The Issue The issue in this case is whether Town of Yankeetown (Town) plan amendment 08-01 (adopted by Ordinance 2007-10) and plan amendment 08-CIE1 (adopted by Ordinance 2008-03), as modified by remedial amendment 09-R1 (adopted by Ordinance 2009-02) (together, referred to as the Plan Amendments or the Revised Comprehensive Plan), are "in compliance" as defined in Section 163.3184(1)(b), Florida Statutes (2009).1
Findings Of Fact The Town is located in the southwest corner of Levy County. The Town is bounded on the east by the Town of Inglis, on the north by unincorporated Levy County, on the west by the Gulf of Mexico, and on the south by the Withlacoochee River. The Town has significant planning challenges due to its geographic location. The maximum elevation in the Town is 10 feet, and the entire Town is located in the 100-year floodplain and Coastal High Hazard Area (CHHA). The Town is located in a rural area north of the banks of the Withlacoochee River and is surrounded by wetlands and environmentally-sensitive land. The Town is located at the end of County Road 40, and is separated from the nearest intersection of major roads (State/County Road 40 and U.S. 19) by the Town of Inglis. The Plan Amendments are a community-generated plan that incorporates the results of an extensive community visioning survey conducted by the Town and numerous public meetings that exceeded the public participation requirements for plan amendments contained in Florida Administrative Code Rule Chapter 9J-53 and Chapter 163, Florida Statutes. The Plan Amendments resulted in a Revised Comprehensive Plan for the Town. IWI is a legal entity that owns land within the Town and submitted oral or written comments on the Plan Amendments during the period of time beginning with the transmittal hearing for the Plan Amendments and ending with the adoption of the Plan Amendments. IWI contends that the Plan Amendments are not "in compliance" for several reasons. Population Projections and Need In its pleadings, IWI contended that "[t]here is inadequate data regarding projected population growth and the infrastructure needed to support the projected population growth for both the short term (five years) and the long term (horizon of the plan)"; "[t]he Plan Amendment is not in compliance with [Section] 163.3177(6)(a) Florida Statutes, by failing to provide future land use categories that are based on need"; and "[t]he Plan Amendment is not in compliance with the requirements of 9J- 5.006, Florida Administrative Code, demonstrating that future land use is based on need." Prehearing Stipulation § 2.H., U., and GG. However, its expert planning witness, Gail Easely, conceded that the data and analysis submitted by the Town was adequate to demonstrate that the residential land uses in the Revised Comprehensive Plan are based on need. IWI limited its contention on this point to the alleged inadequacy of the data and analysis to support the Revised Comprehensive Plan's new Light Industrial land use and revised commercial land use designations. The Revised Comprehensive Plan designates the same areas for commercial as the currently effective Comprehensive Plan, with the exception of one parcel that was changed from commercial to Light Industrial. The Revised Comprehensive Plan designates the commercial parcels near the Withlacoochee River as Commercial Water Dependent and the other commercial parcels as Commercial Neighborhood, totaling approximately 51 acres. Of the 51 acres of commercially-designated land, approximately 26 acres are currently developed and 25 acres are vacant and undeveloped. Of the 26 developed commercial acres, 19 parcels are currently developed and utilized as residential. There is no shortage of land available for commercial development in the Town. Inglis, a town located adjacent and to the east of Yankeetown, and Levy County near Yankeetown provide "more than adequate" existing commercial buildings on the market to serve the residents of Yankeetown and surplus vacant commercially- designated land to serve the future needs of Yankeetown. There is no shortage of commercial potential near the Town. The evidence was that it is acceptable for a local government to plan for the future need for the availability of commercial and industrial lands by maintaining the existing proportionate of availability of land use categories. Alternatively, it is acceptable to plan to mimic the proportions found to exist in other communities. This is essentially how the Town planned its allocation of commercial and industrial lands in its Revised Comprehensive Plan. IWI also contended that the intensity standards for commercial and industrial land uses in the Revised Comprehensive Plan unduly restrict commercial development. The existing Comprehensive Plan did not have explicit intensity standards and criteria for commercial land uses. After extensive debate at numerous public hearings, the Revised Comprehensive Plan established a floor/area ration (FAR) of 0.07, which limits the size for each single structure to a maximum of 3,000 square feet. It also allows for multiple 3,000 square foot structures on larger parcels in a "campus style" development. These standards and criteria reflect the existing, built environment of the Town and the Town's vision of itself. Existing commercial buildings run from 960 square feet to 3,600 square feet. Although the existing Comprehensive Plan did not have an FAR ratio, other standards--such as setbacks, square footage required for on-site septic tanks, drainfields, and parking, a 50 percent open space ratio, and a building height restriction of 35 feet--restricted commercial development in a manner similar to the Revised Comprehensive Plan. Petitioner's expert economist, Dr. Fishkind, testified that the restrictions on intensity of commercial land uses are not financially feasible because not enough revenue can be generated to make a profit, given the cost of land in Yankeetown. His testimony was refuted by his University of Florida colleague, Dr. James Nicholas, who was called as an expert economist for the Town. Dr. Nicholas pointed out that there was some commercial use in the Town and that economics would lower the cost of land in the Town if it is too expensive to allow the kind of commerce desired by the Town to make a reasonable profit. Businesses requiring more space to make sufficient revenue could locate outside the Town but close enough in Inglis or Levy County to serve Yankeetown as well. The character of the Town, its limited projected population growth, and the availability of commercial development nearby in Inglis and in Levy County all support the Town's decision to limit the intensity of commercial land use, and to maintain the existing amount of land available for commercial and light industrial uses. 15. Rules 9J-5.006(1)(a)(3) and 9J-5.006 (4)(a)(3) require the designation of some industrial lands, and the Revised Comprehensive Plan changes the designation of six acres of land located to the west of the intersection of County Roads 40 and 40-A from "Commercial" to "Light Industrial." Since industrial uses are generally not compatible with residential uses, the Light Industrial parcel is separated from residential parcels by commercial. The Light Industrial parcel is allocated for more intense commercial uses (such as fishing trap and boat storage) or reserved for economic development of light industrial uses that may wish to locate in Yankeetown, such as aquaculture. The existing ratio of residential to commercial land is adequate to supply the existing need as reflected by the existing surplus, vacant, and unused commercial lands. The Plan Amendments maintain residential lands and commercial lands in their general designations with refinements to the categories. The existing ratio and availability of vacant commercial land indicate that there is no deficit in any category, and maintaining the existing residential/commercial ratio preserves the existing character of the Town. Urban Service Area versus Urban Service Boundary IWI contends that "[t]he Plan Amendment is not in compliance with [Section] 163.3177(14), Florida Statutes, by failing to ensure that the urban service boundary was appropriately adopted and based on demonstrated need." This contention has no merit. Section 163.3177(14), Florida Statutes, encourages a local government to adopt an "urban service boundary." If one is adopted, there must be a demonstration "that the amount of land within the urban service boundary does not exceed the amount of land needed to accommodate the projected population growth at densities consistent with the adopted comprehensive plan within the 10-year planning timeframe." If a local government chooses to adopt an "urban service boundary" under Section 163.3177(14) and a community vision under Section 163.3177(13), Florida Statutes, it may adopt plan amendments within the urban service boundary without state or regional agency review. See § 163.3184(17), Fla. Stat. The Revised Comprehensive Plan does not use the term "urban service boundary," and the Town did not intend to adopt one under Section 163.3177(14), Florida Statutes, nor did it seek to avoid state and regional agency review of plan amendments under Section 163.3184(17), Florida Statutes. Instead, as explained on page 6 of the Revised Comprehensive Plan, it uses the term "urban area" to designate an area allowed to receive development rights from the sending area, namely the Residential Environmentally Sensitive (formerly Conservation) land use district. The Revised Comprehensive Plan uses the term urban service "area" (rather than "boundary") as the area located generally between County Roads 40 and 40-A that can receive development rights transferred from the Residential Environmentally Sensitive land use district. This area is depicted as "Urban Service Area Overlay Zones" Map 2008-02 of the Future Land Use Map (FLUM) series to more clearly designate the area on a larger scale than the FLUM map of the entire Town (Map 2008-05). The existing FLUM series also used the term "urban area" to depict the transfer of development rights receiving area. Financial Feasibility and Capital Improvements IWI’s expert, Dr. Henry Fishkind, testified that he ran his Fiscal Impact Analysis Model for the Town and concluded that the Revised Comprehensive Plan is not financially feasible because the Town cannot generate sufficient operating revenue to cover its operating costs without increasing property tax rates. Dr. Fishkind was not asked to explain how his computer model works, give any specific modeling results, or explain how he reached his conclusion. The Town's expert, Dr. James Nicholas, refuted his University of Florida colleague's testimony on this point as well. Essentially, Dr. Nicholas testified that a small and unique community like Yankeetown can choose to limit its operating costs by relying on volunteers and part-time employees. In this way, it can operate on a bare-bones budget that would starve a more typical and larger community. It also could choose to increase property tax rates, if necessary. Recent amendments to Chapter 163, Florida Statutes, in Senate Bill 360, the "Community Renewal Act," which became effective June 1, 2009, postponed and extended until December 1, 2011, the statutory requirement to maintain the financial feasibility of the five-year capital improvements schedule (CIS) for potable water, wastewater, drainage, parks, solid waste, public schools, and water supply. However, the Town concurred with Petitioner in requesting findings of fact and conclusions of law on this issue in case Senate Bill 360 is struck down in a pending constitutional challenge. The Plan Amendments include a CIE (Chapter 8) with a five-year CIS and a table to identify sources of revenue and capital projects sufficient to achieve and maintain the adopted levels of service, supported by data and analysis submitted with the Remedial Amendments. The Town's CIS five-year lists projects to achieve and maintain the adopted level of service (LOS) standards and identifies funding sources to pay for those projects. It describes the projects and conservatively projects costs and revenue sources. The CIS identifies revenue sources and capital projects for which there are committed funds in the first three years and identifies capital projects for which funds have not yet been committed in year four or year five. CIS is adequate to achieve and maintain the adopted level of service and is financially feasible. Stormwater and Drainage A drainage LOS is adopted in Revised Comprehensive Plan Policy 4.1.2.1, which states: "All new development and expansion of existing residential development greater than 300 square feet of additional impervious coverage shall meet requirements under Chapter 62-25, F.A.C. for Outstanding Florida Waters." The exemption of minor residential improvements of 300 square feet or less is reasonable and does not violate Rule Chapter 9J-5 or Chapter 163, Florida Statutes. The Department's ability to require retrofitting for existing drainage problems is limited by Rule Chapter 9J- 5.011(2)(c)5.b.i., which states that the Rule "shall not be interpreted or applied to [m]andate that local governments require existing facilities to be retrofitted to meet stormwater discharge water quality standards or stormwater management level of service standards." Nonetheless, the Town agreed in the Compliance Agreement to adopt appropriate policies and provide additional data and analysis on this issue. Policy 4.1.2.13 requires that the "Established Storm Water Drainage Committee shall monitor storm water facilities in [the] town, oversee maintenance functions, and evaluate and recommend capital improvements projects and funding sources." To pay for stormwater capital improvement projects, Policy 4.1.2.14 in the Plan Amendments states: "Yankeetown shall adopt a storm water utility fee ordinance and establish storm water utility fees by December 31, 2009 to provide necessary funding for capital improvements to the Town's storm water drainage facilities and maintenance of storm water drainage facilities." In accordance with the Compliance Agreement, the Town modified CIS Table 1 by adding $120,000 to FY 2011-2012 (Year 5) for the stormwater drainage improvement project and adding Note 5 to Table 1, which states: "Anticipated to be funded by a 75%/25% matching grant from SWFWMD, DEP or DCA. The matching (town) funds will be obtained from the proposed stormwater improvement fund. If no grants can be obtained and the stormwater improvement fund is not approved[,] the project will be funded from the general fund reserves and long term loans." Because the stormwater utility fee ordinance must still be adopted, and these funds are not technically committed at the time of adoption of the Plan Amendments, the stormwater capital improvement project was placed in year 5 (2011-1012) of the CIS. As funding becomes available and committed, the project may be moved to an earlier year in required annual updates to the CIS. Drainage also is addressed in new Objective 4.3.2 and in new Policies 4.3.2.1. through 4.3.2.5. The Town has addressed stormwater and drainage appropriately in the Revised Comprehensive Plan. Proportionate Share and Concurrency Management Policy 4.1.2.6 in the Public Facilities Element states: "The Town shall consider, and adopt as appropriate, a means to ensure that new development shares proportionate responsibilities in the provision of facilities and services to meet the needs of that development and maintain adopted level of service standards." Policy 8.1.3.4 in the CIE of the Revised Comprehensive Plan states: The Town shall consider, and adopt as appropriate, a means to ensure that new development shares a proportionate cost on a pro rata basis in the provision of facilities and services necessitated by that development in order to maintain the Town’s adopted level of service standards. Proportionate costs shall be based upon, but not limited to: Cost for extension of water mains, including connection fees. Costs for all circulation and right-of-way related improvements to accommodate the development for local roads not maintained by Levy County. Costs to maintain County Road 40 and 40[-]A and any other road within the town that are maintained by Levy County shall be governed by the Levy County Proportionate Share Ordinance and Yankeetown will continue to adopt and ensure the level of service is maintained [through] coordination mechanisms between the two planning departments. Costs for drainage improvements. Costs for recreational facilities, open space provision, fire protection, police services, and stormwater management. Although the Town does not have any public facility deficiencies, Rule Chapter 9J-5 requires that the CIE address "[t]he extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards"; and include a policy that addresses programs and activities for "[a]ssessing new developments a pro rata share of the costs necessary to finance public facility improvements necessitated by development in order to adequately maintain adopted level of service standards . . . ." Fla. Admin. Code R. 9J-5.016(3)(b)4. and (c)8. Policy 8.1.3.4 meets this requirement. The statute forming the basis of IWI’s contentions regarding proportionate fair share is Section 163.3180(16)(a), Florida Statutes, which requires local governments "to adopt by ordinance a methodology for assessing proportionate fair-share mitigation options." The evidence was that the requirements of this statute will be met by the Town's Proportionate Fair Share Concurrency Management Ordinance, which had been drafted and scheduled for adoption hearings at the time of the final hearing, and which will implement Policy 8.1.3.4. IWI did not present any evidence regarding the alleged lack of a concurrency management system in the Revised Comprehensive Plan and did not prove that the Revised Comprehensive Plan fails to meet the requirements of Rule 9J- 5.055 for concurrency management. The Town is exempt from maintaining school concurrency requirements. Objective 8.1.3 and Policies 8.1.3.1 through 8.1.3.6 of the Revised Comprehensive Plan meet the requirements of Rule 9J-5.055 for concurrency management. Policy 8.1.3.6 states: "The Town shall evaluate public facility demands by new development or redevelopment on a project by project basis to assure that capital facilities are provided concurrent with development." Policy 8.1.3.3 states: "The Yankeetown Land Development Code shall contain provisions to ensure that development orders are not issued for development activities which degrade the level of service below the adopted standard as identified in each comprehensive plan element. Such provisions may allow for provision of facilities and services in phases, so long as such facilities and services are provided concurrent with the impacts of development." The Town has a checklist system to track the specific impact of each development order on LOS concurrent with development. As indicated, a Proportionate Fair Share and Concurrency Management Ordinance had been drafted and scheduled for adoption hearings. Wastewater Treatment and Water Quality The Town is located entirely within the 100-year floodplain and coastal high hazard area. See Finding 2, supra. This presents challenges for wastewater treatment. The adoption of the Revised Comprehensive Plan followed public meetings and workshops held with representatives of DCA, including Richard Deadman, and expert Mark Hooks, formerly with the State of Florida Department of Health and Rehabilitative Services and now with the State of Florida Department of Health. The Plan Amendments include Policy 8.1.3.1.1, which states in part: Due to the location of the town within the 100 year flood plain and within the Coastal High Hazard Area (CHHA), there are no plans to provide central wastewater treatment until a regional system can be developed in conjunction with the neighboring town of Inglis and Levy County, and constructed outside the Coastal High Hazard Area east of U.S. Highway 19. In the interim period before a regional central wastewater system is available, the Town shall require in all land use districts: a. Yankeetown shall develop a strategy to participate in water quality monitoring of the Withlacoochee River; b. develop an educational program to encourage inspection (and pump-out if needed) of existing septic tanks; c. all new and replacement septic tanks shall meet performance based standards (10mg/l nitrogen). The Town's approach to wastewater treatment under the circumstances is sound both economically and from planning perspective and is sufficient to protect natural and coastal resources, including water quality, and meet the minimum requirements of Rule Chapter 9J-5 and Chapter 163, Florida Statutes. There is direction in the State Comprehensive Plan to: "Avoid the expenditure of state funds that subsidize development in high-hazard coastal areas." § 187.201(8)(b)3., Fla. Stat. This direction is also found in Chapter 163.3178(1), Florida Statutes, and in Rule 9J-5.012(3)(b)5., which require local governments to limit public expenditures that would subsidize development in the CHHA. It also is impractical for the Town, with a population of 760 people, to fund and operate a central wastewater system. It is logical and economical to do this in partnership with the adjoining Town of Inglis and Levy County, which could share in the costs and provide a site for a regional wastewater facility located nearby but outside of the CHHA. In contrast, this approach was not a viable option for the entirety of the Florida Keys. The Town already has begun water quality testing under Policy 8.1.3.1.1.a. The Town will be required to prepare educational programs to encourage inspection of existing septic tanks (and pump-out, if needed) under Policy 8.1.3.1.1.b. and under new Policy 4.3.1.2. In the short-term, while the Town pursues a regional treatment facility located outside the CHHA, Policy 8.1.3.1.c. in the Revised Comprehensive Plan will be implemented by new Policy 4.1.2.1.IV.B., which states: Yankeetown shall require that all new or replacement sanitary sewage systems in all land use districts meet the following requirements: All new or replacement sanitary sewage systems shall be designed and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the system into floodwaters. Joints between sewer drain components shall be sealed with caulking, plastic or rubber gaskets. Backflow preventers are required. All new or replacement sanitary sewage systems shall be located and constructed to minimize or eliminate damage to them and contamination from them during flooding. The DCA has objected and recommended, and Yankeetown has concurred that all new and replacement septic systems are to be performance-based certified to provide secondary treatment equivalent to 10 milligrams per liter maximum Nitrogen. Performance-based treatment systems that are accepted as achieving the 10 mg/l nitrogen standard have already been tested by the National Sanitation Foundation and approved by the State of Florida Department of Health. Performance-based systems achieving the 10 mg/l nitrogen standard have been certified and approved for use in Florida and are now available on the market "in the $7,200 range" for a typical two- or three-bedroom home, and there are systems that would meet the 10mg/l nitrogen standard for commercial and multi-family buildings. Compliance with the performance-based 10 mg/l nitrogen standard is measured at the treatment system, not in the receiving water, and additional nutrient removal and treatment occurs in the drainfield soils. Performance-based treatment systems also require an operating permit and routine inspection and maintenance, unlike conventional septic tanks. The United States Environmental Protection Agency stated in its 1997 report to Congress: "Adequately managed decentralized wastewater systems are a cost-effective and long- term option for meeting public health and water quality goals." The existing Comprehensive Plan addresses wastewater in Chapter 4, Policy 13-2, which states: "Prohibit the construction of new publicly funded facilities or facilities offered for maintenance in the coastal high hazard area (including roads, water, sewer, or other infrastructure)." It also is addressed in the existing Comprehensive Plan in: Chapter 1, Policies 3-1 and 3-2 (Vol. II p. 11); and Chapter 4, Policies 1-2-1 and 1-2-7 (Vol. II, pp. 32, 34). A more in-depth analysis of the Town's previous approach to wastewater treatment is found in Volume III, Infrastructure Element, pp. 107-109 ("Facility Capacity Analysis, Sanitary Sewer"), which expresses similar long-term and interim approaches to wastewater treatment. The Revised Comprehensive Plan removes confusing and out-of-date references to "class I or other DOH-approved aerobic systems" used in the existing Comprehensive Plan. The Plan Amendments contemplate that the Town will pursue a long-term solution of a regional wastewater facility with the Town of Inglis and Levy County to be located outside the CHHA. The Revised Comprehensive Plan is adequate to protect the natural resources in Yankeetown and includes a short-term requirement that all new and replacement septic tanks meet the 10 mg/l nitrogen standard measured at the performance-based treatment system, together with a long-term requirement that the Town pursue a regional wastewater treatment plant to be located outside the CHHA. The Plan Amendments include: Objective 4.1.3; Policies 4.1.3.1 through 4.1.3.3 and 4.1.2.8 through 4.1.2.11; Policy 5.1.4.4; Policy 7.1.22.6; Policy 8.1.3.1; Policy 10.1.2.1; and Policy 10.1.2.3. These provisions move the Town in the direction of a regional central wastewater treatment located outside the CHHA and establish appropriate interim standards. Petitioner contended that the Town has allocated money for a new park when it needed a new central wastewater treatment facility. But the evidence was that the money for the new park came from a grant and could not be used for a new central wastewater treatment facility. Protection of Natural Resources and Internal Consistency The Future Land Use Element (FLUE) and the FLUM in the Revised Comprehensive Plan contain "Resource Protection" and "Residential Environmentally Sensitive" land use designations. In the existing Comprehensive Plan, these lands are designated Public Use Resource Protection and Conservation, respectively. The Plan Amendments reduce density in the Residential Environmentally Sensitive land use district, which contains a number of islands, to a maximum gross density of one dwelling unit per ten gross acres and maximum net density of one dwelling unit per five acres of uplands. Policy 1.1.2.1 in the Plan Amendments would allow development rights to be transferred from the Residential Environmentally Sensitive land to the development rights area receiving zone located between County Roads 40 and 40-A, as shown in Map 2008-02. The current Conservation designation for those lands sets a "maximum density of 1 unit per 5 acres"; and Policy 1-2 in the existing Comprehensive Plan allows the transfer of development rights within the Conservation district "as long as gross density does not exceed 1 dwelling unit per 5 acres." Under Policy 1-2 of the existing Comprehensive Plan, a minimum of "two (2) acres of uplands" is required for a development in the Conservation land use district. Likewise, under Policy 1.1.2.1.2 of the Plan Amendments, a minimum of "two (2) contiguous natural pre-development upland acres" is required in the Residential Environmentally Sensitive land use district. Although allowed, few if any transfers of development rights actually occurred under the existing Comprehensive Plan. To provide additional incentive to transfer development out of the "Residential Environmentally Sensitive" land use district and into the urban receiving area, Policy 1.1.2.7.F. of the Plan Amendments would allow the land owner to retain private ownership and passive recreational use on the "sending" parcel, including one boat dock. All other development rights on the sending parcel would be extinguished. Besides facilitating the transfer of development rights, it is expected that use of boat docks on the islands will decrease environmental damage from boats now grounding to obtain access to the islands. Although the policies for Environmentally Sensitive Residential and Conservation Lands are slightly different, the minor differences do not fail to protect natural or coastal resources or fail to meet the minimum criteria set forth in Rule Chapter 9J-5 and Chapter 163, Florida Statutes. Numerous policies in the Plan Amendments establish standards and criteria to protect natural and coastal resources, including: Policy 1.1.2.1.7(i), restricting dredging; Policies 1.1.1.2.10, 5.1.5.7, and 5.1.6.10, restricting the filling of wetlands; Policy 5.1.6.7, establishing wetlands setback buffers; Policy 5.1.6.4, establishing nutrient buffers; Policy 5.1.5.1, limiting dredge and fill; Policies 1.1.3.4 and 5.1.5.5, establishing standards and criteria for docks and walkways; Policy 5.1.16.1, protecting certain native habitats as open space; Policy 1.1.1.3, establishing low-impact development practices for enhanced water quality protection; and Policy 5.1.5.1, protecting listed species, including manatees. These provisions are more protective than the provisions of the existing Comprehensive and are supported by data and analysis. The Plan Amendments acknowledge and protect private property rights and include Objective 1.1.11 (Determination and Protection of Property Rights), providing for vested rights and beneficial use determinations to address unintended or unforeseen consequences of the application of the Plan Amendments in cases where setbacks cannot be achieved for specific development proposals due to lot size or configuration. FLUE Policy 1.1.1.2.8 and Conservation and Coastal Management Element Policy 5.1.6.4 in the Plan Amendments sets out procedures, standards, and criteria (including mitigation) for variances from the 150- foot Nutrient Buffer Setback. Taken as a whole, the Plan Amendments protect natural and coastal resources within the Town. Internal Consistency Docks, Open Space, and Dredge and Fill IWI contends that the Plan Amendments are internally inconsistent because policies addressing docks, open space, and dredging requirements use different language and with different meanings in different contexts. Policies in the Revised Comprehensive Plan establish 100 percent open space requirements for certain natural habitats, namely: (a) submerged aquatic vegetation; (b) undisturbed salt marsh wetlands; (c) salt flats and salt ponds; (d) fresh water wetlands; (e) fresh water ponds; and (f) maritime coastal hammock. Pile-supported, non-habitable structures such as boat docks and walkways are allowed if sited on other portions of a site. (Conservation and Coastal Management Element Policies 5.1.5.7, 5.1.6.7, 5.1.6.10, and 5.1.16.1). Other policies limit dredging to maintenance dredging. Policy 5.1.5.1 states that the Town will: Prohibit all new dredge and fill activities, including construction of new canals, along the river and coastal areas. Maintenance dredging of existing canals, previously dredged channels, existing previously dredged marinas, and commercial and public boat launch ramps shall be allowed to depths previously dredged only when the applicant demonstrates that dredging activity will not contribute to water pollution or saltwater intrusion of the potable water supply. Applicant must also demonstrate that development activities shall not negatively impact water quality or manatee habitat. Maintenance dredging is prohibited within areas vegetated with established submerged grass beds except for maintenance dredging in public navigation channels. This prohibition does not preclude the minor dredging necessary to construct "pile supported structures such as docks and walkways that do not exceed 4’ in width and constructed in accordance with OFW and Aquatic Preserve regulations," which are specifically exempted and allowed by Policy 5.1.5.7 of the Plan Amendments. Additional dredging and filling activities (beyond installation of pile supports) would not be required for docks sited where adequate water depth exists. Docks and walkways allowed under Policy 5.1.5.7 are not counted as open space. The policies concerning docks and walkways can be reconciled and do not render the Plan Amendments internally inconsistent. Low-Impact Development Policies IWI also contends that policies in the Plan Amendments requiring and encouraging low-impact development (LID) practices (which are not required or mandated under minimum requirements of Rule Chapter 9J-5 F.A.C. and Chapter 163, Florida Statutes, but adopted for additional water quality protection) are internally inconsistent. The Plan Amendments require LID practices for some new uses (new subdivisions, planned unit developments, and commercial development) and encourage them for existing uses. The Plan Amendments require or encourage these practices in different land use districts, which address different commercial or residential uses, and also discuss these practices in different elements of the Revised Comprehensive Plan, which addresses different purposes and concerns, including the FLUE (Chapter 1), the Public Infrastructure Element (Chapter 4), and the Coastal Management Element (Chapter 5). FLUE Policy 1.1.1.3 states that: In addition to complying with Outstanding Florida Water (OFW) standards, all new subdivisions, planned unit developments, and commercial development in all land use districts shall utilize "low impact" development practices appropriate for such use including: Landscaped biofiltration swales; Use native plants adapted to soil, water and rainfall conditions; Minimize use of fertilizers and pesticides; Grease traps for restaurants; Recycle storm water by using pond water for irrigation of landscaping; Dry wells to capture runoff from roofs; Porous pavements; Maintain ponds to avoid exotic species invasions; Aerate tree root systems (for example, WANE systems); Vegetate onsite floodplain areas with native and/or Florida-friendly plants to provide habitat and wildlife corridors; Rain barrels and green roofs where feasible; and Use connected Best Management Practices (BMPs) (treatment trains flowing from one BMP into the next BMP) to increase nutrient removal. Existing development shall be encouraged, but not required to use the above recommendations and shall not be considered nonconforming if they do not. In the Residential Low Density land use district, FLUE Policy 1.1.2.2.5 states: "All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' development practices that may be required or recommended in the Land Development Regulations." In the Residential Highest Density land use district, FLUE Policy 1.1.2.3.3 states: "Existing platted parcels are encouraged to utilize site suitable storm water management such as connecting to swales where available. All (a) new planned unit residential developments or (b) new platted subdivisions of 2 or more units (construction of 1 single family dwelling unit or duplex is exempt) shall utilize 'low impact' development practices for storm water management. Individual dwelling units and duplexes are encouraged to utilize those 'low impact' practices that may be required or recommended in the Land Development Regulations." In the Resource Protection and Public Use land use districts, FLUE Policies 1.1.2.5 and 1.1.2.6. require LID practices for all development. In the Neighborhood Commercial land use district, FLUE Policy 1.1.2.7.6 requires LID practices for "all development." In the Commercial Water-Dependent land use districts, FLUE Policy 1.1.2.8.9 requires LID practices for "all new commercial development." In the Light Industrial land use district, FLUE Policy 1.1.2.9.2 requires LID practices for "all development." These policies can be reconciled. The use of slightly different language in a particular district, or creation of an exemption for existing uses, does not render the policies internally inconsistent. Policy 4.2.2.2 of the Public Infrastructure Element (Chapter 4) of the Plan Amendments requires the adoption of land development regulations (LDRs) establishing minimum design and construction standards for new subdivisions, planned unit developments, and commercial development that will ensure that post development runoff rates do not exceed predevelopment runoff rates and encourage the same LID practices set out in FLUE Policy 1.1.1.3. IWI also contends that the inclusion of the phrase "as appropriate for such use" in the LID policies is internally inconsistent. To the contrary, it acknowledges that some of the listed practices may not be appropriate for a proposed specific use. For example, subsection (d) on "grease traps for restaurants" would not be appropriate if no restaurant is proposed. Under Section 163.3202, Florida Statutes, the Town has a year to adopt implementing LDRs providing further details, standards, and criteria for low-impact development BMPs for specific uses and within specific districts. The use of the phrase "as appropriate for such use" in the low-impact development policies allows for the exercise of engineering discretion in formulating LDRs. It does not render the policies internally inconsistent. Setbacks and Variances IWI also contends that the Plan Amendments are internally inconsistent because buffers contain different setback distances and allow for a variance to the setback buffers. The policies addressing setbacks can be read together and reconciled. The Plan Amendments include two types of setback buffers adopted for different purposes: (1) for structures, a 50-foot setback from the river and wetlands in Policies 1.1.1.2.7 and 5.1.6.7; (2) for sources of nutrient pollution other than septic systems (such as fertilized and landscaped areas and livestock sources), a 150-foot nutrient buffer setback from the river in Policies 1.1.1.2.8 and 5.1.6.4; and (3) for septic systems, special setbacks in Policy 1.1.1.2.11 (which is referred to in the nutrient buffer setback policies). These different setback policies were adopted for different purposes and are not internally inconsistent. Data and analysis supporting the establishment of these different setbacks further explains the different purposes of the different types of setbacks adopted in the Revised Comprehensive Plan. The availability of variances to the 150-foot nutrient buffer setback allows some use on a parcel to ensure protection of private property rights in the event of an unforeseen taking of all use on a specific parcel where an applicant cannot meet the setback but can meet the listed criteria for a variance and provide the mitigation required for impacts. Protection of private property rights is a competing concern that must be addressed under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. The Plan Amendments need not address every possible or potential set of facts and circumstances. Additional detail can be provided in implementing LDRs adopted under Section 163.3202, Florida Statutes. Specific implementation and interpretation of policies and LDRs applicable to any particular development proposal will be made by the Town during application review process. Seemingly inconsistent policies can be reconciled by applying the most stringent policy. Seemingly inconsistent policies also could be reconciled by application of a specific exemption, variance, or beneficial use determination. Site-specific application and interpretation of policies and LDRs in development orders, and issues as to their consistency with the goals, objectives, and policies of the Revised Comprehensive Plan, can be addressed under Section 163.3215, Florida Statutes. Small Local Governments IWI contends that the Town was not held to the same data and analysis standards under Section 163.3177(10)(i), Florida Statutes, as larger local governments. Under that statute and Rule 9J-5.002(2), the Department can consider the small size of the Town, as well as other factors, in determining the "detail of data, analyses, and the content of the goals, objectives, policies, and other graphic or textual standards required " Prior to adoption of the remedial amendments, the Town was unable to utilize GIS mapping. However, for the remedial amendments, GIS mapping was provided with the assistance of the Regional Planning Council. IWI did not prove beyond fair debate that the Town's data and analyses were insufficient under Chapter 163, Florida Statutes, and Rule Chapter 9J-5. State and Regional Plans IWI also contends, for essentially the same reasons addressed previously, that the Plan Amendments are inconsistent with State Comprehensive Plan provisions on water resources, natural systems, and public facilities and Withlacoochee Strategic Regional Policy Plan provisions on natural resources, fisheries, and water quality. A plan is consistent with the State Comprehensive Plan and regional policy plan if, considered as a whole, it is "compatible with" and "furthers" those plans. "Compatible with" means "not in conflict with" and "furthers" means "to take action in the direction of realizing goals or policies of the state or regional plan." § 163.3177(10)(a), Fla. Stat. Using those definitions, IWI failed to prove beyond fair debate that the Revised Comprehensive Plan, as a whole, is inconsistent with the State Comprehensive Plan or the Withlacoochee Strategic Regional Policy Plan.
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 Plan Amendments to be "in compliance." DONE AND ENTERED this 30th day of October, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2009.
The Issue Whether the proposed amendment to the St. Johns County 2015 Future Land Use Map (FLUM), adopted by Ordinance No. 2002-31, is "in compliance" with the relevant provisions of the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part, II, Florida Statutes. A second issue raised by St. Johns County (County) and The Estuaries Limited Liability Company (Estuaries) is whether, if the proposed amendment is not "in compliance," it is nevertheless valid and authorized pursuant to Chapter 70, Florida Statutes, the Bert J. Harris, Jr., Private Property Rights Protection Act.
Findings Of Fact The Parties Petitioner, Julie Parker, resides in St. Augustine, Florida, less than one and one-half miles from the proposed project site. Parker also owns other property in St. Johns County. Parker submitted oral comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM Amendment and Ordinance No. 2002-31. The parties agreed that Parker has standing in this proceeding. The County is a political subdivision of the State of Florida. The County adopted its Comprehensive Plan in 1990. The County proceeded with the evaluation and appraisal report process in 1997 and 1998. This process ultimately resulted in the adoption of the 2015 Comprehensive Plan Amendment, Goals, Objectives, and Policies, and Adopted EAR-Based Comprehensive Plan Amendment in May 2000 (May 2000 EAR-Based Plan Amendment), which was subjected to a sufficiency review by the Department and found "in compliance." Estuaries owns the 9.99 acres (the Property) that is the subject of the FLUM Amendment. Estuaries also owns approximately 8.5 acres outside, adjacent to, and west of the Property. The 8.5 acres are subject to a Conservation Easement, which prohibits any development activity thereon. (The total contiguous land owned by Estuaries is approximately 18.5 acres.) The parties stipulated that the legal description of the Property attached to Ordinance No. 2002-31 contains less than 10 acres. Estuaries submitted comments to the County at the adoption hearing on May 28, 2002, regarding the FLUM amendment. Estuaries has standing to participate as a party in this proceeding. The Property The Property is part of a larger tract owned by Estuaries, i.e., approximately 9.9 acres out of a total tract of approximately 18.5 acres. The entire 18.5 acre tract is located on Anastasia Island, a barrier island, which extends from the St. Augustine Inlet to the Matanzas Inlet. According to the 2000 Census, there are approximately 12,000 dwelling units on Anastasia Island. This includes condominium units and single-family units. The approximately 18.5-acre site is also located in the Coastal High Hazard Area under the County May 2000 EAR-Based Plan Amendment. The Property is part of Butler Beach (bordering the Atlantic Ocean), which is an historic area because it was settled in the early 1900's by black citizens and provided them with access to the beach, which was previously unavailable. However, no historic structures or uses have occurred on the Property. The entire 18.5 acre tract is located on the south side of Riverside Boulevard. The Property is located approximately 300 feet west of Highway A1A South (A1A runs north and south). The Intracoastal Waterway and the Matanzas River are west and adjacent to the 18.5 acres. The Estuaries site is also located adjacent to the Guana Tolomato Matanzas National Estuarine Research Reserve (NERR). The Property is vacant, partially wooded, and also consists of undeveloped wetlands. Of the 9.99 acres, approximately 6.7 acres are uplands and developable, and 3.29 acres are wetlands. As noted, the remaining approximately 8.5 acres of the Estuaries' property, and to the west of the Property, is subject to a Conservation Easement in favor of the County. The properties adjacent to the Property include the following: Single-family residential units are located along and on the north side Riverside Boulevard. The existing FLUM designations for this area are Residential Coastal Density A and C, with the existing zoning of open rural (OR). (Residential Coastal Density C permits 2.0 to 4.0 units per acre.) The Intracoastal portion of Butler State Park is to the south of the Property, with a FLUM designation of parks and open space and existing zoning of OR and is not in a conservation area. To the east of the Property is a utility substation site, Butler Avenue, various commercial uses, Island House Rentals or Condominiums (three-story oceanfront condominiums), and the Mary Street Runway. There is another condominium called Creston House, directly south of the Butler Park (ocean portion) area (distinguished from the Butler State Park), consisting of three stories. (Butler Park and Creston House are located east of A1A and southeast of the Estuaries property.) The existing FLUM designations are Coastal Residential Coastal Density A and C, and have existing zoning designations of Residential General (RG)-1 and Commercial General (CG). There are no Residential Density D FLUM land use designations in the contiguous area. In short, the Property is proximate to a state park, a densely developed area comprised of small residential lots of 25 by 100 feet lots, and the two three-story condominiums, which were built prior to the adoption of the County's 1990 Comprehensive Plan. The County's Comprehensive Plan and EAR-Based Amendments On September 14, 1990, the County adopted a Comprehensive Plan-1990-2005, with amendments (the 1990 Plan). Under the 1990 Plan, the Property was assigned a Residential Coastal-A land use designation under the existing FLUM, which meant that residential development was restricted to no more than one residential unit per upland (non-wetland jurisdictional) acre. Under this designation, approximately seven units could have been built on the Property. The zoning on the Property was and is RG-1. According to the County, at least as of a June 11, 1999, letter from the County's principal planner, Timothy W. Brown, A.I.C.P., to Kevin M. Davenport, P.E., the total units which would be allowed on the Property were 116 multi-family units, derived after making a detailed density calculation based in part on using 40 percent of the wetlands used for the density calculation. In May 2000, the County adopted the EAR-Based Plan Amendment, with supporting data and analysis, which the Department of Community Affairs found to be "in compliance." As required by Chapter 163, Part II, Florida Statutes, this would have included data and analysis for the Future Land Use Element (FLUE), which was adopted as part of these plan amendments. This is part of the data and analysis which supports the FLUM Amendment at issue in this proceeding. The May 2000 EAR-Based Plan Amendment continued the Residential Coastal A land use designation of the Property, which allows 0.4 to 1.0 units per acre. (Residential Coastal B allows 2.0 units per acre; Residential Coastal C allows 2.0 to 4.0 units per acre; and Residential Coastal D allows 4.0 to 8.0 units per acre.) The Residential Coastal A designation authorizes residential and non-residential uses, such as schools, public service facilities, police, fire, and neighborhood commercial. Restaurants and banks without drive-thru facilities, gasoline pumps, and professional office buildings are examples of neighborhood commercial uses. The May 2000 EAR-Based Plan Amendment does not limit the lot size, subject to limitations on, for example, impervious surface ratios, which do not change regardless of whether the land use designation is Residential Coastal A or D. Also, any development would also have to comply with the textural provisions of the May 2000 EAR- Based Plan Amendment, including the coastal and conservation elements. The Circuit Court Litigation There are many documents in this case which pertain to the litigation between Estuaries and the County. The civil action was filed in the Circuit Court of the Seventh Judicial Circuit, in and for St. Johns County, Florida, and styled The Estuaries Limited Liability Company v. St. Johns County, Florida, Case No. CA-00271. On February 11, 2000, Estuaries filed a Complaint against the County "relating to certain representations made by the County in connection with the development of certain real property located south of St. Augustine Beach in St. Johns County, Florida." A Second Amended Complaint was filed on or about May 30, 2001. Estuaries claimed that County staff made representations to Estuaries, which resulted in Estuaries having a vested right to develop its Property up to a maximum of 116 multi-family residential units. (The County took the position that Estuaries could build no more than 25 units on the Property.) Estuaries claimed that it had vested rights based upon a claim of equitable estoppel against the County. (One of Estuaries' claims was brought pursuant to the Bert Harris, Jr., Private Property Rights Protection Act, Chapter 70, Florida Statutes.)1 After discovery and the denial of motions for summary judgment, the parties entered into a "Settlement Agreement and Complete Release" (Settlement Agreement). The "General Terms of Settlement" in the Settlement Agreement provided in part: Estuaries shall prepare and file an application to amend the future land use map of the St. Johns County Comprehensive Plan to amend the designation of only that portion of the Property such that Estuaries may build 56 multi-family residential units on the Property and such that the amendment be a "Small-scale Amendment" as defined by the Local Government Comprehensive Planning Act. Estuaries agrees on behalf of itself, its successors and assigns to build not more than 56 units on the Property. County will waive or pay the application fee and will expedite its processing. The parties will forthwith prepare and submit to the Court a joint motion for the approval of this Agreement pursuant to the Bert J. Harris, Jr., Private Property Rights Protection Act, §70.001(4)(d)2. During the review and consideration of the amendment application, the County will expeditiously process the Estuaries' revised construction plans and, in connection therewith, the construction codes in effect as of November 13, 2001 (to the extent the County may do so without violating county, state or federal law), the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land Development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply. In all other respects, the revised construction plans shall comply with all other Comprehensive Plan and County ordinances and regulations. On or about November 16, 2001, counsel for the parties signed a Joint Motion, requesting the circuit court to approve the Settlement Agreement pursuant to Section 70.001(4)(d)2., Florida Statutes. On November 16, 2001, Circuit Judge John Michael Traynor, entered an "Order Approving Settlement Agreement pursuant to Bert J. Harris, Jr. Private Property Rights Protection Act." Judge Traynor stated in part: The central issue in this litigation has been the number of dwelling units that would be permitted on the Property. The issues in the case are legally complex and, although the credibility of the testimony and authenticity of the exhibits expected to be introduced was not expected to be substantially in dispute or challenged, the meaning of the testimony and the meaning and inferences to be drawn from such evidence was very much in dispute. The issues included the extent of vested rights, the extent to which estoppel may be applied to the County, contractual liability, and potential liability under the Bert J. Harris, Jr. Private Property Rights Protection Act . . . and the relief requested included the request for a declaration that the Plaintiff is entitled to build up to 116 dwelling units on the Property and damages against the County. Judge Traynor also "Ordered and Adjudged," in part: Pursuant to Florida Statute § 70.001(4)(a) & (c) and applicable law, this Court finds that proper notice of a Bert Harris Act claim was timely provided to the County, and other governmental entities, and the County did make a written settlement offer to the Plaintiff, in accordance with the Bert Harris Act, that was accepted by Plaintiff. Florida Statute § 70.001(4)(c) permits, inter alia, for an adjustment of land development provisions controlling the development of a plaintiff's property; increases or modifications in the density, intensity, or use of areas of development; the transfer of development rights; conditioning the amount of development or use permitted; issuance of a development order, a variance, special exceptions, or other extraordinary relief; and such other actions specified in the statute. While the parties may dispute whether an amendment is necessary to the County's Comprehensive Plan, the parties have agreed that the Plaintiff shall submit a small-scale amendment to the County for consideration and approval pursuant to the Local Government Comprehensive Planning and Land Development Regulation Act. . .; without waiver of either party's rights to contest and defend the necessity of submitting such an amendment, in light of this Court's approval of the settlement agreement pursuant to the Bert Harris Act and applicable law. The Court finds that the Settlement Agreement and Complete Release is fair, reasonable and adequate; is in the best interests of the parties and protects the public interest served by the Local Government Comprehensive Planning and Land Development Regulation Act. . .; and is the appropriate relief necessary to prevent the County's regulatory efforts from inordinately burdening the Property with regard to density, impact on public services, the environment and the public health, safety and welfare of the community and the rights of individuals to reasonably utilize their property and to rely on the representations of government, taking into consideration the risks that both parties had in this litigation. This litigation has been ongoing for more than 18 months, and substantial discovery and record has been presented to the Court that provides ample basis for this Court's approval of this settlement as being fair, reasonable and adequate and appropriate under the Bert Harris Act. There is no evidence before the Court that would suggest that the proposed settlement is the result of any collusion among the parties or their counsel. In fact, the record is to the contrary, whereby counsel on both sides have aggressively and zealously pursued the interests of their respective clients. . . . Judge Traynor directed the parties to implement the terms of the Settlement Agreement, "subject to the right of the public to comment at an appropriate public hearing pertaining to the above referenced small scale amendment to the County's Comprehensive Plan, and shall cooperate to accomplish in good faith the responsibilities under the Settlement Agreement and Complete Release." There is no evidence that Judge Traynor's Order has been rescinded or otherwise modified. There is no statutory authority to collaterally attack Judge Traynor's Order in this proceeding nor is there any authority which provides that this Order can be ignored. Also, this is not the appropriate proceeding to determine whether Estuaries has, in fact, vested rights. Accordingly, Judge Traynor's Order, approving the Settlement Agreement, is accepted as binding authority. The Small Scale Development Application In compliance with Judge Traynor's Order and the Settlement Agreement, on March 26, 2002, Estuaries filed a "Small Scale Amendment Comprehensive Plan Amendment Application Form" with the County. Estuaries requested a change in the Property's FLUM designation from Residential Coastal A, Zoning RG-1 to Residential Coastal D, Zoning RG-1. Estuaries represented, in part, that the Property consisted of 9.99 acres of vacant land, including 3.2 acres of wetlands and approximately 6.7 acres of developable land (uplands) "which will be developed into a 56 unit Multi-Family Condominium." County staff reviewed the application and recommended approval. As part of the agenda item for consideration by the St. Johns County Board of County Commissioners, County staff, in light of the criterion of "Consistency with the Goals, Objectives and Policies of the Comprehensive Plan, State Comprehensive Plan and the Northeast Florida Regional Policy Plan," stated: "[t]he approved Settlement Agreement was filed pursuant to Chapter 70.001." With respect to "Impacts on Public Facilities and Services," County staff stated: "The project has received a Certificate of Concurrency addressing the impacts on transportation, water, sewer, recreation, drainage, solid waste and mass transit. The Certificate of Concurrency is based on impacts of 84 multi-family dwelling units. Pursuant to the Settlement Agreement, the project contains 56 multi-family dwelling units. St. Johns County provides central water and sewer." With respect to "Compatibility with Surrounding Area," County staff stated: "The area is developed with a mixture of residential, commercial, park (Butler Park), and vacant land of various zoning." According to Mr. Scott Clem, the County's Director of Growth Management Services, County staff felt that there were adequate public facilities for a 56-unit project, because Estuaries had previously demonstrated that facilities were available for an 84-unit project. However, County staff expressly noted in the Planning Department Staff Report submitted to the Planning and Zoning Agency that "[t]here are no development plans included in the Application. However, all site engineering, drainage and required infrastructure improvements will be reviewed pursuant to the Development Review Process to ensure that the development complies with all applicable federal, state and local regulations and permitting requirements. No permits shall authorize development prior to compliance with all applicable regulations." At this point in time, County staff were "analyzing the potential for 56 units to be on the property. It was a site specific analysis at that point." On April 18, 2002, the Planning and Zoning Agency unanimously recommended approval of the FLUM amendment. After a properly noticed public hearing, on May 28, 2002, the County approved the FLUM Amendment in Ordinance 2002- 31. In Ordinance 2002-31, the County approved the FLUM Amendment at issue, which changed the FLUM land use classification of the Property from Residential Coastal A to Residential Coastal D. Ordinance 2002-31 also provided: "The Land Uses allowed by this Small Scale Comprehensive Plan Amendment shall be limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height." The Challenge Parker filed an Amended Petition challenging the lack of data and analysis to support the FLUM Amendment; challenging the increase in density of the Property located in a Coastal High Hazard Area; challenging the internal consistency of the FLUM Amendment with the May 2000 EAR-Based Plan Amendment; challenging the decision by the County to process the application as a small scale development amendment; and challenging the failure to provide Parker with adequate notice of a clear point of entry to challenge Ordinance No. 2002-31. Notice The County provided notice, by newspaper, of the Board of County Commissioners' meeting of May 28, 2002. Before this meeting, a sign was placed on the Property, providing notice of the meeting. Parker personally attended the May 28, 2002, meeting and addressed the Commission regarding the FLUM Amendment. Ordinance No. 2002-31 provided: "This ordinance shall take effect 31 days after adoption. If challenged within 30 days after adoption, this ordinance shall not become effective until the state land planning agency or the Administration Commission issues a final order determining the adopted small scale amendment is in compliance." This Ordinance does not advise a person of the right to challenge the Ordinance pursuant to Chapter 120, Florida Statutes, the Uniform Rules of Procedure, or Section 163.3187(3)(a), Florida Statutes. This type of notice is not required for the reasons set forth in the Conclusions of Law. Does the FLUM Amendment, covering 9.99 acres, involve a "use" of 10 acres or fewer, pursuant to Section 163.3187(1)(c)1., Florida Statutes? "A small scale development amendment may be adopted only [if] [t]he proposed amendment involves a use of 10 acres or fewer." Section 163.3187(1)(c)1., Florida Statutes.2 In the Amended Petition and in her Prehearing Stipulation, Parker contends that the "use," which is the subject of the FLUM Amendment, relates to more than the 9.99 acre parcel and, therefore, the FLUM Amendment is not a small scale development amendment defined in Section 163.3187(1)(c)1., Florida Statutes. Parker contended that because the FLUM Amendment authorizes a maximum of 56 residential units to be developed on the Property, and the maximum density under the Residential Coastal D and RG-1 zoning designations is 42.12 units, using the on-site wetlands density bonus, that Estuaries "must be using the off-site wetlands that are contained within the 18.5 acre parcel to obtain the density credit necessary to reach 56 units for the site under" the FLUM Amendment. The 56 residential unit maximum was the product of the circuit court litigation and Settlement Agreement, as approved by Judge Traynor, which resolved the differences between the County and Estuaries regarding the maximum residential density which could be authorized on the Property. Parker also contended that because Estuaries may use a proposed lift station owned by the County off-site, that this causes the proposed "use" of the Property to exceed 10 acres. It appears that at some prior time in the "vesting rights" chronology of events, Magnolia S Corporation, in order to downscale the project, agreed to sell a 40' by 80' parcel to the County, located adjacent to the Property and in the northeast portion, to expand the existing County lift station on Riverside Boulevard. There is a lift station adjacent to the Property that serves as "a repump station that serves the development along Riverside [Boulevard] west of the lift station and serves all the development in St. Johns County on the island south of Riverside Boulevard." It is proposed that sewage effluent from development on the Property would be deposited on site and then pumped into an adjacent force main which eventually ends up in the station. According to Mr. Kevin Davenport, Estuaries' civil engineer, "56 units added to that pump station would be extremely miniscule in the overall amount of sewage that goes through it." Thus, Estuaries anticipates having their own on-site lift station, which "would be pumped through a pipe to the Riverside right-of- way, where it would connect to an existing county-owned pipe which currently goes to the lift station." Mr. Clem stated that "[u]tilities are very commonly done off site where water or sewer distribution or transmission lines are constructed to the site." This would include the use of off- site lift stations. However, the proposed use of the lift station does not necessarily compel the conclusion that the FLUM Amendment exceeds 9.99 acres. If this were so, any proposed use of any off-site utilities would cause a pro rata calculation and increase of the size of the site providing the service, then be added to the 9.99 acres. This is not a reasonable construction of Section 163.3187(1)(c)1., Florida Statutes. Parker also claimed that when the Estuaries granted the County a Conservation Easement for the approximately 8.5 acres (out of 18.5 acres) of wetlands adjacent to the Property, Estuaries "used" this property to secure the FLUM Amendment, and therefore, exceeded the 9.99 acres. The Conservation Easement precludes development activity on the approximately 8.51 acres. ("The purpose of this Conservation Easement is to assure that the Property will be retained forever in its existing natural condition and to prevent any use of the Property that will impair or interfere with the environmental value of the property." Prohibited uses include "[a]ctivities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or fish and wildlife habitat preservation.") The "use" of the 8.51 acres as a potential visual amenity for potential residents on the Property is not a "use" within a reasonable reading of Section 163.3187(1)(c)1., Florida Statutes. Parker also suggested that Estuaries will need to improve Riverside Boulevard (paving and drainage) and the public right-of-way consisting of approximately 1.51 acres, which is not owned by Estuaries. It appears that Riverside Boulevard is already open, improved, and paved. Also, Mr. Clem stated that it is common to have off-site improvements associated with a project, which might include intersection or roadway improvements that are not on or within the project site. Mr. Clem opined that while these improvements would be required for the project, they would have been off-site. Some improvements, such as improvements to Riverside Boulevard, would most likely benefit the general public, and not be limited to the future residents on the Property. It is common for local governments to require improvements to public infrastructure as a condition of development. These off-site improvements do not necessarily make the "development activity" larger than the size of the landowner's site, here the Property. Data and Analysis Parker contended that the FLUM Amendment is not supported by appropriate data and analysis. As noted herein, Estuaries sought approval of a FLUM Amendment for its Property, i.e., a land use change to the FLUM. No text (goals, objectives, and policies) changes to the May 2000 EAR-Based Amendment were requested nor made. This is normal for a "site-specific small scale development activity." Section 163.3187(1)(c)1.d., Florida Statutes. Consideration of the FLUM Amendment in this proceeding is unusual for several reasons. First, the necessity for the FLUM change arose as a result of the Settlement Agreement, approved by Judge Traynor, which resolved the differences existing between the County and Estuaries regarding the number of units which could, as a maximum number, be developed on the Property. Second, the data and analysis, which normally is presented to the local government, here the County, at the time the plan amendment is adopted, is not in its traditional format here, largely, it appears, because of the manner in which consideration of the FLUM Amendment arose. Nevertheless, this situation is not fatal for, under existing precedent, see, e.g., Conclusion of Law 96, data, which was in existence at the time the FLUM Amendment was adopted by the County, may be considered in determining whether there is, in fact, adequate data supporting the FLUM Amendment. The data relied on by the County and Estuaries to support the FLUM Amendment was compiled and initially presented to the County on or about July 6, 1999, when Estuaries sought authorization from the County for a proposed project to construct 84 multi-family residential units on the same general area as the Property. This started the County's development review process. Estuaries began the process at this time, believing that it had "vested rights" to develop the Property. Mr. Clem explained that the development review process is "extremely detailed. It involves 11 or 12 different programs within the [C]ounty, looking at everything from the actual site plan itself, water and sewer provision, for all the things that would go into site construction, roadway design, the environmental considerations. We basically look at how this site will be developed in accordance with the land development code and any other regulations. We ensure that the water management district permits are obtained, if applicable, or other state agencies." This record contains County Department comments which pertain to a host of issues, including but not limited to, drainage, traffic, fire services, urban forestry (trees and landscape on-site), utilities, zoning (e.g., buffers, setbacks), concurrency requirements, etc. County staff raised questions (identified as submittals) on at least four separate occasions followed by written responses by the applicant on at least three occasions. However, not all issues were resolved. A July 1999, Land Development Traffic Assessment, prepared by Beachside Consulting Engineers, Inc., was submitted to the County as part of the request for a concurrency determination. The analysis "indicates that the roadway segments within the impact area will continue to operate at an acceptable LOS through the construction of this project." The "Summary" of the assessment states: "This project meets traffic concurrency standards, as defined by the St. Johns County Concurrency Management Ordinance, for all roads within the traffic area." "Stormwater Calculations" for the 84-unit, multi-family housing development were also provided in a report dated July 7, 1999. The applicant also furnished the County with a "geotechnical report," which analyzed the soil conditions related to storm water ponds and to the placement of the buildings and the support of the buildings on the site. Soil borings and other testing revealed the capabilities of the soil for, for example, percolation rates for the storm water ponds. There is no evidence that there are any specific historic buildings or geological or archeological features on the Property. In July 1999, the applicant submitted an application for concurrency. At that time, County staff analyzed this information to ensure that public facilities and services were in place to serve the project. This application was reviewed in relation to the County's concurrency management provisions of the County's Land Development Code. On September 3, 1999, the County's Planning Department prepared a report regarding this application and recommended "approval of a Final Certificate of Concurrency with Conditions for the development of 84 residential condominium units." (Staff made findings of fact, which included a discussion of traffic, potable water/sanitary sewer, drainage, solid waste, and mass transit.) On September 8, 1999, the Concurrency Review Committee met and adopted the Staff's Findings of Fact with conditions, including but not limited to, the applicant providing a copy of the Department of Environmental Protection permits "necessary for connection to central water and wastewater service prior to Construction Plan approval," and "[t]he applicant receiving approval of construction/drainage plans from the Development Services Department prior to commencement of construction." The Final Certificate of Concurrency with Conditions was issued on October 1, 1999, and was due to expire on September 8, 2001. However, the Settlement Agreement provided, in part, that "the existing certificate of concurrency and the terms of the vesting letter as it relates to the Land development Code, of Sonya Doerr dated September 27, 1999, shall continue to apply." (Emphasis added.) (Ms. Teresa Bishop's (County Planning Director) November 7, 2001, letter indicated, in part, that Estuaries' request for "tolling [of the Final Certificate of Concurrency] cannot be reviewed until the outcome of the pending litigation is known. . . . After the litigation is concluded, your request for tolling may be resubmitted for review." The Settlement Agreement post-dates this letter.) In evaluating a small scale plan amendment, County staff evaluates the availability of public services which, according to Mr. Clem, is "one of the major components," and County staff "is looking at virtually the same issues that [the County] would look at in concurrency to evaluate and make recommendations on small scale amendments." Mr. Clem also advised that the County's analysis of the 84-unit project did not involve, and was not based on, "a specific site plan with buildings at a certain location or parking in a certain location. It was more an 84- unit project with certain data and analysis associated with that site or project." By letter dated October 4, 1999, the Department of Environmental Protection indicated that it had received a "Notification for Use of the General Permit for Construction of an Extension to a Drinking Water Distribution System" submitted for the Estuaries project. The Department stated further: "After reviewing the notice, it appears that your project will have minimal adverse environmental effect and apparently can be constructed pursuant to a general permit as described in Chapter 62-555, F.A.C." The permit expires on October 4, 2004. This permit allows the applicant to demonstrate that it will offer a central water service, available to be served through the County's utility department. This would ensure that there is sufficient potable water available. By letter dated October 6, 1999, the Department of Environmental Protection also issued a permit for the construction of a sewage collection/transmission system (domestic waste). By letter dated November 11, 1999, the St. Johns Water Management District issued a "formal permit for construction and operation of stormwater management system." This permit authorized "[a] new stormwater system with stormwater treatment by wet detention to serve Estuaries Multi-family Development, a 5.88 acre project to be constructed as per plans received by the District on 7/12/1999." This permit did not relieve the applicant "from the responsibility for obtaining permits from any federal, state, and/or local agencies asserting concurrent jurisdiction over this work." Mr. Clem believed that this permit was evidence that "the state agencies ha[d] considered the environmental issues relating to storm water and all the issues that they deal with in issuing a permit." The Property is located in a "development area boundary" as indicated on the FLUM, which means that these areas allow "development potential." Other areas, such as rural silviculture and agricultural lands, are outside the development area and only limited and low density development is allowed. Conservation areas are also designated on the FLUM. Given the location of the Property within the development area boundary, the County thereby eliminated the necessity of producing some of the data normally required.3 Mr. Clem explained: So by being within a development area boundary it's in essence already had rights to develop, depending on the classification what those rights are, whether it's residential, commercial, industrial. So by virtue of the fact that this site [the Property] was already in the developmental boundary, we didn't deal with issues such as need, which is a big issue in the county when we add developmental boundary. Is there need for additional residential units, and so forth. So that is one part of the answer. The other part is when we're looking at changing from one residential classification to another, we're not dealing with the same issues we might have if it was going from residential to commercial or residential to industrial. So in the context of a plan amendment like this, we're looking at what can this land support in terms of density and are there public facilities available? Is it generally compatible with the surrounding area? What are the potential impacts to natural resources? So those things are still analyzed, but they're done in a probably more confined context. And then the other factor is this being a small scale amendment further reduces the amount of data that is typically done. And if it was a major amendment, there's a whole new range of issues when we deal with major amendments. By definition, they can cause more of an impact. For Mr. Clem, the data and analysis which was generated during the concurrency process for the proposed 84-unit project was significant and would be applicable to a proposed 56-unit project. Mr. Clem opined that the data for this small scale amendment was "[f]ar in excess of anything [he had] seen in the county." Environmental Impacts of the FLUM Amendment The area on and around the Estuaries' property is an area of tidal marsh intermixed with upland scrub. Many wildlife species have been seen utilizing the wetlands on and adjacent to the Estuaries' site (the 18.5 acre parcel). These include woodstorks, snowy egrets, roseate spoonbills, little blue herons, tri-colored herons, white ibis, and ospreys. Owls, foxes, raccoons, opossums, fiddler crabs, clams, fish, shrimp, and turtles also frequent the area. Parker's environmental scientist and ecologist, Mr. Robert Burks, testified to the environmental effects of any development of the Property subject to the FLUM Amendment. Mr. Burks has worked with American Institute of Certified Planners (A.I.C.P.) designated planners, providing them with opinions with respect to environmental issues. But he is not an expert in land use planning. The National Estuarine Research Reserve (NERR) is a program of the National Oceanic and Atmospheric Administration, a federal program administered by the Department of Environmental Protection. It is a program to do research and education on estuarine systems. The estuarine ecosystem composed of the Guana, Tolomato, and Matanzas Rivers has been designated as a NERR. There is testimony that development and increases in population in the area, in general, have been responsible for, for example, the decline and closure of shell-fishing and decline of water quality in the area. Conservation Goal E.2 provides: The County shall conserve, utilize, and protect the natural resources of the area, including air, water, wetlands, water wells, estuaries, water bodies, soils, minerals, vegetative communities, wildlife, wildlife habitat, groundwater recharge areas and other natural and environmental resources, insuring that resources are available for existing and future generations. Objective E.2.2 provides: Native Forests, Floodplains, Wetlands, Upland Communities, and Surface Water The County shall protect native forests, floodplains, wetlands, upland communities, and surface waters within the County from development impacts to provide for maintenance of environmental quality and wildlife habitats. Policy E.2.2.5.(a)(1)(b) provides: The County shall protect Environmentally Sensitive lands (ESLs) through the establishment of Land Development Regulations (LDRs) which address the alternate types of protection for each type of Environmentally Sensitive Land. Adoption and implementation of the Land Development Regulations shall, at a minimum, address the following issues: For Wetlands, Outstanding Florida Waters (OFW), and Estuaries: establish and modify buffers between the wetlands/ OFW/ estuaries and upland development as stated in the County's Land Development Regulations (LDRs), and as follows: * * * Except a minimum of a 50 ft. natural vegetative upland buffer shall be required and maintained between the development areas and the St. Johns, Matanzas, Guana and Tolomato Rivers and their associated tributaries, streams and other interconnecting water bodies. Policy E.2.2.13(b)(6) provides: By December 1999, the County shall develop and adopt guidelines and standards for the preservation and conservation of uplands through various land development techniques as follows: (b) The County shall recognize the following vegetative natural communities as Significant Natural Communities Habitat. Due to the rarity of these vegetative communities, a minimum of 10 percent of the total acreage of the Significant Natural Communities Habitat (excluding bona fide agriculture and/or silviculture operations) shall be preserved and maintained by the development. * * * (6) Scrub. Where on-site preservation of the native upland communities are not feasible, the County as an alternative shall accept a fee in lieu of preservation or off-site mitigation in accordance with the County Land Development Regulations. Mr. Burks opined that "generally," and if Goal E.2 is read "literally", the FLUM Amendment did not meet this Goal and afford protection for wetlands, vegetative communities, estuaries, wildlife and wildlife habitat. He perceives that "[a]nytime there's a development there will be impacts to the estuarine--the water bodies because of surficial runoff from the parking lots, from the impervious surfaces, and it will carry pollutants into those areas. And that includes soils also. . . . As far as upland habitat, when you develop an area like this, unless you leave certain parts, the upland habitat will be negatively impacted obviously. There won't be the trees there, the vegetation that was normally there before the development." For Mr. Burks, any development of the Property would generally be inconsistent with the Plan provisions recited above. But, his opinion is specifically based on how each system or plan for the site, or here, the Property, is actually designed--"it would depend on the design of the housing structures themselves and where they were placed. If you design anything in a manner which is going to protect that buffer and literally protect the water quality and the runoff in that area, then you may--it may not violate it." For example, if the Property were developed with 25-foot buffers instead of 50-foot buffers, Mr. Burks says that, from an ecology standpoint, there would be insufficient protection for wildlife, including threatened and endangered species. He offered the same opinion if the FLUM Amendment did not require a minimum ten percent set aside of the total acreage for significant natural communities habitat on the Property, such as, scrub of approximately 6.7 acres, a protected vegetative community existing on the upland portion of the Property. Furthermore, Parker introduced into evidence proposed site plans for the Property dated May 24, 2002, which show, in part, a 25-foot buffer, not a 50-foot buffer.4 Parker contends that these site plans are the best available data and analysis regarding whether the FLUM Amendment is "in compliance." However, the purpose of this proceeding is to determine whether the FLUM Amendment is "in compliance," not whether specific draft, and not approved, site plans are "in compliance" with the May 2000 EAR-Based Plan Amendment or the LDRs. If site plans are approved and a development order issued by the County, Parker, and any other aggrieved or adversely affected party may file a challenge pursuant to Section 163.3215, Florida Statutes. But, this is not the appropriate proceeding to challenge proposed site plans. This is not to say that proposed site plans cannot be considered data and analysis; only that they are not incorporated in the FLUM Amendment and are not subject to challenge here. See The Sierra Club, et al. v. St. John County, et al., Case Nos. 01- 1851GM and 01-1852GM (Recommended Order May 20, 2002; Final Order July 30, 2002). Internal Consistency Parker contended that the FLUM Amendment is inconsistent with several provisions of the May 2000 EAR-Based Plan Amendment. Some of these issues have been discussed above in Findings of Fact 68 to 80, pertaining to environmental considerations. Another issue is whether the FLUM Amendment, which changes the maximum density on the Property, is inconsistent with Policy E.1.3.11 which provides: "The County shall not approve Comprehensive Plan Amendments that increase the residential density on the Future Land Use Map within the Coastal High Hazard Area." See also Policy A.1.5.6 which offers almost identical language. The FLUM Amendment changes the land use designation of the Property, and allows a land use "limited to not more than 56 residential units, built in not more than four buildings with residential uses, not more than 35 feet in height," and thus allows a potential increase in the density of the Property, located in the Coastal High Hazard Area. This resulted from the Settlement Agreement. In Policy A.1.11.6, [t]he County recognizes that the Plan's Objectives and Policies sometime serve to support competing interests. Accordingly, in such instances, and in the absence of a mandatory prohibition of the activity at issue, it is the County's intent that the Plan be construed as a whole and that potentially competing Objectives and Policies be construed together so as to render a balanced interpretation of the Plan. It is the further intent that the County interpretation of the Plan, whether by County staff, the Planning & Zoning Agency, or the Board of County Commissioners, shall be afforded appropriate deference. County interpretations of the Plan which balance potentially competing Objectives and Policies shall not be overturned in the absence of clear and convincing evidence that the County interpretation has misapplied the Plan construed as a whole. The May 2000 EAR-Based Plan Amendment Goals, Objectives, and Policies must be read in their entirety and individual provisions cannot be read in isolation. Objective E.1.3 requires the County to engage in "post disaster planning, coastal area redevelopment, and hurricane preparedness. The County shall prepare post-disaster redevelopment plans which reduce or eliminate the exposure of human life and public and private property to natural hazards." Mr. Clem opined that Policy E.1.3.11, see Finding of Fact 81, expressed "the general intent of limiting population increases that would result in adverse impacts to hurricane evacuation of the coastal areas," and, in particular, the "barrier islands." (Policy E.1.9.5, under Objective E.1.9 Hurricane Evacuation Time, provides: "St. Johns County shall attempt to limit the density within the Coastal High Hazard Area as allowed by law.") Mr. Clem further stated that the FLUM Amendment, which restricted the Property to a maximum of 56 residential units, from a possible 116 unit maximum, was consistent with the Policy which restricts density within the coastal hazard zone. In rendering his opinions, Mr. Clem balanced the above- referenced Policies with Objective A.1.16, pertaining to "private property rights." When these May 2002 EAR-Based Plan Amendment provisions are read together, it appears that Mr. Clem's interpretations are not unreasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department of Community Affairs concluding that the FLUM Amendment adopted by St. Johns County in Ordinance No. 2002-31 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 17th day of December, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2002.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: The City of Oakland Park and Its Roadways The City of Oakland Park is an incorporated municipality located in Broward County, Florida. It is situated in the geographic center of the County. A six-lane divided expressway, I-95, runs north/south through the middle of the City. Among the major east/west thoroughfares in the City is Oakland Park Boulevard. It is a six-lane divided roadway that is functionally classified by the Florida Department of Transportation as an urban principal arterial. The roadway is lined almost exclusively with commercial development. I-95 can be accessed at Oakland Park Boulevard. The Stroks' Property and Its Surroundings Mr. and Mrs. Strok own 20.709 acres of contiguous land in the City. The land is among the few remaining undeveloped properties in the City. The Stroks' property abuts Oakland Park Boulevard to the south. Its southernmost point is a relatively short distance to the west of the Oakland Park Boulevard/I-95 interchange. At present, Oakland Park Boulevard provides the only vehicular access to the Stroks' property. Commercial development lies immediately to the east and to the west of that portion of the Stroks' property fronting on Oakland Park Boulevard. Further north on the property's western boundary is a residential neighborhood of single family homes. Single family homes also lie to the east of the Stroks' property north of Oakland Park Boulevard, but they are separated from the property by a canal. Oakland Park Boulevard, in the vicinity of the Stroks' property (Segment 366), is heavily travelled. Currently, it is operating well over its capacity and therefore, according to standards utilized by the Florida Department of Transportation, is providing a Level of Service (LOS) of "F." There are no formal plans at the moment to expend public funds on capital improvements that would increase the capacity of Oakland Park Boulevard. Whether the Stroks' property is ultimately used primarily for commercial purposes or for single family residential purposes, the development of the property will increase the traffic volume on this segment of Oakland Park Boulevard, as well as other roadway segments in the County that are now operating over capacity, but are not programmed for any capital improvements. As a general rule, however, commercial development generates more traffic than single family residential development. The City's 1989 Comprehensive Plan Future Land Use Map The City adopted its 1989 comprehensive plan on April 5, 1989. Adopted as part of the plan was a Future Land Use Map (FLUM), which was based upon appropriate surveys, studies and data concerning the area. Over Petitioners' objections, all but a small portion of the Stroks' property was designated for commercial use on the FLUM. 1/ Under the City's two prior comprehensive plans, the Stroks' entire property was designated for commercial use. "Commercial uses" are defined in Chapter IV, Section 1.32 of the City's 1989 comprehensive plan as "activities within land areas which are predominantly connected with the sale, rental and distribution of products, or performance of services." Furthermore, Chapter IV, Section 3.02(C) of the plan provides as follows with respect to lands designated for commercial use on the FLUM: Each parcel of land within an area designated in a commercial land use category by the City's land Use Plan Map must be zoned in a zoning district which permits any one or more of the following uses, but no other uses: Retail uses. Office and business uses. Wholesale, storage, light fabricating and warehouses uses, if deemed appropriate by the City. Hotels, motels and similar lodging. Recreation and open space, cemeteries, and commercial recreation uses. Community facilities and utilities. a. Special Residential Facility Category (2) development . . . . b. Special Residential Facility Category (3) development . . . . Non-residential agriculture uses. Residential uses are permitted in the same structure as a commercial use provided that the local government entity applies flexibility and reserve units to the parcel and: The residential floor area does not exceed 50% of the total floor area of the building; or The first floor is totally confined to commercial uses. Recreational vehicle park sites at a maximum density of ten (10) sites per gross acre if permanent location of recreational vehicles on the site is permitted by the City land development regulations, or twenty (20) sites per gross acre if such permanent location is prohibited by the local land development regulations, subject to allocation by the City government entity of available flexibility or reserve units. Transportation and communication facilities. The decision to designate in the City's 1989 comprehensive plan almost all of the Stroks' property for commercial use was not made without consideration of the adverse impact commercial development would have on traffic in the vicinity of the Stroks' property. Although it was recognized that such development would add more traffic to the already congested roadways in the area than would single family residential development, the prevailing view was that the additional traffic that would be generated by commercial development, as compared to that which would be generated by single family residential development, would be relatively insignificant. The designation of the major portion of the Stroks' property for commercial use is not inherently incompatible with the designations assigned other parcels of property in the surrounding area. The Stroks' property was designated for commercial use under Broward County's 1989 comprehensive plan. The Broward County Charter mandates that the land use plans of the County's incorporated municipalities be in substantial conformity with the County's land use plan. Goals, Objectives and Policies The City's 1989 comprehensive plan also includes various goals, objectives and policies. Those of particular significance to the instant case provide in pertinent part as follows: Goal 1- Protect and enhance the single family residential, multiple-family residential, non-residential and natural resource areas of Oakland Park. Objective 1.1- By November 1989, or when required by legislative mandate, revise the development code to assure that all new development . . . avoids traffic problems now impacting the City . . . . Policy 1.1.5- By November 1989, or when required by legislative mandate, the development code shall be amended to specify that no development permit shall be issued unless assurance is given that the public facilities necessitated by the project (in order to meet level of service standards specified in the Traffic Circulation, Recreation and Infrastructure policies) will be in place concurrent with the impacts of the development. A concurrency management system shall be included that specifies the latest DCA and City criteria for what constitutes "assurance" in addition to budgeted projects or signed development agreements. Goal 2- To develop an overall transportation circulation system which will provide for the transportation needs of all sectors of the community in a safe, efficient, cost effective and aesthetically pleasing manner. Objective 2.1- Provide for a safe, convenient and efficient motorized and non-motorized transportation system. Policy 2.1.1- Monitor annual traffic accident frequencies by location. Policy 2.2.2- Improve selective enforcement at high accident locations. Policy 2.1.4- Within one year of Plan submission, or when required by legislative mandate, provide safe and convenient on-site traffic flow through development review procedures. Policy 2.1.7- Reduce the amount of through traffic on local streets and collectors through the implementation, within three years of plan adoption, of a Local Area Traffic Management Program (LATMP) . . . . Policy 2.1.11- Improve the efficiency of traffic flow on existing roadways by implementing the policies of Objective 2.1. Objective 2.2- After November 1989, or when required by legislative mandate, coordinate the traffic circulation system with existing and future land uses as shown on the Future Land Use Map. Policy 2.2.1- After November 1989, or when required by legislative mandate, provide a Development Management System that will allow development to occur in concurrence with the Future Land Use Map and in concert with development of the traffic circulation system. Provide daily and peak hour LOS "D" on all arterial and collector roadways where existing plus committed traffic allows, and maintain traffic conditions on all other roadways segments. Provide daily and peak hour LOS "C" on all local roadways. LOS shall be based on the 1985 Highway Capacity Manual and the FDOT Generalized Daily and Peak Hour Level of Service Maximum Volumes. Other methods may be utilized but are subject to technical review and acceptance by the City. Policy 2.2.2- Within 120 days of plan adoption, adopt a list of local roadway segments where traffic operations are at LOS "C" or better. This list may be based on the February 21,1989 run of the Broward County TRIPS model, which includes traffic generated by committed development or other sources as appropriate. Policy 2.2.3- After 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "C" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "C" are included in an enforceable development agreement. Policy 2.2.4- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are at LOS "D" or better. This list shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. Policy 2.2.5- After November 1989, or when required by legislative mandate, the City will issue development permits for projects impacting links identified from Policy 2.2.1, under the following circumstances: There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.6- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is a scheduled improvement in the City 2010 Traffic Circulation Plan. Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Planned Improvement Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.7- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.3, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions and the scheduled 2010 improvement will be able to operate at LOS "D" once constructed. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. The necessary improvements to provide LOS "D" are under construction, under contract for construction or the City Council determines they will be under contract during the same fiscal year. The necessary improvements to provide LOS "D" are included in an enforceable development agreement. Policy 2.2.8- Within 120 days of plan adoption, adopt a list of arterial and collector roadway segments where traffic operations are worse than LOS "D" and there is no scheduled improvement in the City 2010 Traffic Circulation Plan. 2/ Traffic operations shall be based on the February 21, 1989 run of the Broward County TRIPS model, which includes traffic generated by committed development. These links will be identified as "Constrained Facilities" and the LOS will be "Maintained" within 10% of identified existing plus committed conditions, where traffic conditions are measured by volume to capacity ratios. Policy 2.2.9- After November 1989, or when required by legislative mandate, the City will only issue development permits for projects impacting links identified from Policy 2.2.5, under the following circumstances: The proposed impacts will "Maintain," within 10% of existing plus committed traffic conditions. There is an approved Action Plan accompanying the traffic impacts of the proposed development, where an Action Plan refers to any combination of accepted transit, ride- sharing, transportation systems management methods, etc. methods of traffic impact mitigation. Policy 2.2.10- The City will annually update existing traffic counts and review updated Broward County Trips assignments. Based on the update the City may reclassify any roadway segment within the City. The City may also reclassify a roadway segment if development from outside the City has effected traffic conditions within the City. Policy 2.2.11- Subsequent to plan adoption, modify the land development regulations such that after 1989, or when required by legislative mandate, require trip generation studies from all proposed development within the City and traffic impact studies for developments generating more than 10% of adjacent roadway capacity and allow development contingent upon the provision of LOS Standards. Objective 2.4- Provide for the protection of existing and future rights of way from building encroachment. Policy 2.4.2- Modify land development regulations to ensure consistency with the Broward County Trafficways Plan right-of-way requirements during development review activities. Goal 9- To ensure the orderly and efficient provision of all public services and facilities necessary to serve existing and future local population needs. Objective 9.2- By November 1989, or when required by legislative mandate, provide that development or redevelopment proposals are approved consistent with existing service availability or coincident with the programmed provision of additional services at the adopted level of service standards and meets existing and future facility needs. Policy 9.2.1- Within one year of Plan submission, or when required by legislative mandate, revise development procedures to review development proposals cognizant of the City's adopted level of service standards, existing levels of service and where appropriate, the timeframe for implementation of additional facility improvements. Policy 9.2.2- After 1989, or when required by legislative mandate, condition the approval of proposed development or redevelopment projects on the basis of project related needs being concurrently available at the adopted level of service standards specified in Policy 9.2.4. Policy 9.2.3- After November 1989, or when required by legislative mandate, allow for phasing of development related infrastructure improvements concurrently with project impacts on public facilities. Policy 9.2.4- The Level of Service (LOS) for capital facilities shall be: * * * for Arterials and Collectors- LOS "D" or "Maintain" for Local Roadways- LOS "C" ADT, PSDT and PKHR Objective 9.3- By November 1989, or when required by legislative mandate, provide that private developers participate on a proportionate share basis in any facility improvement costs necessary to maintain LOS standards. Policy 9.3.2- Establish a preference for the actual construction of adjacent site road improvements in lieu of impact fee payments. Policy 9.3.3- By November 1989, or when required by legislative mandate, establish in the land development regulations a process for assessing new development on a pro rata share of the costs necessary to finance public facility improvements in order to maintain the adopted level of service standards specified in Policy 9.2.4. Development Review Requirements Chapter IV, Section 4 of the City's 1989 comprehensive plan prescribes development review requirements. It provides in pertinent part as follows: Following the effective date of the Land Use Plan, the City shall not grant a permit for a proposed development unless the City has determined that public facilities are adequate to serve the needs of the proposed development or unless the developer agrees in writing that no certificate of occupancy shall be issued for the proposed development until public facilities are adequate to serve its needs. Public facilities may be determined to be adequate to serve the needs of a proposed development when the following conditions are met. Traffic circulation . . . public facilities and services will be available to meet established level of service standards, consistent with Chapter 163.3203(g) Florida Statutes and the concurrence management policies included within this Plan. Local streets and roads will provide safe, adequate access between buildings within the proposed development and the trafficways identified on the Broward County Trafficways Plan prior to occupancy. Capital Improvements Implementation Chapter VII of the plan deals with the subject of capital improvements implementation. It contains a section which addresses the matter of level of service standards. This section provides in pertinent part as follows: The minimum criteria for Comprehensive Plans requires that Level of Service Standards for the City of Oakland Park be included for public facilities described in the plan. The Level of Service Standards for the City of Oakland Park are provided in the following Table 2. Subsequent to the adoption of this Comprehensive Plan, all future development approvals will be conditioned upon the provision of services at the local level of service standards. Table 2 sets forth the following level of service standards for roadways: Principal Arterials- LOS "D" or "Maintain" Minor Arterials- LOS "D" or "Maintain" Collectors- LOS "C"- AADT, 3/ PSDT 4/ PKHR 5/ Submission and Approval of the Stroks' Plat On June 6, 1989, the Stroks submitted to the County Commission for its approval a final plat of their property. The plat reflected the Stroks' plan to have 15 single family dwelling units, 180,000 square feet of office space and 36,000 square feet of commercial space constructed on the property. County staff analyzed the plat to ascertain the impact that the proposed development would have on traffic. In performing their analysis, they relied on the County's TRIPS computer model. Broward County assesses impact fees against a developer where it is projected that a development will add traffic to road segments in the County that are over-capacity, but are planned for improvement. The TRIPS computer model is used to determine the amount of the assessment. County staff did a TRIPS run on the Stroks' plat on September 13, 1989 and determined that the development proposed in the plat would generate a total of 6,879 trips on road segments throughout the County, including over-capacity road segments that were not planned for improvement, as well as over-capacity road segments that were planned for improvement. 6/ The County Commission approved the Stroks' plat on September 19, 1989. A short time earlier, the City Council had also approved the plat. Petitioners' Motives Petitioners are all residents of the City of Oakland Park. In filing their petitions challenging the City's 1989 comprehensive plan, they were motivated only by a desire to improve the quality of life in their city. They had no ulterior motive. They filed the petitions because they felt that it was in the best interest of the City that they do so.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Community Affairs issue a final order finding that the City of Oakland Park's 1989 comprehensive plan is "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes. DONE and ORDERED this 18th day of May, 1990, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of th Division of Administrative Hearings this 18th day of May, 1990.
The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact NOTICE In compliance with Rule 17-17.151(4)(e), Florida Administrative Code, notice of the hearing was published in the Florida Administrative Weekly on October 2, 1992. A news release containing notice of the hearing was given to the media on September 21, 1992, and October 21, 1992. A copy of the public notice was sent by certified mail, return receipt requested, to the chief executives of the local authority responsible for zoning and land use planning in Dade County, in compliance with Rule 17-17.151(4)(b), Florida Administrative Code. A copy of the public notice was posted at the site in compliance with Rule 17-17.151(4)(c), Florida Administrative Code. Additionally, notice was published on September 25, 1992, in the Miami Review, a newspaper of general circulation in Dade County, in compliance with Rule 17-17.151(4)(a), Florida Administrative Code. LAND USE AND ZONING CONPLIANCE The proposed expansion of Dade County's Resource Recovery Facility, as set forth in its Site Certification Application, will be within the confines of the certified site of the existing resource recovery facility. Hence, that existing site carries a presumption that its current use is consistent with land use considerations. The site of the proposed expansion is consistent with the Dade County Comprehensive Development Master Plan (Dade Master Plan) pursuant to the Growth Management Act of 1985. More particularly, the site has a land use designation of "Institutional and Public Facility" on the Future Land Use Plan Map of the Dade Master Plan. The "Institutional and Public Facility" designation permits the construction and operation of a resource recovery facility. Also, the proposed expansion of Dade County's Resource Recovery Facility is consistent with: Objective 5 and Policies 5-A and 5-B as set forth in the interpretive text to the Land Use Element of the Dade Master Plan; Objective 3 and Policies 3-A, 3-B, 3-C, 3-D, 3-E and 3-F of the Conservation Element of the Dade Master Plan; and Policies 1-K and 4-B of the Water, Sewer and Solid Waste Elements of the Dade Master Plan. The existing site is presently within the GU interim district. Resolution R-569-75, which granted county approval for the existing site, satisfies the need to show compliance with the zoning ordinance. The proposed expansion of the Dade County Resource Recovery Facility is consistent with the zoning code found in Chapter 33 of the Code of Metropolitan Dade County as well as Resolution R-569-75.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order determining that the site of the proposed Dade County expansion of its resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 24th day of November, 1992, at Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1992. APPENDIX TO RECOMNENDED ORDER IN CASE NO. 92-4672EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant, Dade County Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1); 5(2); 6(4); and 7(5). Proposed finding of fact 1 is unnecessary. COPIES FURNISHED: Ross McVoy, Attorney at Law Fine Jacobson Schwartz Nash & Block 215 South Monroe, Suite 804 Tallahassee, Florida 32301-1859 Stanley B. Price, Attorney at Law Fine Jacobson Schwartz Nash & Block 100 Southeast 2nd Street Suite 3600 Miami, Florida 33131-2130 Representing the Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Gail Fels Assistant County Attorney Metro Dade Center, Suite 2800 111 Northwest First Street Miami, Florida 33128 Representing Dade County Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA William H. Roberts Assistant General Counsel Department of Transportation 605 Suwanee Street, MS-58 Tallahassee, Florida 32399-0458 Representing DOT Toni M. Leidy Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 Representing SFWMD Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson IV Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd., MS-35 Tallahassee, Florida 32399-3000 Representing DNR James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 630 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Carolyn Dekle, Executive Director Sam Goren, Attorney at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Representing South Florida Regional Planning Council David M. DeMaio Attorney at Law One Costa del Sol Boulevard Miami, Florida 33178 Representing West Dade Federation of Homeowner Associations Honorable Lawton Chiles Honorable Jim Smith Governor Secretary of State State of Florida State of Florida The Capitol The Capitol, PL-02 Tallahassee, Florida 32399 Tallahassee, Florida 32399-0250 Honorable Robert A. Butterworth Honorable Tom Gallagher Attorney General Treasurer and Insurance State of Florida Commissioner The Capitol State of Florida Tallahassee, Florida 32399-1050 The Capitol Tallahassee, Florida 32399 Honorable Bob Crawford Commissioner of Agriculture Honorable Gerald A. Lewis State of Florida Comptroller The Capitol State of Florida Tallahassee, Florida 32399-0810 The Capitol, Plaza Level Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: The City of Islandia: General Description and Location The City of Islandia is a municipality situated within the jurisdictional boundaries of Dade County, Florida. It was incorporated in 1961. The City is located in an environmentally sensitive area in the southeastern corner of the county several miles east of the mainland. The City is separated from the mainland by Biscayne Bay and is accessible only by boat, seaplane, or helicopter. The City consists of 42,208 acres of submerged and non-submerged land, 41,366 acres of which are owned by the federal government and are part of Biscayne National Park. Biscayne National Park Biscayne National Park was established as a national monument in 1968. Twelve years later it was designated a national park. The park was established because of the unique natural resources within its boundaries. Its designation as a national park promotes the preservation and protection of these valuable resources. The park attracts visitors who engage in passive, marine-oriented recreational activities, such as fishing and snorkeling. Some development has taken place within the park. Among the structures currently standing are the buildings that house the park rangers who work and reside in the park and the docks that are used by those who travel to and from the park by boat. The City's Privately Held Land The remaining 842 acres of land in the City are owned by twelve private landowners, five of whom serve on the Islandia City Council. This land contains no infrastructure and is almost entirely undeveloped. As a result, it is in virtually pristine condition. Because the privately held land in the City is part of the same ecosystem as Biscayne National Park, the development of the privately held land will necessarily have an impact on the activities in the park. Of the 842 acres of privately held land in the City only approximately three acres consist of uplands. These uplands, at their highest elevation, are only four feet above sea level. The other 839 acres of privately held land are submerged bottom lands of Biscayne Bay and the Atlantic Ocean. The privately held land in the City is located in an area of coastal barrier islands known as the Ragged Keys. These islands lie between Biscayne Bay and the Atlantic Ocean. They are separated from one another by surge channels, through which the ocean waters enter the bay. Because of their location and low elevation, these islands are extremely vulnerable to the threat of storm surges and coastal flooding. It therefore is imperative that individuals on the islands evacuate to safety as soon as possible in advance of any storm or hurricane. 2/ The Coast Guard, which assists in the early evacuation of coastal residents, removes its assets from the water when wind speeds reach 35 miles per hour. This heightens the need for those on the islands to leave before the weather takes a turn for the worse. There are five Ragged Keys in private ownership. Ragged Key One, the northernmost of these islands, is surrounded by an old, breached bulkhead. Tidal waters enter where the bulkhead is breached. Coastal wetland vegetation is the only vegetation found on the island. Ragged Key Two is totally submerged and has no uplands. Mangroves are scattered throughout the island. Unlike Ragged Key Two, Ragged Key Three includes some uplands. Its shoreline, however, is fringed with white, red and black mangroves, vegetation associated with wetlands. Mangroves play a vital role in maintaining the health of the Biscayne Bay ecosystem. They contribute a leafy matter, known as detritus, to the nutrient budget of the bay. In addition, mangroves help filter upland runoff and protect against shoreline erosion. Most of Ragged Key Four is covered with mangroves. Red mangroves dominate, but there are also white and black mangroves. A narrow band of uplands, approximately 30 to 50 feet in width, runs through the center of the island. The island's upland vegetation consists of an unusual, and therefore ecologically significant, tropical hardwood hammock species not found on the mainland. Ragged Key Five, the southernmost of the privately owned Ragged Keys, is completely inundated by tidal waters twice a day. The vegetation on the northern one-half to two-thirds of the island consists almost exclusively of mangroves, with white mangroves dominating. Mangroves are also found on the island's southeastern perimeter. Less than an acre of uplands lies toward the center of the island. The dominant vegetation on these uplands is Australian pine. The privately held bottom lands in the City that are on the ocean side of the Ragged Keys consist of a number of species of hard coral as well as soft coral and sponges not found further to the north. Consequently, these hard- bottom communities are very significant ecologically. The privately held bottomlands in the City that are on the bay side of the Ragged Keys are covered almost entirely with seagrass beds. These seagrass beds are an essential component of the bay's ecosystem. They help to maintain water quality by stabilizing and filtering sediment and serve as habitat and food for fish and other marine organisms. This is significant from not only an environmental perspective, but from an economic perspective as well, inasmuch as commercial fishing is an important industry in the area. Seagrasses depend on light for their survival. If they are beneath, or otherwise shaded by, a structure, such as a "stilt home" or dock, or deprived of light as a result of construction-related turbidity, they will die. Water depths in the City on both the ocean and bay side of the Ragged Keys are extremely shallow. In most areas, the depth of the water never exceeds four feet. Consequently, one has to be a competent boater to navigate in these areas without running aground. Boats that travel in these shallow waters, even if piloted by competent navigators, are likely to scrape and scar the ocean and bay bottom and damage the seagrass and hard-bottom communities that exist there. Furthermore, these boats are likely to leave behind in the waters they have traversed bilge waters, oils, greases and metallic-based paints from their undersides. This has the effect of lowering water quality. Fortunately, boating activities in these waters have been limited to date and, consequently, these activities have resulted in only minor environmental damage. Substantial damage will occur, however, if boat traffic on these waters increases significantly. Comprehensive Plan Preparation and Adoption The City's comprehensive plan was drafted by the staff of Robert K. Swarthout, Inc., a consulting firm that specializes in land use planning. Before retaining the services of the Swarthout firm, the City's governing body, the City Council, voted that, in the plan, all of the privately held land in the City would be designated for "residential" use and that the allowable density would be six units per acre. Sound planning dictates that such decisions be made only after the character of the land and its suitability for development are analyzed. A proposed plan for the City was developed by the Swarthout firm. Following a vote of the City Council, the proposed plan was transmitted to DCA. Upon its receipt of the proposed plan, DCA distributed copies to other governmental agencies, including Dade County, and solicited their comments. After receiving these comments and conducting its own review, DCA sent to the City a report containing DCA's objections, recommendations and comments regarding the City's proposed plan. In response to this report, the Swarthout firm drafted certain modifications to the proposed plan. The proposed plan, as so modified, was adopted by the City Council on January 13, 1989, and thereupon transmitted to DCA. The City Council held public hearings before transmitting the proposed plan and the adopted plan to DCA. The twelve private landowners in the City were notified of these hearings by mail. No one else, including any park ranger residing in the City or any other representative of the federal government, was given direct, individual advance notice of these hearings, nor were the hearings advertised in any newspaper or other publication. In failing to provide advance notice of these hearings to any one other than the City's twelve private landowners, the City Council relied upon the opinion of its attorney that no additional notice was necessary to meet the requirements of the law. Format of the City's Adopted Plan The City's adopted plan focuses upon the 842 acres of privately held land in the City. It does not discuss in great detail the future of Biscayne National Park, which comprises more than 98% of the City's land area. The plan consists of nine elements: future land use; transportation; housing; infrastructure; coastal management; conservation; recreation and open space; intergovernmental; and capital improvements. Each element contains goals, policies and objectives. In addition, the future land use element includes a future land use map and the capital improvements element includes both an implementation section and a section prescribing monitoring, updating and evaluation procedures. The document containing the City's adopted plan also describes and discusses the data and analysis upon which the plan is purportedly based. According to the document, however: Only the following segments of this document were adopted by the City Council: Goals, Objectives and Policies Capital Improvements Element Implementation section Future Land Use map Monitoring, Updating and Evaluation Procedures Future Land Use Element The future land use element of the City's adopted plan sets forth the following goals, objectives and policies: Goal 1 To provide for minimal residential development compatible with the natural resources of the National Park and balance of the islands. Objective 1.1 By 1994, achieve first phase new development sited appropriately for the topographic/flood conditions and infrastructure compatible with soil conditions. Policy 1.1.1 As the residential development occurs, require acceptable private paths, drainage, water and sewer systems through the development code; special care is needed due to limited wellfield and soil absorption areas. Policy 1.1.2 Private automobiles shall not be permitted; adequate boat or aircraft access facilities shall be required by the development code. Policy 1.1.3 Development permits shall be issued only if facilities meeting the following levels of service can be made available concurrent with the impacts of development: -Sewage disposal: septic tanks 3/ or package treatment plants providing a treatment capacity of 300 gallons per residential unit per day -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners 4/ -Circulation: pedestrian and golf cart paths -Open space: public and private of 175 acres per permanent resident Objective 1.2 Ensure reasonable protection of historic and natural resources (particularly) mangroves as development occurs. See policy for measurability Policy 1.2.1 Within one year of transmitting this plan, a development code will be prepared to assure adequate protection of the vegetative communities (particularly mangroves) as well as sensitive to hurricane considerations and the bay bottom ecology. Policy 1.2.2 The City shall consult with the National Park Service should any archaeological sites be found on the privately owned islands. Policy 1.3 Facilitate planned unit development projects through the 1989 adoption of a development code. Policy 1.3.1 Within one year of transmitting this plan, include Planned Unit Development provisions in the zoning provisions of a development code to help achieve residential development. Objective 1.4 By July 1989, adopt a development code to implement land use policies that correspond to the category on the Future Land Use Plan and minimize hurricane evacuation. Policy 1.4.1 The following land use densities, intensities and approaches shall be incorporated in the land development code; development will be required to use these densities in a mixed use Planned Unit Development format -Residential: Single-family detached and attached units at a density of 6 units per acre or less in a PUD mixed-use format. -Commercial: Supporting boat clubs/marinas, restaurants and light convenience retail; this would either be in the residential PUD or the National Park Recreation category i.e. not shown on the map. -Recreation and Open Space: This category includes primarily the National Park. The future land use map depicts only two future land uses: "recreational," which is described on the map as constituting lands of the "National Park and City Park;" and "residential," which is indicated on the map as constituting "[l]ess than 6 units per acre in Planned Unit Developments with supporting service commercial." Because Policy 1.4.1 of the future land use element permits a maximum "residential" density in the City of "6 units per acre" whereas the future land use map reflects that the City's maximum permissible "residential" density is "less [emphasis supplied] than 6 units per acre," these two provisions of the City's adopted plan are inconsistent. On the future land use map, only Ragged Keys One through Five are designated for "residential" use. The remaining land in the City, including the privately held bay and ocean bottom surrounding these islands, is designated on the map for "recreational" use. There are statements in the plan document that reflect that "residential" development is contemplated not just for the five Ragged Keys, but for the entire 842 acres of privately held land in the City. Such statements include the following which are found in the discussion of the data and analysis allegedly underlying the future land use element: Residential Capacity- The islands under municipal jurisdiction have not been developed, and there are only 842 acres of suitable vacant land for the development of residential units. Based on the Land Use Plan PUD density of six units per acre, this would suggest a build-out of 5,000 housing units. * * * Needs Assessment: Not Applicable and Other Issues- There are no incompatible or blighted uses. Some private redevelopment might be involved in upgrading the boat dock and several recreational housing units. Rather than an analysis of the land required to accommodate the projected population, this is a case where the 842 acres of buildable private land can accommodate a build-out population of about 5,000 although 720 is projected for the year 2000 based upon a projected private market demand for development at five units per acre requiring 78 acres. * * * Future Land Use Plan: Land Use Category- As indicated above, all non-Park Service land and bay bottom (842 acres) is designated "Residential Planned Unit Development With Supporting Commercial;" this will accommodate the projected population. * * * Future Land Use Plan: Impact- It is important to note the minimal impact that the private development area (842 acres), will have on the total area of the City which encompasses 42,208 acres. * * * Future Land Use Plan: Density- Approximately 842 acres, at a density of less than six units per acre, are proposed for development of the recreational units. These statements, however, are not included in those portions of the plan document that were adopted by the City Council and therefore are not part of the City's adopted plan. In addition to depicting future land uses, the future land use map also shows shoreline areas. Beaches, wetlands, and flood plains, however, are not identified on the map. Transportation Element The transportation element of the City's adopted plan contains the following goals, objectives and policies: Goal 1- To meet the unique circulation needs of Islandia. Objective 1.1- As development occurs, achieve an internal circulation system that uses paths for pedestrians, bicycles and golf carts but not automobiles. Policy 1.1.1- By July 1989, enact a development code that requires developers to provide such a path system, a) concurrent with development, and b) that connects with other adjacent developments and the boat dock facilities. Policy 1.1.2- Include development code provisions that require adequate access to the development from the mainland i.e. either by boat or aircraft facilities. Housing Element The following goals, objectives and policies are set forth in the housing element of the City's adopted plan: Goal 1- To provide recreational housing units compatible with the unique locational and environmental character of Islandia. Objective 1.1- Achieve and maintain quality housing with supporting infrastructure. Policy 1.1.1- By July 1989, enact a development code that provides an expeditious review process yet assures concurrent adequate private infrastructure. Policy 1.1.2- Include building and property maintenance standards that will assure that units are maintained in sound condition. Policy 1.1.3- To assure environmentally sound design, City codes shall include building standards (sensitive to hurricanes) and site plan review. Infrastructure Element As evidenced by the following goals, objectives and policies set forth in the infrastructure element of the City's adopted plan, the City intends that infrastructure needs will be met by private developers, rather than by the City through the expenditure of public funds: Goal 1- To provide adequate private infrastructure to serve the projected limited recreational residential development. Objective 1.1- Assure provision of adequate, environmentally sensitive private infrastructure concurrent with development through a 1989 development code. Policy 1.1.1- By July 1989, enact a development code that requires City site plan review with engineering design standards in the areas of water supply, sewage disposal, drainage, solid waste, groundwater recharge and wellfield protection plus incentives for the use of solar energy and solid waste recycling (to reduce disposal quantities by 30 percent). Policy 1.1.2- Require all development to meet the following level of service standards: -Sewage disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day 5/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid waste: off-island disposal by individual homeowners or other property owners. Objective 1.2- Encourage multi-unit water and sewer systems in order to protect the fragile environment through the 1989 development code. Policy 1.2.1- Include planned unit development provisions in the development code to be enacted by July 1989 thereby encouraging joint systems rather than individual wells and septic tanks. 6/ Policy 1,3- Protect wellfield aquifer recharge areas from development. Policy 1.3.1- By 1991, enact development code provisions that require developers to designate their wellfield aquifer recharge areas, and authorize the City to then prohibit development within said areas and related drainage systems. Objective 1.4- Each developer shall provide a mechanism for water conservation. Policy 1.4.1- At the time building permits are issued for the first development, the City and developer shall jointly prepare a water conservation plan for normal and emergency consumption. Coastal Management Element The City's adopted plan contains the following goals, objectives and policies relating to coastal management: Goal 1- To conserve, manage and sensitively use the environmental assets of Islandia's coastal zone location. Objective 1.1- Through the 1989 development code adoption, continue to protect the barrier island function and wildlife habitat. Policy 1.1.1- Retain the integrity of the islands by strictly regulating shoreline dredge and fill through the development code. Policy 1.1.2- Require common open space in conjunction with private development to retain wildlife habitats, wetlands and mangroves and assist in preservation of marine water quality and living resources. Objective 1.2- Through the 1989 development code adoption, include estuarine protection policies and thus assure environmental quality. Policy 1.2.1- The development code shall result in drainage, sewage disposal and shoreline setback policies that protect the estuary. Policy 1.2.2- As private development occurs, the City shall use the County's Biscayne Bay Aquatic Preserve Management Plan as a basis for review and maintain liaison with the Biscayne Bay Management Committee's staff. This will also be the vehicle for coordinating with the City of Miami (which is some 10 miles to the north) in terms of estuarine. Objective 1.3- Continue the current pattern which is all uses, including shoreline uses, are water dependent. Policy 1.3.1- Use the development code to maintain a shoreline use pattern that is either park, natural private land or residential with supporting boat facilities; by definition, all Islandia uses are water dependent. Objective 1.4- Protect the current natural beach and dune configuration. Policy 1.4.1- Through the development code, require any private development to a) setback far enough from the beach to retain the dunes and b) retain the related vegetative cover and wetlands or mitigate on a fair value ratio. Goal 2- To minimize hurricane damage both to property and people. Objective 2.1- Continue the current City policy of not providing infrastructure unless public safety or natural resource preservation so requires. Policy 2.1.1- The City shall not program any municipal infrastructure; private development will provide its own circulation, water and sewer systems. Objective 2.2- Residential development will be limited in amount and density, and setback from the shoreline due to the coastal high hazard area location. Policy 2.2.1- Maintain density controls so that the City will experience only limited new residential development and thereby not jeopardize hurricane evacuation capabilities or undue concentration on the private islands which are the high hazard area. (Analysis explains why directing population away from the coastal high hazard area is not feasible.) 7/ Objective 2.3- By July 1989, adopt development code provisions that assure adequate boat evacuation capability by developers and occupants. Policy 2.3.1- The development code shall require, as a condition of development permit approval, an evacuation plan showing adequate boat or aircraft capability. Objective 2.4- By 1993, prepare an emergency redevelopment plan. Policy 2.4.1- By 1993, the first phase of residential development should be underway; that will permit preparation of a realistic post-disaster redevelopment plan. Currently there is little to "redevelop." Objective 2.5- Preserve both resident and general public access to the beach. Policy 2.5.1- Over 98 percent of Islandia's area is public land with shoreline access. However, the remaining two percent should be developed so as to maximize resident beach access through planned unit development requirements. 8/ Objective 2.6- The City's objective is not to provide any public infrastructure; private developers shall provide infrastructure in conformance with level of service standards, concurrent with development. Policy 2.6.1- Developers shall provide infrastructure, with a design sensitive to hurricane vulnerability, concurrent with the impact of development within a development code concurrency management system and in keeping with the following levels of service: -Sewage Disposal: package treatment plants providing treatment capacity of 300 gallons per residential unit per day. 9/ -Water: wells providing 300 gallons per residential unit per day. -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically). -Solid Waste: off-island disposal by individual homeowners or other property owners. Conservation Element The following goals, objectives and policies are found in the conservation element of the City's adopted plan: Goal 1- To preserve and enhance the significant natural features of Islandia. Objective 1.1- Continue policies that help achieve compliance with State Department of Environmental Affairs [sic] air quality regulations; see policy for measurability. Policy 1.1.1- Continue to prohibit automobiles in the City. Objective 1.2- By July 1989, require drainage practices that avoid direct development runoff into the ocean or bay. Policy 1.2.1- By July 1989, enact development code provisions that require on-site runoff detention. Objective 1.3- By July 1989, achieve protection of existing vegetation and wildlife communities. Policy 1.3.1- By July 1989, enact development code provisions that require retention of a percentage 10/ of prime vegetative cover and wildlife habitat; particularly mangroves. Policy 1.3.2- These development regulations shall also address preservation/mitigation of the scattered island wetlands and related soils. Policy 1.3.3- Work with Federal park officials to assure that any National Park improvements are sensitive to the mangrove and other environmentally sensitive vegetative/wildlife/ marine habitats. Objective 1.4- By July 1989, have basis to avoid development activities that adversely impact the marine habitat. Policy 1.4.1- By July 1989, enact development code provisions that control dredge and fill activities, and boat anchorages in order to protect the marine and estuarine character, including the fish feeding areas on the Biscayne Bay side of the islands; special care must be taken to avoid any disruption of the tidal channels between the islands. Objective 1.5- When development occurs, achieve carefully located and designed well and sewage disposal systems. Policy 1.5.1- By July 1989, enact development code provisions that require City technical review of all well and sewage disposal systems to assure well water protections, groundwater conservation and sewage effluent control. Policy 1.5.2- When the first phase residential development permits are issued, develop an emergency water conservation program. This element of the City's adopted plan does not contain a land use and inventory map showing wildlife habitat and vegetative communities. Recreation and Open Space Element The recreation and open space element of the City's adopted plan prescribes the following goals, objectives and policies: Goal 1- To provide recreation facilities and open space which are responsive to the leisure-time needs of residents. Objective 1.1- By July 1989, achieve controls that achieve common access to the bay and the ocean. Policy 1.1.1- The City shall enact development code provisions that protect common access to the shoreline as development occurs. Objective 1.2- By July 1989, assure private recreational resources in the limited development projects to complement the National Park. Objective 1.2.1- The City shall enact development code provisions that require private recreational facilities for developments over a certain size, to complement the public National Park. Policy 1.3.1- The City shall urge Congress to retain the National Park thereby providing a Level of Service of at least 57 acres of public open space per permanent resident prior to the year 2000. 11/ Objective 1.4- Ensure the preservation of public and private open space. Policy 1.4.1- By July 1989, enact development code regulations to assure preservation of adequate private open space in conjunction with private development. Policy 1.4.2.- Work with Congress and National Park Service to assure preservation of this public open space resource. Policy 1.4.3- The City shall retain City Key in its ownership for potential use as a municipal park. Intergovernmental Element The following goals, objectives and policies in the City's adopted plan address the matter of intergovernmental coordination: Goal 1 - To maintain or establish processes to assure coordination with other governmental entities where necessary to implement this plan. Objective 1.1- By 1994, at least three of the seven issues listed in the Analysis shall be the subject of formal agreement, assuming development review has been initiated. Policy 1.1.1- The Mayor shall oversee the implementation of the recommendations outlined in the Analysis section of this element. Policy 1.1.2- In particular, the Mayor shall work with County Office of Emergency Management relative to hurricane warning and evacuation mechanisms. Policy 1.1.3- The City shall continue to work with the County and Regional planning agencies in an attempt to reach consensus on a mutually agreeable land use designation for the private islands. Policy 1.1.4- If necessary, the City shall use the South Florida Regional Planning Council to assist in the mediation of any major intergovernmental conflicts; the County land use plan is a potential example. Policy 1.1.5- After development is initiated, the Mayor shall annually issue a report outlining the services the City is providing and providing information on intergovernmental coordination. Policy 1.1.6- The City shall review all development applications in the context of the Biscayne Bay Aquatic Management Plan and maintain liaison with the staff to the Committee responsible for this plan. Objective 1.2- The Mayor shall meet at least annually with the National Park Superintendent to coordinate the impact of the City's development upon adjacent areas. Policy 1.2.1- City officials shall maintain liaison with the National Park Service on any land use or development impacts along their common boundaries. Objective 1.3- By 1999, assure level of service standards coordination with the County relative to solid waste. Policy 1.3.1- As first phase development is completed, City officials shall work with County officials on the long range implications of solid waste disposal to determine adequacy and approach. The "seven issues listed in the [intergovernmental] Analysis" section of the plan document (reference to which is made in Objective 1.1) concern the following subjects: land uses and densities; historic resources; private holdings within the National Park; permitting for construction and related infrastructure; solid waste; Biscayne Bay water quality; and emergency evacuation. The "land uses and densities" issue raised in the Intergovernmental Analysis section of the plan document relates to the alleged inconsistency between the City's plan and Dade County's plan regarding the land use designation of the privately held land in the City. It is asserted in this section of the document that the "Metro-Dade Comprehensive Plan shows the privately owned land in Islandia as 'Parks and Recreation' rather than residential." The following recommendation to resolve this alleged conflict is then offered: To date, the coordination on this issue has been sporadic. 12/ If neither the County nor National Park Service are willing to acquire these islands at a fair price, then the County plan should be amended to show them as residential. The Regional Planning Council can serve as a mediator. Dade County's adopted plan provides the following explanation of the significance of a "Parks and Recreation" land use designation in terms of the development potential of the land so designated: Both governmentally and privately owned lands are included in areas designated for Parks and Recreation use. Most of the designated Privately owned land either possess outstanding environmental qualities and unique potential for public recreation, or is a golf course included within a large scale development. The long term use of such golf courses is typically limited by deed restriction. If the owners of privately owned land designated as Parks and Recreation choose to develop before the land can be acquired for public use, the land may be developed for a use, or at a density comparable to, and compatible with surrounding development providing that such development is consistent with the goals, objectives, policies of the CDMP (the County's plan). This allowance does not apply to land designated Parks and Recreation that was set aside for park or open space use as a part of, or as a basis for approving the density of, a residential development. Certain commercial activities that are supportive of the recreational uses and complementary to the resources of the park, such as marine supply stores, fuel docks or tennis and golf clubhouses may be considered for approval in the Parks and Recreation category. Other commercial recreational or entertainment, or cultural uses may also be considered for approval in the Parks and Recreation category where complementary to the site and its resources. Some of the land shown for Parks is also environmentally sensitive. These areas include tropical hardwood hammocks, high- quality Dade County pineland, and viable mangrove forests. Some sites proposed for public acquisition under Florida's Conservation and Recreational Lands (CARL) program are identified in this category on the LUP (Land Use Plan) map although they may be as small as ten acres in size. Many of these areas are designated on the LUP map as "Environmentally Protected Parks" however, some environmentally sensitive areas may be designated simply as Parks and Recreation due to graphic restraints. All portions of parkland designated Environmentally Protected Parks or other parkland which is characterized by valuable environmental resources is intended to be managed in a manner consistent with the goals, objectives, and policies for development of the applicable environmental resources or protection area. Because it is an environmentally sensitive area, the City of Islandia, including the five Ragged Keys, has been designated "Environmentally Protected" parkland on the County's future land use map. Under the County's plan, the maximum density permitted on land so designated is one unit per five acres. With respect to the issue of historic resources, it is stated in the Intergovernmental Analysis section of the document containing the City's plan that the preservation of such resources within Biscayne National Park is the responsibility of the "National Park Service working with the State Bureau of Historic Preservation (within the Department of State) and the County Historic Preservation Division." Regarding the matter of private holdings within Biscayne National Park, the assertion is made in the Intergovernmental Analysis section of the plan document that "[a]lthough existing formal agreements exist relative to individual life estates and long-term leases by private owners within the Park, there is a need for a formal agreement relative to joint development review and agreements between the National Park Service and the City." As to permitting requirements, the Intergovernmental Analysis section of the plan document acknowledges "the array of permits required [from federal, state and county agencies] for private development and related infrastructure" in the City. In view of the regulatory authority of these agencies, the recommendation is made that the "City development code should establish a systematic review process flow chart meshing with the concurrency management system." Concerning the issue of solid waste, it is suggested in the Intergovernmental Analysis section of the plan document that "once first phase development is completed, the off-island disposal of solid waste by residents should be monitored for effectiveness" and if "this system is not working, a City-County collection arrangement would have to be developed." With respect to the issue of the water quality of Biscayne Bay, it is noted in the Intergovernmental Analysis section of the plan document that the County's "Biscayne Bay Aquatic Preserve Management Plan (Biscayne Bay Management Plan) can serve as a guide to intergovernmental estuary planning and protection as development occurs" and that therefore the "City should consult with the [County's Biscayne Bay Management Committee] staff when development proposals reach preliminary status." 13/ The Biscayne Bay Management Plan is codified in Chapter 33-D of the Metro-Dade County Code. It identifies guidelines and objectives designed to optimize the quality and quantity of marine life in the bay, to protect the bay's endangered and rare plants and animals, and to avoid irreversible and irretrievable loss of the bay's resources. The following are among the guidelines set forth in the plan: Coastal construction should be compatible with the Bay's natural features. . . * * * 8. Siting of new marinas and docking facilities should avoid use of shoreline areas containing viable submerged communities and near-shore areas of inadequate navigational depths. Such facilities should not negatively impact existing water quality. * * * The total impact from the many individual development or user activities along the Bay shoreline should not be allowed to negatively affect the Bay's biological, chemical or aesthetic qualities. Facilities in and over Bay waters and its tributaries should only be constructed if their development and use are water- dependent. Concerning the issue of emergency evacuation, the observation is made in the Intergovernmental Analysis section of the document that the "City's hurricane vulnerability makes an effective early warning imperative." It is therefore recommended that "[w]hen development occurs, the City should formalize an arrangement with the County 14/ including formal contacts, evacuation route/shelter designations and boat monitoring mechanism." 15/ Capital Improvements Element The capital improvements element of the City's adopted plan establishes the following goals, objectives and policies: Goal 1- To undertake municipal capital improvements when necessary to complement private new development facilities, within sound fiscal practices. Objective 1.1- The Mayor shall annually monitor public facility needs as a basis for recommendations to the City Council. Policy 1.1.1.- Engineering studies shall form the basis for annual preparation of a five- year capital improvement program, including one year capital budget if and when such municipal projects are deemed necessary. This element shall be reviewed annually. Policy 1.1.2- Overall priority for fiscal planning shall be those projects that enhance residential development and the environment, as per Land Use Plan. Policy 1.1.3- In setting priorities, the following kinds of criteria will be used: -Public Safety implications: a project to address a threat to public safety will receive first priority. -Level of service or capacity problems: next in priority would be projects needed to maintain the stated Level of Service. -Ability to finance: A third criteria is the budgetary impact; will it exceed budget projections? -Quality of life projects: lowest priority would be those projects not in categories 1 or 2 but that would enhance the quality of life. -Priority will be given to projects on islands experiencing development. Policy 1.1.4- Pursue a prudent policy in terms of borrowing for major capital improvements; in no case borrow more than two percent of the total assessed value in any one bond issue or loan. Objective 1.2- By July 1989, the City shall adopt a development code containing a concurrency management system to integrate the land use plan, capital improvement element and levels of service. Policy 1.2.1- City officials shall use both the Future Land Use Plan and financial analyses of the kind contained herein as a basis for reviewing development applications, in order to maintain an adequate level of service; all except parks are expected to be private: -Sewage disposal: septic tanks or package treatment plants providing treatment capacity of 300 gallons per residential unit per day 16/ -Water: wells providing 300 gallons per residential unit per day -Drainage: on-site retention and drainage systems that can accommodate a one-day storm that occurs once in ten years (statistically) -Solid Waste: off-island disposal by individual homeowners or other property owners -Public open space: 57 acres per permanent resident Objective 1.3- Major future development projects shall pay their fair share of the capital improvement needs they generate. Policy 1.3.1- The proposed development code and related review process shall require on-site detention and drainage structures acceptable to regional environmental agencies plus private water and sewer systems. Policy 1.3.2- The development code preparation shall include the consideration of impact fees. Policy 1.3.3- Pedestrian paths shall be installed as a part of all new development. Objective 1.4- Achieve mechanisms whereby public and private facility requirements generated by new development are adequately funded in a timely manner. Policy 1.4.1- The development code shall specify that no development permit shall be issued unless assurance is given that the private (or possibly public) facilities necessitated by the project (in order to meet level of service standards) will be in place concurrent with the impacts of the development. The capital improvements element of the City's adopted plan also contains an Implementation section which provides as follows: Five-Year Schedule of Capital Improvements Not applicable; no deficiencies and no projects planned for 1990-1994 period. Programs For purposes of monitoring and evaluation, the principal programs needed to implement this Element are as follows: Initiate an annual capital programming and budgeting process as soon as warranted by prospective projects; use project selection criteria. Use engineering or design studies to pinpoint the cost and timing of any potential needs or deficiencies as they are determined. Amendments to the development code to a) assure conformance to the "concurrency" requirements relative to development orders, levels of service and public facility timing, and b) explore selected impact fees e.g. for park, boat dock and beach renourishment. Data and Analysis If a comprehensive plan is to be an effective tool in managing a community's future growth and development, it must be based, not upon unsubstantiated assumptions or wishful thinking, but rather upon appropriate data and reasoned analysis of that data. Typically, the first step in developing a comprehensive plan is to ascertain the projected population of the community. Once such a projection is made, the amount of land needed to accommodate the projected population must then be determined. The analysis does not end there, however. Before any decision is made regarding how, and to what extent, the community's land will be used in the future to meet the needs of the projected population, the character of the land, including its soils, topography, and natural and historic resources, must be examined so that its suitability for development can be determined. Only after such a suitability determination is made and the carrying capacity of the land is evaluated is it appropriate to assign land use designations and densities. The City Council did not follow this conventional approach in developing its comprehensive plan. Instead, it used a methodology that is fundamentally flawed and not professionally accepted. Without collecting and analyzing available information concerning the amount of land needed to accommodate the City's future population and the character and suitability of the City's land to meet the needs of the population, it arbitrarily determined at the outset of the planning process that the privately held land in the City would be designated for "residential" use and that a maximum density of six units per acre would be allowed. It appears that the City Council simply assumed, based on nothing more than the fact that the land was in private ownership, that it was suitable for residential development at six units per acre. Had the City Council examined the information that was readily available to it concerning the character of the privately held land in the City, it undoubtedly would have realized that such land is actually unsuitable for such intense residential development. The City Council, through its consultant, the Swarthout firm, subsequently, but prior to the January 13, 1989, adoption of the City's plan, projected the population of the City and the amount of land needed to accommodate the anticipated population. It estimated that the City's population would be about 300 in 1994 and approximately 720 in the year 2000 and that 78 acres of land would be needed to accommodate the projected population in the latter year. These projections, however, were not made pursuant to a professionally accepted methodology inasmuch as they were based, at least in part, upon the preconceived notion that the City's plan should permit residential development of the privately owned land in the City at a density of six units per acre. In making these projections, the City Council assumed that all of the 842 acres of privately held land in the City would be subject to residential development. The future land use map adopted by the City Council, however, designates only a small portion of that land, the approximately 12 acres comprising the five Ragged Keys, for residential use. This is considerably less land than that the City Council projected would be needed to accommodate the City's population in the year 2000. The final land use decisions reflected on the future land use map were not the product of a thoughtful and reasoned analysis of issues that should have been considered before such decisions were made. The City Council failed to adequately consider and analyze, among other things, the following significant matters before making these decisions and adopting the City's comprehensive plan: the character of the five Ragged Keys and their suitability for residential development at a density of six units per acre, particularly in light of their location in a flood prone area; the adverse impact that such development, including related housing and infrastructure construction activities, would have on the area's natural resources and fragile environment; 17/ whether the potable water 18/ and sanitary sewer needs generated by such development can be met given logistical and environmental constraints; 19/ the financial feasibility of, and problems associated with, siting infrastructure on the land to be developed; 20/ whether the future residents of the City can be safely evacuated from the City in the face of a hurricane or tropical storm given the City's location in a coastal high-hazard area accessible from the mainland only by water and air; 21/ and the need for boat docking and other water-dependent facilities. The City's adopted plan therefore is not supported by appropriate data and analysis. The Regional Plan for South Florida The South Florida Regional Planning Council has adopted a Comprehensive Regional Policy Plan (Regional Plan) to guide future development in Broward, Dade and Monroe Counties. The Regional Plan addresses issues of regional significance. Goal 51.1 of the Regional Plan provides as follows: By 1995 the amount of solid waste placed in landfills will be reduced by 30 percent over the 1986 volume. A local government's comprehensive plan must establish a level of service for solid waste disposal if it is to be consistent with, and further, this goal of the Regional Plan. The City's comprehensive plan does not do so. Goal 57.1 of the Regional Plan states as follows: New development will not be permitted in areas where public facilities do not already exist, are not programmed, or cannot be economically provided. The City's comprehensive plan contemplates new development in areas where there are no existing nor planned public facilities. Although the plan suggests that infrastructure will be provided by private developers, there is no indication that any consideration was given to the costliness of such a venture. Goal 58.1 of the Regional Plan imposes the following requirement: Beginning in 1987, all land use plans and development regulations shall consider the compatibility of adjacent land uses, and the impacts of development on the surrounding environment. The State Comprehensive Plan The State of Florida also has a comprehensive plan. The State Comprehensive Plan confronts issues of statewide importance. Among other things, it requires "local governments, in cooperation with regional and state agencies, to prepare advance plans for the safe evacuation of coastal residents [and] to adopt plans and policies to protect public and private property and human lives from the effects of natural disasters." It also reflects that it is the policy of the State to "[p]rotect coastal resources, marine resources, and dune systems from the adverse effects of development" and to "[e]ncourage land and water uses which are compatible with the protection of sensitive coastal resources." Dade County Dade County is a political subdivision of the State of Florida. It has regulatory authority over the tidal waters, submerged bay bottom and coastal wetlands in the City of Islandia. It also has the authority under its Home Rule Charter to prescribe appropriate land uses and planning principles for the entire area within its territorial boundaries. Dade County municipalities, however, are free to deviate from the County's plan in fashioning a comprehensive plan of their own. If the residential development permitted by the City's adopted plan occurs, it will have a substantial adverse impact on areas within Dade County's jurisdiction, including Biscayne Bay, which have been designated as areas warranting protection and special treatment. Tropical Audobon Society The Tropical Audobon Society is a not-for-profit Florida corporation which engages in educational, scientific, investigative, literary and historical pursuits relating to wild birds and other animals and the plant, soil, water and other conditions essential to their development and preservation. On occasion, Tropical and its members engage in activity in the City of Islandia. They participate from time to time in census surveys of the City's bird population. In addition, they conduct tours through the City for people who want to observe the area's wildlife. The overwhelming majority of Tropical members are South Floridians. None of its members, however, reside or own land in the City of Islandia. Neither Tropical, nor anyone acting on its behalf, submitted oral or written objections during the City Council proceedings that culminated in the adoption of the City's comprehensive plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED the Administration Commission issue a final order which: (1) dismisses the Tropical Audobon Society's petition to intervene; (2) finds the City of Islandia's adopted comprehensive plan not "in compliance," within the meaning of Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the foregoing Conclusions of Law; (3) directs the City to remedy these specific deficiencies to bring the plan "in compliance;" and (4) imposes appropriate sanctions authorized by Section 163.3184(11), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
The Issue Whether the City of Miramar Comprehensive Plan Amendment, adopted by Ordinance No. 1901 on October 17, 2018, is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2018).1/
Findings Of Fact The Parties and Standing Petitioners own and reside on property located at 17428 Southwest 36th Street in Miramar, Florida. Petitioners submitted oral and written comments, recommendations, or objections to the City during the period of time between, and including appearances at, the transmittal hearing and the adoption of the Plan Amendment. Petitioners’ house is approximately 430 feet north of the property subject to the Plan Amendment (the “Subject Property”). Petitioners’ property is separated from the Subject Property by a residential canal, approximately 100 feet of wetland or marsh area, and a City street right-of-way. The residential canal is owned and controlled by Petitioners’ homeowner’s association. From the backyard of their home, Petitioners enjoy observing and photographing birds and wildlife that utilize the canal, including birds that can be seen from Petitioners’ property in the trees on the Subject Property and flying between the properties. The City is a Florida municipal corporation with the duty and authority to adopt and amend a comprehensive plan, pursuant to section 163.3167. Univision is a Delaware limited liability company authorized to transact business in Florida. Its principal business address is 500 Frank West Burr Boulevard, Teaneck, New Jersey 07666. Univision is the owner of the Subject Property. Lennar is a Florida limited liability company, whose principal business address is 700 Northwest 107th Avenue, Suite 400, Miami, Florida 33172. Lennar is under contract to purchase the Subject Property. Existing Conditions The Subject Property is approximately 120 gross acres of mostly undeveloped property. The Subject Property contains 102.2 acres of wetlands and 15.5 acres of uplands. At least 80 percent of the wetlands are covered by Melaleuca trees, which is an invasive species. Melaleuca is listed by federal and state agencies as a noxious weed, making it illegal to possess, sell, cultivate, or transport in Florida. The uplands on the Subject Property are limited to areas previously developed with radio transmission towers, a control room, and filled roadways connecting the on-site improvements. The improvements, with the exception of the fill roads, were removed in approximately 2017. The radio towers were secured by guy wires anchored by concrete blocks. The areas of the Subject Property underneath the guy wires were maintained to prevent vegetation from growing up into the guy wires. The areas where the concrete supports have been removed are wet, and the areas that were beneath the former guy wires contain fewer Melaleuca and some native vegetation, like sawgrass and ferns. However, the upland areas are also currently growing exotic grasses and Australian Pine, which are also invasive species. The Subject Property is currently designated on the City’s Future Land Use Map (“FLUM”) as “Rural.” Pursuant to the City’s Comprehensive Plan, the Rural land use category allows the following types of development: (1) residential development at a density of one dwelling unit per 2.5 gross acres (1du/2.5 acres); (2) agricultural and related uses, including crops, groves, horse and cattle ranches, private game preserves, fish breeding areas, and tree and plant nurseries; (3) parks; (4) police and fire stations, libraries, and civic centers; (5) special residential facilities, such as group homes; and (6) public utilities, including wastewater pumping stations, electrical utility substations, and telecommunications transmission facilities. The Plan Amendment The Plan Amendment changes the FLUM designation of the Subject Property from Rural to “Irregular (3.21) Residential,” which allows residential development at a density of 3.21du/acre.4/ Lennar proposes to develop 385 units on the property-- the maximum allowable under the Plan Amendment. Under Lennar’s development proposal, all of the on- site wetlands will be impacted. The Plan Amendment Process Broward County municipalities have a unique plan amendment review process. Each amendment to a municipal comprehensive plan must be consistent with, and incorporated into, the Broward County Land Use Plan (“BCLUP”). This Plan Amendment, as with all other municipal amendments, was reviewed and approved through both the County’s and City’s approval process. The Board of County Commissioners held an adoption public hearing on March 20, 2018, and approved Ordinance No. 2018-12, amending the BCLUP to change the County FLUM designation of the Subject Property from Agriculture to Irregular (3.21) Residential. On October 17, 2018, the City Commission held a duly advertised second public hearing, wherein the City voted to adopt the Plan Amendment. Lennar Permitting Lennar pursued permitting of its proposed development of the Subject Property during the Plan Amendment review process. On or about September 11, 2018, the Broward County Environmental Protection and Growth Management Department (“EPGMD”) issued an environmental resource license (“ERL”) for the proposed development. The ERL is based on Lennar’s site plan for the site, not the Plan Amendment. The ERL recognizes that the impacts on the Subject Property wetlands are unavoidable and determines that off-site mitigation is required to address any impacts on those wetlands. On or about September 11, 2018, the South Florida Water Management District issued an environmental resource permit (“ERP”) for the proposed development. The ERP is based on Lennar’s site plan and other required documents, not the Plan Amendment. The ERP provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. On or about December 14, 2018, the Army Corps of Engineers (“ACOE”) issued a permit for the development proposed, based upon Lennar’s site plan and other required documents. The ACOE permit provides that off-site mitigation is required to address any impacts on the Subject Property wetlands. Petitioners’ Challenge Section 163.3177(2) directs that “the several elements of the comprehensive plan shall be consistent,” in furtherance of the major objective of the planning process to coordinate the elements of the local comprehensive plan. Petitioners allege the Plan Amendment is not “in compliance” because it creates internal inconsistencies with the existing Comprehensive Plan. Petitioners’ challenge rests on four provisions of the Comprehensive Plan: Future Land Use Element (“FLUE”) Goal (unnumbered), FLUE Policies 3.5 and 6.10, and Conservation Element Policy 7.3 (“CE Policy 7.3”). FLUE Goal (unnumbered) The City’s Comprehensive Plan contains one overarching goal for the FLUE, which reads as follows: Maintain a long-range future land use pattern which promotes orderly and well- managed growth and development of the community, producing quality neighborhoods, enhancing the city’s aesthetic appeal, conserving the natural environment and open space, supporting a vibrant economic tax base, and minimizing risks to the public’s health, safety, and welfare. (emphasis added). The goal is the singular goal for the overall FLUE, which includes 12 different objectives and many more policies for each objective. The purpose of the goal is to set the initial framework; it is a very broad statement setting the direction for the City’s long-term goals, but does not provide any measurable standards or specifics regarding implementation. Petitioners’ challenge focuses on the underlined phrase, and argues that the Plan Amendment is internally inconsistent with the goal’s direction to “conserv[e] the natural environment and open space.” The Subject Property is not currently designated as either “Recreation and Open Space” or “Conservation.” The Subject Property is private property that, by virtue of its land use designation, has always been intended for development as one of the uses allowable within the Rural land use category. Further, Eric Silva, the Director of the City’s Community and Economic Development Department, testified that the goal’s direction of “conserving the natural environment and open space” relates only to those areas that have been designated by the City, or another agency, for protection. The Recreation and Open Space Element (“ROS Element”) sets forth the specific objectives and policies to accomplish the City’s goal to “[p]rovide adequate and accessible parks and facilities to meet the recreation needs of all current and future Miramar residents.” In the ROS Element, the City has established a level of service standard of four acres of park and open space for each 1,000 City residents. Petitioners introduced no evidence that the Plan Amendment would diminish the amount of land designated for open space in the City, or otherwise impede the City’s progress toward the adopted standard. To the contrary, Mr. Silva testified that the City has over 300 extra acres of park space and that this Plan Amendment will not impact the City’s adopted level of service for parks and open space. Likewise, Petitioners introduced no evidence to support a finding that the Plan Amendment would reduce the amount of land designated for “Conservation” in the City. Rather, Petitioners argue that the Subject Property should be converted to a nature preserve, or otherwise placed in conservation use. The issue in this case is not whether the City should designate the Subject Property for a different use, but whether the designation the City proposes is consistent with the comprehensive plan. Petitioners did not prove the Plan Amendment is inconsistent with the FLUE Goal. FLUE Policy 3.5 Petitioners next contend the Plan Amendment is inconsistent with FLUE Policy 3.5, which directs the City to “[c]onsider the cumulative and long-term effects of decisions regarding amendments to the Land Use Plan Map and revisions to the Future Land Use Element.” Petitioners’ concerns here are similar to those with the FLUE Goal--the Plan Amendment will reduce green space and open space, which could be preserved under the existing Rural designation. Petitioners’ expert witness conceded that it is impossible to determine that the City did not consider the cumulative and long-term effects of the Plan Amendment. Moreover, the City introduced abundant evidence that it considered, during the lengthy Plan Amendment process, all impacts of the Plan Amendment on the City’s resources and infrastructure. Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 3.5. FLUE Policy 6.10 Next, Petitioners argue the Plan Amendment is inconsistent with FLUE Policy 6.10, which states, “The City shall consider the impacts of land use plan amendments on wetland and native upland resources, and minimize those impacts to the maximum extent practicable.” Here, Petitioners focus on the density allowed under the Plan Amendment. Petitioners argue that the Plan Amendment is inconsistent with this policy because it allows development of 385 units, which will maximize, rather than minimize, impacts to the on-site wetlands. Petitioners argue that the residential density allowed under the existing Rural designation would yield development of only 48 units, which would provide for conservation of at least some of the wetlands on site, thereby minimizing the wetland impact. Petitioners’ argument ignores the fact that the Rural designation allows other types of non-residential development that may be as intense as residential, such as a civic center or fire station, or uses that require fewer improvements, but have a destructive effect on wetlands, such as horse or cattle ranches. The issue of whether the Plan Amendment minimizes impacts to wetlands is not determined by the mathematical function 48 units < 385 units. Instead, the determination hinges on the meaning of “minimizing impacts” in the City’s Comprehensive Plan. Under the City’s Comprehensive Plan, impact of development on wetlands must be considered in partnership with the County, and is dependent upon the value assigned to those wetlands, pursuant to the wetlands benefit index (“WBI”), as set forth in the Conservation Element. Based on the following relevant analysis, the Petitioners did not prove the Plan Amendment is inconsistent with FLUE Policy 6.10. CE Policy 7.3 Finally, Petitioners challenge the Plan Amendment as internally inconsistent with CE Policy 7.3, which reads as follows: The City shall distribute land uses in a manner that avoids or minimizes to the greatest degree practicable, the effect and impact on wetlands in coordination with Broward County. Those land uses identified below as being incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands, or when compatible land uses are allowed to occur, shall be mitigated or enhanced, or both, to compensate for loss of wetland functions in accordance with Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection. Compatibility of Land UsesRelative to the Wetland Benefit Index (WBI) Wetland Benefit Index Land Use Compatibility 1. Wetlands with a WBI value greater than or equal to 0.80 1. There is a rebuttable presumption that all land uses except for conservation uses are incompatible. 2. Wetlands with a WBI value less than 0.80 2. All land uses are compatible, provided that the wetland impact compensation requirements of Chapter 27, Article XI, are satisfied. Source: Broward County Code of Ordinances, Chapter 27, Article XI, Aquatic and Wetland Resource Protection CE Policy 7.3 is more specific than FLUE Policy 6.10 regarding the City’s direction to minimize impacts of development on wetlands. Petitioners’ planning expert opined that the Plan Amendment is inconsistent with this policy because it does not “avoid or minimize” the impact of wetlands at all, much less “to the greatest degree practicable,” as directed by the policy. Petitioners’ expert based his entire argument solely on the first sentence of the policy. Petitioners’ planning expert explained, incredulously, that, in his opinion, the rest of the policy “doesn’t matter.”5/ The opinion of Petitioners’ expert was not persuasive. The Policy must be read in its entirety; and, when read as such, the Plan Amendment is consistent with the policy. The first sentence of the policy is precatory and direction-setting. It states the City’s intent to distribute land uses in a way that minimizes wetland impacts. The following sentences describe in more detail how that direction will be accomplished, and specifically reference the incorporated chart. The policy provides that land uses identified in the chart as incompatible with wetland protection “shall be directed away from wetlands.” By contrast, the policy provides that for land uses identified as compatible, wetland impacts “shall be mitigated . . . in accordance with the Broward County Code of Ordinances, Chapter 27.” It is undisputed that the wetlands on the Subject Property have a WBI value of less than .80. Pursuant to the chart, then, all uses of the Subject Property are compatible with the wetlands on-site, as long as the wetland impact compensation requirements of the Broward County Code are followed. The policy clearly provides that no development, regardless of density or intensity, must be directed away from the wetlands on the Subject Property. If the WBI value of the on-site wetlands was .80 or higher, pursuant to this policy, Petitioners’ position that the Subject Property should be placed in Conservation use would be presumed correct, although rebuttable. To that end, Petitioners introduced expert opinion testimony as to the quality of the wetland areas on-site which were previously maintained by the property owner--namely the areas under the guy wires. In the opinion of Petitioners’ wetlands expert, the on-site wetlands could be restored to higher quality if the Melaleuca trees were removed and the stumps sprayed to prevent regrowth. Petitioners’ argument is irrelevant to a determination of whether the Plan Amendment is consistent with this policy. Having established that the WBI value of the on-site wetlands is below .80, the issue of whether the on-site wetlands could be restored is irrelevant. Chapter 27 of the Broward County Code governs application for, and issuance of, an ERL for wetland alteration. On September 11, 2018, Broward County issued an ERL to Lennar for its proposed development of the Subject Property. Petitioner introduced no evidence to support a finding that the provisions of Chapter 27 were not satisfied by the County in issuing the ERL. Petitioners did not prove the Plan Amendment is inconsistent with CE Policy 7.3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by City of Miramar Ordinance 1901, on October 7, 2018, is “in compliance,” as that term is defined by section 163.3184(1)(b), Florida Statutes. DONE AND ENTERED this 26th day of June, 2019, 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 26th day of June, 2019.
The Issue The issue to be determined in this case is whether the amendment of the Town of Eatonville Comprehensive Plan adopted through Ordinance 2014-2 (“Plan Amendment”) is “in compliance” as that term is defined in section 163.3184(1)(b), Florida Statutes (2014).
Findings Of Fact The Parties Respondent Town of Eatonville is a municipality in Orange County with a comprehensive plan which it amends from time to time pursuant to chapter 163, Florida Statutes. Intervenor Lake Weston, LLC, is a Florida limited liability company whose sole member is Clayton Investments, Ltd. It owns approximately 49 acres of land along Lake Weston on West Kennedy Boulevard in Eatonville (“the Property”), which is the subject of the Plan Amendment. Petitioners Sharon Leichering, Lori Erlacher, George Perantoni, Valerie Perantoni, and Doreen Maroth own or reside in unincorporated Orange County near Lake Weston. The record does not establish whether Dale Dunn lives or owns property in the area. Petitioner Kingswood Manor Association, Inc., is a non- profit corporation whose members are residents of Kingswood Manor, a residential subdivision near the Property. Petitioner Friends of Lake Weston and Adjacent Canals, Inc., is a non-profit corporation whose objective is to protect these waters. Standing Petitioners Sharon Leichering and George Perantoni submitted comments to the Eatonville Town Council on their own behalves and on behalf of the Kingswood Manor Association and Friends of Lake Weston, respectively, regarding the Plan Amendment. Petitioner Valerie Perantoni is the wife of Petitioner George Perantoni. She did not submit comments regarding the Plan Amendment to the Town Council. Petitioner Dale Dunn did not appear at the final hearing. There is no evidence Mr. Dunn submitted oral or written comments to the Town Council regarding the Plan Amendment. Petitioner Doreen Maroth did not appear at the final hearing for medical reasons. Ms. Maroth submitted oral comments to the Town Council regarding the Plan Amendment. Respondent and Intervenor contend there is no evidence that Lori Erlacher appeared and gave comments to the Town Council, but the Town Clerk testified that Petitioner Leichering was granted an extension of time “to speak for others” and Petitioner Leichering testified that the “others” were Lori Erlacher and Carla McMullen. The Plan Amendment The Property is zoned “Industrial” in the Town’s Land Development Code, but is designated “Commercial” on the Future Land Use Map in the Comprehensive Plan. The Town adopted the Plan Amendment to make the zoning and future land use designations consistent with each other. The Plan Amendment attempts to resolve the inconsistency by designating the Property as the “Lake Weston Subarea” within the Commercial land use category. The designation would appear on the Future Land Use Map and a new policy is made applicable to the Subarea, allowing both industrial and commercial uses: 1.6.10. Lake Weston Subarea Policy. Notwithstanding the provisions of Policy 1.6.9, within the Lake Weston Subarea Policy boundaries as shown on the Future Land Use Map, light industrial uses may be allowed in addition to commercial uses. The specific permitted uses and development standards shall be established by the Lake Weston Overlay District, which shall be adopted as a zoning overlay district in the Land Development Code; however, the wetlands adjacent to Lake Weston within the Lake Weston Subarea Policy boundaries are hereby designated as a Class I Conservation Area pursuant to Section 13-5.3 of the Town of Eatonville Land Development Code and shall be subject to the applicable provisions of Section 13-5 of the Land Development Code. The intent of this subarea policy and related Lake Weston Overlay District is to allow a range of commercial and industrial uses on the subject property with appropriate development standards, protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties. Subject to requirements of this subarea policy and of the Lake Weston Overlay district, the current industrial zoning of the property is hereby deemed consistent with the Commercial Future Land Use designation of the area within the boundaries of this subarea policy. Data and Analysis Petitioners contend the Plan Amendment is not supported by relevant and appropriate data and analysis. Relatively little data and analysis were needed to address the inconsistency between the Land Development Code and the Comprehensive Plan or to address the protection of Lake Weston and adjacent land uses. The need to protect environmental resources, to mitigate negative impacts of development, and to promote compatibility with surrounding land uses was based on general principles of land planning, the report of a planning consultant, as well as public comment from Petitioners and others. A wetland map, survey, and delineation were submitted to the Town. The effect of the Class I Conservation Area designation is described in the Land Development Code. The availability of public infrastructure and services was not questioned by Petitioners. The preponderance of the evidence shows the Plan Amendment is based on relevant and appropriate data and analysis. Meaningful Standards Petitioners contend the Plan Amendment does not establish meaningful and predictable standards for the future use of the Property. It is common for comprehensive plans to assign a general land use category to a parcel, such as Residential, Commercial, or Industrial, and then to list the types of uses allowed in that category. The Plan amendment does not alter the Comprehensive Plan’s current listing of Commercial and Industrial uses. The Plan Amendment designates the wetlands adjacent to Lake Weston as a Class I Conservation Area subject to the provisions of the Eatonville Wetlands Ordinance in the Land Development Code. This designation means the littoral zone of the lake and associated wetlands would be placed under a conservation easement. This is meaningful guidance related to the future use of the Property. The Plan Amendment directs the Land Development Code to be amended to create a Lake Weston Overlay District with the expressed intent to “protect environmental resources, mitigate negative impacts and promote compatibility with surrounding properties.” This direction in the Plan Amendment is guidance for the content of more detailed land development and use regulations. Contemporaneous with the adoption of the Plan Amendment, the Eatonville Land Development Code was amended to establish the Lake Weston Overlay District, which has the same boundaries as the Property. The Land Development Code describes in greater detail the allowed uses and development standards applicable to the Property. The preponderance of the evidence shows the Plan Amendment establishes meaningful and predictable standards. Internal Consistency Petitioners contend the Plan Amendment is inconsistent with the relatively recent Wekiva Amendments to the Comprehensive Plan, but Petitioners failed to show how the Plan Amendment is inconsistent with any provision of the Wekiva Amendments. Petitioners contend the Plan Amendment is inconsistent with objectives and policies of the Comprehensive Plan that require development to be compatible with adjacent residential uses. Compatibility is largely a matter of the distribution of land uses within a parcel and measures used to create natural and artificial buffers. These are matters usually addressed when a landowner applies for site development approval. Protection is provided in the Plan Amendment for Lake Weston and its wetlands. Petitioners did not show there are other factors that make it impossible to make light industrial uses on the Property compatible with adjacent residential uses. The preponderance of the evidence shows the Plan Amendment is consistent with other provisions of the Comprehensive Plan. Urban Sprawl Petitioners contend the Plan Amendment promotes urban sprawl based on the potential for more impervious surfaces and less open space. However, this potential does not automatically mean the Plan Amendment promotes urban sprawl. Section 163.3177(6)(a)9. sets forth thirteen factors to be considered in determining whether a plan amendment discourages the proliferation of urban sprawl, such as failing to maximize the use of existing public facilities. The Plan Amendment does not “trigger” any of the listed factors. The preponderance of the evidence shows the Plan does not promote the proliferation of urban sprawl.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a final order determining that the Plan Amendment adopted by Eatonville Ordinance No. 2014-02 is in compliance. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S 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 3rd day of June, 2015. COPIES FURNISHED: George Anthony Perantoni Friends of Lake Weston and Adjacent Canals, Inc. 5800 Shasta Drive Orlando, Florida (eServed) 32810 Dale Dunn 5726 Shasta Drive Orlando, Florida 32810 Lori A. Erlacher 1620 Mosher Drive Orlando, Florida 32810 (eServed) Sharon R. Leichering Kingswood Manor Association, Inc. 5623 Stull Avenue Orlando, Florida 32810 (eServed) Doreen Lynne Maroth 5736 Satel Drive Orlando, Florida 32810 (eServed) Valerie Lolita Perantoni 5800 Shasta Drive Orlando, Florida 32810 (eServed) Debbie Franklin, City Clerk Town of Eatonville, Florida 307 East Kennedy Boulevard Eatonville, Florida 32751 Joseph Morrell, Esquire Town of Eatonville 1310 West Colonial Drive, Suite 28 Orlando, Florida 32804 (eServed) William Clay Henderson, Esquire Holland and Knight, LLP 200 South Orange Avenue, Suite 2600 Orlando, Florida 32801 (eServed) Robert N. Sechen, General Counsel Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Jesse Panuccio, Executive Director Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed) Katie Zimmer, Agency Clerk Department of Economic Opportunity Mail Stop Code 110, Caldwell Building 107 East Madison Street Tallahassee, Florida 32399-4128 (eServed)
The Issue Whether Lee County Comprehensive Plan Amendment CPA2015-00005, adopted by Ordinance No. 20-07 on June 17, 2020 (the “Plan Amendment”), is “in compliance,” as that term is defined in section 163.3184(1)(b), Florida Statutes (2019).1
Findings Of Fact The Parties and Standing Petitioner, William J. Semmer, owns and operates seven businesses on San Carlos Island in Lee County, and owns 25 properties on San Carlos Island, including his personal residence, as well as several rental properties and commercial establishments. Petitioner, Joanne E. Semmer, lives and owns her personal residence in San Carlos Island, and owns and operates a business—Ostego Bay Environmental—on San Carlos Island at 1130 Main Street, directly across Main Street from the property subject to the Plan Amendment (“subject property”). Both Petitioners submitted oral comments to the County concerning the Plan Amendment at the adoption hearing on the Plan Amendment. Lee County (“the County”) is a political subdivision of the State of Florida, with the duty to adopt and amend its Comprehensive Plan in compliance with the Community Planning Act (“the Act”). See § 163.3167(1), Fla. Stat. Intervenor, Southern Comfort Storage, LLC, owns property and operates a business within the County, and owns the subject property. Intervenor applied for the Plan Amendment that is the subject of this final hearing. San Carlos Island The subject property is located on San Carlos Island, a non-barrier island in the unincorporated area of the County between the cities of Fort Myers and Fort Myers Beach. The Matanzas Pass lies to the south, between the island and Ft. Myers Beach. The pass provides access to Estero Bay through a channel with depths between 11 and 14 feet. That portion of the Bay lying north of the island is shallower, with average depths of between four and six feet. The island is approximately one mile long, and is bisected by two main roadways: San Carlos Boulevard, a north/south arterial roadway on the western side of the island that connects via a bridge to Fort Myers Beach; and Main Street, a collector roadway running east/west bisecting the island north and south. Under the existing Comprehensive Plan Future Land Use Map (“FLUM”), San Carlos Island is dominated by Industrial, Urban Community, and Suburban land use designations, generally located as follows: Suburban (residential) on both the eastern and western ends of the island, as well as in the island center north of Main Street; Industrial concentrated in the center of the island, both north and south of Main Street; and Urban Community concentrated in a corridor along San Carlos Boulevard connecting to Fort Myers Beach. Other large land uses include conservation lands, both uplands and wetlands. Another category—Destination Resort Mixed Use Water Dependent (“DRMUWD”)—was added by a plan amendment in 2009, converting 28 acres of Industrial and Suburban to this new use for the Ebtide development, which includes a 450-unit hotel with 75,000 square feet of convention space; 271 multi-family residential units; 10,000 square feet of office; 85,000 square feet of retail, and a marina. This development is approximately one quarter mile from the subject property. San Carlos Island is designated within the Iona-McGregor Planning Community (“the planning community”) pursuant to the Comprehensive Plan. According to the Comprehensive Plan, “[t]his community primarily has lands designated as Central Urban, Urban Community, Suburban, and Outlying Suburban …. This community, due to its proximity to the area beaches, will continue to be a popular area for seasonal residents.” The island is one of three discernable sub-areas of the planning community. According to the Comprehensive Plan: The San Carlos Island area, which is nearly built out today, will continue to develop its infill areas while maintaining its marine oriented nature. Residents of the community will address current planning concerns in a comprehensive review of this area and future amendments to this plan will be made to address these concerns. This area is anticipated to grow substantially from today to 2030. Historically, the economy of the island was driven by the commercial shrimping and fishing industries. Many of the industrial uses on the island were associated with processing seafood, especially packing and freezing seafood for transport beyond the island; warehousing and storage of equipment; and boat repair yards. Advances in technology, including shipboard freezing, have reduced the need for dockside packing houses. In 1950, there were seven packing houses on the island. There are only two packing houses currently in operation on the island, both of which are located south of Main Street, where the boats have access to deep water ports. Increased imports of shrimp from other countries has also contributed to the decline of the shrimping industry on the island.2 The amount of shrimp harvested from waters near the island peaked in the mid-1990s at over 6,000,000 pounds, but had fallen to slightly more than 2,000,000 pounds by 2015. Petitioner, Joanne Semmer, attempted to contradict the evidence that the local shrimp harvest is in decline because the data introduced does not include anything subsequent to 2015. She maintains that the industry has stabilized since 2015. Ms. Semmer testified that “they’re having a bang-up year this year.” Ms. Semmer’s testimony was based on her discussions with commercial shrimp fleet owners and is entirely hearsay evidence upon which the undersigned cannot rely for finding that the shrimp industry has stabilized.3 One of the more recent changes in the shrimping industry is the move from 50-foot to 100-foot shrimp boats, which can carry larger amounts of shrimp, thereby reducing the number of trips needed to harvest the catch. Due to the deeper channel, the properties south of Main Street can better accommodate the larger deep-draft shrimp boats used in the modern shrimping industry. In the last 20 years, the significant development and redevelopment on the island has been commercial and recreational in character. 2 The ratio of local to foreign-sourced shrimp in the United States had decreased from roughly 1:1 in the late 1970s, to roughly 1:5.8 in 2002. 3 Furthermore, Ms. Semmer’s testimony that the shrimpers are having a “bang-up year” and “one of their best years ever,” does not provide numbers of pounds of shrimp to compare with the data introduced by Intervenor. Redevelopment south of Main Street has been characterized by commercial and mixed-use development, rather than industrial development on the waterfront. Two large recreational marinas have been developed which provide commercial fishing berths and boat rentals. They have supporting restaurants, wet slips, dry storage, and some commercial retail. Generally, the area south of Main Street is in transition from traditional industrial to more commercial and recreational uses. The industrial uses north of Main Street are less intense and conducted on mostly unimproved properties. The uses include open yards for storing equipment, repairing and maintaining equipment and boats, parking and turnaround of large trucks used to transport seafood beyond the island, and areas to offload seafood products and equipment from boats. Waterfronts Florida Partnership In 1997, the island was designated by the state as one of the first communities in its Waterfronts Florida Partnership (“Waterfronts Florida” or “the partnership”) program. A self-created committee, of which Ms. Semmer was a vital member, applied for the Waterfronts Florida designation “to help the community deal with the capacity of shrimping and fishing boats that docked there seasonally, as well as educate residents and visitors about the island’s working waterfront.” The portion of the island encompassing the Waterfronts Florida Designated Area includes only property south of Main Street, and stretches from its intersection with the San Carlos Boulevard bridge one half-mile along the Matanzas Pass. Through the partnership, the community developed a self-guided working waterfront tour called “A Healthy Bay = Healthy Seafood,” which takes participants along a short trail with kiosks that provide information about the bay, the habitat, and the fish that live in it. Although it is self- guided, a volunteer is available on certain days to provide a narrated tour. Ms. Semmer is the volunteer program manager and frequently guides the tour herself. Ms. Semmer is also the executive director of the Ostego Bay Foundation Marine Science Center, which is integral to the partnership. The center provides a marine science experience through interactive exhibits, aquariums, hands-on tanks, collections and displays, and holds educational camps. One of the projects of the Waterfronts Florida committee was development of a special area management plan (the “special area plan”) for the island, which was adopted in 1999. The special area plan included the following vision statement for the community: San Carlos Island is a people-oriented community with an important working waterfront that includes vibrant commercial seafood and other marine-based industries and recreational opportunities. These assets contribute to making San Carlos Island an attractive community for its permanent and seasonal residents as well as an interesting area for visiting tourists. The first goal of the special area plan is to “[c]ontinue to support and develop” the island’s commercial fishing and passenger vessel industry “while diversifying the economic base” of the island “to enhance recreational and tourism-related opportunities” and support businesses along San Carlos Boulevard and Main Street. Objectives to accomplish that goal include “[d]iversify[ing] the island’s economic base by enhancing tourism, retail, and recreation opportunities.” The special area plan also refers to the need to possibly revise the water- dependent land use policies “which have been identified as limiting development options along the west side of Main Street.”4 The special area plan calls for developing language that will “increase flexibility and mix of land use types” allowable on land currently zoned for water-dependent uses, which may include traditional commercial fishing village industry “such as restaurants and mixed use commercial/residential.” The Subject Property The subject property is 7.47 acres located north of, and abutting, Main Street. The property is a combination of eight adjoining lots, most of which are narrow and elongated, with a variety of existing zoning designations— marine industrial, light industrial, commercial, and mobile home. The property was most recently the site of the Compass Rose marina, which, in 2006, was approved, through special exception and a variance, for a 286-dry slip boat storage facility at a maximum of 65 feet in height, 29 wet slips, and an associated boat launch; commercial spaces for member gatherings, a restaurant, ship store, and mini-storage. The marina and attendant uses were subsequently destroyed, except for the storage facility, which is located on the westernmost portion of the subject property. The subject property has access to Estero Bay via a 75-foot man-made canal along its eastern boundary. However, from the canal, vessels must access the Bay via a shallow channel with average depths of four to six feet. Commercial fishing and shrimping vessels require over six feet of depth at mean low tide. Most of the subject property is designated Industrial on the FLUM, with a very small portion in Suburban. According to the Comprehensive Plan, the Industrial designation is “reserved mainly for industrial activities and selective land use mixtures … includ[ing] industrial, manufacturing, research, educational uses, and office complex (if specifically related to 4 This document refers to Main Street as a roadway running north/south, rather than east/west. West of Main Street coincides with south of Main Street in the parlance of other documents describing Main Street as an east/west corridor. adjoining industrial uses)[.]” Retail, recreational, and service uses are allowed if they are limited to the sale of products “manufactured or directly related to that manufactured on the premises,” and are subject to acreage limitations. Residential uses are not allowed in the Industrial category. The subject property is also located within the San Carlos Island Water-Dependent overlay zone, the objective of which is to “protect marine- oriented land uses [on the island] from incompatible or pre-emptive land uses.” New development, and substantial redevelopment, within this overlay north of Main Street, is limited to marine industrial uses and recreational marinas. Surrounding Land Uses The subject property is surrounded by property in the Industrial category, with the exception of the property to its east. Lying across the 75- foot canal are three “fingers” of densely-developed residential property extending into Estero Bay which are designated Suburban. The developments are mostly mobile homes and manufactured housing, which, in large part, serve the workforce living on the island. The standard density in the Suburban land use category is six dwelling units per acre (“6 du/acre”). The Oak Street residential development lying directly across the canal is developed at a density of 7 du/acre, and is non-conforming. The Canal Point Mobile Home Park just east of Oak Street, encompasses two “fingers,” Nancy Lane and Emily Lane. Both “fingers” were developed at non-conforming densities of 9.6 du/acre and 11.6 du/acre, respectively. Continuing east along Main Street, Helen Lane and Oyster Bay are mobile home and manufactured housing communities developed at over 13 du/acre. Another residential development, Sportman’s Cove, lies north of the Industrial properties, directly on the Bay, and is developed at 13.1 du/acre. Industrial uses to the west include open storage, closed storage, warehousing, and distribution facilities. South of Main Street is a mix of more intense industrial uses with direct access to the Bay via Matanzas Pass’ deep water channels. A portion of the Industrial property directly north of the subject property is owned by Mr. Semmer. He conducts, or leases the property for, a variety of industrial uses. Mr. Semmer’s property is adjacent to the canal, and he contracts with some smaller shrimp boats and blue crab fishermen to dock and unload there. The property is often used for storage of equipment used by those industries, as well as an open yard for equipment repair. Mr. Semmer’s property was also used as a staging area during reconstruction of the Sanibel Causeway, providing a landing site for marine barges to load and unload large equipment needed for the reconstruction. The property was used to pour and set concrete forms used in the reconstruction process. Access to Mr. Semmer’s property from Main Street is via Ostego Drive, a platted street that runs through the eastern portion of the subject property, separating the upland property from that adjacent to the canal. During reconstruction of the Sanibel Causeway, large equipment trucks, and cement trucks accessed his property via this street. 2015 Plan Amendment Application and Concurrent Rezoning In 2015, Intervenor filed separate applications for the Plan Amendment and a concurrent rezoning of the subject property. The Plan Amendment sought to change the land use classification from Industrial and Suburban to Central Urban. In addition to residential uses, the Central Urban classification allows light industrial and commercial uses. The 2015 concurrent rezoning application sought planned development (“PD”) rezoning for a project consisting of 113 residential dwelling units (of which 38 would be affordable housing); a marina with 29 wet and 286 dry slips; and 30,000 square feet of commercial space, including a restaurant, 200 public parking spaces, and a civic/recreational space that would be available to the general public. The PD establishes a maximum structural height of 175 feet. In 2016, an adoption hearing for the Plan Amendment was scheduled before the County Commission, but action on it was deferred at the request of the Intervenor, who then submitted a new plan amendment application seeking to change the FLUM designation of the subject property to DRMUWD, along with text amendments to the DRMUWD classification. That plan amendment, as well as the concurrent rezoning, were denied by the County in 2019. The original Plan Amendment to Central Urban remained pending. On November 5, 2019, Intervenor filed a request for relief with the County pursuant to the Florida Land Use and Environmental Dispute Resolution Act (“FLUEDRA”), section 70.51, Florida Statutes; as well as a request for informal mediation pursuant to section 163.3181(4). These processes culminated in a mediated settlement agreement between the County and Intervenor whereby the County agreed to adopt the instant Plan Amendment, as well as the concurrent rezoning, for a project consisting of 75 residential dwelling units (reduced from the 113); a marina with 286 dry and 29 wet slips; and 30,000 square feet of commercial space, including a restaurant and waterfront civic/recreational space of 20,000 square feet (land area) that would be open to the general public. The maximum height for structures was reduced from 175 feet to 100 feet under the mediated settlement. The mediated settlement agreement also provided for conditions of development approval and property development regulations. The Plan Amendment The Plan Amendment changes the FLUM designation of the subject property from Industrial and Suburban to Central Urban, a classification which allows residential uses at a standard density range of 4-10 du/acre and up to 15 du/acre through the County’s “bonus density” program for affordable housing. 5 The Central Urban category allows development of residential, commercial, public and quasi-public, and limited light industrial land uses (e.g., wet slips, dry storage, marinas). The Comprehensive Plan encourages mixed-use future development in the Central Urban category. The maximum number of residential units that could be constructed on the subject property at the density of 15 du/acre is 113. The Comprehensive Plan does not govern intensity of non-residential uses. The evidence is insufficient to determine the maximum allowable buildout of the non-residential uses on the subject property. Challenges to the Plan Amendment Petitioners allege that the Plan Amendment: (1) creates internal inconsistencies with the existing Comprehensive Plan, in contravention of section 163.3177(2); (2) is not “based upon relevant and appropriate data and analysis,” as required by section 163.3177(1)(f); and (3) increases density in the Coastal High Hazard Area (“CHHA”), in violation of section 163.3178(8). Internal Inconsistencies Petitioners allege the Plan Amendment is internally inconsistent with a number of Goals, Objectives, and Policies (“GOPs”) of the Comprehensive Plan. The specific allegations can be grouped, generally, as arguments that (1) the Plan Amendment is incompatible with, or will have negative impacts on, surrounding uses; and (2) the Plan Amendment will negatively impact hurricane evacuation by increasing density in the CHHA. Compatibility Petitioners allege the maximum density and intensity of development allowed under the Plan Amendment is incompatible with surrounding industrial uses, specifically Mr. Semmer’s industrial property directly 5 Density may be increased to 20 du/acre utilizing an existing transfer of development rights ordinance which does not apply to San Carlos Island. adjacent to the north, and the residential uses to the west; and will be destructive to the character of the island. With regard to compatibility, Petitioners allege the Plan Amendment is inconsistent with the following specific GOPs: FLUE Objective 2.2: Development Timing. Direct growth to those portions of the future urban areas where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created. FLUE Policy 2.2.1.: Rezonings and Development of Regional Impact proposals will be evaluated as to the availability and proximity of the road network; central sewer and water lines; community facilities and services such as schools, EMS, fire and police protection, and other public facilities; compatibility with surrounding land uses; and any other relevant facts affecting the public health, safety, and welfare. FLUE Objective 2.6: Redevelopment. Future redevelopment activities will be directed in appropriate areas, consistent with sound planning principles, the goals, objectives, and policies contained within this plan, and the desired community character. FLUE Policy 5.1.5: Protect existing and future residential areas from any encroachment of uses that are potentially destructive to the character and integrity of the residential environment. Requests for conventional rezonings will be denied in the event that the buffers provided in Chapter 10 of the Land Development Code are not adequate to address potentially incompatible uses in a satisfactory manner. If such uses are proposed in the form of a planned development or special exception and generally applicable development regulations are deemed to be inadequate, conditions will be attached to minimize or eliminate the potential impacts or, where no adequate conditions can be devised, the application will be denied altogether. FLUE Policy 6.1.1: All applications for commercial development will be reviewed and evaluated as to: Traffic and access impacts (rezonings and development orders); Landscaping and detailed site planning (development orders); Screening and buffering (planned development rezoning and development orders; Availability and adequacy of services and facilities (rezoning and development orders); Impact on adjacent land uses and surrounding neighborhoods (rezoning); Proximity to other similar centers (rezoning); Environmental considerations (rezoning and development orders). FLUE Policy 6.1.3: Commercial developments requiring rezoning and meeting Development of County Impact (DCI) thresholds must be developed as commercial planned developments designed to arrange land uses in an integrated and cohesive unit in order to: Provide visual harmony and screening; Reduce dependence on the automobile; Promote pedestrian movement within the development; Utilize joint parking, access and loading facilities; Avoid negative impacts on surrounding land uses and traffic circulation; Protect natural resources; and, Provide necessary services and facilities where they are inadequate to serve the proposed use. FLUE Policy 6.1.4: Commercial development will be approved only when compatible with adjacent existing and proposed land uses and with existing and programmed public services and facilities. FLUE Policy 6.1.6: The land development regulations will require that commercial development provide adequate and appropriate landscaping, open space, and buffering. Such development is encouraged to be architecturally designed so as to enhance the appearance of structures and parking areas and blend with the character of existing or planned surrounding land uses. FLUE Goal 32: San Carlos Island [Water- Dependent Overlay]. All development approvals on San Carlos Island must be consistent with the following objective and policy in addition to other provisions of this plan. Objective 32.2: To manage growth, development, and redevelopment on San Carlos Island. To maintain and enhance the area’s quality of life and public and private infrastructure. Housing Element (“HE”) Policy 135.9.5: New development adjacent to areas of established residential neighborhoods must be compatible with or improve the area’s existing character. HE Policy 135.9.6: Lee County will administer the planning, zoning, and development review process in such a manner that proposed land uses acceptably minimize adverse drainage, environmental, spatial, traffic, noise, and glare impacts, as specified in county development regulations, upon adjacent residential properties, while maximizing aesthetic qualities. The Plan Amendment is not a rezoning or a development order. It does not, in and of itself, approve any specific development on the subject property. It approves the property for a mix of residential, commercial, and light industrial uses, and provides a maximum density for the residential use. FLUE Policies 2.2.1, 6.1.1, 6.1.3, and 6.1.4, do not apply to the Plan Amendment because it is not an application for specific commercial development, a rezoning, or a development order.6 The Plan Amendment cannot be inconsistent with Policy 6.1.6 because the policy merely provides the requirements for the land development regulations. It does not impose any requirement on plan amendments. The bases for Petitioners’ argument that the Plan Amendment creates internal inconsistencies regarding compatibility is limited to FLUE Goal 32; FLUE Objectives 2.2, 2.6, 32.1,7 and 32.2; FLUE Policies 5.1.5 and 32.1.1;8 and HE Policies 135.9.5 and 135.9.6. The Comprehensive Plan does not define “compatibility.” The Act defines “compatibility” as “a condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition.” § 163.3164(9), Fla. Stat. 6 The Plan Amendment was considered concurrently with a PD rezoning which includes a more detailed development plan. To the extent that Petitioners allege the rezoning does not meet the requirements of policies 2.2.1, 6.1.1, 6.1.3, and 6.1.4, Petitioners’ remedy is a challenge to those development orders, pursuant to section 163.3215. (“Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”). 7 Objective 32.1 was not cited in Petitioners’ Amended Petition for Formal Administrative Hearing as a provision with which the Plan Amendment is alleged to be internally inconsistent. However, the issue was tried by consent as neither Respondent nor Intervenor objected to Petitioners’ evidence on this issue, and all parties introduced evidence related to this allegation. 8 Policy 32.1.1 was not cited in Petitioners’ Amended Petition for Formal Administrative Hearing as a provision with which the Plan Amendment is alleged to be internally inconsistent. However, the issue was tried by consent as neither Respondent nor Intervenor objected to Petitioners’ evidence on this issue, and all parties introduced evidence related to this allegation. Petitioners contend that the Plan Amendment is incompatible with the surrounding uses because it introduces high density residential, which could be built to a maximum height of 100 feet; and commercial and recreational uses, into an area of industrial uses, including open storage, boat and equipment repairs, and unloading and packing seafood. Petitioners’ expert planning witness, Joseph McHarris, opined that the anticipated residential development is exactly the type of pre-emptive development anticipated and discouraged by the San Carlos Island Water- Dependent Overlay Zone. Mr. McHarris testified that “dropping in central urban,” the highest density and intensity use category, “right on top of industrial and right next to a suburban neighborhood is not good planning.” Mr. McHarris opined that residents of the “high-end condominiums” proposed for the property will not enjoy the view overlooking industrial outdoor storage yards, unloading cargo vessels, or the sounds and smells that are attendant thereto. The residential use will pre-empt any expansion or redevelopment of the existing industrial for more intense industrial uses. In fact, Mr. McHarris testified that the uses are so incompatible, that he would expect the new residents to push for ceasing the existing operations on those properties. Mr. McHarris did not rely upon any empirical evidence for his conclusion that the introduction of residential uses would be detrimental to the existing low- intensity industrial uses to the north and west of the subject property. His testimony was grounded in what “he would expect” to happen. Intervenor’s planning expert, Dr. David Depew, opined that in both his professional and personal experience, he has observed new waterfront residential and mixed use to coexist nicely with waterfront industrial and commercial. He cited Florida communities such as Apalachicola, Destin, and Cedar Key, generally, as examples of areas where newer residences and condominiums have developed in proximity to historic waterfront industrial uses without unduly negative effects on the historic uses. Dr. Depew made general references to “professional and personal” experiences, but gave no more detailed evidence regarding the coexistence of residential and industrial in traditional industrial waterfronts. The County’s expert planning witness, Brandon Dunn, is the principal planner for the County. He has worked in the County Department of Community Development for at least 13 years, 11 of those in the planning section. Mr. Dunn is extremely familiar with, and has extensive experience applying and interpreting, the Comprehensive Plan. Mr. Dunn testified that the Plan Amendment represents a transitional use between the existing traditional industrial uses north and west of the subject property and the suburban use east of the subject property. Developing the subject property for a mix of uses, including residential, commercial, and water-dependent light industrial (i.e., marina, wet-slips, dry storage), provides a “step-down” from the single use industrial properties to the north and west, to the traditional suburban residential development to the east. Mr. Dunn’s testimony is accepted as reliable and persuasive. There is insufficient evidence to support a finding that the Plan Amendment introduces uses which are incompatible with the surrounding uses, as that term is defined in section 163.3164(9). The Plan Amendment is not inconsistent with Policy 5.1.5 because it does not allow the encroachment of uses into residential areas which are destructive to the integrity and character of those areas. The entire island is only one mile in length, and residential and industrial, as well as commercial marine uses, exist throughout the island in relative proximity to each other. Petitioners introduced no evidence from which the undersigned can conclude that juxtaposition has been adverse to the residential development. New residential development at Ebtide is located in proximity to low-intensity industrial uses north of Main Street and no evidence was introduced to suggest that the new residential development has pre-empted the continuation or expansion of those established industrial uses. FLUE Objective 2.2 requires new growth to be directed to urban areas “where adequate public facilities exist or are assured and where compact and contiguous development patterns can be created.” Adequate public facilities (i.e., sewer, water, fire protection, emergency services, law enforcement, and schools) are sufficient to address the impacts of the Plan Amendment at maximum allowable density of use. One roadway segment impacted by the Plan Amendment is currently operating at Level of Service F, but is designated as “constrained,” and the Plan Amendment will not cause the “volume to capacity ratio” established in the Comprehensive Plan to be exceeded. In Mr. McHarris’s opinion, the Plan Amendment is inconsistent with Objective 2.2 because the uses allowed in Central Urban are not contiguous with the uses of any surrounding property. However, the properties east of the subject property, in the Suburban land use category, are developed for residential, a use which is allowed in Central Urban. Residential uses on the subject property will be contiguous with the adjacent Suburban development. Further, the Industrial category allows limited retail, recreational, and service uses; therefore, the change to the Central Urban designation, which allows commercial and light industrial development, does not introduce any radically-different uses than that allowed on the subject property, except for residential, under its current designation. HE Policy 135.9.5 requires that new development “adjacent to established residential neighborhoods” must be “compatible with or improve the area’s character.” The Plan Amendment is not inconsistent with this policy based on the findings above regarding compatibility of the Plan Amendment with surrounding residential uses. HE Policy 135.9.6 requires the County to “administer the planning, zoning and development review process” to ensure that proposed land uses “acceptably minimize adverse … traffic, noise, and glare impacts, as specified in county development regulations, upon adjacent residential properties[.]” Petitioners argue that this policy applies to the Plan Amendment, and that placement of residential uses adjacent to existing industrial uses will expose the residential uses to traffic, noise, and other adverse impacts, which cannot be “acceptably minimized.” Mr. McHarris testified that the unloading and transportation of seafood, as well as repair of boat and other equipment, with their attendant noises and smells, will be a nuisance to the residential uses allowed by the Plan Amendment, thus violating the requirement to minimize those effects on the residential properties. Petitioners did not establish that this policy applies during the plan amendment phase. While the policy includes the “planning process,” in addition to the zoning and development review process, the policy specifically refers to minimizing adverse impacts “as specified in the county land development regulations.” The land development regulations, rather than the Comprehensive Plan, contain the standards for setbacks, screening, buffers, and noise levels, in order to “acceptably minimize” those impacts to adjoining residential properties. The rezoning and site plan review of the development proposed to implement the Plan Amendment, rather than the Plan Amendment review process, are the appropriate processes in which to apply land development regulations for minimization of adverse impacts. Mr. McHarris opined that the Plan Amendment is contrary to Objective 2.6 because it is contrary to the desired “community character,” which he described as a “working waterfront.” Working waterfront is not a term that is used or defined in the Comprehensive Plan. To the extent that the reference is to the Waterfronts Florida designation in partnership with the state, the designation is strictly confined to that area south of Main Street. The desired community character is best reflected in the vision statement in the Comprehensive Plan for the Iona-McGregor Planning Community, of which the island is a designated sub-area. The Comprehensive Plan states, “The San Carlos Island area, which is nearly built out today, will continue to develop its infill areas while maintaining its marine-oriented nature.” The Comprehensive Plan provides that the overall planning community, given its proximity to the area beaches, “will continue to be a popular area for seasonal residents,” and that the entire planning community, is “anticipated to grow substantially from today through 2030.” Some of that growth was anticipated to be residential, as the planning community projected 17 acres of Central Urban for residential development through the year 2030. Plenty of acreage remains for residential development in the Central Urban category. The Plan defines infill as “the use of vacant land within a predominately developed area for further construction or development. These lands already have public services available but may require improvements to meet the current development standards.” The Plan Amendment is infill redevelopment of a former marina site, now utilized only for storage, where all public services are available. The community character is one of transition from historic industrial marine uses to waterfront commercial and mixed-use developments. The Plan Amendment allowing residential development is not inconsistent with that transitioning character. The Plan Amendment is not contrary to Objective 2.6 because it is infill development that is not inconsistent with the community character. Next, Petitioners allege the Plan Amendment is inconsistent with Goal 32, Objectives 32.1 and 32.2, and Policy 32.1.1, which relate to the San Carlos Island Water-Dependent Overlay Zone. Goal 32 provides that “[a]ll development approvals on San Carlos Island must be consistent with the following objective and policy[.]” Objective 32.1 provides that all development must be consistent with a series of policies “[t]o protect marine-oriented land uses” on the island “from incompatible or pre-emptive land uses.” Policy 32.1.1 provides: New development and substantial redevelopment within the Industrial … land use categor[y] … will only be permitted in accordance with the listed criteria. * * * North of Main Street – Within the water- dependent overlay zone which is defined as land within 150 feet of the shoreline: water-dependent marine industrial uses and recreational marinas. Landward of the overlay zone (150-foot line): marine-industrial uses, in addition to commercial or marine industrial uses which support the major industrial activities and recreational marinas. That portion of the subject property lying 150 feet landward of the canal is in the overlay zone. First, it must be noted that Goal 32 and its implementing objectives and policies apply to permitting of new development and redevelopment. Goal 32 sets requirements for “development approvals”; Objective 32.1 applies to “development”; and Policy 32.1.1 speaks to “permit[ing] new development and redevelopment.” Further, Policy 32.1.1 provides that the water dependent overlay zones “will be included in the Lee County zoning regulations[.]” The Plan Amendment is not an application for development permit. Enforcement of the water-dependent overlay zone restrictions will occur at the development order stage.9 9 Again, to the extent Petitioners contend the approved PD rezoning of subject property is inconsistent with these plan provisions, those issues are not properly before the undersigned in this proceeding. See § 163.3215, Fla. Stat. (“Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan.”). Furthermore, Policy 32.1.1. applies to development and redevelopment “within the Industrial land use category.” The Plan Amendment changes the designation of the subject property from Industrial and Suburban to Central Urban. Thus, it is at least arguable that the policy does not apply to the Plan Amendment. Even if these Comprehensive Plan provisions apply to the Plan Amendment, the evidence does not demonstrate that the Plan Amendment is inconsistent with them. The amendment to the Central Urban land use category will not exclude either “light industrial,” such as water-dependent marine industrial uses, or a recreational marina on the subject property. At first blush, it appears that Policy 32.1.1 would prohibit residential development landward of the overlay zone on the subject property. However, the Comprehensive Plan provides that these regulations will be incorporated into the zoning regulations and “may be the subject of deviation requests during the planned development process.” Hurricane Shelter and Evacuation Petitioners allege the Plan Amendment is internally inconsistent with the hurricane evacuation and shelter provisions of Community Facilities and Services Element (“CFSE”) Goal 73, Objective 73.1, and Policies 73.1.1 and 73.1.2. CFSE Goal 73 is a general goal for the County to provide adequate evacuation and sheltering safeguards for major storm events. Objective 73.1 directs the County to “[w]ork towards attaining” out-of-county evacuation times consistent with the Statewide Regional Evacuation Study. Notably, the objective specifies the ways in which the County will “work toward attaining” those evacuation time—by increasing shelter availability, improving evacuation routes, and increasing public awareness. The objective does not require the County to either prohibit or limit residential density to achieve that end. CFSE Policy 73.1.1 requires the County to do periodic updates of its emergency management plan and the long-range transportation plan, in cooperation with the Metropolitan Planning Organization, and to identify critical evacuation routes. Policy 73.1.2 addresses replacement bridges on evacuation routes. None of these provisions are implicated by or address the Plan Amendment at issue. Petitioners did not prove by a preponderance of the evidence that the Plan Amendment is internally inconsistent with FLUE Goal 32; FLUE Objectives 2.2, 2.6, 32.1, and 32.2; FLUE Policies 5.1.5 and 32.1.1; HE Policies 135.9.5 and 135.9.6; and CFSE Goal 73, Objective 73.1, and Policies 73.1.1 and 73.1.2. Data and Analysis Petitioners allege the Plan Amendment does not appropriately react to data available to the County at the time the Plan Amendment was adopted, namely historical data constituting the community vision for the island. Ms. Semmer testified that the Plan Amendment is not an appropriate reaction to the San Carlos Island Community Redevelopment Area (“CRA”) Plan, which she testified was “the outcome of a long history of community working together to plan for its future.” When asked to identify specific provisions of the CRA plan to which the Plan Amendment is not an appropriate reaction, Ms. Semmer identified the fact that the plan recognized the existence of 917 residential units. She testified that “we felt that we were built out at the time, and we were happy with that … And this project, adding another 75 units, it’s going to be difficult to accommodate the additional traffic and the people.” The CRA plan was adopted in May 1991 and provided the background, findings, and data to support the designation of the entire island as a CRA, pursuant to section 163.358. The CRA Plan makes findings that blighted conditions exist on the island which justify designation as a CRA. The CRA Plan defines the characteristics of the redevelopment area, provides an infrastructure needs assessment, and establishes goals for the redevelopment area, as well as specific subareas. The CRA Plan actually notes the existence of 995 dwelling units on the island, not 917, according to the 1980 census. The CRA Plan does not contain any prohibition on increasing the number of dwelling units on the island, or reflect an intent to prohibit new residential development.10 On the contrary, the CRA Plan contains data which is supportive of the Plan Amendment. For example, one of the findings of blight conditions is “faulty lot layout in relation to size, adequacy, accessibility, or usefulness.” The CRA Plan finds that many lots “do not comply with minimum lot size requirements” and “would have significant difficulty being developed under current regulations.” The Plan Amendment combines eight lots, redevelopment of which is constrained by their size and configuration (narrow, elongated lots) with zoning designations of marine industrial, light industrial, commercial, and mobile home. Under the Plan Amendment, the lots are aggregated for a single development. The CRA Plan identifies the area north of Main Street and east of San Carlos Boulevard (where the subject property is located) as “a mixture of single-family, mobile home parks, marinas, commercial retail and service clubs.” San Carlos Island CRA Plan, p. 23. The CRA Plan does not identify this mix of uses as incompatible or undesirable, nor does it express an intent to discontinue mixed uses in that area. The Plan Amendment proposes a land 10 In contrast, the plan reflects the community’s staunch opposition to development of a parking garage on the island: “It is basic that [the island] neither become a parking lot for Fort Myers Beach (Estero Island) nor for Lee County. This would preclude construction of a parking garage on [the island] or additional surface parking for benefit of other areas of Lee County … or which would be utilized as temporary parking with the people parking their vehicles then being transported to another area by any means.” San Carlos Island CRA Plan, p. 11. “The residents and property owners of San Carlos Island are united in their opposition to construction of a parking garage, unless it can be shown that such garage is of benefit to those residents and owners and is not just part of a plan to permit development in some other area of Lee County.” Id. at p. 26. use category that allows a mix of residential, commercial, marina, and light industrial, underscoring the consistency of the Plan Amendment with the historic development pattern. The CRA Plan further describes more particularly the uses in the area of the subject property as “an area of light industrial development consisting of rental storage area, a service club, a fish house, and a large marina.” Id. at 24. The Plan Amendment retains this essential mix of uses and allows these uses, along with residential, to be developed on the subject property. Petitioners identified a report from the San Carlos Island Community Design Workshop, held February 21 and 22, 1992, as an example of data to which the Plan Amendment does not appropriately react. The workshop was conducted solely to determine “the best uses for a piece of County-owned property,” 5.6-acres in size, fronting on the Matanzas Pass. The report, which is entirely hearsay, notes that the community participants “[d]efinitely [did] not want[] high rises or major public attractions, Disney-style.” The report has no relevance to the Plan Amendment, which is not part of the property being considered for redevelopment during the workshop. Next, Petitioners allege the Plan Amendment is not an appropriate reaction to the data and analysis reflected in the documents designating San Carlos Island within the Waterfronts Florida partnership. Ms. Semmer testified that the Plan Amendment is inconsistent with the Community Vision contained in that document, to wit: San Carlos Island is a people-oriented community with an important working waterfront that includes vibrant commercial seafood and other marine-based industries and recreational opportunities. These assets contribute in making San Carlos Island an attractive community for its permanent and seasonal residents as well as an interesting area for visiting tourists. The designated “working waterfront” under the Waterfronts Florida partnership is located entirely south of Main Street. Thus, the Plan Amendment, affecting property north of Main Street—outside of the designated area—cannot be inconsistent with the vision expressed therein. Ms. Semmer’s contention that the Plan Amendment will convert property from industrial “working waterfront” use, contrary to the Waterfronts Florida document, is not credible. Likewise, the San Carlos Island Special Area Management Plan, adopted in 1999 to implement the Waterfronts Florida designation, applies mainly to the one-half mile long area designated under the program. Finally, Ms. Semmer introduced a 1978 resolution of the Board of County Commissioners stating, “The Board hereby establishes a policy of granting no additional multi-family zoning on Estero Island or San Carlos Island.” Ms. Semmer testified that this resolution recognizes that the island was “built out, that we could not handle any additional density[.]” Thus, Ms. Semmer argues that the Plan Amendment is not an appropriate reaction to that data because it allows new residential uses on the subject property. The resolution addresses rezonings, and the Plan Amendment is not a rezoning. Rezoning of the property has been undertaken and is not an issue cognizable in this challenge to the Plan Amendment.11 Petitioners did not prove that the Plan Amendment fails to react appropriately to data available to the County at the time it was adopted. The Plan Amendment is based on, and appropriately reacts to, the development trends on the island from intense industrial fishing-related uses to more recreational and commercial uses, including more mixed use uses both north and south of Main Street. The Plan Amendment is supported by data on the availability of public utilities to service the property—a condition necessary for infill development. The Plan Amendment will allow for a transition 11 Moreover, Petitioners did not prove that this resolution is still valid. between the industrial uses to the north and west of the subject property and the suburban uses to the east. State Requirements for Development in the CHHA Finally, Petitioners allege that the Plan Amendment increases residential density in the CHHA and does not meet the state requirements for such development set forth in section 163.3178(8). Section 163.3178 defines the CHHA as the “area below the elevation of the category 1 storm surge line as established by a Sea, Lake, and Overland Surges for Hurricanes (SLOSH) computerized storm surge model.” § 163.3178(2)(h), Fla. Stat. The statute requires each local government comprehensive plan to designate the CHHA within its jurisdiction and “the criteria for mitigation for a comprehensive plan amendment in a [CHHA] as defined in subsection (8).” Id. Section 163.3178(8) reads, as follows: (8)(a) A proposed comprehensive plan amendment shall be found in compliance with state coastal high-hazard provisions if: The adopted level of service for out-of-county hurricane evacuation is maintained for a category 5 storm event as measured on the Saffir-Simpson scale; or A 12-hour evacuation time to shelter is maintained for a category 5 storm event as measured on the Saffir-Simpson scale and shelter space reasonably expected to accommodate the residents of the development contemplated by a proposed comprehensive plan amendment is available; or Appropriate mitigation is provided that will satisfy subparagraph 1. or subparagraph 2. Appropriate mitigation shall include, without limitation, payment of money, contribution of land, and construction of hurricane shelters and transportation facilities. Required mitigation may not exceed the amount required for a developer to accommodate impacts reasonably attributable to development. A local government and a developer shall enter into a binding agreement to memorialize the mitigation plan. It is undisputed that the subject property, and indeed most of the island, is located in the CHHA. The Plan Amendment allows residential density on the subject property, thereby increasing residential density in the CHHA.12 The County has adopted a 16-hour out-of-county evacuation time for a category 5 storm event (Level E storm surge).13 Based on the 2017 Update to the Southwest Florida Regional Evacuation Study (“Regional Evacuation Study”), the base scenario (i.e., the analysis used for growth management purposes) out-of-county clearance time for Lee County is actually 84.5 hours for a category 5 storm.14 Because the County’s adopted level of service (“LOS”) for out-of- county evacuation in a Level 5 hurricane has not been attained, it certainly will not be maintained under a scenario which includes development allowed by the Plan Amendment. The Plan Amendment does not meet the requirements of section 163.3178(8)(a)1. to be deemed compliant with state CHHA standards. The Regional Evacuation Study projects Lee County’s 2020 evacuation time-to-shelter for a Category 5 storm (Level E storm surge) as 96 hours, an increase of 11.5 hours from the 2017 projection. 12 No evidence was introduced to support a finding that the County has made a commensurate reduction in residential density in the CHHA. 13 The County had initially adopted an 18-hour out-of-county hurricane evacuation time; however, in 2006, the Florida Legislature set a default 16-hour evacuation standard for certain local governments. See ch. 2006-68, § 2, Laws of Fla. 14 That number has increased to 96 hours for 2020. Because the County has not attained the state-mandated 12-hour evacuation time-to-shelter, the County cannot maintain that metric under the Plan Amendment.15 Dr. Depew testified that, based on his research, a Category 5 hurricane shelter is located approximately 28 miles from the subject property, which is an approximate 44-minute drive. In his opinion, then, the Plan Amendment “maintains the 12-hour evacuation time to shelter” as required by section 163.3178(8)(a)2. Dr. Depew’s testimony was uncontradicted, but is not credible. Evacuation time-to-shelter is defined in the Regional Evacuation Study as “the time necessary to safely evacuate vulnerable residents and visitors to a ‘point of safety’ with in the county based on a specific hazard (i.e., Category 5 hurricane), behavioral assumptions and evacuation scenario.” Clearance time-to-shelter is “[c]alculated from the point in time when the evacuation order is given to the point in time when the last vehicle reaches a ‘point of safety’ within the county.” Clearance time does mean, as suggested by Dr. Depew, merely the drive time between a particular residential development and an existing qualifying shelter on a normal traffic day. That testimony is inadequate for the undersigned to find that the Plan Amendment meets the state CHHA requirement under section 163.3178(8)(a)2. Assuming, arguendo, that Dr. Depew’s testimony was credible and reliable, it would not be sufficient alone to establish that the Plan Amendment meets the standards of paragraph 2. The application of section 163.3178(8)(a)2. does not end with an analysis of evacuation time-to-shelter. The statute also requires that shelter space “reasonably expected to 15 The County has not adopted an LOS for “evacuation time-to-shelter”; instead, the County has adopted an LOS for shelter capacity: “in-county and on-site shelter for 10% of the population at risk in the Hurricane Vulnerability Zone under a Category 5 storm hazard scenario.” accommodate the residents of the development contemplated by” the Plan Amendment be “available.” The Regional Evacuation Study analyzes public shelter capacity and projects public shelter demand for each county in the region. For Lee County, the capacity of all shelters is 42,659 (for both the 2017 and 2020 base scenarios). The projected 2020 public shelter demand for a category 5 hurricane (Level E storm surge risk) is 47,018. That is an increase of 13,799 from the 2017 projection of 33,219. The data does not support a finding that the County has available shelter space to accommodate any new residents, yet alone those evacuating from development at the density allowed by the Plan Amendment. Dr. Depew attempted to undermine the reliability of the shelter demand projections, testifying that “there’s a very high error margin in these projections. In some instances, it’s as high as 50 percent from the anticipated demand[.]”16 Dr. Depew did not identify any documentation of the margin-of- error in the study, or offer any more reliable data from which the County (or the undersigned) could pull more accurate projections. On cross-examination, when asked to look at a specific operational demand projection, Dr. Depew was unable to identify whether it was “one of the ones with the 50 percent error margin.” Dr. Depew also criticized use of the base scenario because it “anticipates a hundred percent evacuation,” while the operational scenario anticipates something “closer to reality.” This attempt to persuade the undersigned that the base scenario shelter demand numbers are either unreliable, or inappropriate to use for purposes of evaluating the Plan Amendment, was likewise unpersuasive. The Evacuation Study Report defines the public shelter demand scenarios as follows: 16 The Regional Evacuation Study was introduced by Intervenor, for whom Dr. Depew was testifying. The Base Scenarios – which are used for planning and growth management purposes assume that 100% of the population-at-risk evacuates plus a (smaller) percentage of non- vulnerable population (shadow evacuation). The Operational Scenarios used in operations use the planning assumptions determined by the behavioral analysis which are assumed to be a more realistic set of assumptions. Although they do not reflect 100% evacuation of vulnerable residents, there is a significant percentage of shadow evacuation especially in major storm events. According to the study, the base scenarios are specifically designed for use in planning and growth management decisions, such as the one made by the County when it adopted this Plan Amendment. The Plan Amendment does not meet state CHHA standards by way of section 163.3178(8)(a)2. Finally, the statute provides that a plan amendment may be deemed to meet state CHHA standards via mitigation. The developer may mitigate hurricane evacuation impacts of development in the CHHA by payment of money, contribution of land, or construction of hurricane shelters or transportation facilities. Intervenor has committed, through the mediated settlement agreement, to mitigation in the form of either construction of an on-site shelter to withstand category 5 hurricane winds and storm surge, or a fee-in- lieu thereof pursuant to the County’s requirements. The settlement agreement contains detailed specifications for shelter construction should the County choose that option. The settlement also requires the developer to submit a post-storm recovery plan for review and approval by Lee County Emergency Management. The settlement provides that “[p]rior to any redevelopment of the site … an agreement must be executed between the county and the property owners” to require the mitigation. Petitioners argue that this commitment is not sufficient to meet the statutory mitigation requirements because the developer has not yet executed a written mitigation agreement with the County to provide any specific mitigation construction or payment. They criticize the process for “put[ting] off the mitigation plan until redevelopment of the site.” The statute requires that the “local government and a developer shall enter into a binding agreement to memorialize the mitigation plan,” but does not address the timing of the binding agreement relative to the adoption of the Plan Amendment. The Comprehensive Plan, at CME Policy 101.1.4, contains provisions very similar to section 163.3178(8) for plan amendments that increase density in the CHHA. With regard to mitigation, Policy 101.1.4 requires the applicant to “enter into a development agreement to memorialize the mitigation plan prior to adoption of the plan amendment.” Petitioners have not challenged the Plan Amendment as inconsistent with Policy 101.1.4, but rather with the statutory provision. In contrast to the policy, the plain language of the statute does not require the mitigation agreement to be executed prior to adoption of the Plan Amendment. Finally, section 163.3178(8) allows for “[a]ppropriate mitigation [] provided that will satisfy subparagraph 1. or subparagraph 2.” By referencing the subparagraphs requiring maintenance of out-of-county evacuation time and 12-hour evacuation time to shelter, the statute requires mitigation to the extent necessary to meet, in this case, the 16-hour out-of-county evacuation clearance time or the 12-hour time-to-shelter standard. However, the statute also limits the developer’s mitigation to “the amount required for a developer to accommodate impacts reasonably attributable to development.” The statute does not require the developer to build shelters, make transportation improvements, contribute land, or make payments to reduce the county’s existing deficit to achieve out-of-county evacuation clearance time or address the County’s overall shelter space deficit. The statute clearly limits the developer’s contribution to that required to address the impacts “reasonably attributable to the [specific] development.” Intervenor argues that providing the mitigation to offset hurricane evacuation or sheltering impacts associated with the particular development is sufficient to meet the statutory requirement. However, to allow a developer to construct residential density in the CHHA and mitigate only the hurricane evacuation or time-to-shelter impacts associated with that particular development, when the adopted out-of-county hurricane evacuation clearance time has not been achieved, is contrary to the statutory requirement. The same is true for allowing shelter construction to mitigate only the impacts of the particular development when the adopted time-to-shelter has not been achieved or a shelter deficit exists. If the undersigned were to accept the County’s and Intervenor’s proffered interpretation of subparagraph 3., that would render meaningless the first sentence, which references to subparagraphs 1. and 2. and requires the mitigation to “satisfy” subparagraphs 1. and 2. Those subparagraphs directly address “maintaining” the adopted out-of-county and time-to-shelter clearance times. Under the proffered reading of section 163.3178(8)(a)3., any developer could satisfy the state requirements for CHHA construction by mitigating the impacts of the specific development on a local government’s hurricane evacuation clearance time regardless of whether the adopted out- of-county clearance time is met. That interpretation is unworkable and is rejected. Alternatively, Intervenor maintains that the Plan Amendment meets the state requirements for increased density in the CHHA under section 163.3178(8)(a)3. Because: (1) the Comprehensive Plan anticipates additional residential development in the Iona/McGregor planning community, which is within the CHHA; and (2) the impact of the Plan Amendment on both the out-of-county hurricane evacuation time and time-to-shelter is “de minimis.” To the first point, according to Table 1(b) of the Comprehensive Plan, the County has allocated a total of 375 acres of residential development in the Central Urban category within the planning community through the year 2030. Mr. Dunn testified that the County has approved residential development of 360 acres, leaving a balance of 15 acres available for residential development. His conclusion is that the County anticipated additional residential density in the CHHA because almost the entire planning community is located in the CHHA. Mr. Dunn’s conclusions appear valid based on the data and analysis in the Comprehensive Plan. However, the logic is circular. The County’s decision to locate more residential development within the CHHA is not dispositive of the question of whether that decision meets the state requirements for residential density in the CHHA.17 That determination is the subject of the instant de novo proceeding. To prove their second point, the County and Intervenor introduced into evidence a memorandum prepared by Daniel Trescott, a professional planner with the firm of Trescott Planning Solutions, Inc., analyzing the impact of the Plan Amendment at its maximum residential buildout (113 total dwelling units) on the County’s out-of-county evacuation clearance time and time-to-shelter (“the Trescott memo”). The relevant findings of the Trescott memo are as follows: (1) development of 113 dwelling units results in an additional 124 vehicles to evacuate and the need for an additional 48 shelter beds; (2) the Plan Amendment will increase out-of-county evacuation time by 1.2 minutes; and 17 Moreover, the Plan Amendment represents a decision to locate more Central Urban within the CHHA which was not reflected on the FLUM when the 2030 “residential by future land use category” allocations were made, as reflected in Table 1(b). The table reflects the overall acreage to be developed for residential use of the total acreage in the Central Urban category at that time. (3) the estimated clearance time-to-shelter would increase one-fifth of 1.2 minutes based on a projection that 21 percent of project residents would evacuate to a public shelter rather than out-of-county. The Trescott memo concludes, “This small increase will not cause the out-of-county evacuation time to increase incrementally above 84 hours,”18 and that the impact on clearance time-to-shelter would be “even more de minimis.” The Regional Evacuation Study calculates hurricane evacuation impacts in 30-minute increments. Based on that model, the impact from development allowed under the Plan Amendment will not result in an incremental increase in either out-of-county hurricane evacuation clearance time or time-to-shelter. Section 163.3178(8)(a)3. does not contain an exception for “de minimis” impacts. Furthermore, the statutory standard is not based on the Regional Hurricane Evacuation projected times for out-of-county and time-to- shelter in a Category 5 hurricane (both of which are projected at 96 hours for 2020), but on the adopted LOS for out-of-county evacuation clearance time of 16 hours, and the statutory time-to-shelter time of 12 hours. The alternative argument by the County and Intervenor that the Plan Amendment meets the state standard for increased residential density in the CHHA is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the Comprehensive Plan Amendment adopted by Ordinance 20-07 on June 17, 2020, is not “in compliance,” as that term is defined in section 163.3184(1)(b). DONE AND ENTERED this 4th day of March, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ralf Gunars Brookes, Esquire Ralf Brookes Attorney Suite 107 1217 East Cape Coral Parkway Cape Coral, Florida 33904 Mark A. Trank, Esquire Lee County Attorney's Office 2115 Second Street, 6th Floor Post Office Box 398 Fort Myers, Florida 33902-0398 Amanda Swindle, Assistant County Attorney Lee County Attorney's Office 6th Floor 2115 Second Street Fort Myers, Florida 33901 Barbara Leighty, Clerk Transportation and Economic Development Policy Unit Room 1802, The Capitol Tallahassee, Florida 32399-0001 S SUZANNE VAN WYK Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2021. Mark Jacob Lee County Attorney's Office 2115 2nd Street Fort Myers, Florida 33901-3012 Richard Barton Akin, Esquire Henderson, Franklin, Starnes & Holt, P.A. Post Office Box 280 Fort Myers, Florida 33902 Russell P. Schropp, Esquire Henderson, Franklin, Starnes and Holt, P.A. 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902 Joshua E. Pratt, Esquire Administration Commission Governor’s Legal Office The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether the Wakulla County plan amendment adopted by Ordinance No. 94-12 on March 28, 1994, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: Background The Parties Respondent, Wakulla 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. Petitioner, St. Marks River Protection Association (SMRPA), is a non- profit corporation whose basic purpose is to conserve and protect the St. Marks River. A majority of its members own property or live within the County. Many live along the St. Marks River and fish, swim, dive, and view the various life along the river system. Petitioner participated in the amendment process by appearing at hearings and submitting written comments. Therefore, it has standing to bring this action. Intervenor, N. G. Wade Investment Company, owns the real property which is the subject of the amendment in this proceeding. It also submitted comments to the County during the transmittal and adoptive phases of the process. The Nature of the Dispute The County adopted its current comprehensive plan (plan) on September 2, 1992. On October 15, 1992, DCA issued its notice of intent to find the plan not in compliance. The matter is now pending before the Division of Administrative Hearings (DOAH) in Case No. 92-6287GM. However, the County and DCA have reached a settlement in concept in that case and are drafting language for an acceptable remedial amendment. On February 24, 1993, intervenor made application for a plan amendment to change the future land use map portion of the plan on 240 acres of land in northeastern Wakulla County from agriculture-1 to industrial land use. The plan amendment was adopted by the County on March 28, 1994, and was found to be in compliance by the DCA on May 19, 1994. On June 3, 1994, petitioner filed a petition challenging the plan amendment on the ground the amendment was inconsistent with other parts of the plan, regional policy plan, and state plan as they relate to water quality, protection for ground and surface waters, wildlife habitat, traffic and provision of public services. Thereafter, the matter was referred to DOAH for an evidentiary hearing and has been assigned Case No. 94-3289GM. The Plan Amendment The amendment implements the County's policy to develop an industrial park and to expand the County's employment base by 1995. It was transmitted to the DCA in October 1993 for a compliance review. During its review process, the DCA considered comments from various entities, including the Apalachee Regional Planning Council (ARPC), the Northwest Florida Water Management District, the Department of Environmental Protection, the Department of Transportation (DOT) and the Tallahassee-Leon County Planning Department (TLCPD). The DCA raised several objections to the amendment in its Objections, Recommendations and Comments (ORC) issued on January 28, 1994. These included criticisms that (a) the amendment was not supported by appropriate data and analysis, (b) the County had not properly coordinated with other affected government jurisdictions, and (c) it was not clear that the policy structure of the plan concerning industrial land uses provided adequate assurance that the proposed future land use map amendment would be consistent with the requirements of Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code, including the need to protect natural resources. After coordinating with the DOT, ARPC, and TLCPD, and in response to the ORC, the County provided more land use analysis and a new traffic analysis. In response to the criticism concerning the protection of natural resources, the County submitted a summary of data and analysis of the soils, subsurface geology, and groundwater conditions on the site to show that the site was suitable for industrial development. On March 28, 1994, the County adopted the amendment and submitted the adoption ordinance and responses to the ORC to the DCA. As modified, the amendment called for a change in the land use designation from agriculture - 1 to industrial "for a proposed 240-acre light industrial planned unit development called Opportunity Park." The property is approximately one mile from State Road 363 and the Leon County line, and the land around it is presently subject to timber harvesting. The size and scope of industrial activities that could take place at Opportunity Park would be constrained by other provisions of the plan including floor area ratio, limitations on pre- and post-development ground and surface water flow rates, and requirements for wastewater reuse. After reviewing this material, the DCA accepted the County's response to the ORC and determined that the additional data and analysis were adequate. In determining whether the level of the data and analysis was adequate, the DCA took into consideration the fact that the County is a small, rural county with modest planning resources and with a very modest rate of population growth. Indeed, the County had only 14,202 people according to the 1990 population census, and it projects a growth rate of only 500 persons per year through the year 2000. The DCA also recognized that the County is in dire need of economic development. This is borne out by the fact that approximately 58 percent of its land is within conservation areas managed by the federal or state governments, 33 percent of the land is in agricultural use, and only 0.32 percent is in industrial land use. By letter dated April 28, 1994, the DCA received a recommendation from the ARPC to find the amendment generally consistent with the Apalachee Regional Policy Plan. Thereafter, on May 18, 1994, the DCA issued its notice of intent to find the amendment in compliance with the Act. Criticisms of the Amendment Generally In its petition, SMRPA has raised a number of grounds regarding what it perceives to be shortcomings in the plan amendment. First, petitioner contends that the amendment lacks adequate data and analysis, it fails to protect natural resources, and it violates the traffic element of the plan. Petitioner further contends that the amendment is inconsistent with those parts of the plan which concern the maintenance of existing hurricane evacuation times, the County failed to coordinate the amendment with adjacent local governments, and the amendment is inconsistent with certain policies of the plan's economic development element. Finally, petitioner asserts that the amendment is inconsistent with the capital improvement element of the plan concerning water supplies and fire fighting equipment, the amendment encourages urban sprawl, it fails to preserve the internal consistency of the plan, and it is contrary to the state and regional policy plans. Data and Analysis Updates to the data which support the County's plan indicate a need in the County for approximately 500 acres of additional industrial use. While the County did not provide the DCA with an analysis or description of the methodology that was used to arrive at the estimate of gross acreage needed in the supporting data, it offered demonstrative evidence that showed that approximately 200 acres of land that are currently designated for industrial use cannot be developed consistent with the County's plan because of existing constraints due to flooding. The evidence fails to show to the exclusion of fair debate that the County did not consider or have available sufficient data and analysis to support a need for the new industrial land use in the County. Protection of Natural Resources The data and analysis supporting the County's plan designates the amendment area as having a high recharge potential to the Floridan Aquifer. The plan's supporting data and analysis also shows the entire County as on the Woodville Karst Plain and as an area prone to sinkhole formation. However, these general characteristics must be tempered by the site-specific data described below. An analysis of site-specific data consisting of soil boring tests and results, which data were considered by the County at the time of the adoption of the amendment, show that the area is underlain with clay confining layers which sit above the Floridan Aquifer. Therefore, the land is not in an area of high or even moderate recharge to the Floridan Aquifer because of the presence of these clay confining layers. An analysis of the site-specific data revealed that, unlike most areas of the County, the amendment area is not on the Woodville Karst Plain. Rather, it is on an ancient sand dune system known as the Wakulla Sandhills, a series of relic sand dunes overlying the St. Marks limestone formation. At the same time, the more persuasive evidence shows that the amendment area is not prone to sinkhole formation. Indeed, the existing depressions on the site are most likely deflation basins caused by wind activity on the sand hills and are commonly known as "blowouts." The evidence fails to show to the exclusion of fair debate that the County failed to consider or did not have available to it sufficient data and analysis to indicate how the subject amendment will protect the groundwater recharge areas to the Floridan Aquifer. The evidence also failed to show to the exclusion of fair debate that the amendment is in conflict with the relevant policies of the County's plan. As to the issue concerning the protection of surface and groundwater quality, the County's soil survey performed by the United States Department of Agriculture shows the amendment area as having severe soil ratings for septic tanks. Even so, the evidence failed to show to the exclusion of fair debate that any development activity undertaken in the amendment area would be unlimited and would adversely impact natural resources. In fact, an analysis of the site-specific data indicates that the presence of the clay confining layers would severely retard the percolation of stormwater or wastewater to the Floridan groundwater acquifer. Although there is evidence of the presence of a surficial (perched) aquifer in the area that might contain pollutants, the evidence failed to show to the exclusion of fair debate that the surficial aquifer is a natural drinking water resource in need of protection. There are no surface water streams in the vicinity of the amendment area. Also, there are no unusual site characteristics which would tend to cause pollution of surface or groundwater from industrial usage of the site. Potential discharge from industrial activities into the groundwater at the site would not affect Wakulla Springs or the St. Marks cave systems because these features are four to five miles away and are upgradient of the site. The evidence fails to prove to the exclusion of fair debate that industrial activities at the amendment site will adversely impact the water quality in the St. Marks River. As to the protection of wetlands, SMRPA provided no evidence concerning the existence, nature, extent or value of wetlands that would be impacted by use of the amendment area for industrial purposes. As to the protection of endangered or threatened species, SMRPA alleged that the amendment was inconsistent with policies and objectives of the County's plan concerning habitat protection for endangered or threatened species. There were, however, no endangered or threatened species observed on the amendment site. One gopher tortoise was observed leaving the site while two gopher tortoise burrows were also seen. While it is true that the gopher tortoise is a species of special concern, the Game and Fresh Water Fish Commission has a permit program for the gopher tortoise that includes relocation of the tortoise or payment to a mitigation bank for habitat acquisition. Therefore, the evidence failed to show to the exclusion of fair debate that the amendment is in conflict with the relevant policies and objectives of the County's comprehensive plan. As to the protection of forests and agricultural lands, petitioner alleged that the amendment was inconsistent with policies and objectives of the County's plan, which state that the County shall encourage continuing use of land for agriculture. The evidence failed to show to the exclusion of fair debate that the conversion of 240 acres of land from agricultural use to industrial use is in conflict with the general objective to encourage the continuing use of land for agriculture. Traffic Petitioner alleged that the amendment will allow development that will permit violations of the levels of service established for impacted roadways and policies 1.2 and 5.5 of the plan's traffic element. Petitioner failed to present any evidence showing that the levels of service established for impacted roadways and traffic circulation would be violated by the amendment. Therefore, petitioner failed to show that the amendment was in conflict with the cited policies. Hurricane Evacuation Times Petitioner alleged that the amendment is inconsistent with objective 2(c) and policy 2.11 of the plan's coastal management element concerning the maintenance of existing hurricane evacuation times. The evidence failed to prove to the exclusion of fair debate that the amendment would result in an increase of the existing hurricane evacuation times. Intergovernmental Coordination Petitioner alleged that the amendment was inconsistent with objective 1.1 and policies 1.1.1 and 1.1.4 of the plan's intergovernmental coordination element. Those provisions relate to the need to coordinate the County's land use map amendments and review the relationship of any proposed development to the existing comprehensive plans of adjacent local governments. The evidence failed to show a lack of intergovernmental coordination of the impact of the plan amendment on the comprehensive plans of adjacent local governments. In fact, the evidence showed that the County coordinated with adjacent local governments, including the City of Tallahassee and Leon County. Economic Development Petitioner alleged that the amendment is inconsistent with policies of the plan's economic development element. Specifically, it cites policies 2.1, 2.4, 2.5, and 2.6, which concern the County's objective to expand the employment base by 1995 by indentifying which businesses and industry jobs can be increased. The evidence failed to prove to the exclusion of fair debate that the amendment would not expand the County's employment base by 1995. In fact, the evidence showed that the amendment will assist the County in achieving economic stability and will expand the employment base of the county by providing more job opportunities. Indeed, the eastern part of the County is now experiencing a trend towards industrial and commercial development, and a prison is being constructed adjacent to the site. At the same time, however, a decline in the County's seafood industry and layoffs at Olin Corporation, a major employer, reflect a need for new jobs. Finally, the amendment implements policy 6.1 of the economic development element which provides that "the County shall cooperate with the private and public sector to develop an industrial park with required facilities and services to attract businesses and industries." Water Supplies and Fire Fighting Equipment Petitioner alleged that the amendment is inconsistent with the capital improvement element of the plan because there are inadequate water supplies and fire fighting equipment in the area to support fire protection for industrial uses at the site. The evidence failed to show to the exclusion of fair debate that there would be inadequate water supplies and fire fight equipment to support fire protection for industrial uses at the site. Failure to Discourage the Proliferation of Urban Sprawl Petitioner alleged that by placing an industrial site at the subject location, the amendment would encourage urban sprawl and inhibit advantageous growth in the area. The evidence failed to show to the exclusion of fair debate that the amendment will encourage urban sprawl and inhibit advantageous growth in the area of the amendment. Failure to Preserve the Internal Consistency of the Plan Petitioner alleged that the amendment fails to preserve the internal consistency of the County's plan as required by the Act, in that it is in direct conflict with numerous plan provisions. Based on the findings of fact above, it is clear that the amendment is not in direct conflict with numerous plan provisions. Therefore, the evidence failed to show to the exclusion of fair debate that the amendment fails to preserve the internal consistency of the County's plan, as required by the Act. The State Comprehensive Plan The State Comprehensive Plan is contained in Chapter 187, Florida Statutes. Goals and Policies of the State Comprehensive Plan are contained in Section 187.201, Florida Statutes. The evidence failed to prove to the exclusion of fair debate that the amendment is inconsistent with the State Comprehensive Plan, as a whole. The Regional Policy Plan The Apalachee Regional Planning Council has adopted the Apalachee Regional Policy Plan (Regional Plan). The Regional Plan was adopted pursuant to Chapter 186, Florida Statutes, to provide regional planning objectives to the counties in that region, which includes Wakulla County. The evidence failed to show to the exclusion of fair debate that the amendment is inconsistent with the Regional Plan. Standing On November 15, 1993, and March 26, 1994, or during the adoptive stage of the amendment, SMRPA filed comments and objections in form of letters with the County. On June 3, 1994, SMRPA filed its petition for formal administrative hearing with the DCA challenging the plan amendment. Throughout the course of this proceeding, intervenor has challenged the standing of petitioner on the theory that the corporation was dissolved prior to filing its petition, and even though the corporation was later reinstated, it was not the same corporation that filed comments and objections during the adoptive stage of the amendment. The facts underlying this claim are as follows. On April 27, 1989, petitioner filed articles of incorporation with the Department of State. On August 13, 1993, the corporation was administratively dissolved. On June 1, 1994, Virginia P. Brock, an officer of SMRPA, released the corporate name and stated that the officers and directors did not have any intention of reinstatement of the corporation. On May 30, 1994, new articles of incorporation for SMRPA were filed with the Department of State. This corporation had common officers and directors with the dissolved corporation. The articles of incorporation were rejected by the Department of State on June 10, 1994, on the ground all outstanding fees and taxes owed by SMRPA had not been paid. After such outstanding taxes and fees were paid through 1994, the Department of State deemed the status of SMRPA to be "active" as of June 14, 1994. Such reinstatement related back and took effect as of the effective date of the dissolution of the corporation on August 13, 1993, and the corporation was carry on its affairs as if no dissolution occurred.
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 Wakulla County comprehensive plan amendment to be in compliance. DONE AND ENTERED this 27th day of March, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3289GM Petitioner: 1. Partially accepted in finding of fact 2. 2-4. Partially accepted in finding of fact 1. 5. Partially accepted in finding of fact 3. 6-8. Rejected as being unnecesary. 9-11. Partially accepted in finding of fact 4. 12. Partially accepted in finding of fact 5. 13. Partially accepted in finding of fact 6. 14. Partially accepted in finding of fact 5. 15-19. Partially accepted in finding of fact 4. 20. Partially accepted in finding of fact 11. 21. Partially accepted in finding of fact 5 and 11. 22. Partially accepted in finding of fact 11. 23-26. Rejected as being unnecessary. 27-74. Partially accepted in findings of fact 16-25. 75-76. Partially accepted in findings of fact 26-29. 77-82. Partially accepted in findings of fact 36 and 37. 83-88. Partially accepted in finding of fact 15. 89. Partially accepted in findings of fact 40 and 41. 90. Partially accepted in findings of fact 42 and 43. 92-93. Partially accepted in findings of fact 38 and 39. 94. Partially accepted in finding of fact 15. 95. Rejected as being contrary to the evidence. Respondent DCA 1-5. Partially accepted in findings of fact 1-3. 6-8. Partially accepted in finding of fact 12. 9-10. Partially accepted in finding of fact 4. 11-13. Rejected as being unnecessary. 14. Partially accepted in finding of fact 5. 15-24. Partially accepted in findings of fact 7-13. 25-26. Partially accepted in finding of fact 15. 27-41. Partially accepted in findings of fact 16-25. 42-43. Partially accepted in findings of fact 26 and 27. 44-45. Partially accepted in findings of fact 28 and 29. 46-47. Partially accepted in findings of fact 30 and 31. 48-49. Partially accepted in findings of fact 32 and 33. 50-51. Partially accepted in findings of fact 34 and 35. 52-53. Partially accepted in findings of fact 36 and 37. 54-55. Partially accepted in findings of fact 38 and 39. 56-57. Partially accepted in findings of fact 40 and 41. 58-60. Partially accepted in findings of fact 42 and 43. Intervenor and County: 1. Partially accepted in findings of fact 1-6. 2-4. Rejected as being unnecessary. 5-7. Partially accepted in findings of fact 7-13. 8-19. Partially accepted in findings of fact 16-25. Partially accepted in findings of fact 26 and 27. Partially accepted in findings of fact 28 and 29. Partially accepted in findings of fact 30 and 31. 23-25. Partially accepted in findings of fact 32 and 33. 26-27. Partially accepted in findings of fact 34 and 35. 28-33. Partially accepted in findings of fact 42-47. Partially accepted in finding of fact 3. Partially accepted in findings of fact 42-47. Note: Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary for a resolution of the issues, irrelevant, not supported by the more credible, persuasive evidence, subordinate, or a conclusion of law. COPIES FURNISHED: David Gluckman, Esquire Casey J. Gluckman, Esquire Route 5, Box 3965 Tallahassee, FL 32311 Kenneth D. Goldberg, Esquire Brigette A. Ffolkes, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Ronald A. Mowrey, Esquire 515 North Adams Street Tallahassee, FL 32301-1111 Robert A. Routa, Esquire Post Office Box 6506 Tallahassee, FL 32314 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100
The Issue The issues to be determined in this case are whether amendments CPA-09-13 and CPA-09-14 (“Plan Amendments”) to the Citrus County Comprehensive Plan, which were adopted by Ordinance 2009-A24, are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes (2009).1/
Findings Of Fact The Parties The Florida Department of Community Affairs is the state land planning agency and is statutorily charged with the duty of reviewing comprehensive plan amendments and determining they are “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. Citrus County has adopted a comprehensive plan that it amends from time to time pursuant to Chapter 163, Part II, Florida Statutes. Petitioner, Robert Schweickert, Jr., is a resident of the City of Inverness in Citrus County. Petitioner made oral comments about the Plan Amendments to Citrus County Commissioner John Thrumston in one or more telephone conversations during the period of time between the transmittal and adoption hearings for the Plan Amendments. In Petitioner’s telephone conversations with Commissioner Thrumston, the Commissioner was on his personal cellular telephone or home telephone. No evidence was presented as to whether Commissioner Thrumston conveyed Petitioner’s comments to the Board of County Commissioners or to the County’s planning staff. CMT is a Florida corporation and owns the property that is the subject of Plan Amendment CPA-09-14, which would re- designate the property as the Hollinswood Harbor Port Subarea. CMT submitted oral comments to the Citrus Board of County Commissioners at the transmittal and adoption hearings for the Plan Amendments. The Site The subject property is a 525-acre site situated on the Cross Florida Barge Canal. There is a channel “cut” from the barge canal into the property. CMT owns the submerged lands beneath the channel cut, and owns the submerged lands along the southern boundary of its property to the middle of the barge canal. Currently the site has future land use designations of “Industrial,” “Conservation” (for the CMT-owned water bottom), “Extractive,” and “Transportation, Communications, and Utilities.” A portion of the site is planted in pine trees, which CMT plans to harvest. The small area of the site designated Extractive is used to store mined materials. A power line and natural gas pipeline bisect the site. The waterfront portion of the site was used in the past for a cruise ship operation. A docking facility, parking lot, and office used in conjunction with the cruise ship operation still exist on the site. To the west of the site is other land owned by CMT, which is leased to a mining company and is used for mining limestone. To the east is land owned by the State of Florida, on which it proposes to build public boat ramps. The Plan Amendments Amendment CPA-09-13 amends the FLUE to create a new land use designation, “Port District.” CPA-09-14 amends the FLUE to create the Hollinswood Harbor Port (“HHP”) Subarea Plan, and amends the Future Land Use Map to designate the 525-acre site owned by CMT as the HHP Subarea. The HHP Subarea Plan divides the 525-acre site into four land use districts: “Port- Industrial,” “Port-Water Dependent,” “Port-Commercial,” and “Transportation Communication & Utility.” The HHP Subarea Plan proposes a mix of industrial, commercial, institutional, water dependent, and residential uses, and establishes minimum and maximum standards for those uses. The HHP Subarea Plan includes a requirement to comply with the FDEP 2007 Clean Marina Action Plan Guidebook. Residential uses within the HHP Subarea cannot exceed a density of six units per acre, or a maximum of 600 units. Residential units must be clustered on no more than 20 percent of the site’s total 525 acres. The residential density may be increased by one unit per acre if workforce housing is provided. Petitioner’s Issues Petitioner’s issues were limited to whether the amendments were consistent with the Citrus County Comprehensive Plan, Chapter 163, Florida Statutes, and Florida Administrative Code Chapter 9J-5, with respect to manatee protection, workforce housing, the provision of public water and sewer services, and urban sprawl. Manatee Protection The barge canal is a manmade waterway with a depth of 12 to 14 feet. The canal is too deep to allow sunlight to penetrate to the bottom and, therefore, there are no grass beds in the area of the site. Water grasses are the primary food of the manatee. Although manatees are known to travel in the barge canal, the canal is not essential habitat for the manatee. The proposed Plan Amendments would not prevent achievement of the criteria established in the Manatee Protection Element of the comprehensive plan. Petitioner failed to demonstrate that the Plan Amendments would cause an unreasonable risk of harm to manatees or are otherwise inconsistent with any provision of the comprehensive plan. Workforce Housing Petitioner alleges that the County has more than sufficient affordable housing and that the Plan Amendments would add to the surplus of affordable housing by allowing for a residential density bonus if workforce housing is provided. “Workforce housing” is generally defined in Section 420.5095(3)(a), Florida Statutes, as “housing affordable to natural persons or families whose total annual household income does not exceed 140 percent of the area median income.” The Housing Element of the comprehensive plan encourages affordable housing. Citrus County has not established in its comprehensive plan a “cap” on affordable housing units. There is also no cap on affordable housing units established in Chapter 163, Florida Statutes, or in Florida Administrative Code Chapter 9J-5. Petitioner did not adequately explain how an amendment that encourages the provision of affordable housing for some of the persons who work on a site or in the local area could be inconsistent with the comprehensive plan, Chapter 163, or Rule 9J-5. Public Water and Sewer Services At the final hearing, Petitioner claimed that the Plan Amendments for the HHP Subarea require that the district be served by central water and sewer services, but do not specify what entity is required to provide the services. Stated in this form, Petitioner’s issue is without merit because Petitioner did not identify a provision of the comprehensive plan, Chapter 163, or Rule 9J-5 that requires an identification of the entity that will provide water and sewer services in the future. Petitioner stated at the final hearing that “What I’m attempting to do is to narrow [the issues] down to the urban sprawl issue because to me that is the strength and the meat of the argument.” Therefore, Petitioner’s issue regarding the provision of public water and sewer services is treated as an aspect of his allegation that the Plan Amendments would encourage urban sprawl, and is addressed below. Urban Sprawl Petitioner alleges that the Plan Amendments encourage urban sprawl because they would result in the prematurely and poorly planned conversion of rural lands, would “leapfrog” over undeveloped lands, and would add new residential units there are not needed. Florida Administrative Code Rule 9J-5.006(5), entitled “Review of Plans and Plan Amendments for Discouraging the Proliferation of Urban Sprawl,” includes 13 primary indicators that a plan amendment does not discourage the proliferation of urban sprawl. Discussed below are the indicators implicated by the evidence presented by the parties. The first indicator of urban sprawl refers to “low- intensity, low-density, or single-use development or uses in excess of demonstrated need.” The Plan Amendments call for a mix of land uses which are relatively high in intensity and density. Therefore, this indicator is not presented by the proposed Plan Amendments. The second indicator of urban sprawl is promoting significant amounts of urban development in rural areas at substantial distances from existing urban area while leapfrogging over undeveloped lands available and suitable for development. Respondents and Intervenor claim that this would not be leapfrog development because the land was used in the past for industrial and commercial purposes and because the port uses are water- dependent. A County planner testified that there is a deficit of residential units in the planning district in which the HHP site is located. However, the addition of 600 residential units (even more, if workforce housing units are included) a substantial distance from urbanized areas is an indicator of urban sprawl. The fourth indicator is failing to protect and preserve natural resources as a result of the premature or poorly planned conversion of rural lands. Petitioner presented no evidence to show that the Plan Amendments would fail to protect or preserve natural resources. Therefore, this indicator of urban sprawl is not present. Indicators 6 through 8 are related to the orderly and efficient provision of public services and utilities. Generally, urban sprawl is indicated when public facilities must be created or expanded to serve a proposed land use due to its density or intensity, and its distance from existing facilities. Public water and sewer lines are not currently available to the site, and the County has no plans to extend public water and sewer services to the site. The Plan Amendments require all development within the HHP to be served by central water and sewer. If on-site, central wastewater facilities are used, they must provide advanced wastewater treatment and reuse capability. Respondents and Intervenor assert that the Plan Amendments would reduce the development intensity that is allowed under the current land use designations and development approvals for the site. They presented evidence that there would be a reduction of the water and sewer usage that potentially could have been required to serve the land uses on the site. Florida Administrative Code Rule 9-5.006(5)(k) states that the Department “shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators.” However, there was insufficient evidence presented on past, present, and future public water and sewer utility capacity. The evidence was insufficient to determine whether there are pre-existing indicators of urban sprawl, or whether the current situation indicates urban sprawl based on a need to expand the capacity of public utilities to serve the site. Petitioner has the burden of proof. The record evidence is insufficient to support his claim that the Plan Amendments show a failure of Citrus County to discourage the proliferation of urban sprawl.
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 that amendments CPA-09-13 and CPA-09-14 to the Citrus County Comprehensive Plan are “in compliance.” DONE AND ENTERED this 11th day of May, 2010, 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, 2010.
