The Issue The issue for determination in this case is whether Broward County Ordinance 1999-26, amending the Broward County Comprehensive Plan (Plan), is "in compliance," as defined in Chapter 163, Part II, Florida Statutes, and more specifically whether that portion of PCT 99-2, adopted through Ordinance 1999-26, which limits the use of flexibility units and reserve units east of the Intracoastal Waterway is not "in compliance" under Section 163.3184(1)(b), Florida Statutes, as alleged by the City of Hallandale Beach.
Findings Of Fact Parties The Petitioner, the City of Hallandale Beach (the City or Hallandale) is an incorporated municipality located in Broward County, Florida. The City is a political subdivision of the State of Florida. The City has adopted the City of Hallandale Comprehensive Plan (the City's Plan). In August of 1999, the City of Hallandale officially changed its name to the City of Hallandale Beach. The Respondent, Broward County (the County or Broward) is a political subdivision of the State of Florida. The County is a charter county. The County has adopted the Broward County Comprehensive Plan (the County's Plan). The Respondent, the Department of Community Affairs (DCA), is the state land planning agency which under Chapter 163, Part II, Florida Statutes, is responsible for, among other things, the review of municipal and county comprehensive plans to determine if the plans, and subsequent amendments thereto, are "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes. Standing The transmittal hearing for the proposed amendment was conducted on February 23, 1999. The adoption hearing was held June 22, 1999. During the plan amendment process, the City submitted three letters dated January 22, 1999, February 11, 1999, and April 30, 1999, in opposition to the proposed amendment. These letters, along with other materials in support of and in opposition to the proposed amendment were forwarded to the Department in the adopted amendment package on June 30, 1999. The City is an "affected person" under Section 163.3184(1)(a), Florida Statutes. The County Charter The Charter of Broward County took effect on January 1, 1975. (The current Charter submitted as Joint Exhibit 1 is revised as of November 5, 2002). With reference to land use planning, the County Charter in Article VIII creates the Broward County Planning Council (Planning Council). The Planning Council is the local planning agency for the Broward County Land Use Plan (BCLUP). The Planning Council employs a staff, which includes professional planners, gathers data, performs analyses of data, conducts hearings, and recommends the adoption of land use ordinances by the Broward County Commission. The Planning Council has final authority over the approval, or recertification, of municipal land use plans and amendments. Under the Charter, the County has primary responsibility for land use planning. Municipal comprehensive plans must be in conformity with the BCLUP. Pursuant to section 11.01 of the Charter, County Ordinances relating to land use planning prevail over municipal ordinances. Flexibility Units/Reserve Units Broward County is a highly urbanized, fast-growing county located in the southeastern portion of Florida. The estimated 1998 population was 1,460,890, a 16.4 percent increase over the 1990 census. In addition to the County government, there are 29 municipalities in the County. In November 1977, Broward County first devised the concept of allowing flexibility to municipalities in land use planning by creating "flexibility units" (flex units) which could be used by municipalities in land use planning. The number of flex units is equal to the difference between the density permitted on the BCLUP map and the density permitted on the applicable municipal land use plan for any particular parcel of land. Flex units are unique to Broward County in the State of Florida. The entire County is divided into 126 flexibility zones. Each flexibility zone has a determined number of available flex units based on the difference in densities between the future BCLUP map and the municipal land use plan. Within each of the 126 flexibility zones, designated on the future BCLUP map, the appropriate municipality may rearrange and revise land uses and densities, within limits specified in the County Plan, without the necessity of an amendment to the County Plan. The total density within any particular flexibility zone cannot exceed the density on the future BCLUP map. The Administrative Rules Document contains rules and procedures regulating flexibility zones and units. Modifications to flexibility zones may be requested by the municipality, the County, or the Planning Council, subject to final approval by the Board of County Commissioners. Municipal plan amendments revising land uses by use of flex units within flexibility zones are subject only to recertification by the Planning Council. Without the use of flex units, the land use category for a particular piece of property on the BCLUP map can be amended through an amendment to the BCLUP. "Reserve units" are additional permitted dwelling units equal to 2 percent of the total number of dwelling units permitted in a flexibility zone by the future BCLUP map. Reserve units function similarly to flex units and may be allocated by a municipality to rearrange and revise densities within a flexibility zone. For the purpose of this Recommended Order, reserve units shall be treated as flex units. Hallandale contains flexibility zones 93 and 94. Review of the Operation of Flexibility Rules In 1996, in response to state requirements for periodic evaluations of county comprehensive plans, the planning council staff, including Henry Sniezek of the County planning staff, prepared the Broward County Land Use Plan "Flexibility Rules" Study. After many hours spent obtaining data and analyses, the staff recommended that flexibility rules include more consideration of compatibility with surrounding land uses and the impacts on public schools. The 1996 report concluded: (1) that flexibility rules generally continued to serve the purpose of allowing local governments to address local planning issues and market concerns; (2) that local governments have utilized the flexibility rules consistent with their intent; and (3) that flexibility rules should continue to be available for local government use. The issue which is the subject of this proceeding, as to whether flex units should continue to be authorized for land planning uses in areas east of the Intracoastal Waterway to increase density from 25 to 50 units per acre, was not specifically within the scope of the 1996 report. Coastal Densities An April 24, 1998, version of the County land uses plan map, which is apparently still in force, designated a number of parcels throughout Broward County, east of the Intracoastal Waterway on the Atlantic Ocean, as land use category "H," for high density dwellings of 50 units per gross acre. Under the Broward County land use regulations, gross acreage is calculated by including the property owned by the landowner and half of adjacent right-of-way. In County-designated "H" parcels, developments of 50 units per acre are permitted, without the need to allocate flex units to the parcels. The Hallandale Ordinance In 1998, Hallandale passed an Ordinance 1998-3, creating a new Residential High Density-2 Land Use Designation (HD-2), allowing developments up to 50 residential dwelling units per acre, but only by the allocation of available flex units. On June 1, 1999, the Mayor of Hallandale was notified, by letter, that the land use element, as amended to create the HD-2 category, was recertified by the Planning Council. The recertification process constitutes a determination that the municipal plan amendment substantially conforms to the County Plan. The DCA found Hallandale's HD-2 ordinance in compliance. The Regional Planning Council determines whether comprehensive plan amendments comply with the 1995 Strategic Regional Policy Plan. The Planning Council approved the City's HD-2 category as consistent with the Strategic Regional Policy Plan. The intent of the ordinance was to promote and attract redevelopment to Hallandale, particularly the beach area, where many buildings date from the 1960's and 1970's, and may be approaching the end of their useful lives. The City used the HD-2 for the redevelopment of a property called Riviera Beach, which consisted of a deteriorating motel, a restaurant, and offices. The City also used the category to promote the redevelopment of the Ocean Marine property site of another deteriorating motel with a yacht club on the Intracoastal Waterway, which is currently going through the approval process. The City's former Director of Growth Management, Lorenzo Aghemo, opined that with existing average density on the beach in the range of 86 to 89 units an acre, redevelopment up to only 25 dwelling units per acre is not economically advantageous. The Proposed Amendment The Amendment that is the subject of this proceeding began as a "housekeeping" amendment which was initially designed to establish a uniform cap of 50 units per acre for the use of flex units to be consistent throughout the County Plan. During the process of meetings and public hearings before the Planning Council and the County Commission, and in response to comments and suggestions from members and staff as well as comments from DCA, the Planning Council, the Broward County League of Cities and various municipal governments, the Amendment evolved as more particularly described below. The Amendment ultimately became a mechanism to further goals contained in a Governor's Commission report entitled "Eastward Ho!" which was published in July 1996 and discussed in more detail below. A primary focus of the Eastward Ho! report is the recommendation that development in Southeast Florida, including Broward County, should be redirected into a corridor of land that generally consisted of the land between CSX and Florida railroads. The precise parameters of the Eastward Ho! corridor are undefined and the corridor eventually was expanded beyond the lands between the railroads; however, it is agreed that this corridor contains many of the older municipal regions of the County west of the Intracoastal Waterway. In its adopted form, the portion of the County's challenged amendment PCT 99-2, adopted through Ordinance 1999- 26, implements several changes which encourage the redevelopment of the County's urban corridor, and redirects development away from the Coastal High Hazard Area (CHHA) as well as away from the environmentally sensitive western areas of the County. With respect to the use of flex units, the challenged Amendment establishes four areas ("Areas A-D") within the County. Each area is given its own designation regarding the use of flex units. Area A This area generally encompasses all land west of the Urban Infill Area line. It is treated differently from the other areas for planning purposes because of its environmentally sensitive lands. Included in this area are portions of the Florida Everglades, other wetlands and well fields. In recognition of the environmental features of this area, the Amendment restricts the use of flexibility units to a maximum of 25 units an acre and helps to minimize urban sprawl. Area B This area is defined as all land east of the Intracoastal Waterway. It lies entirely within the County’s CHHA, which includes the land and water eastward of the Atlantic Intracoastal Waterway to the Atlantic Ocean. CHHAs are areas that are prone to damage from flood and wind from a hurricane event. This vulnerability to hurricanes presents special planning issues which led the County to limit the use of flexibility units to a maximum of 25 units an acre. In order to better protect human life and property, the County not only places a limit on flexibility units in this area, but encourages development and redevelopment in other portions of the County outside the CHHA. Area C This area generally comprises all of the land east of the Urban Infill Area Line and West of the Intracoastal Waterway. It includes many of the County’s older cities, where there is the greatest need for redevelopment. This area generally includes the Eastwood Ho! corridor. In order to encourage redevelopment in this area, the County continues to allow local governments to use up to 50 flexibility units an acre. Area D This area contains pocket areas that lie west of the Urban Infill area. Although the Amendment restricts the use of flexibility units to a maximum of 25 units an acre in this area, no compatibility review is required. At this time, there are two areas with this designation. Both of these pocket areas lie close to the Urban Infill Area. Application to Hallandale Most of Hallandale lies within Area C. A small potion of the City consisting of the beach east of the Intracoastal Waterway is in Area B and also within the CHHA. Under the challenged Amendment the City is limited to a maximum allowable density, with the allocation of flex units, to 25 units per acre, because the area is east of the Intracoastal Waterway. For purposes of this proceeding, the objectionable effect of the challenged Amendment is that it prohibits the use of flex units to that small portion of Hallandale that is east of the Intracoastal Waterway to attain densities greater than 25 units per acre. Lorenzo Aghemo, formerly Hallandale's Director of Growth Management, testified that the County's challenged Amendment is inconsistent with the following elements of the County's Plan: Objective 8.03.00, on discouraging urban sprawl by directing development to areas with existing facilities and services; Goal 13.00.00, on maximizing intergovernmental coordination and cooperation; Policy 13.01.08, on the Planning Council's responsibility to ensure consistency, as compared to its decisions to approve 50 units and than a few months later 25 units per acre; Goal 17.00.00, directing growth to identified urban infill, in areas of existing infrastructure and services to promote redevelopment; Policy 17.02.02, on urban infill and redevelopment to promote economic development and increase housing opportunities. Mr. Aghemo testified that the County's Ordinance, limiting the flex units to 25 per acre is also inconsistent with the following statutes: Section 163.3177(11)(c) - on maximizing the use of existing facilities and services through redevelopment and urban infill development; Section 187.201(15)(a) and (b) - on directing development to areas which have, in place, land and water resources, fiscal abilities and service capacity; Section 187.201(16)(b)5. - on allowing local government flexibility to determine and address urban priorities. Henry Sniezek testified that the proposed Amendment viewed in its entirety, is consistent with the above-cited provisions. Evolution of the Proposed Amendment On January 15, 1999, the County Planning Council's Land Use/Traffic Ways Committee discussed, for the first time, an early version of a County amendment to limit the density allowed from the use of flex units. At that time, the staff recommended that flex units should result in densities no higher than 50 units per acres. As stated above, the maximum of 50 units an acre, recommended in 1999, was intended for "housekeeping" purposes to establish the same cap for flex units consistently referenced throughout the plan. Robert Daniels, the principal planner for the Regional Planning Council, first recommended that the coastal barrier island be excluded from certain flex unit allocations in a letter to Mr. Sniezek, on January 27, 1999. Mr. Daniels testified that his concern was based on the Strategic Regional Plan goal and policy of reducing densities on coastal barrier islands, the beaches and areas east of the Intracoastal Waterway. The Broward League of Cities Technical Advisory Committee, composed of planners from various municipalities in the County, also recommended to the County Commission that it attempt to direct growth to the area between the Everglades on environmentally sensitive west and the CHHA. That policy is included in the County's "Eastward Ho" voluntary initiative. The Broward County urban infill area has a western boundary that coincides with the western boundary of the challenged amendment but extends east to the Atlantic Ocean. The Amendment, as adopted, ultimately excluded the area east of the Intracoastal Waterway within the urban infill area, as designated on the County land use map, from the maximum flex unit uses without County Commission approved. Eastward Ho! "Eastward Ho! Revitalizing Southeast Florida’s Urban Core" is a 1996 planning initiative of the Governor’s Commission for a Sustainable South Florida. It was developed by the South Florida Regional Planning Council in conjunction with the Treasure Coast Regional Planning Council. Eastward Ho! promotes urban infill and redevelopment in order to revitalize older communities. Among its other goals is to direct development away from environmentally sensitive lands, prime agricultural areas, and water resources. The Eastward Ho! initiative attempts to capture some of the projected growth in the western and CHHA and redirect it to the urbanized areas. The boundaries for the Eastward Ho! initiative include portions of Palm Beach County, Broward County and Miami-Dade County. Its boundaries are not precisely defined and have evolved over time. The original study area encompassed the area between the Florida East Coast Railroad and the CSX Railroad. As the program progressed, it became apparent that additional areas should be included. This larger Eastward Ho! area includes the lands lying east to US 1 and west to the Palmetto Expressway, the Florida Turnpike, State Road 7 and Military Trail. The Amendment Area C is generally compatible with the Eastward Ho! boundaries in Broward County. Area B does not lie within the Eastward Ho! boundaries. In its totality, the Amendment advances the purposes of Eastward Ho! by redirecting growth towards already urbanized areas and away from the environmentally sensitive areas in the western portion of the County and the CHHA. The Eastward Ho! initiative is advanced by the Amendment in that the proposed flexibility units scheme promotes the goals of directing some future development away from environmentally sensitive areas and the CHHA and redirects that future development to the urban infill areas. As the Amendment is consistent with, and furthers, Eastward Ho! goals, the contents of the document entitled "Eastward Ho! Revitalizing Southeast Florida's Urban Core" constitute relevant and appropriate data and analysis which supports the Amendment. In February 1999, a report was issued by Rutgers University, Center for Urban Policy Research in which the Eastward Ho! program is described and analyzed. This report was prepared for the Florida Department of Community Affairs and the U.S. Environmental Protection Agency. This document is entitled "Eastward Ho! Development Futures: Paths to More Efficient Growth in Southeast Florida." Included in this report are data and analysis contrasting projected Eastward Ho! and non-Eastward Ho! development patterns. In this report, it is concluded that directing some residential development growth from the hurricane hazard area and the western areas into the Eastward Ho! areas in the next twenty-five years will save 52,856 acres of prime farmland and 13,887 acres of fragile environmental lands. It is also expected that housing costs would drop approximately 2.3 percent. The report also concludes that by directing some future development over a 25-year period into the Eastward Ho! areas, the following savings in infrastructure costs can be gained: $1.54 billion dollars in local road costs, $62 million in state road costs, $157 million in water capital costs, and $135.6 in sewer capital costs. As the Amendment helps implement the goals of Eastward Ho!, it reasonably can be concluded that this report contains data and analysis that supports the Amendment. Local Mitigation Strategy Broward County’s emergency management staff has prepared a local mitigation strategy (LMS), which is the County’s plan to mitigate the effects of potential natural disasters, especially hurricanes. In this document, the County identifies the trend of conversions of living units in the coastal hurricane evacuation zone from seasonal to year-round use, increasing the number of residents in the coastal hurricane evacuation zones. This area is basically the same as the portion of the County described in the Amendment as Area B. In order to minimize the impact of natural disasters, the LMS recommends discouraging additional public expenditures to expand or improve infrastructure in the CHHA. The Amendment implements these recommendations by providing an incentive for directing some future growth away from the CHHA to Area C. Accordingly, the LMS constitutes data and analysis which supports the Amendment. Consistency with the Broward County Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions of the Broward County Comprehensive Plan: Objective 8.03.00, Goal 13; Policy 13.01.08, Goal 17; and Policy 17.02.02. Those provisions are part of the BCLUP. Objective 8.03.00 is entitled "EFFICIENT USE OF URBAN SERVICES" and reads: Discourage urban sprawl and encourage a separation of urban and rural uses by directing new development into areas where necessary regional and community facilities and services exist. The BCLUP does not define "urban sprawl." The Department of Community Affairs has a rule that defines "urban sprawl" as meaning: . . . urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low- intensity or low density urban uses, and which are characterized by one or more of the following conditions: (a) The premature or poorly planned conversion of rural land to other uses; (b) The creation of areas of urban development or uses which are not functionally related to land uses which predominate the adjacent area; or (c) The creation of areas of urban development or uses which fail to maximize the use of existing public facilities or the use of areas within which public services are currently provided.... Rule 9J-5.003(134), Florida Administrative Code. Rule 9J-5.006(5), Florida Administrative Code, provides guidance on how to ensure that plans and plan amendments are consistent with applicable requirements pertaining to the discouragement of urban sprawl. Rule 9J- 5.006(5)(a), Florida Administrative Code. The rule contains sections on primary indicators, land use evaluations, and development controls, each of which includes many factors to be carefully considered. The Amendment provides incentives for development in Area C, which is the older urban corridor of the County. Although some of it is also urban, Area B lies in the CHHA and the data and analysis support its disparate treatment. Taken as a whole, the Amendment has the effect of discouraging urban sprawl by promoting infill in older downtown areas (Area C) and directing development away from the environmentally sensitive areas (Areas A and B) and areas with inefficient land use patterns (Area A) such as the western areas of the County. Goal 13 and Policy 13.01.08 are located in the section of the plan entitled "INTERGOVERNMENTAL COORDINATION." They read as follows: GOAL 13.00.00 MAXIMIZE INTERGOVERNMENTAL COORDINATION AND COOPERATION AMONG STATE, REGIONAL, AND LOCAL GOVERNMENT ENTITIES. POLICY 13.01.08 The Broward County Planning Council shall continue to coordinate, cooperate and share information and services with all City and County planning offices and all local government agencies in order to ensure consistency and compatibility among the Broward County Land Use Plan and the other elements of the Broward County Comprehensive Plan, as well as municipal comprehensive plans. The Amendment does not modify the intergovernmental coordination provisions. While the Amendment restricts the effect of Hallendale Ordinance 1998-2 in that small portion of the City that is east of the Intracoastal Waterway, that restriction alone does not support a finding that the Amendment as a whole is inconsistent with Policy 13.01.08. Moreover, the County complied with the letter and spirit of Goal 13.00.00 and Policy 13.01.08 in developing and adopting this Amendment. It kept the municipalities informed of the Amendment by providing written drafts and coordinated with entities including the Broward County League of Cities, the South Florida Regional Planning Council, the Broward County Planning Council, and its technical advisory committee. Suggestions and comments from the South Florida Regional Planning Council and the League of Cities were a major influence in the ultimate version of the adopted Amendment. Goal 17.00.00 and Policy 17.02.02 are contained in the Plan’s section entitled "URBAN INFILL AREAS, URBAN REDEVELOPMENT AREAS AND DOWNTOWN REVITALIZATION." They read as follows: GOAL 17.00.00 DIRECT GROWTH TO IDENTIFIED URBAN INFILL, URBAN REDEVELOPMENT AND DOWNTOWN REVITALIZATION AREAS WITHIN BROWARD COUNTY IN ORDER TO DISCOURAGE URBAN SPRAWL, REDUCE DEVELOPMENT PRESSURES ON RURAL LANDS, MAXIMIZE THE USE OF EXISTING PUBLIC FACILITIES AND CENTRALIZE COMMERCIAL, GOVERNMENTAL, RETAIL, RESIDENTIAL AND CULTURAL ACTIVITIES. POLICY 17.02.02 Local land use plans should include policies to provide for adequate housing opportunities necessary to accommodate all segments of present and future residents of identified urban infill, urban redevelopment and downtown revitalization area(s). In its totality, the Amendment is not inconsistent with Goal 17.00.00 and may further it. By limiting development in the CHHA and the western portions of the County, the Amendment effectively encourages significant future growth to the urban infill areas and older downtown areas. The area encouraged for growth under this goal and policy is consistent with Area C, and targeted for the densest development and redevelopment. The Amendment is not inconsistent with Policy 17.02.02. Area B as a Coastal area is not particularly economically suitable for affordable housing. By encouraging development away from the CHHA, the Amendment may promote a wider range of housing opportunities through redevelopment in the Eastward Ho! corridor. Moreover, the Amendment provides that applications of flex units for affordable housing, Regional Activity Centers and special residential facilities are exempt from the Amendment’s restrictions in specified situations should affordable housing units be developed in Area B. Even if the Amendment were construed to be inconsistent with any of the above-discussed plan provisions, there are several other portions of the Plan that the Amendment furthers by encouraging development away from the CHHA and the environmentally sensitive areas in the western portion of the County. Those provisions include Objective 9.03.00, which requires developing and implementing land use controls to protect and enhance the County's beaches, rivers, and marine resources, and Policy 9.05.09, which requires considering the impact land use plan amendments have on wetland resources and minimizing those impacts to the maximum extent practicable. Objective 9.07.00 reads: Protect identified floodplains and areas subject to seasonal or periodic flooding. The Amendment advances this objective by limiting development in the CHHA (Area B), which is subject to storm surge, as well as limiting development in the western portion of the County (Area A), which has many flood-prone areas. Consistency with Section 163.3177(11)(c) The City alleges that the Amendment is inconsistent with Section 163.3177(11)(c), Florida Statutes, which reads: It is the further intent of the Legislature that local government comprehensive plans and implementing land development regulations shall provide strategies which maximize the use of existing facilities and services through redevelopment, urban infill development, and other strategies for urban revitalization. To the extent this statute is a substantive compliance criteria, the Amendment is consistent with this statute. By promoting development in Area C, the Amendment will help achieve the goal of maximizing existing facilities through redevelopment, urban infill and urban revitalization. Consistency with the South Florida Regional Policy Plan The Strategic Regional Policy Plan for South Florida (SFRPP) is the regional policy plan adopted by the South Florida Regional Planning Council. It is adopted by reference in Rule 29J-2.009, Florida Administrative Code. The Amendment is consistent with provisions in the SFRPP, particularly those related to land use, public facilities, natural resources, and emergency management. The Amendment is consistent with Strategic Regional Goal 2.1, which requires directing development and redevelopment to areas least exposed to coastal storm surges and where negative impacts on the environment are minimal. The Amendment is consistent with several of Goal 2.1's implementing policies, including Policies 2.1.2 (reducing allowable densities on barrier islands and in the Category 1 Hurricane Evacuation Area), 2.1.3 (restricting development, redevelopment, and public facility construction in the CHHA), and 2.1.4 (directing development away from environmentally sensitive lands). The Amendment also furthers Strategic Regional Goal 7.1 by directing future development away from the areas most vulnerable to storm surges. Viewed in its entirety, the Amendment is consistent with the SFRPP construed as a whole. Consistency with the State Comprehensive Plan The City contends that the Amendment is inconsistent with the following provisions in the State comprehensive plan: Sections 187.201(15)(a) and (b) and 187.201(16)(b)(5), Florida Statutes. Goal (15)(a) recognizes the importance of preserving natural resources and requires development to be directed into areas which can accommodate growth in an environmentally sensitive manner. Implementing Policies (b)1., 2., and 5. requires the encouragement of efficient development, the separation of urban and rural uses, and the consideration of impacts on natural resources and the potential for flooding in land use planning. As discussed in earlier findings, the Amendment is consistent with such directives. The Amendment furthers Goal (15)(a) and Policies (b) 1., 2., and 5. Policy (16)(b)(5) reads: Ensure that local governments have adequate flexibility to determine and address their urban priorities within the state urban policy. The Amendment coordinates the policy for prioritization of urban development. Development is promoted in areas away from the CHHA and environmentally sensitive lands in the west. This is accomplished through the use of a cap on flexibility units. Local governments may choose to utilize less than the full extent of their available flexibility units or use alternative mechanisms to achieve higher densities. The use of flexibility units is only one method for controlling densities. If a local government needs more density to address its planning goals than is allowed by the Amendment, it may request a Future Land Use Map amendment. Additionally, local governments may avoid the Amendment's limits by maximizing density by the use of affordable housing developments, Regional Activity Centers or special residential facilities. The Amendment is not inconsistent with Policy (16)(b)(5). The Amendment is consistent with the State Comprehensive Plan construed as a whole.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Plan Amendment adopted by Broward County in Ordinance No. 1999-26 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rule promulgated thereunder. DONE AND ENTERED this 12th day of June, 2003, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON 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 12th day of June, 2003. COPIES FURNISHED: Mark Goldstein, Esquire City of Hallandale 400 South Federal Highway Hallandale, Florida 33009 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Jose R. Gonzalez, Esquire Broward County Attorney's Office 115 South Andrews Avenue Governmental Center, Suite 423 Fort Lauderdale, Florida 33301 Colleen M. Castille, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100 David Jordan, Acting General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325 Tallahassee, Florida 32399-2100
The Issue The issue is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Poinciana Community Development District.
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 in these cases is whether the Alachua County Comprehensive Plan amendments adopted through Alachua County Ordinance Number 03-05 on August 26, 2003, are "in compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003).
Findings Of Fact Parties The Board is a local government charged with the responsibility of adopting and enforcing a comprehensive plan as provided in the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (2003)(the "Act"). In this Recommended Order, "the Board" will refer to the elected Board of County Commissioners. "The County" will refer to Alachua County staff, as well as to the County as a litigant in these proceedings. The Department of Community Affairs is the state land planning agency with the authority to administer and enforce the Act. David and December McSherry are residents of the County, own and operate a business, and own property in the County. The McSherrys made comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The McSherrys are "affected persons" as defined in Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding. Dr. Adams owns property and resides in the County. Dr. Adams submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Adams is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Dr. Kathy Cantwell owns property and resides in the County. Dr. Cantwell submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Dr. Cantwell is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Holly Jensen owns property and resides in the County. Ms. Jensen submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Ms. Jensen is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has standing to bring this proceeding. Sierra Club, Inc., is a California nonprofit organization that advocates ecological conservation in the County through its Florida chapter and the Suwannee-St. Johns Group. Sierra Club and a substantial number of its members conduct a business in the County by maintaining a local website, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, distributing publications, purchasing, selling and delivering merchandise and goods and services, holding conferences and meetings, maintaining local representatives, distributing information and newsletters, and organizing members and other citizens to petition the government for redress of grievances. Sierra Club provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. Sierra Club is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. SAC is a Florida nonprofit organization that advocates ecological conservation and principles of sustainability in the County. The organization and a substantial number of its members conduct a business in the County by maintaining a local website that is a forum for local comment, raising funds, participating in governmental meetings and decisions, soliciting and obtaining membership, and distributing publications. SAC provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. SAC is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. Each of the Jonesville Petitioners owns property and operates businesses in the County. Each of the Jonesville Petitioners provided comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. The Jonesville Petitioners are "affected persons" as defined in Subsection 163.3184(1), Florida Statutes (2003), and have standing to bring this proceeding. PRPV is a Florida not-for-profit corporation that was created for the purpose of representing landowners of rural and agricultural land, participating with local and state government in the development of reasonable land use regulations, and protecting values of rural properties in the County. A substantial number of PRPV's members reside in, own property in, or own or operate businesses in the County. PRPV submitted oral and written comments to the Board concerning the 2003 Amendments during the transmittal and adoption periods. PRPV is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. BANCF is a Florida corporation that was created for the purpose of educating and advocating on behalf of its members, who are primarily engaged in the residential and commercial construction industry in the County and who are citizens residing in, and businesses located in the County. A substantial number of BANCF's members reside in, own property in, or own or operate businesses in the County. BANCF submitted oral and written comments to the Board concerning the 2003 Amendments during the respective transmittal and adoption periods. BANCF is an "affected person" as defined in Subsection 163.3184(1), Florida Statutes (2003), and has associational standing to bring this proceeding. Background and Procedural Issues The Board adopted the Plan in 1991. In 1998, the Board adopted an Evaluation and Appraisal Report ("EAR") for the Plan. Subsection 163.3191(1), Florida Statutes (2003), requires each local government to adopt an EAR once every seven years, assessing its progress in implementing its comprehensive plan. The local government must then amend its comprehensive plan to reflect the data and analysis and recommendations in the EAR. § 163.3191(10), Fla. Stat. (2003). In August 2001, the Board adopted amendments to the Plan and transmitted them to DCA, and to the other agencies enumerated in Florida Administrative Code Rule 9J-11.009(6), for review and comment. On November 30, 2001, DCA completed its review of the amendments and issued its Objections, Recommendations and Comments document (commonly referred to as an "ORC Report") to the County pursuant to Florida Administrative Code Rule 9J-11.010. On April 8, 2002, the Board adopted the 2002 Plan Update, addressing the objections raised in the ORC Report. By letter dated May 31, 2002, DCA notified the Board that it had completed its review of the 2002 Plan Update and determined that it met the Act's requirements for "compliance," as defined in Subsection 163.3184(1)(b), Florida Statutes (2003). DCA published notice of its intent to find the 2002 Plan Update in compliance in The Gainesville Sun on June 3, 2002. On June 24, 2002, PRPV and others filed a petition challenging DCA's determination that the 2002 Plan Update was in compliance. The Petition was forwarded to DOAH on July 5, 2002. BANCF was granted intervenor status, in alignment with PRPV, on July 11, 2002. On July 25, 2002, the PRPV Petitioners joined by BANCF, filed a request for mediation pursuant to Subsection 163.3189(3)(a), Florida Statutes (2003). On August 1, 2002, the Board filed a response agreeing to participate in mediation. In the instant proceeding, the Sierra Club/McSherry Petitioners have alleged several irregularities in the mediation process. They allege that despite the requirements of Subsection 163.3184(16)(a), Florida Statutes (2003), regarding mediation, "the McSherry Petitioners found that they were not given adequate notices of [mediation] meetings and proposals, that the method in which the mediator ran the meetings denied them a reasonable opportunity to participate, that they were not included in negotiation meetings, and that negotiation meetings were not open to the public, and that when the public did attend meetings the public was not allowed to comment." The Sierra Club/McSherry Petitioners allege that they were systematically frozen out of the mediation process, which resulted in a settlement agreement favorable to PRPV and BANCF. However, the facts established at the hearing did not support these allegations. One particular complaint by the Sierra Club/McSherry Petitioners is that the mediator, Robert Cambric of DCA, split the mediation into two simultaneous meetings, one on land use and one on environmental issues, making it impossible for an individual or a small group to follow all the issues under discussion. This situation did occur at one mediation session on December 12, 2002. Ms. McSherry and Dr. Adams complained about this arrangement, and it was not repeated by Mr. Cambric. Richard Drummond, the County's growth management director, testified that no agreements were reached at the December 12, 2002, sessions; rather, participants were given "homework assignments" to complete for the next mediation session. Mr. Drummond's testimony is supported by the fact that the mediation process continued for another six months after this disputed meeting. The Sierra Club/McSherry Petitioners were allowed to participate in the mediation sessions even before they were formally granted intervention in the underlying proceeding. No evidence was presented to establish that secret meetings were held. The evidence demonstrated that County staff, at the Board's direction, attempted to negotiate a tentative settlement. On several occasions, the Board held public meetings at which extensive public comment was elicited and during which the Board directed staff regarding its position on issues. The Sierra Club/McSherry Petitioners actively participated in these public meetings, and were represented at all the mediation sessions. No evidence was presented that the mediator acted less than capably and professionally during the mediation process. Mediation sessions were open to the press and public, though participation at the sessions was limited to the parties, which included the Sierra Club/McSherry Petitioners. Every person who requested individual notice of mediation sessions was included on an electronic mail distribution list and received notice. The Board's meetings on the mediation were publicly noticed, and extensive public comment was taken. Beginning in December 2002, a spreadsheet matrix was circulated that outlined the positions of the County and of the PRPV Petitioners on the narrowing list of issues that remained in dispute. As the mediation entered February 2003 and the County and PRPV inched closer to settlement, it became apparent that the County's position on many issues was beginning to diverge from that of its aligned Intervenors, the Sierra Club/McSherry Petitioners. Mr. Cambric, the mediator, offered to meet with Dr. Adams and Dr. Cantwell6/ in order to flesh out their issue positions for inclusion in a separate "intervenors" column of the spreadsheet matrix. On or about March 5, 2003, Mr. Cambric, Richard Drummond, and other County staff persons held the proposed meeting with Dr. Adams, Dr. Cantwell and the McSherrys. A revised matrix was circulated on March 11, 2003, that included a separate column setting forth Intervenors' position. On March 20, 2003, the matrix was further amended to add a separate column for the McSherrys, whose positions on some issues deviated from the positions of Dr. Adams, SAC, and the Sierra Club. It is clear from the documentary evidence and the testimony of various witnesses that the Sierra Club/McSherry Petitioners felt a degree of betrayal in the County's reaching a settlement with PRPV. However, the evidence was insufficient to establish their allegations that they were denied adequate participation in the process. The Sierra Club/McSherry Petitioners contend that the driving force in the settlement of PRPV's challenge was a change in the makeup of the Board in the wake of a primary election held on September 10, 2002. The political situation in Alachua County is obviously relevant to the concerns of the parties, but is beyond the scope of this proceeding. There is no need for detailed findings of fact concerning the Board elections or the positions taken by candidates for office in the County. Finally, the Sierra Club/McSherry Petitioners contend that jilted Intervenors; i.e., those who supported the County's initial litigation position in defense of the 2002 Plan Update and then opposed the Stipulated Settlement Agreement, should be allowed, by virtue of the realignment of parties pursuant to Subsection 163.3184(16)(f), Florida Statutes (2003), to step into the shoes of the original Petitioners and attack the 2002 Plan Update, as well as the 2003 Amendments. This contention was rejected at the hearing for reasons explained in the Conclusions of Law below. Extensive evidence, testimonial and documentary, was taken regarding the 2002 Plan Update. However, findings of fact concerning the 2002 Plan Update are confined to its interplay with the 2003 Amendments and to issues of internal consistency raised thereby. The Jonesville Petitioners raised procedural issues regarding the concluding phase of the mediation. On July 11, 2003, the Jonesville Petitioners filed a motion to intervene in the challenge to the 2002 Plan Update. Their concern was that the revised definition of "strategic ecosystem" in the proposed 2003 Amendments would adversely affect the value and/or development potential of their properties. At the hearing, the Jonesville Petitioners contended that they were not given adequate notice of the proposed change to the definition of "strategic ecosystem." Policy 1.1.2 of the Conservation and Aquifer Recharge Element of the 1991 Plan required the County "to provide notification to all property owners whose land use may be restricted due to proposed conservation or preservation designation in the Comprehensive Plan prior to official designation in the Alachua County Comprehensive Plan." The evidence established that the County complied with this policy, providing notice by mail in April 2003 to all owners of property proposed to be mapped as part of a "strategic ecosystem" site by the 2003 Amendments. The notice informed the property owners that their properties had been identified within the mapped areas and invited the property owners to attend one of a series of late-April 2003 informational workshops regarding the map. The Jonesville Petitioners received the mailed notices. The Board held a public hearing on approval of the Stipulated Settlement Agreement on July 15, 2003, and a public hearing on August 26, 2003, to adopt the 2003 Amendments. The Jonesville Petitioners had actual knowledge of the public hearings in July and August to approve the agreement and adopt the 2003 Amendments and were represented at those hearings. At the hearing in the instant proceeding, the Jonesville Petitioners complained that they submitted extensive site investigation reports to the Board at the July 15, 2003, demonstrating that their properties should not be considered "strategic ecosystems," but that they were allowed only three minutes to make their presentation at the hearing. There was no requirement that the Board allow lengthy, fact- intensive presentations concerning specific parcels of land during the public hearing to adopt the Stipulated Settlement Agreement. Nonetheless, the evidence established that the Jonesville Petitioners, like the other parties to the underlying litigation, would have been allowed more than three minutes had they requested it before the hearing. There was also no requirement that the County staff or the Board make a detailed response to the Jonesville Petitioners' site reports prior to the Board's adoption of the Stipulated Settlement Agreement or the 2003 Amendments. Further, as is more fully explored below in the findings as to the 2003 Amendments, the information provided by the Jonesville Petitioners was more appropriate to a land development scenario than to the large- scale comprehensive plan amendment process that the County was undertaking. In conclusion, it is found that neither the Sierra Club/McSherry Petitioners nor the Jonesville Petitioners demonstrated that their procedural rights under the Act or its implementing rules were violated by the process employed by the County during the mediation and when adopting the 2003 Amendments. 2003 FLUE Amendments Gated Communities and Cul-de-Sacs FLUE Objective 1.2 in the 2002 Plan Update states: Provide for adequate future urban residential development that includes a full range of housing types and densities to serve different segments of the housing market, designed to be integrated and connected with surrounding neighborhoods and the community, with opportunities for recreation and other mixed uses within walking or bicycling distance. The 2003 Amendments included the following changes to FLUE Policy 1.2.1.17/: Residential areas shall be designed to provide for an interconnected system of internal circulation, including the provision of streets dedicated to the public connecting the residential area to the major street system. New development shall not restrict preclude public access to the development or include cul de sacs. Residential areas shall also be designed to provide for substantial interconnectivity between adjacent developments and within developments, except where such connectivity is precluded by constraints resulting from physical layout of existing development or environmental features. If connectivity is precluded by such constraints, cul de sacs may be considered for those roads subject to such constraints. The land development regulations shall detail the requirements for public access and substantial interconnectivity based on standards such as a connectivity index, maximum separations between connections to adjacent developments, and rules relative to hours, operations, and public safety considerations for any restriction of access through use of gates. FLUE Policy 1.2.1.1 was new to the 2002 Plan Update. Its purpose is to assist in discouraging urban sprawl by encouraging street connectivity, thus, moving the County away from a development pattern of isolated residential subdivisions with only one or two points of ingress/egress. Adding connectivity features allows pedestrian or bicycle travel between subdivisions and disperses the flow of vehicular traffic by providing more points of entry to arterial roads. All of the parties agreed that interconnectivity is a positive value. The Sierra Club/McSherry Petitioners criticize amended Policy 1.2.1.1 for failing to define "substantial interconnectivity" and, therefore, providing no meaningful standards by which to determine whether a new residential development provides "substantial interconnectivity." They point out that the policy leaves it to subsequent land development regulations ("LDRs") to define the term, but provides little guidance and essentially standardless discretion to the drafters of the LDRs. The Sierra Club/McSherry Petitioners' chief concern was that a lax regulatory regime could define a single connecting road as "substantial interconnectivity" and, thereby, defeat the clear intent of the policy. Similarly, they observed that Amended Policy 1.2.1.1 refers to a "connectivity index," but provides no definition or guidance as to the meaning of the term, again leaving the LDR drafters limitless discretion. The Sierra Club/McSherry Petitioners suggest that the seeds for lax regulation are planted in the policy through its requirement that the LDRs provide for "maximum separations between connections to adjacent developments." They argue that, if the goal is to provide for interconnected developments, then the LDRs should logically provide for minimum, not maximum, separations between connections. This argument is rejected simply as a matter of logic because providing for maximum separations in the LDRs is precisely what can ensure interconnectivity.8/ Finally, the McSherry Petitioners argue that the amended policy's allowance of gated communities is in direct contradiction to its mandate that "[n]ew development should not preclude public access to the development." They contend that LDRs providing rules for "hours, operations, and public safety considerations for any restriction of access through use of gates" would create an internal inconsistency within FLUE Policy 1.2.1.1. The County presented testimony from Richard Drummond stating that amended FLUE Policy 1.2.1.1 strengthens existing Plan provisions for interconnectivity by adding the requirement for "substantial interconnectivity," and by adding a requirement that new development not preclude public access. Robert Pennock, PRPV's expert witness on local government comprehensive planning, with an emphasis on urban sprawl, testified that the term "substantial," in the context of FLUE Policy 1.2.1.1 and in combination with other policies in the Plan, is a meaningful qualifier indicating the County's intent that its future development pattern will not be a patchwork of isolated subdivisions with a single connection to an arterial road. Mr. Pennock pointed out that a degree of common sense must be applied to the use of the term in the development of LDRs and that it must be acknowledged that the details of the LDRs will be developed by professional planners. Mr. Pennock's comments regarding common sense and good faith on the part of the regulators points out the chief flaw in the Sierra Club/McSherry Petitioners' argument that a lax regulatory regime could employ the terms "substantial interconnectivity" and "connectivity index" in such a way as to allow developers to do whatever they wish. The argument fails to explain why such a hypothetical "bad regulator" could not twist the Sierra Club's favored term, "connectivity," in the same fashion. If one accepts the hypothetical premise of the "bad regulator" poised to do the bidding of residential developers regardless of any other considerations, then the text of the Plan will hardly matter; the bad regulator will find a way around the Plan's language. In fact, "substantial interconnectivity" is no more or less vague a term than "connectivity." As Mr. Pennock testified, these terms have meaning in the planning profession, and it must be accepted that the County will draft meaningful LDRs to implement FLUE Policy 1.2.1.1, including the challenged terms. In summary, the Sierra Club Petitioners did not establish that an outright ban on gated communities or cul-de- sacs is necessary for the County to have an efficient road network, meet applicable levels of service or Rule 9J-5 requirements, or that such a ban has ever been imposed elsewhere in Florida. It is at least fairly debatable that 2003 FLUE Policy 1.2.1.1 appropriately responds to the data and analysis and provides adequate guidance for development of LDRs. Clustering Florida Administrative Code Rule 9J-5.003(14) defines "clustering" as "the grouping together of structures and infrastructure on a portion of a development site." Clustering is a planning and development technique that transfers the allowable development density onto smaller lots on a portion of the property to be developed, in a tighter development pattern, that reduces road and infrastructure costs and that sets aside the remainder of the property for conservation, agriculture, or general open space. Residential cluster development is generally promoted as a means of conserving open space, rural character, and important environmental resources in new housing developments. According to the County's "Supporting Data and Analysis for Comprehensive Plan Amendments Updating the Alachua County Comprehensive Plan: 2001-2020" (the "Data and Analysis"), clustering is a "means to protect the characteristics and features of rural areas, while allowing for rural residential lifestyles." FLUE Policy 7.2.8 of the 1991 Plan required clustering in new rural residential subdivisions with 25 or more lots and made no provision to allow clustering for smaller subdivisions. Proposed clustered developments were required to seek permits as Planned Unit Developments, a lengthy and complicated zoning process that included review by County staff, recommendations by the Board, and final approval or denial by the Board at a public hearing. Every witness who testified on the subject agreed that the clustering provision of the 1991 Plan had been a failure. Only two proposed developments have sought permits as clustered developments, and both were denied. The County approved the construction of phased subdivisions, with each phase containing fewer than 25 lots and built to the base rural density of one unit per five acres. Smaller subdivisions were designed to fall below the 25-lot threshold for clustering. Richard Drummond noted that the 1991 Plan would not allow the developer of these smaller subdivisions to cluster even if he so desired. These subdivisions tend to be platted in such a way that each lot owner also owns a small part of the natural resources found in the subdivision, complicating any efforts by the County to preserve those resources. The consensus of the expert opinion was that clustering failed because developers tend to be conservative in designing subdivisions. Clustering is a new pattern for development, and 1991 FLUE Policy 7.2.8 offered insufficient incentive to developers to take the risk of building and marketing nontraditional developments and left them the option of sizing their developments to avoid the clustering requirement. In the 2002 Plan Update, proposed FLUE Policy 6.2.9 addressed the reluctance of developers to cluster by removing their option to avoid clustering by downsizing their projects. The policy would have required clustering in all new rural residential subdivisions. The 2003 Amendments softened the policy as follows: Policy 6.2.9 Clustering The preferred design for Nnew rural residential subdivisions shall be is that they be clustered in order to protect the characteristics and features of rural areas through the following goals: Protect natural and historic resources. Support continued agricultural activities by preserving viable soils and effective land masses. Minimize land use conflicts. Provide recreational and habitat corridors through linked open space networks. Achieve flexibility, efficiency, and cost reduction in the provision of services and infrastructure. Reduce natural hazard risks to life and property. The 2003 Amendments maintain the clustering requirement for new developments containing 25 or more lots, but attempt to provide more incentives to developers to use clustering in developments of any size. 2003 FLUE Policy 6.2.10, relating to allowable density and intensity of new development, provides for a "density bonus" as follows, in relevant part: The overall development density shall not exceed the maximum gross density of one dwelling unit per five acres for the Rural/Agriculture land use category, except as a result of incentive bonuses for clustering as provided under item 4 below, subject to the resource protection standards in the Conservation and Open Space Element. These standards include the following requirements: * * * 4. As an incentive to cluster new residential subdivisions, if a new residential subdivision in the Rural/Agriculture area is clustered with a minimum of 50% of the development in open space, a total of 2 units in addition to the number of units based on the gross density of 1 unit per 5 acres are allowed, plus 1 additional unit per every 10 acres of conservation area set aside as open space; plus 1 additional unit per every 20 acres non-conservation area set aside as open space. As a further incentive, the 2003 Amendments delete the Planned Unit Development aspect of clustered subdivision approval, expediting the zoning approval process. Under the clustering provisions of the 1991 Plan, rural subdivisions with more than 25 lots were required to set aside 80 percent of their area as open space. The 2003 Amendments reduce this open space set-aside to 50 percent. Richard Drummond persuasively noted that there is no practical reduction in the set-aside, because very few people subjected themselves to the clustering requirement of the 1991 Plan. Also, the 1991 Plan expressly disclaimed any intent that the open spaces remain undeveloped in perpetuity. 2003 FLUE Policy 6.2.12.4 provides that all future development in designated open space areas is prohibited and requires the filing of a legal instrument that runs with the land establishing that the open space will be maintained and remain undeveloped in perpetuity. Conservation is the highest priority among the open space uses recognized by the 2003 Amendments' provisions on rural development. 2003 FLUE Policy 6.2.5 requires clustering for a new development of more than 25 lots, then goes on to provide that a new development of fewer than 25 lots must either cluster or employ a development plan "that assures the permanent protection of natural resources consistent with the requirements of the [COSE]." 2003 FLUE Policy 6.2.5 further provides that the LDRs will detail the requirements for "management and permanent protection of the ecological value of natural resources in those developments that are not clustered, through legally enforceable mechanisms" that provide protections equivalent to those provided in clustered subdivisions. The Sierra Club Petitioners attacked the 2003 clustering provisions as being inconsistent with the 2002 Data and Analysis, which emphasize that urban sprawl is a major threat to the County's rural agricultural landscape. The Data and Analysis indicated "a rapid rate of conversion of the rural area to allow low density development," and concluded that "the rural land character is threatened by the piece-meal development of residential uses." Sierra Club places special emphasis on a 1992 report sponsored by the American Farmland Trust, Florida's Growth Management Plans: Will Agriculture Survive?, summarized and discussed in the 2002 Data and Analysis as follows: This report noted that the degree to which rural low density residential zones are effective in conserving farmland is directly related to the minimum lot size required for each residence. The larger the minimum lot size, the more effective the zone is in conserving farmland. The current policy [in the 1991 Plan] allowing residential development on 5 acre lots in the rural area is totally ineffective, according to this report. The minimum lot sizes can be rated as follows according to their effectiveness in conserving farmland: under 4.9 acres totally ineffective 5 to 9.9 acres generally ineffective acres moderately ineffective to 20 acres moderately effective 20.1 to 40 acres generally effective over 40 acres highly effective In the six years, 1995-2000, the average numbers for single family and mobile home permits issued by lot size in unincorporated Alachua County were as follows: Less than 3 acres 162 average yearly 3 to 8 acres 182 average yearly 8 to 12 acres 72 average yearly 12 to 20 acres 35 average yearly Total 20 acres or less 511 average yearly[9/] Relying on the quoted section of the Data and Analysis, Sierra Club argues that only mandatory clustering of subdivisions in the rural area can fulfill the goal of protecting the characteristics and features of the rural area. Sierra Club correctly notes that, in adopting the 2003 Amendments, the County provided no additional data and analysis to demonstrate that the density bonuses added to the Plan would lead to clustering under 2003 FLUE Policy 6.2.9, which eliminated mandatory clustering and simply made it the "preferred design." Sierra Club contends that the County was required to offer some expert testimony to indicate that density bonuses provided in 2003 FLUE Policy 6.2.10 would actually cause landowners to choose clustering. Alternatively, Sierra Club argues that if voluntary density-bonus clustering occurred, it could lead to considerably more dwelling units in rural areas than under the 1991 Plan. For example, if a 20-acre parcel with four 5-acre lots were clustered to leave ten acres of conservation area, then a total of seven units would be permitted for the parcel: four units based on the allowed rural density of one unit per five acres; two units as a bonus for leaving 50 percent of the development in open space; and one additional unit for setting aside ten acres of conservation area. Thus, seven units would be permitted, compared with four units that would have been allowed without the bonuses, and these seven would be situated on the ten unpreserved acres on lots with an average size of 1.43 acres. Sierra Club contends that these "ranchettes" would not meet the objective of maintaining viable agriculture and of providing a separation between urban and rural land uses. Thus, Sierra Club argues that, under any view, the 2003 Amendments are inconsistent with FLUE Objective 6.1: Rural areas shall protect rural and agriculture areas in a manner consistent with the retention of agriculture, open space, and rural character, and the preservation of environmentally sensitive areas and efficient use of public services and facilities. Richard Drummond contended that it is impossible at this point to say that the 2003 Amendments dealing with incentive clustering will not work. He conceded that the density bonuses provided in 2003 FLUE Policy 6.2.10.4 could be too much or not enough, but that the only way to know is to try it in practice, then use the experience to adjust the incentives in future plan cycles. Mr. Drummond credibly testified that given the lack of clustering that occurred under the mandatory provision of the 1991 Plan, it is a virtual certainty that there will be more clustered development under the 2003 Amendments. Sierra Club's criticism that density-bonus clustering will not have a great impact on the density of development in the rural area is well taken, but beside the point. The very 2002 Data and Analysis upon which Sierra Club bases its argument notes that "rural cluster subdivisions are simply an internal transfer of density involving the same number of dwellings." In other words, the chief purpose of clustering is not to affect overall density of development, but to arrange that development on the land in a more environmentally sensitive, aesthetically pleasing way than traditional grid-style platting of lots. The density bonuses offered by the 2003 Amendments will not notably alter the overall density of rural development, but that is not their main purpose. The County hopes that the density bonuses will provide sufficient incentive for developers to avail themselves of the clustering option. The County did not dispute Sierra Club's argument that the 2002 Data and Analysis support the mandatory clustering for all new development that was adopted in the 2002 Plan Update. However, the County does contend that the 2002 Data and Analysis do not require mandatory clustering as the only way to achieve the goals of retaining the rural character and preserving the environmentally sensitive areas of rural lands. The County is correct that the 2002 Data and Analysis provides a generally positive assessment of clustering, but nowhere forces a reader to conclude that mandatory clustering is required. Even accepting the Data and Analysis suggestion that allowing residential development on five-acre lots in the rural area is "totally ineffective" in conserving farmland and that controls show some effectiveness only when the minimum lot size is increased to ten acres, the fact remains that conserving farmland is not the sole value served by the clustering provision, nor should it be the sole measure of the provision's success. In addition to farmland conservation, 2003 FLUE Policy 6.2.9 cites protection of natural and historic resources, minimization of land use conflicts, provision of recreational and habitat corridors through linked open-space networks, achievement of flexibility, efficiency, cost reduction in the provision of services and infrastructure, and reduction of natural hazard risks to life and property as goals of the clustering provisions. While it may be true that lot sizes of more than 40 acres would be "highly effective" in conserving farmland, Alachua County seeks to balance all of the stated goals in its clustering provision and has arrived at a reasonable formula for achieving at least some progress on each of the goals. The County pointed out that Florida Administrative Code Rule 9J-5.006(5)(l) identifies clustering as an "innovative and flexible" planning strategy, but does not mandate clustering. Given the County's history of failure with one form of mandatory clustering, it is not unreasonable that it would attempt the application of an incentive program as an alternative. Urban Cluster/Urban Services Line10/ The 2003 Amendments amended the Future Land Use Map series ("FLUM"), a necessary part of the FLUE pursuant to Florida Administrative Code Rule 9J-5.006(4). FLUE General Strategy 1 provides that the Plan must: Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following: Designate and maintain on the [FLUM] an urban cluster that sets a boundary for urban growth. Provide incentives for higher average densities for residential development and mixed uses in the urban cluster, including density bonus and transfer of development rights. Provide a range of urban residential densities with the highest densities located in or near urban activity centers, and lower densities located in outlying rural areas or areas of the County which have physical limitations to development. . . . The "Urban Cluster" is defined as: An area on the [FLUM] for urban development, which includes residential densities ranging from one unit per acre to 24 units per acre or greater, non- residential development, and is generally served by urban services. The Urban Cluster designation on the FLUM sets a boundary for urban growth in order to maximize the efficient use of available urban infrastructure and to preserve environmentally sensitive areas to minimize urban sprawl. The 2002 Plan Update uses the Urban Cluster to differentiate between urban and rural uses and encourages higher densities in the Urban Cluster in order to use land efficiently. To further the efficient use of land, the 2002 Plan Update also established an "urban services line" ("USL") within the Urban Cluster. FLUE Policy 7.1.3.A describes the USL as follows: In order to phase development for the Urban Cluster and promote efficient use of land and infrastructure and minimize sprawl, an urban services line is designated in the Future Land Use Map series. The line identifies the limits of the area within the Urban Cluster within which phased development shall be promoted through the year 2010. The USL's ten-year planning period, through 2010, is shorter than the planning period for the Urban Cluster, which is through 2020. The purpose of USL is to provide better timing of development within the urban area, to encourage redevelopment and direct new development to areas where infrastructure exists or will be available. The 2003 Amendments expanded the Urban Cluster as part of the FLUM series. The 2003 Amendments also expanded the USL within the Urban Cluster on the FLUM series. The appropriate size for the USL and the Urban Cluster depends on the amount of land needed for projected population growth. FLUE Policy 7.1.3 establishes the process for determining the need for additional developable land to accommodate the projected population as follows: As part of the periodic update of the Comprehensive Plan and any proposed amendments to the Urban Cluster, determine a sufficient and nonexcessive amount of land within the Urban Cluster to accommodate urban uses for a ten year and twenty year time frame. The determination (methodology is shown in Appendix A)[11/] shall be based on a comparison of: a forecast need for land for urban residential and non-residential development based on projected population, average household size, a residential vacancy rate, and a market factor. The market factor for the ten year time frame shall be 2.0. The market factor for the 20 year time frame shall be 1.5. land available in the Urban Cluster for urban residential and non-residential uses. Mapping of environmentally sensitive areas shall be utilized as a factor for determining land availability. If the land comparison shows that the land available is less than the forecast need for land, the following measures shall be considered: revisions to density standards and land development regulations, or other measures, to accommodate greater population within the existing Urban Cluster. coordination with municipalities regarding possible reallocation of forecast need to the incorporated areas. phased expansion of the Urban Cluster. If the forecast need for one type of land use exceeds the supply of land for that particular use, a revision to the allocation of land uses within the Urban Cluster shall be considered before the Urban Cluster is expanded. If this methodology determines expansion of the Urban Cluster is warranted, the evaluation of appropriate location shall be subject to analysis including the following economic, infrastructure, transportation, conservation and recreation criteria: rural character and viable agriculture land and the potential impact of expansion of the Urban Cluster on existing agricultural uses. economic development considerations including affordable housing. relationship to existing and planned future urban services and infrastructure. access to the regional transportation network and multi-modal transportation systems. Conservation and Preservation land uses. planned recreation/open space or greenway systems. Thus, FLUE Policy 7.1.3 provides a three-step process for determining "a sufficient and nonexcessive amount of land" to accommodate urban uses. First, there must be a calculation of the estimated need for land to accommodate the projected population. The second step is to calculate the amount of vacant land currently available for urban residential use. Third, a comparison is made between the need for and the availability of vacant land to determine whether and how the FLUM should be amended. In calculating need, the County built into its formula a safety factor to ensure sufficient land for the future population over the projected time period. The real estate market requires some excess capacity to prevent scarcity-driven price increases, and the County, therefore, included a "market factor" in determining the amount of land that should be designated for development. The 2002 Data and Analysis explained the principle as follows: A market factor is included in the calculation to allow for a measure of flexibility between supply and demand. A sufficient market factor allows flexibility in the siting of development, thereby helping ensure that developers can find locations favored by the market. Market factor is a multiplier used in developing a forecast of future land use needs, specifically housing, to allow for market choice. The market factor results in additional developable land in the urban cluster and thereby can have a positive effect on housing affordability. The market factor also addresses market uncertainty with respect to the accuracy of market predictions, for example if some landowners withhold their land from development. The market factor ensures that enough land is set aside for residential purposes to accommodate these residential support activities-- parks, easements for utilities, churches, to name a few. Across the country the range in factors is as low as 1.15 (Portland, Oregon) to over 2.0 (several Florida locations). Alachua County has used the market factor 2.0 for calculations for the year 2010 and the market factor 1.5 for the year 2020. The County multiplied the number of new dwelling units needed over the 2010 and 2020 planning horizons by the market factors chosen for those periods to arrive at a "total capacity needed" number. The Sierra Club/McSherry Petitioners contended that the market factors chosen by the County were too high and that 1.25 was a more reasonable figure for the County. Mr. Pennock, PRPV's planning expert, testified that there is no "final magic answer" to the question of the market factor number. He stated that 1.25 is a "conservative" market factor, and that 2.0 is a professionally acceptable number. It is found that the County's market factors of 2.0 for the year 2010 and 1.5 for the year 2020 were reasonable, in light of all the evidence. After determining the amount of land needed over the planning horizon, the second step in the County's formula is to determine the amount of vacant land currently available for urban residential use. In order to determine the amount of land currently available, there must be a calculation of the number of units per acre available for future residential development. The two components of this calculation are, first, the number of acres presently within the Urban Cluster or USL, and second, the residential dwelling unit density allowed within that acreage. FLUE Objective 1.3 provides that "[g]ross residential densities shall be established to serve as a guideline for evaluating development in Alachua County." FLUE Policy 1.3.2 classifies the densities as follows: The following classification of gross residential densities shall serve as a standard for evaluating development in Alachua County, unless specific provisions are otherwise provided in the Plan. a. Urban Residential Densities - Areas designated on the [FLUM] for gross residential densities of one unit per acre or greater shall be considered as urban in character. There shall be four gross residential density ranges as follows: Low Density One to Four dwelling units per acre Medium Density Greater than Four to less or equal to Eight dwelling units per acre Medium-High Greater than Eight to less than or equal to 14 dwelling units per acre High Density Greater than 14 to less than or equal to 24 dwelling units per acre The Sierra Club/McSherry Petitioners contend there was already an excess of acres available for development relative to need for the projected population, even before the 2003 Amendments expanded the Urban Cluster and the USL. They point to the 2002 FLUE Data and Analysis, which explained that the need calculations resulted in a finding that there were 7,396 acres available for urban development beyond the projected need in the Urban Cluster through the year 2010, and 4,378 acres beyond the projected need in the Urban Cluster through the year 2020. The 2002 Data and Analysis concluded: "Therefore there is no need in both 2010 and 2020 for modification of the area designated for urban development." Nonetheless, the 2003 Amendments added an additional 434 acres to the Urban Cluster, thereby increasing the available acres for development to 8,370. Richard Drummond explained that the County discovered, after the EAR process and the adoption of the 2002 Plan Update, that some of the population projections for the unincorporated areas were in error. The County also found miscalculations in terms of the existing housing stock. Mr. Drummond stated that the 2002 projections did not reflect the impact that the Plan's new environmental and floodplain policies could have on existing development capacity, or the fact that some private property owners had made it known their land would not be available for development. Mr. Drummond emphasized that the final need projections reflected the methodology that the County chose to employ and conceded that other methodologies could be used to arrive at different projections. The Sierra Club Petitioners have set forth at some length the methodologies they believe should have been employed by the County as regards establishment of the Urban Cluster and USL. At the outset, the Sierra Club Petitioners have challenged the County's methodology for calculating the number of needed dwelling units and corresponding acreage. They contend that the County calculated an excessive amount of acreage based on outdated historical data, rather than on the maximum gross residential densities allowed under the updated Plan. In making its acreage calculations, the County assumed that the low density residential areas would have an average density of 1.6 dwelling units per acre ("DU/acre"). Sierra Club contends that the County placed undue reliance on historical evidence that the density trends in the low density category was 1.34 DU/acre from 1980-1990, and 1.6 DU/acre from 1991-1997, when the County's own EAR provided more recent evidence that the objective of 2.0 DU/acre was being achieved. Mr. Drummond testified that a goal of the 2002 Plan Update was to increase the density of development within the low-density range. Sierra Club contends that using higher densities in the calculations of needed acreage would better support that goal and that the County was, therefore, required to base its calculations of the land presently available to serve the projected need on the maximum available density. The Sierra Club Petitioners argue that basing the projections on historical trends "perpetuates old planning mistakes," and is internally inconsistent with FLUE General Strategy 1's requirement that the Plan provide "incentives for higher average densities for residential development and mixed uses in the urban cluster." They conclude that the maximum available density of 4.0 DU/acre should have been the County's basis for allocating acreage in the low density category, rather than the historically-based 1.6 dwelling units per acre presented by the County. The Sierra Club Petitioners offered a detailed recalculation of the "needed acres" for the Urban Cluster and the USL based on a density of 4.0 DU/acre, rather than 1.6 DU/acre, concluding that Alachua County overestimated the needed land by 2,737 acres in the low-density residential category. They performed a similar recalculation of need in the medium-high and high-density residential categories based on the maximum allowable density, rather than the historic "average density" used by the County. It is not necessary to set out the recalculation here because it is found that the Sierra Club Petitioners failed to demonstrate that the methodology employed by Alachua County to project the acreage needed for development in 2010 and 2020 was so unreasonable as to be beyond fair debate, or that their substituted methodology was correct and accurate beyond fair debate. The Sierra Club Petitioners may be correct in their contention that the Plan's goal of increasing densities in low-density residential developments would be better supported by use of maximum allowable densities in the need projections. There is little doubt that reducing the acreage available for development would force more compact development in the Urban Cluster, but there is no indication that the County's projections present an unreasonable risk of urban sprawl. Both Richard Drummond and Mr. Pennock discussed other Plan goals, such as avoiding a distortion of the real estate market caused by allocating too little land for development, that the Sierra Club Petitioners' methodology arguably does not address or would even subvert. In arriving at its methodology, Alachua County necessarily struck a balance in its priorities. Richard Drummond candidly testified that there were other ways to arrive at the need projections. The Sierra Club Petitioners reasonably disagree with that balance and believe that the community would be better served through tighter controls on expansion of urban development. This is a disagreement to be resolved through the political process and is certainly not beyond "fair debate" for either side of the argument in the context of this administrative proceeding. The Sierra Club Petitioners contend that the "development factor" employed in the calculation of capacity needed within the Urban Cluster and USL also contributes to inflating the estimate. As part of the formula used to calculate the land needed to accommodate the projected population, Alachua County applied a "development factor" of 0.5 to the residential units available on vacant land identified as "strategic ecosystems" or wetland areas, thus halving the available acreage in those areas. The 0.5 development factor was applied in recognition of the Plan's policies requiring that 50 percent of such lands be preserved from development. The Sierra Club Petitioners argue that the County's reasoning ignores FLUE Policy 6.2.10, which allows the landowner to cluster the total number of available residential units for an entire parcel on the developable 50 percent of the property. Thus, while 50 percent of the property is placed in conservation with no dwelling units, the dwelling units for the total acreage can be built on the remaining 50 percent of the property. The Sierra Club Petitioners argue that this methodology leads to an understatement of the acreage available for development and, thereby, underestimates the number of available dwelling units. Mr. Drummond explained that the "development factor" is intended to account for several contingencies. Some property owners might not choose to cluster and, therefore, would not develop the remaining 50 percent at the maximum density. More than 50 percent of some properties might be set aside after their boundaries are ground-truthed.12/ Because of such contingencies, the County decided to adjust the calculations so that its estimate would include the net acreage that would be fully available for development. This rationale could lead to some excess of vacant residential lands if a significant number of the conservation/wetlands properties are developed to their maximum density, but it cannot be deemed wrong beyond fair debate for Alachua County to seek certainty under its formula. FLUE Policy 7.1.3.d, set out in full above, requires the County to evaluate the appropriate location for expansion of the Urban Cluster according to the criteria set forth therein. The Sierra Club Petitioners contend that Alachua County did not provide data and analysis to demonstrate compliance with these locational standards in its 2003 Amendment to the FLUM for the Urban Cluster. The 2002 FLUE Data and Analysis provide that development outside of the USL "must provide a full compliment of urban services." Mr. Drummond testified that because the 2002 Plan Update requires that all new development in the urban area must hook up to central water and sewer services,13/ the 2002 USL was based on proximity to those services, which became "the primary indicator for the rational progression of urban development." The Sierra Club Petitioners have challenged the 2003 Amendments' expansion of the USL to include all land in "common ownership" outside of the parcels on the 2002 FLUM map. According to Mr. Drummond, the common ownership included parcels where there was "a legal relationship between the corporate entities that owned the property." The Sierra Club Petitioners claim that the County "failed to demonstrate that the method of including all parcels within common ownership within the expanded Urban Cluster or [USL] was a professionally acceptable methodology." The Sierra Club Petitioners assert that the effect of this change is to add property within the USL regardless of proximity to existing infrastructure in contravention of 2002 FLUE Policy 7.1.3(d). It is found that the County's recognition of properties under common ownership in setting the USL, where at least part of the property meets all criteria for inclusion within the USL, appears on its face to be a sensible amendment. In this proceeding, the burden was not on the County to demonstrate that its methodology was "professionally acceptable." Rather, the burden was on Petitioners to demonstrate that the methodology did not meet the "fairly debatable" standard of acceptability. Petitioners failed to make that demonstration as to this issue. The Sierra Club Petitioners claim that because the expansion of the USL in the 2003 Amendments was based on availability of central water and sewer, it is internally inconsistent with other provisions of the Plan. FLUE Principle 2 requires the Plan to "[b]ase new development upon the provision of necessary services and infrastructure." FLUE General Strategy 1.f. provides that the Plan should: Minimize the conversion of land from rural to urban uses by maximizing the efficient use of available urban infrastructure, while preserving environmentally sensitive areas, according to the following: * * * f. Time development approval in conjunction with the economic and efficient provision of supporting community facilities, urban services, and infrastructure, such as streets, utilities, police and fire protection service, emergency medical service, mass transit, public schools, recreation and open space, in coordination with the Capital Improvements Element. The Sierra Club Petitioners assert that the County has failed to comply with these provisions because it based the expansion of the Urban Cluster and the USL on only one form of infrastructure, central sewer and water, while ignoring the availability of "supporting community facilities, urban services, and infrastructure" such as schools, police and fire protection, emergency medical service, mass transit, and recreation and open space. The evidence does not support this assertion beyond fair debate. The USL is a timing and phasing mechanism for development within the Urban Cluster over a ten-year planning horizon and is intended to encourage redevelopment and to direct new development to areas where public infrastructure exists or will be available. To the east, the County has located the USL coterminously with the Urban Cluster in order to promote redevelopment in the east Gainesville area. To the west, the USL is located a quarter-mile outward from existing and planned central water and sewer lines, without splitting ownership lines on individual parcels, except that in an area to the southwest near Archer Road, the USL is located a half- mile from existing and planned central water and sewer lines in order to promote this area as a future transit corridor. It is at least fairly debatable that the establishment and location of the USL is supported by appropriate data and analysis and that the County considered other infrastructure factors in drawing the lines of its urban boundaries. Water and Sewer Line Extensions In the 1991 Plan, Potable Water and Sanitary Sewer Element ("PWSSE") Policy 8.2 provided, in relevant part: Proposed extensions of potable water and sanitary sewer lines outside of the urban service area designated by the [FLUE] shall be subject to approval by the Board of County Commissioners. . . . The 2002 Plan Update renumbered the quoted provision as PWSSE Policy 3.5 and changed the term "urban service area" to "Urban Services Line," but otherwise left the text unamended. The 2003 Amendments changed the term "Urban Services Line" to "Urban Cluster." The Sierra Club Petitioners contend that the effect of the latter change is to allow the extension of water and sewer outside the USL, but within the Urban Cluster without the approval of the Board. They point out that the City of Gainesville owns and operates Gainesville Regional Utilities ("GRU") and that Alachua County historically has had little to no control over the pattern of development based on utility service. Mr. Drummond conceded that allowing the utility provider to dictate the pattern of development led to low- density sprawl. Thus, the Sierra Club Petitioners contend that the 2003 Amendment to PWSSE Policy 3.5 weakens the ability of the County to control growth through the phasing envisioned by the USL, because the County has no control over how the growth is "phased" when it lacks control over utilities. The County replies that the 2003 Amendments' change of "Urban Services Line" to "Urban Cluster" merely corrects a scrivener's error. Mr. Drummond testified that the 2002 Plan Update version of PWSSE Policy 3.5, requiring Board approval of water and sewer extensions outside the USL, unintentionally conflicted with FLUE Policy 7.1.3.B, which provides a mechanism for development to occur outside the USL but within the Urban Cluster without Board approval. The 2003 Amendment corrected the error and brought PWSSE Policy 3.5 into harmony with FLUE Policy 7.1.3.B. It is found that the 2003 Amendment to PWSSE Policy 3.5 does not represent a substantive change to the Plan. As to Petitioner's "lack of control" critique, the County responds that the City of Gainesville's Plan calls for coordination with the County's Plan when proposing utility line extensions. Mr. Drummond testified that the City of Gainesville's Plan recognizes that GRU will extend its utility lines in the unincorporated area in a manner consistent with the County's Plan. It is at least fairly debatable that the 2003 Amendments are supported by data and analysis and do not inappropriately delegate planning authority to the City of Gainesville or GRU. 2003 COSE Amendments Strategic Ecosystems The 1991 Plan employed the term "conservation area" to describe properties meriting special protection, including areas with significant geologic features such as springs and caves, wetlands, areas subject to 100-year flooding, and surface waters and their transitional zones. The 2002 Plan Update recognized both "primary" and "secondary" conservation areas. 2002 COSE Policy 3.1.1 provided: Primary conservation areas shall consist of natural resources that, because of their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures to sustain their ecological integrity. These areas shall include: Wetlands; Surface waters; Wellfield protection areas; Listed species habitat; Significant geologic features; and Strategic ecosystems.[14/] "Strategic ecosystem" was a new term added by the 2002 Plan Update and was defined in the 2002 COSE definitions as follows: Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System" (1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida" (2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Golder's "Alachua County Ecological Inventory Project" (1996). 2002 COSE Objective 4.10, not amended in 2003, provides that it is the County's objective to "[p]rotect, conserve, enhance, and manage the ecological integrity of strategic ecosystems in Alachua County." The 2002 COSE Policies implementing Objective 4.10, which were all new to the 2002 Plan Update, provided: Policy 4.10.1 Conserve ecosystems that are determined to be strategic based on an overall assessment of the following characteristics: Natural ecological communities that exhibit: Native biodiversity within or across natural ecological communities. Ecological integrity. Rarity. Functional connectedness. Plant and animal species habitat that is: Documented for listed species. Documented for species with large home ranges. Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering. High in vegetation quality and species diversity. Low in non-native invasive species. Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration. Policy 4.10.2 Strategies shall be implemented through the land use planning and development review process to ensure that each strategic ecosystem is evaluated and protected based on the integrity of the ecological unit. Policy 4.10.3 The County shall create special area plans in cooperation with landowners to establish specific guidelines for strategic ecosystems prior to approval of land use change, zoning change, or development approval. The County shall devise a schedule for creating special area plans, based on current development pressures and anticipated priorities. The County shall create special area plans for each strategic ecosystem, in accordance with the schedule and with the standards under Objective 3.6.[15/] If an applicant seeks development prior to the County's creation of a special area plan for a particular strategic ecosystem, the applicant has two avenues for pursuing development. A special area study may be conducted at the applicant's expense. Alternatively, if the applicant demonstrates that the ecological integrity of the strategic ecosystem will be sufficiently protected, the applicant may proceed according to the clustering provisions in policies under Objective 6.2 of the [FLUE]. Policy 4.10.4 Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans and may include, but are not limited to: Prescribed burning. Control of invasive species. Silvicultural activities according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems. Reduction in the intensity of site preparation activities, including bedding and herbicide application. Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas. Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting. Land acquisition. Policy 4.10.5 Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM]. Policy 4.10.6 The County shall provide regulatory flexibility to facilitate planning across multiple parcels that protects the integrity of the strategic ecosystem as an ecological unit. Existing cluster and PUD ordinances shall be revised to enhance long-term protection of strategic ecosystems. Policy 4.10.7 The County shall work with owners of agricultural and silvicultural lands to retain the ecological integrity and ecological value of strategic ecosystems through management plans and incentives. A management plan shall be required before any activity occurs in a strategic ecosystem that has not been used for agriculture or silviculture within the last 20 years, in accordance with the following: The management plan shall provide for retention of the ecological integrity and ecological value of the strategic ecosystem. The management plan shall be submitted to Alachua County for review and approval by appropriately qualified technical staff. The management plan may be satisfied by Forest Stewardship Council certification, land acquisition, or participation in a conservation program sponsored by the USDA Natural Resources Conservation Service. Passive recreational and ecotourism activities shall be encouraged where consistent with protection of the ecological integrity of the strategic ecosystem. The County shall, through community outreach and collaboration, facilitate participation of landowners in forestry certification programs, land acquisition programs, and federal and state cost-share conservation programs, such as the Environmental Quality Incentive Program, the Conservation Reserve Program, the Wildlife Habitat Incentive Program, and the Farmland Protection Program. Policy 4.10.8 Alachua County shall implement an ordinance that specifically addresses the preservation of strategic ecosystems, significant plant and wildlife habitat, habitat corridors, and vegetative communities. The 2003 Amendments deleted 2002 COSE Policy 3.1.2, which had defined "secondary" conservation areas. The 2003 Amendments amended 2002 COSE Policy 3.1.1, set forth above, by deleting the first word, "Primary." The effect of these amendments is that the policy now simply defines "conservation areas" without distinction as to their being "primary" or "secondary." The 2003 Amendments also deleted "Wellfield protection areas" from the definition of "conservation areas," replacing it with "100-year floodplains." Finally, the 2003 Amendments changed the definition of "strategic ecosystem" to read: Outstanding examples of ecosystems that are intact or capable of restoration and that require conservation or management to maintain important reserves of biodiversity at landscape, natural community and species specific levels. Strategic ecosystems are greater than 20 acres in size and contain one or more natural ecological communities, including but not limited to scrub, sandhill, xeric hammock, upland pine forest, upland mixed forest, mesic hammock, prairie hammock, wet prairie, seepage slope, slope forest, mesic flatwoods, scrubby flatwoods, floodplain forest, baygall, wet flatwoods, and hydric hammock. The natural resources that comprise strategic ecosystems are identified through means including, but not limited to: the Florida Fish and Wildlife Conservation Commission's "Closing the Gaps in Florida's Wildlife Habitat Conservation System"(1994), as supplemented with "Habitat Conservation Needs of Rare and Imperiled Life in Florida"(2000); FDEP's "Statewide Ecological Network," contained in The Greenways System Planning Project (1998); the Florida Natural Areas Inventory; and Sites that are identified in the KBN/Golder's Associates report, "Alachua County Ecological Inventory Project" (1996). The 2003 Amendments amended the 2002 COSE Policies implementing Objective 4.10 as follows: Policy 4.10.1 Conserve strategic ecosystems that are determined through ground-truthing using the KBN/Golder report as a guide to be strategic maintain or enhance biodiversity based on an overall assessment of the following characteristics: Natural ecological communities that exhibit: Native biodiversity within or across natural ecological communities. Ecological integrity. Rarity. Functional connectedness. Plant and animal species habitat that is: Documented for listed species. Documented for species with large home ranges. Documented as a special wildlife migration or aggregation site for activities such as breeding, roosting, colonial nesting, or over-wintering. High in vegetation quality and species diversity. Low in non-native invasive species. Size, shape, and landscape features that allow the ecosystem to be restored to or maintained in good condition with regular management activities, such as prescribed burning, removal of exotic vegetation, or hydrological restoration. The Alachua County 2001 digital orthophotographic series (for purposes of this policy, the date of this photography is March 1, 2001) shall presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy. The County shall adopt land development regulations that set forth additional guidance for the determination of whether and the extent to which strategic ecosystems exist on a property. * * * Policy 4.10.4 Management strategies for strategic ecosystems shall be developed with landowners in conjunction with special area plans or cluster developments and may include, but are not limited to: Prescribed burning. Control of invasive species. Silvicultural activies according to BMPs [best management practices], with particular emphasis on maintenance and improvement of water quality, biological health, and the function of natural systems. Reduction in the intensity of site preparation activities, including bedding and herbicide application. Provision for listed species habitat needs, including restricting, at appropriate times, intrusions into sensitive feeding and breeding areas. Cooperative efforts and agreements to help promote or conduct certain management activities, such as cleanups, maintenance, public education, observation, monitoring, and reporting. Land acquisition. * * * Policy 4.10.5 Clustering shall be required so that at least 80% of each strategic ecosystem is preserved as undeveloped area. Development shall be designed in accordance with the standards under Objective 3.6 of this Element. In the rural area, development shall also comply with standards under Objective 6.2 of the [FLUM]. Policy 4.10.5 Each strategic ecosystem shall be preserved as undeveloped area, not to exceed 50% of the upland portion of the property without landowner consent and in accordance with the following: Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 50% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation. This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 and 4.5, respectively. This limitation shall not restrict in any way state and federal agency protections. The remaining Policies implementing 2002 COSE Objective 4.10 were not amended by the 2003 Amendments. Thus, the definition of "strategic ecosystem" was amended from an identification of sites based upon the characteristics of their ecological communities to a question of whether a given property is found on a "strategic ecosystems" map sourced from the "Alachua County Ecological Inventory Project" prepared by KBN/Golder Associates (the "KBN/Golder Report"). In 1986, the County retained the Gainesville firm of KBN Engineering and Applied Sciences, Inc. ("KBN") to conduct a survey of potential ecologically significant upland properties. The purpose of the survey, completed in 1987, was to provide information on important upland sites for planning purposes, principally to complete the Conservation Element of what would become the 1991 Plan, and to assist the Alachua County Conservation and Recreation Areas Task Force in greenbelt planning. In November 1996, the County commissioned KBN, now a subsidiary of Golder Associates, to produce the KBN/Golder Report, which built upon the 1987 survey to compile the most extensive study to date of ecological communities in the County. The stated purpose of the KBN/Golder Report was to "identify, inventory, map, describe, and evaluate the most significant biological communities, both upland and wetland, in private ownership in Alachua County and make recommendations for protecting these natural resources." A total of 47 sites were identified and ranked based on their quality of vegetation and landscape ecology, their status as habitats for endangered species and wildlife in general, their hydrology, and their management potential. The 1996 KBN/Golder Report was more comprehensive than its predecessor study in that it covered a larger area, evaluated wetlands as well as uplands, and included mapping of ecological connections and biological communities. KBN/Golder accumulated and evaluated a wide range of data in the process of preparing the Report including: the 1987 KBN survey; a 1995 set of infrared aerial photographs provided by the St. Johns River Water Management District ("SJRWMD"), as well as a 1986 set of infrareds provided by the Alachua County Department of Environmental Services; a 1994 set of black and white aerial photographs provided by the Alachua County Property Appraiser's Office; Florida Fish and Wildlife Conservation Commission ("FFWCC") habitat distribution maps; SJRWMD wetlands vegetation maps; Florida Natural Areas Inventory natural community/plant community classification categories; and SJRWMD and Suwannee River Water Management District Floridan Aquifer recharge maps. The KBN/Golder Report described its methodology and limitations as follows: The inventories were done by David Clayton and Bob Simons, working separately. Landowners were contacted where access was necessary for the survey work, and those lands where access was denied were inventoried using aerial photographs, outside sources of information, and whatever information could be obtained by observations from the property boundary. Initially, a review was made of the USGS topographic quadrangle maps (various dates) and aerial photographs... to determine access, location of communities, drainage features, and karst features. Next, vehicle or pedestrian surveys of all accessible areas were used to get an overall view; to discern as many biocommunities as possible; to look for exotic species, listed species, or signs of habitat for listed species; and to evaluate the overall wildlife habitat and the condition of the communities. Specific sites were chosen to inventory in more detail. Limitations for this survey were the large number of sites, the vast acreage, and the restricted time available. Thousands of acres on 47 sites were surveyed within 8 weeks, necessitating limited survey time on the larger sites. Terrestrial species were emphasized because 90 percent of the area surveyed is terrestrial. The Jonesville Petitioners contested the validity of the 2003 Amendments regarding strategic ecosystems on several grounds. Common to all these grounds is a disagreement on the meaning of the strategic ecosystems definition and its interplay with COSE Objective 4.10 and its implementing policies, as amended by the 2003 Amendments. The Jonesville Petitioners argue that defining the term "strategic ecosystem" by way of the map in the KBN/Golder Report is fatally flawed because it provides no flexibility. If a property is identified on the KBN/Golder Report map, then it is a strategic ecosystem subject to the restrictions of COSE Objective 4.10, without regard to the facts on the ground. The definition makes no provision for ground-truthing the property prior to inclusion in the strategic ecosystem category. The County responds that 2003 COSE Policy 4.10.1 provides for more detailed identification of strategic ecosystems through ground-truthing, using the KBN/Golder Report as a guide. 2003 COSE Policy 4.10.1 also provides that the County's LDRs will provide additional guidance to determine whether and to what extent, strategic ecosystems exist on a property. The Jonesville Petitioners answer that there is a fundamental conflict in the policy's purported use of the KBN/Golder Report as a "guide" to delineating strategic ecosystems, when the definition provides that identification on the KBN/Golder Report is all that is required to establish a property as a strategic ecosystem. Subsequently adopted LDRs cannot provide guidance as to whether strategic ecosystems exist on a property; by definition, the KBN/Golder Report map determines whether there are strategic ecosystems. The Jonesville Petitioners argue that the only correct way to take a property out of the strategic ecosystem category would be to amend the adopted KBN/Golder Report map, thus amending the definition of "strategic ecosystem." The Jonesville Petitioners' argument fundamentally concedes that, if the definition were to provide for ground- truthing based on the characteristics set forth in 2003 COSE Policy 4.10.1, it would be unexceptionable. However, they point out that 2003 COSE Objective 4.10 and its policies apply to all "strategic ecosystems," that "strategic ecosystems" are also subject to regulation as "conservation areas" under COSE Policy 3.1.1, and that the ground-truthing provided by 2003 COSE Policy 4.10.1 does nothing to change the definition. Under this definitional scheme, a landowner whose property is identified on the KBN/Golder Report map can do nothing to take his property out of the strategic ecosystems definition, short of petitioning the County to amend its Plan, and is subject to all COSE provisions dealing with strategic ecosystems. The undersigned agrees with the Jonesville Petitioners that the County would have been better served to refine its definition of "strategic ecosystem" to include the standards set forth in 2003 COSE Policy 4.10.1. The undersigned does not agree that the County's failure to do so invalidates the definition under the "fairly debatable" standard, given the County's interpretation of the interplay among the applicable policies. By using the KBN/Golder Report map to set the boundaries of strategic ecosystems, the County attempted to delineate reasonably large, contiguous areas, rather than create a "swiss cheese" pattern of intermixed conservation and non-conservation lands; i.e., designating isolated pockets of conservation within a large non-conservation area, or vice versa. The County made a general determination that strategic ecosystem site boundaries should be delineated with simple straight lines, rather than by the edges of land features, such as vegetative cover. The County reasonably decided that a straight boundary, such as a section line is easier to administer and more easily communicated to the public than a natural feature such as vegetation, which would require a survey and is often characterized by a gradual change, rather than the sharp demarcation necessary for a boundary. The County recognized that under this approach, strategic ecosystems would include some areas neither particularly environmentally sensitive, nor valuable as habitat. 2003 COSE Policy 4.10.1 provides for ground-truthing to further refine the delineation of the boundaries of the strategic ecosystem properties to more specifically identify the most environmentally sensitive portions of the property and to assist in the determination of appropriate protection measures. Under the COSE Objective 4.10 policies, set forth in full above, the County will use the KBN/Golder Report map and the more detailed information provided by additional ground-truthing to identify the least environmentally sensitive portion of the strategic ecosystem property, so that any development can be directed and clustered there, and away from the most environmentally sensitive portion of the property. The landowner will retain the right to transfer the same number of residential units as allowed by the density limits of the underlying land use classification to the least sensitive portion of the property, notwithstanding the strategic ecosystems designation. The County's explanation of the interplay among the Plan provisions effectively addresses the concerns of the Jonesville Petitioners regarding "erroneously mapped" parcels, i.e., parcels that are identified on the KBN/Golder Report map, but that, in fact, are not environmentally sensitive. The Jonesville Petitioners are technically correct that because identification on the KBN/Golder Report map defines a property as a strategic ecosystem, subsequent ground-truthing does nothing to remove the property from that definition. However, the Jonesville Petitioners' argument depends on a reading of the Plan that is not merely literal, but blinkered. One must accept that the definition is absolutely controlling and that if a property is on the KBN/Golder Report map, then every individual plan provision referencing "strategic ecosystem" will apply to the property regardless of the natural characteristics found on the ground. A fair reading of the 2003 Amendments makes it clear that the definition of "strategic ecosystem" is the beginning of the analysis, not the end. The County acknowledged that, while the data on the KBN/Golder Report map are professionally accepted for general planning purposes, the data are not detailed enough for regulatory purposes on the level of individual parcels. Thus, once the map designates a property as a strategic ecosystem, 2003 COSE Policy 4.10.1 requires ground- truthing to determine whether and to what extent that strategic ecosystem is subject to conservation. Later adopted LDRs will provide additional guidance "for the determination of whether and the extent to which strategic ecosystems exist on a property." This treatment is similar to that found in 2002 COSE Policy 3.3.4 regarding conservation and preservation areas on the FLUM generally: Site Specific Delineation: The parcel- specific boundaries of preservation and conservation areas shall be verified by ground surveys conducted in the course of special studies or development review. County-initiated mapping efforts shall be performed at the County's expense, except when an applicant seeks land use change, zoning change, or development approval prior to the completion of the County's mapping efforts, consistent with [COSE] policies 3.4.2 and 4.10.3. Conservation policies shall be applied based on the resulting site specific delineation. The referenced 2002 COSE Policy 3.4.2 provides: Where site specific analysis or verification is required to determine the presence of natural resources protected under this Element, the cost of such analysis or verification shall be borne by the applicant. The Jonesville Petitioners contend that there is an internal inconsistency in the fact that the definition of strategic ecosystem does not include the criteria found in 2003 COSE Policy 4.10.1. However, the parameters used by KBN/Golder Report to score and rank the sites that appear on the map include: vegetation value (species diversity, presence of exotics); endangered species habitat value (plant and animal); wildlife habitat value; hydrology; landscape ecology (community diversity, ecological quality, community rarity, functional connectedness); and management potential. These parameters are consistent with the characteristics listed in 2003 COSE Policy 4.10.1. The Jonesville Petitioners point out that the design of the KBN/Golder Report map was such that no parcel less than 20 acres in size was identified, resulting in the omission of thousands of acres countywide that possess the characteristics identified in 2003 COSE Policy 4.10.1 as indicative of strategic ecosystems. The Jonesville Petitioners claim that this presents an internal inconsistency in the Plan, because the COSE policies would protect only 25 percent of those unmapped properties (under 2003 COSE Policy 4.9.12 addressing upland habitat), rather than the 50 percent protected by the strategic ecosystems policies. This alleged inconsistency is simply another example of the County's reasonable policy choice to focus its conservation efforts on larger, more contiguous properties, rather than a myriad of small-acreage lands. Even the 2002 definition of "strategic ecosystem," not challenged by the Jonesville Petitioners, limited strategic ecosystems to properties greater than 20 acres in size. The smaller sites will remain subject to regulation on a site-specific basis as they are proposed for development. The Jonesville Petitioners appear to insist, absent any pending development applications with the County or even any present plans to develop, on their right to have the Plan and its incorporated maps provide them with a definitive, binding delineation of their properties and, thus, their development potential. This claim is unrealistic, given that such a general right would require County staff to ground- truth hundreds of thousands of acres countywide before a conservation land use category could be established at all. The KBN/Golder Report map is sufficient to place landowners, such as the Jonesville Petitioners, on notice of their need to inquire as to the status of their properties prior to the initiation of development activities. Parcel- specific regulation requires parcel-specific ground-truthing, and 2003 COSE Policy 4.10.1 provides for such ground-truthing. Further, 2003 COSE Policy 4.10.3 provides that the County will create special area plans for strategic ecosystems "based on current development pressures and anticipated priorities." It further provides that an applicant in the position of the Jonesville Petitioners may pay for its own special area plan, should it not wish to wait on the County to complete its plan process. Finally, the Jonesville Petitioners attack 2003 COSE Policy 4.10.1's use of the Alachua County 2001 digital orthophotographic series dated March 1, 2001, to "presumptively establish the baseline condition of the strategic ecosystem property as of the effective date of this policy." They contend that it is uncertain how the County will treat properties on which the owners have altered ecosystems in the period between the 2001 orthophotographs and 2003 adoption of the new COSE policies and that the policy would have a retroactive impact of dubious constitutionality if the County were to require restoration of those properties to their 2001 state. This valid concern of the Jonesville Petitioners is prematurely raised in this proceeding. The evidence at hearing failed to demonstrate that the County would not allow a landowner to provide information through the development review process to demonstrate that the condition of the property had changed after March 1, 2001, and prior to the effective date of the 2003 Amendments. In summary, it is found that the mere fact that the County determined that the definition of "strategic ecosystem" shall consist of the identification of properties on the KBN/Golder Report map is a fairly debatable decision, given the manner in which that definition is put into effect through amended COSE Objective 4.10 and its implementing policies. The Jonesville Petitioners entered reports prepared by their environmental consultant concerning particular properties and their unsuitability for designation as strategic ecosystems and presented extensive testimony on the subject. The County presented testimony as to each of the Jonesville Petitioners' properties to support the County's contention that they are indeed strategic ecosystems. Each of the Jonesville properties is a small portion of a much larger parcel on the KBN/Golder Report strategic ecosystems map. It is unnecessary to make detailed findings of fact as to the environmental quality of these properties. As the findings above indicate, the appropriate time to consider the qualities of particular properties will be during the special area planning process and/or the development review process.16/ Uplands Habitat 2002 COSE Objective 4.9, titled "Biodiversity," provides: Maintain and enhance plant and animal species diversity and distribution within Alachua County by protecting significant plant and wildlife habitats, providing for habitat corridors, and preventing habitat fragmentation. The 2002 Plan Update provisions implementing COSE Objective 4.9 provided as follows: Policy 4.9.1 A critical portion of each significant plant and wildlife habitat type in Alachua County shall be protected. Protection shall be accomplished using all available methods, including land acquisition, incentives and requirements for the provision of conservation or preservation areas, habitat corridors, greenways, and common open space. Policy 4.9.2 During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site. The habitat to be conserved shall be selected based on the quality and viability of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside. Conserved habitat shall be located and maintained in areas with intact canopy, understory and groundcover in functional, clustered arrangement which maximizes use by wildlife and maintains the long-term viability of native upland plant communities. Linkages to habitat corridors and greenways shall be required where available. The County shall have the authority to accept alternatives to onsite conservation that provide for the long-term protection and management of significant plant and wildlife habitat of equal or greater habitat value that would not have otherwise been preserved. The land development regulations shall establish criteria for determining which projects warrant the use of alternatives to onsite conservation. Criteria may include but are not limited to: the size of the development site, habitat quality, uniqueness, connectivity, management opportunities, and adjacent uses. Off-site conservation shall not be permitted for listed species habitat that is capable of being managed or restored on- site as a high quality natural plant or animal community or communities. This requirement is not intended to limit the effect of other resource-specific protective measures in this element, such as clustering and buffers. Policy 4.9.3 The County shall require the development and implementation of management plans for all significant plant and wildlife habitat that is to be protected. The management plan shall be prepared at the expense of the developer by an appropriately qualified professional and provide for the following: Removal of invasive vegetation and debris. Replanting with native vegetation as necessary. Maintenance of biodiversity, with special emphasis on protection of listed plant and animal species. Any additional measures determined to be necessary to protect and maintain the functions and values of the habitat conservation areas while ensuring protection from wildfire. Policy 4.9.4[17/] The County shall consult with the Florida Fish and Wildlife Conservation Commission, United States Fish and Wildlife Service, Florida Department of Agriculture and Consumer Services or other appropriate agencies prior to authorizing development that could result in potential adverse impacts to any listed species. The County shall utilize these recommendations to provide specific requirements regarding development where these species are encountered. Conditions of approval shall ensure the maintenance and, where feasible and appropriate, increase the abundance and distribution of populations of listed species. Policy 4.9.5 The use of listed plant and wildlife species habitat shall be restricted to that which is compatible with the requirements of listed species. Development activities[18/] that would threaten the life or habitat of any listed species shall not be permitted. Policy 4.9.6 The County shall prohibit the alteration of natural shorelines or degradation of water quality where listed species feed or breed, through the establishment of buffers as set out in [COSE] Policy 3.6.8. The County shall encourage the restoration of degraded shorelines when possible. Policy 4.9.7[19/] The County shall periodically review monitoring data from federal, state, regional, and local agencies to determine the status of listed species habitats in Alachua County. The County shall use this information to maintain and provide, for the convenience of the public, a table of listed species and listed species habitats in Alachua County. Policy 4.9.8 The County shall recommend specific management and recovery strategies for listed species, as they are developed by the Florida Fish and Wildlife Conservation Commission and the U.S. Fish and Wildlife Service, and shall assist in their implementation. These management techniques shall be incorporated into the land development regulations, as well as the management plans of County-owned preservation areas. Policy 4.9.9 Wildlife habitat enhancement and management programs in urban areas shall be promoted through such techniques as designation of bird sanctuary areas where rookeries or other significant bird populations exist and landscaping schemes for stormwater detention and retention areas that maintain native vegetation and establish littoral zones which encourages wildlife usage. Policy 4.9.10 The County shall develop incentives designed to encourage private land owners to manage land holdings for wildlife attributes. Policy 4.9.11 The County shall establish and preserve habitat corridors that connect significant plant and wildlife habitats throughout the County. The County shall perform an objective analysis to determine the appropriateness of habitat corridors, how extensive they should be, the location of potential corridors, what fiscal resources are available for implementation, and economic incentives for property owners to voluntarily participate in formation of a habitat corridor program. The 2003 Amendments changed 2002 COSE Policy 4.9.2 as follows: During the land use planning and development review processes, the County shall minimize the effects of development on significant plant and wildlife habitat. All developments shall protect as conservation or preservation areas a minimum of 25% of the significant plant and wildlife habitat that occurs on site, subject to the limitation in 4.9.12. The habitat to be conserved shall be selected based on the quality and viability of the habitat. The County shall work with the landowner to select the portion of the habitat that will be included in the 25% set aside. . . . The 2003 Amendments added a new COSE Policy 4.9.12, which reads as follows: Policy 4.9.12 Upland habitat protections under Objective 4.9 shall be limited as follows: No more than 25% of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent. Upland areas required to be protected pursuant to policies for significant geological features and wetland and surface water buffers shall be counted in calculation of the 25% limitation, however, the extent of protection of significant geological features and wetland and surface water buffers shall not be reduced by this limitation. This limitation shall not apply to 100-year floodplains and wellfield protection areas, which are addressed independently through policies under Objectives 4.8 [Flood Plains and Floodways] and 4.5 [Groundwater], respectively. This limitation shall not restrict in any state and federal agency protections. For purposes of applying this limitation, a property shall include all contiguous land under common ownership or control. Properties may not be disaggregated, processed in piecemeal fashion, reviewed or developed in any manner that results in lesser upland protections than would otherwise be required under this Objective. The Sierra Club Petitioners challenged these uplands policies on several grounds. The 2002 Plan Update, as amended in 2003, provides two kinds of protection to uplands. The most highly protected upland is one established as part of a strategic ecosystem. Under 2003 COSE Policy 4.10.5, up to 50 percent of the upland portion of a strategic ecosystem can be preserved as undeveloped area without the landowner's consent. A lesser level of protection is afforded to "significant plant and wildlife habitat." The 2002 Plan Update defines "significant habitat" as "contiguous stands of natural upland plant communities which have been documented to support, and which have the potential to maintain, healthy and diverse populations of plants or wildlife." Under 2003 COSE Policies 4.9.2 and 4.9.12, up to 25 percent of the upland portion of "significant plant and wildlife habitat" may be set aside for preservation without the landowner's consent. Neither the strategic ecosystems provision nor the significant plant and wildlife habitat provision purports to restrict or lessen any protections afforded by state or federal law. The Sierra Club Petitioners complain that the 2003 Amendments modify the categories and levels of upland protection which had been adopted in the 2002 Plan Update, that these modifications weaken the environmental protection provided to upland vegetative communities and habitats, and that the modifications are based on legislative settlement of the 2002 administrative challenge, not on any science or new data or analysis. The 2002 Plan Update was supported by the 1998 EAR and the 2002 Data and Analysis documents. On December 10, 2002, during the settlement process that culminated in the 2003 Amendments, Alachua County's environmental protection director, Chris Bird, produced a memorandum titled "Response to Questions Raised on Conservation Issues in the 12/2/02 Special [Board] Comp Plan Meeting," referred to hereinafter as "the Bird Memo." As of December 2, 2002, mediation had commenced in the 2002 administrative challenge, but the parties had yet to crystallize their respective positions into what would become the 2003 Amendments. As indicated by its full title, the Bird Memo contains the County staff's explanation of the basis for the conservation policies in the 2002 Amendments. The memo sets forth citations to and quotes from the 2002 Data and Analysis, and supplements this with its own comments on the propriety or necessity for the changes to the 1991 Plan made by the 2002 Amendments. The Sierra Club Petitioners point out that the Bird Memo offers a clear explanation as to how the 2002 Plan Update was based on the 1998 EAR and the 2002 Data and Analysis. They contend that there is no equivalent documentation in the record of this case that explains how the 2003 Amendments were based on the Data and Analysis. In answer to the question, "What's wrong with the old [1991] Comprehensive Plan and why do we have to change it?," the Bird Memo stated: Of 70 measurable objectives set forth for the Conservation portion of the [1998] EAR, less than a third of those objectives were met without caveat. At least 10 objectives were not met, and another 40 objectives were only partially met, met in limited fashion, or were in need of revision/update. The Bird Memo noted that the 1998 EAR made the following recommendations under the heading, "Permitted Uses in Conservation Areas": Review and revise requirements for development in ecologically sensitive/environmentally significant areas. Using the PUD[20/] or a modified Cluster Ordinance, consider the following modifications at a minimum: (1) modify the comprehensive plan to include additional natural communities identified in the 1996 ecological inventory [i.e., the KBN/Golder study]; (2) require clustering for all development and eliminate the 20-acre parcel threshold; (3) require stricter long-term protection for Conservation areas and significant natural communities; (4) increase the 50% minimum set-aside; (5) include incentives/requirements for permanent set-aside arrangements. The Bird Memo went on to set forth staff's recommendation as to what "stricter long-term protection for conservation areas and significant natural communities" necessitates for "significant habitat": Significant habitat is defined in the [2002] Comprehensive Plan update as contiguous stands of natural upland plant communities that support and maintain healthy and diverse populations of plants or wildlife. Sandhill and xeric hammock are two examples. Industrial pine plantations are not significant habitat because they are not natural communities. FAC 9J-5 requires that the Conservation Element include objectives and policies that conserve and protect native vegetative communities and wildlife habitat from destruction by development activities. The Plan update approaches this protection at two scales: strategic ecosystems are important at a larger geographical scale; significant habitat and listed species habitat are important at smaller scales. The purpose is to identify and protect natural systems and their fundamental building blocks before they are in the "emergency room" at the brink of crisis, when they can still be preserved for the future in healthy form. To accomplish this, the largest remaining wild areas are afforded the greatest protection (80% preservation of strategic ecosystems), while the smaller but significant natural habitat areas are afforded lesser but still meaningful protection (25% preservation of significant habitat). There is no percentage associated with listed species habitat protection, but protection is determined on a case-by-case basis depending on species and site characteristics. The requirement for 25% preservation of native habitat is clearly less than what is needed to stop habitat and species declines, but represents a compromise.[21/] This percentage was chosen in order to provide for the conditions necessary to preserve some degree of ecological integrity while accommodating the needs of development. . . . The Sierra Club Petitioners concede that some of the quoted conservation recommendations were adopted in the 2003 Amendments, e.g., the map of the KBN/Golder Report inventory lands was adopted as the initial definition of strategic ecosystems and incentives for clustering are provided. However, they contend that most of the staff's conservation recommendations are not reflected in the 2003 Amendments, e.g., clustering is not required for all development in ecologically sensitive and/or environmentally significant areas; the 20-acre parcel threshold for ecosystem protection is not eliminated; 50 percent minimum set-asides are not increased; species on the Florida Natural Areas Inventory ("FNAI") endangered species list but not on federal or state lists are not protected in wetland buffers; the recommended minimum default buffer is not used; and no minimum protection is required for either listed species habitat or significant habitat. The Sierra Club Petitioners contend that the 25 percent maximum upland preservation introduced by 2003 COSE Policy 4.9.12 destroys the impact of 2002 COSE Policy 4.9.5, which under the 2002 Plan Update would have protected the habitat of any "listed species" on a case-by-case determination of what was reasonable and necessary for the species on the particular site, apparently without regard to the amount of a given tract that would be turned over to preservation against the wishes of the landowner. "Listed species" is defined in the 2003 Amendments as: Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g., they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction. This contention is rejected because it neglects to factor in the express limitation expressed in 2003 COSE Policy 4.9.12.c. that the 25 percent limitation "shall not restrict in any way state and federal agency protections." Such "protections" include federal and state listed species protections, meaning that the 25 percent limitation cannot function as a brake on listed species protection. The Sierra Club Petitioners make too much of the distinction between 2002 COSE Policy 4.9.2's language, "All developments shall protect as conservation or preservation areas a minimum of 25 percent of the significant plant and wildlife habitat that occurs on site," and 2003 COSE Policy 4.9.12's language, "No more than 25 percent of the upland portion of a property may be required to be set aside for preservation pursuant to policies under this Objective without landowner consent." They appear to assume that the former provision would allow the County to impose draconian development limitations without regard to the property rights of landowners. In the undersigned's view, the distinction is not so great, particularly in light of 2002 COSE Policy 4.9.2.1's direction to the County to "work with the landowner to select the portion of the habitat that will be included in the 25% set aside." (Emphasis added.) The express reference to a "25% set aside" indicates that Alachua County did not anticipate forcing landowners to cede more than that amount of their property even under the 2002 Plan Update. It is found that the Sierra Club Petitioners overstate the necessary impact of the Bird Memo as "Data and Analysis." Florida Administrative Code Rule 9J-5.005(2), indeed, requires that plan amendments be "based upon relevant and appropriate data," and further explains that to be "based on data" means "to react to it in an appropriate way and to the extent necessary indicated by the data available on that particular subject at the time of adoption of the plan or plan amendment at issue." However, the Sierra Club Petitioners essentially contend that the Board was bound to enact each recommendation of the Bird Memo in every particular or stand in violation of Florida Administrative Code Rule 9J-5.005(2). To accept this contention would be to make the elected officials of Alachua County subservient to their own hired staff, an exact reversal of the comprehensive planning process. It is found that the County has reacted to the data and analysis of the Bird Memo "in an appropriate way and to the extent necessary indicated by the data." There is no question that the 2002 Plan Update, as amended by the 2003 Amendments, for the first time "establish[es] an integrated approach to the protection of natural communities and their associated values in Alachua County," in contrast to the fragmented approach of the 1991 Plan. See COSE Data and Analysis, Biodiversity, p. 38. The 2003 Amendments address and, to some degree, adopt every element raised by staff in the Bird Memo. The 2003 Amendments do not adopt the terms of the Bird Memo to the letter as urged by the Sierra Club Petitioners, but the County was not required to do so. It is at least fairly debatable that the COSE uplands policies are supported by data and analysis and provide adequate guidance for the development of LDRs. Wetland Buffers Under the 1991 Plan, standards for natural vegetative buffers around surface waters and wetlands consisted of a minimum 75-foot buffer for Outstanding Florida Waters and a 35-foot buffer for all other surface waters and wetlands. The 2002 Plan Update's version of COSE Policy 3.6.8, referenced in Policy 4.9.6 above, provided detailed new buffer requirements as follows: Policy 3.6.8 Development occurring along the edges of conservation and preservation areas shall be designed to protect and minimize the impact of development on conservation areas through the use of natural vegetative buffers. Buffer width shall be determined on a case-by-case basis depending on what is demonstrated to be scientifically necessary to protect natural ecosystems from significant adverse impact. This determination shall be made in consideration of at least the following factors: Type of development and associated potential for adverse site-specific and off-site impacts; Natural community type and associated hydrologic or management requirements; Buffer area characteristics and function; Presence of listed species of plants and animals. Absent scientific information which demonstrates that a larger or smaller buffer width is appropriate, the following buffer widths shall apply for the resources set forth in the table below. Protected Resource Buffer Distance (feet)** Surface waters and wetlands that do not include the resources listed below 75* Outstanding Florida Waters 200* Areas where listed plant or animal species have been documented within 300 feet of a surface water or wetland 300* from the surface water or wetland Public water supply well 200 * Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources, and Richard Hamann, Esq., University of Florida College of Law, January 2000. ** If the buffer precludes all economically viable use of a particular property, development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4. Buffers shall be measured from the outer edge of the protected resource. The 2003 Amendments made no changes to the text of COSE Policy 3.6.8, but changed the table of buffer widths as follows: Protected Resource Buffer Distance (feet)** Surface waters and wetlands less than or equal to 0.5 acre that do not include OFWs or listed animal species as described elsewhere in this table 50 average, 35 minimum Surface waters and wetlands greater than 0.5 acre that do not include the resources listed below OFWs or listed animal species as described elsewhere in this table 75* 75 average, 50 minimum Areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species listed plant or animal species have been documented within 300 feet of a surface water or wetland 300* from the surface water or wetland 100 average, 75 minimum Outstanding Florida Waters (OFWS) 200* 150 average, 100 minimum Public water supply well 200 * Buffer widths are recommended based on the report, "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," prepared by Jones, Edmunds & Associates, Inc. in collaboration with Mark T. Brown, Ph.D., University of Florida Center for Wetlands and Water Resources, and Richard Hamann, Esq., University of Florida College of Law, January 2000. ** If the buffer precludes all economically viable use of a particular property, development may be allowed within the buffer in accordance with [COSE] policy 3.6.5, and where applicable, [COSE] policies 4.6.6 and 4.7.4. The referenced COSE Policy 3.6.5, introduced in the 2002 Plan Update and not amended in 2003, provides: Development on land that includes conservation areas shall be sited and designed according to the following standards and consistent with policies under Objective 6.2 [Rural/Agriculture] of the [FLUE] in the rural area: The preservation of conservation areas shall be required on all development sites to the greatest extent possible, consistent with standards which are outlined subsequently in [the COSE]. Density or intensity shall be transferred from conservation areas to non- conservation portions of the property, to adjoining property under common ownership or management and within a unified development, or to other development receivership areas, at a rate consistent with that of the underlying zoning district, but not to exceed the maximum density allowed by the land use designation. When there are no non-conservation areas to which density or intensity may be transferred, the development shall be clustered in the portion of the site that will result in least environmental impact. When connection to central sewer is not required, septic wastes shall be disposed of according to the Comprehensive Plan, land development regulations, and health department standards, and without adversely affecting ecosystem health. Existing landscape connections to other conservation areas shall be maintained so that fragmentation is avoided. The referenced COSE Policy 4.6.6, under Objective dealing with "Surface Water Systems," was introduced in the 2002 Plan Update, was not amended in 2003, and provides: The following activities may be allowed within the buffer subject to standards that regulate environmental impacts: Agricultural and silvicultural operations consistent with Objective 5.5 [Agricultural and Silvicultural Practices]; Water dependent facilities; Minimal impact activities; Activities that serve the overriding public interest; and Development allowed through implementation of [COSE] policy 3.6.5.3, provided that the development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access. 175. The referenced COSE Policy 4.7.4, under Objective dealing with "Wetland Ecosystems," was introduced in the 2002 Plan Update and amended in 2003 as indicated below: Development activity shall not be authorized in wetlands or wetland buffers except when all of the following conditions are met: The applicant has taken every reasonable step to avoid adverse impact to the wetland and buffer; and The applicant has taken every reasonable step to minimize adverse impact to the wetland and buffer; and The applicant has provided appropriate mitigation for adverse impact to the wetland and buffer; and The applicant shows that one of the following circumstances applies: Minimal impact activity; or Overriding public interest; or All economically beneficial or productive use of the property is otherwise precluded. The development impact area shall not exceed the rate of 1/2 acre per ten acres of conservation area, including the footprint of principal and accessory structures and parking, allowing for reasonable access. Notwithstanding the above, mitigated impact may be allowed to any isolated poor quality wetland that is less than 0.25 acre in size, provided the total impact area is not greater than or equal to 0.25 acre per development. Poor quality shall be defined in the land development regulations based on factors relative to ecological value. The 2002 Data and Analysis clearly concluded that the 35-foot buffers in the 1991 Plan were inadequate to protect the natural functions of the affected wetlands. The Bird Memo summarized the data as follows: The Conservation/Aquifer Recharge portion of the EAR, as well as the data and analysis supporting the Comprehensive Plan update, are replete with documentation of the inadequacy of the current 35-foot buffer for wetlands and surface waters in Alachua County. Inadequacy is demonstrated by documentation of at least the following nine facts: (1) the direct loss of the extent and quality of wetlands, (2) the degradation of wetland functions, (3) no change in declining water quality trends since implementation of 35-foot buffers, high sediment loads in surface waters, elevated nutrient concentrations in surface waters, groundwater, and springs, poor surface water systems health documented by macroinvertebrate sampling, poor hydrology, including lake drawdown problems, (8) the continued loss, degradation and fragmentation of wildlife habitat in Alachua County, and (9) the decline of native species concurrent with the spread of invasive non-native species. The Bird Memo also contained appendices that included 11 pages of specific citations from the Data and Analysis discussing the inadequacy of the 35-foot buffers and supporting larger buffer widths. The buffers in 2002 COSE Policy 3.6.8 were based on the Data and Analysis in the 2000 Jones, Edmunds & Associates, Inc., report titled "Calculating Buffer Zone Widths For Protection of Wetlands and Other Environmentally Sensitive Lands in St. Johns County," ("JEA Report"). The Bird Memo summarized the JEA Report's findings and Alachua County's response, as follows: Upland vegetative buffers are widely regarded as necessary to protect wetlands, streams, and other aquatic resources. However, buffer size requirements typically have been established by political acceptability, rather than scientific merit. This often leads to insufficiently buffered aquatic resources and the false perception that the resources are being properly protected from potential impacts. Numerous scientific studies have shown that relatively wide buffers (150 to more than 300 feet) are necessary to protect wetlands. (JEA et al. 2000) A dilemma exists. Undersized buffers may place aquatic and wetland resources at risk, while buffers that are sufficiently large to provide full protection may unrealistically deny landowners use of their land. Therefore, it is important to determine the minimum buffer width necessary for protection of most of the resources, or the most sensitive of the resources. Three goals have been identified and used to determine buffer sizes: protection of wildlife habitat; minimization of sediment transport into wetlands; and minimization of groundwater drawdown in wetlands. The JEA report (2000) concludes that a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem. A 300-foot buffer would protect approximately 50% of the wetland-dependent wildlife species in freshwater wetlands, and protect water quality from sedimentation by course [sic] and fine sands. In some site-specific cases, such as with silt or clay soils, or from large draw-down structures, a greater buffer distance would be necessary to protect the wetland. Any reduction in the buffer width below 300 feet can impose adverse impacts to the wetland, particularly to the wetland- dependent wildlife species that require a wide surrounding upland area in which to feed, forage, and use as protection from human disturbance. Lesser alternatives would still provide some protection to wetlands; however, any reduction can result in adverse impacts to wildlife populations, as well as degradation of water quality from deposition of fine sediments. The County has chosen an alternative to one large buffer distance. This alternative is intended to provide flexibility while accommodating private property concerns. The Sierra Club Petitioners emphasize the JEA Report's conclusion that "a minimum of 300 feet is necessary to reasonably protect a viably functioning wetland ecosystem." They note that the language of 2003 COSE Policy 3.6.8.2 provides that "[a]bsent scientific information which demonstrates that a larger or smaller buffer width is appropriate," a 100-foot average, 75-foot minimum natural vegetative "default" buffer would apply in "areas where federally and/or state regulated vertebrate wetland/aquatic dependent animal species have been documented within 300 feet of a surface water or wetland." They conclude that providing only a 75-100 foot "default" buffer in an area documented to contain threatened or endangered species habitat within 300 feet would result in the destruction of that habitat between the 75- to 100-foot buffer zone and the 300-foot extent of the documented habitat. This is another instance in which the Sierra Club Petitioners' conclusion requires an assumption of bad faith on the part of the County regulatory authorities. Whether the default buffer is 300 feet or 75 feet, that default buffer applies only in the absence of "scientific information which demonstrates that a larger or smaller buffer width is appropriate." The Sierra Club Petitioners correctly note Michael Drummond's testimony that, under the 1991 Plan, the default buffers were often employed where the existence of wetland- dependent species was suspected, but not verified. Mr. Drummond also testified that application of a 100-foot buffer would not be adequate for listed species. However, Mr. Drummond's testimony does not demonstrate that the County would ignore scientific information demonstrating the presence of endangered species and apply the default buffers regardless of those species' habitat requirements. The undersigned does not agree that it is beyond fair debate that Florida Administrative Code Rule 9J- 5.013(2)(c)5. requires the County to apply the default buffers in habitats where there is a "high potential" for endangered species to occur, but where the species have not been documented. The cited Rule requires the COSE to contain policies that address implementation activities for the "[r]estriction of activities known to adversely affect the survival of endangered and threatened wildlife." 2003 COSE Policy 3.6.8 complies with the language of the rule by addressing known adverse affects. Alachua County was entitled to make a policy choice not to go farther and address potential adverse effects caused by inadequate buffers in areas that endangered species might inhabit.22/ There is no question that the Sierra Club's policy preference would result in greater protection of endangered species and their habitats, actual or potential. However, this fact alone does not compel the County to enact stricter provisions than the relevant statutes and rules require. The Sierra Club Petitioners' focus on the "300 foot minimum buffer" language in the Bird Memo led them to overlook the fact that the Data and Analysis support 2003 COSE Policy 3.6.8, as well as the version in the 2002 Plan Update. The Bird Memo itself recognizes the County's choice of "an alternative to one large buffer distance . . . to provide flexibility while accommodating private property concerns." The Bird Memo expressly recognized that the scientifically preferable wide buffers "may unrealistically deny landowners use of their land." 2003 COSE Policy 3.6.8 reasonably balances the interests noted in the Bird Memo by providing for a site- specific determination of the proper buffer width based on the scientific information at hand. Application of the default buffer is always contingent upon the absence of scientific information.23/ The Sierra Club Petitioners also challenge the 2003 Amendment's change of language in the table of COSE Policy 3.6.8.2 from "listed plant or animal species" to "federally and/or state regulated vertebrate wetland/aquatic dependent animal species." They argue that the evidence showed that limiting the buffer protection in COSE Policy 3.6.8.2 to only federally and/or state regulated species, rather than to all "listed species" as defined in the 2002 Plan as amended, would exclude approximately 14 species from the threatened and endangered species protection of the buffer provision. The 2002 Plan, as amended in 2003, defines "Listed Species" as follows: Those species of plants and animals listed as endangered, threatened, rare, or species of special concern by an official state or federal plant or wildlife agency, or the Florida Natural Areas Inventory (FNAI, includes species ranked as S1, S2, or S3), or the Florida Committee on Rare and Endangered Plants and Animals (FCREPA). These species are targeted for protection for a number of reasons, e.g. they are in imminent danger of extinction, are rapidly declining in number or habitat, or have an inherent vulnerability to habitat modification, environmental alteration, or human disturbance which puts them at risk of extinction. The Bird Memo explains the inclusion of the FNAI and, until the 2003 Amendments, the Florida Committee on Rare and Endangered Plants and Animals ("FCREPA") lists as follows: The use of FNAI and FCREPA sources does not make the list of protected species significantly broader than the list generated from using federal and state agency lists. Rather, it makes protection efforts more accurate and timely because they are based on scientific judgment responsive to changing natural conditions, rather than political listing decisions which can take years in the making. The use of these data sources to identify species for special protection is considered by many ecological professionals, including state and water management district personnel, as the best available data for the purpose of recognizing plants and animals in decline in the state and in Alachua County. The Sierra Club Petitioners argue that there was no basis in either the 2002 Plan Update or the Data and Analysis for 2003 COSE Policy 3.6.8.2 to exclude the FNAI-listed species from the protection they receive at every other point in the Plan where endangered and threatened species protections apply or to exclude non-vertebrates from the buffering provisions of COSE Policy 3.6.8.2. In response, the County initially points out that the category of buffers for listed species was new to the 2002 Plan Update. The County notes that the 1991 Plan essentially deferred to federal and state agencies in the regulation of plants and wildlife and that in crafting the 2002 Plan Update, the County decided to broaden conservation areas to include the habitat of FNAI-listed species. The County incidentally observes that FNAI is a scientific organization with no regulatory function whatever. The County argues that there is no conflict between its decision to generally broaden conservation areas and its decision to create a new wetland buffer category for federal and state-regulated species. The undersigned agrees that it is at least fairly debatable that the County was not required to apply its "listed species" definition to the buffering provision of COSE Policy 3.6.8.2. The Sierra Club Petitioners simply failed to demonstrate the necessary connection between the definition and the buffer category that might establish an internal inconsistency. The mere fact that the 2002 Plan Update employed the term "listed plant or animal species" in the buffer table does not establish a presumption of correctness. The Bird Memo states that the FNAI and FCREPA lists provide "the best available data for the purpose of recognizing plants and animals in decline," and thus supports the County's decision to reference the FNAI list in its "listed species" definition, but does not require the County to include the list for purposes of defining a buffer category. In further defense of 2003 COSE Policy 3.6.8, the County notes that the policy provides flexibility to respond to the needs of individual species by allowing for "buffer averaging," which permits the buffer area to be distributed in a varying width around the wetland, subject to the minimum widths contained in the table. In addition to the increased buffers, the County substantially improved its protection of wetlands by strengthened requirements in proposed COSE Policies 3.6.1324/ and 4.7.4 for avoidance and minimization of impacts. Avoidance and minimization is also facilitated by proposed Policy 3.6.5, which provides for transfers of densities or clustering. The County notes that the updated Plan contains multiple layers of wetlands protection. COSE Policy 4.7.1 provides that wetlands of all sizes are to be regulated, without exception. COSE Policy 4.7.4 limits the development impact area to the ratio of one-half acre of impact to each ten acres of conservation area. If wetland impacts cannot be avoided or minimized, then the strengthened mitigation requirements of COSE Policy 4.7.7 must be met, including a minimum ratio of 5:1 mitigation area to impacted area, a requirement that the mitigation areas be within the County and no mitigation credits for onsite preservation of wetlands, which are required to be protected in any event. Preservation of wetlands and/or other surface waters or uplands cannot be counted as "mitigation" if federal, state, water management district, or local regulations already require protection of the resource in question. In summary, it is at least fairly debatable that the County appropriately responded to the Data and Analysis by its policies on surface waters and wetlands. D. Agricultural Uses The Jonesville Petitioners criticized 2003 COSE Policy 3.1.2,25/ which provides: In primary and secondary conservation areas, the following uses, if otherwise consistent with the Comprehensive Plan, generally shall be permitted to the extent that they do not significantly alter the natural functions of the conservation area: Public and private conservation, recreation and open space uses. Public and private wildlife preserves, game management and refuge areas. Water conservation and retention/detention areas that are determined to be appropriate for stormwater management. Agricultural uses, employing latest applicable best management practices. The Jonesville Petitioners contend that the quoted policy creates an internal inconsistency in the Plan. The inconsistency is said to stem from a conflict between the County's desire to sustain the ecological integrity of natural resource areas that due to their ecological value, uniqueness and particular sensitivity to development activities, require stringent protective measures, and the fact that some of the uses to be permitted in conservation areas, particularly agricultural uses, can be incompatible with the preservation of ecological integrity as defined in the Plan. While there was some expert testimony as to the difficulty of reconciling agricultural and recreational uses with conservation, the weight of the evidence did not demonstrate such an inherent incompatibility as to establish an internal inconsistency in the Plan. The listed uses are to be permitted "to the extent that they do not significantly alter the natural functions of the conservation area," and there was no showing that this qualification is unenforceable by its terms. The County also pointed out that its authority to regulate agricultural activities by way of development controls is limited by statute. The "Florida Right to Farm Act," Section 823.14, Florida Statutes (2003), provides, in relevant part: (6) Limitation on duplication of government regulation.-- It is the intent of the Legislature to eliminate duplication of regulatory authority over farm operations as expressed in this subsection. Except as otherwise provided for in this section and s. 487.051(2)[pesticide regulation], and notwithstanding any other provision of law, a local government may not adopt any ordinance, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461 [property tax assessments of agricultural lands], where such activity is regulated through implemented best-management practices or interim measures developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or water management districts and adopted under chapter 120 as part of a statewide or regional program. . . . (Emphasis added.) More recently, the Legislature passed the "Agricultural Lands and Practices Act," Section 163.3162, Florida Statutes (2003), effective July 1, 2003, subsection (4) of which provides: Duplication of regulation.-- Except as otherwise provided in this section and s. 487.051(2), and notwithstanding any other law, including any provision of chapter 125 or this chapter, a county may not exercise any of its powers to adopt any ordinance, resolution, regulation, rule, or policy to prohibit, restrict, regulate, or otherwise limit an activity of a bona fide farm operation on land classified as agricultural land pursuant to s. 193.461, if such activity is regulated through implemented best management practices, interim measures, or regulations developed by the Department of Environmental Protection, the Department of Agriculture and Consumer Services, or a water management district and adopted under chapter 120 as part of a statewide or regional program; or if such activity is expressly regulated by the United States Department of Agriculture, the United States Army Corps of Engineers, or the United States Environmental Protection Agency. (Emphasis added.) The Jonesville Petitioners also raised the specter of sham agricultural uses being used as a cover for the conversion of environmentally sensitive properties to residential development. Richard Drummond candidly acknowledged that such conversions could occur if the County were insufficiently diligent as to events on the ground, but also testified that the County did what it could, within the statutory constraints set forth above, to ensure that the updated Plan would circumvent such covert efforts. Both statutes quoted above restrict a local government's ability to restrict a "bona fide farm operation," but neither statute defines the term "bona fide farm operation." In the 2002 COSE definitions, Alachua County provided a definition of "bona fide agricultural purposes" to mean: Good faith commercial agricultural use of the land, provided the land is classified for assessment purposes by the property appraiser as "agricultural" pursuant to Chapter 193, Florida Statutes. In determining whether the use of the land for agricultural purposes is bona fide, the following factors may be taken into consideration: The length of time the land has been so utilized; Whether the use has been continuous; The purchase price paid; Size, as it relates to specific agricultural use; Whether an indicated effort has been made to care sufficiently and adequately for the land in accordance with accepted commercial agricultural practices, including, without limitation, fertilizing, liming, tilling, mowing, reforesting, and other accepted agricultural practices; Whether such land us under lease and, if so, the effective length, terms, and conditions of the lease; and Such other factors as may from time to time become applicable. The Jonesville Petitioners contend that 2003 COSE Policy 3.1.2 creates an internal inconsistency with 2002 FLUE Policies 6.2.10, 6.2.12, 6.2.13, and 6.2.15. The permitted uses delineated in 2003 COSE Policy 3.1.2 do not list residential activity as a permitted use in conservation areas. The cited 2002 FLUE Policies all contemplate some residential development in "strategic ecosystems," which are included in the definition of conservation areas. The Jonesville Petitioners also note that, within 2002 FLUE Policy 6.2.12, silviculture, common water supply systems, and common septic system drainfields are listed as potential uses in conservation areas that are designated as "open space" in clustered rural residential subdivisions, yet none of these uses is listed as permitted in 2003 COSE Policy 3.1.2. They assert that the definition, treatment, and application of the terms "agriculture" and "silviculture" within the 2003 COSE plan amendments create inconsistency and lack of predictability in the application and treatment of the related policies. As to the last point, the County credibly responds that the COSE definition of "agriculture" includes silviculture and that silviculture is considered in the Plan as a subset of agriculture, except in those instances in which some external factor requires a distinction. For example, Objective 5.5, "Agricultural and Silvicultural Practices," and its implementing policies recognize that agriculture and silviculture have distinct best management practices. It is not unreasonable for the County to interpret 2003 COSE Policy 3.1.2 as permitting silvicultural uses in conservation areas within the constraints applied to agricultural uses, where the COSE definition of "agriculture" includes silviculture. As to residential development and its concomitant common water supply and septic systems, it is evident from the FLUE Policies cited by the Jonesville Petitioners, as well as 2003 FLUE Policies 1.3.1e and 6.2.11 and 2002 COSE Policies 3.6.5, 4.10.3.3, and 4.10.4 to 4.10.6, that the Plan will allow for residential development of the least environmentally sensitive portion of a strategic ecosystems property by means of clustering, gross residential density limits, transfers of density, and other design techniques intended to protect ecosystems and private property rights. There is no inconsistency with 2003 COSE Policy 3.1.2 because that policy does not purport to contain the exclusive list of uses allowed in conservation areas, as indicated by its own text and that of the very next policy, 2003 COSE Policy 3.1.3: Primary and secondary cConservation areas shall be developed only in a manner consistent with protection of the ecological integrity of natural resources, and in accordance with standards which are outlined subsequently in this Element. The COSE Definitions provide the following meaning for the term "development activity": Any dredging, filling, excavation, construction of new structures, expansion of existing structures, installation of utilities, roads, personal wireless service facilities, stormwater management systems, septic tanks, bulkheading, land clearing, tree cutting, mechanized vegetation removal and the disposal of solid or liquid waste. Clearly, 2003 COSE Policy 3.1.2 lists certain uses that "generally shall be permitted," but when read in context with other Plan provisions, does not necessarily forbid residential development on certain properties defined as conservation areas. In summary, it is at least fairly debatable that the County appropriately responded to the Data and Analysis by its policies affecting agricultural uses and their impact on conservation. The alleged internal consistencies in these policies were not demonstrated beyond fair debate. Level of Service 2003 Transportation Policy 1.1.2 and Capital Improvements Policy 1.2.4 raise the level of service ("LOS") for rural collector roads from LOS D in the 1991 Plan to LOS C, which is the standard recommended by the Florida Department of Transportation for rural collector roads. The McSherry Petitioners challenged this amendment because the 2002 Plan Update had upgraded the rural collector roads to LOS B. However, the proper point of comparison is from the 1991 Plan to the 2003 Amendments. Further, the evidence produced at hearing did not demonstrate that a higher LOS than C is required for protection of the state or county transportation network. It is at least fairly debatable that the Amendments regarding the LOS for rural collector roads were adequately supported by data and analysis. Conclusion It is found that, as to the 2003 Amendments in their entirety, the County used the best available data and reacted to it appropriately for planning purposes by applying professionally acceptable analysis in review and application of that data.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order finding the 2003 Alachua County Amendments to be "in compliance." DONE AND ENTERED this 18th day of October, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2004.
The Issue At issue in this proceeding is whether development orders (building permits) issued by Monroe County to John F. Myers are consistent with the Monroe County Comprehensive Plan and land development regulations.
Findings Of Fact Findings based on parties' stipulations John F. Myers is the owner of real property known as Lot 43, Block 3, Lower Matecumbe Beach subdivision, Lower Matecumbe Key, in unincorporated Monroe County, Florida. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders which are the subjects of this proceeding. Petitioner Department of Community Affairs is the state land planning agency with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and regulations promulgated thereunder; and with authority to appeal any development order issued in an area of critical state concern to the Florida Land and Water Adjudicatory Commission. Sections 380.031(18), 380.032, 380.07(2), Florida Statutes. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. These statutory provisions require that Monroe County adopt and implement a comprehensive plan and land development regulations consistent with the Principles for Guiding Development. Section 380.0552(7), Florida Statutes, formerly Chapter 27F-8, F.A.C. Monroe County has adopted a comprehensive plan, effective September 15, 1986, which complies with the Principles for Guiding Development and which has been approved by the Department in Chapter 9J-14, F.A.C., and by the Administration Commission in Chapter 28-29, F.A.C. The Monroe County comprehensive plan is implemented by and through its adopted land development regulations, codified primarily in Chapter 9.5, Monroe County Code (MCC). On December 10, 1993, Monroe County issued to Respondent Myers seven (7) building permits, each numbered 9230005763, for development of a 4,418 square foot single-family residence with 1,363 square feet of porches, and a 2,300 square foot ground slab. The permits also authorize development of a 183 square foot retaining wall, 38 pilings, and a "dock 183 sq. ft x 8ft." on the subject property. The permits were rendered to the Department on December 14, 1993. The open water shoreline on the subject property has accreted. Included in the environmental standards of the Monroe County land development regulations is Section 9.5-345, Monroe County Code, entitled "Environmental design criteria," which provides, in relevant part: Disturbed Lands: All structures developed, used or occupied on land which are [sic] classified as disturbed on the existing conditions map shall be designated, located and constructed such that: * * * (3) On lands classified as disturbed with beach berm: * * * b. No beach-berm material is excavated or removed and no fill is deposited on a beach berm; * * * f. No structure shall be located within fifty (50) feet of any portion of any beach-berm complex which is known to serve as an active nesting or resting area of marine turtles, terns, gulls or other birds; Lower Matecumbe beach is an active nesting area for marine turtles. Loggerhead turtles, the primary marine turtles which nest on Atlantic beaches in the Keys, are a threatened species under the federal Endangered Species Act. There are thirty beaches in the Florida Keys which consist of loggerhead nesting habitat. The beach on Lower Matecumbe Key, including that portion of the beach which fronts on Mr. Myers' property, is a known turtle nesting beach that is ranked as the second most heavily nested beach in the Keys. The Monroe County comprehensive plan recognizes the beaches on Lower Matecumbe Key as known loggerhead turtle nesting beaches. Pursuant to the comprehensive plan, the County has prepared endangered species maps as a tool to be utilized in identifying known turtle nesting areas. Surveys of turtle nesting behavior in the Florida Keys are accomplished through a network of volunteers. The nesting survey information obtained from this volunteer network provides very general locations with varying degrees of accuracy depending on the number and ability of the volunteers and the extent to which they can obtain access to privately owned beach front property. Because of the limitations in the survey data, it is not generally possible to determine whether turtles have nested on a particular lot. Marine turtles most commonly nest within the first 50 feet landward of the mean high tide line, although they have been known to go farther upland. Because of the compressed beach and berm habitat in the Keys, loggerhead turtles have been known to nest in grassy vegetation and woody vegetation more than 50 feet landward of the mean high water line. Mr. Myers' property is properly designated as "disturbed lands" and there exists on this property a "beach-berm complex" which is known to serve as an active nesting area of marine turtles within the meaning of Section 9.5-345, Monroe County Code. The setback requirement found in Section 9.5-345, Monroe County Code, applies to this development. Consequently, no structure may be located within fifty (50) feet of any portion of the beach-berm complex which is known to serve as an active nesting area of marine turtles. Section 9.5-4(B-3), Monroe County Code, contains the following definition that is pertinent to this proceeding: (B-3) "Beach berm" means a bare, sandy shore- line with a mound or ridge of unconsolidated sand that is immediately landward of, and usually parallel to, the shoreline and beach. The sand is calcareous material that is the remains of marine organisms such as corals, algae and molluscs. The berm may include forested, coastal ridges and may be colonized by hammock vegetation. According to the Monroe County Comprehensive Plan, the biota characteristic of beach systems in the Keys occur in up to four distinct generalized zones or associations, assemblages of plants and animals that have adapted to the environmental conditions of that zone. The zones on Keys beaches are described by Volume I of the Comprehensive Plan as follows: The strand-beach association is dominated by plants that are salt tolerant, root quickly, germinate from seed rapidly, and can withstand wave wash and shifting sand. Commonly found species include Sea Purslane (Sesuvium portulacastrum), Railroad Vine (Ipomoea pescaprae), Beach Grass (Panicum amarulum), Sea Oats (Uniola paniculata), Sea Lavender (Tournefortia gnapholodes), Coastal Ragweed (Ambrosia hispida) Bay Cedar (Suriana maritma), Cenchrus and Chamaesyce. On most Keys beaches this association occurs only at the base of the berm since the beach zone is very narrow. These plants also occupy the most seaward portion of the berm and continue some distance landward. * * * The next zone, "strand-dune" association begins with a steep and distinct increase in slope upward from the beach. This sloping portion of the berm receives the effects of the highest spring tides as well as storm-generated wave wash. The berm may be elevated only several inches or as much as several feet above the level of the beach and may extend landward hundreds of feet as a flat-topped plateau or beach ridge. The foreslope of the berm, or beach ridge, is vegetated primarily by the above-listed species of beach association. Grasses and herbaceous plants, which serve to stabilize this area, are most common. Proceeding landward, these pioneer species are joined by other species. * * * The strand-scrub association is generally considered a transition zone between strand-dune and hammock forest. Shrubs and occasional trees occur more frequently here and become more abundant as one proceeds landward. Species often found include Seagrape, . . . Wild Sage (Lantana involucrata), [and] Gray Nicker. . . . The most landward zone on the berm is occupied by tropical hardwood hammocks. On September 11, 1986, Monroe County issued building permit no. 20360 to John Brockway, Respondent Myers' predecessor in title, for development of a single-family residence on the subject property. The permit was issued prior to the effective date of the current Monroe County comprehensive plan and land development regulations, and prior to adoption of the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, which is the subject of this proceeding. The Department of Community Affairs did not challenge the Brockway permit. In 1990, the Board of Trustees of the Internal Improvement Trust Fund issued to John and Patricia Brockway a deed for sovereignty submerged lands adjacent to the subject property. The County-approved site plans for the subject permits indicate that excavation for a stormwater swale will occur seaward of the proposed residence. Mr. Myers has no intent to excavate a stormwater swale seaward of the proposed residence. The subject building permits and approved plans shall be revised to eliminate the stormwater swale and demonstrate the means by which stormwater runoff will be addressed, as required by the Monroe County Code. Based upon this agreement, the Department will not pursue its allegation that the permits are inconsistent with section 9.5-345(0)(3)b., Monroe County Code, and considers that issue to be resolved by this agreement. The parties agree that that portion of the subject permits which authorizes development of a dock on Lot 43 is acceptable, and a dock may be developed on Lot 43, so long as the permits are amended to specify that (a) the dock shall be developed adjacent to Lot 43 on an existing dredged channel and not on the jetty or open water shoreline, and (b) development of the dock is conditioned upon the Owner obtaining permits for a principal use. Findings based on evidence at hearing The subject property is generally triangular in shape. It fronts on a cul-de-sac on the northeast side. Along the west side of the property is a dredged channel and a jetty or riprap revetment. Along the south side the property fronts on the Atlantic Ocean. On the east side of the property is a single-family residence. The subject property is undeveloped except for a fill pad or fill pile established some time ago around the cul-de-sac to the western side of the property. The purpose of the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, is to provide a habitat buffer to protect marine turtles from direct and indirect impacts of development, such as lighting impacts, noise, and clearing activities behind structures when people use their back yards. Buffers are a commonly used planning technique for both planning purposes and environmental purposes. The beach berm on the subject property has not moved over time. The shoreline has accreted in recent years and therefore the mean high tide line has moved seaward. This accretion provides additional habitat for marine turtles and affects the setback measurement when it is expressed as a number of feet from mean high water, as both parties have done in this case. However, the fact that a shoreline is either accreting or eroding is not relevant to a determination of the location of the beach berm. The parties agree that the berm is identified, at least in part, by a visual assessment of the increase and decrease in elevation of the property. A berm is essentially a rise in elevation which, moving landward from the water, rises up to a high point then begins to drop back off gradually until one reaches the adjacent grade or the natural grade beyond the berm. When the grade flattens out, that is generally the landward extent of the berm. The greater weight of the evidence shows that the landward extent of the beach berm complex on Respondent's property, and the area commonly utilized by marine turtles as nesting habitat are each approximately 50 feet landward of the mean high water line depicted on the June 1994 survey of Respondent's property. Expressed as a measurement from mean high water, the setback required by Section 9.5-345(o)(3)f., Monroe County Code, on Respondent's property is approximately 100 feet. A variance from the setback provision in Section 9.5-345(o)(3)f., Monroe County Code, is not authorized. However, a variance from the front yard setback may be available to Respondent if he wishes to develop the particular single-family residence shown on the plans approved with the subject permits. The Monroe County comprehensive plan, Vol. I, Background Data Element, Section (3) entitled "Community Character," provides: A principal focus of growth management is the protection and enhancement of quality of life. Community character is a fundamental element of the circumstances described as quality of life. Community character refers to the nature of an area and can be described in terms of both the natural and the built environment. For example, the character of an undeveloped area is determined by the natural environment and is characterized by extensive open space and other environmental values. In contrast, the character of a city is defined by the built environment and the quality of life depends upon the design and effect of buildings. * * * . . . . In the Keys there are readily identifiable community characters that can be defined by the nature and extent of various land uses per community. These community character types are: Native, Sparsely Settled, Sub-Urban, Urban Transition and Urban. The comprehensive plan goes on to describe each type of community character, and includes a lengthy discussion of the criteria for determining community character. These criteria include land use, design of man-made elements including intensity of buildings and the nature of open spaces, landscaping, and social interactions and experiences. Setbacks are not mentioned in the list of criteria for determining community character or in the descriptions of the various community character types. Regardless of whether other homes in the neighborhood meet the setback requirement in Section 9.5-345(o)(3)f., Monroe County Code, requiring Respondent to do so will not affect the community character of the neighborhood as defined in the Monroe County comprehensive plan.
Recommendation Based upon the foregoing it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order denying permission to develop under Monroe County building permits no. 9230005763 as issued on December 10, 1993. It is further RECOMMENDED that the final order state that Respondent will become eligible for permits if his development plans are modified as provided in paragraph 40 of the Conclusions of Law. DONE AND ENTERED this 15th day of August 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August 1995. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1 through 7: Accepted. Paragraph 8: Rejected as constituting a conclusion of law, rather than a proposed finding of fact. Paragraphs 9 through 14: Accepted. Paragraphs 15 and 16: Rejected as statements of position or legal argument, rather than proposed findings of fact. (The statements in these paragraphs are essentially correct, but they are not proposed findings of fact.) Paragraphs 17 through 20: Rejected as further statements of position or legal argument, rather than proposed findings of fact. (To the extent necessary, the parties' positions are addressed in the conclusions of law portion of this Recommended Order.) Paragraph 21: Accepted. (This is a stipulated "fact".) Paragraphs 22 through 24: Accepted, with some minor clarification. Paragraphs 25 through 34: Rejected as subordinate and unnecessary details. (Most of the details proposed in these paragraphs are supported by the evidence and all were considered in the formulation of the ultimate findings of material fact, but none of these details need to be included in the findings of fact in this Recommended Order. The findings proposed in paragraph 33 are rejected for the additional reason that they are supported only be uncorroborated hearsay evidence.) Paragraphs 35 and 36: Accepted in substance. Paragraph 37: Rejected as a statement of position, rather than a proposed finding of fact. Paragraphs 38 and 39: Accepted. Paragraph 40: Rejected as constituting argument, rather than proposed findings of fact. Paragraph 41: Accepted. Paragraphs 42 and 43: Rejected as constituting argument, rather than proposed findings of fact. Findings proposed by Respondent: Paragraphs 1 through 14: Accepted. (These are all stipulated facts.) Paragraph 15: Accepted. Paragraph 16: Rejected as subordinate and unnecessary details. Paragraph 17: First and last sentences rejected as irrelevant. Middle sentence accepted. Paragraph 18: First sentence accepted. Last sentence rejected as subordinate and unnecessary details. Paragraph 19: Most of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Some portions are rejected as not fully supported by persuasive evidence. Paragraph 20: First sentence rejected as too broadly worded to be meaningful. The last sentence is rejected as being a conclusion that is not warranted by the evidence. Paragraph 21: Accepted. Paragraph 22: First three sentences rejected as subordinate and unnecessary details. Last sentence accepted. Paragraph 23: First sentence rejected as not fully supported by the evidence. The berm line is, in general, a gentle curve that for the most part runs parallel to the gentle curve of the shore line. Second sentence is rejected as irrelevant or as unduly repetitious. Paragraph 24: Second sentence accepted. The remainder of this paragraph is rejected as subordinate and unnecessary details or as irrelevant. Paragraph 25: The first sentence is rejected as not fully supported by the persuasive evidence; the evidence is too vague to support the use of the word "immediately" in this context. The second sentence is rejected as irrelevant. The third, fourth, fifth, and sixth sentences are rejected as being contrary to the greater weight of the persuasive evidence. Paragraph 26: The first four sentences are rejected as subordinate and unnecessary details because the greater weight of the evidence is consistent with the version put forth by the Petitioner's witnesses. Greater confidence has been placed in the measurements by the Petitioner's witnesses than in the conflicting measurements described by Respondent's expert witness. The fifth sentence is accepted in substance. The sixth and seventh sentences are rejected as consisting of arguments or of conclusions that are contrary to the greater weight of the evidence. Paragraphs 27 and 28: Rejected as subordinate and unnecessary details. Paragraph 29: First two sentences rejected as argument. Third and fourth sentences rejected as contrary to the greater weight of the evidence and as apparently based on testimony that has been taken out of context or has been misunderstood. Fifth sentence rejected as argument. Sixth sentence rejected as an over-simplification. Seventh sentence rejected as an argument or conclusion that is contrary to the greater weight of the evidence. Paragraph 30: Rejected as unnecessary summaries of testimony, rather than proposed findings of fact. Further, these summaries are, for the most part, either not fully supported by persuasive competent substantial evidence or are contrary to the greater weight of the evidence. Some of these summaries also emphasize details that are apparently based on a misunderstanding or misinterpretation of selected portions of the evidence and ignore the greater weight of the evidence. Paragraph 31: First sentence rejected as not supported by persuasive competent substantial evidence. (To the contrary, it appears to be based on a misunderstanding or a misinterpretation of Mr. Metcalf's testimony.) The second, third, and fourth sentences are rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. Paragraph 32: Rejected as argument; specifically, argument that is contrary to the greater weight of the evidence. COPIES FURNISHED: Sherry A. Spiers, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Stephanie M. Gehres, Esquire Department of Community Affairs 2796 Overseas Highway, Suite 212 Marathon, Florida 32301-1859 Chris Haughee, Esquire Akerman, Senterfitt & Eidson, P.A. 216 South Monroe Street, Suite 200 Post Office Box 10555 Tallahassee, Florida 32301 Randy Ludacer, Esquire Fleming Street Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard, Suite 140 Hollywood, Florida 33021 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Bob Bradley, Secretary Florida Land & Water Adjudicatory Commission Carlton Building Tallahassee, Florida 32301
Findings Of Fact Respondent, Lincoln A. Herreid, was, at all times material hereto, licensed to practice land surveying in the State of Florida, having been issued license number 3015. At issue in these proceedings are three surveys, which Respondent admits he performed, signed and sealed, to wit: A survey of the real property located at 9 East Lucy Street, Florida City, Florida; a survey of a portion of the real property located in Florida Fruitland Company's Subdivision No. One, Dade County, Florida; and, a survey of the real property located at 20301 S.W. 117 Avenue, Miami, Florida. 9 East Lucy Street Survey On December 17, 1983, Respondent signed and sealed a Sketch of Survey" for Lots 1 and 2, Block 1, Hays Subdivision, Plat Book 55, Page 53, Public Records of Dade County, Florida, commonly known as 9 East Lucy Street, Florida City, Florida. The Lucy Street property is rectangular in shape, and abuts streets on its north, east and west sides. The survey shows only one angle and no bearings, fails to reflect the measured distance to the nearest intersection of a street or right-of-way, and fails to reflect whether any monument was found, or set, at the southeast corner of the property. The evidence establishes that no monument was found, or set, at the southeast corner of the property. Respondent avers that no monument was set because debris, composed of paints and chemicals, preempted the area and precluded the setting of a monument. However, no offset witness point was set, nor did the survey reflect why a monument had not been set. Florida Fruitland Company Subdivision Survey On February 24, 1984, Respondent signed and sealed a "Waiver of Plat," a survey of a portion of Tract 21, Section 15, Township 53 South, Range 40 East, of Florida Fruitland Company's Subdivision No. One, Plat Book 2, Page 17, Public Records of Dade County, Florida. The Waiver of Plat shows only one angle and no bearings, indicates the four corners of the property by "Pipe," without reference to whether the pipe was set or found, fails to reflect the measured distance to the nearest intersection or right-of- way, fails to reference the source documents for the legal description of the property, and fails to provide vertical datum and benchmark descriptions. Further, the survey incorrectly positioned the property, reflected inaccurate boundary measurements, and established an incorrect elevation. The property, which is the subject of the Waiver of Plat, is rectangular in shape, zoned commercial (no side set- backs required), and its front (the northern boundary of the property) abuts Northwest 70th Street, between N.W. 82nd Avenue and N.W. 84th Avenue, Miami, Florida. The evidence establishes that the north/south dimensions of the property, as reflected by Respondent's survey, were overstated by 2.1' on the west boundary line, and 2.01' on the east boundary line. Although Respondent correctly depicted the correct distances of the east/west property line, the positioning of that line in relation to the fractional line was in error by .12', and the northwest and northeast corner placements were in error by .24' and .20', respectively. The elevation established by Respondent's survey was in error by one foot. 20301 S.W. 117 Avenue Survey On June 13, 1984, Respondent signed and sealed a "Sketch of Survey," for Lot 17, Block 6, Addition J., South Miami Heights, Plat Book 68, Page 74, Public Records of Dade County, Florida commonly known as 20301 S.W. 117 Avenue, Miami, Florida. The Sketch of Survey reflects only one angle and no bearings, and failed to set a monument or offset witness point for the northeast corner of the property.
The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
The Issue Whether respondent violated Section 498.023, Florida Statutes, by offering or disposing of an interest in subdivided lands (Pinecrest Estates) without first registering it or delivering a public offering statement to the purchasers and, if so, what penalty should be assessed or affirmative action ordered.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order assessing a $10,000 civil penalty against respondent for its violation of Chapter 498 Florida Statutes; requiring respondent to fully disclose the adverse features of the Pinecrest Estates property to each of its prior purchasers, such disclosure to be accomplished in a manner approved by the Division; requiring respondent to offer and make full refunds to its prior purchasers who desire a refund, such refunds to be made in a manner approved by the Division and conditioned only on reconveyance of the land to the respondent or recission of the agreement for deed; and requiring respondent to record in the official records of St. Johns County, Florida, all outstanding agreements for deeds covering lots belonging to prior purchasers who, after disclosure, choose not to request refunds. DONE AND RECOMMENDED this 11th day of January, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1983.
The Issue The issue is whether the City of Panama City's small scale development amendment adopted by Ordinance No. 2055.1 on February 8, 2005, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Creekstone is a limited liability corporation and presumed to be the owner of a 3.212-acre tract of land at 305 East Beach Drive, Panama City.3 (The record does not show when or if Creekstone actually purchased the property; when the application for a land use change on the property was filed with the City, Creekstone was a contract purchaser. In its Proposed Recommended Order, however, the City states that Creekstone "recently acquired" the property.) The property lies at the northwest edge of a residential area known as The Cove and is just south of the central business district of the City. The Cove is separated from the business district by a small waterbody known as Massalina Bayou (Bayou), which is spanned by the Tarpon Bridge (Bridge) at one of the Bayou's most narrow points. The 225-foot Bridge provides the most direct and easiest access between the two areas of the City. For many years, and beginning before the City adopted its Plan, Tibbetts Boat Works, Inc. (Tibbets) occupied the site and was engaged in the boat repair business, consisting of hull repair, engine maintenance, other mechanical services, and boat bottom painting, a legal but nonconforming use under the City's land development code. Photographs of the area suggest that the business is no longer active, presumably because the property has been sold. On or about December 8, 2004, SFB Investment Company, LLLP (SFB), who then owned the property but had a contract to sell it to Creekstone, filed an application with the City Planning Board seeking a change in the land use and zoning on the property. At the Planning Board meeting on January 10, 2005, the staff noted that the proposed change would "allow an encroachment of commercial into a predominately residential area" and recommended denial of the application on the ground that the change "is inconsistent with the LDR and the Comp Plan."4 By a 3-1 vote, the City Planning Board rejected the staff recommendation and recommended that the application be approved. On February 8, 2005, by a 4-1 vote, the City accepted the recommendation of the City Planning Board and adopted Ordinance No. 2055.1, which amended the FLUM by reclassifying the land use designation on the property from MU to GC for the purpose of allowing the owner to "develop [a] multi-family project on [the] property." (Simultaneously with that change, the City also changed the zoning on the property from Mixed Use- 3 to General Commercial-2, which allows a wide range of activities, including residential, professional office and services, low-intensity commercial, public/institutional/ utilities, and high-intensity commercial.) The MU land use classification "is intended to provide areas for medium to high density residential development and low intensity commercial development," allows a density of "not more than twenty (20) dwelling units per acre," and an intensity of "[n]o more than 75% lot coverage as determined by the size of the lot compared to the amount of impervious roof and driveway/ parking lot surface." On the other hand, the GC district is "intended to provide areas for high intensity commercial development, including retail sales and services, wholesale sales, shopping centers, office complexes, and other similar land uses." There are no density restrictions, but intensity is limited to "[n]o more than 90% lot coverage." Thus, while the two land uses are similar in some respects, the highest and best use on the property will now be "high intensity commercial development," such as shopping centers and office complexes, a much more intensive use than is presently permitted under the MU land use category. To address this concern, witness Harper indicated that SFB has filed a restrictive covenant on the property which includes a shoreline buffer, as well as use, height, and setback restrictions. At the Planning Board meeting on January 10, 2005, however, the staff stated "that a covenant would not be enforceable." Under the existing land use (MU), the owner can construct up to 64 residential units on the property. That number is derived by multiplying the size of the property (3.212 acres) times the allowed density (20 units per acre). However, the current zoning on the property (which is apparently tied to the MU land use category) prohibits the construction of buildings which exceed 65 feet in height. Because of this height restriction, which limits the number of residential units that can be constructed on the property, the owner has requested a change in the land use (and zoning) so that it can develop a multi-family residential condominium project (nine stories in height) with approximately 77 units. On March 10, 2005, Mr. Cooper filed his Petition challenging the small-scale amendment. He later filed an Amended Petition on April 21, 2005. Mr. Cooper resides and owns property one-half block south of the subject property (in an area designated as a special historical zone of the City) and submitted objections to the amendment during the adoption process. As such, he is an affected person and has standing to file this challenge. Joint Exhibit 9 reflects that Creekstone is a "contract purchaser" of the subject property. It also reflects that it appeared through counsel at the adoption hearing on February 8, 2005, and offered comments in support of the plan amendment. As such, Creekstone is an affected person and has standing to participate in this case. In the parties' Pre-Hearing Stipulation, Mr. Cooper (through his former counsel) identified numerous issues, many of which were not raised in his Amended Petition. At hearing, however, he contended only that the GC land use is incompatible with the character of the surrounding area, and that the amendment is internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the Future Land Use Element (FLUE) of the Plan. All of the objectives and policies relate to the compatibility issue. In all other respects, Petitioner agrees that the plan amendment is in compliance. Because the City's action involves a small scale (as opposed to a large scale) development plan amendment, the Department of Community Affairs did not formally review the plan amendment for compliance. See § 163.3187(3)(a), Fla. Stat. The Subject Property West Beach Drive runs in a northwest-southeast direction through the downtown business portion of the City until a few blocks north of the Bridge, where it changes to East Beach Drive. The roadway continues south across the Bridge and in a southerly direction along the eastern edge of St. Andrews Bay, a much larger waterbody which lies between the City and Panama City Beach. Approximately one-half mile south of the Bridge, East Beach Drive takes a 90-degree turn to the east. Most, if not all, of the peninsula south of the Bayou and Bridge and continuing until East Beach Drive turns to the east is known as The Cove, a part of which has been designated by the City as a historic special treatment zone because of its historical significance. The predominate character of The Cove is older, single-family homes. As noted above, the Bayou separates The Cove from the central business district and serves as a natural barrier between the two areas. The property is an odd-shaped parcel which sits just east of the southern terminus of the Bridge and fronts on the Bayou. (The central business district lies directly across the Bayou to the north and northwest, is classified as General Commercial or Public/Institutional, and includes a wide array of offices, government buildings, restaurants, and other commercial and public uses.) The western side of the property faces East Beach Drive. Immediately across East Beach Drive to the west (and facing St. Andrews Bay) is the Cove Harbor Condominium, a nine-story, multi-family residential condominium which was apparently constructed under MU standards, which apply to that parcel. Immediately to the east of the property is a single- family residence and then a two-story townhouse complex. The southern boundary of the property (which appears to run approximately 325 feet or so) faces East Second Court, a local road which begins on East Beach Drive and runs eastward until Watson Bayou (perhaps a mile or so away). Although a map of the historical district was not introduced into evidence by the parties, the northern and western reaches of the special treatment zone appear to begin just east of the intersection of East Second Court and East Beach Drive since the homes at 114 and 122 East Second Court are designated as having historical significance. See Respondent's Exhibit 4. These two homes appear to lie directly across the street from the southern boundary of Creekstone's property. Except for a two-story, multi-family structure (Cedar Cove Townhouses) which sits across East Second Court facing the southwest corner of the subject property, the remainder of the southern boundary of Creekstone's property faces four single-family homes. Several other multi-family structures are scattered throughout the area to the south and east, while the remainder of the neighborhood extending for at least one-half mile to the south and all the way to Watson Bayou on the east is predominately single-family residences. Finally, a condominium is located about one-half mile south of the property on the waterfront where East Beach Drive makes a 90-degree turn to the east. Except for Tibbets' activities, there is no commercial encroachment (by non-conforming use or land use classification) in the immediate area south of the Bridge and Bayou. The current FLUM shows that, with three exceptions, the entire area south of the Bridge and the Bayou to the end of the peninsula, and extending east at least a mile to Watson Bayou, is either classified as Mixed Use or Residential Low Density. (Perhaps a mile or so to the southeast there is one parcel classified as Recreation, another as Public/Institutional (which is probably a school), and a smaller adjoining parcel classified as General Commercial.) Thus, if the change is approved, the subject property will be the only parcel south of the Bridge and Bayou (except for the above exceptions which lie around a mile away) which is classified as commercial; the remainder is either mixed use or residential. Over the years, Tibbets has been the subject of City code enforcement actions, investigations by City code enforcement personnel, and investigations by the Department of Environmental Protection (DEP). It has also caused chronic environmental problems in the area. On August 27, 2002, DEP and Tibbets executed a Consent Order to resolve certain violations. Also, on April 10, 2001, Mr. Paul L. Benfield, who apparently either owned Tibbets or was associated with it in some manner, entered into a Consent Order with DEP because of his unlawful filling of 0.114 acres of jurisdictional wetlands on the site. It is fair to describe the subject property as blighted, unsightly, and in disrepair. Photographs received in evidence suggest that the business is no longer active. The parcel is fenced on three sides, and, besides an older structure which apparently housed Tibbets' office, the property contains a mixture of empty storage crates, pilings, and various pieces of equipment that were once used in the boat repair business. There are also several docks or small piers extending into the Bayou from the northwestern corner of the site. Finally, it appears that much of the eastern half of the parcel contains wetlands and is largely undeveloped. Although the staff report dated December 31, 2004, recommended denial of the application, noting that it would allow "an encroachment of commercial into a predominately residential area," it acknowledged that "[a]llowing this request can make a case for helping to rid this area of a problematic non- conforming use." See Joint Exhibit 6, page 2. Petitioner's Objections As narrowed at hearing, Mr. Cooper contends only that the plan amendment is not compatible with the character of the adjoining land in The Cove and is thus internally inconsistent with Objectives 1.1 and 1.4 and Policies 1.1.1, 1.2.1, and 1.4.1 of the FLUE. He also relies upon Policy 2.5.5(6)(e) of the City's Land Development Code. However, plan amendments do not have to be consistent with land development regulations in order to be in compliance. See § 163.3184(1)(b), Fla. Stat. Objective 1.1 requires that the City maintain a FLUM "which coordinates future land uses with . . . [compatibility]5 of adjacent land uses." Policy 1.1.1, which furthers that objective, provides in part that the City will regulate land uses through the designation of land use districts on a FLUM, and that the "location and extent of development within the City" should be "consistent with . . . compatibility of adjacent land uses." Under this objective and policy, then, land use districts on the FLUM should be located in a manner which assures compatibility with adjacent land uses. Objective 1.4 provides that the City shall "maintain procedures for the elimination or reduction of land uses inconsistent with the character of the City and the future land uses designated in the Plan." In furtherance of that objective, Policy 1.4.1 requires that the City "restrict proposed development which is inconsistent with the character of the community." Taken literally, the objective encourages the City to reduce or eliminate land uses that are inconsistent with the character of the surrounding area or other land use districts. In the same fashion, the policy requires that the City prohibit development that is not consistent with the character of the adjoining area. Finally, among other things, Policy 1.2.1 requires that the City "administer land development regulations for implementation of the Comprehensive Plan" in such a manner as to "ensure the compatibility of adjacent land uses." (The City has adopted such regulations for this purpose.) Because the implementation of land development regulations is not in issue, the provision does not appear to be relevant. According to the City's Director of Public Works, The Cove, or at least that part which lies in the area around Creekstone's property, is considered to be a part of the central business district since the two areas are "contiguous," and therefore the extension of the commercial land use district across the Bayou would be consistent with the character of the immediate area. The same view was also expressed by witness Grey. However, the two areas are physically separated by a waterbody (the Bayou) and are connected only by a 225-foot bridge which spans the Bayou at one of its most narrow points. At the same time, the land uses in the two areas are distinctly different: the business district contains a wide array of commercial and public/institutional uses while the predominate character of The Cove is single-family residential, with a scattering of multi-family residential dwellings such as townhouses and a condominium. The fact that the City interprets its GC district (presumably through its zoning regulations) as allowing certain residential uses does not change this dichotomy in character. Therefore, it is inappropriate to consider The Cove and the central business district as being contiguous, or to base a finding of compatibility on the fact that commercial uses are now found across the Bayou in the business district. The commercial land use classification has never been extended into the residential neighborhood south of the Bayou. If the change becomes effective, the new land use would be incompatible with the Residential Low Density and Mixed Use land uses which now make up the entire neighborhood. It would also be incompatible with the historic special treatment zone, which lies directly across the street from Creekstone's property. Finally, the creation of a commercial district in this area of The Cove would change the character of the neighborhood, and it is fair to infer that, even if SFB's covenant is enforceable, it would still lead to, and justify, the reclassification of other nearby parcels into commercial uses. Given these considerations, the proposed land use is internally inconsistent with the City's objective and policy that there be "[compatibility] of adjacent land uses," see Objective 1.1 and Policy 1.1.1, and Plan provisions encouraging the elimination of land uses and associated development which are inconsistent with the "character of the community." See Objective 1.4 and Policy 1.4.1. The minutes of the two meetings which culminated in the adoption of Ordinance No. 2055.1 reflect that the City's (and Planning Board's) principal rationale for the reclassification of the property was to eliminate an unsightly nonconforming use (boat repair business) which occupied the site. While it is true that the City's Plan encourages the revitalization and redevelopment of blighted areas, and provides that developers should be given "flexibility" when seeking to revitalize blighted areas, see Objectives 1.3 and 1.15 of the FLUE, there is no evidence that these objectives are intended to override (and trump) the provisions of the Plan which require that adjacent land uses be compatible with one another and preserve the character of the neighborhood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a final order determining that the plan amendment adopted by Ordinance No. 2055.1 is not in compliance. DONE AND ENTERED this 19th day of August, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 2005.
