources and facilities that will be adversely impacted by the amendment, if adopted,” and had no comments, other than to note that the property’s location in the Econ River Basin will require additional criteria to be met for issuance of environmental resource permits in the area. The Department of Environmental Protection reviewed the proposed Plan Amendments for “potential adverse impacts to important state resources and facilities” including “federal and state-owned lands and interest in lands, including state parks, greenways and trails, [and] conservation easements.” The Department found “no provision that, if adopted, would result in adverse impacts to important state resources subject to the Department’s jurisdiction.” The County has limited jurisdiction with regard to protection of wildlife; the protection of endangered, threatened, and species of special concern is within the authority of the state and federal government. Although the County was required to transmit the proposed Plan Amendments to the FWC for review, pursuant to section 163.3184(3)(b), no evidence was introduced regarding any comment from the FWC on the proposed Plan Amendments. The state agency with authority for regulating wildlife had no comment regarding the impact of the Plan Amendments on any state or regional resource, including the proposed corridor. Despite the County’s limited authority to regulate wildlife, the County environmental staff included the following in its staff report on the Plan Amendments in a section titled “Habitat Protection”: It appears that portions of the [property] have been identified as part of the Florida DEP, Priority Ecological Greenway Network 2013. This project of the Florida Ecological Greenway Network (FEGN) identifies areas of opportunity for protecting a statewide network or ecological hubs and linkages designed to maintain large landscape-scale ecological functions including focal species habitat and ecosystem services throughout the state. The FEGN aggregates various data identifying areas of ecological significance from the Florida Natural Areas Inventory, [FWC], existing and proposed conservation lands, and other relevant data. These data were combined to identify large, landscape-scale areas of ecological significance (ecological hubs), and a network of landscape linkages and corridors connecting the hubs into a statewide ecological greenways system (ecological greenways and wildlife corridors). Developing portions of this ecologically significant area without proper ecological design consideration would diminish the functionality of the area as a greenway and move the land use from a state of higher sustainability to a state of lower sustainability in terms of resources needed to sustain the lower state. The applicant shall provide reasonable assurances that the habitat and ecological function of this ecosystem will not be diminished as a result of the proposed development. Road and pedestrian crossings of wetland and environmentally sensitive corridors shall be minimized over wetlands and floodplains and be designed to allow for unimpeded passage of wildlife. (emphasis added). The text amendment addressed the issue of habitat and ecological function through the use of the transect planning. Objective 6.8, and Policies 6.8.1 and 6.8.2, dictate a development pattern that transitions from open space and conservation areas on the edges of the LPSA through gradually increasing densities of residential, to a center of highest density, intensity, and mix of uses. This approach minimizes disturbance of the “corridor” by concentrating the most intense uses to the center while maintaining relatively undisturbed edges. Petitioners maintain that the proposed development, as reflected in the PD-RP, does not provide reasonable assurances that the habitat and ecological function of the property will not be diminished, primarily because road and pedestrian crossings of wetland and environmentally sensitive areas, as planned, fragment habitat which does not allow for unimpeded passage of wildlife. Petitioners argument on this point is a challenge that the zoning (PD-RP) is inconsistent with the Plan Amendments as reflected in the text amendment. The exclusive method to challenge the consistency of the zoning (or any other land development order) with the Comprehensive Plan, is section 163.3215, which provides for an action in an appropriate circuit court. Petitioners argument is not cognizable in the instant proceeding. Furthermore, the Plan Amendments do not exempt the proposed development from the land development code, Article X, which governs the identification, classification, and corresponding protection of wetlands, during the development permitting process. Many of Petitioners’ concerns will be addressed in the permitting process for the proposed development. Likewise, the process triggering evaluation of the specific property for presence of listed species is the local permitting process. The developer’s preliminary environmental assessment confirmed the presence of several listed species on the subject property, including Sherman’s fox squirrel, Florida Sandhill Crane, Little Blue Heron, White Ibis, gopher tortoise, and bald eagle. The report identifies whether each species is state- or federal-listed, and details the corresponding development restrictions to be imposed during permitting. The LPSA lies within the Econ River Basin, and is subject to Article XI of the County’s land development code. Section 15-442 specifically requires all development applications to include a survey of listed species utilizing FWC Wildlife Methodology Guidelines. The code provides, “[a] management plan shall be required of the development for the protection of an endangered, threatened or species of special concern and shall become part of the conditions for approval of the project.” The data gathered from such surveys is generally good for about a 90-day period because of the relative transient nature of certain species. Listed-species surveys are performed during the permitting phase in order to base permitting decisions on “fresh” data. The Farrell Petitioners did not prove that the Plan Amendments do not react appropriately to the data concerning the location of the property within a larger wildlife ecosystem to the extent necessary during the planning process. The Farrell Petitioners next argue that the Plan Amendments do not react appropriately to the data regarding natural resources within the ESCA because the development proposed by the Plan Amendments will negatively impact the ESCA. Testimony on this issue pertained to increased use of the ESCA by adjoining residents in the proposed development, particularly with respect to planned additional horse trails, hiking and other passive recreation, as well as the introduction of pets, especially cats, which hunt and kill many wildlife species, especially birds. The testimony on this issue was part hearsay, part speculation and unpersuasive. Neither the state nor the local agency charged with managing the ESCA mentioned a concern with increased public usage when reviewing the Plan Amendments for impact on these resources. The Plan Amendments do not prohibit the managing entities from limiting, or otherwise regulating, the use of the ESCA to maintain its ecological integrity or from conducting public information and awareness campaigns. The Farrell Petitioners did not prove that the Plan Amendments fail to react appropriately to data regarding the natural resources present on the adjacent ECSA. Additionally, Petitioner Brooke argues the Plan Amendments do not react appropriately to data and analysis in the form of the community goals and vision established by the Comprehensive Plan USA/RSA concept. Brooke states that FLUE Goal 1 and its implementing objectives and policies establish the community’s “desired future development pattern” directing all urban densities and intensities to the USA. Thus, Brooke argues that the Plan Amendments, which direct urban densities and intensities of use to the RSA, do not react appropriately to the community goal and vision established by the Comprehensive Plan. Section 163.3177(1)(f) lists “community goals and vision” as a type of data, along with surveys, studies, and other data available at the time the plan amendment was adopted, on which the plan amendment must be based. The statute anticipates “community goals and vision” as something separate from, or other than, the comprehensive plan itself. Many communities have a free-standing vision statement which may, in part, inform future planning decisions. See Seminole Tribe of Fla. v. Hendry Co., Case No. 14-1441GM (DOAH Feb. 12, 2015). As such, the separate statement is a community vision or goal which may support a subsequent plan amendment. In this case, Petitioner Brooke has just repackaged an internal inconsistency argument as a data and analysis argument. Under the rubric of the Community Planning Act, the comprehensive plan must be based upon data and analysis that form the basis for crafting the goals, objectives, and policies of the plan. In order for that construct to make sense as the plan is amended going forward, plan amendments must be supported by data and analysis documented outside of the comprehensive plan itself. The comprehensive plan cannot constitute the supporting data and analysis for an amendment to itself.16/ While the undersigned applauds Petitioner Brooke’s creativity, the argument is not well-taken. The internal inconsistency argument was, however, both well-plead and well- proven. 2. Infrastructure and Services In both their Petition and PRO, the Farrell Petitioners raise the issue of whether the Plan Amendments react appropriately to data and analysis regarding the provision of infrastructure and services. However, their PRO fails to address this issue, focusing instead solely on the natural resources issue. It is unclear whether the Farrell Petitioners abandoned this claim, so it is addressed here in an abundance of caution. The Farrell Petitioners did not prove the Plan Amendments fail to react appropriately to data and analysis regarding the availability of infrastructure and services. The Plan Amendments require developer-funded connection to, and construction of onsite, wastewater and potable water services. The Plan Amendment is also contingent upon written infrastructure agreements to provide for public schools, emergency services, and parks and recreation services. Transportation impacts and funding of needed improvements are addressed through the transportation network agreements required by proposed FLUE Policies 6.9.3 and 6.9.4. No persuasive evidence supported a finding that these terms are not an appropriate reaction to data and analysis regarding the availability of infrastructure and services. Meaningful and Predictable Standards Finally, Petitioners challenge the Plan Amendments as contrary to section 163.3177(1), which requires comprehensive plans to establish “meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.” The Farrell Petitioners’ allegation in the pre- hearing stipulation is generalized: “[T]he Plan Amendments . . . eliminate existing meaningful and predictable guidelines for development.” In their PRO, the Farrell Petitioners allege the Plan Amendments “eliminate[] . . . existing meaningful maximum allowable density limitations and replace[] density with average densities that are much higher urban densities” exceeding the RSA cap of 1du/10acres but outside the USA, thereby failing to provide meaning and predictable standards. The Farrell Petitioners did not elaborate this argument. Contrary to Petitioners’ assertion, the use of non- specific densities with mixed-use transect-based urban development in the County is neither new nor novel. The most prominent example being Innovation Way, which establishes a range of densities within each transect zone, allowing the final density to be established by the IW-PD-RP. See FLUE Policy 5.1.7. In fact, the process for approving a plan amendment to IW is identical to the LPSA text amendment: The proposed location of transect zones are depicted on a CRP during the IW map amendment process. No development within the IW boundary may be approved without an approved IW-PD-RP, which determines the adopted boundaries and location of the transect zones. See FLUE Objective 5.2 and implementing policies. What is new and novel about the LPSA approach is the County’s position that the development pattern and densities are rural, rather than urban. The Farrell Petitioners did not introduce evidence regarding whether the LPSA amendment process itself provides meaningful and predictable standards for the use and development of land.17/ The allegation that the use of average densities renders the Plan Amendment devoid of meaningful and predictable standards was not proven. Petitioner Brooke maintains that the Plan Amendments do not provide meaningful and predictable standards because they are internally inconsistent with the goals, objectives, and policies directing urban densities and intensities of use outside the USA. Petitioner Brooke’s arguments are, again, creative, but yet another attempt to get the proverbial second, or in this case, third bite at the apple. Repackaging an internal inconsistency issue as a “meaningful and predictable standards” issue does not ipso facto make it an meaningful and predictable standards issue. The Petitioners did not prove that the Plan Amendments fail to provide meaningful and predictable standards for the use and development of land and provide meaningful guidelines for the content of more detailed land development regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that Orange County Comprehensive Plan Amendments 2015-2-P-FLUE-1 and 2015-2-A-5-1, adopted by Ordinance 2016-17 on July 12, 2016, are not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 11th day of August, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2017.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Jefferson County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The DCA is charged with the responsibility of reviewing comprehensive growth management plans and amendments thereto. At issue in this case is a plan amendment adopted by the County. Petitioner, Jack Hamilton, is a resident of Jefferson County. He owns and operates a nursery, orchard and cattle operation on his property on the east side of Highway 19, approximately two miles north of Monticello, Florida. The land, which is approximately 135 acres in size, is presently designated in a land use category known as Agriculture 2. For the last twenty years or so, the Jefferson Nursing Center (JNC), a nursing home, has been situated on a seven acre parcel of land surrounded on three sides by petitioner's property. Here, petitioner challenges a plan amendment which allows nursing homes, including JNC, in the Agriculture 2 category. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus he has standing to bring this action. The nature of the dispute The County adopted its comprehensive plan (plan) on July 19, 1990. Through inadvertence, in the original plan, institutional uses such as churches, schools, nursing homes, parks and recreation areas were not specifically allowed as permitted uses in any residential or agriculture district even though such uses were commonly found in both types of districts. Even so, on an undisclosed date, the plan was determined by the DCA to be in compliance. On April 1, 1994, the County submitted to the DCA various amendments relating to a proposed petroleum pipeline project. During the course of preparing those amendments, the County became concerned for the status of all of the existing churches, nursing homes, schools, and other institutional uses in the County, because of their not being specifically mentioned in the plan. To avoid any question about the status of these uses and their treatment in the Land Development Code, which implements the plan, the County included an amendment to Future Land Use Element (FLUE) Policy 5-9 to provide for the adoption of land development regulations to permit all public land uses. On June 8, 1994, the DCA issued its Objections, Recommendations, and Comments (ORC) Report concerning the proposed public land uses amendment. Among other things, the DCA determined that the language in the amendment was too broad. In response to the ORC, on August 3, 1994, the County adopted revised Ordinance 94-10, which amended the comprehensive plan to add a Public Facilities Land Use District, adopt a Public Facilities Land Use Map, and adopt a List of Public Facilities. Under this amendment, only existing public uses were included within the district, and these were specifically identified on a series of maps and a List of Public Facilities, both of which were included as part of the plan amendment. On September 26, 1994, the DCA issued its Notice of Intent to find Ordinance No. 94-10 not in compliance with Chapter 163, Florida Statutes. This determination was based in part on the fact that the amendment did not sufficiently detail what land use regulations and restrictions would apply in the district. On March 28, 1995, the County submitted to the DCA for its review a proposed ordinance repealing Ordinance 94-10 and amending the County's comprehensive plan to add a Public Facilities Land Use Overlay District, adopt a Public Land Use Map, and adopt a List of Public Facilities. This proposed amendment provided that the current land use district designation, and all applicable regulations for that district, would continue to apply to lands included within the overlay district. It also provided standards for any future additions to the overlay district. On June 2, 1995, the DCA issued its ORC Report concerning the proposed Public Facilities Land Use Overlay District amendment in which it continued to object to the proposed district. In response to the ORC, and after consulting with the DCA, on July 20, 1995, the County adopted Ordinance No. 95-07. That ordinance repealed Ordinance No. 94-10 and amended the comprehensive plan to allow (a) churches in all land use categories except Conservation District and (b) adult care facilities, day care facilities, and nursing homes in any land use district that allows residential use. Ordinance No. 95-07 was not adopted pursuant to a compliance agreement. On September 7, 1995, the DCA issued its Notice of Intent to find Ordinance No. 95-07 in compliance. Petitioner timely filed his appeal of the DCA's determination that Ordinance No. 95-07 was in compliance. As amended, the petition contends that the plan amendment is not supported by adequate data and analysis, lacks standards pertaining to density and intensity of development for nursing homes, and is internally inconsistent with the plan. As such, he contends the amendment is arbitrary and capricious, and not fairly debatable. Although the issues in the case have been framed by petitioner in this manner, in simple terms his primary concern is that nursing homes, and specifically JNC, are incompatible with agricultural uses and do not belong in the Agricultural 2 land use category. The Plan Amendment Identification and adequacy of data and analysis When it forwarded Ordinance No. 95-07 to the DCA for review, the County did not specify in its transmittal letter what data and analyses it was relying on to support the amendment. In an earlier telephone conversation between the County planner and the DCA, however, the County indicated that it was relying on the existing data and analysis originally submitted with its comprehensive plan. The DCA established that this is not unusual and is an acceptable practice for smaller counties. Indeed, there is nothing in Chapter 9J-5, Florida Administrative Code, which requires that the identification of the supporting data and analysis be conveyed to the DCA in writing. Jefferson County is a small, rural county with only one person in its planning department. For counties with limited technical staff, the DCA normally provides technical support, and it customarily reviews the plan and existing data and analysis to identify those portions of the documents which are relevant to, and support, a plan amendment. Thus, in accordance with its practice for smaller counties, the DCA did not require the County to make a complete assessment of the plan and point out various page and reference numbers, but instead it performed that task. There was no showing that petitioner, or any other member of the public, was prejudiced in any respect by the DCA doing this. Besides the existing plan data and analysis, the DCA also had in its files the map and list specifically identifying each public use existing in the County and its location, including all churches, day care facilities, and nursing homes. The map and list were available at the public hearings which culminated in the adoption of Ordinance 95-07, and identified JNC within the Agriculture 2 district. Petitioner, who was a long-time member of the County Planning Commission, attended those hearings. There is no evidence that he, or any other member of the public, was unable to participate in the amendment process in a meaningful way. In determining the text amendments to be in compliance, the DCA relied upon certain data in the plan, including the existing population survey, soil survey and soil suitability data; a table comparing population composition showing the population existing and the need for elderly housing; the silviculture map as a factor in determining site suitability; the land use map showing the general overview of all land use types in the County; an analysis of the uses in the different land use categories; and a map plat showing petitioner's property, the location of the JNC, the proximity of two mixed-use business/residential areas to the north and south, and the residential densities in the area. The DCA also considered policies in the traffic circulation and transportation elements of the plan, a table of existing traffic conditions, existing housing data, an inventory of group homes, and special housing needs within the County, including housing for the elderly. Finally, the DCA considered Housing Element Policy 5-3 and Objective The policy provides that the County shall establish nondiscriminatory standards and criteria addressing the location of group homes and foster care facilities as well as other special needs housing. The objective calls for adequate sites for group homes and facilities in residential areas or other appropriate areas of residential character. Petitioner's expert concedes that nothing prohibits the County from adopting an amendment which allows nursing homes in an agricultural district so long as adequate data and analysis are present, and appropriate nonresidential intensity standards are found in the plan. Given the foregoing data and analysis, it is found that petitioner has failed to prove to the exclusion of fair debate that the plan amendment lacks adequate data and analysis. Compatibility of uses Petitioner has also contended that the plan amendment allows uses (nursing homes) which are incompatible with agricultural uses. In this regard, petitioner offered his lay opinion that nursing homes are incompatible with agriculture uses because in the event of a problem during normal agricultural operations, such as a shift in the wind direction during burning or crop spraying, bedridden nursing home patients cannot be easily transported out of harm's way. With appropriate site planning features, petitioner's expert agreed that nursing homes are not inherently incompatible with agricultural land uses. The Code contains such site design criteria which are designed to eliminate or minimize incompatibilities. For example, it contains provisions regarding setbacks, a site planning process, and screening and buffering requirements. The fact that petitioner's agricultural operation and JNC have coexisted for more than twenty years is some evidence that the uses are or can be compatible. The County's proposed amendment to allow adult care facilities, day care facilities and nursing homes in the Agriculture 2 land use category is not inconsistent with any other objective or policy, is found to be fairly debatable, and is therefore in compliance. Density and intensity standards The law (s.163.3177(6)(a), F.S.) requires that comprehensive plans contain density and intensity standards for each land use. Petitioner contends that, notwithstanding this statutory requirement, there are no standards in the amendment or the comprehensive plan for density or intensity of development of nursing homes in the Agriculture 2 land use category. It is noted that the Agriculture 2 land use district description in Policy 1-3 of the FLUE provides a residential density but does not contain an intensity standard. FLUE Objective 1 provides, however, that "(f)uture growth and development shall continue to be managed using the County Development Code," which was adopted in April 1981. That Code spells out densities and intensities for each area. The objective further directs that the regulations be revised to address issues identified in Section 163.3203, Florida Statutes, compatibility of uses, and incentives to upgrade infrastructure. In addition, FLUE Policy 6-2 provides that the development review and approval process in the Code be the vehicle for limiting densities and intensities of development consistent with the availability of infrastructure. This policy has already been determined to be "in compliance" with Chapter 163, Florida Statutes. Rule 9J-5.005(8)(j), Florida Administrative Code, authorizes a local government to include in its comprehensive plan documents adopted by reference but not incorporated verbatim into the plan. In this case, the County adopted in its Code specific land development regulations governing growth and development, including density and intensity standards. There was no evidence that the Code fails to meet the statutory requirement that densities and intensities be included in the plan. Indeed, as a general rule, comprehensive plans in Florida either specifically describe all of the particular uses allowed in each district, or they generally describe such uses and let the particular uses to be allowed be determined in land development regulations. Here, the County has opted for the second type. This being so, it is found that petitioner has failed to establish to the exclusion of fair debate that the plan and plan amendment lack appropriate standards governing densities and intensities.
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 the County plan amendment adopted by Ordinance No. 95-07 to be in compliance. DONE AND ENTERED this 17th day of October, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER 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 17th day of October, 1996. COPIES FURNISHED: James F. Murley, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Vance W. Kidder, Esquire 149 Carr Lane Tallahassee, Florida 32312-9032 Sherry A. Spiers, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 David La Croix, Esquire 521 West Olympia Avenue Punta Gorda, Florida 33950-4851
The Issue The issue in these cases is whether the Collier County (County) Comprehensive Plan amendments adopted through Collier County Ordinance Number 02-32 ("the Rural Fringe Amendments" or "the Amendments") on June 19, 2002, are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact Background The Amendments at issue in these cases arose from a specific historical background which is relevant to help put them in context. In 1997, the County adopted Evaluation and Appraisal Report-based plan amendments ("EAR-based amendments"). DCA found the EAR-based amendments not to be "in compliance." Following an administrative hearing in which FWF and Audubon intervened, the Administration Commission entered a final order agreeing with DCA's determination. Joint Exhibit J.3. The Administration Commission’s final order, entered on June 22, 1999, directed the County to take the following steps in order to bring its comprehensive plan amendments into compliance: (1) rescind those EAR-based amendments found not in compliance; (2) adopt certain specific "remedial" amendments; (3) initiate an assessment of the area of the County designated on the Future Land Use Map ("FLUM") as Agricultural/Rural; (4) adopt interim amendments to remain in force during the course of the assessment; and (5) no later than June 22, 2002, adopt those plan amendments needed to implement the findings and results of the assessment. Summary of Rural Fringe Amendments In response to the Administration Commission's final order on the EAR-based amendments, the County elected to divide its Agricultural/Rural-designated area into two subdistricts-- Rural Fringe and Eastern Lands--for purposes of the assessment and implementing plan amendments. The Rural Fringe subdistrict was designated as "the Rural Fringe Mixed Used District" (or "the Rural Fringe"). The Rural Fringe is described in the amendments as follows: The Rural Fringe Mixed Use District is identified on the Future Land Use Map. This District consists of approximately 93,600 acres, or 7% of Collier County's total land area. Significant portions of this District are adjacent to the Urban area or to the semi-rural, rapidly developing, large-lot North Golden Gate Estates platted lands. * * * The Rural Fringe Mixed Used District provides a transition between the Urban and Estates Designated lands and between the Urban and Agricultural/Rural and Conservation designated lands farther to the east. The Rural Fringe Mixed Use District employs a balanced approach, including both regulations and incentives, to protect natural resources and private property rights, providing for large areas of open space, and allowing, in designated areas, appropriate types, density and intensity of development. The Rural Fringe Mixed Use District allows for a mixture of urban and rural levels of service, including limited extension of central water and sewer, schools, recreational facilities, commercial uses and essential services deemed necessary to serve the residents of the District. In order to preserve existing natural resources, including habitat for listed species, to retain a rural, pastoral, or park-like appearance from the major public rights-of-way within this area, and to protect private property rights, the following innovative planning and development techniques are required and/or encouraged within the District. J.4 at 50. Under the Amendments, the Rural Fringe was divided into areas designated as Sending, Receiving, or Neutral on the FLUM.18 J.5. Some Sending Areas are also designated Natural Resource Protection Areas (NRPAs). Receiving Lands "are those lands within the Rural Fringe Mixed Use District that have been identified as most appropriate for development . . . ." J.4. at 51. These lands have been chosen because they "have a lesser degree of environmental or listed species habitat value than areas designated as Sending and generally have been disturbed through development, or previous or existing agricultural operations." Id. Approximately 25,000 acres are designated Receiving Lands. Receiving Lands "are also located to allow for the provision of central water and sewer and have excellent access to the County's arterial road network." J.11. at 2. The base density within Receiving Lands is one dwelling unit per five acres. However, through the purchase of development rights from Sending Lands through the Transfer of Development Rights (TDR) program established by the Amendments (discussed in Findings 72-91, infra), Receiving Lands may increase density up to one dwelling unit per acre. Additional density may be obtained if a development preserves more than the minimum required amount of native vegetation. Limited commercial, industrial, and earth-mining uses are also allowed in Receiving Lands. Receiving Lands may also be developed as "Rural Villages." The Amendments provide for the possibility of one rural village within each of the four distinct Receiving Areas in the Rural Fringe. The purpose of rural villages is described as follows: Rural Villages may be approved within the boundaries of the Rural Fringe Mixed Use District in order to: maximize the preservation of natural areas and wildlife habitat within the Rural Fringe Mixed Use District; to reduce the need for residents of the District and surrounding lands to travel to the County's Urban area for work, recreation, shopping, and education; and, to enhance the provision of limited urban and rural levels of service through economies of scale. J.4 at 62. The rural villages permitted in the Rural Fringe must consist of compact neighborhoods with nearby neighborhood or village centers. The neighborhood or village centers are to include retail and office uses; public parks, squares, or greens; civic and government uses; and service facilities. J.4 at 63. Specific provision also is made for open space in and surrounding the rural village. J.4 at 63-64. In addition to the one-village-per-district limitation, the amendments impose the following additional locational criteria on a rural village: (1) it must be at least three miles from any other rural village; (2) it must have direct access to an arterial or collector road, or the developer must bear the cost of a new collector road directly accessing the village; and (3) it must be near already- existing or planned public infrastructure, such as water and sewer facilities. J.4 at 63. In addition, a rural village may only be approved if shown to be fiscally neutral to taxpayers outside the village. J.4 at 65. Neutral Lands "have been identified for limited semi-rural residential development" at a maximum density of one dwelling unit per five acres. J.4. at 55. Limited commercial, industrial, and earth-mining uses are also allowed in Neutral Lands. Approximately 7,000 acres have been designated as Neutral Lands. Sending Lands are those lands "that have the highest degree of environmental value" and "are the principal target for preservation and conservation." J.4. at 58. The residential use of this land is restricted to one dwelling unit per parcel which existed before June 22, 1999, or one unit per 40 acres, whichever yields the greatest density. Nonresidential uses of Sending Land, other than agriculture, are quite limited. There also are specific criteria for the protection of site-specific native vegetation, wildlife habitat, and wetlands. J.4 at 58-62; J.6 at 24, 27, and 29-30. Some of the land designated Sending is also subject to regulation as NRPA. The purpose of a NRPA designation "is to protect endangered or potentially endangered species and to identify large connected intact and relatively unfragmented habitat, which may be important for these listed species." J.4 at 79. Designation as a NRPA also limits the intensity and density of development in an area (J.4 at 58-61) and imposes specific restrictions for the preservation of native vegetation, wildlife habitat, and wetlands (J.6 at 24, 27, and 29). The principal additional effect of NRPA designation is to increase the requirement for the retention of native vegetation. In addition to the changes to the Future Land Use Element (FLUE), the Amendments also affected the Coastal and Conservation Element (CCE), Potable Water Sub-Element, and Sanitary Sewer Sub-Element. Standing of Petitioners and Intervenors The evidence was that the Husseys and Brown own property in Collier County and submitted comments regarding the Rural Fringe Amendments between the transmittal hearing and the adoption hearing. The parties stipulated to the standing of FWF, Audubon, Vision & Faith, and Section 20 Investments. There also was evidence that FWF and Audubon submitted comments regarding the Rural Fringe Amendments at both the transmittal hearing and the adoption hearing and that, at least as of June 14, 2000, they owned property or operated a business in Collier County and had members who reside in Collier County. Century is a for-profit corporation that has its principal place of business in Collier County. Century owns 12.5 acres of land in Collier County. According to the testimony of Donald Lester, President of both Century and Waterford Management, Inc., Century is a wholly-owned subsidiary of Century Holdings, a limited partnership. Waterford is Century Holdings' general partner. Waterford, Century, and approximately 300 other entities are limited partners of Century Holdings. All of these entities and the land they own are managed by Waterford. According to Lester, the various Waterford-managed entities are involved in real estate development and have spent $42 million (over $30 million in "land basis" and $7-8 million on professional fees and expenses) acquiring land for development in Collier County, including approximately $36 million for approximately 3,500 acres in North Belle Meade (NBM) in the Rural Fringe and approximately $6 million for another approximately 2,000 acres farther east in Collier County. There was no evidence that these lands have obtained any master development approval or are otherwise vested for development. Coalition is a not-for-profit corporation having its principal place of business in Collier County. Lester is its Executive Director. There was no evidence that Coalition itself owns property or conducts any type of business activity in Collier County, other than commenting on the Rural Fringe Amendments and participating in these administrative proceedings. Coalition is comprised of approximately 2,000 members. Of these members, approximately 300 are the various entities making up the Century Holdings partnership and managed by Waterford. A total of approximately 320-350 Coalition members own property approximately 3,500 acres in NBM; there was no evidence that the other approximately 1,650 members own property or conduct business in Collier County. An unspecified number of members own approximately 2,000 acres to the east of NBM in Collier County. According to Lester, some members voluntarily donate money to the Coalition; others have "been supporting the proceedings" in some unspecified manner. Lester testified at final hearing that he commented on the Rural Fringe Amendments on behalf of both Century and Coalition during the adoption hearing. He indicated that he filled out and submitted a "speaker card" in order to give his comments and that the card indicated that he was speaking on behalf of both Coalition and Century; but the card was not placed in evidence. The only other evidence on the subject consisted of the transcript of that hearing, which records Lester's introductory statement as follows: "I represent a director of 15,000 coalition. I represent landowners that own property within the TDR area." The transcript also reflects that Robert Diffenderfer commented and stated: "I represent the 15,000 coalition and literally thousands of individuals. . . . On behalf of coalition and the individuals, I have the list here. There are 4,000 plus of them." While the list was not placed in evidence, it can be inferred from Lester's testimony that it would have included Century and the other Coalition members owning land in Collier County. Petitioners' Challenges Petitioners' challenges to the Rural Fringe Amendments were narrowed during the course of this proceeding and now are essentially: (1) whether the County's delineation of Sending and Receiving Lands, especially within the NBM portion of the Rural Fringe, is based upon and reacts appropriately to the best available data19; and (2) whether the TDR Program is based upon and reacts appropriately to the best available data, in particular as to the feasibility of its operation.20 Delineation of Sending and Receiving Lands A. Data and Analysis The process of delineating Sending and Receiving Lands in the Rural Fringe was involved and complex. The County accumulated and considered a wide range of data in the process. Among the data sources used were: (1) the South Florida Water Management District's (SFWMD's) 1994/1995 Land Use/Land Cover map; (2) Natural Resources Conservation Service ("NRCS") soils survey data; (3) soils tables prepared by Florida soils scientist, Howard Yamataki; (4) the National Wetlands Inventory; (5) true-color aerial photographs provided by the County property appraiser's office; (6) the updated FWCC's "Closing the Gaps" Report; (7) FWCC's updated wildlife and wildlife habitat data, including its Florida panther and Florida black bear telemetry data and red-cockaded woodpecker colony data, as well as its updated strategic habitat data and Strategic Habitat Conservation Area (SHCA) maps; and (8) the 1999 U.S. Fish and Wildlife Service (USFWS) Multi- Species/Ecosystem Recovery Implementation Team (MERIT) data for South Florida, in particular pertaining to the Florida panther. The County also actively solicited updated data from property owners and other members of the public. These opportunities for public input included numerous publicly- noticed meetings and hearings before the Rural Fringe Advisory Committee (52 to 53 meetings), the Environmental Advisory Committee, the Planning Commission, and the Board of County Commissioners. At all of these meetings, the public was invited to submit information to the County. On two occasions, notification was mailed to each property owner in the Rural Fringe, alerting them of the County's consideration of the amendments and inviting their input. The County posted signs on the two main roads entering the Rural Fringe, notifying the public of the on-going evaluation of the Rural Fringe and providing a contact name and telephone number for those wanting further information. The County also solicited information from the public via the County web page. Members of the public did submit information, some of which resulted in adjustments to the designations ultimately adopted. For example, the County received data from both Audubon and the Collier County School Board regarding red-cockaded woodpecker (RCW) habitat in the northeast corner of NBM. Similarly, Brown submitted information regarding some of his land holdings in NBM that was used in the ultimate delineation of boundaries between Receiving and Sending. The Husseys also submitted data that was considered. While all information submitted by the public was considered, not all resulted in a change in designation. For example, the County received information regarding jurisdictional wetland determinations on four separate properties and reviewed that information in order to determine whether there was a consistent correlation between jurisdictional determinations and the wetlands land cover information obtained from SFWMD. No consistent correlation was found. In two instances, the jurisdictional wetlands were larger than the area shown as wetlands land cover; in the other two, they were smaller. Despite ample opportunity, the only information submitted to the County by the Husseys was a limerock mining exploration contract on some of their property; Coalition and Century did not make any information available to the County between the transmittal and adoption hearings.21 In its analysis of the data, the County recognized that they were collected during different time periods, ranging from the 1980s through 2001. The soils data from NRCS, for example, was developed in the early 1990's from Landsat satellite imagery from 1985-1989, while the panther telemetry data reflected field data through the end of 2001. SFWMD's data was generated based upon false color infrared aerial photography and reflected changes in land cover through 1995.22 At the time of adoption of the Amendments on June 19, 2002, SFWMD's land use/land cover data was the most recent publicly-available depiction of land uses and land cover in the Rural Fringe.23 Petitioners take the position that the NRCS Soils Survey data was the most accurate data available because it was "ground-truthed." But the NRCS data did not depict land use cover; and it was not proven that the NRCS data accurately and reliably depicted vegetative cover.24 Petitioners also criticized the County for not "ground-truthing" the SFWMD data despite having knowledge of inaccuracies in its depiction of jurisdictional wetlands. But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, "ground-truthing" would have required the collection of additional data, as Petitioners' own expert conceded. See Conclusion 105, infra. The Husseys also argued in their PRO that the NRCS soils survey data should have been used instead of the SFWMD land use and cover data to delineate wetlands because it was "ground-truthed." But even if it were the County's intention to delineate Sending Lands based on the presence of jurisdictional wetlands, the NRCS data does not purport to identify jurisdictional wetlands and should not be used as a proxy for the presence of jurisdictional wetlands due to drainage activities, particularly in NBM. The Husseys had a Lower Tamiami (Aquifer) Recharge/ Discharge map and a map of the County's Wellfield Protection Zones admitted in evidence and argued in their PRO that the County failed to consider these data in delineating Sending Lands and Receiving Lands. To the contrary, the only evidence was that these maps were considered by the County's environmental specialists. Moreover, there was no evidence that these data were in any way inconsistent with the delineation of Sending and Receiving Lands in the Rural Fringe. Having accepted the SFWMD land cover data as the most accurate indicator of land cover and land uses, the County "updated" Gaps Report maps of biodiversity hotspot areas (which were based upon 1980 satellite imaging) by removing areas shown on the more current SFWMD maps to have been cleared for agriculture by 1995 or 1996. Petitioners contended that "updating" the data in this manner made resulting data and analysis inaccurate and misleading by "masking" natural resource information. But those maps were intended to depict features on parts of the Rural Fringe not mapped as agricultural land use cover on SFWMD's land use cover maps. As such, these "updates" reflected the County’s reasonable determination that, while lands cleared for agricultural use can retain natural resource value, they generally have lower environmental and habitat value than uncleared wetland and forest. No evidence suggested that this judgment was unreasonable. The County's analysis resulted in sensible planning decisions that generally afforded undeveloped wetland or forested areas a higher level of protection than land that has been disturbed through agricultural clearing. Petitioners initially seemed to contend that the County failed to take into account changes in hydrology and wetland vegetative cover in NBM as a result of drainage canals and similar alterations. As the hearing progressed, however, it became clear that from the evidence that the County was aware of the changes in hydrology and vegetative cover in NBM and took those changes into account in its planning decisions. The best data and analysis available as of June 19, 2002, showed that NBM is utilized by both the Florida black bear and the Florida panther. The data and analysis indicate that both of these species make more use of areas to the east (the Florida Panther National Wildlife Refuge and largely undeveloped portions of Northern Golden Gates Estates) and south (the (South) Belle Meade NRPA and largely undeveloped portions of Southern Golden Gates Estates). However, both panther and black bear access NBM from those areas by crossing Everglades Boulevard to the east and Interstate 75 to the south. A significant population of black bear uses NBM. FWCC lists the Florida black bear as a threatened species. Areas mapped by FWCC as strategic habitat statewide would support approximately five populations of approximately 200 individual black bears. (By comparison, FWCC ideally would like to maintain enough strategic habitat to support ten populations of 200 individuals, in part to reduce adverse impacts from natural disasters and genetic problems from inbreeding.) FWCC lists the Florida panther as an endangered species. It is one of the most endangered large mammals in the United States. Only approximately 80 to perhaps 100 panthers are thought to exist in the wild, all in south Florida. The Florida panther faces extinction unless "aggressive action" is taken for its protection. Panthers require large areas of habitat to survive in the wild. Depending on habitat quality, individual males require a home range of 100-150, 200-250, or even as much as 400 square miles; females have a smaller home range of approximately 50-70 square miles. Notwithstanding its general goal of maintaining ten populations of 200 individuals, FWCC's realistic goal for the Florida panther is to maintain current panther habitat and population. The (South) Belle Meade NRPA is considered Priority 1 Panther Habitat by FWCC. Other Priority 1 and Priority 2 Panther Habitat exists farther to the southeast and east. While NBM is not as good for panther habitat, radio telemetry data show that panthers also use NBM. Telemetry data show that panther use of NBM has increased in the last ten years. This could be due in part to the introduction of a female Texas cougar as part of FWCC's breeding program. NBM is currently within the home range of at least one male Florida panther and the introduced female Texas cougar. (Other use is possible, as only about a third of the animals in the population are collared for telemetry.) The female denned and gave birth to three kittens in NBM in 1998. It is possible that panthers frequented NBM in the late 1990's in part because a ranch lessee on Brown property in Section 21 was operating a deer-feeding station there. Panther telemetry data seem to have decreased after Brown required his lessee to cease those operations. However, while panther may have returned to those feeding stations because of the deer being attracted, they first had to have been in the area to become aware of the deer being attracted. This indicates some panther use of NBM prior to establishment of the feeding station. FWCC and United States Fish and Wildlife Service data also indicated to the County that red-cockaded woodpecker (RCW) colonies existed in the old-growth forest areas that remain in the western part of NBM, nesting in cavities in these trees. There also were data that FWCC considered these lands to be RCW strategic habitat. To nest, RCWs need old-growth cavity trees in an area not overgrown with new growth. While there were data that drainage of land in NBM in the RCW strategic habitat area has resulted in invasion of melaleuca (a nuisance exotic species), RCW can continue to use the habitat and forage in and around the melaleuca unless the melaleuca blocks off the cavity tree. There were no data that RCW no longer use NBM due to melaleuca infestation. Much of the now-urbanized areas of Collier County once provided RCW habitat, but development has impaired the value of that land for RCW nesting and foraging. As with panther habitat, traditional RCW habitat has diminished under the current regulatory scheme, and additional protection is needed. The non-NRPA Sending Land in the western part of NBM is the last remaining viable RCW habitat that is not already in conservation status. In gathering and using data in the development of the Rural Fringe Amendments, the County was supported by various state agencies that informally reviewed and commented on the amendments. These agencies supported Collier's approach to the designation of Sending and Receiving Lands. It is found that the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data. Sending and Receiving Delineations in General Petitioners were most critical of the County's alleged exclusive use of the SFWMD vegetative and land use cover maps to delineate Sending Lands based on the presence of jurisdictional wetlands. But the evidence was clear that the County had no intention of designating Sending Lands solely on the basis of the presence of wetlands. See J.15 at 4 (identifying percentages of wetlands in each category, and showing that the County recognized there were wetlands in Receiving Lands and non-wetlands in Sending Lands). Petitioners' characterization of the County's effort was a gross oversimplification. It also was clear from the evidence that the County did not restrict its data and analysis to the SFWMD maps. Petitioners contended that the County ignored the actual boundary of natural features, such as wetlands, in delineating the boundaries of Sending and Receiving Lands. Instead, for planning purposes, the County attempted to delineate reasonably large, contiguous areas as Sending and Receiving Lands, rather than creating a "Swiss cheese pattern" of intermixed Sending and Receiving Lands, designating isolated pockets of Sending within a large Receiving Area, and vice versa. This made sense from a planning perspective, for a number of reasons, including: (1) it permitted concentration of infrastructure, reducing infrastructure costs; (2) it allowed greater opportunity for the protection of environmentally sensitive lands; (3) large, contiguous areas of habitat are necessary to support a viable population for some of the endangered species present in Collier County-- Florida panther, in particular; and (4) it prevented urban sprawl (in part because sufficient acreage must be available in order for higher density development feasible.) In some instances, the County chose to delineate the boundary between Sending and Receiving Lands with a straight, easily-defined line, rather than using the edge of some feature such as vegetative cover. This also made sense from a planning perspective. A straight boundary, such as a section line, is easier to administer and more easily communicated to the public than a natural feature like vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that, as a result of the combined effect of its planning approach, Sending Lands would include some areas neither particularly environmentally sensitive nor--apart from the land surrounding it--valuable habitat. Conversely, some relatively environmentally- sensitive lands would fall within a Receiving Land designation; however, it also recognized that these lands would remain subject to site-specific criteria imposed both by the County's Comprehensive Plan (e.g., amended CCE Policy 6.1.2 criteria for preservation of native vegetation and amended CCE Policy 6.2.3 criteria for protection of wetlands25) and by state and federal regulatory programs. It was not shown that these planning decisions lacked merit; at the very least, their merit is fairly debatable. NBM Delineations Distilled to its essence, the testimony of the natural resource experts called by Petitioners argued that the natural resource data and analysis available at the time of adoption did not justify distinguishing Sending, Receiving, and Neutral Lands in NBM. In other words, their position was that measures for protection of practically the entire NBM would be an appropriate response to the data and analysis on wetland and forest cover and habitat value for Florida panther, Florida black bear habitat, and RCW. But it also is at least fairly debatable that the County's inclusion of Receiving and Neutral Lands in NBM was an appropriate response to the totality of the data and analysis. The Rural Fringe Amendments themselves include the County's rationale for the North Belle Meade (NBM) Receiving designations. The Receiving Areas are generally located in the northern portion of NBM [North Belle Meade] Overlay and are generally contiguous to Golden Gate Estates. Two sections are directly to the south of the APAC Earth Mining Operation. The Receiving Area exhibits areas of less environmental sensitivity than other portions of the NBM Overlay, because of their proximity to Golden Gate Estates and prior clearing and disturbance to the land. Within the Receiving Area of the NBM Overlay, are located Sections 21, 28 and the west 1/4 of Sections 22 and 27, which have been largely assembled under one property ownership. These lands are located south of the existing APAC earth mining operation and have been largely impacted by agricultural operations. The location of Sections 21 and 28 is just to the south and west of Wilson Boulevard located in the southern portion of north Golden Gate Estates. Because an earth mining operation and asphalt plant uses have existed for many years in the area, and the surrounding lands in Sections 21, 28 and the western halves of Sections 22 and 27 are reported to contain Florida Department of Transportation grade rock for road construction, these uses are encouraged to remain and expand. J.4 at 76-77. Section 20 (just west of Section 21) also was designated as Receiving. The southwestern corner of NBM, consisting of Sections 26 (Range 2626), 29, 30, 31, and 32, and the eastern half of Section 36 (Range 26) was designated as non-NRPA Sending, along with the southern halves of Sections 13 and 14 in the northeast corner. The southeastern corner (consisting of the eastern 3/4 of Sections 22 and 27, along with Sections 23, 24, 25, 26, 34, 35, and 36) was designated as NRPA Sending. The northwest corner (Section 24, Range 26) was designated Neutral, as was the northern halves of Sections 13 and 14 in the northeast corner. The 15,552 acres in NBM are surrounded on the south by the South Belle Meade (SBM) NRPA across Interstate 75; on the east by largely undeveloped portions of Northern Golden Gate Estates (NGGE); on the north by a more developed portion of NGGE; and on the west by Urban Fringe future land use, which is sandwiched between NBM and more densely developed urban land use to the west. NGGE is the fastest-growing area of the County. It is part of a proposed sprawling, essentially single-use residential development. To date most actual development in NGGE has occurred in the western part of it, closer to more urban uses, and along Golden Gate Boulevard, which is the main east-west road in NGGE. Because the western part of NBM does not extend as far north as the eastern part, it is farther away from Golden Gate Boulevard and its development than the eastern part of NBM. In NBM, the SFWMD data showed practically all wetland cover with some upland forest interspersed in the six sections making up the southeast corner of NBM, as well as the next section to the southwest (Section 34). The section of land immediately to the north of Section 34 (Section 27) showed up as wetland cover over approximately the eastern half and agricultural use over approximately the western half of the section. The section north of 27 (Section 22) showed up as mostly wetland cover with some agricultural use in the northwest corner and some forested upland in the northeast corner. To the north of Section 22 was a section (number 15) with a mix of urban use, agriculture, wetland, and forested upland cover. Proceeding to the east, Section 14 showed up as mostly forested upland, and Section 13 in the northeast corner with mostly wetland cover with some agriculture. The opposite (far western) side of NBM was shown to have approximately eight sections of land with predominately forest land use cover, interspersed with some wetland and agricultural use. Down the center of NBM are four sections shown by the SFWMD data to have, from north to south: (1) predominately, earth mines and mine pit lakes (Section 16); (2) predominately agriculture (Section 21); (3) a mix of agricultural, forested upland, and wetland cover (Section 28); and (4) approximately half forested (the southwest half) and half wetland cover (the northeast half) (Section 33). Of importance for planning purpose, Wilson Boulevard intersects Golden Gate Boulevard and extends south to the edge of NBM at a point approximately 500 feet west of the northeast corner of Section 16. There are plans to extend Wilson Boulevard south into NBM 500 feet west of the eastern boundaries of Sections 16, 21, 28, and 33. Co-location of infrastructure within the right-of-way of the Wilson Boulevard extension would make sense from a planning standpoint. Allowing development to proceed elsewhere in NBM would exacerbate urban sprawl. It also would be possible to locate rural village North Belle Meade near the proposed Wilson Boulevard extension so that public infrastructure could be provided to both the rural village and the existing residents of NGGE. While Section 20 includes both cleared and uncleared areas, it abuts NGGE on the north and west and other Receiving Land on the east. For that reason, the County considered it to be appropriate for future development. Section 28 also includes a "mixed bag" of habitat features and agriculture. However, the remaining forested areas are less valuable as habitat because they are surrounded by agriculture. In addition, prior to the date of adoption, an application had been filed to allow mining in Sections 20 and 28, as well as in Sections 21 and 27. The permit authorizing this mining was issued in December 2002. Once land is disturbed by mining, it loses its value as panther habitat. Taking all of these factors into consideration, the County judged Section 28 to be more appropriately designated as Receiving. The designation of the western quarters of Sections 22 and 27 as Receiving resulted both from the mixture of disturbed and undisturbed property in those areas and from their location in relation to the planned extension of Wilson Boulevard. This proximity to a planned, future transportation corridor was an important factor in identifying areas appropriate for development. Initially, all of the western part of NBM was to be designated as non-NRPA Sending Lands because of the RCW data. But the County School Board and Audubon furnished additional data pertaining to the extreme northwest section (Section 24, Range 26), which resulted in the ultimate designation of the land as Neutral. Even apart from any environmental or habitat distinctions, there are other valid land use planning reasons for the County's Receiving designations. The proximity of the NBM Receiving Lands to the most populous portion of NGGE makes them appropriate for future, mixed-use development. (In contrast, the part of NGGE near the NBM NRPA is not as densely developed and is not growing as fast as the part immediately north of the NBM Receiving Area.) Since NGGE is a large, single-use residential development, residents are currently required to travel great distances for commercial and other services. By encouraging more compact, mixed-use development in the part of NBM immediately adjacent to the most populous part of NGGE, the County hopes to address this dearth of ancillary, commercial, and institutional uses for the present residents of NGGE, as well as the future residents of NBM. In addition, the NBM Receiving Area is located so as to facilitate an extension of sewer and water service along Golden Gate Boulevard and, from there, into NBM. Recognizing that, with updated data, some of these delineations may need adjustment, the County made specific provision in the amendments for owners of Sending and Neutral Lands to submit additional data in support of a change in designation. J.4 at 61. In summary, it is found that the County's delineations of Sending and Receiving Lands in the Rural Fringe, and in NBM in particular, were based on data and analysis--i.e., they reacted appropriately to the extensive data available to the County on the date of adoption--and accomplish the County's objectives, including protection of environmentally sensitive land and habitat, control of urban sprawl, and successful implementation of the TDR program, which required maintenance of an adequate ratio between Sending and Receiving Lands. See Findings 72-91, infra. At the very least, the delineations are fairly debatable; and the contentions of Coalition, Century, and the Husseys to the contrary are rejected. TDR Program The County recognized that the additional restrictions on much of the property within areas designated as Sending may have an effect on property values. As a consequence, the County included a transfer of development rights ("TDR") program in the Rural Fringe Amendments. The Amendments describe the purpose of the TDR program as follows: The primary purpose of the TDR process within the Rural Fringe Mixed Use District is to establish an equitable method of protecting and conserving the most valuable environmental lands, including large connected wetlands systems and significant areas of habitat for listed species, while allowing property owners of such lands to recoup lost value and development potential through an economically viable process of transferring such rights to other more suitable lands. Within the Rural Fringe Mixed Use District and within designated areas of the Agricultural/Rural Mixed Use District, residential density may be transferred from lands designated as Sending Lands to lands designated as Receiving on the Future Land Use Map, subject to [certain expressly delineated criteria] . . . . J.4 at 50-51. The County's TDR program is an innovative land planning technique that is intended to enhance the protection of environmentally sensitive areas, provide for cost-efficient delivery of public facilities and services, and prevent urban sprawl. J.4 at 50. It is designed to give property owners an incentive to protect their property from development while receiving a return in value through the sale of development rights. In so doing, it also serves as a land management technique to direct development from areas where it is not desired, while preserving the value of that area. TDR programs balance the protection of areas incompatible with development with the preservation of private property rights. They are also recognized as a development tool for overcoming urban sprawl. Through the TDR Program, the owners of Receiving- designated property may increase the allowable residential density on their property by purchasing or otherwise obtaining development credits transferred from property designated as Sending. Forty acres of property in Sending--while assigned an allowable density of only one residential unit--is worth eight development credits (one credit for each five acres). J.4 at 58. The specifics of the TDR program, including the process for the "sale" of development rights and the tracking of these transactions, are to be established by the County in its Land Development Regulations (LDRs) within one year. The specific dollar value of a TDR credit will ultimately be decided by the marketplace. Based on a study of land sales in Collier County, the County's expert, Dr. James Nicholas, concluded that a single credit would probably be worth approximately $18,500. Dr. Henry Fishkind, the expert called by Coalition and Century, agreed that this figure is supported by sales data in the area. For example, a property owner with 40 acres in a Sending area could build one residence on that property, or he could sell eight TDR credits to someone who plans to develop a more compact development in a Receiving Area. J.4 at 58-59. If the Sending Land owner elects the latter, he retains ownership of his property and may still utilize it for certain specifically identified purposes, including agriculture, passive parks, passive recreational uses, certain essential services, and oil extraction. J.4 at 60-61. A property owner with 40 acres in a Receiving area could build eight residences on that property without purchasing any development credits, or he could purchase 32 TDR credits and build 40 residences. Once he has obtained enough TDR credits to achieve this one-to-one density, he could further increase his residential density slightly by preserving more than the minimum required native vegetation on site. J.4 at 51. Dr. Nicholas warned that an excess supply of TDR credits, relative to the amount of Receiving Land available to receive those credits, would undermine the success of the TDR program. The ratio of Receiving Land to Sending Land is critical. Dr. Nicholas prefers a ratio of at least two acres of Receiving Land to each acre of Sending. This ratio is not achieved within the Rural Fringe. Rather, the ratio is approximately 1:1 (25,729 acres of Receiving to 23,720 acres of Sending). See J.15 at 4 (which lists the acreages within each category). Taking into consideration Sending Lands that are already developed, Dr. Nicholas testified that approximately 4,100 TDR credits would be generated from the Sending Lands. Approximately 6,100 credits could be absorbed in the Receiving areas, where densities of up to one unit per acre--an increase of four additional units--can be achieved through a purchase of TDR credits. J.4 at 51. In order to bolster the demand for TDR credits, the Rural Fringe Amendments include a number of other additional markets for credits. First, the amendments provide for a limited transfer of TDR credits outside of the Rural Fringe for two purposes: (1) in-fill in the Urban Area on parcels of 20 acres or less; and (2) transfer from areas within one mile of the Urban boundary into lands designated Urban Residential Fringe. J.4 at 34-35. These two options will create a market for approximately 1,000 additional TDR credits (250 as urban in-fill and 750 in the urban fringe.) In addition, the Amendments provide a market for TDR credits for the development of rural villages. See Findings 11-13, supra, for description of rural villages. Rural villages must be at least 300 acres in size, up to a maximum of 1,500 acres, with the exception that a rural village located south of the (South) Belle Meade NRPA, which is south of Interstate 75, may be as large as 2,500 acres. The minimum and maximum gross densities for a rural village outside NBM are two units per acre and three units per acre, respectively. J.4 at 63. Thus, a rural village outside NBM must include at least 600 residential units, but could have as many as 4,500 or 7,500, depending upon its location. For each TDR credit purchased for the development of a rural village, the purchaser receives one bonus, up to the minimum required density, and the minimum density can only be achieved through the combination of base density, TDR credits, and TDR bonuses. J.4 at 64. Additional density--up to the maximum of three units per acre--can be achieved through the purchase of more TDR credits, through the preservation of more native vegetation on site than the minimum required, and/or through the inclusion of affordable housing. J.4 at 64. Consequently, for a rural village of 1,500 acres outside NBM, the developer would need to build at least 3,000 dwellings (2 units per acre). Assuming that the rural village is surrounded by a 800-acre greenbelt,27 it would start with a base density of 460 units28 and would need to purchase 1,270 TDR credits in order to achieve his minimum density of two units per acre. The provisions applicable to the one rural village permitted in NBM differ slightly. There, the minimum gross density is 1.5 units per acre, of which at least 0.5 units per acre must be obtained through the purchase of TDRs. J.4 at Assuming the same 1,500-acre development with an 800-acre greenbelt as described above, the developer would need to acquire 1,790 units more than would be available through the combined base densities of the village itself and the greenbelt in order to achieve minimum density.29 Of these additional units, 750 would have to be obtained through the purchase of TDR credits. Recognizing that there will probably be no more than two or three rural villages developed, Dr. Nicholas estimated that rural villages will absorb between 4,000 and 7,500 TDR credits, with the greater probability that the absorption rate will be closer to the lower number. Thus, in combination with the other markets for TDR credits created by the amendments, Dr. Nicholas estimated that there will be a demand for approximately 11,100 credits, resulting in a more acceptable ratio of just under three units of demand to one unit of supply. In their PRO, the Husseys attempted to raise the specter that the Amendments create too large a market for TDR credits so as to trigger Dr. Nicholas' concerns that, in that situation, potential transfers would be frustrated because TDR prices would rise to levels making their use infeasible for potential users, including developers of rural villages. But the Husseys based their concerns on maximum potential absorption of TDR credits, raising the supposed ratio of TDR buyers to sellers to 7-to-1 (or even 8-to-1 by disregarding the Urban Fringe one-mile limitation described in Finding 82, supra). The greater weight of the evidence was that the realistic market for TDR credits will be much smaller than the maximum potential absorption rates. Taking the realistic market into account, the probable actual absorption ratio is not much more than 2-to-1, which is ideal according to Dr. Nicholas. It also should be noted that the Husseys' arguments run counter to the testimony of their own expert on the subject. Dr. Fishkind agreed with Dr. Nicholas that there will be a functioning market for TDR credits generated from the Sending Areas, that the County’s TDR program is economically feasible, and that the County has the capacity to administer it. In addition, the Amendments include specific provisions requiring the County to establish a process for evaluating the TDR program. J.4 at 62. The purpose of such monitoring will be to assess whether revisions, such as the addition of either more Sending or Receiving Land or a change in the value of TDR credits, are necessary to ensure the success of the program. In concept, the success of the TDR program in achieving the objectives of directing development away from some areas and toward others, while preserving value in the former, is at least fairly debatable. The program's actual success in achieving these objectives initially hinges upon whether the County has appropriately designated Receiving and Sending Lands. If necessary, changes can be made to improve the program and increase its chances of success.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the Collier County's Rural Fringe Amendments to be "in compliance." DONE AND ENTERED this 29th day of April, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2003.
The Issue The issue in this case is whether it should be determined that the Highlands County Comprehensive Plan, as amended, was in compliance with Chapter 163, Fla. Stat. (1993), as of the adoption of the County Ordinance 94-1 on March 2, 1994.
Findings Of Fact Adoption History Highlands County adopted its first Comprehensive Plan with a land use map in 1991. The Department of Community Affairs (the DCA or Department) took the position that the initial comprehensive plan was not in compliance. On September 15, 1993, the County adopted an amended comprehensive plan. (County Exhibit 6) The DCA took the position that the amended comprehensive plan, in particular its natural resources element, did not adequately protect areas of important plant and animal habitat from agricultural land uses. (County Exhibit 8). Highlands County adopted remedial amendments on March 2, 1994. (County Exhibit 9) On March 16, 1994, DCA published a Cumulative Notice of Intent to find the Highlands County Comprehensive Plan and Remedial Comprehensive Plan Amendments in compliance. (County Exhibit 13) The Petition for Administrative Hearing by Heartland Environmental Council, Inc. (HEC) was filed on or about April 6, 1994. The HEC Petition was signed by Kris Delaney, as its president. The parties' Prehearing Stipulation filed on October 17, 1994, eliminated several of the issues initially raised in the HEC Petition. The Lake Wales Ridge Highlands County is special because of the presence of a feature known as the Lake Wales Ridge, which is only between five and 14 miles wide but stretches for about 100 miles in a north-south orientation through the County. Most of the Ridge is contained within Highlands County, but smaller portions extend into neighboring counties. The Lake Wales Ridge had its beginnings when the sea covered much of what is now the Florida peninsula. A paleo beach and dune system was formed at the edge between the sea and the Ridge. When the waters receded, it left behind a ridge of relatively high ground characterized by generally coarse sands. These sands, which began as beach sand, have been weathered for millions of years, rendering them very sterile and low in nutrients. Water passes very quickly through these sands, making the soil and environment resemble those occurring in much drier places. Although created through the same processes, the Ridge contains many different unique and specialized habitats. Because of these habitats, the Ridge is a national "hot spot" for endemism. This means that many different species of organisms occur in this relatively small area; many of these species occur exclusively or primarily on the Ridge. At least two dozen plant species are found exclusively or primarily on the Ridge, and it is believed that many species have yet to be discovered. In more recent times, the high and dry Ridge also has attracted a disproportionate share of the residential, commercial and agricultural development in the County. Development pressures have conflicted with the habitat needs for the survival of many of the plant and animal species that occurred on the Ridge. Urban and citrus development tend to obliterate habitat; they also compete for available water supply. In addition, as the Ridge has developed, the natural fires that served an important role in maintaining the special habitats of the Ridge were suppressed. More recently, although man has come to understand the importance of fire to these habitats and the species that thrive in them, the increasing presence of man's development has made fire management more problematic and, in some cases, impossible. With more and more development, the habitats of the Ridge with their many endemic plant and animal species have come under increasing pressure. The most widespread kind of natural habitat on the Ridge is called scrub. Scrub consists mainly of scrub oak and shrubs adapted to dry, low nutrient conditions. Scrub contains a disproportionate share of the threatened and endangered plant and animal species on the Ridge. These include the Florida scrub jay, the gopher tortoise, the sand skink, the scrub lizard and the Florida mouse. Natural scrub habitat is rapidly disappearing from the Ridge. By 1981, about 64 percent of the scrub on the southern Ridge had been severely altered. Along the central Ridge, losses were even greater--about 74 percent. By 1991, losses were estimated to be approximately 70 to 90 percent. Sandhill is the rarest natural community in the County. It is the historic high pineland community dominated by long leaf pines. (A vegetative community known as southern sandhill is not dominated by long leaf pines and is not true sandhill; it actually is a type of scrub.) Only about one percent of the original true sandhill still existed as of March, 1994. Although altered by fragmentation and fire suppression, the remaining sandhill still supports several important endemic plant and animal species, such as the gopher tortoise, Sherman's fox squirrel, and a plant called the clasping warea. A type of natural habitat unique to Highlands County portion of the Ridge is cutthroat seep. Cutthroat seeps occur where groundwater near and at surface elevation flows rapidly through areas usually adjacent to true wetlands, keeping the area wet but not ponded. These areas are dominated by cutthoat grasses, which require periodic burning to maintain their dominance. Drainage related to development lowers the water table and otherwise interrupts the needed lateral flow of water, allowing the invasion of woody species. In addition, development makes fire management more problematic and, in some cases, impossible. The most effective protection of cutthroat seep requires preservation of relatively large parcels, approximately ten acres or more. Smaller parcels are harder to fire manage. In addition, smaller parcels could be subjected to inadvertent hydrologic interruption from nearby development. There are about 18 plant species that occur only on the Ridge. Forty plant species occur only in Florida scrub and occur on the Ridge. Twenty-two plants on the Ridge are federally listed as either endangered or threatened. The Florida scrub jay is a federally listed endangered species that occurs only in peninsular Florida. The scrub jay also serves as an indicator species--management for scrub jay habitat will meet the habitat requirements of most other species that occur in scrub habitat. Scrub jays require the presence of scrub oak, as well as bare ground and low growing scrub. Periodic fire is necessary to maintain this mix. Scrub jays are very territorial. The tend to stay on one specific site. Scrub jays are monogamous, pairing to breed for life. Juveniles help feed and protect younger birds before dispersing to find a territory of their own. Dispersal distance typically is less than a mile. Each family group occupies a relatively large area--approximately 25 acres. Large sites are necessary to maintain a viable scrub jay population. Population viability models indicate that 150-200 individuals are needed for a population to persist for 200 years. Using this standard, fewer than ten potentially secure populations of scrub jay exist. It is believed that as much as 750 acres of scrub oak may be required to give a such a population a 90 percent chance of survival for 100 years. Development destroys scrub jay habitat. In addition, nearby development not only makes fire management difficult, if not impossible, it increases scrub jay mortality from feral cats and dogs and from motor vehicles. In the Base Documents supporting the Highlands County Plan, as amended, the County recognized the unique and sensitive natural resource represented by the Lake Wales Ridge. The Base Documents acknowledged that, before the comprehensive plan was adopted, the County did not have a "formal mechanism to examine the effects of proposed development and agricultural uses on natural vegetation and wildlife." The Base Documents also acknowledged that the Ridge required "more stringent controls and greater incentives for resource protection." Conservation, Use, and Protection of Natural Resources Natural Vegetation and Wildlife Subelement [sic] Highlands County has adopted, as the Natural Vegetation and Wildlife Subelement [sic] of its Natural Resources Element, Objective 3 providing that the County shall protect and acquire native vegetative communities which are endemic to Central Florida and shall restrict activities known to adversely affect the endangered and threatened species and their habitat. Under that Objective, Highlands County has adopted a number of Policies. Highlands County's approach to conservation, use, and protection of natural resources under Objective 3 and its policies is to identify, evaluate, and protect natural resources on a site-by-site basis. (County Exhibit 6, Pages NRE-10 through NRE-25, inclusive, and County Exhibit 9) The review procedures prepared by Petitioner's representative, Kris Delaney, for the Central Florida Regional Planning Council (CFRPC) also used a site-by-site approach. (Petitioner Exhibit 56) Kris Delaney is the immediate past president of HEC and was described by Petitioner's counsel as its main representative. Highlands County's approach to evaluation of natural resources also is comparable to the review processes adopted by federal statute and state law for the protection of threatened and endangered species. Site specific evaluation was necessary due to the variety of protected species needs, site conditions, and legal constraints. Under Policy 3.1, A., Highlands County has adopted a number of source documents to identify endangered or threatened species, including species of special concern. Under Policy 3.1, B., Highlands County has adopted a number of documents as guidelines for establishing mitigation, on-site protection, and remedial actions for the protection of habitats and listed species in the County's land development regulations. Under Policy 3.2, Highlands County adopted a Conservation Overlay Map series to be used as a general indicator for the presence of xeric uplands, wetlands, cutthroat seeps, historical and archeological resources, cones of influence for potable wells, and aquifer recharge areas. (See Findings 52-59, infra, for a detailed description and explanation of these maps.) Whenever a particular site is in an area where one of those resource categories is mapped on the Conservation Overlay Map series or are otherwise known to occur, Policy 3.3 of the Natural Resources Element requires the applicant to submit to the Highlands County Planning Department a preliminary field investigation report prepared by a County-approved professional, firm, government agency, or institution. If that field investigation determines that any of those resources actually exist on the site, an Environmental Impact Report is required of the applicant. Those Environmental Impact Reports (EIR's) must also be prepared by a County approved-professional, firm, agency, or institution. Policy 3.3, E., specifies the content of the EIR: (1) maps and a description of natural vegetative communities occurring on the proposed development site in terms of their habitat functions and significance; (2) maps and a description of the aforementioned natural resource categories which may be impacted by the proposed development; (3) an assessment of the potential impacts which would be sustained by a natural resource as a result of the proposed development; (4) an evaluation of water quality inputs and outputs; recommendations for appropriate mitigation and on-site protection measures; recommended land maintenance and management procedures to assure the continued viability or function of the natural resource after development; and a list of agencies which may have permit requirements pertaining to the proposed development. Under Policy 3.3, F., the application package and the EIR are transmitted for review and comment to the agencies listed in the Environmental Impact Report as having permit requirements and to the Highlands County Natural Resources Advisory Committee. Responsive comments and recommendations which are received are forwarded to the County employee or board having decision-making authority concerning the applicable permit and included in the County records pertaining to the project. Under Policy 3.3, G., after receiving the application packet, the EIR, and the comments and recommendations from other permitting agencies and the Highlands County Natural Resources Advisory Committee, the County evaluates and determines the permit conditions required to: (1) protect and preserve the water quality or natural functions of flood plains and drainage ways, potable water wells, and wetlands; (2) protect and preserve the function of native vegetative communities which are endemic to Central Florida or the habitats of endangered species, threatened species, or species of special concern; (3) preserve and protect historical and archeological resources; (4) establish measures to protect life and property from flood hazard; and (5) establish land maintenance and management procedures for the natural resource to assure its continued viability or function after development. Policy 3.3, G., further requires that the County's final development order must be conditioned upon adequate avoidance, preservation, mitigation, or remedial actions for the protection of the aforementioned resources and must be consistent with the wetlands, flood plain, aquifer recharge, water quality, and cultural resource protection measures set forth within the policies of the Comprehensive Plan. It also requires the County to require that the necessary state and local permits be obtained as a condition of approval for the project's final development order. In determining the appropriate conditions for the County's final development order, Policy 3.3, B., states that avoidance and preservation of the resource shall be the first choice for protecting the resource. Acquisition, conservation easements or dedications, and site design methods (including clustering development to the portion of the site where the resource does not exist or, if that is not possible, to the least environmentally sensitive portion of the site), are among the methods allowed to accomplish that purpose. Appropriate buffers between the development and the resource are also required. Policy 3.3, C., also provides that a mitigation fee may be imposed by the Board of County Commissioners for small, isolated tracts containing less significant habitat and that the mitigation fees collected would be used to fund off-site mitigation in order that preservation of equal or greater habitat type, function, and quantity can be achieved. This is consistent with the "Review Procedure for Special Habits: Xeric Uplands" prepared by Kris Delaney for the CFRPC which provides that "[L]ocal government may wish to establish procedural relationship with such agencies and, based on locally determined criteria, a minimum parcel size requiring review." Similarly, Policy 3.4 provides an environmental mitigation fee alternative for construction of single-family residences on preexisting lots of records to the extent consistent with state and federal regulations. These mitigation fee provisions are consistent with existing state and federal programs for protection of threatened and endangered species and species of special concern (Petitioner Exhibit 53, Pages 58 through 60; Petitioner Exhibit 56, Page 25, Level III, G.1 (cont.); and Petitioner Exhibit 78, Page 16) Policy 3.15 identifies several mitigation options which are consistent with those found in the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC. Policy 3.5, A., requires the County to institute an ongoing program to define, identify, and conserve its native vegetative communities and the habitats of endangered or threatened species and species of special concern and states that the conservation program must include the following implementation measures: (1) acquisition of lands using public funds and grants; (2) lease of land; (3) tax abatement; (4) land swaps and transfers of title; (5) establishment of conservation or open space easements; (6) density bonuses for cluster development; (7) density bonuses for development that preserves habitat and avoids impact on endangered or threatened species, including species of special concern; (8) density transfers for conservation set-asides to buildable portions of sites; and (9) mitigation fees and mitigation fee credits. Under Policy 3.5, B., the County has established as the top priority of its conservation program working with public and private agencies to acquire and preserve in their natural state: (1) scrub or sand hill habitats (xeric uplands); (2) endemic populations of endangered or threatened species, including species of special concern; (3) wetlands, cutthroat grass seeps, and estuaries; (4) important aquifer recharge areas; and (5) unique scenic or natural resources. In Policy 3.6, the County specifically references the "Review Procedure for Special Habitats: Xeric Uplands" prepared by Kris Delaney for the CFRPC as the model for its development review process for coordination with local, state, and federal regulatory agencies. Policy 3.6(g) specifically provides for coordination with local, state, and federal agencies concerning native vegetative communities or habitat areas spanning more than one local jurisdiction. Policy 3.7 establishes funding sources for the County's conservation trust fund and requires that the fund be used exclusively for the acquisition of the priorities listed in Policy 3.5, B., or the enhancement of other publicly- owned conservation-valued lands, as determined by the Board of County Commissioners. To discourage clearing of land prior to environmental review, the County adopted Policy 3.13, which requires property owners to obtain a County land clearing permit prior to land clearing. Issuance of the land clearing permit is conditioned upon completion of the environmental review process adopted in Policy 3.3. If property is cleared without a County land clearing permit, no development orders may be issued for that site for a period of three years after such clearing. Under Policy 3.13, C., of the Plan, as amended, no land clearing permit is required for "any agricultural activity not requiring a Highlands County land development order conducted by a lawfully operating and bona fide agricultural operation" on property "designated by the Future Land Use Map as either General or Urban Agriculture . . .." Under the policy, such operations are "encouraged to implement a Soil and Water Conservation District approved conservation plan, including the use of Best Management Practices, as applicable to the specific area being cleared, and [to secure all other permits required by State and federal agencies exercising jurisdiction over the natural resources referred to in Policy 3.2 and found on said property]." [Emphasis added.] In addition, Policy 3.9 of the Natural Resources Element provides for encouraging agricultural uses which are compatible with wildlife protection and water quality outputs, implementation of erosion control and Best Management Practices. Highlands County also has adopted many other policies in the Natural Vegetation and Wildlife Subelement [sic] of the Natural Resources Element for the protection of natural resources, including: Policy 3.8, providing for the removal and control of exotic plant species; Policy 3.10, requiring the County to incorporate the protection and conservation measures adopted under the Natural Vegetation and Wildlife Subelement [sic] into all County surface water management plans, public works projects and infrastructure improvement plans; Policy 3.11, encouraging the expansion of wildlife/greenbelt corridors; Policy 3.12, encouraging the creation of parks for the protection, preservation, and conservation of natural resources; Policy 3.14, requiring setbacks from environmentally sensitive land; Policy 3.16, providing for transfers of density and density bonuses to encourage preservation of environmentally sensitive lands and listed species through the use of planned unit developments; Policies 3.17 through 3.19, providing for the appointment, functions and responsibilities of the Highlands County Natural Resource Advisory Committee; Policy 3.20, providing for the adoption of a five-year acreage target for acquisition of natural resource lands; and Policy 3.21, providing for a buffer around Highlands Hammock State Park, publicly-owned conservation lands, and conservation lands being considered for acquisition with public funds. Wetlands Subelement [sic] Highlands County has adopted, as the Wetlands Subelement [sic] of its Natural Resources Element, Objective 4 providing for the protection of wetlands systems and their ecological functions to ensure their long term, economic, environmental, and recreational value and to encourage restoration of wetlands systems to a functional condition. Under Objective 4 of the Natural Resources Element, Highlands County has adopted a number of policies to protect wetlands systems. Policy 4.1 provides for the protection of ecological functions of wetlands systems by the County through actions such as supporting the restoration of wetlands systems, protecting the natural functions and hydrology of wetlands systems by buffering against incompatible land uses and mitigating development impacts, providing for clustering and open space buffering, intergovernmental cooperation, and the acquisition of wetlands systems, including cutthroat grass seeps. In Policy 4.2, Highlands County adopted definitions for wetlands and cutthroat seeps which are required to be mapped according to Policies 3.2 and 4.3. In Policies 4.4 through 4.7, the County provided for the adoption of land development regulations which: encourage the restoration of wetlands systems; provide that development orders in cutthroat seeps be conditioned upon the issuance of wetlands permits by the Army Corps of Engineers, the Florida Department of Environmental Protection, and the South and Southwest Florida Water Management Districts, as their jurisdictions apply, as a condition of approval of the project's final development order or land clearing permit; prevent the net loss or alteration of wetlands on a County-wide basis; and require conservation easements and delineation on final plats for wetland and cutthroat grass seep areas used for mitigation purposes. State and Federal Protections State and federal permitting processes protect threatened and endangered species and species of special concern found in Highlands County. See Conclusions 125-130 and 140-147, infra. The review processes required to obtain the state and federal permits pertaining to threatened and endangered species require site-specific review, comparable to obtaining environmental clearance from the County under Policy 3.3 of the Natural Resources Element. In view of the diversity of threatened and endangered species and species of special concern and their habitat needs, variations in quantity and quality of resources existing on site, and statutory and constitutional property rights protection, the County has chosen not to establish fixed set asides for every resource under every circumstance on a County-wide basis. By including in its permitting process notification to federal and state agencies having permitting responsibilities, Highlands County will be providing valuable assistance to state and federal environmental protection by bringing those agencies in at an early stage of the review process. Moreover, the County's requirements that the necessary federal, state, and local permits be obtained as a condition of approval for a project's final development order will assist those federal and state agencies in enforcing environmental permits in Highlands County. Measuring Success of Protection Measures Extensive work by federal and state agencies has been devoted to identifying and studying threatened and endangered species, both plant and animal. Threatened and endangered species and the habitats necessary for their survival exist throughout the State of Florida. Listed species found in Highlands County are also found in other areas of the State of Florida. The amount and land-cover types of conservation areas have been extensively studied for the entire State of Florida. The percentage of conservation lands in Highlands County (9.4 percent) exceeds the statewide median for the portion of conservation lands within individual counties (8.6 percent). The land cover types for the entire State of Florida have been identified and quantified by location and number of acres and the amounts of those habitats in conservation lands have also been determined. Likewise, for every county, the land cover types have been located, identified, mapped, and acreage determined for "natural" upland cover types, "natural" wetland cover types, and "disturbed" cover types. The "natural" upland cover type category includes coastal strand, dry prairie, pine lands, sand pine scrub, sand hill, xeric oak scrub, mixed hardwood-pine forest, hardwood hammocks and forest, and tropical hard wood hammocks. "Natural" wetland cover types include coastal salt marshes, fresh water marsh and wet prairie, cypress swamp, mixed hardwood swamp, bay swamp, shrub swamp, mangrove swamp, and bottomland hardwood forest. "Disturbed" cover types include grass land and agriculture, shrub and bush land, exotic plant communities and barren and urban land. Open water areas were also identified, located, mapped, and the acreage areas determined. The amounts of land in each of those land cover categories has been tabulated by county and for the State as a whole. The amount of land in each of those categories located in conservation lands has also been tabulated for each county and for the State as a whole. The tabulation for land cover types for Highlands County and the amount of conservation lands for each cover type are as follows: "Natural" upland cover types - coastal strand (0/0), dry prairie (427/112), pine lands (167/41), sand pine scrub (14/3), sand hill (0/0), xeric scrub oak (112/12), mixed hardwood-pine forest (4/0), hardwood hammocks and forests (46/5), tropical hardwood hammocks (0/0); "Natural" wetland cover types - coastal salt marshes (0/0), freshwater marsh and wet prairie (129/34), cypress swamp (21/8), mixed hardwood swamp (41/5), bay swamp (17/0), shrub swamp (21/5), mangrove swamp (0/0), bottomland hardwood forest (0/0); Open water (202/1); and "Disturbed" cover types - grass land and agriculture (1086/15), shrub and brush land (271/18), exotic plant communities (0/0), barren and urban land (307/11) Within the parenthesis above, the first number represents the total area in square kilometers and the second number represents the conservation lands in that category, also in square kilometers. There are approximately 247 acres per square kilometer. For Highlands County, these identified land cover types cover 2,866 square kilometers of which, 270.8 square kilometers are conservation lands. In addition to mapping those important habitat areas in each county in the State of Florida, the threatened and endangered species and species of special concern found in those habitat areas have also been identified. Those habitat areas and the threatened and endangered species and species of special concern which they support have been specifically identified and mapped for Highlands County. Since the land cover types in Highlands County have been identified, located, mapped, and quantified and the threatened and endangered species and species of special concern, both plant and animal, supported by those land cover types have been identified, Highlands County has the ability to objectively measure the success of its adopted Goals, Policies, and Objectives in protecting natural resources. Data and Analysis and Maps Eugene Engman, AICP, a planner/economist, was the principal author of the conservation element and Base Documents of supporting data and analysis for the County's 1991 Plan. The Base Documents indicate extensive analysis of the County's natural resources, including: surface waters; floodplains; mineral deposits; areas with erosion problems; and fisheries, wildlife habitat and vegetative communities. The Conservation Overlay Maps The Base Documents also contain a "methodology for conservation designation," that applies to areas identified as areas of outstanding natural resources and to areas containing special habitat (high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge). With respect to the latter, it was not Engman's intention to map all vegetative communities on and near the Ridge; oak hammock and palm hammock, for example, was not mapped. It also was not Engman's intention to map the entire County. Engman did not believe that mapping of high quality scrub habitats, seeps and wetland forest was required, but he mapped them at no charge to the County to enable the County to better protect endangered species and other resources on and near the Ridge where most the special habitat and most development coincided. Following the methodology, Engman and his colleagues prepared the Resource Base Maps--County Exhibit 40. They consisted of 27 USDA Soil Conservation Service (SCS) quadrangle maps, two with acetate overlays. The quad maps themselves show some resources indicated by a separate legend available from the SCS. In addition, Engman and his colleagues indicated the location of scrub habitats, seeps and wetland forest through use of an additional legend they wrote on the quad maps. Some legends applied to more than one quad map. In addition to the SCS quad maps themselves, Engman and his colleagues used the Soil Survey field notes of Lew Carter of the SCS, 1985 infrared aerial photographs, and local knowledge of the Dr. James Layne of the Archbold Research Station, Lew Carter of the USDA Soil Conservation Service, Mike Sawyer of the Florida Division of Forestry, and County sources. The Base Documents also contains a Generalized Soils Map which references as its source "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989." The Base Documents also contained two maps at the scale of one inch equals three miles--one mapping outstanding natural resources, and the other mapping special habitat. These two maps were then combined into a third map at the scale of one inch equals five miles. This third map was designated the Conservation Overlay Map in the Base Documents. Each quarter section (160 acres) of the County that contained any of the identified resources depicted on the Resource Base Maps was depicted as "Conservation" on the Conservation Overlay Map. The Conservation Overlay Map advised that: "This map is for comprehensive planning purposes only. Specific locations are identifiable on the Resource Base Maps located in the Office of the County Planning Director." No duplicates or copies of the Resource Base Maps--County Exhibit 40-- were made before the final hearing in this case. They were available to the public during the development of the 1991 Plan, and they were forwarded to the County Planning Department when Engman's work was finished. There, they remained available for use by the County Planning Department in implementing the Plan, and remained available for public inspection, except for a period of approximately one year when they were misplaced and could not be located. FLU-54, the Conservation Overlay Map in the Future Land Use Map series, is the same map that is contained in the Base Documents as the Conservation Overlay Map. The Future Land Use Map Series In addition to FLU-54, the Future Land Use Map Series in the adopted plan, as amended through 1993, contained a Future Land Use Map Set of three large maps--a one inch equals two miles base map, and two one inch equals one/half mile maps--together with several letter-size maps at one inch equals five miles (one is at one inch equals four miles), which are FLU-55 through FLU- 62. The adopted plan, as amended through 1994, contained the same text as the plan as amended through 1993, along with an updated Future Land Use Map Set of six large color sheets. The base map is at a scale of one inch equals two miles and is a colorized version of the base map contained in the 1993 version of the plan; the other five maps are color insets from the base map at a scale of one inch equals one quarter mile. The rest of the Future Land Use Map Series is the same as in the Plan as amended through 1993. In addition to the FLU-54 Conservation Overlay Map, the future land use map series included: a Generalized Soils Map which identifies its source as "USDA/SCS, Soil Survey of Highlands County, Florida, July, 1989"; Highland's County Peat Deposits, whose source is "Adley Associates, Inc. September, 1988"; Wetlands 600, whose legend identifies "wetlands" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Floodplains, whose legend identifies "floodplains" and "ridge," and whose source is "Adley Associates, Inc. September, 1988"; Water and Canal Map 500, whose legend identifies "generalized interim well protection zones (cones of influence) for potable water supply wells" and whose source is "Adley Associates, Inc., Highlands County Building and Zoning Department and DER," and which is dated December, 1990; Future Traffic Circulation Map State Roads, which depicts various types of roads and whose source is "Highlands County Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Department and FDOT"; Future Traffic Circulation Map County Roads, which depicts various types of roads and whose source is "Highlands Co. Engineering Dept. (9/88) and FDOT (11/90)"; and Modified Community Parks which depicts existing and proposed parks and "existing urban land use" and whose source is "Adley Associates, Inc. April, 1990". FLU-55, the Generalized Soils Map, was prepared using the 1989 USDA SCS Soil Survey. Major field work for the USDA/SCS Soil Survey was completed in 1986. It is the same map as the Generalized Soils Map contained in the Base Documents. FLU-57 maps wetland features which are not depicted on either the Resource Base Maps (County Exhibit 40) or the Conservation Overlay Map. The 1989 USDA SCS Soil Survey was used to identify wetlands on FLU-57. HEC's Contentions HEC contended that the maps in the Plan, as amended, were deficient. It became apparent during the course of the final hearing that HEC considered the FLU-54 Conservation Overlay Map in the Plan, as amended, to be the only map pertinent to the designation of conservation lands. HEC contended that FLU-54 is too small, not clear and legible enough, and inadequate for its purposes. It appeared that HEC learned of the existence of the Resource Base Maps (County Exhibit 40) during the final hearing. HEC contended that the Resource Base Maps were deficient because they were not based on the appropriate and best available data. As a result, HEC contended, the Base Resource Maps and FLU-54 Conservation Overlay Map "missed" some significant resources. Kris Delaney quickly reviewed the Resource Base Maps during the course of the final hearing and testified that on the Frostproof, Lake Arbuckle, Sebring, and Fort Kissimmee quad sheets some "significant areas of native vegetation were not shown on the mylar overlays." Delaney's observations regarding the five allegedly-inaccurate mylar quad map overlays were made with reference to the USDA Soil Conservation Service Soil Survey and what he believed was a wetland symbol on the underlying quad map. But it is not clear that Delaney understood the legend to the Resource Base Maps. Furthermore, he was not offered as an expert in photogrammetry, geography, or surveying, and the specifics of his personal knowledge of the areas in dispute were not made clear. Another HEC witness, Dr. Menges, testified to his opinion that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. He testified that, to map native vegetative communities on a species-specific basis, Steve Christman's 1988 report for the Florida Game and Fresh Water Fish Commission would provide the best available data. (He also mentioned data from the Florida Natural Areas Inventory, but it was not clear that those data were not used or how available those data were.) However, it was not clear from the evidence that the Christman report was not used as a data source. In addition, Menges conceded that "the primary source for the distribution of (native vegetative) communities" (in Highlands County) would be the "Soil Conservation Service Survey map," and it is clear that the County's consultants used this data source, together with other soil survey information and aerial photography, as was appropriate. It should not be surprising that the Base Resource Maps and FLU-54 Conservation Overlay Map did not map all native vegetative communities throughout the County. As previously, stated, the effort was limited to high quality scrub habitat, cutthroat grass seeps with predominantly native vegetation, and forested wetlands on and near the Ridge. There was no intention to map all native vegetative communities throughout the County. Regardless of the alleged deficiencies with the Resource Base Maps and the FLU-54 Conservation Overlay Map, HEC did not take into account all of the maps in the Future Land Use Map series in contending that the mapping was deficient. HEC did not recognize that Policy 3.2 provides for the use of the "adopted Conservation Overlap Map series contained in the Future Land Use Element" as the "general indicator" for the resources described in the policy. The Future Land Use Map series includes not only FLU-54 and the Resource Base Maps (County Exhibit 40) but also: FLU-55 (the Generalized Soils Map), FLU-57 (the Wetlands 600 map), FLU-58 (the Floodplains map), and FLU-59 (the Water and Canals Map 500). HEC also did not recognize that the environmental clearance procedures under Policies 3.3 and 3.13 are triggered not only if the presence of the resources described in Policy 3.2 is mapped on the Conservation Overlay Map (which includes not only FLU-54, but also the Resource Base Maps), but also if they are known to occur by reference to any of the maps in the Future Land Use Map series, or are otherwise known to occur. The references acknowledged by the County in Policy 3.1 can serve as the source of knowledge of where the resources described in Policy 3.2 occur. It is not beyond debate that these sources of information, taken together, are adequate for purposes of indicating the existence of the resources described in Policy 3.2 and triggering environmental clearance review under Policy 3.3. HEC did not establish beyond debate that the County did not use appropriate or the best available data, that the County did not apply the data in a professional manner, or that the Plan, as amended, did not react to the data in an appropriate way. Future Land Use Element Residential Land Use Density In Agricultural Land Use Categories HEC presented no credible testimony or evidence to substantiate its allegation that the land use densities for agriculture and urban agriculture encourage "urban sprawl" or are not supported by adequate data. No expert testimony in land use planning was offered, although HEC had identified such potential experts on its witness list. The Base Documents stated that agricultural density was at 1 unit/acre prior to the adoption of the Plan and recommended that the density be decreased to 1 unit/10 acres. The draft of the Base Documents recommended a density of 1 unit/ 5 acres. The Plan established the General Agriculture land use category as the predominant land use for rural areas. It has the lowest development potential of all adopted land use categories. The General Agriculture land use category has a density range of one unit per ten acres. The Urban Agriculture land use category was established as a transitional zone between urbanized and rural lands. The Urban Agriculture land use category has a density range of one unit per five acres. (County Exhibit 6, Pages FLU-6 and FLU-7 There was no evidence to prove that lesser densities are required to discourage urban sprawl, to protect natural resources, to protect agricultural lands, or for any other reason. Population Accommodation Data and Analysis HEC did not present any population accommodation analysis. There was no competent evidence presented in this case as to the population accommodated in the year 2000 under either the Plan as amended and adopted on March 2, 1994, or the Plan as amended and adopted on September 15, 1993. HEC pointed to a projection in the Housing Element in the County's Plan indicating a need for 10,075 new housing units to accommodate 16,977 new residents by the year 2000. HEC also pointed to data and analysis indicating that there are approximately 108,000 residential lots in existing subdivisions of 100 lots or more in the County that potentially could be developed to accommodate new housing units. But HEC did not establish that it is realistic to project maximum development in those subdivisions at one unit per lot; nor did HEC establish the extent of vested rights to development in those subdivisions. Protection of Water Quality and Quantity The Base Documents contain extensive data and analysis of County geology and soils, including water supply considerations, and recharge. Aquifer recharge in Highlands County occurs primarily on the Lake Wales Ridge. Contamination of groundwater has been documented from hazardous waste associated with landfills, agricultural use of the pesticides EDB (ethylene dibromide) and Bromicil, and leaking underground storage tanks. Of these, only the agricultural pesticide use is documented to have impacted potable water supplies. EDB, the primary source of contamination noted, has not been used since 1983. While the presence of Bromacil is also noted, the number of wells is not mentioned. Moreover, the evidence does not mention a single health- related case. Where EDB contamination has been found, the State of Florida has paid the cost of connecting to public water supplies or installing carbon filters. There is no evidence that stormwater management activities has caused groundwater contamination. Highlands County has adopted a number of objectives and policies in both the Infrastructure Element and the Natural Resources Element of the Plan, as amended, intended to protect potable water wells, conserve potable water resources, and reduce the risk of groundwater contamination. Objective 6 under the Potable Water Subelement [sic] of the Infrastructure Element is to ensure public health by protecting the water quality of potable wells. Among the policies adopted to implement that objective is Policy 6.4, adopting stringent restrictions on activities within a 600 feet radius around public potable water wells. Highlands County also adopted Objective 7 and Policies 7.1 through 7.3 under the Potable Water Subelement [sic] to establish minimum design and construction requirements for all potable water wells to protect and assure delivery of potable water. Highlands County has also adopted a number of other objectives and policies under the Natural Resources Element intended to protect groundwater quality, including: prohibiting the location of hazardous waste treatment facilities in the County; requiring cooperation with the DEP "DRASTIC" program; prohibiting discharges of untreated stormwater and waste material into underground formations; adopting stormwater quality and quantity standards; mapping wellhead protection zones; and encouraging implementation of best management practices for agricultural operations in the County. HEC did not prove beyond fair debate that, taken together, the Goals, Objectives, and Policies of the Plan, as amended, do not ensure the protection and conservation of potable water supplies.
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 Highlands County Plan adopted through County Ordinance 91- 1, as amended by County Ordinances 93-16 and 94-1, is "in compliance." DONE and ENTERED this 15th day of October, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1996.
The Issue At issue in this proceeding is whether the amendments to the Collier County Comprehensive Plan adopted by Ordinance No. 99-82 (the "Interim Amendments") are "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact The Parties The Petitioners each own property and operate businesses in Collier County. Each Petitioner has members who reside in Collier County. Each Petitioner submitted oral comments to the County regarding the Interim Amendments during the period between transmittal and adoption. The Petitioners timely filed their Petition in this proceeding. The Petitioners are "affected persons" pursuant to Section 163.3184(1), Florida Statutes, and have standing to bring this proceeding. The County is the local government whose land use amendment is at issue in this proceeding. The Department is the state land planning agency with the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes. James A. Brown, as Trustee of the East Naples Land Company, owns property in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Barron Collier Partnership owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Collier Enterprises, Ltd. owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Consolidated Citrus Limited Partnership owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Pacific Tomato Growers owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Alico, Inc. owns property and operates a business in the County and submitted comments to the County regarding the Interim Amendments during the adoption process. Jack Price owns property, resides and operates a business in the County, and submitted comments to the County regarding the Interim Amendments during the adoption process. Russell Priddy owns property, resides and operates a business in the County, and submitted comments to the County regarding the Interim Amendments during the adoption process. Background On April 6, 1996, the County adopted an Evaluation and Appraisal Report ("EAR") for its Plan. Each local government is required to adopt an EAR once every seven years, assessing its progress in implementing its comprehensive plan. Section 163.3191(1), Florida Statutes. The local government must then amend its comprehensive plan to reflect the data and analysis and recommendations in the EAR. Section 163.3191(10), Florida Statutes. The County adopted its EAR-based amendments on November 14, 1997. The Department reviewed these EAR-based amendments, found that they did not comply with state law, and on December 24, 1997, published a Notice of Intent to find the amendments not "in compliance." The Department then instituted administrative proceedings against the County pursuant to Section 163.3184(10), Florida Statutes. The Florida Wildlife Federation and the Collier County Audubon Society intervened in support of the Department's original not "in compliance" determination. A formal administrative hearing was held over a five- day period in May 1998. On March 19, 1999, a recommended order was entered recommending that all of the challenged EAR-based amendments be determined not "in compliance." The recommended order was forwarded to the Administration Commission for final agency action pursuant to Section 163.3184(10)(b) and (11), Florida Statutes. The Administration Commission entered its Final Order on June 22, 1999. The 1999 Final Order directed the County to take specific remedial actions that would bring the comprehensive plan into compliance, including: rescinding the EAR-based amendments that were not in compliance; adopting certain specifically described remedial amendments; undertaking a comprehensive assessment of all lands in the County designated in the comprehensive plan as Agricultural/Rural, the Big Cypress Swamp Area of Critical State Concern, conservation lands outside the urban boundary, and South Golden Gate Estates (hereinafter referred to as the “Assessment”); and establishing interim development provisions during the Assessment period, including a moratorium on certain types of development, and the designation and mapping of certain specified NRPAs. On November 23, 1999, the County adopted the Interim Amendments, intended to establish the interim development restrictions and provide for the Assessment ordered by the 1999 Final Order. As set forth in detail in the June 29, 2000, order granting the County's Motion in Limine, to the extent that the County merely enacted measures specifically ordered by the Administration Commission, those measures are not within the purview of this proceeding. Only those Interim Amendments that incorporate some measure of County discretion are subject to full "in compliance" analysis. The Interim Amendments Policies 4.9 and 4.10 of the Future Land Use Element of the Plan, enacted as part of the Interim Amendments, provide: Policy 4.9: Prepare a Rural and Agricultural Area Assessment, or any phase thereof, and adopt plan amendments necessary to implement the findings and results of the Assessment, or any phase thereof, pursuant to the Final Order (AC-99-002) issued by the Administration Commission on June 22, 1999. The geographic scope of the assessment area, public participation procedures, interim development provisions, and the designation of Natural Resource Protection Areas on the Future Land Use Map are described in detail in the Agricultural/Rural Designation Description Section. Policy 4.10: Public participation and input shall be a primary feature and goal of the planning assessment effort. Representatives of state and regional agencies shall be invited to participate and assist in the Assessment. The County shall ensure community input through each phase of the Assessment which may include workshops, public meetings, appointed committees, technical working groups, and established advisory boards including the Environmental Advisory Committee and the Collier County Planning Commission in each phase of the Assessment. The Interim Amendments also added the following language to the Future Land Use Designation Description Section, under the "Rural & Agricultural Area Assessment" section of Section II, entitled "Agricultural/Rural Designation:" The Governor and Cabinet sitting as the Administration Commission, on June 22, 1999, issued the Final Order (AC-99-002) pursuant to Section 163.3184(10)(b), Florida Statutes, in Division of Administrative Hearing Case No. 98-0324GM. Pursuant to the Order, Collier County is required to prepare a Rural and Agricultural Assessment (Assessment). This Assessment may be phased. The Geographic Scope of the Assessment Area shall be as follows: Includes: All land designated Agricultural/Rural Big Cypress Area of Critical State Concern Conservation lands outside the Urban Boundary South Golden Gates Estates Excludes: All Urban designated areas Northern Golden Gate Estates The Settlement District The Assessment, or any phase thereof, shall be a collaborative, community-based effort with full and broad-based public participation and assistance from applicable State and Regional agencies. At a minimum, the Assessment must identify the means to accomplish the following: Identify and propose measures to protect prime agricultural areas. Such measures should prevent the premature conversion of agricultural lands to other uses. Direct incompatible uses away from wetlands and upland habitat in order to protect water quality and quantity and maintain the natural water regime as well as to protect listed animal and plant species and their habitats. 3. Assess the growth potential of the Area by assessing the potential conversion of rural lands to other uses, in appropriate locations, while discouraging urban sprawl, directing incompatible land uses away from critical habitat and encouraging development that utilizes creative land use planning techniques including, but not limited to, public and private schools, urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions and mixed use development. The Assessment, or any phase thereof, shall recognize the substantial advantages of innovative approaches to development which may better serve to protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses, and provide for the cost efficient delivery of public facilities and services. At the time of the hearing, the County had already commenced the process of conducting the Assessment. Two citizen advisory committees have been organized, each with responsibility for developing recommended land management policies for a specific geographical area within the scope of the Assessment. The Rural Fringe Committee is focusing its attention on that portion of the Assessment area closest to the west coast urban boundaries. The Rural Lands Committee is focusing on the largely agricultural lands in eastern Collier County. Unless the Administration Commission modifies the schedule set forth in the 1999 Final Order, the comprehensive plan amendments resulting from the Assessment must take effect on or before June 22, 2002. In addition to providing for the Assessment, the Interim Amendments impose additional restrictions on the use of land within the Assessment area while the Assessment is underway. These "Interim Development Provisions for the Agricultural/Rural Assessment Area" provide: Amendments based on the Assessment shall be completed by June 22, 2002. Residential and other uses in the Area for which completed applications for development approval, rezoning, conditional use, subdivision approval, site plan approval, or plats were filed with or approved by Collier County prior to June 22, 1999, shall be processed and considered under the Comprehensive Plan as it existed on June 22, 1999. If the County elects to address a specific geographic portion of the Area as a phase of the Assessment, the interim land use controls shall be lifted from the specific geographic area upon completion of the applicable phase of the Assessment and the implementing Comprehensive Plan amendments for that phase becoming effective. Until the Assessment is complete and Comprehensive Plan amendments to implement the Assessment, or any phase thereof, are in effect, the only land uses and development allowable in the area shall be those set forth in the Agricultural/Rural Mixed Use District and the Land Development Code (Section 2.2.2) in effect on June 22, 1999 for the Agricultural/Rural District, except the following uses are prohibited and shall not be allowed: New golf courses or driving ranges; Extension or new provision of central water and sewer service into the Area; New package wastewater treatment plants; Residential development except farmworker housing or housing directly related to support farming operations, or staff housing (12 du/ac) and other uses directly related to the management of publicly-owned land, or one single-family dwelling unit per lot or parcel created prior to June 22, 1999; Commercial or industrial development except gas and telephone facilities, electric transmission and distribution facilities, emergency power structures, fire and police stations, emergency medical stations; Transient residential such as hotels, motels, and bed and breakfast facilities; Zoo, aquarium, botanical garden, or other similar uses; Public and private schools; Collection and transfer sites for resource recovery; Landfills; Social and fraternal organizations; Group care facilities; Sports instructional schools and camps; Asphalt and concrete batch making plants; and Recreational vehicle parks. These interim development standards shall not affect or limit the continuation of existing uses. Existing uses shall also include those uses for which all required permits have been issued, or uses for which completed applications have been received by the County prior to June 22, 1999. The continuation of existing uses shall include expansions of those uses if such expansions are consistent with or clearly ancillary to the existing use and do not require a rezoning or comprehensive plan amendment. These interim development standards mirror those ordered by the Administration Commission in the 1999 Final Order. The Interim Amendments also designated certain areas as Interim NRPAs and added additional limitations on the development allowed within those areas. The Interim NRPAs and accompanying restrictions are as follows: The following areas shall be generally mapped and identified as Natural Resource Protection Areas (NRPAs): Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates. Natural Resource Protection Areas (NRPAs) are designated on the Future Land Use Map: Within these areas, only agriculture and directly-related uses and one single-family dwelling unit per parcel or lot created prior to June 22, 1999, shall be allowed; These interim development standards shall not affect or limit the continuation of existing uses. Existing uses shall also include those uses for which all required permits have been issued, or uses for which completed applications have been received by the County prior to June 22, 1999. The continuation of existing uses shall include expansions of those uses if such expansions are consistent with or clearly ancillary to the existing use and do not require a rezoning or comprehensive plan amendment; The general location shall be identified on a map as the interim NRPAs and shall be refined as actual data and analysis is made available during the Collier County Rural and Agricultural Area Assessment. Objective 1.3 of the Conservation and Coastal Management Element of the Interim Amendments further explains the County's purpose in establishing the Interim NRPAs and how they would be treated during the Assessment: Pursuant to Administration Commission Final Order AC-99-002 dated June 23, 1999, complete the phased delineation, data gathering, management guidelines and implementation of the NRPA Program as part of the required Collier County Rural and Agricultural Assessment. The purpose of the NRPAs will be to assist State and Federal agencies’ efforts to protect endangered or potentially endangered species (as listed in current “Official List of Endangered and Potentially Endangered Fauna and Flora Florida”, published by the Florida Game and Fresh Water Fish Commission, the predecessor agency of the Florida Fish and Wildlife Conservation Commission) and their habitats. Pursuant to the Administration Commission Final Order, the County has mapped and identified the Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates as NRPAs, with the express understanding that during the Rural and Agricultural Assessment (Assessment) required by the Final Order, the goal of assisting in the protection of endangered species and their habitat will be further addressed and that appropriate protection measures will be incorporated into the comprehensive plan amendments to be adopted at the conclusion of the Assessment. In the interim, and during the Assessment, a development moratorium as set forth in the Final Order and in Ordinance 99-77 will be in place until comprehensive plan amendments are adopted. The County has determined that the development moratorium, the NRPA boundaries approved November 23, 1999, and the additional restrictions that apply within the existing Area of Critical State Concern provide sufficient protection for these resources on an interim basis until adoption of the final comprehensive program to protect these resources. In selecting the final comprehensive program the County, as part of the Assessment, will evaluate the NRPA program and its criteria and implementation as well as other programs which may better provide adequate protection to the resources. In addition to the Interim NRPAs, the County determined that certain other areas within the Assessment area should be specifically addressed and evaluated as part of the Assessment, thus creating "special study areas" ("SSAs") pursuant to Policy as follows: The Program will, subject to completion of the Assessment and adoption of the comprehensive plan amendments, include the following: Identification of the NRPAs in map form as an overlay to Future Land Use Map. Pursuant to the Final Order, the general areas of Camp Keais Strand, CREW Lands, Okaloacoochee Slough, Belle Meade and South Golden Gate Estates have been mapped and identified as NRPAs on the Future Land Use Map. The areas shall be further refined as the Assessment is implemented as a collaborative and community-based effort. All available data shall be further considered and refined during the Assessment to determine the final boundaries of these NRPAs. As part of the Assessment, the County shall evaluate the merits of including additional areas into these boundaries including, but not limited to, the area of Northern Belle Meade, the area known as the “Stovepipe” to the north, northwest and northeast of the Okaloacoochee Slough and the area southwest of the Okaloacoochee Slough to the southeastern portion of the Camp Keais Strand which is south of Oil Well Road (CR 858). These additional study areas are shown on the Future Land Use Map. Within these study areas, the following shall be the primary focus of additional study: North Belle Meade Study Area: examine the extent to which existing agricultural operations, improvements and facilities have impacted water flow and quality, wetlands and habitat for the Florida panther and other listed species; examine the impacts of abutting urban and Estates development; examine access into the area and connectivity to other habitat as it relates to the Florida panther; examine opportunities for restoration of flow-ways, buffering from abutting development and improvements for listed species habitat through actions to include consideration of the addition of underpasses to Interstate 75; examine the impacts of potential earth mining activities on the above resources; and examine whether use of transfer of development rights would be appropriate in this area and, if so, whether there should be any restrictions on their use; examine the possibility of public acquisition of these properties. Stovepipe Study Area examine the level of existing and permitted agricultural improvements and impacts on listed species and their habitats; examine whether the existing Area of Critical State Concern program affords sufficient protection to listed species and their habitat; examine the possibility of acquisition of these properties by State or Federal programs, including partial acquisition programs, an example of which would be conservation easements; examine whether use of transfer of development rights would be appropriate in this area and if so, whether there should be any restrictions on their use; examine and analyze the Florida panther’s use of agricultural lands and whether such agricultural lands constitute critical habitat for the species; and examine and analyze whether any lands should be restored. Oil Well Road (CR 858) Study Area examine the extent to which existing agricultural and mining operations, improvements and facilities have impacted listed species and their habitat; examine documented movement of the Florida panther in the area; examine and analyze the Florida panther’s utilization of agricultural lands and whether such agricultural lands constitute critical habitat for the species; examine whether use of transfer of development rights would be appropriate for this area and, if so, whether there should be any restrictions on their use: and determine whether the east/west wildlife corridor provided by the Florida Panther National Wildlife Refuge and the Big Cypress National Preserve provides sufficient connectivity to protect the species. In addition to the moratorium referenced above, the County shall give notice to the Florida Department of Community Affairs if all applications to develop or otherwise impact the above special study areas. * * * The County recognizes that the NRPA program is not the only mechanism to protect significant environmental resources and that the NRPAs being established at this time are of an interim nature in conjunction with the development moratorium required by the Final Order. As a consequence, the designation of an area as a NRPA or as part of a special study area is not intended to affect property valuation on specific parcels. It is anticipated that the Assessment will address all of the issues identified above and that the resulting comprehensive plan amendments will provide resource protection measures best suited to meet the goals and objectives of this comprehensive plan. Establishment of Interim NRPA Boundaries The 1999 Final Order directed the County to adopt five areas as Interim NRPAs: the Camp Keais Strand; the CREW Lands; the Okaloacoochee Slough; Belle Meade; and South Golden Gate Estates. The 1999 Final Order does not provide a map or legal description of these five areas. Even aside from the 1999 Final Order, there are no maps or legal descriptions to describe precisely the boundaries of these areas. The evidence established that there is a general understanding of the location of these areas, but that the County necessarily exercised discretion in defining the boundaries of these Interim NRPAs. The term "Natural Resource Protection Area" is not defined in federal or state laws or regulations. The term is a creation of the Collier County Comprehensive Plan, and was first included in the Conservation and Coastal Management Element ("CCME") of the 1989 Plan. The 1989 Plan contained the adopted Goals, Objectives and Policies governing land use and development in the County. The 1989 Plan also included data and analysis that was not adopted as a binding part of the Plan. The unadopted data and analysis in the 1989 Plan included a support document for the CCME. This support document set forth the standards for NRPAs. It designated NRPAs as "eco- systems having extremely important ecological functions," and ranked four subcategories according to "the degree of restrictiveness of protection afforded": Estuaries and Coastal Barrier Areas Water Protection and Conservation Areas Critical Ecological Corridors Rare, Unique and Endangered Habitats. William Lorenz, the County's natural resources director, testified that the County looked at these categories to provide general guidelines for the functions of NRPAs. The County employed an iterative method in developing the Interim NRPA boundaries, with County staff developing, reviewing, and modifying draft maps. Mr. Lorenz testified that there was a good deal of debate among staff members as to the location of the Interim NRPA boundaries. The County also sought the assistance of outside agencies, including the Florida Fish and Wildlife Conservation Commission. James Beever, a biological scientist, was the Conservation Commission's principal liaison with the County for purposes of the Interim NRPA determination. Mr. Beever testified that he did not use the 1989 Plan in making his recommendations because the County asked him to use the best available scientific information, which was not necessarily included in the 1989 Plan. Mr. Beever also testified that he was unfamiliar with the County's development moratorium for rural Collier County at the time he developed his recommendations. The Conservation Commission, through Mr. Beever, recommended a procedure for the delineation of NRPAs: Start with the existing proposed land acquisition boundaries or Florida Panther Recovery Plan boundaries for the designated areas. For the Southern Golden Gate Estates, this will be all that is needed to define that NRPA. For all other areas, such as the Corkscrew Regional Ecosystem Watershed (CREW), expand the NRPA beyond the acquisition boundary when there is existing connected native habitats. Roadways alone do not sever connection, since wildlife underpasses can be incorporated in NRPA criteria. This would "pick up" habitat continua that were not in the original boundaries that may have been drawn strictly on straight section lines. Some examples would be to include: undeveloped areas of Northern Belle Meade, above Interstate 75, that were included in the original study performed by Kim Dryden and myself, connecting the proposed Winding Cypress DRI to the Southern Belle Meade, and including the entire Bird Rookery Swamp system attached to CREW. County staff considered these recommendations and other materials, and arrived at seven "General Guidelines for Delineating NRPA Boundaries": Identify major wetlands systems and regional flow-ways. Incorporate areas having upland native habitat contiguous to the identified major wetland systems and regional flow-ways. Provide for areas containing listed species habitats that are contiguous to the identified wetland systems and regional flow- ways. Include areas that are identified on the 1999 CARL Acquisition List, unless the area is severely impacted. Provide connections to other existing conservation areas. Include areas with minimal fragmentation from existing residential developments and transportation systems. Provide sufficient land area to buffer native habitats from intensive land uses. Applying these criteria, the County transmitted to the Department proposed Interim NRPAs that included 140,564 acres. Almost 125,500 acres of this land is wetlands, accounting for 13% of all wetlands in Collier County. One of the Petitioners' chief contentions was that the boundaries of the Interim NRPAs adopted by the County were significantly smaller than the boundaries proposed by County staff. The Petitioners did not object to any of the lands actually included in the Interim NRPAs; rather, they believed that more lands should be added to them. As to the Camp Keais Strand and Okaloacoochee Slough NRPAs, the biggest point of debate in the County was the amount of agricultural lands that should be contained in the Interim NRPAs. This was debated before the Board of County Commissioners and the Planning Commission, as well as the Environmental Advisory Council. County staff’s initial proposal included more agricultural fields in the Interim NRPAs than the County finally adopted. The County ultimately excluded intensive agricultural lands and mining pits from the Interim NRPA delineations. As to the Camp Keais Strand NRPA, the County ultimately excluded extensive farm and row crop fields, as well as active storm water management systems located on these agricultural lands. Mr. Lorenz testified regarding County staff’s initial recommended NRPAs. County staff initially relied heavily on the Closing the Gaps report and its derivative materials, discussed below. Staff also initially relied upon the South Florida Water Management District’s "Florida Land Use Coverage Classification System" ("FLUCCS"), which is a display of land coverage information from the 1994-1995 database. Staff also coordinated with Mr. Beever, as noted above. County staff initially drew their proposed Interim NRPA boundaries along section and quarter section lines. Mr. Lorenz acknowledged that natural features typically do not follow section and half section lines, and that the boundaries finally selected more closely reflect natural features rather than legal descriptions. ECPO provided County staff with aerial photographs of the land in the eastern Collier County, and Mr. Lorenz had discussions with people who actually farmed that land. The information provided by ECPO was used in determining the interim NRPA boundaries that the County finally adopted. One area eliciting a great deal of evidence at hearing was North Belle Meade, which the FLUCCS map indicates is 90% wetlands. North Belle Meade was excluded from the interim NRPAs for several reasons. First, it is surrounded on three sides by areas of accelerating urban development and is bordered by I-75 on the fourth side. Mr. Beever conceded that the development of North Golden Gate Estates, to the east and north, will greatly reduce the habitat value of North Belle Meade. Mr. Beever also conceded that I-75 is a barrier in the landscape continuum between North Belle Meade and the Belle Meade interim NRPA. Based on his general experience, Mr. Beever did not believe that the interstate prevents panthers from crossing from one area to the other, but he admitted that he had no specific information regarding panthers crossing I-75 between North Belle Meade and Belle Meade. North Belle Meade has not been identified as a habitat conservation area for the Florida panther by the Florida Fish and Wildlife Conservation Commission. Another reason for the exclusion of North Belle Meade was the large number of individual landowners and small parcels platted within the area prior to June 22, 1999. The 1999 Final Order provided that developments approved prior to June 22, 1999, would not be subject to the use restrictions otherwise imposed by NRPA designation. This provision led the County to exclude from the Interim NRPAs those areas with approved developments. In North Belle Meade, landowners could permissibly build a single family residence on each parcel platted before that date, even if the area were designated as an interim NRPA, thus minimizing the utility of the designation. Finally, hydrologic changes have already had significant impact on the native vegetation of North Belle Meade, distinguishing its character from that of those areas adopted as interim NRPAs by the County. The areas designated as Interim NRPAs are large, connected systems. The criteria emphasized connecting areas with native habitat cover, which led to the exclusion from the NRPAs of active agricultural areas located on the outer edges of areas being considered for inclusion. Both Gary Beardsley and Mr. Beever testified that certain wildlife, such as the Florida panther and wading birds, use agricultural areas as habitat, particularly where there is a mosaic of agriculture mixed with native vegetation. They also testified that there is no hard data as to the extent to which such species rely on agricultural areas, or as to the type of agricultural uses that enhance, rather than degrade, the habitat value of lands. Mr. Beever disagreed with the Interim NRPA boundaries established by the County, but he also testified that he would not recommend including within those boundaries areas that have been converted from native to non-native vegetation, particularly active agriculture with heavy hydrological maintenance. The Department reviewed the transmitted NRPA boundaries and issued its Objections, Recommendations, and Comments ("ORC") Report. The ORC Report objected to the exclusion of three areas that appeared to meet the requirements for Interim NRPA designation: North Belle Meade; the "Stovepipe" area to the north, northwest, and northeast of the Okaloacoochee Slough; and the area southwest of the Okaloacoochee Slough that links the Slough to the southeastern portion of the Camp Keais Strand. The County responded by establishing the three SSAs described in Finding of Fact 26 above, covering North Belle Meade, the Stovepipe, and Oil Well Road. The SSAs correspond to the exclusions noted in the ORC Report's objections. Within these areas, the County recognizes the potential for significant natural resource issues, but also recognizes the impact of agricultural and mining activities on those resources. The Petition The Petitioners allege that the Interim NRPA delineations are not "in compliance" for the following reasons: They are not supported by data and analysis, as required by Section 163.3177(6)(a),(8), and (10)(e), Florida Statutes and Rule 9J-5.005(2)(a), Florida Administrative Code; They are not supported by data and analysis regarding the suitability of authorized land development; They fail to ensure adequate protection of natural resources; They are internally inconsistent with the Collier County Comprehensive Plan, particularly CCME Objectives 1.1 and 1.3, and Policy 1.3.1; and They are inconsistent with the State Comprehensive Plan, particularly Section 187.201(10)(a),(10)(b)(1),(10)(b)(3), (10)(b)(5), and (10)(b)(7), Florida Statutes. Data and Analysis The five interim NRPAs specified by the 1999 Final Order all lie outside the urban boundary of the County. The privately owned land in rural Collier County is predominantly in active agricultural use. Tom Jones, director of government affairs and environmental resources for Barron Collier Partnership, described rural Collier County as one of the most intensely farmed areas in southwest Florida. Mr. Jones testified that citrus operations have been in place around the Corkscrew Marsh and Lake Trafford since the 1960s, with expansions occurring in the 1980s and again in the 1990s. Tomato and potato cultivation have been in place for decades south of Lake Trafford along the Camp Keais Strand. Citrus, pasture, and row crops have occupied large expanses of rural Collier County since the end of World War II. These operations are conducted on a large scale. Mr. Jones pointed to one phase of citrus planting by Barron Collier Partnership that covers 4,500 acres. He also indicated that a single stormwater detention area for a tomato farm covers 13 square miles. Publicly owned land is also prevalent in rural Collier County. The area contains Big Cypress National Preserve, the Florida Panther National Wildlife Refuge, Fakahatchee Strand State Preserve, Collier Seminole State Park, and the Cape Romano- - Ten Thousand Islands Aquatic Preserve. Approximately 73% of the land in Collier County is either in public ownership or on an active acquisition list. No evidence was presented at the hearing indicating substantial residential development pressure in rural Collier County. Robert Mulhere, the County's planning director, testified that the established use of the land for agriculture has been under pressure for conversion to "upscale master plan residential golf course communities." The 1999 Final Order recognized this pressure, requiring that the Interim Amendments prohibit golf course development during the assessment period. The Petitioners contend that one of the most important sources of data and analysis relating to the wildlife and wildlife habitat of rural Collier County is Closing the Gaps in Florida's Wildlife Habitat Conservation System, a 1994 publication by individuals working for the Florida Game and Fresh Water Fish Commission (now the Florida Fish and Wildlife Conservation Commission). Closing the Gaps was an effort to map the land cover of the entire state, based on computer analysis of Landsat satellite imagery collected from 1985 to 1989. About 2.72 million acres, or 8% of the land area of Florida, was field inspected using a helicopter equipped with a Loran-C unit. The authors stated that, based on field reports, they estimated the overall accuracy of the land cover map at 80 to 90%, though they also acknowledged that accuracy varies according to the type of land cover being mapped. Ross McWilliams, an environmental consultant testifying on behalf of ECPO, stated that Closing the Gaps is a "good general document" and contains the best available data to someone looking at Florida from a large scale perspective in terms of land forms and types of species. Closing the Gaps states that the portion of Collier County northwest of the Big Cypress National Preserve, consisting of a "mixture of cypress swamp, hardwood swamp, dry prairie, and pineland represents one of the most important wildlife areas remaining in Florida." Closing the Gaps, p. 174. Closing the Gaps finds that nearly all of the Big Cypress Area of Critical State Concern that is not publicly owned is good habitat for the Florida panther, Florida black bear, and the American swallow-tailed kite. Id. Closing the Gaps reports that the privately owned lands west of State Road 29 and north of I-75 support a stable Florida black bear population, and rates much of the privately owned portion of the Big Cypress area as outstanding potential bear habitat, in terms of proximity to conservation areas, extent of roadless areas, diversity of cover types, and the presence of specific cover types. Closing the Gaps, p. 52, 174. Closing the Gaps states that "quick and aggressive action" is required to save the Florida panther from extinction, and cites the conversion of large areas of rangeland and native land cover to agriculture as one the greatest threats to the continued existence of panther habitat. The report singles out citrus development as a threat to subdivide existing, contiguous panther habitat. Closing the Gaps, p. 68. Among its suggestions for protecting natural resources, Closing the Gaps cites acquisition of privately held lands as the most effective and least controversial method, along with the purchase of lesser rights such as conservation easements. Closing the Gaps also urges local governments to protect valuable habitat through their comprehensive plans. Closing the Gaps, p. 191. ECPO agreed that Closing the Gaps is a useful tool for examining Florida's natural resources in terms of habitat and species at a statewide level in order to determine where there may be gaps in the state's conservation programs. However, ECPO convincingly demonstrated that an effort to base local planning decisions on the large scale satellite imagery utilized by Closing the Gaps is a misuse of that document. The text of Closing the Gaps itself contains disclaimers as to the utility of its satellite maps: The maps appearing in this report are intended to provide guidance to decision makers involved in public land acquisition, land use planning, development regulation, and other land conservation efforts. The maps represent our best estimate of those Florida lands that require some form of conservation to ensure that biodiversity is maintained for future generations. However, these maps represent only a snapshot of Florida’s conservation needs at one time. For example, the vegetation map used to create species distribution maps was based on satellite imagery dated 1985-1989; the species occurrence information is current through 1991-1993, depending on the species; and the database of public land boundaries extends only through 1992. As a consequence, some areas identified for protection may already be in public ownership or may no longer support the habitat features or species predicted to occur there, and the maps should not be incorporated into law or rule as inviolate zones in which no development may occur. Rather, the maps should be used as a layer of information when decisions are made concerning land acquisition, land-use planning, and development regulation. Closing the Gaps, p. 1 (Emphasis added). Another portion of Closing the Gaps restates its limitations as a definitive document for local planning purposes: The reader should be aware that the maps represent only a snapshot of Florida’s conservation needs at one point in time. The data on which the maps are based are already out-dated, and they will become increasingly out of date as time goes by. For example, the satellite imagery used for vegetation mapping and habitat modeling was collected between 1985 and 1989. Undoubtedly, some natural areas we identified as needing protection have been destroyed during the time it has taken to collect and analyze the data and publish the results. The temporal nature of the maps has two effects. First, because some areas identified as needing protection may no longer support the habitat features or species expected to occur there, these maps should not be incorporated into law or rule as inviolate zones in which no development may occur. Rather, the maps should be used as a layer of information in the making of decisions concerning land acquisition, land- use planning, and development regulation. Second, as time goes by, new parcels of land come into public ownership, new data become available on the locations of rare species, and the character of the Florida landscape changes. As a result, project maps are continually being updated with new information, and the latest version of the maps actually resides in the computer at the Office of Environmental Services. Therefore, before using the maps in this report for detailed management decisions, users should contact the Office of Environmental Services at the address below for the latest information on lands currently recommended for protection. Closing the Gaps, p. 9 (Emphasis added). Mr. Beever testified that he used Closing the Gaps in making his recommendations on behalf of the Florida Fish and Wildlife Conservation Commission, but conceded that aerial photographs provided by ECPO's consultants were more up to date and accurate. The evidence presented by ECPO demonstrated not only that some of the information in the Closing the Gaps maps is out of date, but that it was inaccurate even at the time the satellite images were made as applied to the relatively small scale of the areas at issue. Parts of the North Camp Keais area that were labeled "other vegetation" in Closing the Gaps were actually in agricultural use. Tim Durham of Wilson Miller, ECPO's consultant, testified that the inaccuracies were a function of attempting to apply habitat models based on the large scale satellite maps in Closing the Gaps to what is actually on the ground in a relatively small area. Mr. Durham stated that "it's almost like static on a T.V. screen. You’re starting to see a bunch of things that aren't really there. The habitat models were assuming habitats that weren't really out there." Mr. Durham found that the satellite imagery in Closing the Gaps provided inaccurate data that some of the agricultural lands contained four or five different habitat types in a tight mosaic. This data would cause a computer model erroneously to classify these agricultural lands as good native habitat. Mr. Beever noted that the Closing the Gaps data is being updated. However, the update continues to assume the correctness of the earlier data, leading the unwary reader to assume that large areas of natural habitat have been converted to agriculture between the years 1986 and 1996, though in fact the lands at issue have been in agricultural use throughout this period. Ross McWilliams, ECPO's environmental consultant, conducted an analysis of Closing the Gaps in comparison to what is actually on the lands in eastern Collier County and concluded that the vegetative land cover set forth in Closing the Gaps contained extensive errors. Mr. McWilliams found that Closing the Gaps mapped thousands of acres of agricultural lands as "scrub and brush." Mr. McWilliams visited 14 specific sites in eastern Collier County rural areas, and found that the "signature" (i.e., the identification of the predominant type of land cover) set forth in Closing the Gaps was incorrect for all 14 sites. The Petitioners also presented evidence that the Interim Amendments do not afford adequate protection to listed species. The exhibits presented by the Petitioners to establish the location and extent of Collier County habitat for the red cockaded woodpecker, wading bird rookeries, bald eagle, black bear, and Florida scrub jay were all based on Closing the Gaps data and thus not entirely reliable. As noted above, Closing the Gaps is not a reliable tool for establishing land cover on the small scale required for local planning purposes. Its findings as to habitat and potential habitat were based on its land cover findings, and therefore also suspect. The Petitioners also presented panther telemetry data to indicate the movement of the Florida panther in Collier County. The telemetry data persuasively demonstrated the presence of panthers in the area, but were inconclusive to establish the number of panthers moving through the area or their precise activity patterns. One of the purposes of the Assessment is to examine the telemetry data in order to better understand the panthers' movement and plan for their protection in the final plan amendments. This points to the overall conceptual problem with the Petitioners' case: it is premature. The Petitioners challenge the Interim NRPAs as not based on a thorough assessment of the County's natural resources, when the 1999 Final Order contemplates that the Interim NRPAs are a necessary prelude to that very assessment. The 1999 Final Order directed that the Assessment will cover virtually all of rural Collier County, and will have a three-part purpose: identify and propose measures to protect prime agricultural areas and prevent premature conversion of agricultural lands to other uses; direct incompatible uses away from wetlands and upland habitat in order to protect water quality and quantity, maintain the natural water regime, and protect listed animal and plant species and their habitats; and assess the growth potential of the Assessment area by assessing the potential conversion of rural lands to other uses, in appropriate locations, while discouraging urban sprawl, directing incompatible land uses away from critical habitat and encouraging development that utilizes creative land use planning techniques, recognizing the substantial advantages of innovative approaches to development that may protect environmentally sensitive areas, maintain the economic viability of agricultural and other predominantly rural land uses, and provide for the cost-efficient delivery of public facilities and services. The concerns raised by the Petitioners at this hearing are the same concerns voiced by the 1999 Final Order, which sets forth the procedures the County is to follow. The Petitioners are in effect asking the County to reach its conclusions as to natural resources issues before it undertakes the Assessment mandated by the Final Order. This request is impracticable. The testimony at the hearing established a broad scope for the Assessment and the amendments that may arise therefrom. The Assessment may result in the expansion of the Interim NRPA boundaries. It may result in the creation of new NRPAs. The County may arrive at a solution for protecting its natural resources that does not involve the designation of NRPAs. Based upon the data available to the County, and keeping in mind their transitional nature, the boundaries defined for the Interim NRPAs are at least fairly debatable. The concerns raised by the Petitioners will be addressed during the Assessment period. Once the Assessment is completed, the Petitioners will have the opportunity to contest the County's finished work product.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the Department of Community Affairs enter a final order finding the Interim Amendments to be "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2000. COPIES FURNISHED: C. Laurence Keesey, Esquire R. Bruce Anderson, Esquire Young, van Assenderp, Varnadoe & Anderson, P.A. 801 Laurel Oak Drive, Suite 300 Naples, Florida 34108 Ernest A. Cox, Esquire Patrick W. Maraist, Esquire Gunster, Yoakley, Valdes-Fauli & Stewart 777 South Flagler Drive, Suite 500E West Palm Beach, Florida 33401-6161E Shaw P. Stiller, Esquire Office of the General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Thomas W. Reese, Esquire 2951 61st Avenue, South St. Petersburg, Florida 33712 Martha Harrell Chumbler, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Marjorie M. Student, Esquire Collier County Attorney's Office Administration Building, 8th Floor 3301 East Tamiami Trail Naples, Florida 34112-4902 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether the plan amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background 1. E. K. Edwards (Edwards) and Richard J. Clark (Clark), who are non-parties, own two tracts of land totaling 43.76 acres approximately four or five miles west-northwest of the City of Pensacola in unincorporated Escambia County. The larger tract (known as the Northern Parcel and owned by Edwards) consists of one parcel totaling 26.76 acres and is located at 2700 Blue Angel Parkway, also known as State Road 173. The second tract (known as the Southern Parcel and owned by Clark) consists of four contiguous parcels totaling around 17 acres and is located approximately 560 feet south of the Northern Parcel at the northeastern quadrant of the intersection of Blue Angel Parkway and Sorrento Road (intersection). The two tracts are separated by two large privately-owned lots that currently have residential uses. (However, the land use on one of those parcels, totaling almost 9 acres, was recently changed to a Commercial land use designation. See Finding of Fact 15, infra.) On July 10, 2002, a realtor (acting as agent on behalf of the two owners) filed an application with the County seeking to change the land use on the FLUM for both the Northern and Southern Parcels from LDR to Commercial. The LDR category allows residential densities ranging from one dwelling unit per five acres to 18 dwelling units per acre, as well as neighborhood commercial uses. The Commercial category would allow the owners to place a broad range of commercial uses on their property, such as shopping centers, professional offices, medical facilities, convenience retail, or other similar uses. On November 20, 2002, the County Planning Board (on which Petitioner was then a member) considered the application and voted unanimously to change the land use classification on the Southern Parcel to Commercial. It also voted to change the non-wetlands portion of the Northern Parcel to Commercial. However, the request to change the land use on the wetlands portion of the Northern Parcel was denied. This recommendation was forwarded to the Board of County Commissioners (Board), which modified the Planning Board's recommendation and approved the application as originally submitted. The amendment was then sent to the Department for an in compliance determination. On June 13, 2003, the Department issued its Objections, Recommendations, and Comments (ORC) Report. In the ORC, the Department expressed concerns that there were insufficient "adequate data and analyses to demonstrate the suitability of the [Northern Parcel] for the proposed Future Land Use designation" because of the presence of on-site wetlands. The ORC went on to say that the County had failed to demonstrate how the proposed amendment would be consistent with four other Plan provisions that prohibit the location of commercial and industrial land uses in certain types of wetlands. The ORC recommended that the County "provide a more detailed characterization of the site and the surrounding area relative to the natural resources [wetlands] on the amendment site and the general area." After the issuance of the ORC, Mr. Edwards retained an ecological consultant, Dr. Joe A. Edmisten, to address the Department's concerns. On July 16, 2003, Dr. Edmisten submitted a 14-page Report in which he essentially concluded that while there were wetlands on the site, there were no endangered, threatened, rare, or listed plant or animal species. That Report has been received in evidence as Petitioner's Exhibit 4. In light of this new information, the Planning Board again considered the matter on August 20, 2003, and by a four- to-one-vote recommended that the application, as originally filed, be approved. The matter was then forwarded to the Board. In response to an inquiry by a Board member at the Board's meeting on September 4, 2003, Dr. Edmisten stated that he found a "few pitcher plants in the wetlands [on Mr. Edwards' property]," including Sarracenia leucophylla, which is on the State (but not federal) Endangered Plant List. See Fla. Admin. Code R. 5B-40.0055(1)(a)334. Even though this information had not been disclosed in the Report, by a three- to-two vote, the Board adopted Ordinance No. 2003-45, which approved the change to the FLUM for both the Northern and Southern Parcels. On October 24, 2003, the Department issued its Notice of Intent to Find the Escambia County Comprehensive Plan Amendment in Compliance. On November 17, 2003, Petitioner, who resides, owns property, and operates a business within the County, and submitted written or oral comments, objections, or recommendations to the County before the amendment was adopted, filed his Petition alleging that the plan amendment was not in compliance. Petitioner is an affected person within the meaning of the law and has standing to file his Petition. In the parties' Pre-Hearing Stipulation, Petitioner contends that there is inadequate data and analyses relative to the natural environment (wetlands), traffic concurrency, and urban sprawl to support the amendment. As further clarified by Petitioner, he does not challenge the change in the FLUM for the Southern Parcel, but only contests that portion of the amendment which changes the land use on the Northern Parcel, on which wetlands are sited. In view of this, only the Northern Parcel will be considered in this Recommended Order. The Property The Northern Parcel fronts on the eastern side of Blue Angel Parkway approximately 1,400 feet north of the intersection. In broader geographic terms, the property is in western Escambia County and appears to be several miles west- northwest of the Pensacola Naval Air Station (which lies west- southwest of the City of Pensacola) and several miles south of U.S. Highway 98, which runs east-west through the southern part of the County. Blue Angel Parkway is a minor arterial roadway (at least where it runs in front of the Northern Parcel) and begins at the Pensacola Naval Air Station (to the south) and runs north to at least U.S. Highway 98. From the Naval Air Station to the intersection, Blue Angel Parkway appears to have four lanes, and from that point continuing past the Northern Parcel to U.S. Highway 98, it narrows to two undivided lanes. At the present time, an old borrow pit sits on the eastern side of the land, for which the property was given a special exception by the County's Zoning Board of Adjustments in March 1995. Also, there are at least three other ponds (or old borrow pits) formerly used by the owner for catfish farming; two large, unused metal buildings (apparently hangars) moved from the Naval Air Station to the property as military surplus; and numerous stored empty tanks in the southeastern corner of the property. The remainder of the property is vacant. When Dr. Edmisten's Report was submitted in July 2003, all of the ponds were filled with water due to recent heavy rains. Because of existing development at all corners of the intersection except the southwest corner, the intersection has been designated by the County as a commercial node, and the County considers the node to extend from the intersection northward along the eastern side of Blue Angel Parkway to the Northern Parcel. (However, on the western side of the road, the County has determined that the node terminates at the end of a parcel on which a Wal-Mart Super Center sits, and that further commercial development beyond that point would be inappropriate.) This determination is consistent with the Commercial land use classification found on the western portion of the Northern Parcel. See Finding of Fact 13, infra. The property presently carries a split future land use: an approximate 150-foot deep sliver of land which fronts on Blue Angel Parkway is classified as Commercial, while the remainder of the parcel is LDR. This dichotomy in land uses stems from a decision by the County in 1993 (when the Plan was adopted) to designate a narrow commercial strip on both sides of Blue Angel Parkway from just south of the intersection to Dog Track Road, which lies north of the Northern Parcel. The property also carries an Industrial zoning classification (presumably related to the mining activities), even though the land use on most of the parcel is residential. By his application, Edwards is seeking to "unify" the back or eastern portion of his property, which is now LDR, with the western portion fronting on Blue Angel Parkway, which is classified as Commercial. To the east of the Northern Parcel is Coral Creek, a fairly large residential subdivision platted in the 1990s. Some of the single-family lots in that subdivision back up to the eastern boundary of the property. The property to the north is vacant, is populated with some pitcher plants, and is classified as residential. Across the street and to the southwest is a new Wal-Mart Super Center which opened in the last year or so at the northwestern quadrant of the intersection. (The northern boundary of the Wal-Mart Super Center parcel is directly across the street from the southern boundary of the Northern Parcel.) The property directly across the street and extending to the north is vacant and classified as Residential. That parcel also contains pitcher plants and is informally designated as "pitcher plant prairie." The property which separates the Northern and Southern Parcels is classified as Residential, except for 8.98 acres which were recently changed from LDR to Commercial through a small-scale development amendment approved by the Department. See Gregory L. Strand v. Escambia County, DOAH Case No. 03-2980GM (DOAH Recommended Order Dec. 23, 2003; DCA Final Order Jan. 28, 2004). The Final Order in that case, however, has been appealed by Petitioner. While the precise amount of wetlands on the site is unknown, the record does indicate that wetlands exist on "approximately" one-half of the Northern Parcel, or around thirteen or so acres, leaving a like amount of uplands. (Therefore, even if the property is reclassified, the amount of development on the property will be restricted in some measure through the application of the County's Wetlands Ordinance found in the Land Development Code.) A small area of wetlands exists on the western side of the property near Blue Angel Parkway while a larger wetland system lies on the eastern side of the property and acts as a buffer with the Coral Creek subdivision. The wetlands are under the permitting jurisdiction of the United States Corps of Engineers, the Department of Environmental Protection, and the County. Petitioner's Objections Petitioner contends that the amendment is not in compliance because there is inadequate data and analyses relative to conservation (wetlands), traffic, and urban sprawl to support the change in the land use.2 These issues will be addressed separately below. Wetlands As to this objection, Petitioner's principal concern is that if the land use change is approved, there will be much more intense development on the property which will result in a loss of wetlands, even with mitigation. Citing Policy 11.A.2.6.d of the Coastal Management Element of the Plan, he contends that there is insufficient data and analyses to support the plan amendment's distribution of land uses in such a way as to minimize the effect and impact on wetlands. The cited policy contains provisions which govern the development of lands within wetland areas, including one provision which states that "commercial and industrial land uses will not be located in wetlands that have a high degree of hydrological or biological significance, including the following types of wetlands: . . . Wetlands that have a high degree of biodiversity or habitat value, based on maps prepared by the Florida Fish and Wildlife Commission or Florida National Areas Inventory, unless a site survey demonstrates that there are no listed plant or animal species on the site." In Case No. 03-2980GM, supra, which involved a change in the FLUM on a parcel of property which separates the Northern and Southern Parcels, Petitioner contended, among other things, that the terms of Policy 11.A.2.6.d should apply whenever the FLUM is being amended, and that because there were wetlands on the parcel, along with two types of endangered plants, the policy prohibited a change from a residential to a commercial land use. In rejecting that contention, however, the Department approved and adopted language by the Administrative Law Judge which concluded, for several reasons, that "the County intended Policy 11.A.2.6.a through e to apply to decisions of the County regarding development applications and not to changes in future land use designations or categories in a FLUM." (Recommended Order, page 19). Therefore, the policy applies to development applications, and not to FLUM amendments, and does not have to be considered at this juncture. (That policy, and the County's Wetlands Ordinance, will obviously come into play at the time a site plan is filed and the owner seeks to develop the property.) As such, there is no need for data and analyses at this time to demonstrate that the policy has been satisfied. As noted above, after the Department issued its ORC, Mr. Edwards engaged the services of Dr. Edmisten, who performed a study and prepared a Report that evaluated the wetlands on the Northern Parcel. That Report constitutes much of the data and analyses which support the amendment. Despite the presence of one endangered plant species, the Report indicates that the wetlands do not have a high degree of hydrological or biological significance; that the change in the FLUM is consistent with all relevant policies in the Plan, including those cited in the ORC; that a mitigation plan will be offered prior to any development; and that all wetlands issues will be addressed during the development stage. The Report also indicates that among other things, Dr. Edmisten utilized the National Wetlands Inventory Map in reaching his conclusions. The Department reviewed the document and found that it constituted the best available data and analyses, that the data were analyzed in a professional manner, and that the County reacted to the data in an appropriate manner when it adopted the amendment. This is especially true since the County has provisions in its Plan for wetlands avoidance and fully considers these issues through the site-review process. Given these considerations, it is at least fairly debatable that there exist adequate data and analyses regarding wetlands to support the change in the land use on the property. Traffic Petitioner also contends that there is a lack of adequate data and analyses to demonstrate that the proposed change in land use will not adversely impact traffic in the area. More specifically, he contends that the County failed to perform an analysis of infrastructure capacity, and that it also failed to include information that Blue Angel Parkway is not in its five-year plan for improvements. Data and analyses were provided in the form of a spreadsheet dated November 6, 2002, and entitled Traffic Volume and Level of Service Report (Traffic Report). The Traffic Report contained several categories of information regarding traffic volume, Level of Service (LOS), and other transportation information. (See Petitioner's Exhibit 1) The data were far more detailed than data previously used by the County on other amendments of this size and character, and they were based on Florida Department of Transportation (DOT) accepted standards of traffic calculations. The data and analyses were the best available at the time the plan amendment was adopted. The data shows that the section of Blue Angel Parkway on which the Northern Parcel fronts has an adopted LOS of "D." At the time the amendment was adopted, the service volume on that portion of the road was 74 percent, which means that the roadway was operating at 74 percent of its capacity. Therefore, when the amendment was adopted, the roadway was not failing, and it could handle additional traffic, including any that might be associated with the future development of the land. Petitioner also contends that the County's study was flawed because the County used so-called "Art Tab" software, which became outdated after September 1, 2002. (Art-Tab software has now been updated and is called Free Plan software.) He further suggests that the County should have performed a new study using updated software. Under DOT requirements set forth in its Quality/Level of Service Handbook, however, the County was not required to redo its analysis; rather, it was required to use the new software only in the event further studies were required. Because Blue Angel Parkway was not failing at the time the study was performed, it was not necessary for the County to undertake a new study. During the interagency review process, the DOT did not issue any objections, recommendations, or comments to the Department concerning the amendment. Finally, Petitioner contends that because the County did not have Blue Angel Parkway on any road improvement list at the time the amendment was adopted, its analysis of infrastructure capacity was flawed. See Section 163.3177(3)(a), Florida Statutes, which requires that each local government's comprehensive plan contain a capital improvements element with a component which outlines the principles for correcting public facility deficiencies covering at least a five-year period. Whether the County's Plan contains such a component is not of record. In any event, even if the County failed to consider the fact that Blue Angel Parkway was not scheduled for upgrading when the amendment was adopted, given the other data and analyses available at that time (the traffic spreadsheet), which reflected that the roadway was operating below capacity, the County had sufficient information regarding infrastructure capacity to support the amendment. Based on the foregoing, it is at least fairly debatable that the amendment has adequate data and analyses relative to traffic impacts to support the land use change. Urban sprawl Finally, Petitioner asserts that no data were gathered and no analyses were performed to demonstrate that the change in land use will discourage urban sprawl. In this case, the Department did not require that the County perform an urban sprawl analysis, given the type of surrounding land uses; the relative small size of the Northern Parcel; the absence of any land use allocation problems; the ability of the owner to now place up to 18 units per acre and/or neighborhood commercial development on the property under the current LDR classification; and the fact that the Northern Parcel is located on the edge of a rapidly urbanizing area of the County. At the same time, Petitioner presented no evidence which supported the need for such a study. The Northern (and Southern) Parcel is located in a rapidly urbanizing area of the County and is close to several other urban uses. Indeed, as noted earlier, there is a Wal- Mart Super Center across the street at the northwestern quadrant of the intersection, and a mix of commercial and residential uses abut the intersection to the southeast. All four corners of the intersection have been designated as a commercial node in the County's draft Southwest Sector Plan, and the County has determined that the node continues northward on the eastern side of the road to and including the Northern Parcel. As a general rule, the Department considers the size and shape of nodes to be a local government decision, and it found no reason here to question that determination. The Plan encourages commercial development at intersectional nodes. Under Florida Administrative Code Rule 9J- 5.003(134), urban sprawl is defined in part as "urban development or uses which are located in predominately rural areas." Indicators of urban sprawl include "[t]he premature or poorly planned conversion of rural land to other uses," and the "creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area." The evidence does not support a finding that the amendment will result in the poorly planned conversion of rural lands, or the creation of a land use that is not functionally related to land uses that predominate the adjacent area. Given these considerations, Petitioner has not proven beyond fair debate that the plan amendment will result in urban sprawl, or that the County lacked adequate data and analyses related to urban sprawl to support the change in the land use.
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 amendment adopted by Ordinance No. 2003-45 on September 4, 2003, is in compliance. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2004.
The Issue Whether an amendment to the Lee County Comprehensive Plan, adopted by Ordinance 15-10 on June 3, 2015, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).1/
Findings Of Fact Petitioners, Roger Thornberry, Georgette Lundquist, Steven Brodkin, Ruby Daniels, Rosalie Prestarri, and James Giedman, reside in and own property within Lee County. Petitioners submitted oral and written comments to Lee County concerning the challenged Plan Amendment during the period of time beginning with the transmittal hearing for the Plan Amendment and ending with the adoption of the Plan Amendment. Respondent, Lee County (the County), is a political subdivision of the State of Florida with the duty and responsibility to adopt and maintain a comprehensive growth management plan pursuant to section 163.3167, Florida Statutes (2015). Intervenors, RH Venture II, LLC; RH Venture III, LLC; and Greenpointe Communities, LLC (Greenpointe), are the owners and developers of the property which is subject to the Plan Amendment. Intervenors are the applicants for the Plan Amendment. The Lee County Comprehensive Plan (Comprehensive Plan) allocates future land uses based on community plans for 22 distinct communities within the County. The Fort Myers Shores planning community is located in eastern Lee County. Within Fort Myers Shores is a sub-community planning area known as Caloosahatchee Shores, which is located south of the Caloosahatchee River, east of Interstate 75 (I-75), and west of Hickey’s Creek. The southern boundary of Caloosahatchee Shores is the Orange River and State Road 82. Caloosahatchee Shores contains a mixture of future land use designations. The majority of the land is designated Suburban, Sub-Outlying Suburban, Rural, or Urban Community. The subject property is located in Caloosahatchee Shores within an existing 1,978-acre mixed-use golf community known as River Hall. Most of the existing development in River Hall was completed between 2004 and 2009 by the original developer, Landmar Group, which was then owned by Crescent Resources. Crescent Resources declared bankruptcy in 2009. Those portions of River Hall subject to the Plan Amendment were acquired by Greenpointe in 2010. The property subject to the Plan Amendment is approximately 585 acres of non-contiguous land within the existing mixed-use development. All of the property subject to the Plan Amendment is located within the Rural future land use category. The Plan Amendment changes the future land use category of the subject property from Rural to Sub-Outlying Suburban.2/ The density of development allowed in Rural is one dwelling unit per acre and the density of development allowed in Sub-Outlying Suburban is two units per acre. In 2001, the Lee County Board of County Commissioners (Lee County Commission) adopted procedures to encourage community planning aimed at specific neighborhood interests within the County. A coalition of property owners in Caloosahatchee Shores developed the Caloosahatchee Shores Community Plan (Community Plan) between 2001 and 2003. The Community Plan was incorporated into the Comprehensive Plan in 2003 and is codified as Future Land Use Element (FLUE) Goal 21 and its implementing objectives and policies. FLUE Goal 21 reads as follows: GOAL 21: CALOOSAHATCHEE SHORES: To protect the existing character, natural resources and quality of life in Caloosahatchee Shores, while promoting new development, redevelopment and maintaining a more rural identity for the neighborhoods east of I-75 by establishing minimum aesthetic requirements, planning the location and intensity of future commercial and residential uses, and providing incentives for redevelopment, mixed use development and pedestrian safe environments. This Goal and subsequent objectives and policies apply to the Caloosahatchee Shores boundaries as depicted on Map 1, page 2 of 8 in the Appendix. The Community Plan was amended in 2007 and again in 2009. Policy 21.1.5 was added to the Community Plan in 2009, and reads as follows: POLICY 21.1.5: One important aspect of the Caloosahatchee Shores Community Plan goal is to retain its’ [sic] rural character and rural land use where it currently exists. Therefore no land use map amendments to the remaining rural lands category will be permitted after May 15, 2009, unless a finding of overriding public necessity is made by three members of the Board of County Commissioners. It is undisputed that the Plan Amendment removes land from the Rural land use category. It is undisputed that the Lee County Commission did not make a finding of an “overriding public necessity” when it adopted the Plan Amendment. Petitioners allege the Plan Amendment is internally inconsistent with Policy 21.1.5 because the Lee County Commission did not make the requisite finding of an “overriding public necessity” to remove property from the Rural land use category.3/ Respondent and Intervenors argue that Policy 21.1.5 does not apply to the Plan Amendment because the existing development on the property subject to the Plan Amendment is not rural in either character or land use. Respondent and Intervenors introduced abundant evidence to establish that the property subject to the Plan Amendment is suburban development served by the full spectrum of urban services and devoid of any of the trappings of rural development, such as large-lot residential and agricultural uses. Respondent and Intervenors advocate an interpretation of Policy 21.1.5 which requires a finding of “overriding public necessity” only if a plan amendment removes property that exhibits rural character or rural land use from the Rural land use category. The County offered the testimony of Brandon Dunn, one of its principal planners. Mr. Dunn characterized the Policy as an “if/then statement”: if property in the Rural land use category (subject to a plan amendment) exhibits rural character and rural land use, then a finding of “overriding public necessity” is required. Under Mr. Dunn’s analysis, Policy 21.1.5 does not apply to the Plan Amendment because River Hall is a suburban community. Intervenors’ planning expert, Dr. David Depew, testified that the first sentence narrows the application of the second. Dr. Depew testified that the first sentence indicates “we aren’t talking about the category per se.”4/ Under Dr. Depew’s reading, the second sentence only applies to plan amendments which exhibit rural character or rural land use, rather than all plan amendments removing property from the Rural land use category. Neither Mr. Dunn’s nor Dr. Depew’s opinion is persuasive.5/ The interpretation advanced by both Respondent and Intervenors adds language to the second sentence of Policy 21.1.5 limiting its application to only those plan amendments which exhibit rural character and rural land use. The plain language of Policy 21.1.5 contains no such limitation. The policy directs the County to make a finding of an “overriding public necessity” as a prerequisite to removing land from the Rural land use category in Caloosahatchee Shores. The first sentence of Policy 21.1.5 does not constitute a limitation on the directive for a finding of an “overriding public necessity.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Lee County Plan Amendment, adopted by Ordinance 15-10 on June 3, 2015, is not “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 1st day of December, 2015, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2015.
The Issue Whether Escambia County Ordinance No. 2017-65 (Ordinance) adopted on November 30, 2017, amending the Heavy Commercial/Light Industrial (HC/LI) zoning district in the Escambia County Land Development Code (LDC) is consistent with the 2030 Escambia County Comprehensive Plan (Comp Plan). Whether Remedial Ordinance No. 2018-30 (Remedial Ordinance) adopted on August 2, 2018, alleviates any inconsistency in the Ordinance such that the HC/LI zoning district regulation is consistent with the Comp Plan.
Findings Of Fact The Petitioner lives and owns property in Cantonment, Escambia County, Florida, in proximity to parcels of land impacted by the Ordinance and Remedial Ordinance. As such, the Petitioner would be subject to an increase in noise and traffic resulting from the Ordinance and Remedial Ordinance, as well as an adverse change in the character of her rural neighborhood. The County is a non-charter county and political subdivision of the State of Florida. The County is the affected local government and is subject to the requirements of chapter 163. DEO is the state land planning agency and has the duty to review and investigate petitions submitted under section 163.3213, challenging land development regulations adopted by local governments. The Ordinance was enacted to amend Part III of the County's LDC to address consistency of parcels zoned HC/LI with the MU-S FLU Category. The preamble to the Ordinance indicates a previous consolidation of zoning districts implemented on April 16, 2015, "did not eliminate all occurrences of zoning districts that appear to allow uses, density, or other intensities of use not authorized by the prevailing purposes and associated provisions of applicable future land use categories." The County's Board of County Commissioners (Board) found that "there are occurrences of HC/LI zoning within the MU-S future land use category," and "it is in the best interests of the health, safety, and welfare of the public to address any inconsistency created by HC/LI zoning within the MU-S future land use category." After the DEO's determination of partial inconsistency, the County adopted the Remedial Ordinance, which makes no reference to the April 15, 2015, consolidation of zoning districts in the preamble. In addition, the Remedial Ordinance amends the Ordinance to delete certain confusing references to parcels and their previous zoning as of April 15, 2015. Thus, the Remedial Ordinance is much clearer than the Ordinance in addressing the prior inconsistency created by HC/LI zoning within the MU-S FLU category. Mixed-Use Suburban Future Land Use Category The MU-S FLU is described in FLU Policy 1.3.1 of the Comp Plan as "[i]ntended for a mix of residential and non- residential uses while promoting compatible infill development and the separation of urban and suburban land uses." The MU-S FLU lists the range of allowable uses as "[r]esidential, retail sales & services, professional office, recreational facilities, public and civic, limited agriculture." The MU-S FLU prescribes standards, such as a residential maximum density of 25 dwelling units per acre (du/acre) and a non-residential maximum intensity floor area ration (FAR) of one. The MU-S FLU also describes the mix of land uses that the County intends to achieve for new development in relation to location, i.e., the distance from arterial roadways or transit corridors. Within one-quarter mile of arterial roadways or transit corridors: residential percentages of 8 to 25 percent; public, recreational and institutional percentages of 5 to 20 percent; non-residential uses such as retail service at 30 to 50 percent; and office at 25 to 50 percent. Beyond one-quarter mile of arterial roadways or transit corridors: residential percentages of 70 to 85 percent; public, recreational and institutional percentages of 10 to 25 percent; and non- residential percentages of 5 to 10 percent. The mix of land uses described by the Comp Plan MU-S FLU category can be implemented by multiple zoning districts in the LDC. Certain zoning districts within MU-S further the residential intentions of the FLU category and other zoning districts further the non-residential intentions of the MU-S FLU category. However, all zoning districts within MU-S contain some element of residential use. The Ordinance and Remedial Ordinance The Remedial Ordinance amended the purpose subsection (a) of section 3-2.11 of the County LDC by adding language that directly limited the "variety and intensity of non- residential uses within the HC/LI [zoning] district" by "the applicable FLU." This means that although various non- residential uses are permitted in the HC/LI zoning district, the FLU category in the Comp Plan determines the "variety and intensity" of those non-residential uses. The Ordinance had amended subsection (h) of section 3-1.3 of the County LDC to clarify that "[o]ne or more districts may implement the range of allowed uses of each FLU, but only at densities and intensities of use consistent with the established purposes and standards of the category." This clarification is consistent with FLU Policy 1.1.4 in the Comp Plan, which states that "[w]ithin a given future land use category, there will be one or more implementing zoning districts." The Remedial Ordinance amended the permitted uses in subsection (b) of section 3-2.11 of the County LDC by deleting the confusing reference to parcel sizes and their previous zoning as of April 15, 2015. In paragraph (6) of subsection 3-2.11(b), the Remedial Ordinance made clear that the listed "industrial and related uses" are not permitted "within MU-S." In general, the other permitted uses mirror the range of allowable uses in the MU-S FLU category. The Remedial Ordinance amended the conditional uses in subsection (c) of section 3-2.11 to make clear that the listed industrial and related conditional uses are not permitted within MU-S. The Ordinance added MU-S to the site and building requirements in subsection (d) of section 3-2.11 to require a maximum FAR of 1.0. The Remedial Ordinance also imposed a maximum structure height for "any parcel previously zoned GBD [Gateway Business District] and within the MU-S" of 50 feet, which is lower than the maximum of 150 feet for HC/LI zoning not within MU-S. The Remedial Ordinance amended the location criteria in subsection (e) of section 3-2.11 to limit "[a]ll new non- residential uses proposed within the HC/LI district" to parcels previously zoned GBD and within the MU-S FLU category that are located along and directly in front of "U.S. Highway 29 or State Road 95A." In addition, another location criterion limits new non-residential uses along arterial streets to within one-quarter mile of their intersection with an arterial street. The provisions of the Ordinance and Remedial Ordinance are consistent with the County Comp Plan. Petitioner's Objections The Petitioner contended that the HC/LI zoning regulation allows intensities and scales of commercial uses that are inconsistent with the character of a predominantly residential FLU like MU-S. The Petitioner based her contention on the Comp Plan definition of "suburban area" and argued that the Ordinance and Remedial Ordinance permitted uses, densities, and intensities that were not "suburban in nature." "Suburban area" is defined in the Comp Plan as "[a] predominantly low-density residential area located immediately outside of an urban area or a city and associated with it physically and socioeconomically." By contrast, "mixed-use" is defined in the Comp Plan as "any use that includes both residential and non-residential uses." See ch. 3, § 3.04, Escambia Cnty. Comp Plan. Contrary to the Petitioner's contention, the MU-S FLU category's primary focus is on a mix of uses in a suburban area. See Findings of Fact Nos. 6-8, above. Indeed, the FLU element of the Comp Plan expresses a purpose and intent to encourage mixed- use development. Also, the Petitioner's focus on the differences between the MU-S and Mixed-Use Urban (MU-U) FLU categories in the Comp Plan was misplaced. The premise that the HC/LI zoning district implements the MU-U FLU category better than it implements the MU-S FLU category was not the issue to be determined in this proceeding. Rather, it was whether the Ordinance, as amended by the Remedial Ordinance, amending the HC/LI zoning district in the LDC is consistent with the Comp Plan. All other contentions not specifically discussed have been considered and rejected.
The Issue The issue before the Florida Land and Water Adjudicatory Commission (Commission) in this proceeding is whether to grant the Petition of the Wiregrass Community Development District (Petition) to contract the boundary of the Wiregrass Community Development District (District) by removing approximately 2,196.846 acres from the 3,974.294 acres of land that comprise the current area encompassed by the District. The local public hearing was conducted pursuant to sections 190.046(1)(f) and 190.005(1)(d), Florida Statutes, for the purpose of taking testimony and public comment and receiving exhibits on the Petition. This report is prepared and submitted to the Commission pursuant to sections 190.046 and 190.005 for consideration in its determination whether to adopt a rule amending the boundary of the District as requested by the District.
The Issue The issue in this case is whether the amendments to Miami- Dade County’s Comprehensive Development Master Plan (CDMP), adopted through Ordinance Nos. 08-44 and 08-45, are “in compliance” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1
Findings Of Fact The Parties The Department is the state land planning agency and is statutorily charged with the duty to review amendments to local comprehensive plans and to determine whether the amendments are “in compliance,” pursuant to Section 163.3184, Florida Statutes. The County is a political subdivision of the State and has adopted a local comprehensive plan that the County amends from time to time. 1000 Friends is a Florida not-for-profit corporation that maintains its headquarters in Tallahassee, Florida. Its corporate purpose is to ensure the fair and effective implementation of the Growth Management Act, Chapter 163, Part II, Florida Statutes, through education, lobbying, research and litigation. 1000 Friends has approximately 3,500 members, 174 of whom live in the County. NPCA is a foreign, not-for-profit corporation that is registered to do business in Florida. Its headquarters are in Washington, D.C. It has a branch office in Hollywood, Broward County, Florida. NPCA’s purpose is to protect and preserve national parks, including Everglades National Park. NPCA has approximately 340,000 members, 1,000 of whom live in the County. Barry White and Karen Esty are residents of the County. Lowe’s is a for-profit corporation that owns and operates a business in the County. David Brown, along with his father and brother, is a co-applicant for the Brown amendment. For the purpose of this Recommended Order, the Department and the Intervenors aligned with the Department will be referred to, collectively, as Petitioners. Standing Lowe’s filed the application with the County that resulted in Ordinance No. 08-44 (Lowe’s Amendment). Lowe’s submitted comments to the County concerning the Lowe’s Amendment during the period of time from the County’s transmittal of the amendment to the County’s adoption of the amendment. Brown filed the application with the County that resulted in Ordinance No. 08-45 (Brown Amendment). Brown resides in the County. Brown is a manager/member of BDG Kendall 172, LLC, which has a contract to purchase the larger of the two parcels on the application site. Brown is also a manager/member of BDG Kendall 162, LLC, which owns and operates a business in Miami-Dade County. Brown submitted comments to the County at the transmittal and adoption hearings. 1000 Friends submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. 1000 Friends presented its comments to the County on behalf of its members who reside in the County. 1000 Friends does not own property or maintain an office in the County. 1000 Friends does not pay local business taxes in the County and did not show that it is licensed to conduct a business in the County. 1000 Friends has engaged in fundraising, lobbying, and litigation in the County. Its activities include efforts to promote growth management, affordable housing, and Everglades restoration. 1000 Friends did not show that its activities in the County subject it to the provisions of the CDMP. NPCA submitted comments to the County during the period of time from the transmittal of the amendments to their adoption. NPCA presented its comments to the County on behalf of NPCA members who reside in the County. NPCA does not own property or maintain an office in the County. No evidence was presented to show that NPCA pays business taxes in the County or that it is licensed to conduct business in the County. NPCA did not show that its activities in the County subject it to the provisions of the CDMP. Barry White and Karen Esty are residents of the County. They submitted comments to the County regarding the amendments during the period of time from the transmittal of the amendments to their adoption. The Amendment Adoption Process The applications which resulted in the Lowe’s and Brown Amendments were submitted to the County during the April 2007 plan amendment cycle. The County’s review process for comprehensive plan amendments includes a public hearing before the community council which has jurisdiction over the area of the County where the affected lands are located. Following the public hearings on the proposed Lowe’s and Brown Amendments, the community councils recommended that the Board of County Commissioners approve the amendments. The County’s Planning Advisory Board also reviews proposed amendments before the transmittal and adoption hearings. Following public hearings on the proposed Lowe’s and Brown Amendments, the Planning Advisory Board recommended that the Board of County Commissioners approve the amendments for transmittal and for adoption. The County planning staff recommended that the proposed amendments be denied and not transmitted to the Department. The principal objection of the planning staff was that the expansion of the Urban Development Boundary (UDB), an aspect of both proposed amendments, was unjustified. In November 2007, the Board of County Commissioners voted to transmit the amendments to the Department. The Department reviewed the proposed amendments and issued its Objections, Recommendations, and Comments (ORC) Report on February 26, 2008. In the ORC Report, the Department stated that expanding the UDB would be internally inconsistent with the CDMP because the need for the expansion had not been demonstrated. In addition the Department determined that the Lowe’s Amendment was inconsistent with CDMP policies regarding the protection of wetlands, and the Brown Amendment was inconsistent with CDMP policies regarding the protection of agricultural lands. When the amendments came before the Board of County Commissioners after the ORC Report in March 2008, the County planning staff recommended that the amendments be denied, repeating its belief that the expansion of the UDB would be inconsistent with the CDMP. Under the County’s Code of Ordinances, an expansion of the UDB requires approval by a two-thirds vote of the Board of County Commissioners. The County adopted the amendments through Ordinances No. 08-44 and 08-45 on April 24, 2008. On April 30, 2008, the Mayor Carlos Alvarez vetoed the ordinances, citing inconsistencies with the UDB policies of the CDMP. His veto was overridden by a two-thirds vote of the Board of County Commissioners on May 6, 2008. On July 18, 2008, the Department issued its Statement of Intent to Find Comprehensive Plan Amendments Not in Compliance. The Lowe’s Amendment The Lowe’s Amendment site consists of two parcels located in close proximity to the intersection of Southwest 8th Street, also known as Tamiami Trail, and Northwest 137th Avenue. The easternmost parcel, Parcel A, is 21.6 acres. The adjacent parcel to the west, Parcel B, is 30.1 acres. Neither parcel is currently being used. About 50 percent of both Parcels A and B are covered by wetlands. The wetlands are partially drained and show encroachment by exotic vegetation, including Melaleuca and Australian pine. The Lowe’s site is located within the Bird Trail Canal Basin, which the CDMP characterizes as containing “heavily impacted, partially drained wetlands.” Both Parcels A and B are currently designated Open Land under the CDMP, with a more specific designation as Open Land Subarea 3 (Tamiami-Bird Canal Basins), and can be used for residences at densities of up to one unit per five acres, compatible institutional uses, public facilities, utility and communications facilities, certain agricultural uses, recreational uses, limestone quarrying, and ancillary uses. East of the Lowe’s site is another parcel owned by Lowe’s that is designated Business and Office and is within the UDB. North and west of the Lowe’s site is Open Land. The Lowe’s site is bordered on the south by Tamiami Trail, a six- lane road. Across Tamiami Trail is land designated Business and Office. The Lowe’s amendment would reclassify Parcel A as Business and Office and Parcel B as Institution, Utilities, and Communications. The Lowe’s Amendment would also extend the UDB westward to encompass Parcels A and B. The Business and Office designation allows for a wide range of sales and service activities, as well as compatible residential uses. However, the Lowe’s amendment includes a restrictive covenant that prohibits residential development. The Institution, Utilities, and Communications land use designation allows for “the full range of institution, communications and utilities,” as well as offices and some small businesses. Parcel A is subject to another restrictive covenant that provides that Lowe’s shall not seek building permits for the construction of any buildings on Parcel A without having first submitted for a building permit for the construction of a home improvement store. The use of Parcel B is restricted to a school, which can be a charter school. If a charter school is not developed on Parcel B, the parcel will be offered to the Miami-Dade County School Board. If the School Board does not purchase Parcel B within 120 days, then neither Lowe’s nor its successors of assigns have any further obligations to develop a school on Parcel B. The Brown Amendment The Brown Amendment involves four changes to the CDMP: a future land use re-designation from “Agriculture” to “Business and Office”; an expansion of the UDB to encompass the Brown site; a prohibition of residential uses on the site; and a requirement that the owner build an extension of SW 172nd Avenue through the site. The Agriculture designation allows agricultural uses and single family residences at a density of one unit per five acres. The proposed Business and Office land use designation allows a wide range of commercial uses, including retail, professional services, and office. Residential uses are also allowed, but the Declaration of Restrictions adopted by the County with the Brown Amendment prohibits residential development. The Brown Amendment site is 42 acres. Some of the site is leased to a tenant farmer who grows row crops. The balance is vacant and not in use. The Brown site has a triangular shape. Along the sloping northern/eastern boundary is Kendall Drive. Kendall Drive is a major arterial roadway, a planned urban corridor, and part of the state highway system. On the site's western boundary is other agricultural land. There is commercial development to the east. Along the southern boundary is the 1200-unit Vizcaya Traditional Neighborhood Development, which is within the UDB. The entirety of the Brown site has been altered by farming activities. In the southwest portion of the site is a four-acre, degraded wetland that is part of a larger 28-acre wetland located offsite. The wetland is not connected to any state waters and the Army Corps of Engineers has not asserted jurisdiction over it. The wetland is not on the map of “Future Wetlands and CERP Water Management Areas” in the Land Use Element of the CDMP. The dominant plants in the wetland are exotic species. There is no evidence that any portion of the site is used by any threatened or endangered species. The Urban Development Boundary and Urban Expansion Area The principal dispute in this case involves the application of Policies LU-8F and LU-8G of the CDMP regarding the expansion of the UDB. Policy LU-8F directs that adequate supplies of residential and nonresidential lands be maintained in the UDB. If the supply of lands becomes inadequate, Policy LU-8G addresses where the expansion of the UDB should occur. The UDB is described in the Land Use Element: The Urban Development Boundary (UDB) is included on the LUP map to distinguish the area where urban development may occur through the year 2015 from areas where it should not occur. Development orders permitting urban development will generally be approved within the UDB at some time through the year 2015 provided that level- of-service standards for necessary public facilities will be met. Adequate countywide development capacity will be maintained within the UDB by increasing development densities or intensities inside the UDB, or by expanding the UDB, when the need for such change is determined to be necessary through the Plan review and amendment process. The UDB promotes several planning purposes. It provides for the orderly and efficient construction of infrastructure, encourages urban infill and redevelopment, discourages urban sprawl, and helps to conserve agricultural and environmentally-sensitive lands. The County only accepts applications for amendments seeking to expand the UDB once every two years, unless they are directly related to a development of regional impact. In contrast, Chapter 163, Florida Statutes, allows two amendment cycles in a calendar year, Amendments that would expand the UDB must be approved by at least two-thirds of the total membership of the Board of County Commissioners. Other types of amendments only require a majority vote of the quorum. Outside the UDB are County lands within the relatively small Urban Expansion Area (UEA), which is described in the CDMP as “the area where current projections indicate that further urban development beyond the 2015 UDB is likely to be warranted some time between the year 2015 and 2025.” The UEA consists of lands that the CDMP directs “shall be avoided” when the County is considering adding land to the UDB. They are (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. The “future” wetlands on this list are existing wetland areas delineated by the County on Figure 14 of the Land Use Element. A far larger area of the County, mostly west of the UDB and UEA, consists of lands that the CDMP directs “shall not be considered” for inclusion in the UDB. These are water conservation areas, lands associated with Everglades National Park, the Redland agricultural area, and wellfield protection areas. Policy LU-8F Policy LU-8F of the Land Use Element provides: The Urban Development Boundary (UDB) should contain developable land having capacity to sustain projected countywide residential demand for a period of 10 years after adoption of the most recent Evaluation and Appraisal Report (EAR) plus a 5-year surplus (a total 15-year Countywide supply beyond the date of EAR adoption). The estimation of this capacity shall include the capacity to develop and redevelop around transit stations at the densities recommended in policy LU-7F. The adequacy of non- residential land supplies shall be determined on the basis of land supplies in subareas of the County appropriate to the type of use, as well as the Countywide supply within the UDB. The adequacy of land supplies for neighborhood- and community- oriented business and office uses shall be determined on the basis of localized subarea geography such as Census Tracts, Minor Statistical Areas (MSAs) and combinations thereof. Tiers, Half-Tiers and combinations thereof shall be considered along with the Countywide supply when evaluating the adequacy of land supplies for regional commercial and industrial activities. There is no further guidance in the CDMP for determining the “adequacy of land supplies” with respect to nonresidential land uses. Neither Chapter 163, Florida Statutes, nor Florida Administrative Code Chapter 9J-5 requires that local governments use a particular methodology to determine the adequacy of nonresidential land supplies. The County’s usual methodology for determining need is described in the Planning Considerations Report that the County planning staff prepared for the 2007 amendment cycle. A report like this one is prepared by the staff for each amendment cycle to evaluate the adequacy of the CDMP to accommodate growth and to evaluate pending amendment applications. The County compares a proposed use to its immediate surroundings and the broader area of the County in which the proposed use is located. The basic geographic unit used in the County’s need analysis is the Minor Statistical Area (MSA). Larger planning areas, called Tiers, are groupings of MSAs. The County is divided into 32 MSAs and four Tiers. The Lowe’s Amendment site is in MSA 3.2, but it is on the border with MSA 6.1, so the two MSAs were consolidated for the County’s need analysis regarding the Lowe’s Amendment, even though MSA 3.2 is in the North Central Tier and MSA 6.1 is in the South Central Tier. The Brown Amendment is in MSA 6.2, but it is close to MSA 6.1, so the County combined the two MSAs for its need analysis for the Brown Amendment. Both MSAs are in the South Central Tier. The Planning Considerations Report contains a 2007 inventory of commercial land. The only vacant land used in the analysis of available commercial land supply was land zoned for business, professional office, office park, or designated Business and Office on the Land Use Map. Although it is stated in the Planning Considerations Report that lands zoned or designated for industrial uses are often used for commercial purposes, this situation was not factored into the calculation of the available supply of commercial lands. The County also excluded any supply that could be gained from the redevelopment of existing sites. Petitioners contend, therefore, that the County’s need for commercial land is less than the planning staff calculated in the Planning Considerations Report. On the other hand, Respondents contend that the County’s need for commercial land is greater than the planning staff calculated in the Planning Considerations Report because the County planning staff did not apply a “market factor” for commercial lands as it does for residential lands. A market factor is considered by some professional planners to be appropriate for commercial land uses to account for physical constraints and other factors that limit the utilization of some vacant parcels, and to prevent situations where the diminished supply of useable parcels causes their prices to rise steeply. The CDMP recognizes the problem in stating that: impediments can arise to the maximum utilization of all lands within the boundaries [of the UDB]. In some urbanized areas, it may be difficult to acquire sufficiently large parcels of land. In other areas, neighborhood opposition to proposed developments could alter the assumed density and character of a particular area. The County used a market factor of 1.5 (50 percent surplus) to determine the need for residential land. The County did not use a market factor in its analysis of the need for commercial land. The Department’s expert planning witness, Mike McDaniel, testified that the Department generally supports use of a 1.25 allocation (25 percent surplus). The County’s most recent UDB expansions for nonresidential uses (other than Lowe’s and Brown) were the Beacon Lakes and Shoppyland amendments in 2002. The Beacon Lakes and Shoppyland UDB expansions were approved despite the fact that the County did not project a need for more industrial land within the planning horizon. The need determinations for these amendments were not based on the use of a market factor, but on a percieved2`` need for the particular land uses proposed – warehouses and related industrial uses on large parcels to serve the Miami International Airport and the Port of Miami. The evidence indicates that the County’s exclusion from its analysis of industrial lands that can be used for commercial purposes, and additional commercial opportunities that could be derived from the redevelopment of existing sites, is offset by the County’s exclusion of a market factor. If the supply of commercial land had been increased 25 percent to account for industrial lands and redevelopment, it would have been offset by a 1.25 market factor on the demand side. The calculations made by the County in its Planning Considerations Report would not have been materially different. The Planning Considerations Report analyzes commercial demand (in acres) through the years 2015 and 2025, and calculates a “depletion year” by MSA, Tier, and countywide. A depletion year is the year in which the supply of vacant land is projected to be exhausted. If the depletion year occurs before 2015 (the planning horizon for the UDB), that is an indication that additional lands for commercial uses might be needed. The County planning staff projected a countywide depletion year of 2023, which indicates there are sufficient commercial lands in the County through the planning horizon of 2015. The County then projected the need for commercial land by MSA and Tier. MSA 3.2, where the Lowe’s site is located, has a depletion year of 2025, but when averaged with MSA 6.1’s depletion years of 2011, results in an average depletion year of 2018. The North Central Tier, in which the Lowe’s Amendment site is located, has a depletion year of 2023. The County’s depletion year analysis at all three levels, MSA, Tier, and countywide, indicates no need for more commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a depletion year of 2017, but when combined with MSA 6.1’s depletion of 2011, results in an average depletion year for the two MSAs is 2014. The South Central Tier, in which the Brown Amendment site is located, has a depletion year of 2014. Therefore, the County’s depletion year analysis, at the MSA and Tier levels, indicates a need for more commercial lands in the area of the Brown site. The County also analyzed the ratio of commercial acres per 1,000 persons by MSA, Tier, and county-wide. The countywide ratio is not a goal that the County is seeking to achieve for all Tiers and MSAs. However, if a Tier or MSA shows a ratio substantially lower than the countywide ratio, that MSA or Tier might need more commercial lands. The countywide ratio of commercial lands per 1,000 persons is projected to be 6.1 acres per 1,000 persons in 2015. MSA 3.2, in which the Lowe’s site is located, has a ratio of 11.3 acres per 1,000 persons. MSA 6.1 has a ratio of 2.6 acres. The average for the two MSAs is 6.95 acres. The ratio for all of the North Central Tier is 6.3 acres per 1,000 persons. Therefore, a comparison of the countywide ratio with the MSAs and Tier where the Lowe’s site is located indicates there is no need for additional commercial lands in the area of the Lowe’s site. MSA 6.2, where the Brown site is located, has a ratio of 4.1 acres per 1,000 persons. When combined with MSA 6.1’s ratio of 2.6 acres, the average for the two MSAs is 3.35 acres. The ratio for all of the South Central Tier is 4.5 acres per 1,000 persons. Therefore, a comparison with the countywide ratio of 6.1 acres indicates a need for additional commercial lands in the area of the Brown site. The County’s need analysis treated the Kendall Town Center as vacant (i.e., available) commercial land, but the Kendall Town Center is approved and under construction. If the Kendall Town Center had been excluded, the County’s projected future need for commercial land in the area of the Brown site would have been greater. The Planning Considerations Report does not discuss parcel size in its commercial need analysis. Lowe’s contends that the County should have considered whether there is a need for larger “community commercial” uses in the area of the Lowe’s site. Policy LU-8F refers only to the need to consider (by “Tiers, Half-Tiers and combinations thereof”) the adequacy of land supplies for “regional commercial activities.” Lowe’s planning expert testified that there are few undeveloped commercial parcels in MSAs 3.2 and 6.1 that are ten acres or more, or could be aggregated with contiguous vacant parcels to create a parcel bigger than ten acres. Lowe’s submitted two market analyses for home improvement stores, which conclude that there is a need for another home improvement store in the area of the Lowe’s site. The market analyses offered by Lowe’s differ from the County’s methodology, which focuses, not on the market for a particular use, but on the availability of commercial lands in appropriate proportion to the population. Even when it is reasonable for the County to consider the need for a unique use, the County’s focus is on serving a general public need, rather than on whether a particular commercial use could be profitable in a particular location. Some of the assumptions used in the market analyses offered by Lowe’s were unreasonable and biased the results toward a finding of need for a home improvement store in the study area. The more persuasive evidence shows that there is no need for more commercial land, and no need for a home improvement store, in the area of the Lowe’s site. Lowe’s Parcel B is proposed for use as a school. The elementary, middle and high schools serving the area are over- capacity. Lowe’s expects the site to be used as a charter high school. Using an inventory of lands that was prepared by the County staff, Lowe’s planning expert investigated each parcel of land located within MSAs 3.2 and 6.1 that was over seven acres2 and determined that no parcel within either MSA was suitable for development as a high school. The record is unclear about how the Lowe’s Amendment fits into the plans of the County School Board. The proposition that there are no other potential school sites in the area was not firmly established by the testimony presented by Lowe’s. The need shown for the school site on Parcel B does not overcome the absence of demonstrated need for the Business and Office land use on Parcel A. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8F. The County’s determination that the Brown Amendment is consistent with Policy LU-8F is fairly debatable. Policy LU-8G Policy LU-8GA(i) identifies lands outside the UDB that “shall not be considered for inclusion in the UDB. Policy LU- 8G(ii) identifies other lands that “shall be avoided,” including (1) future wetlands, (2) lands designated Agriculture, (3) hurricane evacuation areas, and (4) lands that are part of the Comprehensive Everglades Restoration Plan. A peculiarity of the UEA is that it is composed entirely of lands that “shall be avoided” when the County considers adding lands to the UDB. The Department contends that “shall be avoided” means, in this context, that the County must make “a compelling showing that every other option has been exhausted” before the UDB can be expanded. However, the CDMP does not express that specific intent. The CDMP does not provide any direct guidance about how compelling the demonstration must be to expand the UDB. Policies LU-8F and LU-8G appear to call for a balancing approach, where the extent of the need for a particular expansion must be balanced against the associated impacts to UEA lands and related CDMP policies. The greater the needs for an expansion of the UDB, the greater are the impacts that can be tolerated. The smaller the need, the smaller are the tolerable impacts. Because the need for the Lowe’s Amendment was not shown, the application of the locational criteria in Policy LU- 8G is moot. However, the evidence presented by Lowe’s is addressed here. Within the meaning of Policy LU-8G(ii)(a), the wetlands that “shall be avoided” are those wetlands that are depicted on the Future Wetlands Map part of the Land Use Element of the CDMP. About 50 percent of the Lowes site is covered by wetlands that are on the Future Wetlands Map. Petitioners speculated that the construction of a Lowe’s home improvement store and school on the Lowe’s site could not be accomplished without harm to the wetlands on the site, but they presented no competent evidence to support that proposition. The wetland protections afforded under the environmental permitting statutes would not be affected by the Lowe’s Amendment. Nevertheless, this is a planning case, not a wetland permitting case. It is a well-recognized planning principle that lands which have a high proportion of wetlands are generally not suitable for land use designations that allow for intense uses. The Lowe’s Amendment runs counter to this principle. Policy LU-8F(iii) identifies areas that “shall be given priority” for inclusion in the UDB: Land within Planning Analysis Tiers having the earliest projected supply depletion year; Lands contiguous to the UDB; Locations within one mile of a planned urban center or extraordinary transit service; and Lands having projected surplus service capacity where necessary services can be readily extended. The Lowe’s site satisfies all but the first criterion. The Lowe’s site is in the Tier with the latest projected supply depletion year. It is beyond fair debate that that the Lowe’s Amendment is inconsistent with Policy LU-8G. Because a reasonable showing of need for the Brown Amendment was shown, it is appropriate to apply the locational criteria of Policy LU-8G. The Brown Amendment would expand the UDB into an area of the UEA that is designated Agriculture. The single goal of the CDMP’s Land Use Element refers to the preservation of the County’s “unique agricultural lands.” The CDMP refers elsewhere to the importance of protecting “viable agriculture.” Brown argued that these provisions indicate that the County did not intend to treat all agricultural lands similarly, and that agricultural activities like those on the Brown site, that are neither unique nor viable, were not intended to be preserved. Petitioners disagreed. The County made the Redland agricultural area one of the areas that “shall not be considered” for inclusion in the UDB. Therefore, the County knew how to preserve “unique” agricultural lands and prevent them from being re-designated and placed in the UDB. The only evidence in the record about the economic “viability” of the current agricultural activities on the Brown site shows they are marginally profitable, at best. The Brown site is relatively small, has a triangular shape, and is wedged between a major residential development and an arterial roadway, which detracts from its suitability for agricultural operations. These factors also diminish the precedent that the re-designation of the Brown site would have for future applications to expand the UDB. The Brown site satisfies all of the criteria in Policy LU-8G(iii) to be given priority for inclusion in the UDB. The County’s determination that the Brown Amendment is consistent with Policy LU-8G is fairly debatable. Policy EDU-2A Policy EDU-2A of the CDMP states that the County shall not purchase school sites outside the UDB. It is not clear why this part of the policy was cited by Petitioners, since the Lowe’s Amendment would place Parcel B inside the UDB. Policy EDU-2A also states that new elementary schools “should” be located at 1/4 mile inside the UDB, new middle schools “should” be located at least 1/2 mile inside the UDB, and new high schools “should” be located at least one mile inside the UDB. The policy states further that, “in substantially developed areas,” where conforming sites are not available, schools should be placed as far as practical from the UDB. Petitioners contend that the Lowe’s Amendment is inconsistent with Policy EDU-2A because Parcel B, the school site in the Lowe’s Amendment, would be contiguous to the UDB if the Lowe’s Amendment were approved. However, when a policy identifies circumstances that allow for an exception to a stated preference, it is necessary for challengers to show that the exceptional circumstances do not exist. It was Petitioners’ burden to demonstrate that there were conforming school sites farther from the UDB in the area of the Lowe’s site. Petitioners did meet their burden. The County’s determination that the Lowe’s Amendment is consistent with Policy EDU-2A is fairly debatable. Urban Sprawl 1000 Friends and NPCA allege that the Brown and Lowe’s Amendments would encourage the proliferation of urban sprawl. The Department did not raise urban sprawl as an “in compliance” issue. Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 “primary indicators” of urban sprawl. The presence and potential effects of multiple indicators is to be considered to determine “whether they collectively reflect a failure to discourage urban sprawl.” Fla. Admin. Code R. 9J- 5.006(5)(d). Indicator 1 is designating for development “substantial areas of the jurisdiction to develop as low- intensity, low-density, or single use development or uses in excess of demonstrated need.” It was found, above, that the County had a reasonable basis to determine there was a need for the Brown Amendment, but not for the Lowe’s Amendment. Therefore, this indicator is triggered only by the Lowe’s Amendment. Indicator 2 is designating significant amounts of urban development that leaps over undeveloped lands. The facts do not show that undeveloped lands were leaped over for either of the amendments. Indicator 3 is designating urban development “in radial, strip, isolated, or ribbon patterns.” The Lowe’s and Brown Amendments do not involve radial or isolated development patterns. What would constitute a “ribbon” pattern was not explained. Not every extension of existing commercial uses constitutes strip sprawl Other factors need to be considered. For example, both the Lowe’s and Brown sites are at major intersections where more intense land uses are commonly located. Under the circumstances shown in this record, this indicator is not triggered for either amendment. Indicator 4 is premature development of rural land that fails to adequately protect and conserve natural resources. This indicator is frequently cited by challengers when an amendment site contains wetlands or other natural resources, without regard to whether the potential impact to these resources has anything to do with sprawl. In the area of the Lowe’s site, the UDB generally divides urbanized areas from substantial wetlands areas that continue west to the Everglades. The Lowe’s Amendment intrudes into an area dominated by wetlands and, therefore, its potential to affect wetlands is an indication of sprawl. In the area of the Brown Amendment, the UDB generally separates urbanized areas from agricultural lands that already have been substantially altered from their natural state. The Brown Amendment invades an agricultural area, not an area of natural resources. Therefore, the potential impacts of the Brown Amendment on the small area of degraded wetlands on the Brown site do not indicate sprawl. Indicator 5 is failing to adequately protect adjacent agricultural areas and activities. Because this indicator focuses on “adjacent” agricultural areas, it is not obvious that it includes consideration of effects on the amendment site itself. If this indicator applies to the cessation of agricultural activities on the Brown site, then the Brown Amendment triggers this primary indicator. If the indicator applies only to agricultural activities adjacent to the Brown site, the evidence was insufficient to show that this indicator is triggered. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. Urban sprawl is generally indicated when new public facilities must be created to serve the proposed use. Petitioners did not show that new public facilities must be created to serve the Lowe’s or Brown sites. The proposed amendments would maximize the use of existing water and sewer facilities. Petitioners did not show that the amendments would cause disproportionate increases in the costs of facilities and services. Indicator 9 is failing to provide a clear separation between rural and urban uses. The Lowe’s Amendment would create an irregular and less clear separation between urban and rural uses in the area and, therefore, the Lowe’s Amendment triggers this indicator. The Brown Amendment does not trigger this indicator because of it is situated between the large Vizcaya development and Kendall Drive, a major arterial roadway. The Brown Amendment would create a more regular separation between urban and rural uses in the area. Indicator 10 is discouraging infill or redevelopment. The CDMP delineates an Urban Infill Area (UIA) that is generally located east of the Palmetto Expressway and NW/SW 77th Avenue. Petitioners did not demonstrate that the Brown and Lowe’s Amendments discourage infill within the UIA. Petitioners did not show how any particular infill opportunities elsewhere in the UDB are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive for infill. This indicator, therefore, is triggered to a small degree by both amendments. The CDMP promotes redevelopment of buildings that are substandard or underdeveloped. Petitioners did not show how any particular redevelopment opportunities are impaired by the Lowe’s and Brown Amendments. However, the expansion of the UDB would diminish, at least to a small degree, the incentive to redevelop existing properties. This indicator, therefore, is triggered to a small degree by both amendments. Indicator 11 is failing to encourage or attract a functional mix of uses. Petitioners failed to demonstrate that this primary indicator is triggered. Indicator 12 is poor accessibility among linked or related uses. No evidence was presented to show that this indicator would be triggered. Indicator 13 is the loss of “significant” amounts of open space. These amendments do not result in the loss of significant amounts of open space, whether measured by acres, by the percentage of County open lands converted to other uses, or by any specific circumstances in the area of the amendment sites. Evaluating the Lowe’s Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment fails to discourage the proliferation of urban sprawl. Evaluating the Brown Amendment using the primary indicators of urban sprawl and the criteria in Florida Administrative Code Rule 9J-5.006(5)(h) through (j), it is found by a preponderance of the evidence that the County’s adoption of the Brown Amendment does not fail to discourage the proliferation of urban sprawl. Land Use Analysis The Department claims that the Lowe’s and Brown Amendments are inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c), which requires that the land use element of a comprehensive plan be based on an analysis of the amount of land needed to accommodate projected population. The Department believes the analyses of need presented by Lowe’s and Brown’s consultants were not professionally acceptable. Petitioners proved by a preponderance of the evidence that there was no need for the Lowe’s Amendment. Therefore, the Lowe’s Amendment is inconsistent with Florida Administrative Code Rule 9J-5.006(2)(c). A preponderance of competent, substantial, and professionally acceptable evidence of need, in conformance with and including the methodology used by the County planning staff, demonstrated that the Brown Amendment is consistent with Florida Administrative Code Rule 9J-5.006(2)(c).3 Florida Administrative Code Chapter 9J-5 - Natural Resources Petitioners contend the Lowe’s Amendment is inconsistent with the provisions of Florida Administrative Code Chapter 9J-5, which require that the land use element of every comprehensive plan contain a goal to protect natural resources, and that every conservation element contain goals, objectives, and policies for the protection of vegetative communities, wildlife habitat, endangered and threatened species, and wetlands. Petitioners failed to prove by a preponderance of the evidence that the CDMP does not contain these required goals, objectives, and policies. Therefore, Petitioners failed to prove that the Lowe’s amendment is inconsistent with these provisions of Florida Administrative Code Chapter 9J-5.4 The State Comprehensive Plan Petitioners contend that the Lowe’s and Brown amendments are inconsistent with several provisions of the State Comprehensive Plan. Goal (9)(a) of the State Comprehensive Plan and its associated policies address the protection of natural systems. Petitioners contend that only the Lowe’s Amendment is inconsistent with this goal and its policies. For the reasons stated previously, Petitioners showed by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its policies. Goal (15)(a) and its associated policies address land use, especially development in areas where public services and facilities are available. Policy (15)(b)2. is to encourage a separation of urban and rural uses. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and policy. For the reasons stated above, Petitioners failed to show by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies Goal (16)(a) and its associated policies address urban and downtown revitalization. Although the expansion of the UDB diminishes the incentive to infill or redevelop, Petitioners did not show this effect, when considered in the context of the CDMP as a whole and the State Comprehensive Plan as a whole, impairs the achievement of this goal and its associated policies to an extent that the proposed amendments are inconsistent with this goal of the State Comprehensive Plan and its associated policies. Goal (17)(a) and its associated policies address the planning and financing of and public facilities. For the reasons stated previously, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the proposed amendments is inconsistent with this goal and its associated policies. Goal (22)(a) addresses agriculture. Policy(b)1. is to ensure that state and regional plans are not interpreted to permanently restrict the conversion of agricultural lands to other uses. This policy recognizes that agricultural landowners have the same right to seek to change the use of their lands, and that engaging in agricultural activities is not a permanent servitude to the general public. The policies cited by Petitioners (regarding the encouragement of agricultural diversification, investment in education and research, funding of extension services, and maintaining property tax benefits) are not affected by the Brown Amendment. For the reasons stated above, Petitioners failed to prove by a preponderance of the evidence that the County’s adoption of the Brown Amendment is inconsistent with this goal and its associated policies. Goal (25)(a) and its associated policies address plan implementation, intergovernmental coordination and citizen involvement, and ensuring that local plans reflect state goals and policies. Because the Lowe’s Amendment is inconsistent with Policies LU-8F and LU-8G of the CDMP, and was found to contribute to the proliferation of urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Petitioners proved by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Lowe’s Amendment is inconsistent with the State Comprehensive Plan. Petitioners failed to prove by a preponderance of the evidence that when the State Comprehensive Plan is construed as a whole, the County’s adoption of the Brown Amendment is inconsistent with the State Comprehensive Plan.. Strategic Regional Policy Plan Petitioners claim that the Lowe’s Amendment is inconsistent with Goals 11, 12, and 20 of the Strategic Regional Policy Plan of the South Florida Regional Planning Council (SFRPC) and several policies associated with these goals. The SFRPC reviewed the proposed Brown Amendment and found it was generally consistent with the Strategic Regional Policy Plan. Goal 11 and its associated policies encourage the conservation of natural resources and agricultural lands, and the use of existing and planned infrastructure. For the reasons stated previously, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with this goal and its associated policies. Goal 12 and its associated policies encourage the retention of rural lands and agricultural economy. The CDMP encourages the retention of rural lands and agricultural economy. Because it was found that the Lowe’s Amendment was inconsistent with Policies LU-8F and LU-8G, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment was inconsistent with this regional goal and its policies. Goal 20 and its associated policies are to achieve development patterns that protect natural resources and guide development to areas where there are public facilities. Because it was found that there is no need for the Lowe’s Amendment and that it constitutes urban sprawl, Petitioners proved by a preponderance of the evidence that the County’s adoption of the Lowe’s Amendment is inconsistent with these regional goal and policies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that: Ordinance No. 08-44, the Lowe’s Amendment, is not in compliance, and Ordinance No. 08-45, the Brown Amendment, is in compliance. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2009.
