The Issue The issues in this case are whether Amendments 05-02B, 05- 02C, 05-02G, and 05-02H to the Bay County Comprehensive Plan ("Plan") are “in compliance” as defined in Section 163.3184(1)(b), Florida Statutes.2
Findings Of Fact Ordinance Limitations and FLUM Notations Much of Petitioners' evidence and argument concerning the FLUM amendments either overlook the ordinance limitations and FLUM notations, or presume that they are illegal and ineffective. But the greater weight of the evidence was that ordinance limitations and FLUM notations generally are not illegal, ineffective, or unprecedented. To the contrary, Rule 9J-5.003(6) defines a plan amendment to include "an action affecting a prior plan or plan amendment adoption ordinance"; and Rule 9J-5.005(1)(c)6. states that the adopted comprehensive plan includes "a copy of the local comprehensive plan adoption ordinance at such time as the plan is adopted." To amend the ordinance containing the cap or remove the notation on the FLUM, the amending ordinance would have to be processed as a new comprehensive plan amendment pursuant to Section 163.3184, Florida Statutes. Placing limitations in FLUM amendment adoption ordinances and FLUM notations is an option for planning for development that can be used in response to the recent change in the state’s growth management law requiring more stringent review of the impacts of comprehensive planning on public facilities. See §§ 1-5, Ch. 290, Laws of Florida (2005). Other goals of the Act and the Plan, such as protection of natural resources, also justify the limitation of development within a FLUM Amendment to a density supportable by development on the upland acreage of a site. As with the goals, objectives, and policies of the Plan, these development limitations can only be removed through the Plan amendment process. Need Although DCA frequently objects on the basis of need in the plan amendment review process, neither Chapter 163, Part II, Florida Statutes, nor Florida Administrative Code Chapter 9J-5, provides a clear formula for determining need. Instead, DCA uses a professional planning standard which examines population growth and growth trends within a community. Expert review and analysis of Bureau of Economic and Business Research (“BEBR”) studies and vacant land studies available as of December 20, 2005, revealed an accelerated growth trend occurring in the County--i.e., in recent years, the County’s actual population growth is running ahead of projected growth. In addition to projecting population growth and assessing capacity to accommodate growth, an allocation needs ratio (or multiplier) is necessary to ensure housing affordability and variety in the market; otherwise, the supply and demand relationship is too tight, which may cause a rapid escalation of housing prices. Because the farther in time a local government projects growth, the less accurate those projections tend to be, actual need is multiplied by an allocation needs ratio to produce an additional increment of residential land use to accommodate this potential for error. Small counties that experience above-normal growth rates may use allocation ratios as high as three or more in order to realistically allocate sufficient buildable land for future growth. The County’s allocation ratio of 2.2 before the WB DSAP and FLUM amendments was low from a long-term forecasting perspective. When the WB DSAP amendments are factored into the allocation ratio, such growth would raise the allocation ratio to 2.3, which is still relatively low. A land use plan should allow for sufficient inventory to accommodate demand and to provide some choice in order to react to economic factors. One such economic factor in the County is the demand for coastal residences. Natural Resources The County does not designate wetlands within individual parcels as a separate land use on its FLUM. There is no state law or rule which prohibits a residential land use designation for land containing wetlands. The Plan, as adopted, provides appropriate wetland protection policies and standards that are applicable to development throughout the County, including that proposed for the FLUM Amendments. The FLUM Amendments do not repeal, revise, or exempt development from the existing policies of the Plan. The Plan has provisions, including those in the future land use element, the conservation element, and the infrastructure element, which control development within wetlands, provide for floodplain management, restrict densities and intensities within areas with high aquifer recharge potential, and otherwise address impacts to natural resources. Development of the FLUM Amendments must comply with the entirety of the Plan, and the expert testimony was that the FLUM Amendments are consistent with all applicable Plan provisions. Petitioners did not provide any countervailing evidence on that issue, except the testimony of Dr. Bacchus. See Findings 57-58, supra. Public Facilities To address and control growth pressures the Future Land Use Element includes three classes of service areas to guide delivery of public services. These are the Urban Service Area, the Suburban Service Area, and the Rural Service area. Under the Plan, these designations determine where centralized water and sewer facilities will be provided. Under the Plan, lands located in the urban area receive the highest per-acre residential densities, lands located in the suburban area receive a lower per-acre residential densities, and lands located in the rural area receive the lowest per-acre residential densities. Throughout the hearing, Petitioner Brown appeared to argue that Chapter 163, Part II, Florida Statutes, and Florida Administrative Code Chapter 9J-5 require a showing of concurrency at the time of approval of a FLUM amendment. However, the law has long been interpreted to provide that concurrency is attained if the necessary facilities are in place at or after the development order stage, depending on the facility at issue. Consistent with law, the County’s Plan has strong concurrency policies, which provide that determinations regarding the availability of public facilities are required prior to the issuance of development orders or building permits and that applicants for such permits must provide detailed, concurrency-type analyses regarding traffic, water, sewer, and all other public facilities. With regard to school capacity, the County and the applicants coordinated with the County School District to provide a district-wide analysis of student enrollment and planned capacity which fulfills school concurrency requirements as currently interpreted by DCA. At least with respect to Clara Avenue and Register Farms, Petitioner Brown took the position that additional, refined data and analysis on school and grade- level scales were required. AMENDMENT 05-02C (COLLEGE STATION) Without specific density limitations, College Station would have a maximum development potential of 2,835 units under the residential land use designation. But approximately 289 acres of College Station contain wetlands (220 acres) or will be devoted to green space, roadways, or stormwater management facilities (69 acres). Even though they took the position that residential density throughout the County is calculated based on gross acreage, the County and St. Joe agreed that a realistic number of dwelling units locatable on the remaining 278 acres of College Station would be 1,390 instead of the 2,835 unit maximum. As indicated, this limitation was made part of the adopting ordinance. In addition, a further limitation to 800 units pending sufficient concurrency evaluations was noted on the FLUM. In every respect, the College Station FLUM Amendment is internally consistent with the Plan, the state comprehensive plan, and the West Florida Strategic Regional Policy Plan. Petitioner Brown put on no specific countervailing testimony that College Station was not consistent with specific provisions of those plans. Compatibility The College Station parcel is located in the eastern area of the County, southeast of U.S. Highway 231, a major four- lane divided arterial roadway, and east of Pipeline Road, a County roadway. There is residential development to the north, south, and west of College Station. There is a residential single-family development platted for 300 units to the north, and existing single-and multi-family development to the west. While there is a small amount of residential use east of College Station, a large portion of the properties to the east remain timberland. College Station is adjacent to the municipalities of Cedar Grove and Panama City. The eastern area of the County, and specifically the area generally located along the U.S. Highway 231 corridor, is transitioning from suburban to urban uses, which means the area is near urban uses, services, and facilities. College Station mapping depicts two out-parcels owned by others; one out-parcel is surrounded by College Station, and the other borders College Station on three sides and looks like a finger sticking into College Station Both out-parcels are classified as Agriculture Timberland, which allows one residential dwelling unit on each out-parcel. Petitioner Brown’s planning witness opined that keeping the Agriculture Timberland classification on the out- parcels made no sense due to their potential for noxious uses. But the existence of land not controlled by the applicant, regardless of its proximity to the land which is the subject of the application, goes to the issue of compatibility in a compliance challenge, and DCA had no concerns regarding the compatibility of the out-parcels with College Station. Petitioner Brown's evidence was not sufficient to prove that the College Station FLUM Amendment is incompatible with surrounding land uses and development or inconsistent with Plan policies relative to compatibility. Need One consequence of high demand for coastal residences is a considerable increase in costs of, and profits to be gained from sale of, such coastal residences. This has resulted in a migration of many of the County’s permanent residents from the coastal areas to the more affordable areas to the east, including along U.S. Highway 231. The east side of the County is a logical area for growth, as is evidenced by the growing size of the municipalities around the U.S. Highway 231 corridor and the increase in industrial and commercial uses in that area. The emergence of that area as an employment center is another factor supporting additional residential development there. Because there is not a lot of other vacant land available near centralized utilities in the eastern areas of the County, College Station is appropriate for the approved residential uses in this location. For these reasons, need was not an issue DCA raised with regard to the FLUM Amendment. Petitioner Brown's evidence was not sufficient to prove that there is not a demonstrated need for the College Station FLUM Amendment. Natural Resources The data and analysis provided to support the College Station FLUM Amendment covered a wide range of natural resources characteristics of the parcel. No agencies questioned the sufficiency of the natural resources data and analysis in the ORC process. The 220-acre assessment of wetlands on College Station was based on a review of several professionally-accepted sources, including NWI mapping. See Finding 55, supra. Based on Federal Emergency Management Area (“FEMA”) mapping, a small portion of College Station falls within a floodplain. There are no federal, state, or local regulations that prohibit development within floodplains. Development on College Station will be required to comply with FEMA and local floodplain regulations at the development order stage. Additionally, because a large portion of College Station falls within the Plan’s designated North Bay Ecosystem Management Area, development must comply with stringent stormwater treatment and attenuation requirements similar to those for an OFW. The 1390-unit density limitation approved for College Station is partially based on an acreage reservation for the construction of stormwater management facilities. St. Joe presented analysis in the form of a conceptual development plan showing that the approved levels of development could be constructed at College Station with little or no adverse impacts to wetlands, which is consistent with Plan objectives for protection and conservation of wetlands. The conceptual development plan provides for a minimum 30-foot buffer from all wetlands, consistent with the requirements of the Plan, and reacted appropriately to the location of floodplains and other constraints within College Station. The College Station parcel is suitable for the approved level and type of development. Public Facilities There is adequate water and sewer capacity in the County’s system to serve the maximum level of development approved for College Station, and the necessary County infrastructure is already in place and near College Station. With regard to traffic facilities, DCA determined that the potential existed for a level of service (LOS) failure on a segment of U.S. Highway 231 after cumulative analysis of the traffic impacts from College Station and Register Farms. To address this potential LOS failure, DCA recommended phasing of the two developments so that they would not cause that roadway segment to become deficient, with a corresponding provision that development could continue when road capacity was enhanced. Consistent with that recommendation, development on the College Station parcel is limited to 800 residential units through the placement of a notation on the FLUM. See Finding 78, supra. Regardless of this notation on the FLUM, a concurrency evaluation would be required during the development order process. Both DCA and the Florida Department of Transportation (FDOT) agreed that traffic concerns were addressed adequately. The traffic analysis for College Station was based on an average daily rather than a peak-hour trip analysis. An average daily trip analysis is typical of planning level studies and is accepted by the FDOT for FLUM amendments. In any event, for the only roadway showing a potential deficiency--a segment of U.S. Highway 231--the average daily results and peak-hour results would be similar if not the same, due to the roadway’s typical commuter route traffic characteristics. The evidence presented by Petitioner Brown did not prove that the College Station FLUM Amendment is inconsistent with the public facility requirements of the Act. Support by Data and Analysis Petitioner Brown questioned whether there were data and analysis "concerning the affect [sic] of the proposed plan amendment on the flooplain [sic] and drainage pattern." PPRO, ¶II.A.7. As indicated, there were data and analysis, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. Petitioner Brown questioned the use of the 1,390 residential unit limitation for purposes of the College Station traffic analysis. As indicated, it was appropriate to use the 1,390 residential units for purposes of the traffic analysis. Petitioner Brown questioned whether there were data and analysis supporting the College Station FLUM amendment with out-parcels. As indicated, there were data and analysis to support the configuration of the FLUM amendment, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. Petitioner Brown questioned the adequacy of data and analysis "concerning listed species that are located adjacent to the property and may be present on the property." PPRO, ¶II.A.8. Specifically, Panama City Crayfish and Apalachicola Dragonhead were found in the cleared power line easement along a boundary of the College Station, but the property itself was not surveyed for the presence of those species. Petitioner Brown argues: "Not providing data and analysis leads to the creation of unrealistic development expectations for the property owner and puts the planning process on its head." PPRO, ¶II.A.10. But the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate, or that St. Joe has any "unrealistic development expectations" from having found listed species on a cleared power easement on its property but not yet having surveyed the remainder of its property. Petitioner Brown argued: "Average daily trips is not the best available data to conduct an analysis of the proposed FLUM amendment, instead Peak Hour Trips should be used " PPRO, ¶II.A.21. As indicated, the use of average daily trips was adequate data and analysis for purposes of the traffic analysis. In addition, original data collection is not required. See Fla. Admin. Code R. 9J-5.005(2)(b). Petitioner Brown argued: "There was no analysis as to whether [the 30-inch potable water line and 10-inch force sewer main adjacent to the property] were of sufficient size . . . ." PPRO, ¶II.A.22. As indicated, there were data and analysis as to the availability of public facilities to serve development at College Station, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. To the contrary, there was specific, undisputed expert testimony that the potable water line and force sewer main are adequate to serve the College Station development. Petitioner Brown argued: "No data and analysis was submitted to show that the County had reviewed the application for adverse impacts to the natural resources described in the conservation element or coastal element of the Bay County Comprehensive Plan." PPRO, ¶II.A.27. As indicated, there were data and analysis as to natural resource impacts, and the evidence presented by Petitioner Brown did not prove that the data and analysis were inadequate in this regard. (As indicated, the Coastal Management Element does not apply. Also, much of the argument was based on Dr. Bacchus's generalized opinions.) See Findings 57-58, supra.) Citing Dr. Bacchus's testimony, Petitioner Brown argued: "Clustering the additional density allowed by the Plan Amendment would cause impacts to adjacent wetlands In addition, clustering of development density assigned to wetlands on the adjacent uplands will cause adverse impacts " PPRO, ¶¶II.A.29-30. However, as indicated in Finding 100, supra, by virtue of the limitation in the adopting ordinance, the FLUM amendment assigns no residential density to 220 acres of wetlands on the site. While Dr. Bacchus raised generalized questions about allowing high-density residential development on uplands, it was not proven that the specific density assigned by the College Station FLUM amendment was inappropriate. As indicated, it was not proven that the College Station FLUM Amendment was not supported by data and analysis, as required by Sections 163.3177 and 163.3178, Florida Statutes. Capital Improvements Schedule Petitioner Brown argues: "It is beyond fair debate that Bay County's Comprehensive Plan, the DSAP amendments and the proposed FLUM Amendments are not in compliance, because Bay County does not have a capital improvement schedule for provision for public facilities set forth, although required by Section 163.3177(3)(a)(5), Florida Statutes." PPRO, ¶II.A.25. But her evidence failed to prove that changes to the capital improvements schedule were necessitated by the College Station FLUM Amendment. AMENDMENT 05-02G (CLARA AVENUE) The Clara Avenue parcel is located in the southern area of the County just north of U.S. Highway 98, a major four- lane divided arterial road, and south of West Bay. It is adjacent to the City of Panama City Beach to the west. Also to the west is residential development in a golf course community. To the south, the FLUM designates the property along U.S. Highway 98 as General Commercial. Petitioner Brown alleged that the Clara Avenue FLUM Amendment allows a change in land use to a category allowing higher density and intensity of use for property surrounded by lower density and intensity land uses, resulting in an internal inconsistency. See Amended Petition, ¶ 67. However, this argument was not maintained in the PPRO. Because the property to the south is designated General Commercial and the property to the west has residential uses, there is no internal inconsistency. The County has a Wide Open Spaces policy in the Plan that designates urban, suburban, and rural service areas. The Urban Service Area is within or near city limits and is appropriate for a full range of urban services including paved roads, central water, and sewer. The Clara Avenue parcel is located in the Urban Service Area. The designation of Agriculture in the FLUM is not one that the Plan normally includes within the Urban Service Area. Thus, the adopted land use is more consistent with the County’s Wide Open Spaces Policy. The area of the County between Philips Inlet and the Hathaway Bridge along U.S. Highway 98 is transitioning from agricultural to urban. This is demonstrated by the County’s inclusion of much of that area in the Urban Service Area on the FLUM. The Clara Avenue FLUM Amendment encourages the separation of urban and rural land uses by channeling urban uses into the Urban Service Area adjacent to Panama City Beach, an incorporated municipality. No Commercial Allowed in General Commercial In addition to questioning the legality and enforceability of the Clara Avenue FLUM amendment's adoption ordinance and FLUM notation limitations to 999 residential units (which already has been addressed, see Finding 87, supra), Petitioner Brown’s planning witness also objected that the limitations to 999 residential units were incompatible with the designation of the Clara Avenue parcel as General Commercial, and internally inconsistent. While clearly compatible (since residential is allowed in General Commercial), internal consistency is a closer question since the Purpose of General Commercial under the Plan is to: "Provide areas for the continuation , expansion, and creation of business enterprise." Plan Table 3A. At the same time, Table 3A places no limits on the amount of residential allowed in General Commercial, as the countervailing expert testimony and arguments point out. While the limitations are unorthodox and counter-intuitive, and even more likely to cause confusion than the limitation on the other FLUM amendments, it was not proven beyond fair debate that the Clara Avenue adoption ordinance and FLUM notation limitations are inconsistent with Plan Table 3A. Need Analysis Citing the testimony of Dr. Fishkind, Petitioner Brown argued: "No data and analysis concerning the need for the proposed plan FLUM amendment was provided. The demand for residential units is 45,000 units over the next 20 years and the 110,000 units that could be developed under the existing comprehensive plan and plan amendments far exceeds the estimated population growth and demand. No data was submitted showing a bona fide need for this additional residential development density." PPRO, ¶II.B.5. However, Dr. Fishkind actually calculated that 101,000 units could be developed under the existing comprehensive plan and plan amendments and, as indicated, calculated the allocation ratio for the County to be 2.3 or 2.4 with the plan amendments, which he characterized as being reasonable but still "on the low side for this type of community." (T. 1333) See Finding 93, supra. DCA did not even consider need to be an issue regarding the Clara Avenue FLUM Amendment. Expert testimony established that the re-designation of land to residential use was justified in the County based on the limited amount of vacant land near centralized utilities within unincorporated County and the County’s projected need for residential units. While this testimony referred specifically to College Station, it also was applicable to Clara Avenue. In addition, the General Commercial designation (with or without commercial uses) is as or more appropriate than the current agricultural designation. Petitioner Brown did not prove that there was no adequate demonstration of need for the Clara Avenue FLUM amendment. Natural Resources Petitioner Brown argues that the Clara Avenue FLUM amendment was not based on appropriate data and analysis regarding wetlands (namely, County GIS wetlands maps based on NWI data and aerial photographs) but rather on inaccurate depictions on a conceptual site plan presented by the applicant. The evidence proved that the depictions on the conceptual site plan differed somewhat from the other data sources but did not prove that the conceptual site plan depictions were inaccurate. Regardless of the depictions on the conceptual site plan, the other wetlands information is adequate data for purposes of a FLUM amendment. (By rule, the NWI information is acceptable "for preliminary identification of wetland locations " See Fla. Admin. Code R. 9J-5.005(2)(c).) The wetlands and floodplain information and analysis required at the comprehensive plan amendment stage of development of a parcel is less extensive than would be required at a development order or permitting stage. It was not proven that the information showing wetlands on the property prohibited the General Commercial designation, with limitation to 999 residential units. To the contrary, the conceptual site plan incorporated the best available data based on the surveys and environmental consultants and demonstrated that the Clara Avenue parcel could be developed in a manner consistent with the Plan within the wetland constraints presented by the Clara Avenue parcel while protecting, preserving, and maintaining natural wetland systems. As with College Station, Petitioner Brown cited Dr. Bacchus's testimony and argued: "Clustering the additional density allowed by the Plan Amendment from Agricultural to General Commercial (either 1202 or 999 with limitation of section 2, Ord. 05-81) would cause impacts to adjacent wetlands. . . . In addition, clustering of development density assigned to wetlands on the adjacent uplands will cause adverse impacts . . . ." PPRO, ¶II.B.32. But the County's Plan has adequate provisions for the protection of wetlands. While Dr. Bacchus raised generalized questions about the impacts of allowing higher-density residential development on uplands, it was not proven that the specific density assigned by the Clara Avenue FLUM amendment (999 residential units on 80 acres) was inappropriate. Likewise, her generalized opinions about the impacts of any additional development on supplies of potable water, disposal of treated wastewater, offsite sewage sludge disposal, water quality, and the natural system in general did not prove that the Clara Avenue FLUM amendment was inappropriate. Public Facilities As with College Station, Petitioner Brown argued that the data and analysis for the Clara Avenue FLUM Amendment were inadequate because it failed to take into account the maximum theoretical densities for the parcel without the “999 residential units and no commercial uses” limitation. However, as indicated, DCA worked with Clara Avenue to institute the “999 residential and no commercial uses” limitation on the development of the Clara Avenue parcel that is noted on the FLUM to address a potential level of service failure for transportation and other facilities. The limitation provided in the ordinance and on the FLUM does not allow a higher density and intensity of use and was designed to prevent any unsustainable growth due to the FLUM Amendment. In light of the limitation to 999 residential units, an adequate analysis of the public facilities was conducted, which appropriately concluded that adequate public facilities will exist at the time of development of the Clara Avenue FLUM Amendment. The water and sewer service to the Clara Avenue parcel will be provided by the City of Panama City Beach. Al Shortt, the City Engineer and Utilities Director for the City of Panama City Beach, testified that there is adequate water and sewer capacity in the City of Panama City Beach’s system to serve the maximum level of development approved for Clara Avenue. The Clara Avenue project would not adversely impact water or wastewater facilities in the City of Panama City Beach. Any additional infrastructure necessary to provide water and wastewater services will be provided by Clara Avenue consistent with the Panama City Beach requirements. In addition to Shortt’s analysis, Ray Greer also evaluated Panama City Beach’s water capacity, wastewater capacity, and expected public works expansions for water and wastewater and any effects the Clara Avenue FLUM Amendment would have on those public facilities. He determined that the Clara Avenue FLUM Amendment would not have any adverse impacts on water or wastewater. Petitioner Brown presented no evidence to the contrary. The solid waste facility that would serve the Clara Avenue FLUM Amendment is the Steelfield landfill in Bay County. Greer testified that the Steelfield landfill will not be adversely affected by the impacts due to the Clara Avenue FLUM Amendment. Petitioner Brown presented no evidence to the contrary. Petitioner Brown's planning witness observed that the existence of current water and sewer capacity is not a commitment or guarantee that capacity will be available in the future. But commitments and guarantees are not required at the FLUM amendments stage of the planning process. Clara Avenue conducted a comprehensive planning traffic impact analysis based on the objections raised by DCA requesting an analysis based on generally accepted methodology. This analysis included a P.M. peak-hour analysis for various road links around the Clara Avenue site. The P.M. peak-hour analysis typically is the worst case scenario. The study looked at projected volumes in 2010 and found the Clara Avenue FLUM Amendment, with the adopted limitation to 999 residential units, would not significantly and adversely impact any roadway segments within the meaning of Florida Administrative Code Rule 9J-5.019. The current state of the Clara Avenue roadway north of U.S. Highway 98 is a one-lane dirt path. Petitioner Brown raised issues concerning whether the current state of Clara Avenue north of U.S. Highway 98 is consistent with the requirements of Section 2.1.3.4 on page 2-4 of Joint Exhibit 23 that General Commercial should “generally [front] on a paved collector or arterial roadway.” Clara Avenue’s expert planning witness testified that this does not create an issue at the comprehensive plan amendment stage because Clara Avenue will be paved and provide access to U.S. Highway 98 and function as a significant roadway north of U.S. Highway 98 similar to its function south of U.S. Highway 98. Petitioner Brown did not mention the issue in the PPRO. With respect to the adequacy of public facilities for the Clara Avenue FLUM amendment, Petitioner Brown repeated the same argument that she made with respect to College Station's alleged lack of a CIS: "It is beyond fair debate that Bay County's Comprehensive Plan, the DSAP amendments and the proposed FLUM Amendments are not in compliance, because Bay County does not have a capital improvement schedule for provision for public facilities set forth, although required by Section 163.3177(3)(a)(5), Florida Statutes." PPRO, ¶II.B.26. But, as with College Station, her evidence failed to prove that changes to the capital improvements schedule were necessitated by the Clara Avenue FLUM Amendment. Petitioner Brown did not specifically plead any issues regarding schools, except with regard to the WB DSAP Amendment. However, adequacy of public facilities was raised as an issue as to Clara Avenue, evidence was presented during the final hearing, and the issue was included in the PPRO, ¶¶II.B.27-30. Clara Avenue developed an accepted methodology and undertook an analysis, taking into consideration Florida Senate Bill 360, which was enacted by Chapter 290, Laws of Florida (2005), to determine the projected increase of school population attributable to the Clara Avenue FLUM Amendment, and it was determined that there would not be an adverse impact to the schools from the Clara Avenue FLUM Amendment in the short term or long term. Bay County's School Facilities Planner agreed. Although she disputed the school analysis, Petitioner Brown provided no evidence to contradict the analysis conducted by Greer and the Bay County School District. Petitioner Brown's dispute with the school analysis seems to be, essentially, twofold. First, she criticizes reliance on the adoption ordinance and FLUM notation limitation to 999 residential units, which already has been addressed. Second, she argues, essentially: "No data and analysis sorted by 'elementary, middle and high schools' was submitted by the applicant." Although such information was requested in DCA's ORC, it was not demonstrated that such information is required at this point in the planning process at this time. (Senate Bill 360 does not require the establishment of school LOS standards until 2008.) Petitioner Brown failed to prove that the Clara Avenue FLUM Amendment is inconsistent with the public facility requirements of the Act or any applicable comprehensive plan. AMENDMENT 05-02H (REGISTER FARMS) With respect to need, Petitioner Brown offered no testimony that there was no need for the development as authorized by the Register Farms FLUM Amendment. Most of the arguments Petitioner Brown directs to the Register Farms FLUM amendment are arguments also made as to College Station and Clara Avenue. See PPRO ¶¶II.C.2-18, 22-29. (In some cases, Petitioner Brown appears to repeat arguments with respect to the other FLUM amendments that do not apply to Register Farms. See PPRO ¶II.C.24-27.) As with the other FLUM amendments, issues as to need, availability of public facilities, and adequacy of the CIS are premised on the alleged illegality and unenforceability of the adoption ordinance and FLUM notation limitations. Issues regarding natural resources also are premised on Dr. Bacchus' generalized opinions about the impacts of development on the natural environment. In those regards, those issues already have been addressed and need not be repeated. Compatibility Petitioner Brown argues with respect to the Register Farms FLUM amendment: "It is incompatible to put large residential areas next to existing agricultural operations because of machinery, insecticides, burning, farm animals, and there should be a separation between rural and urban uses." PPRO, ¶II.C.19. But there was ample evidence to justify the FLUM amendment. Ray Greer testified that the Register Farms site was located within the Suburban Service Area and was in an area that was experiencing growth. He explained that, as with College Station, some of this growth was due to the fact that people were moving inland to find more affordable housing opportunities. The County planning staff summary report prepared for the Register Farms FLUM Amendment concluded that because of its location and nearby/surrounding land uses, the subject properties are appropriate for land use activities other than agriculture. It found that the FLUM Amendment fills in a gap between existing residential and commercial areas which have developed along U.S. Highway 231. If developed as proposed, the requested FLUM Amendment would create opportunities for shopping and other commercial activities for which area residents must currently travel considerable distances on U.S. Highway 231. While this will create additional local traffic (which will not drop U.S. Highway 231 below its adopted LOS), it will reduce the amount of traffic flowing from the County’s less urbanized area into the urban area for basic shopping needs. Petitioner Brown did not prove that the Register Farms FLUM Amendment is not compatible with surrounding land uses. Natural Resources As regards wetland issues, Mr. Greer testified that his analysis provided with the FLUM Amendment identified potential wetlands on site, and he concluded that the site was suitable for development. Petitioner Brown’s wetlands witness, Dr. Bacchus, testified that wetlands on the Register Farms site were not a major factor in her analysis. She was more concerned with the potential impacts to offsite impacts to wetlands from water and sewer and waste disposal services needed to support development of the site. With respect to onsite wetlands, Dr.Bacchus criticized the resolution of the aerial photography included in the transmittal and adoption packages and testified that there are aerials with better resolution that better show excavation onsite that, as Petitioner Brown argues, "would increase the potential for adverse impacts from an environmental standpoint." PPRO, ¶II.C.21. But it was not proven that the wetlands data and analysis did not support the Register Farms FLUM amendment. As to the offsite land use activities cited by Dr. Bacchus, environmental impacts are addressed during required permitting by FDEP. See Finding 58, supra. Dr. Bacchus provided no quantitative analysis, nor did she provide any specific evidence of any impacts to offsite natural resources by the Register Farms FLUM Amendment. She was also apparently operating under the incorrect assumption that the Register Farms FLUM Amendment somehow was affected by the “gross” to “net” density issue associated only with the DSAP amendment. Nothing in Chapter 163, Part II, Florida Statutes, or Rule Chapter 9J-5 requires data and analysis of the impacts of development resulting from a FLUM amendment on offsite wetlands. On the contrary, Rule 9J-5.013(3) discusses wetlands in the context of the land on which the FLUM is proposed, stating: “Future land uses which are incompatible with the protection and conservation of wetlands and wetland functions shall be directed away from wetlands.” In this case, the County has policies in its Plan providing that development should be directed away from wetlands. Mr. Greer testified that the amount of development authorized by the FLUM amendment took into account the wetlands on the site. Petitioner Brown offered no testimony to support her allegations that the Register Farms FLUM Amendment caused flooding or impacted coastal resources pursuant to Section 163.3178, Florida Statutes. At any rate, like College Station, the Register Farms FLUM Amendment is not located within the designated coastal planning area. Petitioner Brown did not prove that the Register Farms FLUM Amendment is inconsistent with the requirements of the Act and Rules regarding natural resources. Public Facilities Ray Greer, who was qualified as an expert witness in the field of comprehensive planning, prepared data and analysis to respond to DCA’s concerns raised in its ORC report regarding the Register Farms FLUM Amendment, and his testimony and report demonstrated that there were adequate data and analysis of the impacts of the Register Farms FLUM Amendment on public infrastructure and that the development authorized by the FLUM Amendment could be served with adequate public facilities, including schools. Petitioner Brown's only arguments to the contrary (which, unlike Clara Avenue, do not include reference to schools) already have been addressed. Petitioner Brown did not prove that the Register Farms FLUM Amendment is inconsistent with the requirements of Chapter 163, Part II, Florida Statutes, and Rule Chapter 9J-5 regarding impacts to public facilities and infrastructure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that Amendments 05-02B, 05-02C, 05-02G, and 05-02H are “in compliance,” as defined Section 163.3184(1)(b), Florida Statutes, and reserve jurisdiction on all pending motions for sanctions. DONE AND ENTERED this 5th day of December, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th of December, 2006.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: DCA is the state land planning agency with the power and duty to exercise general supervision over the administration and enforcement of Chapter 380, Florida Statutes, including Areas of Critical State Concern, and all rules and regulations promulgated thereunder. See, Section 380.031(18), Florida Statutes. The City of Key West is in the Florida Keys Area of Critical State Concern. See, Section 380.0552(3), Florida Statutes and Rule 27F-8, Florida Administrative Code. Since the City is in the Florida Key's Area of Critical State Concern, City ordinances regulating land development do not take effect until DCA approves them "by rule." See, Section 380.0552(9), Florida Statutes. See also, Section 380.05(6), Florida Statutes (which provides that no proposed land development regulation in an Area of Critical State Concern shall become effective until DCA has adopted a rule approving such regulation.) In pertinent part, Section 380.0552, Florida Statutes provides: 380.0552 Florida Keys Area; protection and designation as area of critical state concern.-- PRINCIPLES FOR GUIDING DEVELOPMENT.--State, regional, and local agencies and units of government in the Florida Keys Area shall coordinate their plans and conduct their programs and regulatory activities consistent with the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, which chapter is hereby adopted and incorporated herein by reference. For the purposes of reviewing consistency of the adopted plan or any amendments to that plan with the principles for guiding development and any amendments to the principles, the principles shall be construed as a whole and no specific provision shall be construed or applied in isolation from the other provisions. However, the principles for guiding development as set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, are repealed 18 months from July 1, 1986. After repeal, the following shall be the principles with which any plan amendments must be consistent: To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. To protect shorelines and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. To protect upland resources, tropical biological communities, freshwater wetlands, native tropical vegetation (for example, hardwood hammocks and pinelands), dune ridges and beaches, wildlife, and their habitat. To ensure the maximum well-being of the Florida Keys and its citizens through sound economic development. To limit the adverse impacts of development on the quality of water throughout the Florida Keys. To enhance natural scenic resources, promote the aesthetic benefits of the natural environment, and ensure that development is compatible with the unique historic character of the Florida Keys. To protect the historical heritage of the Florida Keys. To protect the value, efficiency, cost- effectiveness, and amortized life of existing and proposed major public investments, including: The Florida Keys Aqueduct and water supply facilities; Sewage collection and disposal facilities; Solid waste collection and disposal facilities; Key West Naval Air Station and other military facilities; Transportation facilities; Federal parks wildlife refuges, and marine sanctuaries; State parks, recreation facilities, aquatic preserves, and other publicly owned properties; City electric service and the Florida Keys Co-op; and Other utilities, as appropriate. To limit the adverse impacts of public investments on the environmental resources of the Florida Keys. To make available adequate affordable housing for all sectors of the population of the Florida Keys. To provide adequate alternatives for the protection of public safety and welfare in the event of a natural or man-made disaster and for a post-disaster reconstruction plan. To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. * * * MODIFICATION TO PLANS AND REGULATIONS.--Any land development regulation or element of a local comprehensive plan in the Florida Keys Area may be enacted, amended, or rescinded by a local government, but the enactment, amendment or rescission shall become effective only upon the approval thereof by the state land planning agency. The state land planning agency shall review the proposed change to determine if it is in compliance with the principles for guiding development set forth in chapter 27F-8, Florida Administrative Code, as amended effective August 23, 1984, and shall either approve or reject the requested changes within 60 days of receipt thereof. Further, the state land planning agency, after consulting with the appropriate local government, may, no more often than once a year, recommend to the Administration Commission the enactment, amendment, or rescission of a land development regulation or element of a local comprehensive plan. Within 45 days following the receipt of such recommendation by the state land planning agency, the commission shall reject the recommendation, or accept it with or without modification and adopt it, by rule, including any changes. Any such local development regulation or plan shall be in compliance with the principles for guiding development. (Emphasis supplied.) In sum, any land development regulations adopted by the City must be submitted to DCA for approval or rejection pursuant to Section 380.0552(9). Such regulations become effective when approved by DCA. In evaluating an Ordinance submitted pursuant to Section 380.0552(9), DCA will look to the Principles for Guiding Development found in Section 380.0552(7), Florida Statutes. DCA is directed to approve a proposed ordinance if it is in compliance with the Principles for Guiding Development; conversely, DCA is without authority to approve a proposed amendment which is not in compliance with the Principles for Guiding Development. On September 3, 1991, the City adopted Ordinance 91-25 (the "Ordinance") which provides for a 180 day moratorium on certain development activities in the City. The Ordinance prohibits ...the approval of Community Impact Assessment Statements and site plans for projects falling within the scope of the city's CIAS ordinance, where the proposed density or intensity of use is inconsistent with the permitted density or intensity under the future land use map of the city's pending comprehensive plan or the property is situated in an area designated as coastal high hazard or wetlands on the Future Land Use Map of the City's pending comprehensive land use plan... A building moratorium, such as that set forth in the Ordinance, constitutes a land development regulation as defined in Section 380.031(8), and Rule 28-20.19(4), Florida Administrative Code. Therefore, the moratorium could not take effect until approved by DCA by rule. A Community Impact Assessment Statement ("CIAS"), as defined in Section 34.04, Key West Code, describes expected impacts of proposed development on specified City resources and infrastructure. While a CIAS is not a development order, the City requires a CIAS as a precondition to the granting of a building permit for most large projects in the City. A developer is required to submit a CIAS for a proposed residential or hotel/motel development of ten or more habitable units or a proposed commercial development of 10,000 square feet or more. A CIAS is intended to ensure that the impacts a proposed project will have upon public facilities and the social and economic resources of the community are considered in the planning process and to avoid surprises during the planning process. The City will reject a CIAS that it finds to be incomplete or misleading. The City Commission held its first hearing on the Ordinance on June 18, 1991. At least five public hearings before the City Commission were held prior to the City's adoption of the Ordinance. The 1981 City of Key West Comprehensive Plan (the "Existing Comprehensive Plan") sets forth certain parameters and standards for the issuance of development orders. The Existing Comprehensive Plan has been approved by the Administration Commission in Chapter 28-37, Florida Administrative Code. The City of Key West land development regulations and certain amendments to the Existing Comprehensive Plan have been approved by DCA in Chapter 9J-22, Florida Administrative Code. The City is required by the States's growth management statute, Part II of Chapter 163, Florida Statutes, to submit to DCA a new comprehensive plan. Since the City is in an Area of Critical State Concern, the new comprehensive plan will not take effect until it is approved by DCA by rule. The Existing Comprehensive Plan remains in effect until a new plan is adopted. At the time the Ordinance was adopted, the City was in the process of preparing a new comprehensive plan to guide future development. By adopting the moratorium, the City sought to provide itself with an opportunity to effectively implement a new comprehensive plan. The City submitted a proposed new comprehensive plan (the "Pending Comprehensive Plan") to DCA on December 2, 1991. DCA and the City are currently involved in negotiations over whether the Pending Comprehensive Plan is in compliance with the state's growth management law, Chapter 163, Florida Statutes, and the rules promulgated thereunder, Rule 9J-5, Florida Administrative Code. The Pending Comprehensive Plan was still in the draft stages at the time the Ordinance was adopted. As indicated above, the City adopted the moratorium for projects requiring a CIAS in an effort to ensure that the City would be able to effectively implement a new comprehensive plan. The City is faced with numerous development-related problems which it attempts to address in the Pending Comprehensive Plan. These problems include: Water Quality Water Resources - The City draws all of its water from the Biscayne Aquifer. The water is pumped from wellfields on the mainland in Dade County and is transported through a single pipe to Monroe County to provide water to the Florida Keys population. While there is no immediate problem with the availability of water for the City, the Florida Keys Aqueduct Authority and the South Florida Water Management District (SFWMD) are in the process of preparing a water supply plan for Dade County and the Keys. These agencies recently informed all Monroe County local governments that they are approaching the limit of water that can be supplied from the aquifer and it is expected that there will be limitations on any further increases in consumption and/or consumptive use permits. The City and DCA contend that the moratorium will help the City to effectively analyze and address these issues in its new comprehensive plan. Chapter 4 of the Pending Comprehensive Plan would require the City to develop a plan for potable water resources, including replacement of the aging water main, providing for emergency supplies, and emphasizing the need to conserve water. Sewer System - Sewage treatment in the City of Key West is a serious problem. The treated effluent is currently dumped into the Atlantic Ocean and has been implicated in the degradation of the environmentally sensitive and unique coral reefs. Chapter 4 of the Pending Comprehensive Plan would direct the City to substantially improve its wastewater treatment level of service, prevent system infiltration, fix leaky pipes, and reduce the pollution of the surrounding waters. Stormwater Runoff - The waters surrounding the island of Key West have been designated Outstanding Florida Waters, pursuant to Chapter 403, Florida Statutes. The runoff generated by rains in the City is currently channeled into these waters either directly or via canals. The Existing Comprehensive Plan does not contain extensive guidance regarding stormwater runoff. Chapter 4 of the Pending Comprehensive Plan would direct the City to conduct a half million dollar study over the next two years to examine, develop, and implement a stormwater management plan. Section 4-2.1(d) of the Pending Comprehensive Plan would also require improved levels of service for stormwater runoff. Hurricane Evacuation - The evacuation of people out of the Florida Keys during a hurricane is an important element in the planning process for the City. The Existing Comprehensive Plan does not provide any standards for hurricane evacuation. Chapter 2 of the Pending Comprehensive Plan requires the City of Key West to develop a feasible hurricane evacuation plan and coordinate its implementation with the County. The City has taken no action on this directive to date. A model is being developed within the Monroe County Comprehensive Plan for the safe evacuation of residents from the Florida Keys. The model will include updated information based upon the Pending Comprehensive Plan. The inclusion of new development into the model is complicated. By temporarily limiting new development, the City can provide more certainty to this planning process. Wetlands and Environmental Protection - The Pending Comprehensive Plan seeks to strengthen and clarify the Existing Comprehensive Plan provisions regarding wetlands and habitat protection by reducing densities within wetlands, salt ponds, and coastal high hazard areas and requiring the adoption of amended land development regulations which extensively improve the City's environmental protection requirements. Residential Housing and Conversion to Transient Units - There have been a significant number of conversions from residential to transient units (hotels, motels, and other tourist accommodations) in the City during the last several years. The increase in "transient" persons exacerbates the strain upon public facilities, especially transportation facilities. The Existing Comprehensive Plan offers little protection to residential areas from commercial and transient intrusion. The Future Land Use Element of the Pending Comprehensive Plan attempts to guide and plan the locations of conversions. Transportation - Many roads in the City are currently operating at poor levels of service, including U.S. Highway 1, the main arterial roadway in the City. The City has never had a specific plan to improve the levels of service. The City is required under the growth management statute (Chapter 163) to provide adequate levels of service on the roads within the City. Chapter 2 of the Pending Comprehensive Plan proposes to implement an extensive traffic circulation system over the next twenty years which will include roadway improvements, revised levels of service, and nonmotorized transportation provisions. Solid Waste - Currently, the City's solid waste is disposed at a local landfill. The City's solid waste disposal facility is currently operating under a year old consent order that directs the facility to be closed within three years. The Existing Comprehensive Plan states that the City is to provide adequate public facilities, but does not explain what constitutes "adequate". The Existing Comprehensive Plan does not provide a plan for the impending closure. The Pending Comprehensive Plan would require the City to provide the funding for solid waste disposal improvements. The clear goal of the Ordinance was to delay the approval of certain CIAS applications, site plans and building permits for 180 days while work continued on the Pending Comprehensive Plan. The City contends that the moratorium will help it to effectively implement the policies which it anticipates will be incorporated in the new comprehensive plan when it is finally in place. The Ordinance provided that the 180 day moratorium would begin on the effective date of the administrative rule approving the Ordinance. The City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the Ordinance. Normal rulemaking pursuant to Section 120.54, Florida Statutes, generally takes between 90 to 120 days. Many local governments experience a significant increase in development proposals immediately prior to the adoption of a new comprehensive plan. Many of these proposals are prompted by a fear as to the impact of the new plan and seek to acquire vested rights under the old plan. The City and DCA were concerned that such an increase in development proposals might complicate the planning process by rendering some aspects or assumptions of a new plan moot before the plan could even be adopted. Moratoria are frequently used by local governments in order to complete an effective comprehensive plan without the need for changes. In the year immediately proceeding the adoption of the Pending Comprehensive Plan by the City Commission (from September 1990 through September 1991), the City received seven CIAS applications. No CIAS applications had been received during the year prior. The City contends that many of the 1990/1991 applications were motivated by an attempt to obtain vested development rights. However, no persuasive evidence to support this speculation was presented. The City Commmission did not consider any reports, studies or other data in connection with the enactment of the Ordinance. At the time the Ordinance was adopted, the City Commission did not make any specific determinations that there were any immediate dangers to the public health, safety or welfare of the community nor was the Ordinance enacted as an emergency ordinance. After its adoption by the City Commission, the Ordinance was transmitted to DCA on September 5, 1991 for approval pursuant to Section 380.0552(9), Florida Statutes. The only information transmitted to DCA was a copy of the Ordinance. As indicated above, the City and DCA were concerned that normal administrative rulemaking time periods would defeat the purpose of the City's Ordinance. The City Planner contacted DCA to request approval of the Ordinance by emergency rule. The City Planner and DCA concurred in the conclusion that the purpose of the Ordinance would be defeated if it was not immediately implemented. The City Commission did not specifically ask or authorize the City Planner to request DCA to enact the Ordinance by emergency rule. The City's concerns included, among other things, that the conversions of residential properties to transient tourist accommodations would accelerate during the process of finalizing the Pending Comprehensive Plan. In addition, the City expects that its new comprehensive plan will reexamine the densities in coastal high hazard areas. By adopting a moratorium, the City sought to insure that any new developments will comply with the new densities ultimately adopted. On September 18, 1991, DCA filed the rule packet for the Emergency Rule with the Secretary of State and the Emergency Rule became effective on that date. DCA did not prepare an economic impact statement for the Emergency Rule. The rule packet consisted of: (a) a Certification Of Emergency Rule; (b) the Notice Of Emergency Rule; (c) a Statement Of The Specific Facts And Reasons For Finding An Immediate Danger To The Public Health, Safety And Welfare, (the "Statement of Specific Reasons") and (d) a Statement of the Agency's Reasons for Concluding that the Procedure Used Is Fair under the Circumstances (the "Agency Conclusions"). The Notice of Emergency Rule appeared in the September 27, 1991 edition of the Florida Administrative Weekly. In the Statement of Specific Reasons, DCA concluded that: ...Generally, a [comprehensive] plan revision process stimulates an accelerated rate of permit requests. Accelerated permitting including the acquisition of vested rights during a planning period will severly erode the City's ability to effectively revise and implement the comprehensive plan. Such accelerated development will also lead to further deterioration of current hurricane evacuation clearance time for the City. This action will increase the existing potential for loss of life and injury to person [sic] and property, will cause further deterioration of level [sic] of service on existing roadways and will lead to irreversible environmental degradation. Therefore this rule must be adopted by emergency procedures because of the potential immediate danger to the public health, safety and welfare. In the Agency Conclusions, DCA concluded: The emergency rulemaking is fair because (1) it immediately approves the ordinance as adopted by the City of Key West Commission and (2) normal rulemaking would moot the intent of the adopted ordinance since the City of Key West would be required to continue accepting applications for building permits, site plans, of [CIAS's] covering work projects or both, as set forth in Section 2 of ordinance 91-25 until the Department's rule approving the ordinance becomes effective. DCA's Statement of Specific Reasons was not reviewed or discussed with the City or its planner prior to its preparation. In deciding to promulgate the Emergency Rule, DCA considered the major public facilities and natural resource problems confronting the City and the City's proposed strategy to deal with these problems in the Pending Comprehensive Plan. DCA concluded that an immediate danger to the public health, safety, and welfare currently exists within the City justifying the approval of the Ordinance by emergency rule. The evidence clearly indicates that the City is facing many significant problems from a planning perspective. Petitioner contends, however, that there is no evidence that any of those problems present an "immediate" threat to the public health, safety or welfare. For the reasons set forth in the Conclusions of Law below, this contention is rejected. On October 10, 1991, DCA filed a rule packet for the Proposed Rule with the Secretary of State. The rule packet consisted of the Notice Of Proposed Rule 9J-22.013, the Estimate of Economic Impact on All Affected Persons (the "EIS",) a Statement of the Facts and Circumstances Justifying Proposed Rule 9J-22.013 (the "Statement of Facts"), a summary of the Proposed Rule, a Comparison with Federal Standards, a Statement of Impact on Small Business and the text of the Proposed Rule. The Notice of Proposed Rule 9J-22.013 appeared in the October 18, 1991 edition of the Florida Administrative Weekly. On October 24, 1991, DCA filed a Notice of Change with the Secretary of State, stating that the correct number for the Proposed Rule was 9J-22.014, since 9J-22.013 had already been used. The Notice of Change appeared in the November 1, 1991 edition of the Florida Administrative Weekly. DCA did not consider any appraisals, data, reports or other studies concerning the economic impact that could result from the imposition of a moratorium. Instead, DCA followed the approach it had used in approving prior ordinances enacted by the City and concluded that its role in reviewing the Ordinance for compliance with the Priniciples Guiding Development did not require an examination of the economic impact of the underlying policy decisions reached by the City Commission in adopting the Ordinance. The EIS states that: Costs and benefits will occur as a result of this ordinance and were considered by the City prior to adoption of the ordinance. The City did not provide any information to DCA on the economic impacts of the Ordinance or on the impact of the Ordinance on the value of properties affected by it. The evidence was unclear as to the extent to which the City Commission considered economic impacts in deciding to adopt the Ordinance. Several public hearings were held in connection with the adoption of the Ordinance and DCA assumed that interested parties had an opportunity to express their concerns regarding the economic impact of the Ordinance at these hearings. DCA did not inquire as to the number of projects under review by the City at the time the Ordinance was passed nor did it seek a determination as to whether any projects with vested rights were affected by the Ordinance. The City Planning Department has retained a consultant, as required by the Ordinance, to conduct an economic study of existing conditions and projections for future growth. The purpose of this study is to assist in developing future amendments to the Ordinance. The study is not final and was not considered by the Key West City Commission when the Ordinance was enacted. DCA concluded that the proposed moratorium adopted by the Key West City Commission was consistent with the Principles for Guiding Development. Therefore, DCA concluded that Section 380.0552 required it to approve the Ordinance. Petitioner has not presented any persuasive evidence to establish that the Ordinance is in any way inconsistent with the Principles for Guiding Development. Petitioner owns 6.8 acres of vacant real property on Atlantic Boulevard in the City. He purchased the property in 1974 with the intent to develop it. Petitioner's property is located in an R-2H zoning district. The City's future land use map designates Petitioner's property as multi-family. Petitioner has spent approximately $71,000.00 to hire architects, engineers, surveyors, planners, biologists and attorneys to aid him in preparing to develop the subject property. In 1989, Petitioner submitted applications for a Department of Environmental Regulation Surface Water Management permit, and an Army Corps of Engineers dredge-and-fill permit, but neither of those permits have been issued to date. Generally the City requires a developer to obtain these "higher-order" permits prior to issuing a building permit. Petitioner has never applied for or installed sewer service, water service or any other utility service to the property. Since he acquired the property, Petitioner has not cleared any vegetation on the property except for minor trimming adjacent to the roadway which was required by the City for safety purposes. In June of 1989, the City passed a resolution notifying the Department of Environmental Regulation that it opposed Petitioner's application to place fill upon the property. On April 10, 1991, Petitioner submitted a CIAS to the City for a proposed 96 unit residential development in three buildings on the subject property. Before the Ordinance was enacted, the City Planner prepared a report dated July 3, 1991 reviewing Petitioner's CIAS as required by the CIAS ordinance. In that review, the City Planner concluded: The project is located in the R-2H zoning district and conforms to all provisions of that district, thus requiring no variances or special exceptions. On August 6, 1991, the Key West City Commission considered Petitioner's CIAS. The City Commission refused to approve the Petitioner's CIAS application. Specifically, the City Commission determined that Petitioner's CIAS application was incomplete and that the "submerged land district" designation ("SL") applied to the Petitioner's property as an overlay zoning district because Petitioner's property is located in an area which is deemed to include wetlands and mangroves. The City Commission requested that the CIAS address the "submerged land district" before the CIAS application could be deemed complete. The City Planner was not present at the August 6, 1991 City Commission meeting. The "submerged land district" in Section 35.07(f), City of Key West Code, provides that the density and site alteration of "environmentally sensitive areas including but not limited to wetland communities, mangroves, tropical hardwood hammocks and salt ponds shall be zoned with a maximum density of one (1) unit per acre. Site alteration shall be limited to a maximum of ten percent of the total size." The "submerged land district" overlay zone applies to any parts of the property which fall within the description of "environmentally sensitive areas" in Section 35.07, City of Key West Code. Because there is confusion over the interpretation and applicability of the SL district and because the SL land use district does not appear on the City's official zoning map, it was not considered in the preparation of the July 3 Report. The evidence in this case was inconclusive as to whether Petitioner's property is located in a SL district and/or whether Petitioner's CIAS for his property can be approved under the City regulations in place prior to the adoption of the Ordinance. On August 22, 1991, Petitioner submitted an amendment to the CIAS as well as a Site Plan. The amendment to the CIAS contests the City's conclusion that Petitioner's property should be considered part of a SL district. As set forth above, during this time period, the City had began consideration of the Ordinance. The first hearing on the Ordinance was held on June 18, 1991 and the Ordinance was passed by the City Commission on September 3, 1991. The City Planner notified Petitioner by letter dated October 11, 1991, that his CIAS Site Plan review and approval had been "stayed" because of the enactment of the Ordinance and because of the project's "inconsistencies with the City's Pending Comprehensive Plan." Petitioner requested an exception from the effect of the Ordinance pursuant to the procedure contained in the Ordinance. A hearing was held before the City Commission and the request was denied.
The Issue The issues for determination in this case are whether certain portions of Amendment RU-27 to the Sarasota County Comprehensive Plan, as adopted in Sarasota County Ordinance 96- 027, are in compliance with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code.
Findings Of Fact Petitioner, GROWTH-RESTRAINT AND ENVIRONMENTAL ORGANIZATION, INC. (GEO), is a non-profit environmental advocacy organization. By stipulation, GEO is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Petitioner, ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA, INC. (ECOSWF), is a Florida non-profit corporation which has a number of corporate and individual members in Sarasota whose corporate purposes may be affected by RU-27. ECOSWF has engaged in a variety of advocacy and educational activities in Sarasota County and submitted oral comments to Sarasota County during the adoption of RU-27. Petitioner, MIAKKA COMMUNITY CLUB, INC. (MCC), is a non- profit community corporation whose members primarily reside in Sarasota County. By stipulation MCC is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Petitioner REBECCA AYECH (AYECH) owns property and resides in Sarasota County and submitted oral and written comments to Sarasota County on RU-27. By stipulation AYECH is an “affected person” as defined in Section 163.3184(1), Florida Statutes. Respondent DEPARTMENT OF COMMUNITY AFFAIRS (DEPARTMENT) is the State land planning agency, with responsibility to review plan amendments under Chapter 163, Part II, Florida Statutes pursuant to Sections 163.3184, 163.3189, Florida Statutes. Respondent SARASOTA COUNTY (COUNTY) is a local government with responsibility to prepare a comprehensive plan and any required amendments thereto pursuant to Sections 163.3167, 163.3171, Florida Statutes. The Challenged Amendment Ordinance 96-27, also known as amendment RU-27, was adopted by Sarasota County on April 30, 1996. RU-27 substantially revised the future land use element (FLUE) and future land use map (FLUM). Sarasota County is approximately 563 square miles in size. The revisions to the FLUM contained in RU-27 as a whole substantially affect approximately 305,000 acres. Petitioners’ only challenge to RU-27 as a whole is that the plan improperly fails to incorporate a five-year time frame for land use. In all other respects, Petitioners’ challenge is limited to two parcels of land comprising approximately 200 acres located immediately east of I-75 and immediately north of Fruitville Road. These parcels are identified as “A” and “C” on page 5 of Petitioners’ Exhibit 40. On the pre-amendment FLUM, Parcels A and C are designated semi-rural. “Semi-rural” provides for residential densities up to one unit per two acres. The post-amendment FLUM provided for the following land uses for parcels A and C: the western half of Parcel A was "major employment center/interstate regional office park" (MEC/IROP) and the eastern half was "moderate density residential" (MDR); the northern (approximate) third of Parcel C was "moderate density residential" (MDR), and the southern two thirds was "major employment center" (MEC). MEC is described in the FLUE as: Coordinated development of industrial, commercial, service and governmental uses within a park-like setting" which is encouraged in MEC. Commercial general uses, which are customarily accessory and incidental to the primary uses allowed within a MEC may be permitted, provided that such commercial uses are located and oriented internally, are consistent with an adopted Critical Area Plan or Development of Regional Impact, are located at least 300 feet from the boundary and do not exceed five percent of the total land area. Class A quality type development is encouraged, particularly along 1-75 pursuant to FLUE Policy 3.3.5. MDR-type residential densities can be allowed in the MEC districts up to 25 of the area consistent with FLUE Policy 3.1.2. All development within an MEC must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC are: PCD, PID, I, ILW, GU and PRD. MEC/IROP FLUE policies permit "planned office parks including high technology research and development centers" pursuant to FLUE Policy 3.3.4. All development within an MEC/IROP must be consistent with an adopted critical area plan for the property under FLUE Policy 3.3.3. Implementing Zoning Categories for MEC/IROP are: PCD, PID, I, ILW, GU and PRD. MDR as described in the FLUE Policy 3.1.1 is development within the Urban Service Area (USA) having "gross densities equal to or greater than two dwelling units per acre and less than five dwelling units per acre." Implementing Zoning Categories for MDR are: RSFI, RSF2, RSF3, RSF4, RMH and PRD. Subject Properties Parcels A and C had initially been identified as a "study area" in the transmitted version of RU-27. At the adoption stage public hearing the Sarasota County Planning Department staff presented recommendations as to the designation of Parcels A and C and the extension of the Urban Service Area to encompass those parcels. At the time of the adoption of RU-27, Parcel A was substantially undeveloped, and consisted of about 60-70% pine flatwoods; 35% mesic hammock; and three small freshwater wetlands. There was a dolomite waste water treatment facility in the northwest corner. Further, a two-lane paved road oriented north-south ran inside of the western boundary, connecting the mining operation to the north with Fruitville Road to the south and then west to 1-75. At the time of the adoption of RU-27, Parcel C was mostly cleared open land with approximately a dozen houses and other structures. Adjacent Area At the time of RU-27's adoption, immediately north of Parcel A was a Florida Power and Light Company transmission line and easement, and north of the easement was a series of mining operations and a Development of Regional Impact industrial and office park development. At the time of RU-27's adoption, east of Parcel A was a low density residential area known as the Fox Creek housing development, generally developed with five-acre parcels. At the time of RU-27's adoption, east of Parcel C was a high density area known as the "Sun `N Fun" recreational vehicle and mobile home park. At the time of RU-27's adoption, across Fruitville Road and to the south of Parcel C was what is known as the "celery fields" parcel. The celery fields have been obtained by Sarasota County as a regional stormwater facility. At the time of RU-27's adoption, south of Fruitville Road on both sides of 1-75 were major employment centers with warehousing and industrial uses. At the time of RU-27's adoption, west of 1-75 and North of Richardson Road was a multi-family residential development under construction. At the time of RU-27's adoption, at the immediate northeast corner of 1-75 and Fruitville Road, was a MEC. It was established in 1993 in Amendment RU-15. The FLUM amendments changed the land use designation on the parcel to the immediate north of the previously existing MEC from semi-rural to MEC. Petitioners do not challenge this change. Parcel C is contiguous to the eastern boundary of the previously-existing MEC. A 24-inch force main water pipeline is scheduled to be constructed along Coburn Road, running along the western boundary of Parcel A, and a new water pumping station is planned for the northern corner of Parcel A. Potable water is available to Parcels A and C. A sanitary sewer (wastewater) pipeline is scheduled to be built by Sarasota County along the north, west and south boundaries of Parcel A. An analysis of the planning for the MEC and MEC/IROP land uses is set forth at pages 30-34 of RU-27. The Department's Compliance Review and Finding On or about December 8, 1995, Sarasota County transmitted a proposed amendment to the comprehensive plan including amendment to the FLUE and FLUM. Sarasota County requested that the Department apply the Objections, Recommendations and Comments review process. The Department reviewed the proposed amendment, and notified the County on or about March 1, 1996, that the Department had seven objections to the proposed amendment under Chapter 163 and Chapter 9J-5, Florida Administrative Code. None of the objections pertained to Parcels A or C directly. In addition, the Department objected based upon alleged inconsistencies with the Regional Policy Plan, Goal 7, Regional Issue F and Goal 9, Regional Issue E; and based upon inconsistency with the State Comprehensive Plan, Goal 7, Policies 24 and 25 and Goal 9 Policy 3. None of the state or regional agencies which commented on RU-27 to the Department at the transmittal or adoption stage registered any objections to RU-27. The Florida Department of Transportation reviewed the amendment and had no objections. The Southwest Florida Water Management District reviewed RU-27 and registered no objections. The District commented that the proposed amendment did not address the District's pending Southern Water Use Caution Area rule and its potential effects on land use and development within the County. The Southwest Florida Regional Planning Council reviewed the proposed RU-27 amendment and determined it to be consistent with the Regional Policy Plan. The Department of Environmental Protection offered no comments or objections to the amendment. On or about April 30, 1996, the County transmitted the adopted amendment (Ordinance RU-27) to the Department. RU-27 was a major revision of the FLUE. Sarasota County made changes in the transmitted version of RU-27 in the adoption stage, including changes to the FLUM. Among the changes to the transmitted amendment were: updated (to 1995) population estimates and projections; development capacity calculations; existing land use and cover maps, "minor corrections to the FLUM," updating of the FLUM "to show recent government acquisitions and changes to the FLUM that affected specific relatively small areas," and minor changes to several policies. The Department determined that the plan amendment adopted in Ordinance RU-27 was in compliance. The Department published notice of intent to find Ordinance RU-27 in compliance on June 26, 1995, in the Sarasota Herald-Tribune. Petitioners filed a timely Petition challenging the Department’s intent to find Ordinance RU-27 in compliance. In Paragraph 4.a. of the Petition, Non-Compliance with Section 163.3177, it is alleged that the subject portion of RU-27 violates Section 163.3171, Florida Statutes, because (1) it causes the FLUM not to be based on the projected population of Sarasota County; (2) it allows urban sprawl into new areas without correcting public facilities deficiencies; (3) it fails to recognize important environmental features (messic hammock, wetlands, pine flatwoods); and (4) it fails to account for I-75 as an evacuation route when it is projected to be severely over- stressed for evacuation purposes. The evidence fails to establish any requirement that the designation of each parcel be mathematically justified in the plan or the effect of the designations at issue on the demographic analyses supporting the plan. As part of the plan amendment process, Sarasota County analyzed the growth trends in the northern versus the southern half of the county, and found that the northern half of the county had limited residential capacity for the next ten years, with a projected buildout by 2006. The limited supply justified an additional amount of additional residential capacity. The evidence fails to establish the existence of any public facilities deficiencies that would be affected by the amendment. Native habitats receive protection from other provisions of the comprehensive plan during the development review process, even under the designations applied in RU-27. The evidence fails to establish that the amendment would have any adverse impact on I-75’s ability to carry traffic in an emergency. The subject area is not a hurricane evacuation zone, but is planned to serve as a safe area to absorb evacuees from other coastal regions of the county. Timing of RU-27 vs. the EAR Petitioners allege that the subject portion of the amendment violates Section 163.3191, Florida Statutes, because it was transmitted and adopted prior to the adoption of Sarasota County’s Evaluation and Appraisal Report (EAR). Sarasota County’s EAR was adopted on February 20, 1996. RU-27 was adopted on April 30, 1996. Sarasota County notified the Regional Planning Council that RU-27 was an EAR-based amendment, but did not specifically notify the Department. The Department, however, considered and reviewed RU-27 as an EAR-based amendment. Other local governments have failed to specifically designate EAR-based amendments in the past. On such occasions the Department has contacted the local governments to ascertain the status of such amendments during the Department’s review process. Alleged Inconsistency with State Comprehensive Plan Petitioners allege that the amendment "does not comply" with the following parts of the State Comprehensive Plan: 187.201(8), (10), (17), (18), (20), (23), (24), Florida Statutes. The evidence fails to establish any inconsistency with the State Comprehensive Plan. The Southwest Florida Regional Planning Council found the amendment to be consistent with the State Comprehensive Plan. Additionally, the more specific and credible expert opinion is that the designations of the parcels at issue are consistent with the State Comprehensive Plan. Data and Analysis Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(a) and 9J-5.006, Florida Administrative Code, in that it is not based on relevant and appropriate data and analysis. The evidence fails to establish the existing Future Land Use Element was not based on appropriate data and analysis, or that the entirety of RU-27 was not based on appropriate data and analysis. The evidence fails to establish that the data supporting the amendment were not collected and applied in professionally accepted manner. A consultant’s study prepared for the County in 1989 had estimated the unadjusted demand for new office park development in the I-75 corridor to consume approximately 640 acres by the year 2010. These data, prepared for an I-75 Corridor Plan, were incorporated into the 1989 update of the Comprehensive Plan. Based on this information, the County had designated 770 acres of MEC/IROP land to allow for environmental constraints. Although located at an I-75 interchange, Parcels A and C had not been designated for Urban uses in part because of drainage problems and the habitat located on parts of Parcel A. Because of recent drainage improvements in this area and more stringent environmental site planning requirements incorporated into the plan after 1989, this particular location has improved substantially as to its suitability for MEC/IROP development. By designating a portion of this site for MEC/IROP uses, RU-27 increased the supply of MEC/IROP land by approximately 60 to 70 acres. No other MEC/IROP lands were added by RU-27, resulting in a total available supply of approximately 840 to 850 acres. When compared with the 1989 consultant’s study, the total MEC/IROP acreage exceeds absolute demand by approximately 33 percent. The MDR contained within the subject parcels amounts to approximately 120 acres. At the maximum possible density of five units per acre, 600 residential units could be constructed on these parcels, or 540 units more than the maximum allowable under the previous Semi-Rural designation. The total urban residential capacity of the urban-designated area in RU-27 is 43,912 units, meaning that the new urban development permitted on these parcels constitutes a maximum or 1.23 percent of the total number of potential units. Based on the County’s existing land use controls and other constraints, the County projects that such lands will actually develop at even lower densities than the maximum allowed within the FLUM designations. The actual zoning density applied in Sarasota County is less than Future Land Use designation, except in the rural area. In the text of the RU-27 amendment, the County justified the need for the designation of the MDR at this particular location as being to “serve as a transition between lands designated as Major Employment Center and existing Semi- Rural Development.” Population Projections Petitioners allege that the amendment does not comply with Rules 9J-5.005(2)(e) and 9J-5.006(1)(g), Florida Administrative Code, in that it is not based on required population projections. RU-27 is based upon residential as well as seasonal population projections. The MDR areas designated on Parcels A and C by RU-27 were intended to provide a buffer between the newly-created MEC and MEC/IROP land uses on those parcels and existing residential development. Petitioners essentially challenge the changed land uses on Parcels A and C to new residential MDR capacity based upon the allegation that the expansion of the Urban Service Area to include the parcels is "over-allocated" because it exceeds the 133% market flexibility factor. The evidence, however, fails to show that the land uses designated for Parcels A and C is inconsistent with the projected population growth, particularly in light of the faster growth rate in the northern portion of Sarasota County. Planning Time Frames Petitioners allege that the amendment does not comply with Rule 9J-5.005(4), Florida Administrative Code, because the FLUE does not contain a five-year planning time frame. The challenged portions of the amendment (Parcels A and C) do not specifically relate to the planning time frame requirement, however, it is clear that the plan as amended contains at least two planning time frames, 1995-2005 time frame associated with the Urban Service Area and provision of capital improvements, and 1995-2010 for long-range capital improvements planning. Internal Consistency with Goals, Objectives, Policies Petitioners allege that the amendment does not comply with Rule 9J-5.005 (5), Florida Administrative Code, due to alleged internal inconsistency between the two FLUM changes and the following parts of the FLUE (as amended by RU-27). (1) Analysis. The Petition refers to portions of the Analysis section: "Development Capacity of the Urban Area"; "Coordination of Capital Improvements and band Uses"; "Planning for Residential Uses"; "Planning for Industrial Uses"; and "Summary." The evidence does not establish that the changed land uses on Parcels A and C are inconsistent with the totality of the data and analysis which the County considered. The County Commission designated Parcels A, B and C as a "study area", there was a pre-existing MEC on a contiguous parcel, and Parcel B was an urban enclave proximate to the Interstate. The map depicting the urban planning area did not include Parcels A and C; however, the map was intended to include the pre-RU-27 urban areas as a basis for beginning work on the amendment. The evidence does not establish an inconsistency between the Analysis Section and Parcels A and C. (2) Intent. The Petition did not identify any specific provision of the Intent section alleged to be insistent with the FLUM designation of the two parcels. The Intent Section does not set forth goals, objectives or policy as meant by Rule 9J- 5.005(5)(b), Florida Administrative Code. The evidence does not establish an inconsistency between the Intent Section and the designation of the two parcels at issue. (3) Policy 1.2.1. This policy requires that potential land use incompatibilities be mitigated through certain design techniques. This policy applies to the issuance of development orders and rezonings, not plan amendments. The evidence does not establish an internal inconsistency with Policy 1.2.1. (4) Policy 2.2.1. This policy requires that development orders be conditioned on adequate levels of service. A plan amendment, however, is not a development order. The evidence does not establish an internal inconsistency with Policy 2.2.1. (5) Policy 2.2.2. This policy requires that public expenditures for infrastructure and services be concentrated to serve areas within the Urban Services Area (USA) boundary. The parcels in question are within the USA boundary. The evidence does not establish an internal inconsistency with Policy 2.2.2. (6) Policy 2.3.1. This policy calls for a minimum dwelling unit potential within the USA boundary of 133% of the projected housing demand. Parcels A and C are within the USA, therefore no inconsistency exists. (7) Policy 2.3.2. This policy provides that the Future Urban areas will be considered for inclusion within the USA, based on the Evaluation and Appraisal Report (EAR). The evidence does not establish an internal inconsistency with Policy 2.3.2. (8) Policy 2.3.4. This policy explains that the FLUM “establishes a long-range maximum limit on the possible intensity of land use,” but not a minimum. The designation of Parcels A and C in this regard is consistent with Policy 2.3.4. (9) Goal 3. This goal calls for the orderly development of lands needed to accommodate the projected population growth. . . .” The designation of Parcels A and C reflects a balanced approach to population growth in the northern part of Sarasota County. The evidence does not establish an internal inconsistency with Goal 3. (10) Policy 3.1.1. This policy provides guidelines for the application of the residential density ranges provided in the comprehensive plan to subsequent development orders. The designation of Parcels A and C is not a development order. The evidence does not establish an internal inconsistency with Policy 3.1.1. (11) Policy 3.1.7. This policy requires the County to amend and adopt appropriate ordinances and plans to promote mixed use, pedestrian and bicycle friendly communities within two years. Within the context of RU-27, the designation of Parcels A and C provides a reasonable plan to promote the mixed use of this property and incorporate the area in an orderly manner. The evidence does not establish an internal inconsistency with Policy 3.1.7. (12) Objective 4.1. Objective 4.1 provides for the establishment and implementation of planning programs to address development and redevelopment opportunities. The evidence does not establish an internal inconsistency with Objective 4.1. (13) Policy 4.1.7. This policy calls for the development and preparation of a subsequent overall plan for the areas east of I-75 in Sarasota County. The policy does not prohibit or otherwise limit the uses previously designated or the uses set forth in RU-27. The evidence does not establish an internal inconsistency with Policy 4.1.7. (14) Appendix I. Appendix I contains the capacity methodology and the designation of the two parcels at issue. The Petition did not allege that the methodology contained in Appendix I failed to comply with Chapter 163 or Rule 9J-5, and there is no showing of an internal inconsistency. Concurrency Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.0055 and 9J- 5.006(2)(a), Florida Administrative Code, because all required public facilities will not be available concurrent to the development permitted by RU-27. There is no evidence of any inadequacy of the plan’s existing concurrency management systems or their consistency with state statute or rule. There are no existing public facilities deficiencies at Parcels A and C. The designation of Parcels A and C in the amendment would not exacerbate any existing public facilities deficiencies. While the designation of Parcels A and C would have some impact on roads, sanitary sewers, stormwater management, and other facilities and services, the evidence does not establish that required facilities will not be available concurrent to development. Urban Sprawl Petitioners allege that the subject portion of the amendment does not comply with Rules 9J-5.006(3)(b)8 and 9J- 5.006(5), Florida Administrative Code, because it allows and encourages urban sprawl. There is no existing or historic problem of urban sprawl in Sarasota County. Sarasota County has historically provided only the capacity needed to support the population projections. RU-27 established the urban service area for Sarasota County. The change in land use for the subject properties in RU-27 did not cause urban sprawl. Sarasota County has for planning purposes a “tight” plan, in that it contains effective land use controls, works well within the planning timeframes, and contains a much lower allocation of new land for growth than other land use plans reviewed and approved by the Department. The approximate 200 acres of Parcels A and C do not constitute a “substantial area” of Sarasota County. Parcels A and C do not constitute a substantial area of the FLUM, which encompasses approximately 305,000 acres. As determined by the planning reviewers, the changes to the adopted FLUM pertain to relatively small areas. The changes to the FLUM for Parcels A and C substantially represent an “urban to urban” change. The rule indicators of urban sprawl are not implicated by the changed land use of Parcels A and C. Sarasota County’s plan has effective development controls in place to mitigate for or discourage urban sprawl. The new FLUM categories for Parcels A and C are not properly characterized as “low intensity” or “single-use development.” The new FLUM categories for Parcels A and C are not properly characterized as “in excess of demonstrated need.” The new land uses for Parcels A and C constitute "nodal development" which is not urban sprawl and not “radial strip development.” The new land uses for Parcels A and C do not constitute “leapfrog” development, but constituted “infill” of the existing and surrounding development to Parcels A and C. 102 The amended land uses for Parcels A and C do not reflect premature, poorly-planned development. Parcels A and C do not have adjacent active agricultural areas with which to conflict. Regional Policy Plan Petitioners claim that the amendment does not comply with the following parts of the Regional Policy Plan: Goal 1-9; Policy 10; Goal 11-25; and Policy 1e. The Department and Southwest Florida Regional Planning Council determined that the amendment is consistent with the Regional Policy Plan. There is no evidence of record regarding any inconsistency with the Southwest Florida Regional Policy Plan.
Findings Of Fact Maurice Fox ("Developer" or "Respondent" hereafter) filed his original application for approval of a development of regional impact with the Palm Beach County Board of County Commissioners in April, 1974. An extensive application was filed. Personnel from the staff of the County's Planning, Building, and Zoning Department discussed the application with the Respondent and his representatives, and the staff's recommendations were presented to the Planning Commission and to the Board of County Commissioners. The Respondent made presentations to the South Florida Regional Planing Council, and to the Board of County Commissioners. The Board received input from the Respondent, from the South Florida Regional Planning Council, from its own staff, from the Florida Game and Fresh Water Fish Commission, and from the Flood Control District, which is now the South Florida Water Management District. Palm Beach County was, at that time, a member of the South Florida Regional Planning Council. The Council recommended that the Board of County Commissioners deny the application for development order, maintaining that the proposed development conflicted with the county land use plan, would stimulate excessive migration into the region, would cause an excessive burden upon transportation facilities, did not adequately provide for solid waste disposal, could have an adverse impact upon water quality in the region, and would eliminate a significant habitat for wildlife including several threatened or endangered species. The Game and Fresh Water Fish Commission opposed the proposed project because of its potentially adverse impact upon the wildlife habitat. The Flood Control District considered that the lake system proposed to be operated in conjunction with the development could be maintained in such a way as to negate adverse impacts upon water quality of the region, and did not oppose the project. The County's Planning, Building, and Zoning Department recommended that the development order be issued, and the County Planning Commission concurred. By resolution number R74-700, the County Commission approved the application for development order subject to three conditions on September 3, 1974. This proceeding ensued. During the pendency of this proceeding, Palm Beach County withdrew from membership in the South Florida Regional Planning Council. The County joined the Treasure Coast Regional Planning Council (TCRPC). Since it was granted status as an intervenor, TCRPC has been functioning as the appellant. The South Florida Council has withdrawn from the proceeding. TCRPC has contended that the Board of County Commissioners did not adequately consider the environmental consequences of the proposed development. This contention is not supported by the evidence. The Board of County Commissioners did not have before it all of the evidence that is now before the Florida Land and Water Adjudicatory Commission, but it did have adequate information from which it could assess the environmental impacts of the proposed development, and weigh these impacts against potential advantages and disadvantages of the development. Whether the County Commission made a correct assessment of the ecological consequences of the proposed development is an issue for this appeal. The thought processes by which members of the Commission made the determination are not issues in this proceeding. Maurice Fox acquired the property which is the subject of this proceeding, and which has come to be known as the Fox Property, in 1954. The Fox Property lies in Palm Beach County, and is bordered on the east by State Road 7 as it is presently constructed and as it is proposed for extension. The property will run three lineal miles along State Road 7 when State Road 7 is completed. Okeechobee Road runs through the southern section of the property. The property has roughly a rectangular configuration, and consists of 1705 net acres apart from the rights of way of Okeechobee Road and State Road 7. The proposed development is a retirement community. It would contain 10,004 living units with a population cap of 18,416 persons. Dwelling units would be dispersed in forty five residential pods, some bordering on a lake, others on a golf course. There would be single and mixed story clusters. The maximum rise would be four stories. Two golf courses are proposed for construction, along with a 406-acre lake for sailing, boating, and fishing. A fourteen mile bicycle path that would not cross any roads is proposed for construction around the lake. There would be tennis courts, and at least one swimming pool for each building pod. The main social club would be located on the lake. Each golf course would have a club house. There would be a total of 1028 acres of open space, with approximately fourteen acres preserved in a natural condition. Three church sites have been set aside, along with a four and one half acre civic center, which would include a fire station, security facility, and municipal services. A commercial facility on a twenty five and one half acre tract is planned, with smaller convenience centers located at each of the golf club houses. The most significant feature of the development is a proposed center for geriatric medicine, which would be located on the southeast corner of the property. The center would be owned by a non profit corporation, and would be operated for the public benefit. The Respondent proposes to donate the land for the center. The center would have the following facilities: (a) A medical clinic with group practices of physicians; (b) Emergency facilities and rehabilitation services as a part of the clinic; (c) A retirement hotel for physically or mentally disabled persons who do not require complete nursing care; (d) A nursing home, and facilities that would provide in home services designed to keep older persons in their homes; (e) A nursing school, or continuing education facility that would provide training for staff for the center, and for other facilities. The center would have a significant research function, allowing a group of older persons to be studied over a period of years. The development would be constructed in four essentially, equal phases. Phases for construction of the geriatrics center have not yet been detailed. Local and state licensing would be required in order to operate many of the proposed functions of the center, and planning for construction of the center would need to be coordinated on an on going basis with the development of the retirement community. No evidence was offered that would specifically compare the proposed retirement community with other such communities. It is apparent, however, that the proposed community would provide a desirable place to live. All residences would border either a lake or golf course, and good recreational facilities would be immediately accessible to all residents. The project has been designed in order to maintain open spaces, with as much as seventy five, percent of the area remaining open. The primary benefit that the development would offer is the proposed center for geriatric medicine. The center is a primary altruistic goal of the Developer. The Developer has consulted eminent experts about the proposed center, and the center could provide a means for conducting significant research into illnesses of the elderly, and as a facility for training persons to treat illnesses of the elderly. Florida has a particular need for such an institute, and none of the medical schools in the state presently provide it. Although much is known about the needs for medical care of the elderly, a broader treatment concept has not been adequately developed. Old people are constantly fearful of becoming dependent, and they dread loneliness and bereavement. They have anxiety about spending their last days in a nursing home. The proposed center would address these problems by recruiting sensitive health care personnel, and providing a total care program for residents of the proposed community. Elderly persons require a continuum of care. Institutionalization of older people should be deferred as long as possible. There is a need to develop health services that can be delivered directly to the home. When it becomes necessary to institutionalize older persons, the proposed geriatrics center would accomplish it in a facility near to where they have lived, and to where their friends continue to live. Persons too fragile to stay in their own homes could live in the proposed hotel, and maintain personal relationships and community activities. Such a center as is being proposed would not have to be constructed in connection with a housing project, but it would be helpful to do so. Study would be facilitated due to the ready availability of a group of appropriate persons. The research that could be conducted could provide vital information about diseases of the aged. Some evidence was offered that tends to show that the Respondent may have some difficulty in obtaining all of the pertinent licenses that he will require in order to operate all facets of the proposed center. The evidence does not establish that the center is an impractical goal, but that ongoing planning that accounts for needs of the entire region is necessary. The Developer's motivations are clearly good. He is in part motivated by his own experience in dealing with an aged mother. He is not interested in developing the retirement community unless the center for geriatric medicine can also be developed. With appropriate planning the facility can become a reality, and would be a significant benefit to Palm Beach County, the region, the State of Florida, and indeed to society as a whole. The Fox Property is presently undeveloped. Human activities have had an effect on the property, but the property remains in an essentially natural condition. The property has been diked on all four sides by persons other than the Respondent. These dikes effect the flow of water across the property. While the evidence does not conclusively reveal whether the property has become drier or wetter as a result of human activity surrounding it, the present state of the property leads to a finding that its condition has not changed drastically in many years. The property may now be wetter than it was at some given instant in the past, or it may be drier. What is apparent is that the property has consistently maintained a degree of wetness that would support submerged or emergent vegetation, and that it has provided habitat for wildlife that thrive in transitional areas. Expert witnesses, who testified at the hearing, agreed as to the present characteristics of the property, but their testimony conflicted sharply in characterizing the condition as wet or dry, or as high quality or low quality wildlife habitat. Ecologists have reached no unanimous consensus in defining the term "wetland". The most generally accepted definition has been proposed by the United States Fish and Wildlife Service of the United States Department of the Interior in a "Draft of Interim Classification of Wetlands and Aquatic Habitats in the United States." The definition is as follows: Wetland is land where an excess of water is the dominant factor determining the nature of soil development and the types of plant and animal communities living at the soil surface,. It spans a continuum of environ- ments where terrestrial and aquatic systems intergrade. For the purpose of this classification system, wetland is defined more specifically as land where the water table is at, near, or above the land surface long enough each year to promote the formation of hydric soils and to support the growth of hydrophytes, as long as other environmental conditions are favorable. Permanent flooded lands lying beyond the deep water boundary of wetlands are referred to as aquatic habitats. The definition is compatible with the definition developed by other entities including the United States Corps of Engineers. The definition is also compatible with the Florida Department of Environmental Regulation system of classifying areas as submerged, transitional, and upland. Transitional areas within the Department of Environmental Regulation criteria would be classified as wetlands under the Fish and Wildlife Service definition. Wetlands have commonly recognized ecological values. These values are applicable to all wetlands, varying in quantitative and qualitative degree. In order of importance these values are as follows: First, wetlands provide habitat for an enormous array of plant and animal species, which cannot survive without such a habitat. Many endangered and threatened species require wetland habitats. They have become endangered or threatened because their realm has been diminished. Second, wetlands serve to remove and store excesses of certain elements from the environment. As a result of agricultural activities and as a result of large scale usage of fossil fuels, nitrogen and sulfates have become generally excessive in the environment. Wetlands serve a filtering and storage function for these potential pollutants. Third, wetlands serve an important water quality function. In periods of heavy rainfall wetlands serve to store and slowly release waters. Wetland vegetation serves to filter excess nutrients, from rainfall and from runoff, especially phosphorus and nitrogen. Fourth, wetlands are extremely productive in biological terms. Wetland vegetation takes in nutrients, and causes a net production of oxygen in the process of respiration. On a global, and even on a local scale, wetlands can thus be very important to air quality. Fifth, wetlands have an important impact upon the climate. Stored water in wetland areas maintains a warmer climate in areas surrounding the wetland. Wetlands also serve to fuel rainfall in an area. These wetland attributes apply to all wetlands in varying degrees, and do not apply as profoundly to other ecosystems. In addition to these values, wetlands serve an important food producing function since they serve as breeding grounds for fish, have important esthetic and recreational value, and have research and educational importance. Preservation of wetland areas has become an important environmental concern because there has been a very large loss of wetland areas to development. It has been estimated that more than one third of all wetlands in the United States, and more than half of the wetlands in Florida have been drained. Utilizing the Fish and Wildlife Service definition, from 900 to 1400 acres of the 1705 acre Fox Property can be classified as wetland. Only approximately 60 acres of the tract is aquatic, in other words wet at all times. Other areas are, however, sufficiently dominated by an excess of water to fall within the Fish and Wildlife definition. The Fox Property is not without human influence. The dikes which surround the property have effected the flow of water. "All terrain vehicles" have crossed the area and left their tracks. In some locations this vehicle use has been sufficiently significant that trails have been identified. There has been considerable hunting in the area. Some trash has been dumped, particularly in the areas adjacent to Okeechobee Boulevard. Trees have been removed, and potholes left in their place. In the area south of Okeechobee Boulevard it is apparent that there was considerable agricultural usage in the past which has affected the land. It is also apparent that there has been burning, although not to the extent that the ecological viability of the area has been violated. Exotic pest plants have infiltrated portions of the property. Melaleuca is the most dramatic of these. In small areas of the property melaleuca has become the dominant vegetation. Over a period of time melaleuca will tend to dry out a wetland, but the process is a lengthy one, which may take centuries to complete. Large airplanes fly low over the property disturbing the area with loud noises. Despite these intrusions, the Fox Property is dominated primarily by natural as opposed to human caused conditions. Nine hundred to fourteen hundred acres of the Fox Property display high or moderate wetland values. The remainder of the property displays low wetland values. Some parts of the property display outstanding wetland values. The most significant wetland attribute displayed by the Fox Property is the wildlife habitat that it provides. The habitat on the property is quite varied, and that contributes to its importance for wildlife. Several species on the Florida Game and Fresh Water Fish Commission "Threatened Species List" were actually observed on the property. These are the American alligator, the Florida great white heron, the osprey, the southeastern kestrel, the audubon's caracara, and the Florida sandhill crane. Several species on the Florida Game and Fresh Water Fish Commission "Species of Special Concern List" were also observed. Wildlife on this list are considered to be not as threatened with extinction as those on the "Threatened Species List", but nonetheless of concern. Observed were the little blue heron, the great egret, the snowy egret, the white ibis, the Cooper's Hawk, and the roundtail muskrat. Several other species on these lists thrive in such habitats as the Fox Property, and potentially could be there. The Florida Endangered Species List promulgated by the Game and Fresh Water Fish Commission constitutes species, that are in eminent danger of becoming extinct. None of these species were actually observed on the Fox Property, but the Fox Property provides viable habitat for the wood stork, the Florida Everglade kite, the red cockaded woodpecker, the, Florida grasshopper sparrow, and, the Florida panther. The Everglade kite, the red cockaded woodpecker, and the Florida panther are also on the Federal Endangered Species List. It is because of loss of habitat that these species are of concern, or are threatened, or are endangered. The Fox Property lies adjacent to a wetland area known as the Loxahatchee Slough. This is a major north south surface water drainage basin in eastern Palm Beach, County. Surface water moves across the Slough to the north, feeding the Loxahatchee River, or to the south into what is known as Conservation Area One within the Loxahatchee Preserve. The Fox property is in effect the western boundary of the Slough. The Loxahatchee Slough is a wetlands ecosystem. The Slough, and the National Wildlife Refuge, which surrounds and encompasses it, amount to 145,635 acres. This is primarily wetland. There are other viable wetland areas in the vicinity of the Fox Property which encompass as much as 850,000 acres. The fact that extensive wetlands are near to the Fox Property does not, however, lessen the wetland values of the Fox Property. In fact, the adjoining wetlands augment the wetland values that can be ascribed to the Fox Property, especially in terms of the property's importance to endangered wildlife. The proposed development would include a lake with an area of more than 490 acres. The lake system would provide viable habitat for the Florida alligator, but not for the other species discussed above, except perhaps as an occasional feeding area. These species are becoming scarce because their available habitat is shrinking. They are reclusive, and do not flourish in human residential areas. If the proposed development is approved, the Fox Property will effectively be obliterated as a viable wildlife habitat for many species, including some whose existence is threatened. The proposed lake system would also not perform other important wetland functions to the extent that the Fox Property now does so. The TCRPC has contended that the proposed development would have an adverse impact upon water quality in the region. This contention has not been supported by the evidence. It is apparent that the lake system will not serve the water purifying function that the Fox Property as a viable wet land presently serves. It does appear from the evidence, however, that the lake system can be maintained in such a manner as to not cause an adverse impact upon water quality. One witness testified that the lake is likely to suffer from algal blooms in part because it would be overloaded with phosphorus. This testimony did not, however, consider the effect that the swale system proposed by the Developer will have in filtering phosphorus from runoff which will enter the lake system. The testimony reveals that artificial lakes in the South Florida area have frequently been plagued with poor water quality. It is apparent that if the proposed lake were not properly maintained, its water quality could seriously deteriorate. With proper management, however, good water quality could be maintained. The evidence presented respecting the impact of the proposed development in environmental terms related solely to the proposed development. Whether less ambitious developments could be undertaken on the property without damaging the wildlife habitat or the wetland values was not addressed, and would not have been relevant.
The Issue The issue is whether the plan amendment adopted by Manatee County (County) by Ordinance No. 10-02 on October 12, 2010, is in compliance.
Findings Of Fact The Parties The County is a governmental entity and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the amendment being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The parties have stipulated that Petitioners own real property in the County in close proximity to the property whose land use is being changed and that they submitted oral or written comments to the County during the adoption process. Intervenors own the subject property, which consists of two adjoining parcels located northwest of Bradenton in an unincorporated part of the County between 17th Avenue Northwest and 9th Avenue Northwest, approximately 600 feet east of 99th Street Northwest, and just south of the Manatee River. The site is more commonly known as the Robinson Farms. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons. Background In 1981, the County adopted its first comprehensive plan, which assigned a land use on the subject property allowing 4.5 dwelling units per acre. In 1989, the County updated its original plan and designated the property RES-1, which allows a density of one dwelling unit per acre. The RES-1 land use has remained in effect since that time. In 1997 an application by the prior owners to change the land use to RES-3 was denied. See Joint Ex. 8. The northern part of the property is currently vacant, while the southern part is vacant except for an existing single- family residence and barn. The land is used for agricultural purposes. It lies just west of, and adjacent to, several other residential subdivisions. The property to the west of the site has land uses of Agriculture, RES-1, or Conservation. Compatibility is not an issue in this case. On September 11, 2009, Intervenors filed an application with the County Planning Department seeking a change in the land use of their approximately 49-acre tract of property from RES-1 to RES-3. The proposed change would allow an increase in density on the property from one to three dwelling units per acre. The application was numbered PA-10-02 and was assigned Ordinance No. 10-02. A public hearing on the proposed change was conducted by the County Planning Commission on March 11, 2010. By a 5-2 vote, that entity recommended that the amendment be forwarded to the Board of County Commissioners (Board) for its consideration. See Joint Ex. 10, p. MC 001126. On March 16, 2010, the Board conducted a hearing on the proposed amendment and voted 5-1 to transmit the amendment to the Department, along with other 2010 Cycle 1 amendments. Id. at p. MC 001120. Shortly after the amendment was transmitted to the Department, the TBRPC completed its preliminary work on the preparation of a new Storm Tide Atlas (Atlas). The Atlas is a multi-volume public safety planning tool used to assist with hurricane evacuation planning in a four-county region in the Tampa Bay area, including Manatee County. Among other things, it reflects storm surge data (i.e., water heights) based upon the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) model developed by the National Oceanic and Atmospheric Administration National Weather Service. The information in the Atlas is vital to public safety since it predicts storm surge heights during hurricanes. Based on data from the SLOSH, the TBRPC prepares, and includes in the Atlas, storm tide zone maps for the Tampa Bay area, which depict the landward extent of anticipated storm surge for each of the five categories of storm events. The Atlas does not, however, depict the Coastal High Hazard Area (CHHA) or hurricane evacuation maps prepared by each local government.1 The data underlying the storm tide zone maps are used by local governments to assist them in preparing the CHHA, Coastal Evacuation Area (CEA), and Coastal Planning Area (CPA) maps in their comprehensive plans. The CHHA and CEA maps generally, but not always, encompass the same areas and for all practical purposes are the same. This is because the Plan definition of a CEA refers to the statute that defines the CHHA. See Joint Ex. 1, Vol. 1, p. MC 00053. Also, Future Land Use Element (FLUE) policy 2.2.2.4.1 defines the CEA in relevant part as "the geographic area which lies within the evacuation area for a Category 1 hurricane." Id. at p. 000140. The CPA is defined as "[t]hose portions of Manatee County which lie within the Hurricane Vulnerability Area (evacuation levels A, B, and C), as periodically updated." Id. See also Fla. Admin. Code R. 9J-5.003(57). Based on SLOSH data in the Atlas, hurricane evacuation maps (showing evacuation levels A, B, and C) are prepared by the County's Emergency Management Division (Division) to depict the geographic areas impacted by the five categories of hurricanes, with Evacuation Zone A being the area first evacuated during a category 1 hurricane. Based upon the 2009 SLOSH data, in late 2009, the Division prepared "carefully defined" Evacuation Zone maps, last updated in 2003, and presented them to the Board in April 2010. However, neither the existing CPA map (based on evacuation levels A, B, and C) nor the CEA map (based on the Zone A map) has been updated through the plan amendment process. Even so, the Division's latest Zone A map, given to the County planning staff in April 2010, represents a reasonably accurate depiction of the geographic boundaries of the CEA and evacuation level A of the CPA, based upon the latest and best available data at that time. The Atlas is updated from time to time, in this case because a new SLOSH model was developed in 2009. According to a TBRPC planner, the last SLOSH model for the Tampa Bay Area was developed around 1990. Like the CPA, the Plan requires that the County also update the CHHA and CEA maps "on a periodic basis." However, new information provided by the TBRPC is not automatically incorporated into the County's Plan. Rather, any changes in the maps must go through the large-scale amendment process so that members of the public, and affected landowners, have an opportunity to provide input before adoption. According to the County Planning Director, the new maps should be adopted in 2011 Cycle I or II. See Joint Ex. 10, p. MC 001065. However, in preparation for adoption hearings in June and October 2010 concerning this amendment, the staff prepared "proposed" CHHA and CEA maps based upon the new data provided by the TBRPC and Division, which are a reasonably accurate depiction of the geographic boundaries of those areas. The new Atlas was not adopted by the TBRPC until August 10, 2010; it was formally presented to the public at a meeting on August 26, 2010. However, the underlying data were given to the County and other local governments at a meeting in April 2010. At that time, the staff knew that new evacuation maps were being developed, but did not know the precise impact these changes would have on Petitioners' property. Based upon proposed maps prepared by staff, which in turn are based on information in the new Atlas, except for 4.68 acres in the northeastern portion of the site, the remainder of Petitioners' property would be within the predicted storm surge for a category 1 storm event (the CHHA), while the entire site would be within the Evacuation A and evacuation level A areas of the CEA and the CPA. See Joint Ex. 9; Petitioners' Ex. 10. On May 21, 2010, the Department submitted its Objections, Recommendations, and Comments (ORC) report to the County. See Petitioners' Ex. 4; Joint Ex. 4. The ORC noted that 21.4 acres of the site were within the CHHA and would result in an increase of 43 dwelling units in the CHHA. This observation was made using the current CHHA map in the Plan, rather than a revised CHHA not yet adopted by the County. The ORC noted that this increase in density would be inconsistent with Florida Administrative Code Rule 9J-5.012(3)(b)6., which requires that the Plan "direct population concentrations away from known or predicted [CHHAs]," and internally inconsistent with Coastal Element Objective 4.3.1, which requires that the County "[d]irect population concentrations away from the Coastal Evacuation Area (CEA)." The ORC also stated that the County had failed to demonstrate that the adopted hurricane evacuation time of 16 hours for a category storm 5 could be maintained. It recommended that the amendment not be adopted, or that the change in land use be restricted to that portion of the site outside the CHHA. Id. at p. 5. The TBRPC also reviewed the amendment and found it to be consistent with its Strategic Regional Policy Plan. See Joint Ex. 4. Although the TBRPC staff report was prepared on April 13, 2010, and considered at a meeting on May 10, 2010, it did not make reference to the data being used in the new Atlas but rather relied upon the current CHHA in the Plan. Id. Following the County's receipt of the ORC, Intervenors revised their application by removing the 21 acres within the CHHA and reducing from 49 to 28 the number of acres being changed to RES-3. This would allow a maximum of 105 dwelling units on the 28 acres (as opposed to 147 units if the land use was changed on the entire tract). Notwithstanding this revision, and the fact that new maps had not yet been adopted in the Plan, the County staff report dated June 17, 2010, "took [a] more conservative approach than DCA" and recommended denial of the application on the grounds the new Atlas data showed "the entire proposed site within the [CHHA]," the new mapping information constituted the best available data, and the application should be re-evaluated in light of the new data. See Intervenors' Ex. D. Except for this, the staff concluded that the amendment met all other criteria. On June 17, 2010, the Board conducted a public hearing on the revised application and due to a 3-3 vote, the application was deemed denied. See Joint Ex. 10, p. MC 001104. However, the Board voted to continue its deliberations at another hearing on June 21, 2010, when all seven Commissioners would be present to vote. Id. Because only six Commissioners were present at the June 21, 2010, meeting, the original 3-3 vote was allowed to stand. Id. at p. MC 001095. Pursuant to section 163.3181(4), Intervenors requested a mediation conference in which the County, Intervenors, and two members of neighboring subdivisions participated. That process culminated in an agreement for the applicants to submit additional data and analysis in support of the amendment and for the County to have another public hearing to consider the application. See Joint Ex. 19. Additional information supporting the amendment was submitted by the applicants on September 3, 2010. See Joint Ex. 13. On September 14, 2010, the Board approved the mediation agreement and scheduled a hearing to consider the matter on October 12, 2010, along with the 2010 Cycle 2 amendments which by then were awaiting approval. See Joint Ex. 10, p. MC 001073. At the October 12, 2010, meeting, the staff continued to recommend that the Board deny the amendment based upon the new Atlas data and the staff's proposed CHHA and CEA maps, which show that only 4.68 acres of the site are outside the CHHA, while the entire site is within the CEA (Hurricane Evacuation A). See Petitioners' Ex. 7. By a 4-3 vote, the Board initially denied the application. See Joint Ex. 10, p. MC 001067. Later in the meeting, after one Board member changed her position on the theory that the new Atlas data should not be considered, the Board voted to reconsider its earlier decision, and by a 4-3 vote, approved the map change. Id. at pp. MC 001071-1072. One of the Cycle 2 amendments considered at the October 12, 2010, meeting was CPA 10-18, also known as the McClure amendment, which sought a change in the land use on the McClure property from RES-1 to RES-3. In its ORC dated September 10, 2010, which was directed to that amendment (and other Cycle 2 amendments), the Department noted that a part of the site appeared to be in the CHHA and recommended that the "County should evaluate whether the subject site is within the CHHA based on the latest, best available data and analysis used in the Storm Tide Atlas for Manatee County released by the [TBRPC] on August 26, 2010." Petitioners' Ex. 5, ORC, p. 5. The ORC further recommended that if "a part of the site is within the CHHA, based on the most recent storm tide atlas information, the amendment should not result in any increase in density in that area in order to ensure that population concentrations be directed away from the CHHA." Id. The record is silent as to why the Department opted to use the later data on that amendment, but not amendment 10-02. In any event, following the issuance of the ORC, the County staff evaluated the amendment using the latest TBRPC data, and by a 4-3 vote, the Board adopted the McClure amendment. See Joint Ex. 10, p. MC 001069. However, the final version of the McClure amendment is unknown. The Robinson Farms amendment adoption package was transmitted to the Department for its review. On December 3, 2010, the Department notified the County of its Notice of Intent to find the amendment in compliance. The Notice of Intent was advertised in the Bradenton Herald on December 6, 2010. According to Department counsel, the Department's finding was based on two considerations: the applicants had revised their application as recommended by the ORC; and the County should continue to rely on the existing CHHA map until a new map is adopted in the next major plan amendment cycle. At the adoption hearing, the Board also considered data that show that between now and the year 2015, there will be no hurricane shelter deficit in the County. In addition, if the land use on 28 acres is changed, the plan amendment will only result in an increase of 56 units over what could be built under the existing RES-1 land use. There was no evidence that 56 additional units, occupied by 129 persons (at 2.30 persons per household unit), would adversely impact the hurricane evacuation clearance times for that area of the County or affect public shelter demand. Finally, the area in which the site is located, Subarea 11, is projected to increase by 10,000 persons between 2015 and 2035. The staff report reflects that the amendment will not affect the overall population projections or housing needs for the subarea. The site is located within the Urban Core Area. Policy 2.1.1.3 of the FLUE encourages residential density increases (or infill development) within that area in order to avoid urban sprawl. Finally, the entire area west of 75th Street, West, and north of Manatee Avenue West (in which the subject site is located) consists of 1,927 acres. Since 2006, 580 acres in that area have been changed from RES-1 to Agriculture and Conservation, thus reducing the amount of land available for 580 dwelling units. Petitioners' Objections Petitioners contend generally that the amendment does not react in an appropriate and proper manner to the latest and best available data and analysis because it allows an increase in residential density on land within the CHHA, CEA, and CPA; that there are no data and analysis of need for additional residential development on the property; that the amendment contravenes rule 9J-5.012(2)(e) because there is no inventory and analysis of the projected maximum population density designated on the current FLUM within the Hurricane Vulnerability Zone; that the amendment fails to restrict development in evacuation zone A to protect human life and avoid public expenditures, as intended by section 163.3178(1); and that the amendment is internally inconsistent with FLUE policy 2.2.2.4.5 and Coastal Element policies 4.3.1 and 4.3.1.1, which require that the County prohibit increases in allowable residential density on sites within the CEA and direct population concentrations away from the CEA and CHHA. These allegations generally, but in greater detail, track the objections raised in the ORC and the County's staff report. A plan amendment must be based on relevant and appropriate data. "To be based on data means to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of the adoption of the . . . plan amendment at issue." Fla. Admin. Code R. 9J-5.005(2)(a). As noted above, new and more accurate storm surge data were in existence and available to the County before the amendment was adopted in October 2010. Due to major improvements in technology since the last SLOSH model was prepared, the 2009 model has higher resolution basin data and grid configurations, which means that the predicted storm surge data are far more accurate than data in earlier models. Thus, the new TBRPC data and staff-proposed maps were the best available data on storm surge and coastal flooding at the adoption hearing. While the County and Intervenors are correct that there is no automatic incorporation of TBRPC data into the Plan, when more current and reliable data on the subject are in existence and readily accessible, as they were here, they should be used to evaluate proposed land use changes which would increase density in areas subject to coastal flooding. The Board reacted to the data in an inappropriate manner by assuming that only 21 acres of the property was in the CHHA and that none was located in the CEA. This reaction is not supported by the data. Therefore, the plan amendment is not based upon relevant and appropriate data and analysis as required by rule 9J- 5.005(2). Paradoxically, at the same meeting when the vote on Amendment 10-02 was taken, the Board evaluated the FLUM map change for the McClure property using the latest TBRPC data. All of the Robinson Farms property lies within the predicted CEA. Policy 2.2.2.4.5(a) of the FLUE applies to all development activity within the CEA Overlay District, which is an overlay based upon the CEA boundaries. It "[p]rohibit[s] any amendment in the [FLUM] which would result in an increase in allowable residential density on sites within the [CEA]." It is beyond fair debate that the plan amendment is internally inconsistent with this policy since the amendment would result in allowable residential density on a site within the CEA. Except for 4.68 acres, the entire site lies within the predicted CHHA, while the entire site is within evacuation level A of the CPA. Coastal Element policy 4.3.1 requires in part that the County "[l]imit development type, density and intensity within the [CPA]." It is beyond fair debate that the amendment is internally inconsistent with this policy since it does not limit development type and density within the CPA. Coastal Element policy 4.3.1 requires that the County "direct population and development to areas outside the [CHHA] to mitigate the potential negative impacts of natural hazards in this area." Also, Coastal Element policy 4.3.1.1 requires that the County direct population concentrations away from the CEA. Although not relied upon by Petitioners, but cited in the ORC, these two policies track rule 9J-5.012(3)(b)6., which requires that the local government "[d]irect population concentrations away from known or predicted coastal high-hazard areas." Here, the plan amendment would allow an increase of 56 dwelling units in the CHHA and CEA that would be occupied by 129 additional residents. Whether these increases in population and development trigger rule 9J-5.012(3)(b)6., or bring into play the two policies in the Coastal Element, was not fully addressed by the parties. However, the Department's ORC indicates that if 43 dwelling units are added to the CHHA, these provisions would be applicable. See Petitioners' Ex. 4, ORC, p. 5. Because the CHHA and CEA are designed to minimize development in areas subject to coastal flooding in order to protect lives and property, thus implicating vital safety concerns, the proposed increase in development (56 additional units) and population (129 persons) within the CHHA and CEA is the type of development and population concentration contemplated by the rule and policies. Because the amendment fails to follow the dictates of those provisions, it is beyond fair debate that the amendment is internally inconsistent with these two policies. (Had rule 9J- 5.012(3)(b)6. been relied upon by Petitioners, a finding of inconsistency with the rule would also be appropriate.) The County's policy is to encourage infill development within the Urban Core Area so as to avoid urban sprawl. See FLUE policy 2.1.1.3. The subject property lies within the Urban Core Area. The proponents of the plan amendment contend that when this policy is weighed against the conflicting policies directing population concentrations away from the CHHA and CEA, the County has the flexibility to consider the Plan as a whole and approve an increase in density in the RES-1 and RES-3 areas located in the Urban Core Area, even if that property lies within the CHHA or CEA. See Joint Ex. 1, Vol. I, § C.2.1.2, pp. MC 000018-000019. Given the significant risk to life and property that arises during natural disasters such as hurricanes, however, the infill policy should not trump conflicting Plan provisions that limit development and population in these high-risk areas. Petitioners also contend that the plan amendment is inconsistent with rule 9J-5.012(2)(e), which requires that the County make an inventory and analysis of the projected maximum population density on the current FLUM within the Hurricane Vulnerability Zones of the County. The Atlas contains an inventory and analysis of population in the County by evacuation level for the years 2010 and 2015. See Joint Ex. 3, Exec. Summary, p. 9. No evidence was submitted to show that this information in the Atlas is inaccurate or otherwise fails to satisfy the purpose of the rule, simply because it was prepared by the TBRPC, rather than the County. It is fairly debatable that the plan amendment is consistent with the rule. Petitioners also assert that the plan amendment violates section 163.3178(1) because it increases residential density within the CHHA and Hurricane Vulnerability Zone, a result which does not protect human life and coastal resources, or limit public expenditures in areas subject to destruction by natural disaster. Subsection (1) expresses the legislative intent of the entire statute. It is doubtful that an expression of intent, as opposed to specific requirements in other portions of the statute, would serve as a basis to find an amendment not in compliance. In any event, there is insufficient evidence to support a finding that it is beyond fair debate that the proposed development would "damage or destroy coastal resources." Also, the property is within the Urban Core Area, which is already served by existing infrastructure. If further infrastructure is needed for development purposes, Intervenors' planner represented at hearing that the owners would be responsible for those costs. It is fairly debatable that the plan amendment is consistent with the statute. Finally, Petitioners contend that there are no data and analysis of need for additional increases in residential density, as required by rule 9J-5.006(2)(c)2. and 3. The two subparagraphs require that there be an analysis of the amount of land needed to accommodate the projected population, including "the estimated gross acreage needed by category," and "a description of the methodology used." A revised analysis of impact on population projections to meet housing needs was incorporated into the staff report presented at the adoption hearing in October 2010. See Joint Ex. 9, p. MC 00974. The analysis generally reflected that based on land development approvals and development patterns within Subarea 11 (where the subject property is located), the Subarea can easily accommodate the estimated increase in population between the years 2015 and 2035. Although the analysis is brief, it is sufficient to support a finding that it is fairly debatable that the amendment is consistent with rule 9J-5.006(2)(c)2. and 3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Determination of Non-Compliance regarding Plan Amendment 10-02 adopted by Ordinance No. 10-02 on October 12, 2010. DONE AND ENTERED this 13th day of April, 2011, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2011.
The Issue The issue for determination is whether the comprehensive plan adopted by Escambia County is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes.
Findings Of Fact PARTIES DCA is the state land planning agency charged under Chapter 163, Part II, Florida Statutes, with the review of comprehensive plans and plan amendments under Florida's Local Government Comprehensive Planning and Land Development Regulation Act (the Act). Final agency action with regard to plans and plan amendments found not in compliance by DCA is taken by the Governor and Cabinet, acting as the Administration Commission, in accordance with Section 163.3184(10), Florida Statutes. Respondent, Escambia County, is a local government required to adopt a Comprehensive Plan under the Act. The following intervenors filed petitions challenging portions of the plan: League of Women Voters of the Pensacola Bay Area, Inc.; Dorothy Kaser; Joseph Grizzaffi, Jr.; Anneice Grizzaffi; Francis M. Weston Audubon Society; Gabrielle Faddis; James Lane; Jacqueline Lane; and Vivian Faircloth. The following intervenors filed petitions in support of the plan: Homebuilder's Association of West Florida, Inc., Michael Blanton and Escambia Construction, Inc.; Highland Development Group, Inc.; Edwin Henry and Henry and Co., Inc.; and E.J. Gibbs. Prior to commencement of the hearing Highland Development Group, Inc. withdrew its petition to intervene. As a result of stipulation of the parties, no objection is raised to the participation of the remaining parties who are intervenors on behalf of Respondent. STANDING OF THE PARTIES In order to intervene in this proceeding, the requirements of Section 163.3184(1)(a), Florida Statutes, must be met. First, the intervenor must be an "affected person" as defined by that section. Second, the intervenor must have submitted oral or written objection during the local government "review and adoption proceedings." The local government "review and adoption" period is the period of time which runs from the issuance of DCA's Objections, Recommendations and Comments Report (the ORC Report) and the adoption of the plan. In the instant case this period of time commenced on August 10, 1990, the date of the ORC Report, and ended on October 8, 1990, the date of the plan's adoption. The League of Women Voters of the Pensacola Bay Area, Inc. (the League), is a local chapter of the League of Women Voters. Gloria Dawson, former president for the League, spoke on behalf of the League before the Board of County Commissioners September 17 and 24, 1990, and expressed concerns and opinions regarding the County's proposed plan. Between August 10, 1990, and October 8, 1990, the League also provided written comments to the County concerning the plan. Many members of the League, including Gloria Dawson, Vivian Faircloth, Muriel Wagner, Dorothy Faddis, are residents of Escambia County; several members reside in the unincorporated area of the County. Dorothy Kaser resides and owns property in Escambia County. She was a member of the Planning Board, the County's local planning agency pursuant to Section 163.3174, Florida Statutes, from 1988 to December 1990. Through her duties as a Planning Board member Ms. Kaser provided written and oral comments to the Board of County Commissioners regarding the comprehensive plan. Her comments were stated at Planning Board meetings during the local government review period, and were incorporated in the final Planning Board recommendation which was forwarded to the Board of County Commissioners for final approval and adoption. Joseph Grizzaffi, Jr., and Anneice Grizzaffi are married and reside and own property in Escambia County. During the local government review period the Grizzaffis spoke on August 23,1990 to the Board of County Commissioners, impaneled as the Zoning Board, concerning mixed use categories, leapfrog development, and strip commercial development. The Grizzaffis made these comments in opposition to a rezoning request, but also as part of the larger planning scheme involving the comprehensive plan. The Grizzaffis were under the impression given by the Public Participation Procedures and the conduct of one of the commissioners at the August 23 meeting that comments concerning the plan could be directed to either the Board of County Commissioners or the Zoning Board. The Frances M. Weston Audubon Society is a local chapter of the National Audubon Society (Audubon). Gabriel Faddis spoke about issues concerning the comprehensive plan on behalf of Audubon before the Board of County Commissioners on August 31 and September 24, 1990. Ms. Faddis represented Audubon at these meetings at the request of the Chapter's president. James and Jacqueline Lane reside and own property in Escambia County. During the local government review process, neither of the Lanes provided the County any oral or written comments concerning the plan. Although the Lanes attended the adoption hearing, neither of them offered any comments because they felt it was "pointless." In their opinion, the period of time between the ORC Report and plan adoption was dedicated by the County to entertaining land use changes as opposed to constructive criticism or comments from the public. Vivian Faircloth is a resident of Escambia County and an officer of the State League of Women Voters. Ms. Faircloth commented on the plan to the Board of County Commissioners on September 24, 1990. At that time she made it clear that she was speaking on behalf of herself, not the League, which was officially represented at the same meeting by Gloria Dawson. DCA was not requested by the County to attend the plan adoption public hearings which were conducted on October 5 and 8, 1990. COUNTY BACKGROUND The most western county in the Florida Panhandle, Escambia County is bordered on the east by the Escambia River, on the west by the Perdido River, on the north by the State of Alabama, and on the south by the Gulf of Mexico. It is comprised of approximately 430,661 acres. According to the plan's data and analysis, the population for the unincorporated portion of the County is estimated and projected as follows: 1990 232,271 1995 249,623 2000 263,150 There are only two incorporated municipalities within the County: Pensacola and Century. These municipalities have drafted and adopted their own plans. The City of Pensacola is an urban area in the southeast portion of the County with a population of approximately 62,036 persons; Century is a rural community in the northern portion of the County with a population of 2,664 persons. Approximately 95 percent of the County's population resides in the area of the County which extends from Pensacola to the middle of the County. Escambia County has an abundance of valuable water resources including Pensacola Bay, Perdido Bay, Escambia Bay, Escambia River, Perdido River, Bayou Chico, and Bayou Texar. The County's surface water resources can be divided into four drainage basins: the Escambia River Basin, Pensacola Bay Basin, Perdido Bay Basin, and Perdido River Basin. The County also has significant wetland areas, particularly along the rivers, in the Southwest portion of the County and in the coastal areas. In 1984 the Governor and Cabinet, sitting as the Administration Commission, designated the lower portions of Escambia and Santa Rosa counties a resource planning area pursuant to Section 380.045, Florida Statutes. This designation arose from concern about development damaging coastal dunes and wetland areas. The purpose of this designation was not to stop growth in this area, but to evaluate the ability of the local governments to protect the environment through comprehensive planning and land development regulations. The evaluation was conducted by the Escambia-Santa Rosa Counties Coastal Resource Management Planning Committee, which produced a report containing numerous recommendations that were approved by the Governor and Cabinet. In his November 24, 1984 charging letter to the committee, Governor Graham specifically asked it to evaluate the adequacy of resource protection, particularly for coastal dunes, wetland areas, and the estuarine resources of the various bay systems in the study area. Historically the County has been reluctant to plan development. To date not all of the unincorporated areas of the County are subject to zoning regulations. The County did not have any zoning in the unincorporated area of the County until adoption of its Zoning Ordinance in 1989, which zoned the southern part of the County from what is known as Ten-Mile Road south to the coastal edge of the County. The County presently has two zoning ordinances of limited scope which were adopted only after intervention from the State. One of the zoning ordinances applies to the limited area surrounding the University of West Florida, a state-funded university. The University of West Florida zoning ordinance was adopted at the insistence of the State, which did not wish to invest in an unplanned area, prior to the construction of the university. The Urban Land Use Regulation Ordinance, which applies to the area south of Ten Mile Road, was adopted at the request of the Escambia-Santa Rosa Counties Resource Protection Management Committee as a first step towards planning future development. HISTORY OF THE PLAN The County contracted with the West Florida Regional Planning Council (RPC) to draft proposed goals, objectives and policies; compile support data and analysis; and provide technical assistance in the preparation of the plan. The RPC also drafted a Future Land Use Map after the ORC Report was issued. This map was not adopted by the County. The key person involved with the preparation of the plan was Robert Koncar, Assistant County Administrator. Although the County has a planning staff housed in the Department of Planning and Zoning, the County's planners were not involved in the preparation of the plan. Koncar personally revised the goals, objectives, policies and the Future Land Use Map Series which had been developed by the RPC. The County's land development regulations were due to be adopted by May 1, 1991. Those regulations were not adopted on schedule, nor was the Concurrency Management System which the County affirmatively committed to adopt in Capital Improvements Policy 1.3.7 of the plan by May 1, 1991. The proposed plan was received by DCA on May 1, 1990. DCA issued its ORC Report on August 10, 1990. The County held public hearings on the adoption of its plan on October 5 and October 8, 1990. During the course of these public hearings the County considered numerous applications for land use changes. These changes applied to designations on the Future Land Use Map series. The application forms for land use changes simply requested information as to the location of the property and desired use. No explanation or data and analysis was required of an applicant to justify a land use change. No data and analysis was submitted by the County to DCA to support these land use changes. The proposed plan originally did not include planning for Pensacola Beach and Navarre Beach. The proposed Santa Rosa Future Land Use Sub-element (Santa Rosa Sub-element) was submitted to DCA after submittal of the proposed plan. The Sub-element was prepared later by a different consultant, the Strategic Planning Group, following DCA's objection to Santa Rosa's exclusion from the plan. DCA reviewed the proposed Santa Rosa Sub-element and its data and analysis later and issued a separate ORC Report based on it. On October 8, 1990, the Escambia County Board of County Commissioners adopted Ordinance 90-18 which by reference adopted the Goals, Objectives, and Policies of the Comprehensive Plan and the Future Land Use Map or Map Series. On November 30, 1990, DCA issued its Statement of Intent to find the plan to be not in compliance. In 1991 the legislature adopted Chapter 91-310, Laws of Florida, which altered the boundary line between Escambia County and Santa Rosa County so that Navarre Beach is now in Santa Rosa County. SANTA ROSA ISLAND AUTHORITY One of the unusual physical features of Escambia County is Santa Rosa Island, a coastal barrier which stretches from the eastern half of the County to Walton County. The County acquired 20 miles of the western-most portion of the Island by deed from the federal government in 1946 to be used in the public interest subject to regulation by the County, whether leased or not. A substantial part of the Island was given back to the federal government to be used as part of the National Seashore. The deed specifically prohibits the County from selling any part of the Island. The remainder of the County's portion of the Island was either placed under the control of the Santa Rosa Island Authority (SRIA) or leased to Santa Rosa County. The SRIA was established by special act in the 1950's to administer the County's portion of the islands. The SRIA is governed by a board consisting of one member selected by each of the five County Commissioners and one member elected by residents on the Island. The Authority has an executive director and permanent staff of approximately 60 employees. Beginning in the 1950's, the SRIA disposed of the property under its control by entering into standard 99-year leases with automatic 99-year renewals. These leases are for commercial and residential properties and generally authorize the construction of development on the parcels up to a certain intensity of use or density. More current commercial leases for other than hotel purposes are generally for shorter periods than 99-year terms. The leases are not subject to a bidding process or other competitive public process. They are negotiated with private individuals on a case-by-case basis. The rent provided for in the lease has no relationship to the market value of the property. The term of the leases has no relationship to the need to amortize an investment. Very few of the parcels subject to leases for multiple-family use on Pensacola Beach have been built to the maximum density provided for in the lease; yet, most of those uses are earning a profit. The data and analysis, and goals objectives and policies, relating to Santa Rosa Island were done under the assumption that the outstanding leases are enforceable over the police powers of the County. The portions of the plan relating to Santa Rosa Island were designed to take those leases into account. If a "carrying capacity" analysis of the island had been done, a completely different result would have been recommended by the consultant. No effort has been made by the County or the SRIA to challenge the validity of the leases or to enter into a program to minimize the number or term of the leases. In fact leases are still being executed by the SRIA with no information about how the rent relates to the fair market value of the property. In 1985 the County issued a series of revenue bonds to pay for improvements on Pensacola Beach. The revenues which were pledged for repayment included anticipated lease payments from new lessees. The number of units actually built since 1985 has been a mere fraction of the ones anticipated in the bond documents. Yet the debt service on the bonds has been kept current, and existing revenues will be sufficient to maintain those payments into the foreseeable future. The SRIA generates no funds for Escambia County government, and the leases are not subject to ad valorem taxation. EFFICIENCY OF LAND USE AND THE FUTURE LAND USE MAP As early as its 1980 Comprehensive Plan (1980 Plan), the County acknowledged predominant land development patterns in the unincorporated area characteristic of two types of sprawl: The random development pattern and the corridor pattern. These development patterns resulted from past policies of minimum planning, lack of development coordination and absence of land use or zoning controls in the County except for the areas around the University of West Florida. That area, under the University of West Florida Land Use Regulations, exhibited orderly growth in contrast to other parts of the County. The corridor pattern of growth along the major transportation routes had become an increasing trend in Escambia County in the 1980's as the urbanized area spread outward to the north and west. Even though these patterns of development were criticized in the 1980 Plan, they are still characteristic of the types of development which currently exist in the County and are encouraged by the land use designations on the Future Land Use Map. The 1980 plan noted that the random development, or leapfrog pattern, was characterized by low density residential clusters in the urbanized areas of the County surrounding the City of Pensacola with scattered intermittent commercial and mixed uses along the major transportation routes radiating out from the urban areas. The random or leapfrog growth pattern, characterized by intermittent, developed clusters and undeveloped open spaces, produces low tax revenue per acre of land, a very high cost of providing services and facilities to the scattered clusters, and little incentive for fill-in development in the vacant areas. Generally speaking, single-family residential property does not generate sufficient ad valorem tax revenue to pay the costs of providing public services to the property, especially when sprawling patterns make those services more expensive to provide. Sprawling development patterns impose additional costs, such as increased utility costs and lower levels of service on roads, some of which may be offset by reduced land costs. However, accommodating such patterns through the provision of public services like law enforcement, emergency response, water and sewer, and public schools, also tends to result in the subsidization of inefficient development patterns by residents who live or do business in areas characterized by a mixture of functionally related uses. These costs are of increasing significance to County governments in rapidly growing areas like Florida because residents of unincorporated areas are increasingly demanding a level of public services that used to be enjoyed only by residents of incorporated municipalities. Requirements that a plan be based on data and analysis, protect natural resources, maximize use of efficient infrastructure, and be financially feasible, are related in the sense that a plan which discourages sprawl is more likely to accomplish these planning objectives as well. The term "urban sprawl" as it appears in Chapter 9J-5 is used to describe certain kinds of growth or development patterns. It refers to scattered, untimely, poorly planned urban development that occurs in urban fringe and rural areas, and frequently invades lands important for environmental and natural resource protection. Urban sprawl typically manifests itself in one or more of the following patterns: (1) leapfrog development; (2) ribbon or strip development; and (3) large expanses of low- density, single-dimensional development. Leapfrog development occurs when new development is sited away from an existing urban area, bypassing vacant parcels located in or closer to the urban area that are suitable for development. It typically results in scattered, discontinuous growth patterns in rural areas which are frequently not appropriate for urban development. Leapfrog development may occur due to the lower cost of land outside the urban area compared to the cost of developable land in the urban area. This can occur when plans fail to address the timing of development in addition to its location. Leapfrog development commonly occurs in areas where infrastructure and services do not already exist to serve it; thus, it requires additional utility extensions and involves higher public capital costs if complete urban services are to be provided at the time of development. If complete urban services, such as connection to central water and sewer systems, are not required, leapfrog development may still present an increased risk to water supplies and sensitive environmental areas. Leapfrog development is not usually mixed-use, multi-dimensional development. Consequently, it works against the creation of vibrant communities, creates much greater dependence on automobile transportation, and results in an inefficient use of land resources. Strip or ribbon development involves the location of high amounts of commercial, retail, office and often multi-family residential development in a linear pattern along both sides of major arterial roadways. Strip development is generally dependent on direct access to the arterial roadway and typically reduces the efficiency of the roadway for moving through traffic due to the high number of curb and median cuts and access points which must be permitted. Strip development frequently overburdens arterial roadways with local trips since local road networks remain poorly developed or nonexistent. Unsightly strip development can extend for miles along arterials into rural, previously undeveloped areas, and sometimes encroach on environmentally sensitive lands or important natural resource areas. Large land areas behind and between strip developments are commonly left undeveloped. Low-density, single-dimensional development consists of single land uses, typically low-density residential, spread over large land areas. Frequently, the land is in rural, forestry, agricultural, or environmentally sensitive areas that may require protection from urban development. This land-intensive development pattern, stemming from uncontrolled, poorly planned, and premature development, tends to place an undue burden on external infrastructure and major transportation connectors by not providing a complementary mix of residential, commercial, industrial, recreational and institutional uses. Sprawling single-use development hinders the evolution of vibrant communities, reinforces dependence upon personal automobile use, generates higher public costs for facilities and services, promotes an inefficient use of developable land, and frequently destroys significant environmental and natural resources. Allowing low-density development on large expanses of land also frequently precludes development or redevelopment at the higher densities that become appropriate as the urban or urbanizing area grows. The resulting growth pattern encourages leapfrog development. If redevelopment of these low-density areas to higher intensities does occur, the costs to expand public facilities and services will commonly be substantially higher than would have been incurred to provide the infrastructure capacities that would have been appropriate initially. Plans which fail to discourage urban sprawl often over-allocate land uses, especially residential uses, and designate areas for development which are not suitable, such as wetlands, floodplains, poorly drained soils and aquifer recharged areas. An unregulated land development environment is usually unsuccessful in bringing about truly efficient land development patterns because such a market does not force a developer or land consumer to pay the true, full economic costs of land development. Hidden subsidies may arise from a failure to impose marginal cost pricing of utilities, failure to establish special taxing units to reflect actual costs of parties' utilities, and failure to assign costs to destruction of natural resources like wetlands and aquifer recharge areas. Sprawling development patterns also adversely impact agricultural operations in that such patterns may cause land use conflicts by encouraging farmers to abandon reinvestment in their farm operations and begin looking to sell their land. The Escambia County plan greatly over-allocates residential land uses. This over-allocation is not based on data and analysis. Generally, the number of developable acres designated for use over the 10 year planning period should be only slightly larger (25 percent) than the number of acres needed for that particular land use. Using the County's own assumption regarding densities, approximately 18,841 acres will be required to meet residential needs, excepting agricultural and agricultural/timber categories. The plan allocates total acreage of 122,980, or more than five times the land supply needed for this purpose. The plan allocates 8,881 acres for commercial and industrial purposes in the face of assumed need for only 4,294 acres, more than twice the projected need. The Escambia County Comprehensive Plan actually encourages the proliferation of urban sprawl in the land use patterns set out on its Future Land Use Map (FLUM). Similarly, the plan is not based on data and analysis regarding land use allocations and, by encouraging scattered residential development, poses a threat to the continued viability of agriculture in the County. Future Land Use Element (FLUE) Policy 3.1.3 classifies residential land uses. The following land use categories, as established by that policy, allow special exceptions as land uses: Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential; and Urban Residential. Nowhere in the plan is there any indication of what uses will be allowed by special exception or what criteria will be used in establishing the conditions for a special exception. Thus, the plan's densities and intensities of use for Agricultural Residential; Rural Residential/Mixed Use; Low Density Residential and Urban Residential are chimera. The plan includes mixed use classifications of land use in several policies: FLUE Policy 3.1.5 (Mixed Use and Mixed Use-Southwestern District), 3.1.5.a (Mixed Use and Mixed Use- Southwestern District), 3.1.3 (Rural Residential-Mixed Use), and Santa Rosa Sub-element Policy 1.4.5 (Medium Density Residential Commercial and High Density Residential Commercial) and 1.4.8 (High Density Residential). Nowhere in these policies or related policies, including FLUE Policy 4.1.22 and 4.1.23, is there any criteria which establish the composition of mixed use categories (i.e., 30% commercial, 70% residential) or guide the implementation of these mixed use classifications such as by ensuring that the land uses are functionally related. Thus, no densities or intensities of use have been established for these land use categories. The plan does not ensure that development will result in a balanced and complimentary mixture of land uses. FLUE Policy 3.1.5 establishes land uses for the Mixed Use-Southwestern District. This category allows the following development: Low Density residential, 1-7 dwelling units per acre; Medium Density Residential, 8-15 dwelling units per acre; and Commercial, consistent with lot coverage standards of 75% maximum coverage for all impervious surfaces. The Future Land Use Map series does not indicate where the various residential densities are allowed nor does the plan include any criteria to provide any guidance as to which density would apply where and under what circumstances. Most of the area in the Mixed Use-Southwestern District contains wetlands. Based on the General Soils Map contained in the data and analysis, this area is dominated by Klej-Leon (somewhat poorly drained), Plummer-Rutledge (poorly drained) and undifferentiated poorly drained flood plains and swamps. These soils, which are indicative of poor drainage, are referred to as hydric soils, which is an indicator of wetlands. The data and analysis does not analyze the suitability of this area for development despite the soils characteristics. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach and includes a category denominated Conservation/Recreation. That classification states in pertinent parts: . . . depending on the specific characteristics of each site appropriate recreation uses may include public parking, beach access, boardwalks, nature trails, boat launching areas, docking facilities, picnic areas, rest rooms, and other such related uses as may be approved by the Santa Rosa Island Authority consistent with legal requirements presently in force. Other uses may by approved by the Santa Rosa Island Authority subject to appropriate studies which demonstrate that such uses are environmentally sound and in the public interest . . . The development of a golf course is allowed by this category and has been specifically contemplated in the past by the Santa Rosa Island Authority. Language of the Conservation/Recreation category in Santa Rosa Sub- element Policy 1.4.5 (10), affords great discretion in the Santa Rosa Island Authority as to what "other uses" are in the "public interest" or "environmentally sound. "No standards are provided which would specifically identify the limits of the types of uses for this classification or the specific criteria which would apply in ensuring a development was in the "public interest" or "environmentally sound." As a result, this policy places unbridled discretion for development in the hands of the Santa Rosa Island Authority, an entity not elected and not accountable to the public. The residential density for the area depicted on the Future Land Use Map as Special Development/Buffer is established in the FLUE Policy 3.1.1 and FLUE Policy 3.1.9. These policies are internally inconsistent as relates to residential densities. Policy 3.1.1 allows one to five dwelling units per acre and Policy 3.1.9 allows only one dwelling unit per acre for this land use. FLUE Policy 3.1.7 establishes land uses for the Recreational category allowing "public recreation areas, private recreational facilities, including limited commercial uses, such as marinas, public utilities." The intensity must be "consistent with lot coverage included in the land development regulations." This policy is inadequate because the intensity of development must be established in the plan, not the land development regulations. FLUE Policy 3.1.8 establishes land uses for the Conservation category. This category allows: . . . activities compatible with the purposing of conserving or protecting natural resources, including flood control, wildlife habitat protection[,] resource-oriented recreational uses, wetlands application of reclaimed water where appropriate and beneficial, and, where appropriate, silviculture using best management practices as defined by the Florida Division of Forestry. No density or intensity is established in the plan for this category. The County could have established intensities for this category through lot coverage, floor area ratios, height densities, and bulk criteria. Santa Rosa Sub-element Policy 1.4.5 establishes land uses for Pensacola Beach including the following categories: General Retail; Recreation Retail; Conservation/Recreation; and Government and Civic. Each of these categories allows development but does not establish any densities or intensities. Santa Rosa Sub-element Policy 1.4.8 establishes land uses for Navarre Beach including the following categories: High Density Residential; Commercial; and Recreation. Each of these categories allows development but does not establish any densities or intensities. The data and analysis submitted to support the proposed plan included a map series which identified historic districts, archeological areas, historical sites, and additional facilities. The Future Land Use Map series does not depict any historic properties, although such properties are known and identified in the data and analysis. The data and analysis identifies existing and planned water wells. Table 15 lists wells operated by various facilities for public and industrial uses and Table 16 lists future wells projected for the period of 1985-2005. These existing and future wells are depicted on a location map which is a part of the data and analysis. However, the locations of these existing and future wells are not depicted on the Future Land Use Map series. Further, the areas around major water wells, termed "cones of influence" are also not depicted on The Future Land Use Map series. The data and analysis depicts the 100-year floodplain on a location map. The 100-year floodplain is not depicted on the Future Land Use Map series. There are various types of wetland systems in Escambia County including: Bottom land hardwood communities, located along the Escambia River; the mixed wetlands, found in the Southwest District and the Perdido area; estuarine systems associated with the estuaries Pensacola Bay, Escambia Bay and Perdido Bay; coastal salt marshes; and the unique freshwater lens system found on Perdido Key and Santa Rosa Island. The Future Land Use Map series fails to depict all these wetlands. The identification of hydric soils may be a good indicator of wetland areas, but the Generalized Soils Map which is found in the support data and analysis was not adopted by the County. The adoption ordinance does not indicate that the County adopted a wetlands map of any kind. The data and analysis generally depict soils. The data and analysis contain a map entitled "General Soil Map" which was prepared by the U.S. Department of Agriculture in 1960. This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map series which was adopted depicts no soil information. The data and analysis generally depict sandy clay and clay; medium- fine sand and silt; and gravel and coarse sand on a map entitled "Mineral Resources." This map was not adopted as a part of the Future Land Use Map series. The Future Land Use Map which was adopted does not depict any mineral information. The Future Land Use Map series consists of three maps: a countywide map with land use categories "drawn" on a Florida Department of Transportation general highway map, a map of Pensacola Beach, and a map of Navarre Beach. The countywide map is internally inconsistent with the Navarre Beach Map because the countywide map depicts only three land use classifications on Navarre Beach: Low density residential, Commercial, and Conservation. The Navarre Beach Map, however, includes these different designations: low density residential; medium density residential; high density residential; commercial public utility; outdoor recreation; and preservation. The policies in the FLUE which describe low density residential (Policy 3.1.3), commercial (3.1.4) and recreation (3.1.7), describe different uses and intensities or densities than are described for categories of the same name in Santa Rosa Policy 1.4.8. The countywide Future Land Use Map depicts a Tourist/Resort category on Pensacola Beach. No policy establishes this category, describes the allowable uses, or establishes densities or intensities of use. The countywide map depicts a large area next to the City of Pensacola as "Commercial." FLUE Policy 3.1.4 defines this classification to allow commercial activities and public facilities and specifically prohibit residential development. The Existing Land Use Map found in the data and analysis indicates that the existing land uses are more varied and include residential uses. No explanation of the prohibition of residential development exists within the data and analysis. PROTECTION OF NATURAL RESOURCES The data and analysis identifies numerous types of natural resources: rivers, bay, lakes, estuaries, groundwater, wildlife, endangered and threatened plans and animals, trees, wetlands, dune systems, and marine resources. The FLUE is required to include an objective ensuring the protection of natural resources. The only objective in the FLUE which attempts to address countywide natural resources is Objective 1.9, which reads: By May 1991, development criteria shall be adopted in the land development code to protect areas designated as Conservation, Special Development/Buffer, and other land requiring protection due to the presence of sensitive natural resources. FLUE Objective 1.9, while expressing a basic goal, is not specific and measurable. It is meaningless for purposes of marking progress toward an identified goal. Simply referring to a time frame does not make it measurable. Objectives and policies intended to meet the requirements of Chapter 9J-5, F.A.C., must be substantively effective upon adoption and not relegated to adoption through land development regulations. The data and analysis identify numerous natural resources throughout the County which are threatened by development and should be protected, however FLUE Objective 1.9 provides limited protection to the two areas designated Special Development/Buffer and to the few coastal areas designated Conservation. Therefore, this objective is not supported by the data and analysis. The FLUE is required to contain a policy which addresses implementation activities for the protection of environmentally sensitive land. The only policy in the FLUE which attempts to address the protection of environmentally sensitive land is FLUE Policy 1.9.1, an implementing policy of FLUE Objective 1.9., which states: The development criteria shall include, but not be limited to, the prohibition of development of areas designated as Conservation, severe limitation of development potential for areas designated as Special Development Buffer, special review and approval procedures for properties which may be identified as having sensitive natural resources. FLUE Policy 3.1.9 establishes a residential density of one dwelling unit per acre for the Special Development/Buffer. Per the FLUM, this is a land use found in only two areas in the eastern portion of the middle section of the County. The term "severe limitation" contained in FLUE Objective 1.9. is not defined, leaving the application of this policy to be subject to interpretation. The referenced special review and approval procedures have not been delineated, nor have other areas containing sensitive natural resources (in addition to the Conservation and Special Development/Buffer areas) been identified, yet they are known to exist, as shown in the data and analysis. Accordingly, FLUE Policy 1.9.1 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 1.9.2, also an implementing policy of FLUE Objective 1.9, states: The County shall maintain and implement Section XVI of the Urban Area Land Use Regulation Ordinance, as may be amended, requiring review of all properties for presence of wetlands prior to issuance of any development permits. Development projects proposed for development on lands identified as containing wetlands must complete the special development review procedures established in the land development regulations. Provision shall be established in the Land Development Regulations for requirement exemption through an agreement of nondevelopment of wetland areas. FLUE Policy 1.9.2 fails to establish specifications or programs to protect wetlands, is not supported by the data and analysis, and allows the policy to be amended from time to time without going through the necessary agency review process required by Section 163.3184, Florida Statutes. Accordingly, FLUE Policy 1.9.2 does not adequately address implementation activities for the protection of environmentally sensitive land. FLUE Policy 4.1.9 states: The County shall develop criteria for assessing the negative impacts of a potential development upon the environment which shall include, but not be limited to: Environmental habitat adjacent to proposed development; Intensity of development; Potential pollutants or other negative impacts released as a result of development. This policy is inadequate because it does not identify specific actions or programs. It does not constitute a "policy" as that term is defined in Rule 9J- 5.003(68), F.A.C., and it defers implementation or action until a future date. The plan, including FLUE Policies 4.1.9, 1.9.2, and 1.9.1, do not adequately address implementation activities for the protection of environmentally sensitive land as required by Rule 9J-5.006(3)(c)6, F.A.C. As applied specifically toward the protection of environmentally sensitive lands on Santa Rosa Island, Santa Rosa Island Sub-element Objective 1.4 states: Design and adopt a Future Land Use Map for Santa Rosa Island which coordinates the built environment with the natural environment. The Future Land Use Map shall coordinate topography, soils, beachdunes, native vegetation, natural waterbodies, and other natural resources with compatible intensities of allowable urban land uses such that potential Island population densities do not exceed hurricane evacuation capability. Policies 1.4.1-1.4.7 of Santa Rosa Island Sub-element Objective 1.4 do not ensure the protection of environmentally sensitive land because they do not identify specific actions or programs in accordance with the definition of "policy" in Rule 9J-5.003(68), F.A.C. Accordingly, there is no FLUE policy which adequately addresses implementation activities for the protection of environmentally sensitive land on Santa Rosa Island. The Coastal Management Element (CME) is required to include an objective for each goal statement which protects beaches or dunes, establishes construction standards minimizing impacts of manmade structures on beach or dune systems, and restores altered beaches or dunes. CME Policy 2.1.9 states: Construction seaward of the Coastal Construction Control Line shall only be permitted if state permits are first obtained. The Coastal Construction Control Line is a line established by the State of Florida, Department of Natural Resources pursuant to Chapter 161, Florida Statutes, under the premise that the area seaward of the line is subject to erosion. The State will not consider approval of development seaward of the coastal construction control line unless the applicable local government has already approved it. This provision of the plan makes construction contingent on state approval, contrary to law. It is inconsistent with requirements of Chapter 161. The Future Land Use Map series depicts development seaward of the coastal construction control line, including areas which are vacant. CME Policy 2.1.9, along with the Future Land Use Map designations which allow more development than is supported by the data and analysis, abrogates the County's duty to regulate the area seaward of the coastal construction control line in order to protect dune systems or other coastal resources. By failing to discourage development seaward of the coastal construction control line, CME Policy 2.1.9 fails to achieve the goal statement of Goal 2 of the Coastal Management Element which is to protect human life and limit public expenditure in areas that are subject to destruction by natural disaster. Objectives under Goal 2 of the CME do not adequately address protection of beaches and dunes as required by Rule 9J-5.012(3)(b)4., F.A.C.. CME Objective 2.1 addresses only maintaining a roadway clearance time for hurricane evacuation of twelve (12) hours; Objective 2.2 simply requires the County to identify the Coastal High Hazard Area; Objective 2.4 is concerned with public expenditures for facilities and infrastructure in the Coastal High Hazard Area; Objectives 2.5, 2.6. 2.8, 2.9, and 2.10 address dune reconstruction in the limited situation of post-disaster redevelopment. CME Objective 2.7 states: Establish site design criteria for construction and reconstruction within the Costal High Hazard Area. This objective is inadequate. It provides no specifically measurable intermediate end that is achievable marking the progress toward Goal 2. Similarly, CME Objective 2.11, which provides that "[c]onstruction activities on Santa Rosa Island shall not adversely impact the barrier island system," is inadequate because it is not specific and measurable. CME Objective 2.12 reads: "Allow no further loss in the acreage of beaches and dunes on the barrier island(s)." This objective, although specific and measurable, is inadequate because it applies only to the barrier islands and ignores the beach and dune resources on the mainland. Furthermore, development is specifically allowed in the beach and dune areas based on the Future Land Use Map designations. This internal inconsistency poses the question of whether the County intended Objective 2.12 or the Future Land Use Map to control the issuance of development orders in this area. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands and living marine resources. The CME is also required to include an objective which protects, conserves, or enhances remaining coastal wetlands and living marine resources. CME Objective 1.1 fulfills the requirement of Rule 9J-5.012(3)(b)1., F.A.C., to conserve remaining wildlife habitat, but none of its implementing policies meet the requirements of Rule 9J-5.012(3)(c)1., F.A.C., to limit impacts of development upon wetlands and living marine resources. CME Policy 1.1.6 appears to address this requirement. It is inadequate, however, because it fails to identify specific implementing actions or programs and it defers protection of these resources until the adoption of land development regulations. The policy states: The County shall, in conjunction with the Santa Rosa Island Authority, adopt or amend land use regulations on barrier islands, including Perdido Key and Santa Rosa Island, and other coastal areas identified in data and analysis which, at minimum address the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Service, Florida Game and Fresh Water Fish Commission, and Florida Department of Natural Resources. This policy fails to include any criteria indicating what the land development regulations will require to protect these resources and no interim protection is provided. CME Objective 1.4 states: "By December 1992, the County shall develop a plan of action for maintaining and improving estuarine quality in the Coastal Area." This objective is inadequate because it defers implementation until December, 1992, and does not provide any criteria for any interim or future plan of action. No other objective in the CME addresses estuarine environmental quality. Therefore, there is no objective in the CME which maintains or improves estuarine environmental quality. The CME is required to include a policy identifying regulatory or management techniques for limiting the specific and cumulative impacts of development upon wetlands. CME Policy 1.3.7 clearly attempts to address the requirements of this rule. However, it is inadequate to achieve the objective of protecting wetlands. The policy states: By 1993, amend existing land development regulations to include specific protection provisions for the specific cumulative impacts of development or redevelopment upon wetland areas as indicated and recommended by the stormwater management plan study. On its face, this policy is intended to address only the impacts of stormwater runoff on wetlands, and does not address other specific cumulative impacts of development or redevelopment such as the restriction or prohibition of development in wetlands. Furthermore, the policy is inadequate because it defers implementation until 1993 through land development regulations and no specific criteria is included in this policy as to what should be included in those regulations. The CME is also required to include a policy which identifies regulatory or management techniques for limiting impacts of development upon wildlife habitat. CME Policy 1.1.2 attempts to address this requirement. This policy states: By May 1991, revise the Special Development District Regulations to include special provisions to enhance wildlife protection to include, but not be limited to, consideration of cluster development, increasing mandatory open space requirements, consideration of wildlife corridors between special development districts and other such districts, in addressing the protection of tidal wetlands, native vegetative communities and critical habitat of wildlife species which are endangered, threatened, or of special concern as identified by the U.S. Fish and Wildlife Services, Florida Game and Freshwater Fish Commission, and Florida Department of Natural Resources. The vague use of the term "consideration" in CME Policy 1.1.2 does not provide any assurance that these actions will actually be implemented at a future date. Furthermore, the policy is not specific and measurable due to lack of criteria for open space, cluster development, or wildlife corridors. Further, the policy does not identify how the protection of species will be implemented. All of this is deferred to special development district regulations. 1/ The quality and quantity of waters flowing into estuarine or oceanic waters is not adequately protected as required by Rules 9J-5.013(2)(b)2., and 9J-5.013(c)6., F.A.C. The Conservation Element (CE) objectives of the plan are silent as to water quantity. Objective 1.1 refers to a state government agency's standards which apply only to water quality and do not address water quantity. CE Objective 1.1, which addresses surface water quality, states: "Prevent degradation of surface water quality below water qualities standards using as a minimum Chapter 17-25.040(5), F.A.C., in consideration of development of alternative regulations." Rule 17-25.040, F.A.C., is the Florida Department of Environmental Regulation rule for construction permit requirements for new stormwater discharge facilities. That rule, in turn, references Rule 17-25.030, F.A.C., which provides exemptions from the notice and permitting requirements of the Chapter. Rule 17-25.030 exempts single-family duplex, triplex and quadraplex facilities. Thus, CE Objective 1.1 applies only to water quality standards for new development and excludes single-family duplex, triplex and quadraplex facilities and existing development from drainage facility standards. CE Policy 1.1.11, which implements CE Objective 1.1, reads: Adopt or amend land development regulations to require retention/detention of stormwater runoff prior to discharge into surface water; and to prevent discharge of untreated or treated domestic and industrial waste water (which does not meet current treatment standards) into these areas through public and private sewage treatment plants, poorly designed septic disposal systems [or] both. Mechanisms shall include the Stormwater Management Conservation Ordinance, the formal agreement called for in Policy 1.1.10 and Policy 2.11.4 in the Coastal Management Element. Require all new development adjacent to marine, aquatic, environmentally sensitive and estuarine areas to prohibit depositing into any of these areas stormwater and domestic water that does not meet treatment standards set forth in Section 17-25.040(5), F.A.C., and the Escambia County Department of Health Regulations relative to septic tanks." CE Policy 1.1.11 adopts by reference Rule 17-25.040(5), F.A.C., which applies the exemptions of Rule 17-25.030, F.A.C., and expressly does not apply to existing development. Thus, CE Policy 1.1.11 does not identify surface water quality standards which are to be maintained for all development. Water quantity may adversely impact water quality especially in wetlands where water moves slowly. Development in and adjacent to wetlands adds runoff, silt and fertilizers to the wetland system. If these substances exceed the carrying capacity of the wetlands, adequate purification of the water does not occur before it enters into the estuaries. Development of wetlands also impairs their ability to retain water and absorb stormwater impact. The County has experienced problems associated with untreated stormwater runoff. The County's engineer has identified four main areas which experience stormwater runoff problems. In those areas the development is primarily single-family residential. Therefore, there is no rational basis for the County to exempt existing development and single-family development from its stormwater standards. There also is no basis in the data and analysis for the County to exclude duplexes, triplexes, and quadraplexes from the stormwater standards. The CE is required to include a policy addressing implementation activities for the restriction of activities known to adversely affect the survival of endangered and threatened wildlife. The County has many plants and animals which are threatened, endangered, and species of special concern. The data and analysis identifies threatened, endangered and special concern communities in Escambia County which were identified by the Florida Natural Areas Inventory. CE Policy 1.8.3 states: Endangered species habitats and unique natural areas, as identified by the Florida Natural Areas Inventory, shall be considered environmentally sensitive. Prior to development in these sections, the development site shall be inventoried for the presence of environmentally sensitive habitats. The results of this survey, as well as mitigation measures for protection of these features if found, shall be submitted as part of land development permit applications submitted for the project. This policy fails to take into consideration the known listed species already identified by the Florida Natural Areas Inventory as reflected in its data and analysis. This policy also does not address the habitats of threatened species and fails to establish specific criteria which will be applied to development in order to protect the functional viability of the habitats of endangered species. The CE is required to include a policy which addresses implementation activities for the protection and conservation of the natural functions of certain natural resources including rivers, wildlife habitat, estuarine and wetland areas. CE Policy 1.1.13 attempts to address these requirements. The policy reads: By December 1991, the County shall, in conjunction with federal, state and local agencies, develop a set of recommendations to further provide for protection of rivers, wildlife habitat, estuarine, and wetland areas. Once the study has been completed specific recommendations shall be forwarded to the Board of County Commissioners for inclusion to land development regulations. CE Policy 1.1.13 does not apply to the natural resources known to be present in the County. The data and analysis identifies numerous natural resources, such as rivers, wildlife areas, estuarine areas, and wetlands, whose natural functions qualify for immediate protection. Accordingly, the policy is not based on the data and analysis. CE Policy 1.1.13 also is not an adequate policy because it does not provide specific criteria which will be used to protect the natural functions of these resources. This policy refers to an undefined and uncommenced study which will be conducted in conjunction with federal, state and local agencies. The policy should include the specific criteria needed to protect the natural resources and be in place at the time of plan adoption, not at a later time such as December, 1991, or at the time of adoption of land development regulations. COASTAL HIGH HAZARD AREAS/HURRICANE EVACUATION The CME is required to include an objective for each goal statement which directs population concentrations away from known or predicted Coastal High-Hazard Areas. The plan contains no provisions to direct or discourage population concentrations away from Coastal High-Hazard Areas. CME Objective 1.8 states: Development or redevelopment in the coastal area shall occur only if minimum level of service standards for infrastructure is met or exceeded. The coastal area is defined by the County as including the area approximately one to one and a half miles inland from the shoreline, with the exception of the area adjacent to Escambia Bay along the bluffs. This includes the barrier islands in their entirety. This coastal area is depicted on Existing Land Use Map Series I which was submitted with the proposed plan. The plan defines the Coastal High-Hazard Area in CME Policy 2.2.1 as the area seaward of the Coastal Construction Control Line established by the Department of Natural Resources; Federal Emergency Management Velocity (V) Zones designated on the Flood Insurance Rate Maps for Escambia County; and areas which have historically received damage in areas scientifically predicted to receive water damage in a Category 3 hurricane. The Coastal High Hazard Area is included within the coastal area as defined by the County. CME Objective 1.8 is inadequate to serve the purpose of directing population concentrations away from Coastal High-Hazard Areas because it allows development to continue to occur so long as the levels of service standards are met or exceeded. There is no threshold cap for development or redevelopment. Based on the densities established in the FLUE, population concentrations are being directed toward the Coastal High-Hazard Area. Santa Rosa Island Sub-element Policy 1.4.5 establishes land use densities and intensities for Pensacola Beach. The land use designations of high density residential, high density residential/commercial and commercial are allowed within the Coastal High-Hazard Area of Pensacola Beach. Based on these designations, development of up to thirty (30) units per acre is allowed. High density residential allows multi-family development in the range of sixteen to thirty units per acre; high density residential allows a range of sixteen to thirty units per acre for residential uses or up to fifty units an acre with a special exception; commercial hotel allows the same densities as is allowed under high density residential/commercial. The densities established in Santa Rosa Sub-element Policy 1.4.5 represent an increase in development based on what is currently developed on Pensacola Beach in the Coastal High-Hazard Area. The plan encourages more development in the Coastal High-Hazard Area of Pensacola Beach. Santa Rosa Island Sub-element Policy 1.4.8 similarly allows an increase in density in the Coastal High-Hazard Area in Navarre Beach from what is existing there currently. The high density residential designation allows up to thirty dwelling units per acre and the commercial designation allows up to thirty units an acre or fifty units an acre with a special exception. Perdido Key lies entirely within the Coastal High-Hazard Area; however the designation for Perdido Key based on the Future Land Use Map is Mixed Use. Future Land Use Element Policy 3.1.5 allows Mixed Use to be developed between sixteen to fifteen dwelling units per acre and an unspecified mix of commercial which may cover up to eighty percent of the lot with impervious surface. The densities and intensities established for Perdido Key do not serve the purpose of directing population concentrations away from the Coastal High-Hazard Area; rather more development is encouraged to occur there. The plan's hurricane evacuation planning is based on the Tri-state Hurricane Evacuation Study and the Escambia County Peacetime Emergency Plan which are referenced in the data and analysis as sources. No data is available which isolates the evacuation time for just the unincorporated portion of Escambia County. However, it is estimated that the evacuation time for the entire County is approximately 14.25 hours. This is based on a medium response curve for a Category III hurricane event. CME Objective 2.1 states that the County will maintain a roadway clearance time for hurricane evacuation of twelve hours. This clearance standard is not met currently. No data and analysis have been provided to support the densities on the coastal barrier islands in relation to maintaining or improving hurricane evacuation times. Furthermore, the data and analysis do not indicate that the current clearance time to maintain is only 12 hours. Thus, the coastal area population densities have not been coordinated with the appropriate regional hurricane plan, the Tri-State Study, and there is no assurance of maintaining or improving the hurricane evacuation time. CME Objective 2.5 states that the County will adopt a post-disaster redevelopment plan for Escambia County that identifies short-term recovery and long-term redevelopment activities. This objective is inadequate because it does not identify any specific and measurable criteria. CME Policy 2.6.3.b., an implementing policy of CME Objective 2.5, reads: By 1992, incorporate in the Santa Rosa Island land development regulations, the following build-back policy, to be applied after a major natural disaster such as a hurricane . . . B. Structures damaged more than fifty percent of their replacement cost at the time of damage can be re-built to their original square footage and density, provided they can comply with: *Federal requirements for elevation above the 100-year flood level. *Building code requirements for floodproofing. *Current building and life safety codes. *State Coastal Construction Control Line. *Any required zoning or other development regulations (other than density or intensity), unless compliance with such regulations would preclude reconstruction otherwise intended by the build-back policy. *Any other relevant federal regulations. *Any other relevant local regulations, including lease agreements. *Any other relevant state regulations. CME Policy 2.6.3.b., allows structures damaged more than fifty percent to be rebuilt to their original square footage and density. Thus, this policy does not require redevelopment following disaster which will reduce or eliminate the exposure of human life in public and private property to future natural hazards. COASTAL MANAGEMENT The CME is required to include an objective that, following adoption of the plan, limits public expenditures to subsidize development permitted in Coastal High-Hazard Areas except for restoration or enhancement of natural resources. The CME is also required to include a policy designating Coastal High-Hazard Areas, limiting development in these areas, and relocating or replacing infrastructure away from these areas. The CME does not contain any objective or policy that adequately limits development of public expenditures subsidizing development in a Coastal High-Hazard Area. CME Policy 2.4.2 allows the development of public facilities in the Coastal High-Hazard Area provided that certain criteria are met. That policy reads: Public facilities shall not be located or improved in the Coastal High-Hazard Area unless the following criteria are met: the use is necessary to protect human life; the service provided by the facility cannot be provided at another location outside the Coastal High-Hazard Area; no alternate site is identified outside the Coastal High-Hazard Area; the facility is designed to provide the minimum capacity necessary to meet level of service standards for its service area; the total cost to build the facility to meet the Coastal Building Codes including floodproofing requirements does not increase the cost of the project beyond feasibility. CME Policy 2.4.2 does not limit the extension of facilities which subsidize development in the Coastal High-Hazard Area. The level of service will be the minimum criteria for the applicable land uses. As described above, the land uses tend to encourage development towards the Coastal High Hazard Area. Development may continue provided the level of service standards are met. CME Policy 2.1.10 states that the County will not allow the extension of water, sewer or storm drainage infrastructure to facilitate new permanent residential structures within the Coastal High-Hazard Areas of Escambia County for which the County has permitting authority unless state permits are first obtained. This policy does not limit the extension of facilities that subsidize development in the Coastal High-Hazard Area in the event that state permits are first obtained. No state permits have been identified which would independently have the effect of limiting development in the entire Coastal High-Hazard Area or relocating or replacing infrastructure away from this area. VESTED RIGHTS Policies 1.4.2, 1.4.3, 1.4.4 and 1.4.6 of the Santa Rosa Island Future Land Use Sub-element provide that leased property on Santa Rosa Island is exempt from the plan and land development regulations. FINANCIAL FEASIBILITY The comprehensive plan is required to contain a Schedule of Capital Improvements for which the local government has fiscal responsibility for the first five fiscal years following adoption of the plan and a list of projected costs and revenue sources by type of public facility for the five-year period. The Capital Improvements Element (CIE) is required to set forth a financially feasible plan which demonstrates that the local government can achieve and maintain the adopted level of service standards. The Schedule of Capital Improvements includes the expenditure of $9,400,000 for a Master Drainage Study and Facilities for the fiscal years 1990- 91 through 1994-95. The data and analysis identifies and recommends impact fees as the revenue source to fund the Master Drainage Study and Facilities. The County has not adopted an impact fee for drainage or stormwater management, or even for the study. In May 1991, the Board of County Commissioners considered alternative methods of funding for stormwater management. The Board of County Commissioners rejected the implementation of a municipal service benefit unit for stormwater. Instead, the Board of County Commissioners adopted the alternative of development and implementation of a stormwater utility fee which requires approval of the voters at a referendum. At the time of plan adoption and the time of the hearing, the referendum had not taken place. There is no guarantee that the voters will approve the referendum. Therefore, it cannot be said that the Master Drainage Study and Facilities will be funded through fiscal year 1994-95. CIE Policy 1.4.1 states: Existing and future development, including those on Santa Rosa Island, directly benefiting from stormwater management improvements shall bear a proportionate cost of stormwater facility capital improvements. Further, the Board of County Commissioners shall consider, and implement as it deems necessary, impact fees for other public facilities. CIE Policy 1.5.1 states: The Board of County Commissioners shall develop and implement any alternative revenue sources needed to properly fund the Capital Improvements Element which could include, but not be limited to, property taxes, special assessments and other forms of revenue raising measures. Neither Capital Improvements Element Policy 1.4.1 nor Policy 1.5.1 establishes the impact fees necessary to fund the Drainage Study and Facilities or identifies viable revenue sources. Therefore, the Master Drainage Study and Facilities, identified in the Schedule of Capital Improvements, is not funded and is not financially feasible. XII CONCURRENCY MANAGEMENT Minimum requirements for a Concurrency Management System mandate that the system ensure that facilities and services needed to support development are available concurrent with the impacts of such development. Prior to the issuance of a development order or development permit, the Concurrency Management System must ensure that the adopted level of services standards required by roads, potable water, sanitary sewer, solid waste, drainage, parks and recreation and mass transit, if applicable, will be maintained. The Concurrency Management System contained in the Capital Improvements Element of the plan provides that facility capacity may be determined or counted as existing capacity, provided facilities were in the procurement cycle or if there is a binding executed contract for construction of the facility. This provision is overly broad and, hence, inadequate to meet rule requirements. The minimum requirements for concurrency are not uniform in every respect for the various types of public services and facilities needed to support development. For parks and recreations, the local government may satisfy the concurrency requirements through a binding executed contract which provides for a commencement of the actual construction of the required facilities or the provision of services within one (1) year of the issuance of the development permit in addition to other criteria. However, rule requirements in Chapter 9J-5, F.A.C., do not permit use of a binding executed contract to ensure concurrency for potable water, sewer, solid waste, and drainage facilities. The Concurrency Management System provides, on page 11-xi of the plan, that facility capacity may be counted if "the new facilities are guaranteed in an enforceable development agreement and is consistent with the Capital Improvements Element of the Comprehensive Plan." This is contrary to the requirements of Rule 9J- 5.0055(2)(a)(4), F.A.C., which contains minimum criteria for meeting concurrency through an enforceable development agreement. Those minimum criteria, which include the provisions of Rules 9J-5.0055(2)(a)1.- 3., F.A.C., are not recited in any provision of the Concurrency Management System or the Capital Improvements Element. The Concurrency Management System does not establish guidelines for interpreting and applying level of service standards to applications for development orders and permits and for determining when the test for concurrency has been met. The Concurrency Management System also does not contain guidelines for measuring the level of service and capacity of public facilities. Santa Rosa Island Future Land Use Sub-element Policy 1.1.3 indicates that the Concurrency Management System does not apply to Pensacola Beach. That policy reads: "By May 1991, the County shall adopt a Concurrency Management System in coordination with the Santa Rosa Island Authority to implement the Level of Service Standards of the Escambia County Comprehensive Plan as applicable to the Pensacola Beach." Santa Rosa Island Future Land Use Sub-element Policy 1.1.1 states: Development orders and/or permits for future development and redevelopment activities on Santa Rosa Island shall be issued only if public facilities necessary to meet level of service standards, adopted as a part of the Capital Improvements Element of the Escambia County Comprehensive Plan, are available concurrent with the impacts of development or are guaranteed in an enforceable development agreement pursuant to Section 163, F.S. and Rule 9J-5.0055, F.A.C., or an agreement or development order pursuant to Chapter 380, F.S. Santa Rosa Sub-element Policy 1.1.1 does not contain a provision that the necessary facilities and services will be in place when the development of impacts occur or, in lieu thereof, that the agreement must include the provisions of Rules 9J-5.0055(2)(a)1.-3., F.A.C. The Pensacola Beach Concurrency Management System was not adopted in the plan. Thus, the plan does not establish countywide concurrency. Santa Rosa Sub-element Policy 1.1.3 also is insufficient as it defers implementation of adoption of a concurrency management system until May 1991. The Concurrency Management System must be in place at the time of plan adoption. The Concurrency Management System does not clearly indicate the latest point in the application process for the determination of concurrency. The Concurrency Management System must indicate at what point in the application process final approval of a specific plan for development occurs and that this be prior to the determination of concurrency. The Concurrency Management System indicates that this point is the "final sign-off", however, that term is not defined and its meaning is opaque. LEVEL OF SERVICE STANDARDS Each local government is required to establish level of service standards for ensuring that adequate facility capacity will be provided for future development and for purposes of issuing development orders or permits pursuant to Section 163.3202(2)(g), Florida Statutes. The level of service standards must be set for each individual facility or facility type within the local government jurisdiction and not on a system-wide basis. The purpose of the sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element is to provide for necessary public facilities and services correlated to future land use projections. The sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge element of the plan must contain policies which address implementation activities for establishing and utilizing level of service standards in accordance with rule requirements. The County has not adopted a level of service standard for drainage which will be applied to all development. Drainage Sub-element Policy 2.1.3 states: The level of service standard for stormwater water quality shall be the minimum Florida Department of Environmental Regulation Standards, Section 17-25.040(5), Florida Administrative Code. Single-family dwellings not part of a larger development will be exempt from the level of service requirements. As discussed above under Protection of Natural Resources, Section 17- 25.040, F.A.C., does not apply to new facilities. Thus, the County has not adopted a drainage level of service standard for existing facilities, as it must. Drainage Sub-element Policy 2.1.3 is also insufficient because it has not removed other exemptions included in Chapter 17-25.030, F.A.C.,: the single family, duplex, triplex and quadraplex exemption. This policy specifically exempts single-family dwellings not part of a larger development from the level of service standard, but is silent as to the other exemptions of Chapter 17-25, F.A.C. No such exemptions from the drainage level of service standards is authorized by Rule 9J-5, F.A.C. Santa Rosa Sub-element Policy 1.1.2 states in pertinent part: "Development approval is conditioned upon, but not limited to a determination of whether the following level of service standard can be met: (1) the post- development peak rate of stormwater discharge will not exceed the pre- development peak rate based upon the 25-year stormwater event of critical duration . . ." This level of service standard is inadequate because it ignores such critical factors as water quality. The Traffic Circulation Element (TCE) is required to include a policy establishing level of service standards at peak hours for all roads located within the government's jurisdiction. Subsection 9J-5.005(3) and subparagraph 9J-5.015(3)(b)3., F.A.C. A portion of SR 30/Pensacola Bay Bridge lies within the boundaries of unincorporated Escambia County. The Pensacola Bay Bridge starts in the City of Pensacola and terminates in Gulf Breeze, Santa Rosa County. Between the starting point of the bridge on the Pensacola side and the County line, which is over the Pensacola Bay, a portion of the bridge lies within the jurisdiction of Escambia County. The Department of Transportation General Highway Map, upon which the County-wide Future Land Use Map is drawn, depicts the County boundaries between Escambia County and Santa Rosa County. This map shows that Escambia County has jurisdiction over SR 30 between the City of Pensacola and midway between the mainland and Gulf Breeze. Approximately 1.5 miles of the bridge lies within the jurisdiction of the County. According to the data and analysis, SR 30/Pensacola Bay Bridge currently is operating at a level of service "F". This level of service is applied in the plan. 2/ The TCE is required to include a policy which establishes level of service standards at peak hours for roads within the local government's jurisdiction. These standards must be consistent with Florida Department of Transportation's policies. TCE Policy 1.1.1 adopts peak hour minimum acceptable operating level of service standards for County roads. The level of service standards for Transportation Planning Areas vary for various roadway types (freeways, principal arterials, minor arterials) depending on the area classification (existing urbanized, transitioning urban, rural). The policy also adopts a "deficient" level of service standard of "F" (existing) for the Pensacola Bay Bridge which it separately classifies as a Special Consideration (Backlogged Facility). The policy defines backlogged facilities as "roadways which do not meet the minimum acceptable level of service standards, are not in a Special Transportation Area, not constrained and are not scheduled for capacity improvement." The Pensacola Bay Bridge is a principal arterial road. The recommended Florida Department of Transportation level of service for the bridge is "D". A level of service of "D" indicates a range of speed of 17 to 21 miles per hour. A level of service of "F' indicates a range of speed of 0 to 13 miles per hour. The "F" standard cannot be violated because traffic may not be slowed below zero miles per hour. No specific measure of current operating conditions is provided to ensure the operating conditions will be maintained and improved. As long as existing bridge traffic exceeds 0 miles per hour, TCE Policy 1.1.1 allows the bridge road to continue to degrade. This is no standard at all. Capital Improvements Element Policy 1.3.3 commits the County to certain level of service standards for various services and facilities, including traffic circulation. That policy states in pertinent part that capital improvement projects adopted by Escambia County shall maintain level of service standards as reflected in the policy's tables. A schedule of level of service for Traffic Circulation Facilities is included in the policy. Capital Improvements Element Policy 1.3.3 establishes level of service standards for Special Transportation Areas, but does not establish specific level of service standards for Constrained Facilities and Backlogged Facilities. This policy commits to a level of service standard for Constrained Facilities for freeways, principal arterials, minor arterials, and others as "maintain." As to Backlogged Facilities, the policy commits to "maintain and improve" freeways, principal arterials, minor arterials, and others. As written, the level of service standards "maintain" and "maintain and improve" are not specific and measurable, are internally inconsistent with the specific level of service standards adopted in TCE Policy 1.1.1 (i.e., "C", "D"), and allow for future revision without undergoing the plan amendment process. The Capital Improvements Element (CIE) is required to include a policy for each objective which establishes level of service standards for public facilities within the local government's jurisdiction. These standards are required to be those found in the other local government comprehensive plan elements. The Drainage Sub-Element is required to include a policy addressing implementation activities for establishing and utilizing level of service standards for design storm return frequency for Drainage Facility Capacity. Drainage Sub-element Policy 2.1.3 adopts Rule 17-25.040(5), F.A.C., as the level of service standard for Stormwater Water Quality. That rule requires that facilities which directly discharge to Outstanding Florida Waters shall provide additional treatment as specified in Rule 17-25.025(9), which in turn requires an additional level of treatment equal to 50 percent more than the one-half inch requirement for sites less than 100 acres and one-inch of run-off from sites greater than 100 acres. CIE Policy 1.3.3 includes a level of service standard for drainage facilities. The policy states in pertinent part that for projects with drainage areas greater than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one inch of run-off from storm rainfall; for projects with drainage areas less than 100 acres which provide for retention, or detention with filtration facilities, the level of service standard shall be the first one-half inch of run-off from storm rainfall; and for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration the level of service standard requires that a drainage system allow for discharges equal to pre-development levels unless an engineering analysis using professionally accepted methodologies demonstrates that a differing discharge rate should be used. This policy is internally inconsistent with Drainage Sub-element Policy 2.1.3 because CIE Policy 1.3.3 does not provide for the additional level of treatment for stormwater discharge facilities which directly discharge to Outstanding Florida Waters. CIE Policy 1.3.3 level of service standard for drainage facilities which attenuate the 24-hour, 25-year storm event of critical duration is not specific and measurable. This provision allows for the possibility of post- development run-off rate to exceed pre-development rates by allowing a different, presumably a higher, discharge rate to be used instead maintaining pre-development levels. There is no data and analysis to support an increase in discharge beyond pre-development levels. The Coastal Management Element is required to include an objective establishing level of service standards, areas of service and phasing of infrastructure in the coastal area. While CME Policy 1.8.1 establishes coastal area levels of services for sanitary sewer, solid waste, drainage, potable water, and recreation and open space, it does not include a level of service standard for traffic circulation. The primary sanitary sewer service provider in Escambia County is the Escambia County Utilities Authority. The data and analysis shows the existing level of service for sanitary sewer to range between 61.5 and 176 gallons per capita per day for wastewater treatment facilities owned by Escambia County Utilities Authority. For example, the Avondale facility has an existing level of service of 61.5 gallons per capita per day, the Mainstreet facility has an existing level of service of 99.8 gallons per capita per day, and the Navarre Beach Facility has an existing level of service of 176 gallons per capita per day. Sanitary Sewer Sub-element Policy 1.2.1 states: Escambia County hereby adopts 75 gallons per capita per day as level of service standard for the provision of sanitary sewer facilities in the Escambia County Utilities Authority service area, and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. Sanitary Sewer Sub-element Policy 1.2.3 states: "The County, through a Certificate of Availability, shall verify the capacity of public sewer systems prior to issuing development permits to ensure that adequate capacity to meet level of service standards (which is 100 gallons per capita per day) is available." The 100 gallons per capita per day level of service referenced in this policy is inconsistent with Sanitary Sewer Sub-element Policy 1.2.1 which adopts a level of service of 75 gallons per capita per day for Escambia County Utilities Authority Facilities and 60 gallons per capita per day for all privately-owned wastewater treatment facilities. This internal inconsistency creates confusion as to which level of service standard is in fact being adopted and will be used for the issuance of development orders. The County is responsible for the disposal of all solid waste within its jurisdiction through the County's Department of Solid Waste. The level of service is established in Solid Waste Sub-element Policy 1.1.1 which states: "The County will provide the capacity to dispose of 7 pounds of solid waste per capita per day." Table 11 of the Solid Waste Sub-element Data and Analysis shows the projected generation of solid waste for the County from the year 1986 through the year 2000. Table 11 Projected Generation for Escambia County Year County Population Annual Tonnage lbs/capita/day 1986 230,250 309,000 7.4 1990 255,552 324,450 7.0 1995 274,520 340,670 6.8 2000 289,368 357,700 6.8 There is no data and analysis which relates the actual capacity of the landfill with the need projections of Table 11. Hence, the data and analysis fails to adequately support Solid Waste Sub-element Policy 1.1.1 and the policy's assurance that the County will provide adequate land-fill space. Potable Water Sub-element Policy 1.1.1 adopts two levels of service standards for the provision of potable water: Escambia County Utilities Authority - 75 gallons per capita per day and all other service providers - 100 gallons per capita per day. Escambia County is served by 10 public water supply systems, none of which are operated by the County. The largest public water supply system is operated by Escambia County Utilities Authority which has an existing level of service of 157.3 gallons per capita per day in Zone 2 and 101.6 gallons per capita per day in Zone 1. Table 12 of the Potable Water Sub-element Data and Analysis shows water system demand and plant facilities for 15 facilities, including facilities operated by private owners, the Town of Century, the Special District of Escambia Utilities Authority, and the Federal Government, Santa Rosa County, and the State of Florida. Nine of the facilities not operated by Escambia Utilities Authority are below 100 gallons per capita per day. The data and analysis do not adequately support Potable Water Sub- element Policy 1.1.1 and the aim of the policy to ensure that service providers currently providing less than 100 gallons per capita per day be able to meet that level in the event of future demand. AFFORDABLE HOUSING The Housing Element of the plan is required to contain an objective providing adequate sites for housing for low and moderate income families, and for mobile homes. The Housing Element's data and analysis concludes that affordable housing for persons in the very low, low and moderate income ranges should not exceed 30 percent of family income. By 1987 standards, these family income limits translate into less than $13,151 for very low income families and between $13,152 and $21,040 for low/moderate income families. The data and analysis does not state what the demand for new affordable housing construction will be through the planning period. Housing Element Objective 1.2 states: "Based on existing available resources provide for the rehabilitation of a minimum of 90 substandard homes and 10 new affordable housing sites annually." This objective is not quantitatively supported by the data and analysis and fails to describe the types of housing that will be constructed at the sites, i.e., single family dwellings, multi-family dwellings, or apartment buildings. The Housing Element is required to include a policy for each objective which addresses implementation activities for the improvement in the regulatory and permitting processes, if deemed necessary by the local government. Housing Element Policy 1.1.4 states: Develop a permit review process (that will include a checklist and flow chart) that will take into consideration the following aspects in order to expedite and help facilitate affordable housing projects: Fast track permitting process which will provide for concurrent review of all permits; Waiving or use of weighted permit fees; and Waiving or use of weighted County imposed impact fees. Although the need to improve the regulatory and permitting processes is identified, there is no assurance that the methods to expedite affordable housing projects outlined in Housing Element Policy 1.1.4 will be implemented because the policy merely states that those methods will be taken "into consideration." The policy is subject to interpretation and may or may not be implemented despite the identified need to expedite affordable housing projects. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN For the reasons set forth below, the plan is inconsistent with the state plan, construced as a whole. The plan is not consistent with and fails to further State Comprehensive Plan Goal 5(a) relating to housing, which states: The public and private sectors shall increase the affordability and availability of housing for low- income and moderate-income persons, including citizens in rural areas, while at the same time encouraging self-sufficiency of the individual and assuring environmental and structural quality and cost-effective operations. The vagueness of Objective 1.2 of the plan's housing element fails to further this goal or policy 3 of this state goal, which relates to increasing housing availability for low and moderate income persons and elder persons. Policy 4 of this goal addresses reduction of housing costs through elimination of unnecessary regulation which adds to the cost of housing. The plan's lack of specific implementing actions that will be taken with regard to this policy establishes that the plan is not consistent with and does not further this state goal. Densities and intensities of land use in the plan which increase runoff and inadequacies of level of service for drainage facilities make the plan inconsistent with state goal 8(a) relating to water resources and the need to assure availability of water quantity for reasonable and beneficial uses while maintaining the present level of surface and ground water quality. These inadequacies of the plan also fail to further policy 8(b)2 of the state goal requiring the identification and protection of water recharge areas. The plan also fails to further state policy 8(b)5 of this goal since the plan does not ensure that new development will be compatible with existing local and regional water supplies. The distribution pattern and intensities and densities of land use and the plan's inadequate approach to existing and future deficiencies of drainage issues also prevent the plan from being consistent with state policies 8(b)8-13, which seek to encourage development of floodplain management; preserve hydrologically significant wetlands and other natural floodplain features; support the protection of aquifers from depletion and contamination; protect surface and groundwater quality and quantity; promote water conservation; provide for elimination of discharge of inadequately treated wastewater and stormwater runoff into the waters of the state; and support alternative methods of wastewater treatment, disposal, and reuse to reduce degradation of water resources. The plan fails to further and is not consistent with state goal 9(a) which provides: Florida shall ensure that development and marine resource use and beach access improvements in coastal areas do not endanger public safety or important natural resources. Florida shall, through acquisition and access improvements, make available to the state's population additional beaches and marine environment, consistent with sound environmental planning. Policies of this goal include: Policy 1 which seeks the acceleration of public beach acquisition; policy 2 which ensures public beach access; policy 3 which emphasizes the importance of avoiding expenditure of funds to subsidize development of coastal high hazard areas; policy 4 which protects coastal resources, marine resources and dune systems from the adverse effects of development; policy 5 which seeks development of a planning system ensuring the continued attractive image of coastal areas; policy 6 which requires compatibility of land and water uses with protection of sensitive coastal resources; policy 7 which requires protection and restoration of productivity of fisheries and habitat; and policy 9 which prohibits development of other activities which disturb dune systems. The plan is not consistent with either the goal or policies 1-7 and 9 due to the plan's inadequacies with regard to preservation or conservation of coastal resources; density and development patterns along the coastal area; level of proposed development; and the failure of land uses on the future land use map to be compatible with sensitive coastal resource protection. The plan is inconsistent with and does not further state goal 10(a) which requires the protection of unique natural habitats and ecological systems such as wetlands and various vegetative species, as well as restoring degraded natural systems to a functional condition. Deficiencies within the plan's objective and policies, as well as the failure to depict wetlands and floodplains on an adopted FLUM, prevent a finding that policy 1 of the goal, regarding conservation of forests, wetlands, fish, marine life, and wildlife, is consistent with or furthered by the plan's objectives and policies. Other policies of this goal where objectives, goals and policies of the plan fail to establish specific implementing actions necessary to a finding of consistency with the state plan include: Policy 2 regarding the acquiring, retaining, managing, and inventory of public lands to provide recreation, conservation, and other public benefits; policy 3 relating to prohibition and destruction of endangered species and protection for their habitats; policy 4 relating to establishment of an integrated regulatory program to assure the survival of endangered and threatened species within the state; policy 5 relating to the promotion of agricultural practices compatible with protection of wildlife and natural systems, which is specifically not supported by the plan's relatively high residential densities in some agricultural areas of 1-5 units per acre; policy 6 relating to maximizing use of forest resources where again the plan's densities and distribution of those densities on the land use map prevent consistency; policy 7 relating to protection and restoration of the ecological functions of wetland systems; policy 9 relating to an acquisition program to ensure the integrity of Florida's river systems, which is unsupported by any provision of the plan to establish such a county program; policy 10 relating to acquisition and maintenance of ecologically intact systems in all land and water planning, management, and regulation; and policy 11 relating to state and local efforts to provide recreational opportunities to urban areas, including the development of activity-based parks. The plan is inconsistent with and does not further state goal 16(a), which states: In recognition of the importance of preserving the natural resources and enhancing the quality of life of the state, development shall be directed to those areas which have in place, or have agreements to provide, the land and water resources, fiscal abilities, and service capacity to accommodate growth in an environmentally acceptable manner. Likewise the plan is inconsistent with and fails to further policy 2 of state goal 16(a), relating to development of incentives and disincentives to encourage separation of urban and rural land uses while protecting water supplies, resource development, and fish and wildlife habitats. The failure to further this policy highlights the fundamental shortcoming of the plan as to densities and intensities and distribution of those uses. Policies 4 and 6 of state goal 16(a) are not furthered by and are inconsistent with the plan. Policy 4 provides for development of a system of intergovernmental negotiation for siting locally unpopular public and private land uses, but the plan does not provide how the county will address this subject. Policy 6 requires consideration, in land use planning and regulation, of the impact of land use on water quality and quantity; the availability of land, water, and other natural resources to meet demands; and the potential for flooding. The distribution of land uses shown on the future land map and the lack of adequate policies prevent the plan from furthering this policy. Goal 20 of the State Plan relates to transportation and provides: Florida shall direct future transportation improvements to aid in the management of growth and shall have a state transportation system that integrates highway, air, mass transit, and other transportation modes. The plan does not address coordination between land uses and the transportation system. Therefore this goal is not furthered by the plan. Policy 3 of Goal 20 relates to promotion of a comprehensive transportation planning process coordinating state, regional, and local transportation plans. The plan adopts a level of service "F" for the Pensacola Bay Bridge which designation fails to provide any point at which development orders should be denied. This adopted level of service permits unlimited degradation and therefore does not further and is not consistent with the state plan. Policy 12 of Goal 20 of the state plan requires local governments to eschew transportation improvements which encourage increased development in coastal high-hazard areas or in environmentally sensitive areas such as wetlands, floodways, or productive marine areas. The high densities of use provided in the plan for coastal areas will inevitably cause demand for improved transportation systems in these areas and consequently fail to further this policy. The requirement of policy 13 of goal 20 to coordinate transportation improvements with state, local, and regional plans is not furthered by a level of service designation in the plan, such as the one for Pensacola Bay Bridge, which does not ensure that improvements can be coordinated. A level of service designation such as that accorded the bridge permits complete degradation without necessarily requiring coordination for expansion of the facility. The plan fails to address, and thus does not further, Policy 14 of goal 20, addressing acquisition of advanced rights-of-way for transportation projects in designated transportation corridors consistent with state, regional, and local plans. Policy 15 of goal 20, relating to promotion of effective coordination among various modes of transportation in urban areas to assist urban development and redevelopment efforts, is not addressed or furthered by the plan. The plan is not consistent with and does not further transportation goals and policies of the state comprehensive plan. The lack of adequate policies and high density of residential use in agricultural areas in the plan prevent the plan from furthering goal 23 of the state comprehensive plan, which reads as follows: Florida shall maintain and strive to expand its food, agriculture, ornamental horticulture, agriculture, forestry, and related industries in order to be a healthy and competitive force in the national and international marketplace. Goal 26 of the state comprehensive plan reads as follows: Systematic planning capabilities shall be integrated into all levels of government in Florida, with particular emphasis on improving intergovernmental coordination and maximizing citizen involvement. Policy 4 of Goal 26 relating to the need to simplify, streamline, and make more predictable the existing permitting procedures, is not furthered or consistent with plan as a result of the plan's failure to adequately define what would be done to simplify the regulatory process. CONSISTENCY WITH THE REGIONAL POLICY PLAN The plan is inconsistent with the West Florida Regional Policy Plan (the regional plan), construed as a whole, for the reasons listed below. The vagueness of Housing Element objective 1.2 with regard to provision of 10 new housing sites is inconsistent with Regional Goal 2 of Regional Issue 19, related to housing, contained in the regional plan. The plan fails to further that goal, which provides: By 1990, affordable, safe and sanitary housing for low and moderate income households and the elderly population which will increase by 10% over 1985 levels. The failure of the plan to address Goal 3 of Regional Issue 19 contained in the regional plan with regard to elimination of housing discriminatory practices is a significant inconsistency with the regional plan. The failure of the future land use map to identify existing and planned waterwells constitutes an inconsistency with goal 1 of regional issue 37 of the regional plan. That goal reads: By 1995, Regional water supply authorities shall be established throughout the Region which shall adopt water supply plans that incorporate water conservation programs, protection of water recharge areas and existing and future well sites, and identify vulnerable water supplies that local governments should regulate to limit development. As a result of the failure of the plan to set out densities and intensities of land use which serve to protect natural resources, as well as deficiencies of the plan with regard to drainage facilities, the plan does not further regional goal 1 of regional issue number 38. That goal provides: By 1995, the Region's potable aquifers shall be protected from depletion and contamination to ensure adequate quality of the Region's water resources to meet current and long-term needs for all reasonable-beneficial uses. Inadequate protective policies within the plan are inconsistent with the regional plan. Some of those inadequacies include inadequate drainage level of service standards, allowance of septic tanks in unsuitable areas, and high densities covering high aquifer recharge areas with impervious services. These plan policies are inconsistent with regional goal 1 of regional issue 39, Natural Systems Protection, which provides: By 1995, 10 percent of regional natural water systems will be protected, maintained, and their natural processes restored. The densities and intensities of use proposed by the plan for the barrier islands and in some of the coastal areas are very high and negatively impact resources of the land. This is particularly so with regard to densities and intensities of use established in Pensacola Beach, Navarre Beach and Perdido Key areas. The inadequacies of policies within the plan do not further goal 1 of issue 40 of the regional plan relating to protection of beach and dune systems. That goal reads: By 1990, land use guidelines will be adopted which protect beach and dune systems. Goal 1 of regional issue 41 is not furthered by provisions of the plan, specifically the lack of adequate level of service standards for drainage. This goal of the regional plan provides: By 1990, land use and coastal zone planning will be coordinated with the protection and management of marine fisheries habitat. Regional issue 43 of the regional plan addresses protection of natural resources. Goal 1 of that issue is not furthered due to the previously mentioned inadequacies of the plan, plus the lack of inclusion of a wetlands map and floodplains map as part of the adopted comprehensive plan. This goal of the regional plan provides: By 1990, state and local regulatory programs shall be designed to appropriately use and protect the Region's functioning natural systems. Endangered and threatened species are addressed by issue 44 of the regional plan. Goal 1 of that issue provides: By 1995, the number of native species in the Region on the official list of Endangered and Potentially Endangered Species of Fauna and Flora in Florida (FGFWFC) shall be reduced by 5 percent. The lack of planning directives and controls upon development in the county by goals, objectives and policies of the plan, prevents a finding that the plan furthers this goal. Regional issue 45 regarding the management of public and private land in a manner that permits continued functioning of natural systems is not furthered by the plan. Again, the densities and intensities of use established by the plan; the lack of control over development permitted by the plan; and specifically, the failure of the plan to include an adopted map of wetlands and floodplains establishes the plan's failure to further goal 1 of this issue. That goal provides: By 1990, public and private lands will be managed and land resources used according to comprehensive, economic and environmental principles, especially critical areas including, but not limited to coastal lands, wetlands, flood plains, margins of estuarine nursery areas, and locally important agricultural lands. Regional issue 58, regarding natural resource preservation and coordination between potable water and wastewater treatment facilities and land uses with regard to aquifer protection, is not furthered by the plan in view of the plan's provisions which fail to discourage urban sprawl and, instead, permit urban development to spread and negatively impact natural systems. Goal 1 and goal 2, respectively, of this issue of the regional plan read as follows: Regional goal 1 By the year 1991, local land use planning will be fully coordinated with planning for the provision of potable water and wastewater treatment and disposal. Regional Goal 2 By the year 1991, each local government in the Region will use review procedures that consider cumulative impact of development on natural resources. Neither of these goals is furthered by the plan. Because level of service standards established in the plan's Capital Improvements Element (CIE) permit inadequate roadway level of service standards with regard to the Pensacola Bay Bridge and permit the change of such level of service standards simply by having a roadway definitionally reclassified, regional issue 63 and regional goal 1 of that issue are not furthered by the plan. Regional goal 1 of the issue reads: By 1995, all modes of transportation planning will be integrated to efficiently, economically and safely accommodate transportation needs in the West Florida Region. Regional issue 64 addresses transportation planning to aid growth management. Regional goal 1 of the issue provides that planned development patterns and land use permitting will conform and coordinate with existing or programmed state and local transportation systems by 1991. Regional goal 2 of this issue provides that land development codes will include an analysis of transportation impacts, provide for protection of transportation rights-of-way, and establish private sector sharing of the cost of transportation facilities by 1991. Inasmuch as traffic analysis under the plan appears based on historical projections, as opposed to the impacts of future land use permitted by the plan, the plan does not further this issue or goals 1 and 2. Regional issue 69 of the regional plan and goals 1 through 4 of that issue are not furthered by the plan in view of the relatively high densities and intensities of residential use permitted in agricultural areas. Such usage for residential purposes does not ensure that agriculture will be protected.
Recommendation Based upon the foregoing findings and fact and conclusions of law, it is hereby recommended that a final order be entered finding that the Escambia county Comprehensive Plan is not in compliance. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992.
Findings Of Fact The Legislature created Respondent in 1963 by enacting Chapter 63-573, Laws of Florida, codified as Chapter 348, Part V, Florida Statutes. Section 348.754(1)(a) authorizes Respondent to construct, maintain, and operate the Orlando-Orange County Expressway System. Petitioner constructs highways. In 1991, Respondent awarded Petitioner with two highway construction contracts. The two construction contracts incorporate by reference the 1991 edition of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction ("Gray Book"). Commonly used in Florida highway construction, especially on state projects, the Gray Book is a code of standards for road and bridge construction projects. In 1993 and 1994, Petitioner requested $5 million from Respondent in extra compensation for the two construction contracts. In reviewing the requests, Respondent asked Petitioner for various documents, claiming that Article 3-8 of the Gray Book entitled Petitioner to receive these documents for audit. Article 3-8 of the Gray Book states: Upon execution of the Contract, [Respondent] reserves the right to conduct any necessary audit of the Contractor's records pertaining to the project. Such an audit, or audits, may be conducted by [Respondent] or its representatives at any time prior to final payment, or thereafter pursuant to 5/13. [Respondent] may also require submittal of the records from either the Prime Contractor, the Subcontractor or both. For the purpose of this Article, records shall include all books of account, supporting documents and papers deemed necessary by [Respondent] to assure compliance with the contract provisions. Failure of the Contractor or Subcontractor to comply with these requirements may result in disqualification or suspension from bidding for future contracts or disapproval as a Subcontractor at the option of [Respondent]. The Contractor shall assure that his Subcon- tractor will provide access to his records pertaining to the project upon request by [Respondent]. Petitioner declined to give Respondent audit access to all the requested records, taking the position that the records were not necessary and that Article 3-8 did not give Respondent the access to records claimed by Respondent. By letter dated July 11, 1995, Respondent notified Petitioner that it intended to consider whether to suspend or disqualify Petitioner from participating in future public bidding on Respondent's construction contracts. The letter advised that Respondent would hold a public hearing to consider the facts and circumstances of [Petitioner's] failure to provide contract documents requested by [Respondent]. At the hearing the Board will decide whether to suspend or disqualify [Petitioner] for its failure to comply with the Contract." The July 11 letter informed Respondent that it had the right to be represented by counsel, to present oral and written evidence, to cross-examine witnesses, and to present rebuttal evidence. The letter prohibited ex parte communications with members of Respondent's board because they would be acting in a quasi-judicial capacity. The Orlando-Orange County Expressway System consists of about 81 miles of multi-lane limited access highway in Orange County. Respondent's offices are in Orange County, which is where its employees work. Respondent establishes its own annual budget and sets tolls without review by the Legislature or Department of Transportation. Respondent compensates its employees without regard to State of Florida personnel policies or guidelines. Respondent's employees do not receive State of Florida health insurance benefits. They receive health insurance through the Orange County group health policy that covers all otherwise- covered Orange County employees. Transportation issues involve frequent contact between Respondent's employees and employees of the Public Works Department of Orange County and the City of Orlando. Contact between Respondent and the governments in and of surrounding counties is largely limited to participation in the Greater Orlando Metropolitan Planning Organization. In general, Respondent engages in transportation planning for, and studies the transportation needs of, Orange County, but not other counties. In 1994 the Legislature enacted Chapter 94-237, Laws of Florida. Section 11 of Chapter 94-237 created 348.7545, Florida Statutes (1994 Supp.), which authorized Respondent to construct, finance, operate and maintain that portion of the Western Beltway known as the Western Beltway Part C, extending from Florida's Turnpike near Ocoee in Orange County southerly through Orange and Osceola Counties to an interchange with I-4 near the Osceola-Polk County line . . .. Chapter 94-237, Laws of Florida, did not expressly authorize Respondent to exercise powers of eminent domain in Osceola County. In 1995 the Legislature enacted Chapter 95-257, Laws of Florida. Section 61 of Chapter 95- 257 amended 348.7545 to allow expressly Respondent to use its eminent domain power in connection with the Western Beltway Part C. Not considering itself an agency subject to Chapter 120, Florida Statutes, Respondent has not complied with any requirements of Chapter 120 except for the adoption of rules governing bid protests, as provided by 120.53(5). Respondent has not adopted as rules pre-qualification procedures and requirements, disqualification and suspension procedures and provisions, or procedures for formal hearings. Respondent has adopted various rules and policies, but not in accordance with Chapter 120. As far as it is aware, Respondent has not previously considered whether to suspend or disqualify a contractor, and therefore Respondent issued the July 11 letter on an ad hoc basis.
