The Issue The issue is whether proposed rules 9J-5.026(3)(d), (7)(b), (7)(c)4. and 6., (8)(a), (9)(a)3., 6., 18., and 19., and 9J- 11.023(2), (4), and (5), and existing Florida Administrative Code Rule 9J-5.003(80) are invalid exercises of delegated legislative authority for the reasons alleged in the Petition for Administrative Hearing to Challenge Proposed Amendments to Chapters 9J-5 and 9J-11, F.A.C. and to Challenge Existing Rule 9J-5.003(80) (Petition).1
Findings Of Fact Based on the evidence presented by the parties, the following findings are made: The Parties Petitioners are not-for-profit organizations whose members own real property throughout the State. A substantial number of their respective members own real property which could be amassed as one or more areas in the RLSA program. Some members of these organizations have taken steps in an effort to have their land designated as an RLSA. On behalf of their respective members, each Petitioner has a substantial interest in public policy relating to land use planning, growth management, and the protection of agricultural, rural, and conservation lands. Respondent, Department of Community Affairs (Department), has stipulated to the facts necessary to establish standing for each Petitioner. The Department is the state agency charged with implementing the review provisions of the Local Government Planning and Land Development Regulation Act codified in Sections 163.3164, et seq., Florida Statutes. The Original Statute Creating the RLSA Program Because of the complexity of the subject matter, a recitation of the RLSA program's history is appropriate. In 2001, the Legislature enacted Chapter 2001-279, Laws of Florida, codified as Section 163.3177(11)(d), Florida Statutes, which created the RLSA pilot program. The law became effective on July 1, 2001, and stated: It is the intent of the Legislature that rural land stewardship areas be used to further the following broad principles of rural sustainability: restoration and maintenance of the economic value of rural land; control of urban sprawl; identification and protection of ecosystems, habitats, and natural resources; promotion of rural economic activity; maintenance of the viability of Florida's agriculture economy; and protection of the character of the rural areas of Florida. § 163.3177(11)(d)2., Fla. Stat. (2001). While the eligibility criteria and substantive requirements of the RLSA program have been amended several times, the foregoing principles have remained the same. The statute provides an option, not an exception, under the State's growth management laws for local governments to implement innovative planning and development strategies for large, rural parcels. While having many of the attributes of a traditional "transfer of development rights" program, the RLSA planning process provides additional planning and economic incentives as well as flexibility for the local government to implement this program. The program was best summarized by Secretary Pelham at hearing as follows: The RLSA process is an optional planning process which local governments may elect to use in rural and agricultural areas of the state. Essentially it provides incentives to landowners to preserve or conserve environmental and natural resources and agricultural lands by giving them stewardship credits that may be assigned to those lands to be preserved, but which can be used on other lands through a transfer of those credits to the receiving areas. Tr. at 182. The first step in the RLSA planning process is for the local government to "apply to the Department in writing requesting consideration for authorization to designate a [RLSA]." § 163.3177(11)(d)3., Fla. Stat. (2001). Under the original statute, if the Department chose to authorize a local government to designate an RLSA, it would do so by written agreement with the local government. See § 163.3177(11)(d)4. and (5), Fla. Stat. (2001). Because the original statute was a pilot program, the Department could authorize only five local governments to designate RLSAs. See § 163.3177(11)(d)6., Fla. Stat. (2001). To be eligible for designation as an RLSA under this pilot program, a parcel of land had to be larger than 50,000 acres but not over 250,000 acres; it had to be designated as rural or a substantial equivalent on the future land use map (FLUM); and it had to be located outside the municipal and established urban growth boundaries. See § 163.3177(11)(d)6., Fla. Stat. (2001). For this reason, only counties (and not cities) were eligible to participate in the program. Once it received Department authorization to designate an RLSA, the county was to then propose and adopt a plan amendment designating the RLSA. See § 163.3177(11)(d)6., Fla. Stat. (2001). This plan amendment was to be subject to full review under Section 163.3184, Florida Statutes, for a compliance determination. Also, the plan amendment was required to specifically address the following: Criteria for the designation of receiving areas within rural land stewardship areas in which innovative planning and development strategies may be applied. Criteria shall at a minimum provide for the following adequacy of suitable land to accommodate development so as to avoid conflict with environmentally sensitive areas, resources, and habitats; compatibility between and transition from higher density uses to lower intensity rural uses; the establishment of receiving area service boundaries which provide for a separation between receiving areas and other land uses within the rural land stewardship area through limitations on the extension of services; and connection of receiving areas with the rest of the rural land stewardship area using rural design and rural road corridors. Goals, objectives, and policies setting forth the innovative planning and development strategies to be applied within rural land stewardship areas pursuant to the provisions of this section. A process for the implementation of innovative planning and development strategies within the rural land stewardship area, including those described in this subsection and s. 9J-5.006(5)(l), Florida Administrative Code, which provide for a functional mix of land uses and which are applied through the adoption by the local government of zoning and land development regulations applicable to the rural land stewardship area. A process which encourages visioning pursuant to s. 163.3167(11) to ensure that innovative planning and development strategies comply with the provisions of this section. The control of sprawl through the use of innovative strategies and creative land use techniques consistent with the provisions of this subsection and rule 9J-5.006(5)(l), Florida Administrative Code. Once the plan amendment was in place, the county was then to implement it through land development regulations. Under the original statute, the county by ordinance was to "assign to the [RLSA] a certain number of credits, to be known as 'transferable rural land use credits' . . . ." These credits would then be transferred to designated receiving areas "solely for the purpose of implementing innovative planning and development strategies and creative land use planning techniques adopted by the local government pursuant to this section." See § 163.3177(11)(d)8.b., Fla. Stat. (2001). Once transferable rural land use credits were transferred from a parcel, the underlying land uses would be extinguished, the parcel would be limited to agriculture or conservation, and the transfer would be memorialized as a restrictive covenant running with the land. See § 163.3177(11)(d)8.k., Fla. Stat. (2001). The Department was granted the authority to implement this section by rule in the original statute. However, the Department did not adopt rules. No county applied to participate in this pilot program. Amendments to the RLSA Statute The Legislature substantially amended the statute in 2004. See Ch. 2004-372, Laws of Fla. Although the program had no participants as of that time, the Legislature removed the pilot status of the program and the limitation on the number of local governments that may be authorized to designate an RLSA. See § 163.3177(11)(d)1., Fla. Stat. (2004). Although the requirement for a written agreement between the county and the Department was deleted, the requirement for the county's application and Department's authorization prior to the designation of an RLSA remained. See § 163.3177(11)(d)1. and 4., Fla. Stat. (2004). The minimum acreage for an RLSA was reduced to 10,000 acres and the maximum was removed. § 163.3177(11)(d)4., Fla. Stat. (2004). The statute also explicitly recognized that RLSAs could be multi-county. § 163.3177(11)(d)2., Fla. Stat. (2004). In 2005, the Legislature again amended the statute in several respects, one of which was directed to the stewardship credit methodology. See Ch. 2005-290, Laws of Fla. However, the statute still requires that the total amount of credits is to be tied to the "25-year or greater projected population of the rural land stewardship area." Although the statute was amended again in 2006, those amendments have no bearing on the issues in this case. See Ch. 2006-220, Laws of Fla. Designating an RLSA Under the Statute Collier County has been frequently mentioned as a local government with an RLSA program. However, that County's comprehensive plan provisions regarding rural development were not adopted under the RLSA statute; rather, they were adopted by the County in 1999 as conventional plan amendments that were later approved in 2002 by a final order issued by the Administration Commission. Collier County's rural planning program does, however, have some of the same core attributes found in the RLSA program, including the creation of transferable land use credits to enable development in designated receiving areas. The Department closely examined the Collier County program as part of its "Rural Land Stewardship Area Program 2007 Annual Report to the Legislature" (2007 Annual Report). See Joint Exhibit 4. See also § 163.3177(11)(d)8., Fla. Stat. ("[t]he department shall report to the Legislature on an annual basis on the results of implementation of [RLSAs] authorized by the department"). This examination revealed several substantial flaws in the program. First, the Collier County program is extremely complex, with over twenty general attributes that must be examined for every acre of land assigned stewardship credits. This would make it difficult and expensive for small rural counties with limited resources. The Collier County program also assigns the highest stewardship credits to environmentally sensitive lands and appreciably lower values to agricultural land. The result is that development is directed to agricultural areas. For example, eighty-seven percent of the footprint of one receiving area that is currently being developed, known as Ave Maria, was in active agriculture prior to its designation for development. In this respect, the Collier County system is directing development to agricultural lands and not protecting and conserving those lands, which the Department contends contravenes the principles of rural sustainability. Another major concern with the Collier County program is the extent and distribution of receiving areas. The Collier County program does not have any requirements that the receiving area be clustered, thus allowing for the possibility of scattered, sprawling receiving areas throughout eastern Collier County. Also, there appears to be no limit on the footprint of these receiving areas. The original Collier County program envisioned development on only nine to ten percent of the entire area, for a total of approximately 16,800 acres. However, due to the complexity and "flexibility" within the Collier County stewardship credit system, "the maximum development footprint cannot be determined." On September 12, 2006, St. Lucie County adopted plan amendments under the RLSA statute. Later that year, the Department reviewed the amendments and found them to be in compliance. In preparing the 2007 Annual Report, the Department undertook a detailed analysis of the St. Lucie RLSA amendments. Even though the amendments had been previously found to be in compliance, the new analysis revealed several shortcomings in the amendments, including their failure to discuss, analyze, or demonstrate how they further the principles of rural sustainability, a primary focus of the program. Also, the amendments were not supported by an analysis of land use need. Instead of projecting population and need, the RLSA adopted an arbitrary cap of 13,248 dwelling units with "no known planning basis." The St. Lucie RLSA is similar to the Collier County program in two respects: it is very complex, and it places no spacial limits on the footprint of the development area. Due to these shortcomings, the Department has placed little, if any, reliance on the St. Lucie County RLSA amendments as an example of proper planning under the RLSA statute. There is no evidence that any development has occurred under the St. Lucie program, and its most recent Evaluation and Appraisal Report dated October 2008 indicated that none may ever occur. In 2007, Highlands and Osceola Counties both applied for and were granted authorization by the Department to designate RLSAs. However, both counties later notified the Department that they would no longer pursue the RLSAs, and the authorizations were withdrawn by the Department. The Rule Development Process In early 2007, the Department became aware of assertions by some landowners that the RLSA program provides for unlimited development within a stewardship area; that RLSA plan amendments were not subject to the growth management provisions in Chapter 163, Florida Statutes; and that RLSAs were not subject to a needs analysis, as required by the law. At the same time, the Department received numerous inquiries from large landowners and/or their representatives regarding RLSA proposals, some as large as 750,000 acres, and for two "new towns" with 100,000 and 60,000 dwelling units, respectively. It also became aware of concerns and criticisms leveled against the one adopted RLSA program in St. Lucie County and rural planning efforts in Collier County. The main criticism was that the system being used for RLSA planning was too complex, which resulted in an expensive, consultant- intensive process that lacked transparency and was largely incomprehensible. Based on the above concerns and criticisms, the Department began gathering information in early 2007 in preparation for rulemaking. On July 19, 2007, it conducted its first workshop. Two other workshops were held, and the first draft of proposed rule 9J-5.026 was issued in January 2008. That proposed rule set forth the minimum substantive requirements for RLSA planning. In September 2008, the Department issued its first draft of proposed rule 9J-11.023, which sets forth the procedural requirements for a local government to seek authorization from the Department to designate an RLSA. After receiving comments from interested parties, the Department noticed the rules for adoption and conducted a rule adoption hearing. On January 7, 2009, Petitioners filed a Petition challenging most of the provisions in the proposed rules. See DOAH Case No. 09-0048RP. Based upon that challenge, which raised new issues not previously brought to the attention of the Department, the Department withdrew the rules and made substantial revisions to address these concerns. This rendered moot Petitioners' earlier challenge. After the revised rules were noticed for adoption, Petitioners filed their Petition challenging numerous provisions within the proposed rules as well as one existing rule. The Objections As summarized in their Proposed Final Order, Petitioners contend (a) that proposed rules 9J-11.023(2), (4), and (5) are invalid because they exceed the Department's grant of rulemaking authority;4 (b) that proposed rules 9J-5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and 19. enlarge, modify, or contravene the specific provisions of law implemented; (c) that proposed rule 9J-5.026(3) is vague and fails to establish adequate standards for agency decisions; (d) that proposed rule 9J-5.026(9)(a)18. is arbitrary; and (e) that existing Rule 9J-5.003(80) contravenes the specific provisions of law implemented. The remaining allegations have been voluntarily dismissed. a. Does proposed rule 9J-11.023 exceed the grant of legislative authority? Petitioners first contend that subsections (2) and (4) in their entirety and the words "If authorized to proceed" in the first sentence of subsection (5) of proposed rule 9J-11.023 are an invalid exercise of delegated legislative authority because they exceed the Department's specific grant of legislative authority. The challenged subsections of the proposed rule read as follows: 9J-11.023 Procedure for the Designation of a Rural Land Stewardship Area. * * * (2) Pre-Notification Actions. Prior to giving official notification of intent to designate a RLSA to the Department, the county(ies) shall conduct at least one noticed public workshop to discuss and evaluate the appropriateness of establishing a RLSA. The county(ies) shall invite the Department of Community Affairs, Department of Agricultural and Consumer Affairs, Department of Environmental Protection, Department of Transportation, Florida Fish and Wildlife Conservation Commission, affected regional planning council(s), and affected water management district(s) (collectively referred to as the "RLSA Interagency Technical Advisory Team") to participate in the workshop. Potentially affected landowners and other interested parties shall be given notice and invited to participate in the workshop. The workshop shall address: the statutory process for designating a RLSA; the planning issues that are likely to arise; and the technical assistance that will be available from state and regional agencies if the county(ies) proceed to designate a RLSA. The county(ies) shall provide opportunities for broad public participation in the RLSA process, which may include a series of public meetings or workshops. The county(ies), in coordination with the affected landowners, shall host a site visit of the RLSA for the RLSA Interagency Technical Advisory Team in conjunction with the workshop or after the notification of intent to designate pursuant to paragraph (4)(b). * * * Review of Notification of Intent to Designate. The Department will provide members of the RLSA Interagency Technical Advisory Team with a copy of the notification of intent to designate within five days after receipt of the notification. If a site visit was not made prior to the notification of intent to designate, the Department will contact the county(ies) within ten days after receipt of the notification of intent to arrange a site visit of the proposed RLSA and surrounding lands. The county(ies) shall ensure proper coordination with the affected landowners. The Department will coordinate the scheduling of the site visit with the members of the RLSA Interagency Technical Advisory Team and request their participation in the site visit. Members of the RLSA Interagency Technical Advisory Team shall be asked to provide the Department oral and/or written comments on the proposed RLSA within 30 days of the receipt of the notification of intent to designate or the site visit, if it occurs after the notification. The Department may also request meetings with the members of the RLSA Interagency Technical Advisory Team to discuss and evaluate the notification and site visit. The Department may also request a conference with the county's(ies') staff(s) to discuss issues and questions that have arisen as a result of the site visit, comments from members of the Interagency Technical Advisory Team and other stakeholders, and the Department's evaluation of the RLSA proposal. Not later than 60 days following the receipt of the notification of intent to designate or the site visit, whichever is later, the Department shall issue a written notification to the county(ies). The Department's notification shall authorize the county(ies) to proceed with a plan amendment to designate the RLSA or inform the county(ies) of the Department's decision not to authorize. The decision shall be based on the information contained in or gained from the notification, site visit, other agency comments, and other information received. The Department shall authorize the county(ies) to proceed if it determines that the proposed RLSA meets the threshold eligibility requirements of subsection 9J-5.026(4), F.A.C. and that there is a reasonable likelihood that the RLSA will further the principles of rural sustainability. If the Department decides to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the notification will set forth the facts on which the authorization is based, and may include recommendations to the county(ies) regarding the RLSA. The notification will not guarantee that a comprehensive plan amendment(s) to designate a RLSA will be found in compliance by the Department. It will only constitute the Department's authorization to designate a RLSA if the necessary comprehensive plan amendment(s) are adopted and found in compliance pursuant to Section 163.3184, F.S. If the Department decides not to authorize the county(ies) to proceed with a plan amendment to designate a RLSA, the agency's notification will explain the reasons for the decision. Amendment to the Comprehensive Plan: If authorized to proceed, the county(ies) may prepare and process a plan amendment(s) that will be reviewed by the Department pursuant to Section 163.3184, F.S. The county(ies) may, in preparing the plan amendment(s), establish a local visioning process to facilitate the development of a RLSA plan amendment. The Department encourages the county(ies) to seek and utilize technical assistance from the members of the RLSA Interagency Technical Advisory Team in preparing a RLSA plan amendment. 33. Sections 120.52(8)(b) and 120.54(3)(a)1., Florida Statutes, require that the agency list in the rulemaking notice the purported rulemaking authority for the proposed rule. To comply with this requirement, the Department's rulemaking notice cites Sections 163.3177(9) and (11)(h), Florida Statutes, as the specific authority for adopting the rule and Section 163.3177(11)(d)1., Florida Statutes, as the law being implemented. In its Proposed Final Order, the Department relies on Section 163.3177(11)(h) as the specific statutory authority for rulemaking. It provides that the Department "may adopt rules necessary to implement the provisions of [subsection 163.3177(11)]," including the RLSA provisions found in Section 163.3177(11)(d). On the other hand, the law being implemented is quite lengthy and reads as follows: (11)(d)1. The department, in cooperation with the Department of Agriculture and Consumer Services, the Department of Environmental Protection, water management districts, and regional planning councils, shall provide assistance to local governments in the implementation of this paragraph and rule 9J-5.006(5)(l), Florida Administrative Code. Implementation of those provisions shall include a process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element as predominately agriculture, rural, open, open-rural, or a substantively equivalent land use, as a rural land stewardship area within which planning and economic incentives are applied to encourage the implementation of innovative and flexible planning techniques, including those contained herein and in rule 9J- 5.006(5)(l), Florida Administrative Code. Assistance may include, but is not limited to: Assistance from the Department of Environmental Protection and water management districts in creating the geographic information systems land cover database and aerial photogrammetry needed to prepare for a [RLSA]; Support for local government implementation of rural land stewardship concepts by providing information and assistance to local governments regarding land acquisition and assistance to local governments regarding land acquisition programs that may be used by the local government programs that may be used by the local government or landowners to leverage the protection of greater acreage and maximize the effectiveness of rural land stewardship areas; and Expansion of the role of the Department of Community Affairs as a resource agency to facilitate establishment of [RLSAs] in smaller rural counties that do not have the staff or planning budgets to create a [RLSA]. Proposed rule 9J-11.023 describes in detail the process by which a local government is to request Department authorization to designate a RLSA. At issue here are provisions in subsections (2), (4), and (5) of the rule that require a local government wishing to designate an RLSA to conduct a public workshop; cover particular topics during the workshop; host a site visit with designated agencies; and based on the information gathered from this process to then allow the Department, in its discretion, to either authorize or not authorize the local government to begin to prepare and process an RLSA amendment. The latter decision is based on whether the local government has shown "a reasonable likelihood that the RLSA will further the principles of rural sustainability." Petitioners contend that there is no specific grant of rulemaking authority that authorizes the Department to mandate these procedures in the rule or to prevent a local government from proposing and processing an RLSA plan amendment. Instead, they contend that the enabling statute only allows the Department to promulgate rules that are "necessary" to implement the RLSA program, those being a requirement that the county provide notice to the Department that it intends to propose a RLSA plan amendment and a description of the subsequent review process by the Department to determine whether the amendment is in compliance. Section 163.3177(11)(d)1., Florida Statutes, authorizes the Department to provide "assistance to local governments in the implementation of this paragraph and rule 9J- 5.006(5)(l)." (The cited rule, among other things, encourages "innovative and flexible planning and development strategies" that allow conversion of rural and agricultural lands to other uses.) The statute also includes specific authority to establish a "process by which the department may authorize local governments to designate all or portions of lands classified in the future land use element (FLUE] as predominately agricultural, rural, open, open-rural, or a substantively equivalent land use, as a [RLSA] . . . ." The rule accomplishes this purpose by requiring state agency technical assistance, establishing the process for a workshop and site visit, requiring that the county's notification describe the basis for the designation, requiring broad public participation, and assuring, by approval or disapproval of the county's preliminary proposal, that the proposed RLSA will promote the principles of rural sustainability. Notably, had the Legislature intended this authorization process to be the same as the existing compliance review process for conventional plan amendments, there would be no need for this statutory language. The proposed rule does not exceed the Department's grant of rulemaking authority. b. Do certain provisions within proposed rule 9J-5.026(7) and (9) enlarge, modify, or contravene the law implemented? Petitioners further contend that proposed rules 9J- 5.026(7)(b), (7)(c)4., 6., (8)(a), and (9)(a)3., 6., 18., and enlarge, modify, or contravene the specific provisions of law implemented. The challenged rules read as follows: 9J-5.026 Rural Land Stewardship Area (RLSA) * * * Data and Analysis Requirements. * * * Population Projections and Analysis of Land Use Need. Population projections and analysis of land use need shall be prepared in accordance with Rule 9J-5.006, F.A.C., with the following modifications: The amount and extent of allowable development in the RLSA must be based on the 25-year or greater projected population of the RLSA; the anticipated effect of the proposed RLSA must receiving areas, including any committed catalyst projects, infrastructure improvements, or other projects that would attract and support development; the furtherance of the statutory principles of rural sustainability; and the goals, objectives, and policies of the RLSA plan amendment. * * * 4. Land development and other conversion threats whereby rural resources under threat require more incentives via stewardship credits and less threatened resources require lesser incentives. This includes the future threat of low-density sprawl on lands within and surrounding Eligible Receiving Areas; and * * * 6. Values shall be assigned to all of the land in the RLSA. The highest values shall be assigned to the most environmentally valuable land, and to open space and agricultural land where the retention of such lands is a priority. The assignment of values shall be submitted with the RLSA plan amendment as part of the supporting data and analysis. * * * Stewardship Credit System Criteria. (a) Each credit shall represent a defined number of residential units or a defined amount of non-residential square footage. The credit transferee may decide whether to use the credit for a residential or non- residential use in accordance with the land use standards established for the Designated Receiving Area. * * * Goals, Objectives, Policies, and Map. * * * (a) The goals, objectives, and policies shall include the following: * * * 3. Identification of the innovative planning and development strategies to be used within the RLSA, and a process for implementing the strategies, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. The process shall include provision for the Department's review of a proposed land development regulation to designate a receiving area for consistency with the RLSA plan amendment. * * * 6. A requirement that Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values based on the land values analysis conducted pursuant to paragraph (7)(c). * * * Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RLSA. Provisions to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability. * * * The grant of authority for this rule is cited as Sections 163.3177(9) and (11)(h), Florida Statutes, while Sections 163.3177(2), (3), (6)(a), (8), (10)(e), (11)(a), (b), and (d)1., 2., 4., 5., and 6., Florida Statutes, are cited as the laws being implemented. Subsection (2) of the law being implemented provides that "[c]oordination of the several elements of the local comprehensive plan shall be a major objective of the planning process"; subsection (3) is a lengthy provision requiring that a comprehensive plan include a capital improvements element; paragraph (6)(a) describes in detail the matters that must be contained in the FLUE; subsection (8) requires that all elements of the comprehensive plan be based on data appropriate to the element involved; paragraph (10)(e) generally provides that support data and analysis shall not be subject to the compliance review process, but they must be based on appropriate data; paragraph (11)(a) describes the Legislature's recognition of using innovative planning and development strategies; paragraph (11)(b) expresses the intent of the Legislature to allow the conversion of rural lands to other uses, where appropriate, including urban villages, new towns, satellite communities, area-based allocations, clustering, and open space provisions, mixed-use development, and sector planning; and subparagraphs (11)(d)1., 2., 4., 5., and 6. describe the statutory process for creating an RLSA. Subsection (7) of the proposed rule sets forth the data and analysis requirements that apply to all RLSA plan amendments, including data and analysis of existing conditions (subparagraphs (7)(a)1. through 10.); population projections and analysis of land use (paragraph (7)(b)); and a land values analysis (subparagraphs (7)(c)1. through 6.). A land use needs analysis is an integral part of the planning process. Paragraph (7)(b) requires that an RLSA amendment be supported by population projections and an analysis of land use need such that the amount and extent of allowable development must be based on the 25-year or greater projected population of the RLSA, other items, and the anticipated effect of proposed RLSA receiving areas. Petitioners contend that this language contravenes Section 163.3177(11)(d)6., Florida Statutes, amended in 2005, which provides in part that the total amount of development "must enable the realization of the long- term vision and goals for the 25-year or greater projected population of the [RLSA], which may take into consideration the anticipated effect of the proposed receiving areas." See Ch. 2005-290, Laws of Fla. Paragraph (7)(b) does not contravene the terms of the statute. As expressed in the law being implemented, the rule directs that the need analysis shall be based upon, among other things, "the anticipated effect of the proposed RLSA receiving areas " As a part of the data and analysis to be supplied, paragraph (7)(c) requires that an RLSA amendment be supported by a land values analysis that considers six components described in subparagraphs 1. through 6. This in turn requires a comprehensive analysis of rural resources that exist within the RLSA. Subparagraph 4. requires that the analysis include the development threats to rural resources and that resources under threat of conversion receive more incentives from stewardship credits than resources under less of a threat. Petitioners contend that the rule contravenes Section 163.3177(11)(d)6.j., Florida Statutes, because it requires a greater value to be assigned to resources under threat of conversion and would result in other rural and natural and agricultural resources which may have a higher intrinsic value being assigned fewer credits. Specifically, the cited statute requires that "the highest number of credits per acre" should be "assigned to the most environmentally valuable land, or, in locations where the retention of open space and agricultural land is a priority, to such lands." The purpose of the rule is straightforward: to protect those resources that are under the greatest threat and those that are most susceptible to harm over time through land development or other changes, including urban sprawl. Contrary to Petitioners' assertion, the overall analysis does in fact consider all forms of rural resources in determining how the credits will be assigned. The rule implements the statutory directive of attaining the principles of rural sustainability. Subparagraph (7)(c)6. requires, among other things, that the local government submit as a part of the data and analysis supporting the plan amendment "the assignment of values" of all lands in the RLSA. Petitioners contend that assigning values at the time of the amendment "locks in these values" and would require a subsequent plan amendment in contravention of Section 163.3177(11)(d)6., Florida Statutes, which Petitioners argue contemplates the creation of credits after the adoption of the plan amendment. At hearing, however, the Department explained that because conditions will obviously change over time, the land values analysis will be periodically updated and can be changed without a new plan amendment. In their Proposed Final Order, Petitioners concede that given this interpretation of the rule, it "would not be an invalid exercise of delegated legislative authority." See Petitioners' Proposed Final Order, par. 73. Paragraph (8)(a) of the proposed rule requires each stewardship credit to represent either a defined number of residential units or non-residential square footage. Once the credits are created in sending areas, they can be transferred to designated receiving areas to be used to enable development that is consistent with the RLSA goals, objectives, and policies. Petitioners contend that the rule will prohibit mixed-use development in contravention of Section 163.3177(11)(d)4.c., Florida Statutes, which requires that the RLSA goals, policies, and objective provide for a "functional mix of land uses." There is no prohibition of a mix of land uses. In fact, the opposite is true. As clarified by a Department witness, "a mix is essentially required, as you can see from [sub]paragraph (9)(a)17., which describes that a mix of use must be addressed." Tr. at 273. The rule does not contravene the statute. Subsection (9) of the proposed rule generally requires that the RLSA plan amendment contain goals, objectives, policies, and a map. Subparagraphs (9)(a)1. through 21. require that the goals, objectives, and policies identify the innovative planning and development strategies to be used in the RLSA process, including the adoption of implementing plan amendments, land development regulations, and the issuance of development orders. Petitioners allege that subparagraphs 3., 6., 18., and enlarge, modify, or contravene the law implemented. Subparagraph 3. requires "implementing plan amendments" because the Department recognized the fact that the RLSA planning process will consume years or even decades and will require implementing plan amendments to accomplish its purpose. This is especially true here as the RLSA process involves the development of large tracts of land (as much as 100,000 acres or more) that will take years or decades to fully implement and build out. At a minimum, under current law, the "implementing plan amendments" will include a capital improvements element annual update; water supply planning, and the designation of new towns. Except for the requirement that an implementing plan amendment designate a new town pursuant to existing Rule 9J-5.003(80), Petitioners agree that the proposed rule is valid. Because the cited existing rule has been determined to be valid, Petitioners' contention is rejected. See Findings 62-65, infra. Subparagraph 6. provides that the goals, policies, and objectives shall contain "a requirement that the Eligible Receiving Areas shall be located on land that is suitable for development and have the lowest land values on the land values analysis conducted pursuant to paragraph (7)(c)." Petitioners contend that this provision limits the flexibility of local governments to determine the best location for Eligible Receiving Areas and therefore contravenes the provisions in various parts of Section 163.3177, Florida Statutes, that emphasize flexibility. The rule implements the principles of rural sustainability contained in Section 163.3177(11)(d)2., Florida Statutes. Only by directing development to land with the lowest environmental, agricultural, and rural resource value will an RLSA protect ecosystems, habitat, natural resources, and the agricultural economy. The rule does not contravene this statute. Subparagraph 18. requires an RLSA plan amendment to include policies for "new towns," including a requirement that a new town be designated on the FLUM. Petitioners contend that the requirement to designate a new town on the FLUM contravenes Section 163.3177(11)(4)(d)4., Florida Statutes, which provides for the implementation of the innovative planning and development strategies included in existing Rule 9J-5.006(5)(l) through zoning and land development regulations. At hearing, Petitioners narrowed their argument to this one feature in the rule. Because the Department may lawfully require that new towns be designated on the FLUM, subparagraph 18. is consistent with the statute implemented. See Findings 62-65, infra. Subparagraph 19. requires that RLSA plan amendments contain goals, objectives, and policies "to ensure that any use of the underlying densities and intensities of land uses assigned to parcels of land by the county comprehensive plan prior to designation of the RLSA furthers the principles of rural sustainability." Petitioners contend this provision contravenes Section 163.3177(11)(d)6., Florida Statutes, because it "impinges on existing land use rights which is contrary to one of the statutory principles of rural sustainability, namely the 'restoration and maintenance of the economic value associated with rural lands.'" The rule, however, furthers the principles of rural sustainability, as required by Section 163.3177(11)(d)1., Florida Statutes, since it requires that all lands within an RLSA, whether or not in a Designated Receiving Area, be developed in a manner that furthers those principles. It does not contravene the cited statute. Petitioners also contend that subparagraph 19. contravenes Section 163.3161(9), Florida Statutes, which requires, among other things, that all programs be applied "with sensitivity for private property rights and not be unduly restrictive." Petitioners surmise that the rule may operate to displace underlying density within the RSLA regardless of the use of the RLSA credit system. However, the rule does not displace any underlying density; it only requires that underlying rights be exercised consistent with the RLSA. More specifically, existing densities may be used in any manner that furthers the principles without displacing any of those densities. The rule does not contravene either statute. Is proposed rule 9J-5.026(3) vague and does it have inadequate standards for agency decisions? Petitioners next contend that subsection (3) of proposed rule 9J-5.026, and specifically certain words within the definition of the term "greenbelt," are vague and fail to establish adequate standards for agency decisions. That provision reads as follows: 9J-5.026 Rural Land Stewardship Area (RSLA) * * * (3) Definitions * * * (d) "Greenbelt" means a border of permanently undeveloped land sufficient in size to effectively preclude the expansion of urban development into the surrounding rural lands and to provide an effective buffer to protect the surrounding rural resources from development impacts. A greenbelt is an undeveloped area that surrounds an urban area, a new town, or other urban development and is meant to separate the urban developed area from the surrounding area to provide a border that protects surrounding rural lands from urban development. Petitioners contend that the use of the adjectives "sufficient," "effectively," and "effective" to describe the greenbelt buffer are vague and lack standards to guide agency determinations. In common usage, the word "sufficient" means that the greenbelt is sufficient in size to accomplish its purpose of precluding the expansion of urban development into the surrounding rural lands. Similarly, the word "effectively" means that the use or creation of a buffer to protect urban encroachment on rural lands will be accomplished in an effective manner. Likewise, the word "effective" simply means that the greenbelt achieves the purpose of creating a buffer. These phrases are easily understood by persons of ordinary intelligence, particularly when read in context with other provisions of the rule. See, e.g., Cole Vision Corp., et al. v. Dept. of Bus. and Prof. Reg., 688 So. 2d 404, 410 (Fla. 1st DCA 1997). Petitioners contend, however, that the rule fails to explicitly include the standard that site-specific data would be considered in determining the "sufficiency" of a buffer. However, this level of detail is not needed since site-specific information is typically considered and applied by the local government and Department through the planning process and might include, for example, the nature of the urban area, the potential impacts if the urban area is extended, the nature of the surrounding land, and other similar factors. The rule is not so vague or lacks sufficient standards as to be invalid. Is proposed rule 9J-5.026(9)(a)18. arbitrary? Petitioners further contend that subparagraph (9)(a)18. of proposed rule 9J-5.026 is arbitrary. That rule reads as follows: 18. Policies for new towns which comply with the following: As required by subsection 9J-5.003(80) and paragraph 9J-5.006(5)(1), F.A.C., a new town shall be designated on the future land use map. A new town shall be located within a Designated Receiving Area. The plan amendment designating a new town shall include a master development plan that establishes the size of the new town, the amount, location, type, density and intensity of development, and the design standards to be utilized in the new town. Any increase in the density or intensity of land use required to achieve the proposed new town may occur only through the use of stewardship credits assigned or transferred to the Designated Receiving Area either prior to or subsequent to the designation of the new town on the future land use map. New towns shall be surrounded by greenbelts, except for any connecting rural road corridors and to the extent that new towns are adjacent to existing or planned urban development or incorporated areas. A future land use map amendment to designate a new town shall be internally consistent with RLSA provisions of the comprehensive plan. A future land use map amendment to designate a new town shall be accompanied by an amendment to the capital improvements element to incorporate a financially feasible five-year capital improvements schedule for the public facilities necessary to serve the new town and an amendment to the transportation or traffic circulation element to designate any new rural road corridors required to connect the new town with the rest of the RSLA. As noted earlier, this rule sets forth the requirements for policies in the RLSA plan amendment that are applicable to new towns. Petitioners contend that the rule is arbitrary because it "selectively emphasizes" a new town as only one of several innovative and flexible planning strategies set forth in existing Rule 9J-5.006(5)(l). To be arbitrary, a rule must not be supported by logic or the necessary facts. See § 120.52(8)(e), Fla. Stat. Here, the more persuasive evidence shows that new towns are much larger development types; they are more intense than other development forms; and they will likely generate greater impacts. In an RLSA, they take on even more significance since the planning goal is to further the principles of rural sustainability. Collectively, these factors form a sufficient basis and rationale for giving new towns different treatment than other development forms that are smaller, have fewer uses, are less intense, and are more likely to have lesser impacts. The proposed rule is not arbitrary. e. Does existing Rule 9J-5.003(80) contravene the specific provisions of law implemented? Finally, Petitioners have challenged existing Rule 9J- 5.003(80), which became effective in 1994, on the ground that it contravenes the specific provisions of law implemented. That rule defines the term "new town" as follows: (80) "New town" means a new urban activity center designated on the future land use map and located within a rural area, distinct and geographically separated from existing urban areas and other new towns. A new town is of sufficient size, population and land use composition to support a variety of economic and social activities consistent with an urban area designation. New towns include basic economic activities; all major land use categories; and a centrally provided full range of public facilities and services. New towns are based on a master development plan. The specific authority for the rule, when adopted, was Section 163.3177(9) and (10), while the law being implemented was identified as Sections 163.3177 and 163.3178, Florida Statutes. Because Section 163.3178 involves coastal management, and a new town would probably not be located in a coastal zone, it has marginal relevance to this proceeding. The Department relies principally on Section 163.3177(6)(a), Florida Statutes, which requires, among other things, that "various categories of land use shall be shown on a land use map or map series."6 The existing definition provides, in part, that a new town will include "all major land use categories, with the possible exception of agricultural and industrial." Because they include numerous land use categories, new towns are by definition a mixed-use land use category. See Fla. Admin. Code 9J-5.006(4)(c). Mixed-use land use categories must be designated on the FLUM. See § 163.3177(6)(a), Fla. Stat.("The future land use plan may designate areas for future planned development use involving combinations of types of uses"). As noted above, a new town is recognized in existing Rule 9J-5.006(5)(l) as an innovative and flexible planning option. Because the Legislature referenced this rule provision with approval four times in the RLSA statute, it must be presumed that the Legislature was expressing approval of the existing definition with the mapping requirement. See §§ 163.3177(11)(d)1. (two separate references); 163.3177(11)(d)4.c.; and 163.3177(11)(d)4.e. The rule does not contravene the statute being implemented.
The Issue Whether the Petitioner, Carla Brice, has demonstrated by a preponderance of the evidence that she is entitled to a vested rights certificate to develop certain real property located in Alachua County, Florida without complying with the Alachua County Comprehensive Plan?
Findings Of Fact The Subject Property. The property at issue in this proceeding (hereinafter referred to as "Lot 111"), consists of approximately 6 acres of real property located in Alachua County, Florida. Lot 111 is currently owned by the Petitioner, Carla Brice. Ms. Brice acquired Lot 111 through inheritance from her father, Carl L. Brice. Ms. Brice acquired the property in approximately January of 1993. Early History of the Development of Arredonda Estates. During the 1950s Mr. Brice acquired a platted subdivision in Alachua County known as Arredonda Estates Unit 1 (hereinafter referred to as "Unit 1"). Approximately 100 acres of property located adjacent to Unit 1 were also acquired by Mr. Brice. Unit 1 met the existing plat law of Alachua County. Mr. Brice proceeded with the development of Unit 1 and the sale of lots therein. Part of the 100 acres acquired by Mr. Brice was subsequently platted and developed for sale as residential lots as Arredonda Estates Unit 2A (hereinafter referred to as "Unit 2A"). Arredonda Estates Unit 2B (hereinafter referred to as "Unit 2B") was to be located to the north of Unit 2A. Because of the lack of access out of Unit 2B, the then County engineer of the Alachua County, Roy J. Miller, informed Mr. Brice that he would not allow Mr. Brice to proceed with Unit 2B until Mr. Brice completed development of approximately 33 acres of real property located to the east of Unit 1. Mr. Miller believed that there would be better access from the various phases of Arredonda Estates if the 33 acres were developed first because there would be access out of the 33 acres onto County Road 24 and onto Broken Arrow Road to the east of the 33 acres. Mr. Miller, as the County engineer, wielded a great deal of influence in the development of property in Alachua County at the time Mr. Brice developed Units 1 and 2A and at the time he was beginning development of the 33 acres. Although the evidence failed to prove that Mr. Miller could have legally required Mr. Brice to develop the 33 acres before developing Unit 2B, the uncontroverted evidence proved that it was believed that Mr. Miller's approval was necessary in order to complete a development. The 33 acres surround Lot 111 on the east, west and north. The south boundary of Lot 111 is County Road 24, Archer Road. One of the two access roads to County Road 24 from the 33 acre development was located to the immediate east of Lot 111 and the other was located to the immediate west of Lot 111. Lot 111 is bounded on the south by County Road 24. The 33 acres were to be developed as Arredonda Estates (hereinafter referred to as "Unit 4"). The Development of Unit 4. Mr. Brice informed Mr. Miller that he was concerned about developing Unit 4 before developing Unit 2B because Mr. Brice planned to develop Lot 111 as a shopping center. He did not plan to build the shopping center until all phases of Arredonda Estates were completed, including Unit 2B. In agreeing to develop Unit 4 before Unit 2B, Mr. Brice was concerned about making expenditures for larger drainage facilities and obtaining additional easements necessary for the development of Lot 111 before he planned to begin actual development of the shopping center. Mr. Brice informed Mr. Miller of these concerns. The shopping center Mr. Brice planned to develop was to consist of 296,000 square feet of paved surface and 50,000 square feet of roof area. These plans required a redesign of the drainage for Unit 4. In particular, the following modifications were necessary: In conclusion I find it necessary to change the diameter of pipe #7 from an 18 inch diameter to a 21 inch diameter, placed at a 0.15 percent slope pipe grade. Some necessary amendments are required at this point. The larger size pipe in place will cost $9.20 per linear foot. Some sixty-two feet are needed, therefore the total cost will be $570.40. Brice exhibit 9. Despite Mr. Brice's concerns, Mr. Miller continued to insist on the development of Unit 4 before Unit 2B and Mr. Brice proceeded with the development of Unit 4. Unit 4 was platted on July 19, 1970. The plat was recorded in Plat Book H, Page 30, Official Records of Alachua County. The initial design of Unit 4 provided for one point of ingress and egress on to State Road 24 from Unit 4. Mr. Miller required that two points of ingress and egress be provided and Mr. Brice agreed. The evidence failed to prove that this requirement was agreed to in exchange for any representation from Alachua County that Mr. Brice would be allowed to develop the shopping center. The final plat provided two means of ingress and egress to State Road 24 and one means of ingress and egress to County Road Number Southwest 24-C (Broken Arrow Road). Lot 111 is contained on the plat. No intended use for Lot 111 was designated on the plat of Unit 4. The plat simply identifies the lot. See Brice exhibit 5. The plat identifies the development of residential lots only. The 33 acres was initially zoned as "A" (agriculture). In order to develop Unit 4 it was necessary to obtain approval of re-zoning of the property as R1C, residential use. The re-zoning of the 33 acres was sought and approved. Lot 111 was also zoned for agricultural use when acquired. On February 11, 1969, 4.27 acres of Lot 111 were re-zoned from "A" (agriculture) to "BR" (retail sales and service). On July 1, 1969, a special use permit allowing a mobile home trailer sales agency was issued for use of 1.1 acres contiguous to the 4.27 acre parcel of Lot 111 by Alachua County. On July 7, 1975, the 1.1 acres, which the special use permit had been issued for, was zoned from "A" to "BR." Construction plans for site improvements for Unit 4 were subsequently prepared, filed with Alachua County and were approved. See Brice exhibit 10. Included on the plans is a rectangular shape identified as "Proposed Shopping Center" containing indications of measurements representing 50,000 square feet of building space. The "Proposed Shopping Center" designation is located on Lot 111. Mr. Brice was subsequently informed that the site improvements for Unit 4 were approved by Alachua County. The evidence failed to prove, however, that Alachua County specifically considered or approved the construction of a shopping center on Lot 111 in approving the site improvement plans for Unit 4. The approved site improvements for Unit 4 were ultimately made and accepted by Alachua County in September of 1970. Government Action Relied Upon. Mr. Miller intended to allow Mr. Brice to develop Lot 111 as a shopping center "as he had planned." Mr. Miller's approval was conditioned on the completion of development of Units 2B and 4 and the sale of lots thereon. The shopping center to be approved was to be limited to what Mr. Brice "had originally proposed" which was a shopping center of 50,000 square feet. Mr. Brice complied with Mr. Miller's condition that he complete development of Unit 4 before developing Unit 2B. The evidence failed to prove that it was reasonable for Mr. Brice to believe that Mr. Miller's representations concerning the approval of Mr. Brice's intended development of a shopping center on Lot 111 would last indefinitely. It was also unreasonable for Mr. Brice to believe that the representations of Mr. Miller would survive indefinitely beyond the time that Mr. Brice completed development of Arredonda Estates. In July of 1970, Alachua County Zoning Regulations contained the following site plan approval requirement for shopping centers: No permit shall be issued for construction of a shopping center until the plans and specifications, including the design of ingress and egress roads, parking facilities, and such other items as may be found of importance have been approved by the zoning commission. Based upon this provision, Mr. Miller did not have the authority to approve the construction of a shopping center on Lot 111 in July of 1970. If the representations made by Mr. Miller to Mr. Brice concerning construction of the shopping center had been made in July, 1970, it would be unreasonable for Mr. Brice to rely upon Mr. Miller's representation because of the Alachua County Zoning Regulations quoted in finding of fact 31. If the representations were made before July, 1970, it would be reasonable for Mr. Brice to rely on Mr. Miller's approval of the shopping center because the evidence failed to prove that Alachua County Zoning Regulation quoted above was in effect before July, 1970. The weight of the evidence proved that Mr. Miller's representations were made before July, 1970. Detrimental Reliance. Mr. Brice proceeded with the development of Unit 4. Roads and drainage facilities associated with Unit 4 were constructed by 1971. The cost of these improvements was approximately $68,989.54. The total cost of improvements associated with Unit 4 was $121,947.54. Mr. Brice also had to obtain a drainage easement but the evidence failed to prove the cost of doing so. The exact amount expended on Unit 4 attributable to work performed just for Lot 111 and the shopping center was not proved by Ms. Brice. One method of allocating costs associated with the development of Unit 4 to Lot 111 suggested by Ms. Brice is to determine the percentage of acreage Lot 111 represents of the whole of Unit 4: approximately 17.9 percent. Applying this percentage to the total costs equals $21,828.61. The weight of the evidence, however, failed to prove that $21,828.61 was actually incurred in association with Lot 111. The evidence failed to prove that it would be reasonable to attribute any part of the expenditures listed in paragraphs 1, 3, 6, 8, 9, 11 or 12 of Brice exhibit 30 as attributable to Lot 111. Based upon evidence presented by Alachua County, the total expenditures made by Mr. Brice associated with Lot 111 and the shopping center were approximately $1,005.50. Subsequent Events. Mr. Brice caused preliminary plans for a shopping center for Lot 111 to be developed. Brice exhibit 14. Those plans were never submitted for approval and no building permit was issued approving the construction of a shopping center for Lot 111. The preliminary plans for the shopping center indicate a substantially different configuration for the shopping center than indicated on the site improvement plans for Unit 4. Brice exhibit 14. No final development plan or plat approving a shopping center on Lot 111 was issued by Alachua County. Efforts were made during the 1970s to market Lot 111 for development as a shopping center. These efforts were not successful. As a part of this effort, Mr. Brice incurred $7,000.00 for the construction of a three dimensional model of the proposed shopping center evidenced on the preliminary plans. It has been suggested that Mr. Brice did not proceed with the development of the shopping center during the 1970's and into the 1980's for a number of reasons: A dispute between Mr. Brice and Alachua County arose in 1976 concerning the road in Unit 2A; A dispute also arose concerning the water system in the area of Arredonda Estates; The state of the economy was not conducive to development. The evidence, however, failed to prove why the shopping center was not developed. In 1973, Alachua County created a development review committee. Final site plans for commercial sites were required to be approved by the committee. Mr. Brice did not obtain approval for the proposed shopping center or seek assurances from Alachua County that Mr. Miller's representations concerning the shopping center on Lot 111 were still valid. During 1982 and 1983, Mr. Brice became aware of proposed revisions to the Alachua County Comprehensive Plan. Mr. Brice met with Alachua County officials concerning the revisions and followed the progress of the revisions. In 1984 Alachua County adopted a comprehensive plan. Under this plan commercial use of Lot 111 was not allowed except for a neighborhood convenience store with square footage of 10,000 square feet. In 1985, during a meeting with Alachua County personnel, Mr. Brice and his attorney were informed that Lot 111 could not be developed as a shopping center without a comprehensive plan amendment. No amendment was applied for. In 1989, offers to purchase Lot 111 were received. Those offers were continent upon the property being developed consistent with the BR zoning. Ms. Brice's name, then known as Carla B. Sutton, first appears in connection with Lot 111 in 1989 when offers to purchase Lot 111 were received. The evidence, however, failed to prove that she was owner of Lot 111 at that time. In 1989 or 1990, a conceptual site plan review was applied for by David Miller, Mr. Brice's representative, concerning Lot 111. Brice exhibit 21. The application was considered at an Alachua County Development Review Committee meeting on March 22, 1990. Consideration of the application was deferred for two weeks. The development Review Committee met on April 19, 1990 and considered the application for conceptual site plan review for Lot 111. The Committee was concerned about how the fact that Lot 111 had been zoned BR before the comprehensive plan had been adopted impacted the fact that development of Lot 111 as a shopping center was prohibited by the comprehensive plan. A decision was delayed for a month and staff was asked to prepare a report dealing with similarly situated parcels. By January 1991, proposed language providing for vesting of certain zoning had been drafted by Alachua County. Brice exhibit 24. By letter dated January 30, 1991, Kurt Larsen, Director of the Office of Planning and Development of Alachua County, informed all affected property owners that Alachua County was "considering" allowing a period of time during which existing zoning would be honored. Brice exhibit 25 Comments were invited. By letter dated February 15, 1991, counsel for Ms. Brice responded to Mr. Larsen's January 30, 1991 letter. Brice exhibit 26. A Transmittal Draft of the Future Land Use Element of the Alachua County Comprehensive Plan dated April 1991 was sent to the Florida Department of Community Affairs for review. See Brice exhibit 27. The Draft provided a two- year period during which undeveloped parcels zoned for a use that was otherwise inconsistent with the Comprehensive Land Use Plan would be allowed to be developed essentially in accordance with existing zoning. This policy was ultimately rejected by the Department of Community Affairs. Alachua County informed Ms. Brice of the action of the Department of Community Affairs by letter dated September 18, 1991. Brice exhibit 28. Rights That Will Be Destroyed. Alachua County adopted a Comprehensive Land Use Plan in 1991. The following policy was agreed to in a compromise between Alachua County and the Department of Community Affairs concerning commercial enclaves: Policy 3.4.3. Commercial Enclaves are designed within the Urban Cluster on the Future Land Use Map. These sites shall be subject to the following location and compatibility standards: Development of Commercial Enclaves shall be required to meet all concurrency requirements. Development shall be required to minimize access from arterials and collectors. Whenever possible, driveways shall use common access points to reduce potential turn movements. A maximum of 20,000 square feet of gross leasable area shall be permitted within each enclave. Uses may include neighborhood convenience centers consistent with Policy 3.8., offices consistent with Policy 3.9.1. and sit-down restaurants. The land development regulations for this land use category shall specify performance standards required to mitigate any adverse impact of such development on adjacent land uses and affected public facilities. Such performance standards shall include buffering and landscaping provisions, site design measures to locate such uses away from less intensive adjacent land uses, signage and parking restrictions, and intensity provisions (e.g. height and bulk restrictions). In the interim, until land development regulations consistent with these policies are adopted, the standards and criteria governing Commercial Enclaves shall be implemented through the County's Development Review Committee process. This policy shall be reviewed by 1993 to determine the effectiveness of the land use category. Mr. Brice was informed, after contacting the Alachua County Growth Management Department, that his development of Lot 111 was limited by the commercial enclave policy. Pursuant to the commercial enclave policy, development of Lot 111 is limited to a size of 20,000 square feet and the uses to which Lot 111 may be put are less than would be allowed under BR zoning. Carla Brice's Reliance and Detriment. The evidence in this case failed to prove that Ms. Brice, the current owner of Lot 111 and the applicant in this case, was aware of any representations made by Mr. Miller. More importantly, the evidence failed to prove that Ms. Brice in any way reasonably relied upon the representations made to her father. The evidence also failed to prove that Alachua County made any representations to Ms. Brice that she would be allowed to develop Lot 111 as a shopping center. In fact, Alachua County has indicated just the opposite to Ms. Brice since she became the owner of Lot 111. In light of the amount of time that passed after Mr. Miller's representations were made to Mr. Brice and the intervening events concerning development in Alachua County before Ms. Brice acquired Lot 111, any reliance by Ms. Brice on Mr. Miller's representations would not be reasonable. Finally, the evidence failed to prove that Ms. Brice detrimentally relied upon any representation of Alachua County concerning the development of Lot 111. Only Mr. Brice, Ms. Brice's father, made expenditures related to the development of Lot 111 as a shopping center. I. Procedural Requirements. On June 9, 1993 Ms. Brice filed her Application seeking an equitable vested rights certificate or a statutory vested rights certificate. On September 22, 1993 Kurt Larsen, Director, Department of Growth Management, Alachua County, informed Ms. Brice that the Application was denied. Ms. Brice appealed the decision to deny the Application by letter dated September 28, 1993. The Division of Administrative Hearings was requested by letter dated January 18, 1994, from Alachua County to assign a hearing officer to conduct a formal administrative hearing. The formal administrative hearing of this matter was conducted on March 14, 1994.
The Issue Whether the amendment to the Future Land Use Map (FLUM) of the Putnam County Comprehensive Plan (Plan) adopted by Ordinance No. 2001-33 on December 11, 2001, which changes the future land use designation on the FLUM of an approximately 29-acre site from "Rural Residential" to "Commercial," is "in compliance" as that term is defined in Section 163.3184(1)(b), Florida Statutes, for the reasons set forth in the Petition for Administrative Hearing.
Findings Of Fact Petitioner, Frances Z. Parsons, lives at 215 Woodbury Trail, Satsuma, Putnam County, Florida, which is approximately one mile from the racetrack (on the site subject to the Amendment, see Findings of Fact 14 and 15) and has resided there for over seven years. Dr. Parsons understood at the time she purchased the house that a racetrack had been in existence, but was not operational and that no evidence of a racetrack could be seen from the road. A couple of years ago, Dr. Parsons noticed construction-type activity (e.g., earth-moving machines and erection of stadium-type bleachers and lights) occurring on the Property (racetrack site). Trees along the road were "bulldozed down," the site cleared, and a fence erected, after which, Dr. Parsons could see the racetrack from the road and racing commenced. Dr. Parsons also stated that the racetrack is operational and the noise level bothers her at her home. Dr. Parsons described Satsuma as "about a half a mile wide" and "fairly settled for a rural areas, but not for -- it's certainly not downtown." Dr. Parsons stated that the community character has not changed in the last five years. Dr. Parsons submitted oral or written comments and objections regarding the disputed Amendment during the period of time beginning with the transmittal hearing for the amendment and ending with the adoption of the amendment. Respondent, Putnam County, is a political subdivision of the State of Florida. Section 7.54, Florida Statutes. The County is the local government that adopted the Amendment. Respondent, Department of Community Affairs, is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes, which includes a determination of whether comprehensive plan amendments are "in compliance." Intervenor, Florida Racing, is a private corporation and is the owner of the approximately 29 acres that are the subject of the challenged Amendment. Oral or written comments and regarding the disputed Amendment were submitted on behalf of Florida Racing during the period of time beginning with the transmittal hearing for the Amendment and ending with the adoption of the Amendment. Robert Joseph Potter is the Vice- President and Comptroller for Florida Racing. The Amendment In April 2001, Florida Racing submitted to the County an "Application for Amendment to the Putnam County Future Land Use Map" (Application). This Application requested that the land use designation for an approximately 29-acre site, consisting of five contiguous parcels under the same ownership, be changed from "Rural Residential" to "Commercial" on the FLUM. The Amendment was approved and transmitted to the Department for review under Section 163.3184(6)(a), Florida Statutes. The Department conducted this review, and raised no objections to the proposed FLUM change. On December 11, 2001, the Putnam County Board of County Commissioners (Board) adopted the proposed Amendment by Ordinance No. 2001-33. The Department timely caused to be published a Notice of Intent to find the Amendment "in compliance." On or about February 28, 2002, Petitioner filed a Petition for Administrative Hearing regarding the Department's Notice of Intent. This Petition alleges that the Amendment should be found not "in compliance" on several grounds. This challenge involves an existing development, a racetrack, on the Property. However, the Amendment would allow commercial development on the approximately 29 acres, subject to compliance with applicable Plan and Putnam County Zoning Ordinance (Zoning Ordnance) provisions. (In the Application, Florida Racing advised that proposed uses included a raceway, mobile home park, restaurant, and related amenities.) The Putnam County Speedway, the Surrounding Area, and the Review Process The approximately 29-acre site (five parcels total (Property)) subject to the Amendment is the site of an existing dirt automobile racetrack with bleachers, a press box, associated structures, and a masonry building/house. A commercial mini-warehouse building (personal storage) is located on the westernmost parcel. The racetrack is currently known as the "Putnam County Speedway" (Speedway). The Property is located on the west side of U.S. Highway 17 South between the Dunn's Creek Bridge and Buffalo Bluff Road (County Road 309B). The land surrounding the Property on the west, south, and east are designated as "Rural Residential" on the FLUM, the same as the Property prior to the proposed FLUM change. The land to the north is designated as "Conservation" on the FLUM and designated as vacant and wetlands as existing land uses. The zoning is "A." See Endnote 8. The land to the east is zoned "A" and is vacant as the existing land use. The land to the north and east of the Property is part of the 1,707-acre Murphy Creek Conservation area owned and managed by the St. Johns River Water Management District. The land to the west is zoned "C-2; A" and has an existing land use of commercial, but a future land use designation on the FLUM of Rural Residential. There is also additional land to the west of the Property within the Murphy Creek Conservation Area, a couple of residences and a vacant subdivision that has been determined not to be vested for development. There is a parcel of land to the west that is also owned by Florida Racing. The land to the south is zoned "C-4, C-1, C-2, [and] A" and is designated as vacant and commercial residential as existing land uses, and has a Rural Residential future land use designation on the FLUM. See Endnote 8. The land south of the Property across U.S. 17 includes an existing commercial establishment that includes a mini-warehouse building with outside storage of equipment and semi-trailers. (The mini- warehouse was rezoned in 1986.) Also, further south and west along U.S. 17, there are two or three additional commercial businesses. Mr. Spofford referred to this area as "a commercial cluster." However, most of the uses are nonconforming uses as to the existing Rural Residential future land use, and they would not be able to change to anything more intensive or that would have more adverse impacts on the surrounding residential uses. 1 Behind the mini-warehouse building are two residential neighborhoods with two subdivisions, one with 22 lots of approximately one acre in size and the other with 19 lots, with most of the lots being significantly larger than those in the former subdivision. Another residential area further west than the two subdivisions consists of approximately 40 parcels of land which have been subdivided over time and never platted. About four of these parcels on U.S. 17 are zoned for commercial use. There is also an existing aluminum business west with a C-4 zoning. It appears that almost all of these residential lots and parcels were created after the racetrack was established. The racetrack was in operation prior to the adoption of the Plan and zoning regulations. There is evidence that a racetrack existed before 1975, but has not remained in continuous use throughout that time. The record does not detail the history of the racetrack from its initial approval some time prior to 1975 to the date of the adoption of the Amendment. There is inference that the racetrack was not actively or frequently used in the mid-1990s. (It is noted in the County Staff Report that "[a]n aerial from the Florida Department of Transportation dated February 1972 shows the subject property cleared with what appears to be an oval dirt track. A 1964 aerial photograph did not show a racetrack on the subject property. A review of property appraisal data indicate the racetrack was established around the 1970 to 1972 period.") At some point after approximately 1995, and prior to the adoption of the Amendment, racing returned to the Speedway. An automobile racetrack is not an allowable or conforming use on land designated "Rural Residential." According to the Plan's Future Land Use Element (FLUE), "[t]he Rural Residential land use category depicted on the [FLUM] consists of water front development and developed areas interspersed within the active agricultural areas. These areas are somewhat isolated from the urban areas and rural centers. The development is situated primarily on large lots in the one to five-acre range and is either a homestead or a second home for people who seek the quiet enjoyment of living in a rural environment." As a nonconforming use, the Speedway (racetrack) is subject to County land use and zoning provisions that limit or restrict the ability to undertake improvements. For example, according to the Putnam County Zoning Ordinance 88-1, as amended by Ordinance 91-31 (collectively referred to as County Zoning Ordinance or Zoning Ordinance), the racetrack, as a nonconforming use, is restricted from being extended or enlarged, and repair of its structures is limited. For example, work may be done in any 12-consecutive month period on ordinary repairs, or on repair or replacement of 15 percent of the current assessed value of the particular structure if a nonconforming structure is involved, provided the cubic content of the structure as it existed on the date it became nonconforming shall not be increased in size.2 The intent of these nonconforming use restrictions is to "permit these nonconformities to continue until they are removed, but not to encourage their survival," and it is intended that such uses would become extinguished over time as a result of being prevented from expanding or extensively renovating their structures. See, e.g., County Zoning Ordinance, Sections 2-701-2-708. On March 20, 1998, John Salmons, the Putnam County Planner, advised Tim Keyser, Attorney, that the nonconforming status of the Speedway was still in effect. Mr. Keyser was also informed, in part, that the "Putnam County Speedway may continue to operate under the provisions of the nonconforming use section of the Zoning Ordinance." At the time Florida Racing purchased the racetrack in the 1990's (the specific date is uncertain), some of the existing structures had deteriorated and were in need of repair and/or replacement. To accommodate the renewed activity in racing and the need to upgrade the racetrack, seating at the racetrack was rearranged, new seating was added for children, and a second access driveway was installed north of the existing driveway. In 2000, in a series of letters to Mr. Potter, County staff raised concerns regarding plans to significantly upgrade the racetrack. On September 26, 2000, Mr. Salmons advised Mr. Potter "that the current zoning status for the [S]atsuma racetrack is Nonconforming. As a nonconforming use, the zoning ordinance acknowledges their existence, but does not encourage their survival. As such, there are very strict rules for repairing or maintaining a nonconforming use." Mr. Salmons also informed Mr. Potter that the Property had been designated "Rural Residential" on the County's FLUM at some point subsequent to the racetrack's initial operation. (The racetrack on the Property pre-dates the Plan, including the FLUM land use categories, including "Rural Residential.") Mr. Salmons understood at the time that Mr. Potter had plans to "significantly upgrade the racetrack" and advised Mr. Potter that he "would not be able to proceed with [his] plans." In order to upgrade, Mr. Salmons advised Mr. Potter that he would need to have the Property rezoned and given the current land use designation for the Property, Mr. Potter would need to obtain an amendment to the FLUM to change the Property's land use designation from "Rural Residential" to "Commercial." However, Mr. Salmons further advised that without doing an analysis of the proposed change, he suspected that "it would be difficult for staff to support such a change" "based upon what Future Land Use patterns surround the property." Finally, Mr. Potter was told that he could continue operations "as they were in the past." But, he could not "add seating, restaurants, structures, pave the track or do much more than do some minor maintenance at this time." On December 27, 2000, Mr. Salmons sent Mr. Potter another letter similar in content to the September 26, 2000, letter. Apparently, Mr. Salmons was advised by Mr. Potter that he had already spent in excess of the 15 percent allowed in the Zoning Ordinance. Mr. Potter was advised to stop making improvements until the land use designation was changed and rezoning approved. (There have not been any legal proceedings initiated to determine whether the 15 percent threshold was crossed.) On April 16, 2001, Florida Racing submitted the Amendment Application and requested the FLUM change suggested by County staff for the Property.3 (Florida Racing also requested rezoning of the Property which is not the subject of this proceeding.) Deficiencies in the applications were noted and additional information requested. The County's FLUE of the Plan was adopted on December 12, 1991, and amended on August 24, 1993. Policy A.1.9.3.A.5. of the FLUE describes the "Commercial" land use category and provides in part: The Commercial land use areas depicted on the [FLUM] are current locations of commercial development in the County with expansion areas provided and are intended to serve as the primary commercial locations for the next 10 years. Secondary commercial locations are provided for in the policies for development in the urban service, urban reserve and rural center land use categories. Commercial land uses include activities that are predominantly associated with the sale, rental, and distribution of products or performance of service. Future development shall be allowed as follows: The maximum permitted floor area for a site shall be 1:1. The maximum permitted impervious surface shall be 70 percent of the site.4 The Staff Report dated July 11, 2001, was prepared by Mr. Spofford, A.I.C.P., a senior planner with Putnam County. As noted in the Staff Report, the purpose of the land use "change is to bring a non-conforming automobile racetrack into compliance with the" Plan. Mr. Spofford testified that the scope of the Staff Report was broader than examining the racetrack. However, the primary focus of the Staff Report is the Property being used as a racetrack and not another commercial use. It was determined that the automobile racetrack is a commercial attraction because it attracts spectators for a fee and further noted: As such, the use is not appropriate for the Agriculture I and II and Rural Residential future land use categories. The site and surrounding area do not meet the intent and description of an Urban Service or Urban Reserve future land use category because urban type infrastructure does not currently exist and is not likely within the next 10 years. This means that the use is most appropriate for a Commercial future land use category. The subject site meets the intent of the Commercial category because it is a current location of a commercial- recreational-entertainment type use. Mr. Spofford explained that the data to support the FLUM change is set forth in the Staff Report. (Mr. Salmons, Mr. Spofford's superior, believed the data in the Staff Report was adequate to support the FLUM change.) The Application was reviewed for consistency with the Plan and various provisions of Rule 9J-5. Staff made the following recommendation: The existing automobile racetrack must go through a two step process to become compliant with the Comprehensive Plan and Zoning Ordinance. First, this proposed map amendment must be approved and adopted by the County, and found to be in compliance by the Florida Department of Community Affairs (DCA). The purpose of this public hearing is to determine whether or not the proposed map amendment should be transmitted for state agency review. Therefore, the Planning Commission must recommend to either transmit the map amendment as proposed, transmit the amendment with recommended changes or not to transmit the map amendment. If the proposed map amendment is transmitted, then state agencies will review the proposed map amendment and return comments to the County in October. The County would then likely hold public hearing[s] to consider actual adoption of the map amendment in November and December. When these public hearings are held to consider the map amendment, a rezoning application would simultaneously be reviewed. A rezoning to Planned Unit Development is a negotiable process where the County can gain greater control of the use. If the proposed map amendment is not transmitted, the a rezoning will not be necessary and the automobile racetrack will continue to be a non-conforming use. As a non-conforming use, code enforcement action will be taken to have the improvements removed that consist of an expenditure greater than 15 percent of the assessed value of the structure(s), with the exception of the permitted work that includes the press box and new lighting. All other improvements could be subject to removal. However, as a non-conforming use, the racetrack would be allowed to continue operation so long as it does not expand. This means that the County would not have much control over the days and hours of operation and other critical site design issues. Although this is not the ideal location for a racetrack, the fact is it has existed on the subject property and has been determined to be a bona fide non- conforming use. Research of County records and other known available sources of information indicates that the racetrack was established prior to the residential development in close proximity south of the subject site. The request for a large-scale comprehensive plan map amendment from Rural Residential to Commercial appears to be consistent with the Comprehensive Plan. Therefore, staff recommends that the proposed map amendment be transmitted to the Florida Department of Community Affairs with a request for their review. On July 11, 2001, the Putnam County Planning Commission unanimously approved the FLUM change after receiving comments. On July 24, 2001, the Board held a public hearing to consider the Amendment and approved same. The FLUM Amendment was transmitted to the Department. Pursuant to the Department's review of the Amendment, a Memorandum dated October 4, 2001, was prepared by Russell Paul Darst, a planner with the Department, and routed to James Stansbury and Mike Sherman, the section administrator, and ultimately to Charles Gauthier, A.I.C.P., and Bureau Chief, who issued the Department's Notice of Intent. Mr. Darst, as well as others at the Department, had no objections to the Amendment. In the Memorandum, Mr. Darst concluded: "The proposed FLUM change for this 29-acre property is from Rural Residential to Commercial. The property has been used for a race track since about 1970. The amendment would change the FLUM designation for the property to reflect the actual and long-standing use of the property. This use is not allowed in the Rural Residential FLUM category." This was the crux of the data and analysis relied on by Mr. Stansbury of the Department. The Memorandum also reflected the Northeast Florida Regional Planning Council comment: "Since the raceway already exists, the land use change will not create any additional impacts to regional resources. The proposed land use change may even protect regional resources in the future by granting the County the ability to regulate the property under the most appropriate zoning classification." Dr. Darst stated that in reviewing a FLUM amendment for the Department, it would be typical to examine the existing use of the land before making his recommendation. In reviewing the County's proposed FLUM change, Mr. Darst believed, based on his discussions with County staff, that the racetrack was not expected to expand (and not that it could not) and that the change in the FLUM would give the County "part of a means of gaining effective control over [the operation of the racetrack]." He reiterated that the FLUM change would reflect the actual and long-standing use of the Property as a racetrack. On December 11, 2001, during the public hearing, the Board approved the FLUM Amendment and transmitted the approval package to the Department. On February 13, 2002, the Department had published its Notice of Intent to find the Amendment "in compliance." The Challenges Petitioner alleges that the Amendment is not "in compliance" on several grounds: first, there is no "need" for additional land to be designated for a commercial use in Putnam County; second, the Amendment and proposed land use is not compatible with the community character and surrounding land uses; and, third, the Amendment is inconsistent with provisions of the Plan, Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. Need The term "need" as used in growth management refers to the amount of land required to accommodate anticipated growth. Section 163.3177(6)(a), Florida Statutes. Local governments are to analyze by acreage how much land within each land use category5 they need to accommodate projected growth through the planning timeframe, and then base their comprehensive plan on this estimate. Rule 9J-5.006(2)(c), Florida Administrative Code. The calculus of need is rather simple and, for that reason, inexact. The calculation of how much land is needed to accommodate the projected population involves comparing what is available for development under the comprehensive plan with the projected population over the same planning timeframe applicable to the plan. An "allocation ratio" to express this need can be derived by dividing the development potential by the projected population. For example, if a comprehensive plan allocated 100 residential dwelling units over the planning timeframe and the jurisdiction's population was projected to increase by 100 over the same time, there would be an allocation ratio of 1:1. This ratio would express an exact match between supply and demand. A ratio of 2:1, on the other hand, would demonstrate that the jurisdiction had twice as much land as designated for use as the projected population is expected to need. There is no allocation ratio adopted by statute or rule by which all comprehensive plans and plan amendments are judged. There is evidence that the County has more vacant land designated "Commercial" than is needed to accommodate its projected population.6 There is data and analysis which indicates an excess of vacant commercially-designation land on a County-wide basis. For example, Florida Racing Exhibit 1 is a copy of data and analysis in support of the FLUE. This data and analysis indicates that at least as of 1991, and projected to 2001, the County has an over-allocation of need for commercial land of about two times or, stated otherwise, the County has a 2:1 allocation ratio for commercial. This data is reflected in Petitioner's Exhibit P. Mr. Spofford explained that the population data was compiled prior to 1991, has not been updated, is not meant to provide a "detailed analysis," and it is only useful for providing the acreage for each planning district. The population for each planning district is then compared to the acreage to determine the allocation of commercial to service that population. From a very general standpoint, Mr. Spofford analyzed the FLUM Amendment application in light of whether more commercial acreage was needed. Mr. Spofford explained that because the Property was so close to the edge of the planning district, it was difficult to compare the commercial and population need. However, Mr. Spofford opined that the Planning District 1 (which includes the Property) and the one to the northeast are not over-allocated for commercial use. He also opined that, generally, "more is needed, if -- especially if you're looking out 20, ten or twenty years." Petitioner did not come forward with any independent or up-to-date analysis to demonstrate the County is in fact over-allocated for commercial land use. On the other hand, Fred Goodrow, A.I.C.P., opined that the County was over-allocated regarding the need for more commercial in light of the data previously mentioned. The existence and extent of any commercial over- allocation in Putnam County is, at best, fairly debatable. Nonconforming Use, Inconsistency, and Incompatibility Petitioner asserts that the Amendment is not "in compliance" because it fails to eliminate or reduce a nonconforming use in violation of Section 163.3177(6)(a), Florida Statutes, and Rule 9J-5.006(3)(b)3. and (3)(c)2., Florida Administrative Code. Petitioner also argues that the Commercial land use designation which would attach to the Property is incompatible with the character of the community and adjacent land uses. Petitioner also contends that the Amendment is inconsistent with several Plan provisions. Section 163.3177(2), Florida Statutes; Rule 9J-5.005(5), Florida Administrative Code. Objective A.1.3 of the FLUE requires that "[u]pon plan adoption, Putnam County shall act to eliminate or reduce uses inconsistent with the uses identified on the [FLUM] and associated adopted Goals, Objectives and Policies through implementing the following policies." Policy A.1.3.1 of the FLUE requires revision of the County's Land Development Regulations, specifically the County Zoning Code, "to reinforce its current provisions regarding the elimination of nonconforming land uses by expanding the definition of nonconforming land uses to include all uses which are inconsistent with the Future Land Use Map 2001 or cannot be made compatible with adjacent land uses. The requirements of this provision shall be enforced upon application for building permits to repair or improve such structures."7 The nonconforming use provisions of the Zoning Ordinance apply to and implement the FLUM. An automobile racetrack is not an appropriate use to put in a Rural Residential future land use category. In theory, one purpose of this land use designation is to protect residents from the intrusion of noisy racetracks which can impact an adjacent residential user. The dispute in this case is clearly framed. Petitioner contends that because the Property was designated "Rural Residential" when the County's Plan was adopted, the Speedway (racetrack) is a nonconforming use which must be restricted and eventually eliminated. Petitioner argues that the County lacks the authority to amend its FLUM to make the Speedway a conforming use under the Plan. Respondents and Florida Racing contend that the County has the authority to amend the FLUM, and acted properly in this instance in adopting the Amendment. The County has the authority to amend its FLUM, including the designations of properties as long as the designations are consistent with other provisions of the Plan and applicable provisions of Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code. The persuasive evidence indicates that an automobile racetrack is an allowable use in the Commercial future land use category as opposed to the Rural Residential category. If the Amendment is approved, the raceway would no longer be considered a nonconforming use for Plan purposes, and could undertake improvements without the restrictions that accompany such a use, subject to compliance with applicable zoning requirements. Stated otherwise, the racetrack could expand without complying with the nonconforming use restrictions, subject to compliance with the nonconforming standards in the Zoning Ordinance because the Property would remain a nonconforming use under the Zoning Ordinance. (Of course, a zoning change for the Property, as contemplated in the County's Staff Report, would create different considerations as noted below.) The Property is currently zoned C-2 and A, with the bulk of the property zoned agriculture.8 If the Amendment is approved, the next step would be for the Property owner to apply for a zoning change, e.g., special exception, or pursue a planned unit development. Under either scenario, the County could impose conditions on the use of the Property such as the amelioration of off-site impacts. On the other hand, if the racetrack continued as a nonconforming use, the persuasive evidence indicates that the County would be limited in establishing any further limitation on the use of the Property, such as duration and frequency of use, e.g., hours of operation and other site design issues. There is no persuasive support for the proposition that all subsequent Boards of County Commissioners are bound in every instance by the decision of one Board regarding the land use of a particular parcel. There is some evidence that leads to at least a fair inference that the designation of the racetrack site as "Rural Residential" may have been in error. The data and analysis that was used to support the original designation indicates the area including the racetrack as being "woodlands." The County planner involved in the preparation of the Plan, including the FLUM, testified that he did not know there was a racetrack on the land designated "woodlands." The FLUM was based "to a great extent" on this data, and very well may have designated the Property as "Rural Residential" by "oversight" based on the incorrect representation of the area as woodlands. Several other commercial uses exist within the immediate vicinity of the site of the Property, are similarly depicted as "woodlands" by the referenced data, and are designated "Rural Residential" on the FLUM. These parcels, too, may be nonconforming by error, and not by some deliberate choice. Whether the original designation of the Property as nonconforming was erroneous or not, the true question is what is the proper standard by which to weigh a FLUM amendment when it affects a site on which there exists a nonconforming use. Neither Chapter 163, Part II, Florida Statutes, nor Rule 9J-5, Florida Administrative Code, directs the Department to review a FLUM amendment involving a nonconforming use under some specific provisions. Such an amendment must be subjected to the same standards applicable to any FLUM amendment. The Property has been used intermittently as a racetrack for approximately 30 years. A racetrack has operated on the Property as a nonconforming use, and has the right to continue do so under applicable County land use and zoning regulations. The racetrack is, in fact, eligible to expand by 15 percent under these regulations. The County would not have some absolute right to cease racetrack operations if it remained nonconforming, and would not have unlimited authority to address noise and traffic concerns. The uncontradicted testimony is that it is likely that the racetrack would continue to operate even if it remained a nonconforming use. The County does not lose any authority to address noise and traffic by virtue of the Amendment. Credible evidence in the record indicates that the County may actually have a better ability to address these concerns should the racetrack be made a conforming use. Nevertheless, the fact that the racetrack, operated as the Speedway, currently exists in the area as a nonconforming use does not mean that the use is automatically compatible with the adjacent land uses and surrounding area or is otherwise consistent with the character of the community. The nonconforming use designation only means that the racetrack can continue to operate, not that the racetrack can achieve a potentially more useful and elevated land use status by virtue of being an existing raceway and commercial use. Otherwise, an existing nonconforming use would have greater rights to a new and more permissive land use designation than a new entrant into the marketplace. Stated otherwise, the FLUM Amendment, if approved, will further and encourage the nonconforming use rather than its eventual elimination as contemplated by the Plan and Zoning Ordinance. In this case, it is beyond fair debate that if a new automobile racetrack were proposed on the Property today, it would be inconsistent with the existing residential and conservation areas surrounding the property, notwithstanding the existence of several commercial properties in the vicinity. The only reasonable conclusion to be reached is that that the Amendment is not "in compliance."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Amendment adopted by Putnam County in Ordinance No. 2001- 33 is not "in compliance" as defined in Chapter 163, Part II, Florida Statutes, and the rules promulgated thereunder. DONE AND ENTERED this 2nd day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2003.
The Issue The issue is whether plan amendments CPA 10-4 and CPA 10-5 adopted by Martin County (County) by Ordinance Nos. 881 and 882 on August 10, 2010, are in compliance.
Findings Of Fact The Parties The County is a political subdivision of the State and has the responsibility of administering its Comprehensive Plan (Plan). It adopted the two amendments being challenged. The Department is the state land planning agency charged with the responsibility for reviewing plan amendments of local governments, such as the County. The parties have stipulated that Petitioners all reside or operate a business in the County, and they submitted oral or written comments to the County during the adoption process. Intervenors are limited liability corporations owned by King Ranch Florida Operations, LLC, an agricultural operation with offices in Florida and Texas. Intervenors own the subject property, which is more commonly known as Sunrise Groves. The parties have stipulated to the facts necessary to establish that Intervenors are affected persons. The Plan Amendments The amendments concern a 1,717-acre parcel of land located immediately west of, and adjacent to, Interstate 95 (I-95) in the northern part of the County. Southwest Martin Highway (also known as County Highway 714), which runs in an east-west direction, is situated on the south side of the parcel, while the site is separated by a canal on its northern boundary from the City of Port St. Lucie in St. Lucie County. Aerial photographs reflect that undeveloped land lies to the west of the property. See Intervenors' Exhibit 18. At least four large and very urban Developments of Regional Impact (DRIs) have been approved in Port St. Lucie, immediately north of the parcel, including a planned regional mall on the immediate northern boundary of the parcel. From the mid-1960's until the mid-2000's, the parcel was an active orange grove. Due to damage from citrus canker and "greening," which is an incurable, aggressive, and deadly virus affecting citrus plants, the parcel has become a literal wasteland of dead orange trees. The property is now desolate and unprofitable and cannot be converted to any other profitable or feasible agriculture use. Around the same time that the citrus grove was being destroyed, the County commissioned Urbanomics, Inc., and Leak- Goforth Company, LLC, to perform an economic study to determine how the County could better compete in the Florida market. In November 2006, the results of that study were released. See Intervenors' Ex. 11. The study indicated that the County should be pursuing various types of industrial development, with a focus on recruiting firms and institutions with 50 to 100 or more employees, or those that have capabilities and are on pace to reach this minimum employment threshold in three to five years. The study also concluded that in order to accommodate the types of industries that the County would need to pursue, it would need more space designated for industrial use. Based upon the study, the County has adopted policies in the Economic Element of the Plan regarding future economic development in the County. See Joint Ex. 1, Ch. 15. On September 30, 2009, Intervenors applied to the County for a new land use designation to be added to the Plan, allowing industrial uses to be combined with commercial and agricultural uses on their parcel of land. See Intervenors' Ex. 2. Intervenors also applied for a change in the land use category on their property from Agricultural to the new land use category. The re-designated parcel would become a "freestanding urban service district," which requires that the property be served by water and sewer services from a regional supplier rather than individual wells, septic tanks, or on-site package treatment plants. It would be one of two freestanding urban service districts (USDs) in the County.1 When Intervenors initially applied to the County for the amendments, the proposed future land use category was titled "I-95 Agricultural Technology & Employment Center." As the amendment evolved in subsequent months, however, a decision was made to shorten the name to something less cumbersome, which ultimately became "AgTEC," an acronym for Agriculture and Targeted Employment Center. As proposed, the AgTEC designation was significantly different from other land use designations in the Plan in a number of ways. AgTEC is a "site-specific" land use designation, tailored for a specific parcel of property, the 1,717 acres owned by Intervenors. It allows for agricultural uses to continue indefinitely on 817 acres of the parcel, if a viable agricultural use can be found in the future. It also permits new uses on a maximum of 900 acres of the parcel, but limited to certain "Primary Targeted Employment" uses and others which are ancillary to them. Residential is not an allowable use. Finally, it imposes a strict requirement that all future development of the parcel must be subject to a Planned Unit Development (PUD) approval process. On April 14, 2010, the Board of County Commissioners (Board) approved the application and voted to transmit Amendments 10-4 and 10-5 to the Department. On June 25, 2010, the Department issued its Objections, Recommendations, and Comments (ORC) report recommending that the two amendments not be adopted unless additional data were supplied and certain revisions made. See Petitioners' Ex. 4B, pp. 26-47. The Department's objections related to urban sprawl, a failure to demonstrate need, transportation deficiencies, lack of access to public facilities, and a failure to preserve agricultural lands. On July 17, 2010, Intervenors submitted a response to the ORC report, which included an update to the original application addressing the Department's concerns. They also provided additional data and analysis concerning the structure of the County's economy; location quotient data (ratios by type of economic activity in the region), which were consistent with a report submitted by Dr. Nicholson, an economist employed by Intervenors; and environmental information. On August 10, 2010, by a 3-2 vote, the Board adopted the FLUM amendment as Ordinance No. 881 and a revised version of the text amendment as Ordinance No. 882. See Joint Ex. 4 and 5. On October 6, 2010, the Department issued its notice of intent to find the amendments in compliance. See Joint Ex. 6. On October 7, 2010, the Department published notice of its intent to find the amendments in compliance in The Stuart News. Petitioners then timely filed their Petition, as later amended. Ordinance No. 881 refers in its title to a parcel of land known as "Sunrise Groves," which is described in the main body of the ordinance as 1,717 acres of land located west of I-95 and north of Southwest Martin Highway. The site is also defined by legal description attached as Exhibit A to that ordinance. See Joint Ex. 4, pp. 4 and 5. The title indicates that the land designation on the FLUM is being changed from Agricultural to AgTEC. Ordinance No. 882 also refers in its title to a parcel of land as "Sunrise Groves," and that a new site-specific land use category, AgTEC, is being created for that parcel. The text amendments, which are attached as Exhibit A, provide further site-specific indicators of where the new land use designation applies. See Joint Ex. 5, pp. 5-17. They describe an area that is 1,717 acres in size, state that AgTEC uses may be no closer than 300 feet from any existing residential use, and require provision of the right-of-way for a multi-lane arterial north-south roadway "connecting Martin Highway [in Martin County] to Becker Road [in adjoining St. Lucie County], providing the opportunity for a regional parallel reliever road to I-95 . . . ." Id. at pp. 6 and 7. This roadway (an extension of Village Parkway) is specifically depicted on a conceptual map showing the general location where it is to be built. See Joint Ex. 5, AgTEC Long Range Transp. Map. Petitioners contend that the text amendment does not clearly identify the location of the property or Intervenors' parcel as the subject of the amendments, partly because the ordinance title and conceptual map will not become a part of the Plan. However, Ordinance Nos. 881 and 882 clearly refer to the same specific parcel of land intended for designation as "AgTEC" and subject to the requirements of the AgTEC future land use category. When reading the two ordinances, a reasonable person would not be confused as to which property designated for the new land use category applies. The more persuasive evidence supports a finding that no other parcel of land within the County could be similarly designated as "AgTEC," absent an amendment to the AgTEC future land use category in the Plan. Petitioners' Objections As narrowed by their stipulation and the withdrawal of certain issues at hearing, Petitioners contend that the amendments are internally inconsistent with other provisions within the Plan; that the amendments encourage urban sprawl; that the amendments impermissibly convert land designated for agricultural purposes to other uses; that the text amendment is based upon the Plan that was in effect prior to the Evaluation and Appraisal Report (EAR) amendments that became effective in January 2011, thereby creating internal inconsistencies; that there is no demonstrated need for the amendments; that the amendments are not supported by adequate data and analysis; and that the amendments fail to provide meaningful and predictable standards for implementation. A contention that the text amendment includes unauthorized self-amending language is not addressed in Petitioners' proposed recommended order and is presumed to be abandoned. Internal Inconsistency Petitioners contend that the amendments are internally inconsistent with other FLUE provisions in numerous respects. Some of these consistency arguments are based on the fact that the text amendments in Ordinance No. 882 use the numbering system for the goals, objectives, and policies of the FLUE that was in effect when Ordinance No. 882 was adopted on August 10, 2010, rather than the new numbering system that became effective on January 3, 2011.2 As described in Endnote 2, infra, the new numbering system was adopted by the County during the months- long process of amending the Plan during the EAR process. The new text added to the Plan during that time-frame will simply be re-numbered by the Municipal Code Corporation, which publishes the codified version of the Plan, to conform to the new numbering system. This is consistent with the publisher's authority under Part 6 of Ordinance No. 882, which states in relevant part: "CODIFICATION. The word 'ordinance' may be changed to 'article[,]' 'section[,]' or other word and the sections of this ordinance may be renumbered or re-lettered." Joint Ex. 5, p. 3. This codification provision is found in every ordinance adopting a text amendment. By way of example, the content in section 4.4.g.1.n(3) in Ordinance No. 882 (on page 17 of Joint Exhibit 5) will be recodified in new policy 4.7A.14, which replaces the old section. Except for the new number, the content of both provisions is the same. See Joint Ex. 1, Ch. 4, p. 50. There was no evidence that the new EAR- based amendments create an inconsistency with these amendments. Petitioners also contend that an internal inconsistency in the Plan arises due to two references to "I-95 AgTEC" in Ordinance No. 882 (on pages 7 and 11), and a single reference to "AgTech" in Ordinance No. 881 (on page 2). They also argue that the "I-95 AgTEC" category lacks "meaningful and predictable standards for implementation" as a land use designation if it is distinct from the "AgTEC" category. However, they failed to present any evidence that Intervenors or the County intended to create two different future land use categories. The evidence supports a finding that both references to "I-95 AgTEC" in Ordinance 882 were merely "vestigial" references (i.e., references made during an early stage of the amendment process) to the initial title proposed for the land use category when Intervenors first applied to the County. The evidence shows that the County staff simply missed the two references when it conducted an electronic "find and replace" search intended to convert all references in the ordinance to "AgTEC" before presenting the final draft to the Board for adoption. Except for these two references to "I-95 AgTEC," the ordinance consistently uses the "AgTEC" title for the land use designations. Both references are merely scrivener's errors. The single reference to "AgTech" in Ordinance No. 881 is simply a misspelling of the proper title of the new future land use category to be applied to the property. The simultaneous adoption of the two ordinances, the application for both ordinances by the same applicant, and the obvious similarity between the correct spelling and the misspelling support a finding that the use of "AgTech" in Ordinance No. 881 is also a scrivener's error. Historically, after securing Board approval, the staff has been authorized to correct errors in the FLUM without a formal amendment; however, the County Growth Management Director could not recall a situation where a scrivener's error in a text amendment had occurred and was unsure as to how that type of error would be corrected. More than likely, these scrivener's errors will be corrected by another plan amendment. In any event, these non-substantive, minor scrivener's errors do not render the amendments not in compliance. Petitioners further contend that the amendments are inconsistent with the County's stated policy of preserving agricultural lands. See Joint Ex. 1, FLUE policy 4.12A.1. However, the amendments preserve almost one-half of the land (817 acres) for agricultural purposes even though the entire parcel is now unproductive. Petitioners also argue that the amendments are internally inconsistent with FLUE Objectives 4.13A.1.(2)(a) and (b), which provide that the conversion of agricultural land to another land use may be done only when it does not affect the hydrology or productive capacity of adjacent farmlands, and only when it is a "logical and timely extension of a more intense land use in a nearby area." As noted above, there are four approved DRIs immediately north of the parcel in the southwestern quadrant of Port St. Lucie, including a large regional mall on the parcel's northern boundary. The new land use is a logical extension of a more intense land use in a nearby area. Also, there is no evidence that the new land use will affect the hydrology or productive capacity of adjacent farmlands. To the contrary, the evidence shows that any adjacent agricultural areas to the west are protected by a requirement that 75 percent of the common open space be along the western border. It is fairly debatable that the amendments are consistent with the cited policies. Petitioners contend that the amendments are internally inconsistent with a series of FLUE policies that, in general terms: (a) require the availability of services and facilities before expanded urban development may be approved (FLUE policies 4.1B.2., 4.1B.3., and 4.13A.1.(b)); (b) prohibit any regional utility from serving customers outside the Primary Urban Service District (PUSD) and Secondary Urban Service District (SUSD) (FLUE policies 4.7A.2.-4., 4.7A.10., 4.7B.8.(6)-(7), and 4.7B.9.); and (c) prohibit urban development outside the PUSD (FLUE policy 4.13A.9.). Although couched differently, the essence of the argument is that the amendments allow development in an area that is not presently within any PUSD or SUSD, thereby creating an issue of internal inconsistency with other provisions of the Plan. The existing Plan establishes two main types of "urban service districts" in the County: a PUSD and a SUSD. See Joint Ex. 1, Ch. 4. There is an "eastern" PUSD that includes most of the unincorporated coastal area of the County, surrounding the Cities of Stuart, Sewall's Point, Jupiter Island, and Ocean Breeze Park. Adjacent to the eastern PUSD is a much smaller eastern SUSD. See Joint Ex. 3. Several miles west of the boundaries of the eastern PUSD and SUSD there is a smaller "Indiantown" PUSD that consists of the unincorporated inland area of the County known by that name, and an adjacent Indiantown SUSD. Id. The County's purpose for having USDs is to "regulate urban sprawl by directing growth in a timely and efficient manner to areas with urban public facilities and services, where they are programmed to be available, at the levels of service adopted in the Plan." Joint Ex. 1, FLUE Goal 4.7. The provision of "urban public facilities and services" is generally limited by the Plan to the land inside the County's USDs. The term "public urban facilities and services" is defined as "[r]egional water supply and wastewater treatment/disposal systems, solid waste collection services, acceptable response times for sheriff and emergency services, reasonably accessible community park and related recreational facilities, schools and the transportation network." Joint Ex. 1, Ch. 2, § 2.2(127). The Plan also contains numerous provisions that establish a broad prohibition against all industrial uses and most commercial uses on land outside the County's USDs. The Plan expressly provides for the creation of so- called "Freestanding Urban Service Districts" within the County. See Joint Ex. 1. Ordinance No. 882 includes an amendment to FLUE section 4.4.M.1.h.(5) to establish that land designated as AgTEC shall be a freestanding USD. See Joint Ex. 5, p. 8. It also amends FLUE section 4.4.g.1.n.(3) to include land designated AgTEC as one of several enumerated "exceptions to the general prohibitions on development outside of the [PUSD]." Id. at p. 17. This means that the amendment creates its own exception from restrictions in the Plan that might otherwise apply to development outside the PUSD. Therefore, the prohibitions against a regional utility serving a customer outside the PUSD and SUSD, or expanding urban development outside a PUSD, do not apply. As noted above, these amended section numbers will be renumbered in the codification process to conform to the numbering in the new EAR-based amendments. However, the content remains the same. See Finding of Fact 18, supra. Petitioners presented no evidence that the freestanding USD for the AgTEC-designated land would lack the urban public facilities and services that would be necessary under the Plan. Utility services do not have to be physically available at the property boundary before a change in land use can be approved; they must only be planned or programmed. To be programmed, the services may be identified in the capital improvement element of the Plan or appear in a DRI approval. According to Mr. Dulin, County Senior Planner, the utility services for the parcel appear in "one or a number of the [DRIs] approved in the southwestern quadrant of Port St. Lucie." This type of arrangement for services is not unusual, as the County now provides services to some areas in St. Lucie County, while Port St. Lucie and St. Lucie County provide services to certain areas in the County. The evidence shows that Port St. Lucie has the capacity to meet the requirements of the development, and that those services will be paid for by the developer, and not the County. At the amendment stage, the lack of a formal written agreement between the developer and Port St. Lucie is of no concern, as one is not required until the Intervenors seek a development order from the County. It is fairly debatable that the amendments are consistent with the FLUE. Urban Sprawl Florida Administrative Code Rule 9J-5.006(5)(g) identifies 13 "primary indicators" of urban sprawl to be considered in the review of plan amendments to determine whether the presence of multiple indicators "collectively reflect a failure to discourage urban sprawl." Fla. Admin. Code R. 9J- 5.005(5)(d). Petitioners' expert, Charles G. Pattison, contends that, with the exception of four indicators (1, 4, 11, and 13), all other indicators are triggered by the changes effectuated through the amendments being challenged. However, indicator 3 was not raised in the Amended Petition or stipulation. Therefore, only the remaining eight indicators will be addressed. See Heartland Envtl. Council, Inc. v. Dep't of Community Affairs, Case No. 94-2095GM (Fla. DOAH Oct. 15, 1996), modified in part, Case No. DCA-96-FOI-GM (Fla. DCA Nov. 25, 1996), 1996 Fla. ENV LEXIS 163 at *63. Indicator 2 requires a determination as to whether the amendments promote, allow, or designate "significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development." Fla. Admin. Code R. 9J-5.006(5)(g)2. As noted above, large and very urban DRIs have been approved in neighboring Port St. Lucie just north of Intervenors' property, including a planned regional mall on the immediate northern boundary of the property. Also, some of the infrastructure for these developments has been constructed immediately north of Intervenors' parcel, to which the infrastructure on Intervenors' parcel is required to connect. It is unreasonable to ignore this development simply because it lies within an adjacent local government, rather than viewing the existing and approved development in the area as a whole. A more reasonable approach is to consider the existing urban areas immediately to the north of the parcel. Indicator 5 requires an analysis to determine whether the amendments fail to "adequately protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils." Fla. Admin. Code R. 9J-5.006(5)(g)5. Because the parcel is bordered on the east by I-95 and on the north by DRIs in Port St. Lucie, the only areas of concern affected by this indicator would be to the south or west of the parcel. Petitioners failed to prove, however, that the AgTEC requirements for buffers on the east and south boundaries and required open space on the western border of the site constitute inadequate protection for any adjacent agricultural areas or activities within the meaning of the rule. Indicators 6, 7, and 8 are related to the orderly and efficient provision of public services and facilities. See Fla. Admin. Code R. 9J-5.006(5)(g)6.-8. Urban sprawl is generally indicated when new public facilities must be created to serve a proposed use. As noted above, the provider of water and sewer services to Intervenors' parcel (Port St. Lucie) has ample capacity to meet its projected needs and the capability of doing so from adequately sized lines located within a quarter of a mile from the parcel. Also, there is no credible evidence that there will be a lack of transportation infrastructure to meet the demand expected to be placed on the parcel. Indicator 9 requires an analysis to determine if the amendments fail "to provide a clear separation between rural and urban uses." Fla. Admin. Code R. 9J-5.006(5)(g)9. Through the use of setbacks, buffers, and other site design criteria, it is at least fairly debatable that the amendments create a sufficiently clear separation between the industrial/commercial uses that would be allowed and any rural uses to the south and west of the site. Petitioners did not identify any adjacent rural uses that would require such separation. Indicator 10 requires that the amendments do not discourage or inhibit infill development or the redevelopment of existing neighborhoods and communities. While Petitioners pointed out that there are other parcels in the County currently designated for industrial use, those parcels are either too small or too scattered to attract the types of industrial development desired by the County, which are described in the Economic Element of the Plan. Further, there was no evidence that the other smaller and scattered parcels would be adversely affected by the large-scale development envisioned on the AgTEC land. Finally, indicator 12 requires an analysis to determine if the amendments result "in poor accessibility among linked or related land uses." Fla. Admin. Code R. 9J- 5.006(5)(g)12. The evidence shows that the AgTEC requirements for new transportation infrastructure, coupled with the existing access from two adjacent interchanges on I-95, provide ample accessibility for the parcel and other related land uses. In summary, it is at least fairly debatable that none of the primary indicators of urban sprawl at issue are triggered by the amendments. Other Issues Petitioners assert that Intervenors failed to demonstrate a need for commercial or industrial land outside the USDs. They also contend that the economic study performed by Dr. Nicholson failed to consider other vacant parcels of land designated for industrial use, including large amounts of acreage in Palm City and Indiantown. However, Dr. Nicholson established that of the 2,590 acres of available industrial land in the County, the vast majority of these sites are small, less than five acres in size, and are inadequate. He also established that the County lacks any well-planned, amenity- oriented industrial, office, or business parks, which would be the type of development contemplated on Intervenors' parcel. It is fairly debatable that the needs analysis submitted by Intervenors is adequate to support the amendments. Although raised as an issue, there was no evidence that the amendments are internally inconsistent with any provisions within the Economic Element of the Plan. All other contentions not specifically addressed herein have been considered and rejected. Improper Purpose Because they did not substantially change the outcome of the Department's determination that the amendments are in compliance, Petitioners are non-prevailing adverse parties. See § 120.595(1)(e)3., Fla. Stat. Therefore, it is necessary to make a determination as to whether Petitioners participated in this proceeding for an "improper purpose," as that term is defined in section 120.595(1)(e)1. Petitioners generally alleged that the amendments were internally inconsistent with other Plan provisions in numerous respects, that they encouraged urban sprawl, that they contain substantive errors that cannot be corrected in this proceeding, and that there is no needs analysis to support the amendments. Each of these contentions was ultimately found to be without merit, and contrary evidence on these issues submitted by the County and Intervenors was credited. However, when taken as a whole, the record does not support a finding that Petitioners participated in this proceeding "primarily" to harass the applicants, increase the cost of litigation, or cause them unnecessary delay. The Amended Petition was not frivolous.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that the amendments adopted by Ordinance Nos. 881 and 882 are in compliance. DONE AND ENTERED this 5th day of May, 2011, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2011.
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Background The parties Respondent, Franklin County (County), is a local governmental unit subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter authorizes the County, under certain conditions, to adopt what is known as a small scale development amendment to its comprehensive plan. At issue in this case is a small scale development amendment adopted by the County on October 3, 1996. Petitioner, St. George Plantation Owners Association, Inc. (petitioner), is a not-for-profit corporation organized for the protection and management of the Plantation Area of St. George Island. The island lies just south of Apalachicola, Florida in the Gulf of Mexico. The parties have stipulated that petitioner is an affected person within the meaning of the law and thus it has standing to bring this action. Intervenors, Ben Johnson and Coastal Development Consultants, Inc., are the owners of approximately 58 acres on St. George Island known as the Resort Village Property. The property is adjacent to the St. George Island Airport. A portion of intervenors' property, 9.6 acres, is the subject of the plan amendment being challenged. The nature of the dispute Intervenors' property is subject to a 1977 Development of Regional Impact (DRI) order adopted by the County in 1977. The order has been amended from time to time. Among other things, the order provides conceptual approval for the development of "one or more high quality resort hotels or motels, together with such affiliated uses as may be appropriate or desirable, such as gift and tourist shops, restaurants, recreational activities and similar activities." Intervenors desire to develop the Resort Property Village consistent with the 1977 DRI order. The first part of the project consists of approximately 9.6 acres which they have designated as Phase I. The land is located within the Plantation Area of St. George Island and has a land use designation of residential. In June 1995, intervenors submitted detailed site plans for Phase I to the County. On August 1, 1995, the County conducted a public hearing to review the proposed site plans and specifications for Phase I. It adopted a motion which directed its staff "to review and perfect the plans presented, so that the Board can consider the final approval of the plan." It also directed its staff to provide advice concerning the procedure to be followed. After consulting with the Department of Community Affairs (DCA), which recommended that the comprehensive plan be amended to change the land use to accommodate the commercial uses, the staff recommended that the County adopt a small scale development amendment by changing the designation on its Future Land Use Map (FLUM) for 9.6 acres from residential to commercial. By a 3-2 vote, on October 3, 1996, the County adopted Ordinance No. 96- 22 which changed the designation for the 9.6 acres on the FLUM from residential to commercial. Because the amendment affected ten or fewer acres, the County opted to make the change with a small scale development amendment under Section 163.3187(1)(c), Florida Statutes. According to the site plan which accompanied a Notification of Proposed Change filed with the County on May 26, 1996, the Phase I development includes four hotels, 10,250 square feet of commercial space, 300 square feet of retail space, a beach club, a 325 seat conference center, various support and recreational facilities, and a wastewater treatment plant. The Phase I site plan, however, does not include the three subsurface absorption beds which are required to service the effluent from the wastewater treatment plant. If the absorption beds were included, they would increase the size of Phase I from 9.6 to approximately 14.6 acres. In a petition challenging the adoption of the small scale amendment, petitioner contends that, if the absorption beds are properly included in the land use amendment, the land use area would exceed ten acres and thus would require a full-scale land use amendment subject to DCA review. In response, the County and intervenors have contended that, under the current plan, there is no need to change the land use where the wastewater treatment facility will be located since such facilities are allowed in any land use category. As such, they contend there is no requirement to include such property in Ordinance 96- 22. The Wastewater Treatment Facility The proposed development will be served by a wastewater treatment facility. The Department of Environmental Protection (DEP) has issued a permit to Resort Village Utility, Inc., a utility certified by the Florida Public Service Commission to serve the entire 58-acre Resort Village property. The permit provides that the plant can accommodate up to, but not exceeding, 90,000 gallons of treated effluent per day. The facility consists of the wastewater treatment plant, lines to the plant from the development which carry the untreated wastewater to the plant, and lines from the plant to three sub-surface absorption beds where the treated effluent is disbursed. The absorption beds required for the Phase I project wastewater treatment facility will not serve any residential customers. Rather, they will only serve Phase I and any other subsequent phases of Resort Village development, which is a commercial development. Construction must begin on the wastewater treatment plant once the flow of waste effluent reaches 7,500 gallons per day, or if the wastewater from restaurants reaches 5,000 gallons per day. The Phase I project is required to use this facility once the rate of flow of waste effluent exceeds 10,000 gallons per day. Until these thresholds are met, the project will rely temporarily on aerobic systems to handle and treat waste effluent. Under the permit issued by the DEP, the wastewater treatment facility required for Phase I consists of both a wastewater treatment plant and three absorption beds. Through expert testimony of a DEP professional engineer, it was established that the absorption beds were integral to the design and successful operation of the facility. The County and intervenors acknowledge this fact. Therefore, the "use" that is the subject of the amendment is the entire wastewater treatment facility, including the absorption beds, and "involves" some 14.6 acres. Since the plan amendment does not involve "10 or fewer acres," as required by statute, the amendment cannot qualify as a small scale development amendment and is thus not in compliance. In making these findings, the undersigned has considered a contention by the County that Policy 2.3 of the comprehensive plan sanctions its action. That policy reads as follows: Public utilities needed to provide essential service to existing and future land uses in Franklin County shall be permitted in all the land use classifications established by this plan. Public utilities includes all utilities (gas, water, sewer, electrical, telephone, etc.) whether publicly or privately owned. At hearing, the County planner construed the term "public utilities" as being "minor (utility) infrastructure," including wastewater treatment plants not exceeding 100,000 gallons per day. Relying on this provision, the County reasons that the proposed facility is "minor" infrastructure, since it will only have 90,000 gallons per day capacity, and thus it can be placed in a residential land use category. They go on to argue that, since no change in land use classification is needed to permit the facility, it is unnecessary to include the facility in the plan amendment. According to the County, however, the plant (but not the beds) was included only because it was easier to draw a map for the entire 9.6 acres rather than excise that portion of the land where the plant will be located. Under the same theory, the County has placed at least two existing wastewater treatment facilities in the residential land use category. Those facilities, however, predate the adoption of the comprehensive plan in April 1991, and both serve residential, as opposed to commercial, developments. Moreover, the County admitted that it lacks any "clear" policy about the meaning of "public utilities," and it has never adopted a land development regulation to implement the interpretation given at hearing. The County's position is contrary to conventional land use planning practices which define "utilities" as infrastructure such as water or electrical lines that transport a service and would, by their very nature, be required to cross different land uses. Conversely, conventional land use planning practices define "facilities" as infrastructure that performs a service, such as power plants or pumping stations. This infrastructure does not cross different land use categories. In this case, the absorption beds perform a service by further processing and treating waste effluent from Phase I. Therefore, conventional land use planning practices would logically call for the plant and related absorption beds to be classified as "public facilities" under Policy 2.2(i) of the County's comprehensive plan. That policy defines the term as including "water and sewer facilities." The classification would also be compatible with the definition of "public facilities" found in DCA Rule 9J-5.003(105), Florida Administrative Code. Finally, the County and intervenors point out that the facility may not be constructed for many years, depending on the rate and amount of development that occurs in Phase I. Thus, they contend that there is no immediate requirement for the County to change the future land use designation of the property where the absorption beds will be located. But given the fact that the beds and plant are a single, interrelated system, the County cannot choose to change the land use designation for a portion of the facility while ignoring the remainder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administration Commission enter a Final Order determining Ordinance No. 96-22 adopted by Franklin County on October 3, 1996, as not in compliance for failing to meet the criteria of Section 163.3187(1)(c), Florida Statutes. DONE AND ENTERED this 13th day of February, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1997. COPIES FURNISHED: Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Room 2105 Tallahassee, Florida 32399-0001 Richard W. Moore, Esquire Post Office Drawer 1759 Tallahassee, Florida 32302-1759 Alfred O. Shuler, Esquire Post Office Drawer 850 Apalachicola, Florida 32320-850 L. Lee Williams, Esquire Post Office Box 1169 Tallahassee, Florida 32302-1169 Stephanie Gehres Kruer, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 325-A Tallahassee, Florida 32399-2100 Gregory C. Smith, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether amendments to the Palm Beach County (County) Comprehensive Plan (Plan) adopted by Ordinance Nos. 2004-34 through 2004-39, 2004-63 and 2004-64 (Amendments) to accommodate the County's development of a biotechnology research park on 1,900 acres known as the Mecca site are "in compliance," as defined in Section 163.3184(1)(b), Florida Statutes.1
Findings Of Fact Overview of the County's Pre-Scripps Plan The County's first Plan was adopted in 1980. Its 1989 Plan, the first adopted under the 1985 Local Government Comprehensive Planning and Land Development Regulation Act (also known as the 1985 Growth Management Act, or GMA) built upon the strengths of the first Plan. In 1995, the County evaluated and appraised its 1989 Plan, completed an Evaluation and Appraisal Report (EAR), and subsequently adopted a substantially-amended EAR-based Plan. In 1999, the Plan again was amended by the addition of a Managed Growth Tier System (MGTS) as a new growth management tool.2 The County's Plan recognizes that development in the County has generally moved from eastern coastal areas to the west and from the southern part of the County to the north. Generally, the Plan has attempted to direct growth towards the eastern part of the County and to encourage infill and redevelopment in that part of the County. Redevelopment is underway in older areas, usually under the auspices of local governments. At the same time, the Plan now recognizes that another growth corridor is located along SR 7 and US 441. Even with the efforts to encourage infill and redevelopment in the eastern part of the County, growth pressures have led to 18,000 acres of new land use approvals in the County north of Lake Worth Boulevard in the last 10 years. The Future Land Use Element (FLUE) of the County's Plan contains County Directions, GOPs (i.e., Goals, Objectives, and Policies), the MGTS Map, and the Future Land Use Atlas. The County Directions "provide the basis for preparation of the [GOPs]." The GOPs "provide the framework for decisions that direct the location, pattern, character, interrelationships and timing of development, which ultimately affects the distribution of facilities and services to support it." The MGTS Map "defines distinct geographical areas within the County that currently either support or are anticipated to accommodate various types of development patterns and service delivery provisions that, together, allow for a diverse range of lifestyle choices, and livable, sustainable communities." The Atlas "graphically depicts the future distribution, general use and densities and intensities of [land use] within each tier." (FLUE Introduction, pp. 1-2) The County also routinely employs geographic-specific planning tools. The Plan creates at least 15 overlays to meet planning challenges for specific areas. It also recognizes 10 neighborhood plans. Optional sector planning for a large part of the Central-Western Communities of the County also is underway. The FLUE's County Directions include: Livable Communities (with "a balance of land uses and [other features]"); Growth Management (to "provide for sustainable urban, suburban, exurban and rural communities and lifestyle choices by: (a) directing . . . development that respects the characteristics of a particular geographic area; (b) ensuring smart growth . . . ; and (c) providing for facilities and services in a cost efficient timely manner"); Infill Development (to increase efficiency); Land Use Compatibility; Neighborhood Integrity; Economic Diversity and Prosperity (to promote the growth of industries that are high-wage and diversify the economic base); Housing Opportunity ("by providing an adequate distribution of very-low and low-income housing, Countywide"); Economic Activity Centers (to encourage manufacturing and other value-added activities); Level of Service Standards ("to accommodate an optimal level . . . needed as a result of growth"); Linear Open Space and Park Systems; Environmental Integrity (to "[e]ncourage restoration and protection of viable, native ecosystems and endangered and threatened wildlife by limiting the impacts of growth on those systems; direct incompatible growth away from them; encourage environmentally sound land use planning and development and recognize the carrying capacity and/or limits of stress upon these fragile areas"); Design; A Strong Sense of Community; and Externalities (placing "major negative" ones "away from neighborhoods"). (Id. at pp. 5-6) FLUE Goal 1 is to establish the MGTS. Objective 1.1 recognizes five geographic regions (tiers) of land with "distinctive physical development patterns with different needs for services to ensure a diversity of lifestyle choices": Urban/Suburban (land within the Urban Service Area (USA), generally along the east coast but also along the southeast shore of Lake Okeechobee in the extreme west of the County, having urban or suburban density and intensity and afforded urban levels of service); Exurban (land outside the USA and generally between the Urban and Rural Tiers, platted prior to the 1989 Plan and developed at densities greater than 1 dwelling unit per 5 acres (du/ac); Rural (land outside the USA and east of the Water Conservation Areas, Twenty Mile Bend, and the J.W. Corbett Wildlife Management Area (Corbet WMA), including large tracts of land, as well as lands platted prior to the 1989 Plan, that had a predominant density of 1 du/10 ac, but less than 1 du/5 ac, and afforded rural levels of service); Agricultural Reserve (primarily for agricultural use, reflecting the unique farmlands and wetlands within it, to be either preserved or developed only at low residential density); and Glades (all land west of the Water Conservation Areas, Twenty Mile Bend, and Corbett WMA, predominantly supporting large-scale agricultural operations, and afforded rural levels of service.) The five tiers are depicted graphically in Map LU 1.1, MGTS, of the Map Series. Conservation lands are also depicted on Map LU 1.1 but are not assigned to a tier. The Map also depicts the United Technologies (Pratt-Whitney) (UT) Overlay and the North County General Aviation Airport (North County Airport), neither one which appears from Map LU 1.1 to lie within a tier. The UT Overlay is in the north-central part of the County, sandwiched between Rural Tier on the north, east, and southeast and Conservation land, including Corbett WMA on the west and southwest, and roughly bisected by the Beeline Highway (Beeline), which runs diagonally through the overlay between its northwest and southeast extremes. The Airport lies farther to the southeast along the Beeline, essentially surrounded by Rural Tier land, except for relatively small pieces of Conservation land contiguous to it along its western boundary and at its southeast corner (the North County Airport Preserve.) Notwithstanding the possible appearance from the depictions on Map LU 1.1, the County has no general planning jurisdiction in any of the incorporated areas of the County.3 Map LU 2.1 depicts the three service areas to guide delivery of public services that are established under FLUE Goal 3. These are the Urban Service Area (USA), the Rural Service Area (RSA), and the Limited Urban Service Areas (LUSA). The USA essentially follows the boundaries of the Urban/Suburban Tier. The LUSA is relatively limited geographically and includes the Agricultural Reserve Tier, the UT Overlay, and the North County Airport (with contiguous Conservation lands). The rest of the County is in the RSA. The verbiage of Goal 3, its Objectives and Policies and other parts of the Plan, gives the impression that provision of services is fine-tuned to the character and needs of a particular locale. For example, Goal 3 is "to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost- effective manner, reflective of the quality of life associated with each respective Tier." But actually the Plan assigns countywide level-of-service standards (LOSS's) to seven of nine types of facilities. All urban services can be provided in all areas of the County except that County centralized water and sewer services cannot be provided in the RSA. While theoretically intended to be geographically limited, the main difference between the USA and the LUSA is that the LUSA is outside the USA. The Agricultural Reserve part of the LUSA is actually a westerly extension of the USA. The North County Airport part of the LUSA is surrounded by Rural Tier land; the UT part of the LUSA is surrounded by Rural Tier and Conservation lands, the same as the UT Overlay. The County has re-examined its policy decision not to provide centralized water and sewer services in the RSA because it has resulted in various municipalities and utilities special districts and perhaps private alternative providers extending services while the County excludes itself. The County has adopted plan amendments to change this to allow the County to provide such services and to exclude others. Those plan amendments are under administrative challenge at this time and are not yet in effect. The County has three priorities for extending services. One is to encourage development of basic industry to further the Economic Element. The County Plan's Economic Element is optional. It reflects a concerted effort to diversify the economy of the County by encouraging growth in cluster industries, including medical products. Taken together, the Plan reflects a desire to accommodate growth in the Urban/Suburban Tier, especially in the eastern part of the County. Many GOPs in the Plan promote and encourage infill and redevelopment. However, pressure to grow in other parts of the County are undeniable. It appears that, under the Plan, the County will be completely built-out within 30 years. The County's current Plan is detailed and complicated. Many other parts of it, some of which will be addressed later in this Recommended Order, also are implicated in some manner and in different degrees by the Amendments at issue. Scripps Florida In the early 1990s, a County study indicated concern about the three main elements of the local economy: tourism was low-paying; agriculture was low-paying and a declining sector; and construction and development would decline as the County built out. In 1998, a consulting firm (SRI) proposed an action plan for the County to develop economic clusters. The action plan addressed several industry clusters, including medical/pharmaceuticals. SRI recommended, among other things, attracting a biomedical park development, a satellite campus of a medical school, venture capital providers, and a medical research institute. Meanwhile, in the same general time frame, the State’s economic development arm, Enterprise Florida, Inc., targeted the biomedical industry for development in Florida. The Scripps Research Institute in La Jolla, California (Scripps), is the largest not-for-profit biotechnology research organization of its kind in the world. In 2003, Scripps decided to expand its operations. Florida Governor Bush, along with several Florida legislators, personally and through Enterprise Florida and OTTED, actively pursued Scripps to locate in Florida. During the same timeframe, the Federal Government made funds available to Florida under the Jobs and Growth Tax Relief Reconciliation Act of 2003, for the essential governmental service of improving economic opportunities available to the people of this state by attracting new or expanding businesses to, and retaining businesses in, the State. It was decided to use $310,000,000 of these funds in the pursuit of Scripps and hoped-for related economic and other benefits. By October 2003, Scripps agreed to negotiate expansion to Florida and chose Palm Beach County as its preferred location in the State. Also in October 2003, the Florida Legislature met in special session and, on November 3, 2003, enacted Chapter 2003-420, Laws of Florida, which created the Scripps Florida Funding Corporation to facilitate establishment and operation of a biomedical research institution for the purposes of enhancing education and research and promoting economic development and diversity. The Funding Corporation was required by the law to negotiate a contract with the Scripps Research Institute of La Jolla, California, for Scripps to establish a state-of-the-art biomedical research institution and campus in Florida. After disbursement of $300,000 to OTTED to cover staffing and administration expenses of the Funding Corporation, and upon execution of the contract with Scripps, the balance of the $310,000,000 was to be disbursed to the Funding Corporation subject to the terms of the contract. The Scripps Grant Agreement Scripps Florida and the County entered into a Grant Agreement on February 9, 2004, with a term of 30 years. In the Grant Agreement, the County agreed to pay for or provide: a 100-acre campus for Scripps Florida in the 1,919-acre site at Mecca Farms (Mecca), with a funding limitation of $60,000,000; the construction of initial temporary facilities for Scripps Florida at the Florida Atlantic University (FAU) campus in Jupiter, with a funding limitation of $12,000,000; the construction of permanent facilities for Scripps Florida at the Mecca site, with a funding limitation of $137,000,000; 400 adjacent acres for development of “related uses”; and applications for approvals for Scripps Florida to develop 2 million square feet at Mecca. The Grant Agreement’s definition of “related uses” was intended to be broad so that the County can open the 400 acres to computer research, telecommunications and other economic clusters if not enough pharmaceutical or life-science research firms are attracted. The Grant Agreement requires Scripps Florida to create or relocate at least 545 new jobs to the Mecca site; to strive to create 2,777 new or relocated jobs; and to work with the County to create a total 6,500 jobs. In the Grant Agreement, the County expressly reserves all legislative and quasi-judicial powers, acting only in its proprietary capacity. The County's Purchase of Mecca Site In accordance with the Grant Agreement, the County proceeded with the purchase of the Mecca site. In October 2003, the Business Development Board (BDB), a non- profit organization that is funded primarily by and reports to the County, already had obtained an option to purchase the site for $60,000,000, if certain government approvals could be obtained. In February 2004, the County acquired the option on the Mecca property from the BDB and exercised it. Including the cost of some "oral add-ons," the purchase price for Mecca was approximately $60,500,000. Characteristics of the Mecca and Surroundings The Mecca site is in the shape of a rectangle located in the north-central part of the County. It is designated in the Rural Tier. For approximately 50 years, most of the site has been used as a citrus grove with trees grown in rows 15 feet apart, 73-acres of agricultural ditches, and a 272-acre above-ground water impoundment area in the northeast quadrant of the site used for irrigation. There also is a 30-acre sand mine operation in the southwestern quadrant. At this time, the Mecca site is accessible by road only by Seminole Pratt-Whitney Road (SPW), a two-lane paved road from the south. When SPW reaches the southwest corner of Mecca, it becomes a dirt road as it continues along the west side of the property. While Mecca itself is in the Rural Tier, it is not surrounded by Rural Tier land. The land to the west is designated Conservation, and the land to the north and south is designated Exurban Tier. The land to the east is designated Rural Tier, but it actually is within the jurisdictional boundaries of the City of Palm Beach Gardens. The area around Mecca is a “mosaic” of uses, including undeveloped agricultural lands, conservation lands, and lands developed predominantly as undesirable residential sprawl with limited employment and shopping. The nearby Beeline, part of the Florida Intrastate Highway System (FIHS), is classified by the State as “urban” to the east and “transitional” to the west of SPW. Significant among the developed areas near Mecca is The Acreage, abutting Mecca to the south. The County designated The Acreage as part of the Exurban Tier. It is a large, 76 percent built-out, antiquated subdivision with a density of 1 du/1.25 ac and a population of approximately 42,000. As such, it can be characterized as either urban or suburban, but not rural. To the south and west of The Acreage are large citrus groves in the Rural Tier. Farther south and west of The Acreage is Loxahatchee Groves, another antiquated subdivision in the Exurban Tier, with a density of 1 du/5 ac that is just 18 percent built-ut with 1,216 homes built. Farther south, just south of Southern Boulevard, is the Village of Wellington, which is a municipality located within the boundaries of the Urban/Suburban Tier. South and east of The Acreage is the Village of Royal Palm Beach, also a municipality within the Urban/Suburban Tier. The 60,288-acre Corbett WMA is located immediately west of Mecca and is owned and managed by the State as a hunting preserve. It has no tier designation. Corbett has a variety of habitats for endangered or threatened species (wood storks, eagles, red-cockaded woodpeckers, gopher tortoises and indigo snakes), including wet prairie, freshwater marsh and pine flatwoods. Corbett could provide habitat for Florida panthers although there have been no confirmed panther sightings in the area in a number of years. Immediately north of Mecca is another antiquated subdivision, Unit 11 of the Indian Trail Improvement District (Unit 11). The County is buying Unit 11 for preservation as Hungryland Slough, a regional off-site mitigation area. Unit 11 is designated in the Exurban Tier. Hungryland contains habitat similar to that found in Corbett WMA. North of Hungryland, and south of the Beeline, is a small triangle of Rural Tier land, which is just south and south east of the UT Overlay, which includes the Park of Commerce (a/k/a Florida Research Park). The Rural Tier land to the northeast of Hungryland, across the Beeline, is Caloosa, a large-lot residential development with a density of 1 du/5 ac. To the northeast of Caloosa is Jupiter Farms, another large, 81 percent built-out antiquated residential subdivision with a density of 1 du/2 ac and a population of about 12,600. Jupiter Farms is designated in the Rural Tier although it also seems to fit the criteria for the Exurban Tier. The Vavrus Ranch, a 4,600-acre landholding, is located immediately east of Mecca. Approximately half of Vavrus Ranch is wetlands, and the remainder is improved pasture. The Vavrus Ranch appears to be designated in the Rural Tier, but it actually is in the City of Palm Beach Gardens. Existing urban-scale public facilities between Mecca and Southern Boulevard to serve the suburbs include five fire stations, two post offices, eight elementary schools, two middle schools and two branch libraries, with one high school and one middle school planned or under construction. Existing public facilities north of Mecca in Caloosa include one fire station and one elementary school. East of Mecca and the Vavrus Ranch is the North County General Aviation Airport. To address land use deficiencies in this area, the County has agreed with DCA to prepare a plan for a 52,000-acre sector, which originally included Mecca. Current development has committed approximately two- thirds of lands in the sector to an inefficient pattern that is not “sustainable.” This pattern increases reliance on the automobile; may not be served long-term by private wells and septic tanks; and does not pay for itself, requiring substantial taxpayer subsidies. The sector has a serious jobs/housing imbalance, resulting in more congestion and longer commutes for residents. The County’s sector planning consultants identified Mecca as an appropriate site for an intensive employment center in two out of three initial scenarios. Subsequent studies identified Mecca for other uses, and the site was deleted from the sector planning area in 2004 when the Scripps Florida opportunity arose at Mecca. Development of Regional Impact (DRI) and Plan Amendments Since the Scripps opportunity arose, the County's primary vision for Mecca has been to transform its 1,919 acres into a very special place that would be able not only to satisfy the needs of Scripps, but also would have all of the essential elements and many extra amenities so as to enable the County to compete with other areas of the country (and, indeed, the world) to attract related research and development (R&D) and, especially commercial activity in order to reap the maximum possible economic benefits of a biotechnology cluster. This vision included not only onsite opportunities for development of related biotechnology R&D and related commercial ventures, but also a university campus, a hospital/clinic, expansive green spaces and water features, onsite residential opportunities, including affordable housing, and onsite commercial and retail uses, including a town center. The County prepared plans by first reviewing and considering other R&D complexes, companies potentially interested in new locations, views of university officials, the Scripps experience at La Jolla, employees per square foot per industry type, and its own allowable floor area ratios (FARs) in order to identify the developable square footage for R&D at Mecca. As applicant for the necessary DRI approval and Plan amendments, the County’s staff and consultants initially requested approval of 10.5 million square feet for R&D use after balancing space needs, traffic impacts, environmental needs, buffering and other factors. The County’s real estate consultant concluded that a minimum of 2 to 3 million square feet of R&D space would be necessary for the venture to be successful, and that the absorption of 8 to 8.5 million square feet over a long-term build-out period of 30 years was a reasonable expectation. That view was bolstered by the potential establishment of other R&D users, if biotechnology firms do not absorb the entire capacity of the project. Ultimately, the Board of County Commissioners (BCC) approved a development of regional impact (DRI) for 8 to 8.5 million square feet of R&D, including the 2 million square feet for Scripps Florida, in order to provide economic opportunities while avoiding the need for eight-lane roads in the area. In order to accommodate this project, amendments to the County's Plan were necessary. Changes to the Plan adopted October 13, 2004, included Ordinance Nos. 2004-34 through 2004-39. Changes to the Plan adopted December 14, 2004, included Ordinance Nos. 2004-63 and 2004-64. Ordinance No. 2004-34 removes the 1,919-acre Mecca site from the Rural Tier; creates a scientific community overlay (SCO) on Mecca; establishes its allowed uses; imposes controls to balance residential and non-residential uses by phase; sets design principles; designates Mecca as a LUSA; and makes related changes to the FLUE and Economic Element and the FLUE Map Series. Ordinance No. 2004-35 modifies FLUE Policy 3.5-d to exempt the SCO from a County-imposed limitation on allowed land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. Ordinance No. 2004-36 amends the FLUE Atlas to change the land use on Mecca from Rural Residential with a density of 1 du/10 ac (RR-10) to Economic Development Center with an underlying density of 2 du/ac (EDC/2). This amendment also sets minimum and maximum amounts of each use and incorporates by reference the land use conversion matrix in the DRI development order (DO). Ordinance No. 2004-37 amends the FLUE Atlas to change the land use on a 28-acre Accessory Site obtained from Corbett WMA from Conservation to Transportation and Utilities Facilities. Ordinance No. 2004-38 amends the Transportation Element (TE) to lower the adopted LOSS on 37 road segments and 6 intersections from the generally applicable standard of “D” to “Constrained Roadway at Lower Level of Service” (CRALLS). Ordinance No. 2004-39 amends the Thoroughfare Right- of-Way (ROW) Identification Map (TIM) and the 2020 Roadway System Map to reflect certain road improvements to accommodate SCO-generated traffic. Ordinance No. 2004-63 updates Tables 1 through 16 of the 2005-2010 Capital Improvement Schedule (CIS), and includes road, water, and sewer facilities to serve the SCO. Ordinance No. 2004-64 updates Table 17 of the CIS, which addresses schools. g. The Petitioners, Their Burden, and Their Issues DCA’s notices of intent to find the Amendments in compliance were challenged by four not-for-profit organizations and one resident of Palm Beach County. All of the Petitioners timely commented, orally or in writing, to the County regarding the Amendments. Additional standing evidence was presented as to each Petitioner. Standing as an "affected person" under Section 163.3184(1)(a) was disputed as to all but one Petitioner. As to Petitioner, Maria Wise-Miller, it was undisputed that she is an "affected person" under Section 163.3184(1)(a). It was Petitioners' burden to prove beyond fair debate that the Plan Amendments were not "in compliance." See Conclusions 210-211, infra. Essentially, Petitioners are concerned that development of the SCO on Mecca's 1,919 acres is poor planning because of its present agricultural use, its location in relation to nearby natural areas and rural areas, and its distance from more urban areas and transportation facilities. More specifically, the issues raised by Petitioners as reasons why the Plan Amendments are not "in compliance" are framed in their Amended Petition.4 Implicating numerous applicable statutory and rule provisions, Petitioners' issues involve: urban sprawl; capital improvements (infrastructure); transportation concurrency; data and analysis; internal consistency; natural resources; community character and compatibility with adjacent uses; the Treasure Coast Regional Planning Council (TCRPC's) Strategic Regional Policy Plan (SRPP); and State Comprehensive Plan (SCP). No other issues have been added by further amendment, and no additional issues were heard by consent of the parties. See Conclusion 212, infra. H. Urban Sprawl Whether the Plan Amendments are consistent with relevant provisions of the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources, is determined by application of Rule 9J-5.006(5).5 Exceedingly detailed and complex, Rule 9J-5.006(5) provides in pertinent part: (d) Paragraph (5)(g) describes those aspects or attributes of a plan or plan amendment which, when present, indicate that the plan or plan amendment may fail to discourage urban sprawl. For purposes of reviewing the plan for discouragement of urban sprawl, an evaluation shall be made whether any of these indicators is present in a plan or plan amendment. If an indicator is present, the extent, amount or frequency of that indicator shall be considered. The presence and potential effects of multiple indicators shall be considered to determine whether they collectively reflect a failure to discourage urban sprawl. * * * Primary indicators. The primary indicators that a plan or plan amendment does not discourage the proliferation of urban sprawl are listed below. The evaluation of the presence of these indicators shall consist of an analysis of the plan or plan amendment within the context of features and characteristics unique to each locality in order to determine whether the plan or plan amendment: Promotes, allows or designates for development substantial areas of the jurisdiction to develop as low-intensity, low-density, or single-use development or uses in excess of demonstrated need. Promotes, allows or designates significant amounts of urban development to occur in rural areas at substantial distances from existing urban areas while leaping over undeveloped lands which are available and suitable for development. Promotes, allows or designates urban development in radial, strip, isolated or ribbon patterns generally emanating from existing urban developments. As a result of premature or poorly planned conversion of rural land to other uses, fails adequately to protect and conserve natural resources, such as wetlands, floodplains, native vegetation, environmentally sensitive areas, natural groundwater aquifer recharge areas, lakes, rivers, shorelines, beaches, bays, estuarine systems, and other significant natural systems. Fails adequately to protect adjacent agricultural areas and activities, including silviculture, and including active agricultural and silvicultural activities as well as passive agricultural activities and dormant, unique and prime farmlands and soils. Fails to maximize use of existing public facilities and services. Fails to maximize use of future public facilities and services. Allows for land use patterns or timing which disproportionately increase the cost in time, money and energy, of providing and maintaining facilities and services, including roads, potable water, sanitary sewer, stormwater management, law enforcement, education, health care, fire and emergency response, and general government. Fails to provide a clear separation between rural and urban uses. Discourages or inhibits infill development or the redevelopment of existing neighborhoods and communities. Fails to encourage an attractive and functional mix of uses. Results in poor accessibility among linked or related land uses. Results in the loss of significant amounts of functional open space. Evaluation of land uses. The comprehensive plan must be reviewed in its entirety to make the determinations in (5)(g) above. Plan amendments must be reviewed individually and for their impact on the remainder of the plan. However, in either case, a land use analysis will be the focus of the review and constitute the primary factor for making the determinations. Land use types cumulatively (within the entire jurisdiction and areas less than the entire jurisdiction, and in proximate areas outside the jurisdiction) will be evaluated based on density, intensity, distribution and functional relationship, including an analysis of the distribution of urban and rural land uses. Each land use type will be evaluated based on: Extent. Location. Distribution. Density. Intensity. Compatibility. Suitability. Functional relationship. Land use combinations. Demonstrated need over the planning period. Local conditions. Each of the land use factors in (5)(h) above will be evaluated within the context of features and characteristics unique to each locality. These include: Size of developable area. Projected growth rate (including population, commerce, industry, and agriculture). Projected growth amounts (acres per land use category). Facility availability (existing and committed). Existing pattern of development (built and vested), including an analysis of the extent to which the existing pattern of development reflects urban sprawl. Projected growth trends over the planning period, including the change in the overall density or intensity of urban development throughout the jurisdiction. Costs of facilities and services, such as per capita cost over the planning period in terms of resources and energy. Extra-jurisdictional and regional growth characteristics. Transportation networks and use characteristics (existing and committed). Geography, topography and various natural features of the jurisdiction. Development controls. Development controls in the comprehensive plan may affect the determinations in (5)(g) above. The following development controls, to the extent they are included in the comprehensive plan, will be evaluated to determine how they discourage urban sprawl: Open space requirements. Development clustering requirements. Other planning strategies, including the establishment of minimum development density and intensity, affecting the pattern and character of development. Phasing of urban land use types, densities, intensities, extent, locations, and distribution over time, as measured through the permitted changes in land use within each urban land use category in the plan, and the timing and location of those changes. Land use locational criteria related to the existing development pattern, natural resources and facilities and services. Infrastructure extension controls, and infrastructure maximization requirements and incentives. Allocation of the costs of future development based on the benefits received. The extent to which new development pays for itself. Transfer of development rights. Purchase of development rights. Planned unit development requirements. Traditional neighborhood developments. Land use functional relationship linkages and mixed land uses. Jobs-to-housing balance requirements. Policies specifying the circumstances under which future amendments could designate new lands for the urbanizing area. Provision for new towns, rural villages or rural activity centers. Effective functional buffering requirements. Restriction on expansion of urban areas. Planning strategies and incentives which promote the continuation of productive agricultural areas and the protection of environmentally sensitive lands. Urban service areas. Urban growth boundaries. Access management controls. Evaluation of factors. Each of the land use types and land use combinations analyzed in paragraph (5)(h) above will be evaluated within the context of the features and characteristics of the locality, individually and together (as appropriate), as listed in paragraph (5)(i). If a local government has in place a comprehensive plan found in compliance, the Department shall not find a plan amendment to be not in compliance on the issue of discouraging urban sprawl solely because of preexisting indicators if the amendment does not exacerbate existing indicators of urban sprawl within the jurisdiction. Innovative and flexible planning and development strategies. Notwithstanding and as a means of addressing any provisions contained in Rules 9J-5.006(3)(b)8., 9J- 5.011(2)(b)3., 9J-5.003(140), F.A.C., and this subsection, the Department encourages innovative and flexible planning and development strategies and creative land use planning techniques in local plans. Planning strategies and techniques such as urban villages, new towns, satellite communities, area-based allocations, clustering and open space provisions, mixed-use development and sector planning that allow the conversion of rural and agricultural lands to other uses while protecting environmentally sensitive areas, maintaining the economic viability of agricultural and other predominantly rural land uses, and providing for the cost- efficient delivery of public facilities and services, will be recognized as methods of discouraging urban sprawl and will be determined consistent with the provisions of the state comprehensive plan, regional policy plans, Chapter 163, Part II, and this chapter regarding discouraging the proliferation of urban sprawl. Of the 13 urban sprawl indicators in Rule 9J- 5.006(5)(g), Petitioners alleged the existence of only 2, 4, 6, 7, 8, 9, and 10. While there was evidence from which Petitioners reasonably could argue that the Plan Amendments promote urban sprawl, all of the Rule's indicators are at least fairly debatable. Indicator 2 As to Indicator 2, Petitioners' arguments on urban sprawl hinge in large part on characterization of Mecca as being rural land in the midst of likewise rural and conservation land far distant from any land use that could be characterized as urban or suburban. But while Mecca is distant from most of the Urban/Suburban Tier, neither the Village of Wellington nor Royal Palm Beach, both in the Urban/Suburban Tier, is very far away. The Acreage to Mecca's south, moreover, can be characterized as either urbanizing or suburban, but not rural. To the extent that Mecca is separated from other urban or suburban uses to the east by conservation lands (namely, the Loxahatchee Slough and Grassy Waters Preserve, a/k/a the West Palm Beach Water Catchment Area), no urban, suburban or even rural development of those conservation lands should be expected, making it fairly debatable whether "leaping over" those undeveloped lands should be considered an indicator of sprawl. In that sense, those conservation lands are similar to bodies of water. The “patchwork” pattern of developed, rural, and conservation uses near Mecca, including the adjacency of extensive residential development in The Acreage, also is significant. Nearby subdivisions including Jupiter Farms and Caloosa add further context for the sprawl analysis. The multi-use development at the SCO allowed by the Amendments may remediate the existing sprawl pattern near Mecca. Indicator 4 As to Indicator 4, it is at least fairly debatable whether conversion of rural land to urban uses on Mecca is premature in light of the Scripps opportunity and existing development pressures in the area. According to expert planning testimony for DCA and the County, the County is obliged to plan for growth in accordance with GMA and Rule 9J-5 up to its "sustainable carrying capacity," which has not been reached. Whether or not they believe the County has the option to plan to slow or stop growth before reaching "sustainable carrying capacity," it is clear from the evidence that the County is not doing so, but instead is planning for continued growth within the framework of its Plan until reaching what it considers to be "build-out" conditions. Given the County's basic growth policy, the County’s analysis of population projections for the next 20 years, compared to available vacant lands planned for residential use, shows the County has a “tight” plan with a restricted supply of land for development. This land use needs analysis shows that the eastern half of Palm Beach County (which includes Mecca) is experiencing intensive growth pressures due to the restricted supply of developable land, and that it will likely build out in approximately 20 years. Conservative assumptions in the County’s analysis suggest build-out in this area could occur even sooner. In its 1997 EAR, the County also concluded that eastern Palm Beach County would build out in approximately 20 years. The report noted that the approaching build-out of Dade and Broward counties to the south in the near future would further exacerbate growth pressures in Palm Beach County. Industrial lands in eastern Palm Beach County are expected to be exhausted by 2026. Because communities typically need greater locational variety for industrial uses compared to other uses, and in light of the many different activities that constitute an industrial use, the amount of land in eastern Palm Beach County designated for industrial use may be adequate but is not excessive. Besides, a numeric analysis is not necessary to justify industrial uses since they may be goal-based and aspirational. Seeking to diversify the local economy is an appropriate goal to support additional industrial land. Having a committed end-user for an industrial site is appropriate data to consider in evaluating such a land use change. Onsite residential and commercial uses will support the industrial use and better achieve a balance of uses, which will relieve the necessity to be evaluated against a numeric need test. Likelihood of Economic Benefits Petitioners argue that the proposed development at Mecca is not needed because significant economic benefits are so unlikely that the costly planned use of Mecca's 1,919 acres cannot be justified. Ordinarily, the likelihood of success of planned land uses would not be relevant to the compliance of a comprehensive plan or plan amendment. In this case, however, the County's vision for a Scripps-anchored biotechnology cluster at Mecca was the impetus for the major and important changes embodied in the Plan Amendments and is part of the demonstration of need. For that reason, consideration of the issue is appropriate in this case. The evidence is clear that the County's vision is not guaranteed success as planned and that there are significant risks involved. To maximize economic benefits, the County will have to not only attract R&D but also generate commercial spin-offs, where maximum economic benefits result. R&D requires research funding, and commercial spin-offs require venture capital. It also is essential to establish relationships with hospitals or clinics where clinical trials can take place. The predominant source of biotech research funding has been the National Institutes of Health (NIH). In the mid- 1990s, NIH funding increased dramatically, but significant increases in the coming years cannot be counted on, and other sources of research funding will have to replace the deficit. To the extent that pharmaceutical companies are resorted to for this purpose, they may require participation in any resulting commercialization, which could reduce local economic benefits if the funding source is not local. The evidence was that, over the last 30 years or so, significant economic benefits from biotechnology clusters achieving effective commercialization have been concentrated in just nine areas of the country. One is San Diego, California; none are in Florida. These nine areas also have garnered a disproportionate share of NIH research funding (although the percentage has declined a little in the last few years.) They also tend to have scientists inclined towards commercialization of the results of research and businessmen having the special abilities needed in the unique world of biotech, where years can pass before a business begins to see profits, and many start-ups fail. These nine areas also have access to venture capital, a good percentage of which has tended to be local, since many venture capitalists also want to be more active in monitoring and participating in the businesses they fund than most other investors. On the other hand, there was evidence acknowledging that at least some venture capital will seek out and follow good opportunities for profit wherever they may exist. Historically, at least through 2001, the biotech industry has become increasingly concentrated in these nine areas of the country, and they continue to have competitive advantages that the County's vision for the SCO would have to overcome. (On the other hand, several of these nine areas also have competitive disadvantage in the form of high taxes, high real estate costs, high cost-of-living, and less-than- ideal quality of life. So far, however, their advantages have surpassed their disadvantages.) There also is competition from many other cities and counties throughout the country desiring, like Florida and the County, to develop a biotechnology cluster. Recognizing the intense competition, the County's vision is to create a world-class setting for its effort at Mecca. Allowable facilities at the SCO include not just R&D space, but also a clinical hospital of up to 300 beds, a university campus of up to 2,000 college and university students, public facilities supporting environmental amenities, community facilities and retail facilities in a “town center,” and 2,000 or more housing units, including affordable housing. The SCO contemplates a mixture of uses that is hoped will lead to synergistic relationships and exchange of “tacit knowledge,” which are important to the success of a biotechnology cluster. Scripps Florida, as the anchor institution, will bring critical world renown and credibility. The principles of adjacency within the SCO are intended to promote synergy that transcends local competition and attracts regional and national users. In planning the SCO, Scripps’ experience in La Jolla and the views of Scripps officials were taken into account. Scripps’ campus at Torrey Pines Mesa has been in existence for almost 30 years, and has worked well. Scripps attempts to keep its buildings close to one another and has met with difficulty finding scientists willing to fill workspace four miles from the main Scripps campus. The FAR for the 500 acres of R&D use at the SCO is very low, at 0.39.6 By comparison, there was evidence that the FAR of the 900-acre University of Florida campus in Gainesville, Florida, is 2.00. Petitioners contend that much less than 500 acres is needed for the 8.5 million square feet of R&D provided in the SCO. However, the County found that Scripps’ buildings in California are constructed in horizontal fashion, with three, four and rarely five stories. Taller buildings have lower net-to-gross floor area, so they have significant added cost. Scripps considers close-by affordable housing desirable, especially for graduate and post-doctoral students. For other occupants of the SCO, low-rise construction makes it easier for companies to add space as they grow. High-rise construction is more expensive, harder to finance because of pre-leasing requirements, and less efficient. Based on the evidence, the FAR is fairly debatable. Venture capital from within and outside Florida is growing, as is capital interest in the Scripps initiative in Florida. Four clinical hospitals have expressed interest in participating in the SCO. In the year after announcement of Scripps Florida, the number of new life-science projects announced in Florida quadrupled in comparison to recent years. Workforce training and educational improvement are contemplated as support for and results of the SCO. The State has implemented and funded workforce programs in the life sciences, including in the County. The County has participated in the development of a consortium of Florida institutions of higher learning aimed at creating a specialized campus in the SCO. Scripps Florida is obligated to establish accredited science degree programs and internship programs for educators and secondary, post- secondary, graduate and post-doctoral students. Petitioners’ economic witness testified that the County lacks key competitive ingredients for developing a successful biotechnology cluster. Other witnesses, however, explained the level of efforts that the State, the County, and Scripps Florida are making to bring those ingredients to fruition. In addition, while Petitioners’ economic witness recited past experience of the biotechnology industry and forecast limited success for Scripps Florida primarily based on year seven, the last year of presently-committed State funding, he acknowledged that biotechnology research parks tend to experience a slow ramp-up, and the County anticipates a 30-year build-out. Of course, other sources of needed funding would have to be found after year seven. The evidence was that the chances for successful development of a biotechnology cluster at Mecca will decrease if no universities or hospitals are established onsite at Mecca and will decrease the longer it takes to establish them. If the planned biotechnology cluster does not succeed as well as planned, the SCO incorporates flexibility for absorption of R&D floor space by other types of research and development occupants. Often, when a large development project does not succeed as planned, pressures develop for investors to change the project's characteristics in an attempt to cut losses and increase profitability by selling land more quickly. In the case of the SCO, the investors are the taxpayers of Palm Beach County. It cannot be predicted what kind of pressures the County would feel, or what changes to the planned build-out would occur, if the SCO does not succeed as planned. Based on all the evidence, it is fairly debatable whether the likelihood of economic benefit is enough to justify the planned use of Mecca's 1,919 acres. Other Alternatives Petitioners also contend that the proposed development at Mecca is not needed because better alternatives exist. Specifically, they contend that the Scripps project could be sited: on the Briger site adjacent to the Florida Turnpike on its west and straddling I-95 in the City of Palm Beach Gardens; on Parcel 19 just west of I-95 and the Florida Turnpike, straddling Indiantown Road in the Town of Jupiter; or in the Park of Commerce (a/k/a Florida Research Park) in the unincorporated County near Mecca in the northeast quadrant of the intersection of the Beeline and SPW. Although the County had a contract with Scripps Florida to be located at Mecca, during the review process the BCC requested a study of possible alternative sites. The number of sites reduced rather quickly to three: Briger; Parcel 19; and the Park of Commerce. Data and analysis at the time of adoption of the Plan Amendments indicated that each of these alternative sites had flaws and risk factors, making it fairly debatable whether Scripps should be sited at any one of them instead of at Mecca. All three proposed alternatives have less acreage than Mecca and do not provide the same opportunities for affordable housing, open space, or flexibility of design, so as to be able to be developed in accordance with the vision the County has for development on its own 1,919 acres at Mecca. The Park of Commerce has limited opportunity for affordable housing, is limited in permitted uses, and is limited in flexibility by existing and platted infrastructure and industrial uses. It is now being used for industrial purposes--a railroad, a General Motors distribution facility, and a Walgreen's distribution facility--not considered to be consistent with the County's vision for a biotechnology research park. In addition, it may become necessary in the future to construct an overpass at the Beeline and SPW directly over the only suitable location for construction of the Scripps facilities at that site. Parcel 19 cannot accommodate affordable housing and would require $75 million in construction of major interchanges at I-95 and Indiantown Road, after which Indiantown Road still would be seriously over capacity, creating great traffic problems. In addition, it would be difficult to achieve the County’s targeted development program of 8 to 8.5 million square feet of R&D uses. The 682-acre Briger site favored by the Petitioners is bisected by I-95 into two triangular pieces. It would not meet the acreage requirements of the County’s contract with Scripps Florida unless the City of Palm Beach Gardens waives certain upland preservation requirements. In addition, at this time Briger remains on the County’s list of properties for acquisition for preservation (although its placement on the list may be out-of-date since Briger's hydrologic connection to the Loxahatchee River Slough has been more disrupted by development since its listing). Even if the Scripps contract requirements could be met, it would require higher vertical construction, which would be less compatible with surrounding residential uses, would provide less open space, and would have reduced flexibility. The County's complete vision for onsite incorporation of uses and amenities would not fit on Briger. For example, the university tie-in, the hospital, and residential features would have to be offsite. Briger might have a short-term marketing advantage over Mecca (in part because hospitals and FAU's Jupiter campus already exist in close enough proximity). Briger also would be closer to major transportation facilities, but that advantage would not necessarily offset Briger's deficiencies. It is fairly debatable whether long-term success would be more likely at Mecca or at Briger. All four sites–-Mecca, Briger, Parcel 19, and the Park of Commerce-–are located in the eastern half of Palm Beach County, where growth pressures are strong, the County’s Plan is "tight," and build-out is anticipated within the next 30 years, even without the SCO, based on County data compilations for land use need purposes. Natural Resources Protection and Conservation While they may not protect and conserve natural resources in an absolute sense (as is rarely if ever possible when development takes place near natural areas), it is at least fairly debatable whether measures in the Plan and Plan Amendments to protect and conserve natural resources are adequate. See Findings 146-182, infra. Indicator 6 As to Indicator 6, significant new infrastructure will have to be extended to Mecca under the Plan Amendments. Development closer to existing roads and, to a lesser extent, the existing USA and LUSA might make more use of existing facilities and services possible. But the evidence was that most of the $15 million of centralized water and sewer lines that will serve the SCO at Mecca already are planned for extension of service to the UT Overlay. Many of the road improvements planned for the SCO at Mecca also are already planned. See Findings 116-117 and 152-155, infra. In addition, it is at least fairly debatable whether and to what extent greater use could be made of existing public facilities and services by locating the Scripps elsewhere in the County, or whether location elsewhere in the County would be better or even possible, especially given the County's complete vision for development of the SCO at Mecca. See Findings 85-92, supra. Given the decision to develop at Mecca, there was no evidence that existing public facilities and services will not be used to the maximum extent possible. Indicator 7 As to Indicator 7, there is no reason to believe that the development at Mecca resulting from the Plan Amendments will not maximize the use of future public facilities and services. (The County has not planned to provide centralized water and sewer service to the Vavrus property because it does not have the legal right or ability to provide services within the boundaries of the City of Palm Beach Gardens.) Indicator 8 As to Indicator 8, a disproportionate increase in the cost in time, money, and energy may result from providing and maintaining facilities and services to the SCO. However, while this indicator may be in evidence short-term due to the cost of constructing facilities to the SCO, over time these costs would be ameliorated as more development occurs in the area. Indicator 9 As to Indicator 9, as depicted on Map H of the DRI application, which is referenced in new Policy 1.2-f as a “land use/site planning measure,” it is at least fairly debatable whether the Plan Amendments provide a clear separation between rural and urban uses. The only rural uses adjacent to Mecca are the Vavrus land to the east, and Map H depicts a 50-foot buffer there. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Indicator 10 As to Indicator 10, no language contained in the Plan Amendments discourages or inhibits infill or redevelopment, and the Plan still contains several provisions encouraging infill and redevelopment. On the other hand, development occurring at Mecca obviously will not result in infill or redevelopment. To the extent that the availability of economic incentives for infill and redevelopment is limited, the significant economic incentives committed to the Mecca project will not be available for infill and redevelopment. However, it is at least fairly debatable whether the infill and redevelopment measures in the Plan will be compromised by the Amendments in view of the increasing growth pressures in the County and the “tight” supply of land for development. The Plan Amendments include numerous anti-sprawl development controls that also are considered in the urban sprawl analysis. The principal controls are in the structure of the Plan Amendments, primarily the minimum and maximum amounts established for specific uses, a requirement for phasing, and a required balance of residential and non- residential uses for each phase. To mitigate sprawl, development controls should be meaningful and predictable, but also flexible. They need not include numeric setbacks and building spacing requirements, or a site plan. It is at least fairly debatable that the controls in the Amendments satisfy the State’s criteria. Cf. Rule 9J-5.006(5)(j). Petitioners' Evidence One planning witness for Petitioners who opined that the Amendments constitute sprawl did not consider the extent, amount or frequency of any indicator, contrary to Rule 9J-5.006(5)(d). He also opined there is no need for the Amendments. However, in analyzing this issue, he only reviewed portions of the Plan and a six-page summary of the EAR prepared by Petitioners’ counsel. He did not examine the 2003 Population Allocation Model or the County’s population projections and land use need analysis.7 Another planning witness for Petitioners rendered opinions about the interpretation of several indicators in the urban sprawl rule, but his testimony did not constitute expert opinions as to whether the Amendments constitute sprawl, or are "in compliance." A third planning witness for Petitioners, from the TCRPC, opined that the Amendments are sprawl, as is the existing development near Mecca. However, he admitted the definition of “sprawl” in the TCRPC's SRPP is not the same as the definition in Rule 9J-5. Urban Sprawl Summary Based on the foregoing, the determinations by the County and DCA in this case that the Plan Amendments are consistent with the state comprehensive plan, regional policy plan, the GMA, and Rule Chapter 9J-5 regarding discouraging urban sprawl, including provisions concerning the efficiency of land use, the efficient provision of public facilities and services, the separation of urban and rural land uses, and the protection of agriculture and natural resources are subject to fair debate. Capital Improvements In this category, Petitioners contend that the Plan Amendments are inconsistent with Section 163.3177(3)(a) and Rule 9J-5.016(2) and (3)(b). The statute provides: The comprehensive plan shall contain a capital improvements element designed to consider the need for and the location of public facilities in order to encourage the efficient utilization of such facilities and set forth: A component which outlines principles for construction, extension, or increase in capacity of public facilities, as well as a component which outlines principles for correcting existing public facility deficiencies, which are necessary to implement the comprehensive plan. The components shall cover at least a 5-year period. Estimated public facility costs, including a delineation of when facilities will be needed, the general location of the facilities, and projected revenue sources to fund the facilities. Standards to ensure the availability of public facilities and the adequacy of those facilities including acceptable levels of service. Standards for the management of debt. The Rule provides: Capital Improvements Analysis Requirements. The element shall be based upon the following analyses which support the comprehensive plan pursuant to subsection 9J-5.005(2), F.A.C. Current local practices that guide the timing and location of construction, extension or increases in capacity of each public facility; The general fiscal implications of the existing deficiencies and future needs for each type of public facility. This analysis shall be based on the needed improvements, as identified in the other local government comprehensive plan elements, and shall address the relative priority of need among facility types, and shall support the future land use element; The costs of needed capital improvements for mitigation of existing deficiencies, replacement and new growth needs pursuant to the future land use element and shall explain the basis of cost estimates; The impact of new or improved public educational and public health care systems and facilities on the provision of infrastructure; The use of timing and location of capital improvements to public facilities to support efficient land development and goals, objectives, and policies in the future land use element. This analysis must take into consideration plans of state agencies and water management districts that provide public facilities within the local government jurisdiction; and An assessment of the local government's ability to finance capital improvements based upon anticipated population and revenues including: Forecasting of revenues and expenditures for five years; Projections of debt service obligations for currently outstanding bond issues; Projection of ad valorem tax base, assessment ratio and millage rate; Projections of other tax bases and other revenue sources such as impact and user fees; Projection of operating cost considerations; and Projection of debt capacity. Requirements for Capital Improvements Goals, Objectives, and Policies. * * * (b) The element shall contain one or more objectives for each goal and shall address: The use of the capital improvements element as a means to meet the needs of the local government for the construction of capital facilities necessary to meet existing deficiencies, to accommodate desired future growth and to replace obsolete or worn-out facilities; The limitation of public expenditures that subsidize development in high hazard coastal areas; The coordination of land use decisions and available or projected fiscal resources with a schedule of capital improvements which maintains adopted level of service standards and meets the existing and future facility needs; The extent to which future development will bear a proportionate cost of facility improvements necessitated by the development in order to adequately maintain adopted level of service standards; and The demonstration of the local government's ability to provide or require provision of the needed improvements identified in the other local government comprehensive plan elements and to manage the land development process so that public facility needs created by previously issued development orders or future development do not exceed the ability of the local government to fund and provide or require provision of the needed capital improvements. There was no evidence that the Plan does not contain a CIE meeting these requirements or, more germane to this case, that the Plan Amendments undo the Plan's CIE, which already has been determined to be "in compliance." Actually, while seemingly focusing here on capital improvements other than those related to traffic circulation, Petitioners attempt to use these requirements primarily as additional bases for their urban sprawl arguments, supra, and their transportation concurrency and data and analysis arguments, infra. Chapter 2003-420, Laws of Florida, provides that the County in which Scripps is located shall have the exclusive right to provide central water and sewer service to the project. The County intends to provide such service to the SCO via lines extending from Okeechobee Boulevard and SR 7 about 12.5 miles away. The County has enough plant capacity to serve the SCO through build-out. Assuming Scripps Florida is located at the SCO, it would be expected to pay guaranteed revenue fees, connection fees, and on-line rates (which could be special rates set for Scripps and Mecca.) The evidence was that the total cost of construction for the lines to serve the SCO, while substantial at approximately $15 million (some of which would be expended with or without the SCO), is a relatively small percentage (5-6 percent) of the County's overall capital improvements budget, is relatively minor in light of the County’s strong financial condition, will enhance the use of existing assets and rate stability for customers, represents a least-cost and efficient approach for the area to be served, and will not cause other water and sewer needs to go unmet. The County’s 2005-2010 Capital Improvements Schedule (CIS) is financially feasible, as are each year’s program in the CIS. The CIS is based on best available data. Capital outlays to support the SCO will not deprive the County of money for other needed projects or distort the County’s fiscal priorities. Transportation Concurrency The Petitioners' focus here is on the CRALLS designations. CRALLS designations have been assigned to 37 different road segments and 6 intersections, not only near Mecca but also as far north as Indiantown Road, as far south as Okeechobee Boulevard, and as far east as I-95. They are set at vehicle loadings that match the traffic loads expected with development of the SCO. They only apply to the SCO. Other developments cannot rely on them but must use an applicable LOSS. In part, Petitioners frame their arguments on inconsistency with statutes and rules governing interim LOSS designed to correct existing deficiencies and set priorities for addressing backlogged facilities; Transportation Concurrency Management Areas used to promote infill and redevelopment; and Transportation Concurrency Exception Areas used to reduce the adverse impact transportation concurrency may have on urban infill and redevelopment and to achieve other goals and policies of the state comprehensive plan, such as promoting the development of public transportation. See Section 163.3180(9) and Rule 9J-5.0055(4)-(6). However, DCA and the County have made no effort to defend its CRALLS under those provisions.8 Rather, their position is that a CRALLS designation is a specialized LOSS that is "in compliance" without resort to those provisions of the law. DCA and the County seemed to come close to defending the CRALLS in part on the ground that the County has absolute discretion to establish these CRALLS and that they are not even subject to review for adequacy. Such a legal position would be untenable. Cf. Conclusion 217, infra. Assessment of the adequacy of the CRALLS is required. The transportation issues associated with the SCO are unprecedented in the County because of its size, location, and 30-year build-out. To address the challenges posed by these factors, the County relied on a combination of strategies to address transportation, including road improvements, CRALLS, adopting development controls for the SCO, and requiring mitigation. The initial transportation issue for the SCO was posed by FLUE Policy 3.5-d. This policy prohibits land use changes expected to generate significant impacts on any roadway segment projected to fail to operate at LOSS "D" based on the adopted Long-Range Transportation Plan. This policy is self-imposed and not required by the State. The SCO would generate trips beyond the significance thresholds in FLUE Policy 3.5-d. The County Engineer supported an exemption from this policy for the SCO because traffic considerations should not outweigh the economic and other land use goals the County is pursuing with the SCO. The first traffic analysis for the SCO was included in the DRI application, and was predicated on 10.5 million square feet of R&D. Later, in conjunction with re-zoning, the County’s consultants prepared a concurrency analysis for 8.5 million square feet of R&D, reflecting the maximum allowed by the Plan Amendments. All traffic analyses were performed as they would have been for a private developer, with methodologies approved by the County in collaboration with FDOT, TCRPC and Martin County. Assumptions were conservative, representing a worst- case scenario. SCO-related road improvements approved by the County in its five-year road program for 2005-2009 included 18 segments and three intersections at a total cost of $179.7 million. Of these, eight projects totaling $64.8 million were not new or changed in their amount of funding. The SCO-related improvements in the five-year road program were incorporated into the CIS for 2005-2010. An additional $26 million for these projects was included for 2010. Approximately 70 percent of the improvements needed for the SCO was previously identified on the 2020 Roadway System Map. In addition to these construction projects, the County also lowered the LOSS on some roads and intersections that would be impacted by the SCO over the next 30 years. In doing so, the County utilized its long-standing policy of establishing a CRALLS designation for each such road segment or intersection. The County is authorized under its charter to set LOSS's for all major roadways in unincorporated areas and municipalities except for the FIHS. The State sets the LOSS on roads in the FIHS. The County's generally applicable LOSS is LOSS “D”. Since 1989, the County has utilized the CRALLS strategy to establish an alternative LOSS on some roads due to physical or policy constraints. Examples of physical constraints include natural features, waterways, right-of-way limitations, and other roads; neighborhood opposition to a wider road would be an example of a policy constraint. CRALLS designations are not limited to the Urban/Suburban Tier; they may be adopted for land in any tier. Under TE Policy 1.2-f, CRALLS designations by the BCC must be based on data and analysis. These data and analysis must address 11 criteria in the County’s Unified Land Development Code (ULDC). CRALLS standards typically are expressed as a numeric limit on trip loadings on the road segment or intersection in question, rather than reliance upon the conventional, generalized “A”-“F” standards used by transportation engineers. Since 1993, Chapter 163 and Rule 9J-5 have granted a local government discretion to adopt LOSS for seven types of public facilities, including roads other than FIHS roads. The only State requirements are that LOSS's must be adequate, based on data and analysis, and established for each facility type. Local governments are not prohibited from adopting LOSS's for different facilities within a service type or even project-specific LOSS's that overlay the more generally applicable LOSS for a facility or facility type. Of the 37 road segments and six intersections given project-specific CRALLS designations in the Amendments, the designations on nine road segments will become ineffective when the roads are widened as planned. Another seven segments may eventually have their CRALLS designations repealed as unneeded. These segments are projected to be no more than 12 percent over generalized LOS “D”, and the County’s experience is that a detailed arterial analysis generally will show such a segment actually operating at LOS “D” when site-specific factors are considered. Seven segments and one intersection already had CRALLS designations, but the CRALLS was changed to accommodate the SCO. An additional nine segments and four intersections were expected to have a CRALLS designation even without the SCO, due to pre-existing conditions. On all but two of these, the SCO accounted for 5% or less of the trip loadings. Five segments and one intersection received a CRALLS designation solely because of the SCO. These include three segments of PGA Boulevard, two segments of SPW, and the Northlake Boulevard to Orange Boulevard intersection. In analyzing an LOSS for adequacy, a local government should consider both technical and policy issues. Technical issues for roads include the actual amount of traffic to be allowed on a road segment or intersection at the peak hour in the peak season. Policy issues involve comparing increased congestion to other planning principles, such as preventing sprawl, promoting economic development, and neighborhood opposition to wider roads. There is not a limiting list of planning principles to consider in evaluating adequacy. The County Engineer concluded that these CRALLS designations were appropriate and adequate LOSS's. He based his opinion on the amount of traffic on each segment or intersection, how the road would function, fiscal issues, his knowledge of the area, residents’ opinions, and other factors. He noted that the maximum trips in each CRALLS designation are for the peak hour in the peak season; the peak season represents a 15 percent increase over the off-peak season. The CRALLS determinations were supported by the best available data. Among other things, the data and analysis addressed the 11 criteria identified in the ULDC. As transmitted, the Amendments included a number of temporary CRALLS designations. In its Objections, Recommendations and Comments (ORC), DCA objected that temporary CRALLS designations without an accompanying long- range CIS were inconsistent with Chapter 163 and Rule 9J-5. DCA suggested the County identify improvements for those CRALLS that were indeed temporary, and assign permanent CRALLS to those segments for which no improvements were planned. Of the 43 CRALLS designations in the Amendments as adopted, all but two were permanent. The CRALLS designations on two segments of Northlake Boulevard were to be “no longer in effect” after the extension of PGA Boulevard. These CRALLS designations are supported by a fully-funded extension of PGA Boulevard from SPW to the Beeline in the CIS. Considering the road improvements in the adopted CIS and the CRALLS designations adopted in the Amendments, the County will achieve and maintain the LOSS's on roads affected by the Amendments through 2009. In addition to road improvements and adopting CRALLS, the County adopted “best planning practices” for transportation in the Amendments. These included a variety of requirements in FLUE Policy 2.8-c, 1.-3., emphasizing bicycle and pedestrian mobility, project design measures like slip roads, and mixing uses to enhance internal trip capture. Policy 2.8-c, 9., included several requirements intended to foster public transportation at the SCO. Policy 2.8-d required a balance of residential and non-residential uses in each five-year project phase. Finally, the Amendments include required mitigation measures in conjunction with the CRALLS designations, including road construction and design principles for the SCO. Petitioners’ transportation witness opined that the CRALLS designations were not adequate and, in some cases, not feasible. But for several reasons, his opinions were not beyond fair debate. First, he based his opinion on the traffic analysis of 10.5 million square feet of development in the DRI application, which was later reduced to a maximum of 8.5 million, unbeknownst to the witness. Second, his technical analysis was general and did not take into account the County’s actual experience, which is not professionally acceptable data and analysis for purposes of a plan amendment. For example, some CRALLS loadings he said were impossible to achieve are already being met or exceeded in the County on actual roads, and traffic on some roads flows at speeds equivalent to LOS “D” even though trip loadings greatly exceed the LOS "D" numbers on the generalized LOS tables. Third, his opinion did not take into account the possibility that required on-site affordable housing and CRALLS mitigation measures in the Plan Amendments might increase internal trip capture and reduce trips on the external roadway system. Fourth, he assumed that the only policies the County could consider when evaluating the adequacy of a CRALLS designation are infill, redevelopment, and promotion of “forgotten modes” of transportation like bicycles; he did not consider economic development, urban sprawl, growth pressures, and other planning principles. Data and Analysis Paragraph 75 of the Amended Petition, labeled "Data and Analysis," alleges that the Plan Amendments are: not clearly based on the relevant and appropriate and professionally-accepted data and analysis regarding: impacts to adjacent natural areas; compatibility with adjacent land uses; impacts to the Loxahatchee River and restoration thereof; the Comprehensive Everglades Restoration Plan [CERP] and components thereof; impacts to rural communities; the availability and necessity of infrastructure and the provision thereof to support the project; the necessity for and the amount of land needed to accommodate the project; the availability and suitability of alternative sites for the project; the character of the undeveloped land and the surrounding community; the economic impacts of the proposed plan amendments; [and]9 the likelihood of developing an economically significant biotech industry as [a] result of the plan amendments . . . as required by sections 163.3177(6)(a), (8) and (10)(e), Fla. Stat. and Rule 9J-5.005(2) and (5)10 and 9J-5.006(2) and 9J-5.013(1) F.A.C.11 Section 163.3177(6)(a) requires that the future land use plan be based on appropriate data and analysis. Section 163.3177(8) requires all elements of comprehensive plans to be "based upon data appropriate to the element involved." Section 163.3177(10)(e) states the Legislature's intent that goals and policies be "clearly based on appropriate data"; states that DCA "may evaluate the application of a methodology utilized in data collection or whether a particular methodology is professionally accepted"; and states that DCA "shall not evaluate whether one accepted methodology is better than another." Rule 9J-5.005(2) states in pertinent part: (a) All goals, objectives, policies, standards, findings and conclusions within the comprehensive plan and its support documents, and within plan amendments and their support documents, shall be based upon relevant and appropriate data and the analyses applicable to each element. To be based upon 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. Rule 9J-5.006(2) describes the Land Use Analysis Requirements for the FLUE. It should be noted that new FLUE Policy 2.8-f in the Plan Amendments provides: "If the Scripps Research Institute does not move forward on the Mecca site, Staff shall bring to the BCC for initiation proposed amendments to consider removing any text and maps related to the [SCO] from the Comprehensive Plan." While Petitioners characterize this Policy as an admission that the Plan Amendments are not "in compliance," the Policy actually is prudent and would allow reconsideration of planning for Mecca and vicinity with a Scripps-anchored biotechnology cluster effort located elsewhere in the County (or even without any Scripps-anchored biotechnology cluster effort in the County, if that were to occur) as part of the EAR-based and sector planning efforts of the County. Some parts of the data and analysis would not be "professionally accepted" and, standing alone, would not be adequate to support the Plan Amendments. For example, the Washington Economic Group report is not "professionally accepted" because: it does not explain its methodology; it is based on an erroneous assumption that the plan for Scripps Florida, which is planned to be smaller than Scripps California, will generate the level of biotechnical industry found in all of San Diego, which includes not only Scripps, but also the University of California at San Diego and the Salk Institute in its cluster; it overestimates the importance of Scripps' role in the San Diego cluster; and it double- counts Scripps employment in its employment estimates. But other data and analysis corrected these errors. The amount of data and analysis supporting the Plan Amendments is voluminous. Petitioners' data and analysis arguments essentially are that the same evidence they presented as to the substantive areas of concern proves alleged failures of data and analysis to be "professionally accepted" and adequate. As indicated elsewhere in this RO, Petitioners' evidence did not prove their case as to substantive areas of concern beyond fair debate; likewise, they did not prove beyond fair debate that the totality of the data and analysis supporting the Plan Amendments were not "professionally accepted" or were inadequate. Internal Consistency The Amended Petition alleges numerous internal inconsistencies. Section 163.3177(2) requires: "The several elements of the comprehensive plan shall be consistent . . . ." Rule 9J-5.005(5) repeats this admonition in subparagraph (a), and subparagraph (b) adds: "Each map depicting future conditions must reflect goals, objectives, and policies within all elements and each such map must be contained within the comprehensive plan." Petitioners allege inconsistency with the following statements in section B., the Assessment and Conclusions section of the Introduction to the FLUE, that the updated 1989 Plan implements the direction provided by the BCC to: strengthen and facilitate revitalization and redevelopment and infill development programs; protect agricultural land and equestrian based industries; balance growth through the County; * * * 8. establish a timing and phasing program to provide for orderly growth; * * * coordinate growth with the provision of infrastructure; define how growth/services will be managed in rural residential areas; define service areas and the type of services to be provided within each service area; and provide criteria for expanding the Urban/Suburban Tier. Petitioners allege inconsistency with the following GOPs of the FLUE: Goal 1, to establish the Tier System. Policy 1.1-b, establishing criteria for redesignation of a Tier. Policy 1.1-d, not to modify the Tier System if redesignation would exhibit the characteristics of urban sprawl, as defined by Rule 9J-5.006. Objective 1.4, for a Rural Tier to protect and maintain rural residential, equestrian, and agricultural areas. Policy 1.4-k, not to make future land use decisions that increase density and/or intensity requiring major new public investments in capital facilities and related services in the Rural Tier. Objective 2.1, to designate sufficient land area in each land use designation to manage and direct future development to appropriate locations to achieve balanced growth. Policy 2.1-f, not to exceed the natural or manmade constraints of an area considering assessment of soil types, wetlands, flood plains, wellfield zones, aquifer recharge areas, committed residential development, the transportation network, and available facilities and services; and not to underutilize existing or planned capacities of urban services. Policy 2.2-b, requiring: an adequate justification and a demonstrated need for proposed future land use; for residential density increases to demonstrate that the current land use is inappropriate; for a review and determination of compatibility with existing and planned development in the immediate vicinity; and an evaluation of impacts on the natural environment, availability of facilities and services, adjacent and surrounding development, future land use balance, prevention of urban sprawl as defined by Rule 9J- 5.006(5)(g), Community Plans and/or recognized Planning Area Special Studies, and municipalities in accordance with Intergovernmental Coordination Element Objective 1.1. Policy 2.2-d, to ensure consistency of the County's ULDC with the appropriate elements of the Plan. Objective 2.6, to establish a transfer of development rights (TDR) program. Policy 2.6-b, requiring the TDR program to be the method for increasing density within the County unless an applicant can justify and demonstrate need and that the current designation is inappropriate, or is using the Voluntary Density Bonus program, as outlined in the Housing Element and the ULDC. Policy 2.6-f, limiting potential TDR receiving areas to the Urban/Suburban Tier, Planned Development Districts and Traditional Development Districts requesting a density increase, and subdivisions requesting a bonus density above the standard density. Policy 2.6-h, prohibiting designation of receiving areas which would result in a significant negative impact upon adjacent Environmentally Sensitive Land. Policy 2.6-i, prohibiting designation of receiving areas which would be incompatible with surrounding existing and future land uses. Goal 3, to define graduated service areas for directing services to the County's diverse neighborhoods and communities in a timely and cost-effective manner. Objective 3.1, to establish graduated service areas to distinguish levels and types of services needed in a Tier. Policy 3.1-a, to establish the USA, LUSA, and RSA considering: the density and intensity of land uses depicted in the FLUE Atlas; the cost and feasibility of extending services; the necessity to protect natural resources; and the objective of encouraging reinvestment in the Revitalization and Redevelopment Overlay. Objective 3.4, to require a RSA which meets the needs of rural development and use without encouraging the conversion of rural areas to more intense uses. Policy 3.4-a, for the RSA to include those areas of the County where the extension of urban LOS's is neither foreseen during the long range planning horizon nor warranted by development patterns or densities and intensities allowed. Policy 3.4-c, not to provide or subsidize centralized potable water or sanitary sewer in the RSA unless: required to correct an existing problem; required to prevent a projected public health hazard; required to prevent significant environmental degradation; or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. Objective 3.5, to require availability of services concurrent with impacts of development, to ensure consistency of decisions regarding location, extent, and intensity of future land use (particularly urban expansion), with types of land use and development established in each Tier. Objective 4.1, to develop and implement a Community Planning and Neighborhood Planning program, consider the program's plans for more livable communities with a strong sense of place and identity for the various regions in the County. Policy 4.1-c, to consider the objectives and recommendations of all Community and Neighborhood Plans, including recognized Planning Area Special Studies, prior to extending utilities or services, approving land use amendments, or issuing development orders for rezoning, conditional use, or Development Review Committee approval. Goal 5, to provide for the continual protection, preservation, and enhancement of the County's various high quality environmental communities. Petitioners allege inconsistency with the following parts of the Conservation Element (CE): Objective 2.1, to preserve and protect native communities and ecosystems to ensure that representative communities remain intact, giving priority to significant native vegetation. Policy 2.1-g, to ensure that management plans are developed for County-owned or County-managed natural areas and that uses allowed on these lands are compatible with them and preserve their natural character. Objective 2.4, to protect and preserve endangered and threatened species, species of special concern, and their associated habitats. Petitioners allege inconsistency with the following GOPs of the CIE: Objective 1.1, to maintain minimum LOSS's for various facilities, including traffic circulation, and to issue development approvals based on ability to maintain those LOSS's. Objective 1.4, to identify and fund services and capital improvements required by the Plan. Policy 1.4-a, to fund projects and programs to (not in order of importance): correct public hazards; eliminate existing deficiencies in LOS's; provide capacity for projects in the USA approved through development orders; provide for renewal and replacement of, and improvement to, existing public infrastructure and physical assets; maintain LOS's as new growth occurs; increase existing LOS's to desired LOS's; and implement the GOPs in the Plan. Policy 1.5-c, not to provide urban LOS's in the RSA except where allowed under CIE Objective 1.1, required to correct a public health hazard, or required by the Public Health Department for development in the Rural Tier adjacent to water and/or sewer lines which existed prior to adoption of the Plan in 1989. (Other internal consistencies mentioned in Petitioners' PRO were not alleged or heard by consent and may not be considered. See Conclusion 212, infra.) The evidence did not prove beyond fair debate that the Plan Amendments cause the elements of the Plan to be internally inconsistent, or cause the depictions of future conditions in the FLUE Atlas not to reflect the GOPs within all elements of the Plan. Natural Resources Impacts on the Mecca Site As a result of its use for citrus growing and mining, Mecca itself is devoid of significant environmental value. The South Florida Water Management District (SFWMD) has found no jurisdictional wetlands on it. There are no native plant communities; in fact, there is virtually no native vegetation anywhere on the site. Mecca is used by wildlife in limited and intermittent ways. The main wildlife use is localized foraging by species such as sandhill cranes and wood storks in the impoundment and irrigation ditches. Mecca does not provide suitable habitat for nesting or denning. A listed species survey revealed no gopher tortoises or snail kites. The surface water management system for the first 535 acres of the SCO has received a construction permit, and the system for the total site was conceptually approved based on water quantity and water quality compliance. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, DOAH Case Nos. 04-3064 and 04-3084, 2004 WL 2770101 (DOAH December 3, 2004; SFWMD Final Order December 8, 2004). No significant adverse impacts to natural resources on Mecca itself would result from development of the SCO on Mecca. Impacts of Development on Mecca on Natural Areas Surrounding Mecca The lands surrounding Mecca are more significant environmentally. They include Corbett WMA to the west, Hungryland Slough to the north and northeast, the Vavrus property to the east, and the North County Airport Preserve (Conservation lands to the west, south, and southeast of that Airport) east of the Vavrus property. Farther away to the east and northeast is the Loxahatchee Slough and the Northwest Fork of the Loxahatchee River, including its federally- designated Wild and Scenic and Outstanding Florida Water portion. Farther away to the southeast is the Grassy Waters Water Preserve Area, which is both a high quality natural wetlands area and an important source of drinking water for the City of West Palm Beach. New FLUE Policy 2.8-c requires the adoption of design standards for the SCO which, among other things, will at a minimum address: 4. Protection of conservation lands to the north and west of the SCO and include a passive recreational wetland system to enhance the quality of surrounding areas of environmentally sensitive lands. In accordance with this Policy, Map H designates a 247-acre, 500-1,000 foot wide flow-way along the entire north and west sides of Mecca. The flow-way will consist of braided channels through a freshwater marsh, as well as forested wetland and upland tree islands. These wetlands will enhance recreation and wildlife use. The mining lake and a new, separate lake on the south end of the site will have littoral shelves and plantings conducive to wildlife use. In addition to providing onsite environmental benefits, the flow-way will help protect adjacent environmental lands to the west and north from the effects of development on Mecca itself. Impacts of Road Construction on Natural Areas Surrounding Mecca SPW as currently depicted in the Plan runs directly along the western border of Mecca immediately adjacent to Corbett WMA. By virtue of the Amendments, the road alignment has been moved eastward onto Mecca, with the flow-way on its west as a buffer between the actual road and Corbett. This road alignment and buffer can be expected to have less of an impact on Corbett than would an alignment without a buffer. In addition to the impacts of development on Mecca itself, the Plan Amendments also affect road construction offsite that have environmental impacts. The extension of SPW from south of Mecca north to the Beeline through the Hungryland Slough was planned and included in the Plan's 2020 Roadway System Map before the Amendments were adopted, but was not in the County's five-year road program through 2009. The Amendments enlarged the planned roadway from four to six lanes and accelerated its construction to 2007. The extension of PGA Boulevard west from the Beeline to Mecca was not depicted in the Plan prior to the Amendments. The Plan Amendments identify a new 260-foot wide ROW on the new TIM; although the ROW could accommodate ten lanes of roadway, a six-lane road is depicted on the new 2020 Roadway System Map. The new road construction is expected to impact a number of wetlands on private property, but the exact extent of this impact is not known as its precise alignment has not been selected, and the general alignment depicted in Ordinance No. 2004-39 does not allow an exact assessment of potential environmental impacts. In order to examine potential impacts of the PGA Boulevard Extension, the County studied the “worst case scenario” for the extension if it were completed in a straight-line from the Beeline to Mecca. A road constructed on this alignment would directly impact over 45 acres of wetlands, and have an indirect impact upon another 56 acres of wetlands. SFWMD considered this “worst case scenario” as part of its review of secondary impacts for purposes of the conceptual permit it issued for the SCO, which assumed that impacts will be lessened during subsequent permitting as a result of SFWMD's avoidance, minimization, and mitigation requirements. See Florida Wildlife Federation, et al., v. SFWMD, et al., SFWMD Order No. 2004-208 FOF ERP, supra. Habitat Fragmentation The integrity of natural areas is very important to wildlife. For one thing, the ability of wildlife to move around and mix to enlarge the gene pool increases the structural stability of wildlife populations. Loss of enough integrated habitat can be very damaging to particular species of wildlife. As habitat becomes further and further fragmented by development, the remaining connections among areas of quality habitat become increasingly important in general and especially for particular species of wildlife. Development and roads built through natural areas result in road kill and habitat fragmentation, which compromises the quality of the natural areas. Before the Plan Amendments, through at least 2009, wildlife would have had the ability to use Mecca and especially Hungryland to move between Corbett, Vavrus, the North County Airport Preserve, without having to cross any major roads until coming to the Beeline and Northlake Boulevard, which separate those areas from the Loxahatchee Slough northeast of the Beeline and north and south of existing PGA Boulevard, and from the Grassy Waters Preserve south of Northlake Boulevard. At some point between 2009 and 2020, a four-lane extension of SPW was planned to be added. As a result of the Plan Amendments, the SPW extension will be accelerated to 2007 and constructed with two additional lanes. As a result, the Plan Amendments will tend to reduce connectivity, increase fragmentation of natural habitats, and probably increase road kill of deer, alligators, various kinds of turtles, otters, and snakes. While not part of the Plan Amendments, planned protection measures include fencing to separate Corbett from the Mecca project and wildlife crossings and bridging installed along with the widening of SPW north of Mecca and the extension of PGA Boulevard to Mecca in an attempt to retain the linkage of open wetland and upland areas to the west, north and east, consistent with CE Objective 5.1. Unfortunately, even if the fencing and wildlife crossings and bridging are 100 percent effective for larger animals (which they probably will not be), it should be recognized that many smaller animals will benefit little from them if at all. In particular, increased road kills of listed indigo snakes should be expected due to their large habitat home range (200-acre home range for males). Fire Management Virtually all plant communities in the vicinity of Mecca are fire dependent--in order to be maintained in their natural state, they must be burned approximately every three years, or they will be invaded by exotic species, and their habitat values will be reduced. The inability to maintain a regular burn schedule also poses a public safety threat due to the increased risk of wildfires. Fire management is compromised near roadways and developed areas due to health concerns, reduced visibility, and increased wildfire threat. Caution is used when burning near roadways so as not to cause (traffic accidents,) or to be blamed unfairly for causing them, which can be just as bad for the public relations that have to be maintained to successfully fire-manage natural lands. If an airport, hospital, school, or community is within two miles of a burn area, it is considered a smoke-critical area. If Mecca is developed as proposed, it will be considered a smoke-critical area for many burns in Corbett, which will not be able to be burned if the wind is blowing from the west. In Corbett, which has a lot of lighter wood, fires often smolder for weeks, further constraining fire management. For these reasons, the development allowed by the Plan Amendments will negatively impact the management of Corbett. However, there are alternative fire-management techniques that can be used, if necessary, in natural areas adjacent to Mecca. In addition, with or without the SCO, the County was planning a four-lane extension of SPW along the eastern boundary of Corbett, which would be a constraint on fire management. Light Impacts The proposed development on Mecca will add light sources that will alter the nighttime sky viewable from Corbett, Hungryland, and the Loxahatchee Slough. Depending on the extent, such an alteration would reduce recreational values of Corbett. Lights also can interrupt bird migration and be harmful to migratory birds. The area surrounding Mecca is important for migratory birds because the lack of lighting provides a dark sky and safe route for migration. Special downward-directed lighting that can reduce the adverse impacts from lighting is intended to be used on the Mecca project although a clear requirement to use them is not included in the Plan Amendments. Noise, Pollution, and Mosquito Control Noise and other roadway disturbance cause behavioral problems in wildlife, disrupt bird-nesting for considerable distances, and negatively impact prey and predator by interfering with offensive and defensive mechanisms. However, it should not be anticipated that these kinds of impacts will be significant. In most cases, they probably will disturb the human recreational users of these public lands more than the wildlife. Fertilizer and pesticide use on Mecca may be harmful to wildlife on adjacent properties. But there are ways to control their ill effects through land development regulation consistent with provision in the CE of the Plan. Mosquito control is typically required in urban developments, and is accomplished through the use of pesticides that are not only targeted towards mosquitoes, which are an important part of the food chain, but also kill a wide variety of insects, spiders, and invertebrates. This reduces the populations of these species, negatively impacts species that rely on them for food, can be expected to result in less food for birds such as tree swallows, which feed heavily on mosquitoes, as well as dragonflies, and numerous species that rely on mosquito larvae in the aquatic environment. Loxahatchee River Basin Petitioners contend that it is unacceptably poor planning to develop the SCO on Mecca at this time and eliminate it as an option for use for water storage as part of efforts to restore the Loxahatchee River. The Loxahatchee River has been negatively impacted by development in its basin. Such development has resulted in several changes, including the redirection of water discharge to other basins and an unnatural increase in stormwater drainage. These changes to the drainage patterns have resulted in several problems, including excessively high flows in the river following rainfall events, and reduced base flows during the dry season. Excessive flows during the wet season have resulted in erosion of the stream bed, sedimentation blocking the channel at times, and sometimes water quality problems and fish kills. Reduced base flows during the dry season have contributed to allowing saltwater intrusion up the river channel. (Other contributing factors include straightening and stabilization of the inlet to reduce the need for maintenance dredging and the removal of a large oyster bar from the riverbed for navigation purposes.) Saltwater intrusion has altered aquatic ecosystems and caused a change in the vegetation along the riverbanks. Specifically, freshwater cypress-dominated wetlands used to occur as far seaward as 6.2 miles from the river mouth; now mangroves have replaced the cypress swamps as far inland as river mile 9.2, and the cypress wetlands to river mile 10.2 are stressed. Restoration of the Loxahatchee River is an objective of CERP, North Palm Beach County Part One. One component of North Palm Beach County Part One was for SFWMD to acquire rock mine pits for water storage from Palm Beach Aggregates near where the L-8 canal meets the C-51 canal. SFWMD plans to channel water through canals into these pits during wet season or high rainfall events, then discharge the water from the pits back through the canals during dry season. One destination for this fresh water during the dry season would be the Loxahatchee River. Until recently, prior to the Scripps opportunity, the North Palm Beach County Part One CERP team also was considering use of Mecca for water storage as a possible management measure in the overall CERP strategy for restoration of the Loxahatchee River. Mecca was considered for two main reasons. One was its location on the west leg of the C-18 canal, which receives discharges from the C-18 basin and flows into the Loxahatchee River. Water could be fairly easily stored there during the wet season and released to the river during the dry season. The other was its disturbed condition, being an orange grove and sand mine. The only other potential water storage sites near the C-18 canal without pristine wetlands that would be unsuitable and undesirable sites for a water storage facility is approximately 1,500 acres of disturbed agricultural land on Vavrus. (The other two-thirds of the Vavrus property has high-quality wetlands habitat.) However, Mecca was not specifically mentioned in any component of CERP, North Palm Beach County Part One, and consideration also was being given to restoring the Loxahatchee River without using Mecca for water storage. No decision was made to use Mecca for water storage, and no steps were taken to purchase Mecca for this purpose. When the Scripps opportunity arose, the County purchased the property for development of a biotechnology research park and applied to SRWMD for a surface water storage and management system and environmental resource permit. One issue was whether the permit would be consistent with the objectives of SFWMD, including CERP. SFWMD did a preliminary study, which included modeling, and determined that Mecca would not be needed for water storage, finding that water storage capacity available in the Palm Beach Aggregates rock mine pits was sufficient, given the pits’ location, depth, and access to nearby canals. SFWMD already had a contract for use of 48,000 acre-feet feet of storage capacity, which is more than seven times the achievable storage at Mecca. In addition, SFWMD was negotiating to acquire the right to double that storage capacity at Palm Beach Aggregates. Based on the County's plans to develop the SCO on Mecca, and the options available for restoring the Loxahatchee without water storage on Mecca, the CERP team eliminated the Mecca option. Instead, SFWMD and the County coordinated on the role the SCO might play in the recovery effort. SFWMD concluded that Mecca could be used to advantage as part of the water conveyance system between the rock mine pits and environmental areas, including the Loxahatchee River. Establishing a flow-way from the south to north of Mecca would give SFWMD another route with which to move water, would reduce dependence on Lake Okeechobee for fresh water, and would provide greater base flows to the Loxahatchee. Based on SFWMD input, the County designed for Mecca a flow-way that will allow flow up to 1,000 cubic feet of water per second (cfs) to assist recovery efforts for the Loxahatchee. Construction at Mecca is phased to assure that the existing onsite impoundment will be in place until the flow-way is functioning. This conveyance system will benefit offsite resources and improve water quality, and is consistent with and complementary to SFWMD’s CERP implementation. Petitioners' witnesses criticized the decision to proceed with development of the SCO on Mecca at this time on the ground that CERP's implementation report (a/k/a "tentatively selected plan") has yet to be approved. However, approval requires not only agreement by the State and federal agencies involved but also a vote of the United States Congress, which may not occur until 2008. It is a fairly debatable policy question whether to postpone a decision on developing the SCO at Mecca until Congress approves an ultimate CERP implementation plan. Petitioners' witnesses also criticized the modeling relied on by SFWMD to eliminate the Mecca option. They pointed out that the modeling was not peer-reviewed and that it assumed 80,000 to 100,000 acre-feet of storage at the rock mine pits. But this point, too, is fairly debatable. First, while peer-review is required in the CERP planning process, it is not required of data and analysis under the GMA. See Finding 136, supra. Second, the purpose of the modeling was to supplement modeling already done assuming 48,000 acre-feet of storage for comparison purposes. It was not intended to answer the ultimate question of CERP planning process--whether the CERP implementation plan will meet CERP objectives, including restoration of the Loxahatchee. In addition, based on the evidence, prospects for obtaining the additional storage seem reasonably good. Third, water from the rock mine pits is only one of four sources of flow needed for restoration of the Loxahatchee. The combination of sources CERP will use has not been determined yet. Preliminarily, it is estimated that base flows from the south will be required to maintain 65 cfs minimum flows at the Lainhart Dam. Based on the evidence, the prospects for being able to maintain those flows using water from the rock mine pits are reasonably good. Other necessary flow will be sought from the Palmar/Cypress Creek and Kitchen Creek areas to the north. Fourth, as for reducing high flows during the wet season, it is fairly debatable whether the plan to use the Palm Beach Aggregates rock mine pits alone for water storage will work well enough. It could be that, despite capacity limitations on storage potential in the C-18 basin, some storage there may prove beneficial, perhaps in conjunction with aquifer storage and recovery wells (ASRs), along with the rock mine pits. Even with the Plan Amendments, there remains some potential at this time that a limited portion of Mecca and disturbed portions of Vavrus could be used for this purpose if needed. Petitioners' witnesses also complained that use of the rock mine pits along with a flow-way through Mecca will require potentially costly land acquisition and permitting and modification of existing canals and construction of new canals, as well as larger pumps, and that water will be lost in transit between the rock mine pits and Mecca through evaporation. But there was no evidence that those factors will in fact harm or jeopardize restoration of the Loxahatchee River. Meanwhile, it is significant that the flow-way on Mecca will be provided by the County and will not cost SFWMD or CERP anything. Natural Resources Summary As can be seen, development of the SCO at Mecca will not be without some adverse impacts to natural resources and the environment. However, the County's determination that the benefits of the SCO outweigh the harm of those impacts, so as not to cause the Plan Amendments to be "in compliance," is a policy decision that is at least fairly debatable. Community Character and Compatibility It is obvious that the Plan Amendments will result in a complete change in the character and use of the Mecca site. Without question, development of the SCO at Mecca will impact adjacent lands and the character of the nearest communities. The question raised, however, is whether the changes at Mecca are compatible with the character and uses of the surrounding lands. New FLUE Policy 2.8-c requires, among other things: urban uses allowed by the SCO to have a defined edge; protection of conservation lands to the north and west by a passive recreational wetland system to enhance the quality of surrounding environmentally sensitive lands; and compatibility with and minimization of impacts on land uses adjacent to the SCO. Map H of the DRI application shows wetland and other buffers on the north, west, and south sides of the SCO, and a 50-foot upland buffer along the Vavrus property to the east. There was evidence that the 50-foot buffer on the east is sufficient for the current use and the rural residential land use designation (1 du/10ac) placed on the Vavrus site at this time by the City of Palm Beach Gardens. The Mecca project has been designed so that, if there are changes in the future in the land use on the Vavrus property, those buffers would continue to provide compatibility. Corbett WMA and the Hungryland preservation lands in Unit 11 will be buffered by passive recreational wetlands 500 to 1,000 feet wide, based on Map H. Corbett WMA will be benefited by moving Seminole Pratt-Whitney (SPW) Road to the east of the SCO westerly buffer and converting the existing roadbed to an equestrian trail.12 To the south, The Acreage is an example of urban or suburban sprawl. A residential development platted in 1.25- acre lots, it has all internal roads in place and in use. There was ample evidence that development of the SCO can be compatible with The Acreage. The southerly buffer between the nearest residence in The Acreage and development in the SCO would be about 800 feet. SPW already is in the 2020 TIM and Roadway System Map as a four-lane paved road through The Acreage and north past Mecca and the Beeline to Indiantown Road. However, SPW Road already has a 120-foot-wide ROW, which can accommodate a six- lane road, and The Acreage Neighborhood Plan calls for construction of this road from Northlake to the Beeline Highway, as well as extension of SR 7 north from Okeechobee Boulevard to Northlake. There is already heavy traffic on the few major through-roads in The Acreage, and that will increase incrementally. At the same time, some work trips from The Acreage to areas of the County farther east could be offset by employment opportunities in the SCO. The North County Airport has a five-mile runway buffer zone precluding educational uses. That buffer zone was accommodated on the SCO by the arrangement of uses on Map H. The new extension of PGA Boulevard from the SCO to the Beeline Highway will be subject to FAA setback requirements, but there are options for addressing that issue when an alignment is selected. The 28-acre Accessory Site is located on the west side of SPW Road just south of the SCO. Its use for construction of SPW Road, a connector canal, and an FPL substation is compatible with the existing FPL transmission line on the property. The substation will be sufficiently buffered by canals and SPW Road from The Acreage to its east and south. Many residents in the communities in the vicinity of Mecca desire to preserve the character of their communities or, it seems, even restore it to what it was before the growth the County has seen in this area over the last several years. Several own horses and desire to continue to ride their horses along the roads in the area. However, as indicated, with or without the Plan Amendments, growth in the area was expected, the County was planning to build roads in the area, and traffic was expected to increase. Based on the foregoing, it is fairly debatable whether the Plan Amendments are compatible with community character and surrounding land uses. Regional and State Plans Section 163.3177(10) states in pertinent part: for the purpose of determining whether local comprehensive plans are consistent with the state comprehensive plan and the appropriate regional policy plan, a local plan shall be consistent with such plans if the local plan is "compatible with" and "furthers" such plans. The term "compatible with" means that the local plan is not in conflict with the state comprehensive plan or appropriate regional policy plan. The term "furthers" means to take action in the direction of realizing goals or policies of the state or regional plan. For the purposes of determining consistency of the local plan with the state comprehensive plan or the appropriate regional policy plan, the state or regional plan shall be construed as a whole and no specific goal and policy shall be construed or applied in isolation from the other goals and policies in the plans. Treasure Coast Strategic Regional Policy Plan (SRPP) In the Amended Petition, the Petitioners did not allege the Amendments are inconsistent with the SRPP, as a whole. Only allegations in the Amended Petition may be considered. See Conclusion 212, infra. Notwithstanding testimony from Petitioners’ TCRPC witness that the Plan Amendments were not consistent with some provisions of the SRPP, he did not testify that they were inconsistent with the SRPP as a whole. The Amendments further some parts of the SRPP. These include SRPP Goal 3.6 and SRPP Goal 3.7 of the Economic Development element, and their supporting strategies and policies. Petitioners' TCRPC witness testified there were five inconsistencies between the Amendments and the SRPP. However, he admitted that he did not recommend that TCRPC file formal objections to the Amendments with DCA on three grounds he cited for inconsistency at hearing --proximity to the Corbett WMA and other natural resources, the CRALLS designations, and proximity to the North County Airport. In discussing some provisions, this witness failed to give the SRPP its proper context. Many goals, strategies, and policies in the SRPP use directive verbs intended to be recommendations to a local government, not requirements. As one of his five grounds of inconsistency with the SRPP, Petitioners' TCRPC witness opined that Regional Goal 4.1 and its supporting measures require the County to prepare a regional plan before urban development may be allowed at Mecca, and to ensure such development meets the SRPP’s definition of a new town, village or city. However, this goal and its key provisions use the verb “should” and therefore are not mandates. Further, a plain reading of these provisions shows no requirement for the County to complete a regional plan as a pre-requisite for urban development. Also, the TCRPC witness opined that SRRP Policies 9.1.1.1 and 7.1.3.1 prohibit CRALLS designations outside urban areas. However, a plain reading of these policies shows no basis for such an assertion, and the witness later admitted the SRPP does not prohibit CRALLS designations in rural areas. Moreover, his testimony on this point was contradicted by his testimony that the SRPP is only “advisory.” State Comprehensive Plan The State Comprehensive Plan (SCP) is a very broad, direction-setting document. The SCP provides over-arching policy guidance, and does not impose or authorize the creation of regulatory authority. The Amended Petition alleged that the Amendments are inconsistent with the goals of the SCP regarding Land Use, Water Resources, Natural Systems and Recreational Lands, Transportation, and Urban and Downtown Revitalization, as well as numerous policies under these goals. Based on these allegations, Petitioners alleged that the Amendments are inconsistent with the SCP as a whole. To the contrary, the record evidence demonstrates that all relevant issues regarding water and other natural resources, land use, and transportation were taken into account by the County and are addressed in the Amendments. Additionally, the Amendments are consistent with and further numerous goals of the SCP not mentioned in the Amended Petition. The Amendments contain a commitment that each phase of development must contain affordable housing for very low, low, and moderate income households. This commitment furthers the SCP goal to “increase the affordability and availability of housing for low-income and moderate-income persons ” § 187.201(4), Fla. Stat. The Amendments have as their principal focus the creation of quality employment opportunities with Scripps Florida as anchor tenant. This purpose is consistent with and furthers the SCP policy to “[a]ttract new job-producing industries, corporate headquarters, distribution and service centers, regional offices, and research and development facilities to provide quality employment for the residents of Florida.” § 187.201(21)(b)(1), Fla. Stat. Summary Using the statutory definition of internal consistency, it is not beyond fair debate that the Plan Amendments are inconsistent with either the TCRPC's SRRP or the SCP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCA enter a final order determining that the Plan Amendments are "in compliance." DONE AND ENTERED this 28th day of April, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2005.
The Issue The issue in this case is whether the amendment to the Putnam County Comprehensive Plan adopted by Ordinance 2009-23 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2008).1/
Findings Of Fact The Parties Petitioner Bonnie Conklin resides and owns property at 600 Stokes Landing Road. She submitted oral comments to the County at the adoption hearing on the amendment. Petitioner Wendy Goodson owns property at 595 Stokes Landing Road in Putnam County. She submitted oral comments to the County at the adoption hearing on the amendment. Putnam County is a political subdivision of the State and has adopted a comprehensive plan which it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Intervenor Stokes Landing Enterprises, LLC (“Stokes Landing”), is a Florida limited liability company. It owns the Property affected by the amendment and submitted oral comments and evidence during the local hearings on the amendment. The Amendment The amendment changes the future land use designation of the Property from Agriculture II to Industrial. Section One of Ordinance 2009-23 provides that the re-designation of the Property is subject to the terms and conditions of the development agreement between the County and Stokes Landing, which is attached as an exhibit to the ordinance. The Property has approximately 220 feet of frontage on the St. Johns River. The development agreement requires that the Property be developed as a Planned Unit Development (PUD) for a “ship building and repair facility.” Contemporaneous with the adoption of the amendment, the County rezoned the Property to PUD. The development agreement includes the following recitals: Developer and the County wish to enter into this Agreement to set forth the conditions under which development of the facility shall be used. The County has entered into this Agreement in consideration of the commitment by Developer to construct certain improvements as further described in Section 3 below (hereinafter the “Improvements”); and to redevelop the site and utilize the Property as a Planned Unit Development (PUD) only, with the understanding that the Developer shall apply for a PUD to operate a ship building and repair facility. * * * G. The conditions specified within a Planned Unit Development (PUD) zoning district established by Developer pursuant to this Agreement will aid redevelopment of the Property, limit localized impacts of the Property and advance the implementation of the County’s Comprehensive Plan. Section 3 of the development agreement requires that the developer make the following improvements: Access Roadway Improvement: Developer at its sole cost and expense shall design, engineer, permit, construct and install in accordance with all applicable laws, rules and regulations and the County’s approval of the design, the improvement(s) of the Access Roadway from Stokes Landing Road to the subject site via the established access easements. County approvals shall not be unreasonably withheld. Timing: Developer shall complete the Access Roadway Improvements prior to starting redevelopment of the site for the proposed ship building and repair use. Planned Unit Development (PUD) Zoning: Developer shall obtain approval of rezoning the Property to PUD prior to starting redevelopment of the site and shall maintain the approved PUD zoning throughout the duration of the Industrial future land use on the site. This requirement does not preclude any future request for a Comprehensive Plan Amendment to another future land use category and subsequent associated rezoning requests to a compatible zoning district. The Property and Surrounding Land Uses Most land uses contiguous to or adjacent to the Property are residential uses on lands designated Agriculture II. However, 100 feet south of the Property are lands along the St. Johns River designated Conservation. There are other Conservation lands across the river from the Property and north of the Property. The only other land uses in the area are a commercial well-drilling business on land designated Agriculture II, and a shipyard known as St. Johns Ship Building on lands designated Industrial. The St. Johns Ship Building facility is located on 101 acres and is approximately 900 feet north of the Property. The lands abutting the Property on the west, south, and east are currently undeveloped. Across the St. Johns River from the Property is Stokes Island, which is also undeveloped. About 60 percent of the Property lies within the 100- year flood zone. There are wetlands on the Property which are generally of low quality due to invasive vegetation. Historic Uses and Improvements on the Property The staff report for the amendment states that the purpose of the amendment is to “make the land use designation of the property consistent with the existing use of the land,” which “according to the applicant,” has been ship building since the 1960’s. This statement incorrectly characterizes both the existing use and the past use of the Property. Aerial photography shows that much of the Property was cleared in 1943. In the 1940s and early 1950s, the County hauled shell rock from the Property for road building. The Property was used intermittently to build fishing vessels between the 1970's and 1998. The number of vessels that were built on the Property was not established by the record evidence. Some barge demolition activities also occurred on the Property in 2006 and 2007. Intervenor started to build a barge on the Property in 2008, but was almost immediately stopped by a County code enforcement officer because such activities are not allowed under the Property’s agricultural zoning. The evidence shows that the barge building and barge demolition activities, and probably the earlier boat building activities, were conducted in violation of the agricultural zoning of the Property. Two steel mooring pilings and remnants of a dock or platform are still located on the Property. There was some dispute about whether there still exist on the Property the rails or “ways” used in the past for hauling vessels out of the water and for launching vessels. Although a 2008 survey of the Property (Joint Exhibit 12) shows the rails, they do not appear in recent photographs of the Property (Respondent/Intervenor’s Exhibits 3.1 through 3.4 and Petitioners’ Exhibits 13.1 through 13.3). The shoreline along the east boundary of the Property is not bulkheaded and, except for the clearing that has occurred on the Property, remains in a relatively natural condition. Whether the Subject Property is a Port The parties disputed whether the Property is an existing water port, which is relevant to the Comprehensive Plan policies regarding the location of industrial uses, as will be discussed below. The term “port” is not defined in the Comprehensive Plan. “Port facility” is defined in Florida Administrative Code Rule 9J-5.003(92) as: [H]arbor or shipping improvements used predominantly for commercial purposes including channels, turning basins, jetties, breakwaters, landings, wharves, docks, markets, structures, buildings, piers, storage facilities, plazas, anchorages, utilities, bridges, tunnels, roads, causeways, and all other property or facilities necessary or useful in connection with commercial shipping. This definition is not particularly helpful in resolving the dispute in this case, because it is a list of facilities (e.g., buildings) that can be associated with a port, rather than an identification of the elements that are essential to being a port. In the traffic circulation section of the Putnam County Comprehensive Plan Data, Inventory, and Analysis, under the heading “Port Facilities,” there is one water port identified: Putnam County is currently served by a small barge port on the St Johns River, which is located between downtown Palatka and Rice Creek. . . . This barge facility is incorporated into a larger industrial park setting and provides an alternative method of moving certain types of goods and material into and out of the County. The word “port” is defined in Webster’s Dictionary as “a place where ships may ride secure from storms” and “a harbor town or city where ships may take on or discharge cargo.” Webster’s New Collegiate Dictionary 889 (1979 ed.) The latter definition indicates that the transport of cargo by water between land sites (ports) is the core of the meaning. When deep harbors, channels, and turning basins occur naturally or are created and used by ships, there is little cause to dispute that a port exists. Here, there are no such natural or man-made features. The shoreline at the subject Property was not shown to differ from much of the shoreline along the St. Johns River.2/ As indicated above, a port is a transportation facility where waterborne goods are loaded and unloaded. A port is distinct from a “boatyard,” which is defined as “a yard where boats are built, repaired, and stored and often sold or rented.” Merriam-Webster’s On-Line Dictionary (2009) The remnant boat building facilities on the Property do not make a port. It is found that the Property was used intermittently in the past as a boatyard, but it was never a water port. Road Access to the Property The Property’s connection to the nearest public, paved road, is currently by easements over an unpaved drive. A 50- foot-wide easement extends north from the Property approximately 240 feet over an unpaved drive, then makes a 90-degree turn to the west along a 25-foot-wide, unpaved easement that runs about 325 feet to the beginning of a paved portion of the easement, then continues 545 feet further west to the publicly owned and paved Stokes Landing Road. Petitioners Conklin and Goodson own property and reside along the 25-foot easement. There are about a dozen other residences along the easements. There are many other residences along the public portion of Stokes Landing Road to its connection with U.S. 19. Petitioners attempted to show that Intervenor’s access to the Property from the public portion of Stokes Landing Road is legally insufficient because a small strip of land at the intersection of the 50-foot easement and the 25-foot easement is not included in the easements held by Intervenor. However, because Intervenor showed colorable easement rights over the entire private roadway, the Administrative Law Judge declined to take evidence on or determine the merits of the adverse real property claim. Stokes Landing Road is classified as a “local road” by Putnam County. It is not an arterial or collector road. Although the properties along the unpaved road have a mailing address of Stokes Landing Road, some of the official documents that describe or depict Stokes Landing Road do not include the private easement segments. It was estimated that the proposed boatyard would generate about 30 daily employee vehicle trips and one trip for pickup or delivery. Intervenor presented evidence that a truck with a wheel base of 50 feet (typical of a truck and semi-trailer) could make the 90-degree right turn from a 25-foot-wide roadway onto a 50-foot-wide roadway. However, to do so, the truck would have to use the left side of the 25-foot easement and the left side of the 50-foot easement (from the driver’s perspective). In other words, the truck would have to enter the lanes used by oncoming traffic. Internal Consistency Petitioners contend that the amendment is inconsistent with Policy A.1.9.3.A.6.d of the Future Land Use Element (FLUE) of the Comprehensive Plan. That policy states: Industrial Uses shall be located on sites that “use existing utilities or resources; utilize one or more transportation facilities such as air ports, water ports, collector roads, arterial roads, and railroads; do not require significant non- residential vehicular traffic to pass through established neighborhoods; and are sufficiently separated and/or buffered when necessary from residential and other urban uses to minimize adverse impacts of noise, glare, dust, smoke, odor or fumes. The Property is not located on a collector road or arterial road. It is not a water port. The amendment would require significant non- residential vehicular traffic to pass through an established neighborhood. The non-residential traffic is significant because it more than doubles the existing traffic in the most rural portion of Stokes Landing Road and would create an unsafe condition for every trip to and from the Property by a large truck. It is not sound planning to locate an industrial use on property that is served only by a narrow residential driveway. It is not sound planning to locate an industrial use on a road where access by large trucks will require that the trucks travel in the oncoming traffic lanes. The Property is not sufficiently separated or buffered from residential uses to minimize the adverse impacts of noise, glare, dust, smoke, odor, and fumes. Currently, there are vacant, wooded parcels adjacent to the Property, but the Intervenor has no control over these parcels and they will not always be vacant. The proposed industrial use is incompatible with the dominant pattern of development surrounding the Property, which is rural residential. Intervenor argues that the Agriculture II land use designation allows “intensive” agricultural land uses, such as slaughter houses, suggesting that the residents are already subject to the possibility of adverse impacts from noise, glare, dust, smoke, odor, and fumes. However, there are no intensive agricultural uses in the area and no evidence to suggest that such development is likely to occur in the future. The dominant land use is likely to remain rural residential. Petitioners contend that the amendment is inconsistent with Goal 1 of the FLUE, which is to maintain the quality of life by “establishing a pattern of development that is harmonious with the County’s natural environment and provides a desired lifestyle for County residents.” The proposed boat building and repair operation in this rural residential neighborhood would significantly degrade the desired lifestyle of the residents in the area. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.1.1.A.3., which prohibits land uses that generate, store, or dispose of hazardous waste in “areas of special flood hazard”. However, Policy A.1.1.1.A.2.b. expressly allows water-dependent components of a development to be located in areas of special flood hazard. When FLUE Objective A.1.1 and its accompanying policies are read in pari materia, they indicate that a water-dependent land use can be allowed in the floodplain as long as any generation, storage, or disposal of hazardous waste will occur outside of the floodplain. Petitioners did not show that the proposed boatyard cannot be operated in conformance with these policies. For similar reasons, Petitioners’ contention that the amendment is inconsistent with FLUE Policy A.1.1.E. is unpersuasive. That policy encourages the clustering of development away from flood-prone areas. However, in the case of water-dependent land uses, the water-dependent components of the land use must be located near the water. Petitioners contend that the amendment is inconsistent with FLUE Objective A.1.3 and FLUE Policy A.1.3.1, which encourage the elimination or reduction of non-conforming uses. Petitioners argue that past boat building and boat repair operations at the Property were non-conforming uses under the Agriculture II land use category and should be eliminated. Petitioners’ arguments are not persuasive because, if the amendment is approved, the boatyard uses would not be inconsistent with the FLUM. Furthermore, Petitioners showed that there is no existing, non-conforming use of the Property, so there is no non-conforming use that needs to be reduced or eliminated. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.3.2, which states: Adequate buffering and separation between land uses of different densities and intensities shall be provided in accordance with the Land Development Code to minimize compatibility issues. This policy directs that the Land Development Code (“Code”) shall establish buffering requirements to minimize incompatibility. Compatibility is also a comprehensive planning issue that can cause an amendment to be “not in compliance,” regardless of the buffering regulations contained in the Code, but this particular policy is only directed to the Code. Petitioners did not show that the Code does not contain buffering requirements. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.4.9, which requires a vegetated upland buffer for any waterfront development. The Petitioners’ evidence on this issue was insufficient to establish that the required buffer could not be provided. Furthermore, the policy directs the County to adopt regulations to establish the buffer requirements. Petitioners did not show that such regulations were not adopted by the County. Petitioners contend that the amendment is inconsistent with FLUE Policy A.1.6.1, which encourages infill within the designated urban service areas of the County. Water-dependent uses must be located where the water is located. Therefore, infill policies cannot be applied to water-dependent uses in the same manner as with other land uses. Although the availability of necessary urban services is still a relevant inquiry, Petitioners did not present evidence on this point. Consistency with Rule 9J-5 Petitioners contend that the amendment is inconsistent with Florida Administrative Code Rule 9J-5.003(23), which defines the term “compatibility”; Rule 9J-5.006(3)(b)3., which encourages the reduction or elimination of inconsistent uses; Rule 9J-5.006(3)(c)2., which requires that comprehensive plans provide for “compatibility of adjacent land uses”; and Rules 9J- 5.006(5)(h)6. and 8., which require that amendments be reviewed for compatibility and “functional relationship” with adjacent land uses. The term “compatibility” is defined in Florida Administrative Code Rule 9J-5.003(23) as: [A] condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. A definition is not a regulation that requires compliance. A definition simply shows the intended meaning for a term used in a regulation. Therefore, a comprehensive plan amendment cannot be inconsistent with a definition. Florida Administrative Code Rule 9J-5.006(3)(b)3. requires the future land use elements of comprehensive plans to contain one or more objectives that encourages the elimination or reduction of uses inconsistent with the community’s character and future land uses. This rule addresses existing non- conforming uses. The Property is no longer being used in a manner that is inconsistent with the community’s character. Therefore, there is no inconsistent use of the Property that needs to be reduced or eliminated. Florida Administrative Code Rule 9J-5.006(3)(c)2. requires the future land use element of a comprehensive plan to contain one or more policies that provide for compatibility of adjacent land uses. It was found, above, that the rural residential neighborhood adjacent to the Property would be negatively impacted by boat building and boat repair uses of the Property. The amendment is incompatible with the surrounding rural residential neighborhood. Florida Administrative Code Rules 9J-5.006(5)(h)6. and relate specifically to the analysis of whether an amendment fails to discourage the proliferation of urban sprawl. Because Petitioners did not raise urban sprawl as an issue, they cannot claim inconsistency with these rules. Petitioners contend that the amendment is inconsistent with Section 163.3177(8), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2), which require that an amendment be based on relevant and appropriate data and analysis. Petitioners believe that there is no demonstrated need for additional industrial uses in the County. Petitioners’ argument and evidence on the issue of need failed to take into account the water-dependent use that is proposed. Petitioners’ computations to show that there are substantial acres of unused industrial lands in the County fails to address the question of whether there is a need for additional water-dependent land uses.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administration Commission enter a Final Order determining that the amendment adopted by Putnam County through Ordinance 2009-23 is not in compliance. DONE AND ENTERED this 24th day of December, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2009.
The Issue The issue is whether Plan Amendment No. 04-4 adopted by Ordinance No. 647 on October 5, 2004, is in compliance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Intevernor owns a 31.4-acre tract of land in Martin County several miles southwest of Jupiter, east of Interstate 95 and the Florida Turnpike, and slightly more than one mile west of U.S. Highway 1. On the southern half of the property is an existing cemetery, Riverside Memorial Park, Inc. (the Cemetery), which has been in place since 1901 and is used for interments. The northern half of the land is completely undeveloped and contains native vegetation, including sand pine scrub and pine flatwoods. (If the land use change is approved, besides continuing in-ground burials and constructing mausoleum buildings on the vacant part of the land, Intervenor apparently intends to construct a funeral home. This intended use, and the possibility of others, has triggered the filing of the challenge by Petitioner.) The Cemetery is bordered on the east by a developed residential neighborhood, Tropic Vista; on the north by a platted but largely undeveloped residential area, Hyland Terrace, and the Jonathan Dickinson State Park (State Park); and on the south by Southeast County Road, which runs along the Martin County-Palm Beach County boundary line. Another residential neighborhood lies just south of that road in Palm Beach County. The County's existing Plan was adopted in 1990. Since that time, the Cemetery has been designated on the FLUM as Institutional, Public Conservation, which is defined in Section 4.4.M.1.h.(2) of the Future Land Use Element (FLUE) of the Plan as follows: The Public Conservation category recognizes those publicly owned areas designed for conservation uses. Only development compatible with conservation and passive recreation uses shall be permitted in the Public Conservation category. This may include access, parking, and other facilities which make possible the management of the resource and the public's enjoyment of the resources. Conservation areas include, but are not limited to, the DuPuis Preserve in south Martin County and the Savannas in north Martin County. Enviromentally sensitive lands acquired by the County shall be reclassified to the Institutional-Conservation land use designation during the next plan amendment cycle. The State Park and most of the platted residential property to the north of the Cemetery (e.g., Hyland Terrace) are currently designated Public Conservation on the FLUM. The remainder of the property to the north and the neighborhoods to the east and west of the property are designated Low Density Residential on the FLUM, which allows a maximum of five dwelling units per acre. The residential property to the south in Palm Beach County is also designated Low Density Residential under that County's future land use map. By application filed with the County in September 2003, Intervenor, who purchased the Cemetery in 1997, requested that the FLUM designation on the property be changed to General Institutional. That land use category is defined in Section 4.4.M.1.h.(3) of the FLUE as follows: The General Institutional category accommodates public and not-for-public facilities such as, but not limited to, schools, government buildings, civic centers, prisons, major stormwater facilities, fire and emergency operation center facilities, public cemeteries, hospitals, publicly owned public water and sewer systems, dredge spoil management sites, and airports. Investor owned regional public water and sewer systems and private cemeteries may be allowed in General Institutional. Lands acquired by the County for General Institutional uses shall be reclassified to the Institutional- General land use designation during the next plan amendment cycle. Lands or property rights acquired by the Florida Inland Navigation District as future dredge spoil management sites shall be reclassified to the Institutional-General land use designation during the next plan amendment cycle. (Emphasis added) Concurrently with this change, Intervenor also requested a zoning change on the parcel from Public Service to Public Service-2 (PS-2). However, the County denied that requested change in zoning. On February 19, 2004, the Local Planning Agency (LPA) voted 5-0 to recommend approval of Intervenor's request. On April 4, 2004, the County voted to accept the LPA's recommendation. On May 7, 2004, a transmittal package consisting of 13 amendments, including Plan Amendment No. 04- 4, was transmitted to the Department for its review. In an Objections, Recommendation, and Comments Report (ORC) issued on July 9, 2004, the Department had no objections to, or recommendations for, Plan Amendment No. 04-4 and made only the following brief comments regarding that amendment: The change would correct an inappropriate designation given the site previously and would allow the continued use of the site for cemetery use. Adjacent properties will be protected through buffering, landscaping, and screening requirements. The proposed change is being made to correct an inappropriate land use designation on a well-established existing land use. After receiving the ORC, and making changes to certain amendments (but not Plan Amendment No. 04-4) to satisfy the Department's concerns, in a report dated August 10, 2004, the County staff recommended to the County that the modified package of amendments be approved. As to Plan Amendment No. 04-4, the County staff noted that "[t]he requested land use amendment meets the criteria to correct an inappropriate land use designation." The County scheduled the package of amendments for consideration at a meeting in September 2004. Due to Hurricanes Frances and Jeanne, however, the matter was rescheduled to the following month. On October 5, 2004, by a 4-1 vote, the County enacted Ordinance No. 647, which adopted, among others, Plan Amendment No. 04-4. The revised package was then forwarded to the Department for its compliance review. The data and analyses presented by the County in support of the Plan Amendment included aerial photographs and detailed site maps; a review of past changes in future land use designations in the surrounding area; information about, and analysis of, environmental considerations including soils, wetlands, overall hydrology, plant and animal species, and impact on the adjoining State Park; a capital facilities impact analysis; a transportation analysis; a concurrency analysis, including impacts on public utilities, parks and recreation facilities, and fire and public safety facilities; an evaluation of the potential for contribution to urban sprawl; and an extensive review of compatibility with numerous goals, objectives, and policies of the Plan. Although Petitioner asserted at hearing that "the documentation of the applicant . . . [does not] support the purpose to correct an inappropriate land use designation," none of this data and analyses was factually contradicted by Petitioner. On November 29, 2004, the Department published its Notice in the Stuart News, a local newspaper of general circulation. On December 16, 2004, Petitioner, who resides in St. Lucie County and says she owns four plots within the Cemetery, filed her 19-page Petition raising a number of procedural and substantive allegations.2 At hearing, however, her testimony focused on the issues of whether Intervenor was required to secure the consent of all of the individual burial plot owners before it could file the application for a land use change; whether the plan amendment actually corrects an inappropriate land use designation, rather than being "a complex change from an actual passive land use of the historical cemetery"; whether the amendment comports with the requirements in Chapter 497, Florida Statutes, which governs funeral and cemetery services; and whether the proposed land use is compatible with the "passive" nature of the cemetery. Prior to the hearing, Petitioner did not assert that Intervenor was required to obtain the consent of all plot owners before filing its application with the County. Therefore, the issue has not been timely raised. Even it was, the issue is irrelevant to an in compliance determination, as defined in Section 163.3184(1)(b), Florida Statutes. That is to say, while ownership may bear on the issue of standing, it is not a consideration in determining whether a land use change is in compliance. Thus, the County (or even Intervenor for that matter) can initiate a change in land use, regardless of the ownership of the affected property. Likewise, issues regarding compliance with the requirements of Chapter 487, Florida Statutes, are not relevant here. Those matters should be raised with the agency responsible for administering funeral home and cemetery regulations. In the same vein, Petitioner's concern that the undeveloped portion of Intervenor's land may be used for a funeral home or another use allowed in the General Institutional category is not relevant to the issue of whether the amendment is in compliance. Compatibility concerns such as these can be addressed through relevant zoning and building code requirements and land development regulations. Finally, Petitioner has contended that the existing land use category, Institutional, Public Conservation, is appropriate for the Cemetery and that it is unnecessary to change that designation. To place this issue in proper perspective, it is necessary to go back to 1982, when the first County FLUM was adopted. At that time, there was only one institutional designation, which was assigned to all institutional property, both publicly and privately owned, including the Cemetery. When the 1990 Plan was adopted, however, the Department required that the County establish three categories of institutional property: Institutional General, Institutional Recreational, and Institutional, Public Conservation. Probably because the State Park, a County fire station, a missile tracking station, a mental health facility, and the Cemetery were all in the same area, through "oversight" the Public Conservation designation was inadvertently assigned to all of those parcels at that time, even though that designation was inappropriate for the privately-owned Cemetery. The existing designation, Institutional, Public Conservation, recognizes those "publicly owned areas designed for conservation uses." (Emphasis added) See § 4.4.M.1.h.(2). The category is specifically limited to "development compatible with conservation and passive recreation uses," such as "[e]nvironmentally sensitive lands." Id. One of its purposes is to protect natural areas, natural flora, and fauna. The new land use designation, General Institution, accommodates public and not-for-profit facilities, such as schools, government buildings, and civic centers. It also specifically includes private cemeteries. See § 4.4.M.1.h.(3). The Cemetery is not owned by any government or other public entity, but is entirely privately-owned, either by Intervenor, by a subsidiary corporate entity, or by the heirs to the deceased owners of individual cemetery plots. (Apparently, warranty deeds were given to purchasers of burial plots prior to 1985, and since that time, certificates of perpetual interment have been issued.) As such, the Cemetery appropriately falls within the General Institutional land use category. It is beyond fair debate that the land use Public Conservation land use is an inappropriate one for the Cemetery because the land use designation, by definition in the Plan, is intended only for "publicly owned areas designed for conservation uses." The Cemetery is neither publicly owned nor a conservation use of the land. It is beyond fair debate that the land use General Institutional is the only appropriate one for the Cemetery because that land use designation, by definition in the Plan, expressly provides that "private cemeteries may be allowed" in that category.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a final order determining that Plan Amendment No. 04-4 adopted by Ordinance No. 647 on October 5, 2004, is in compliance. DONE AND ENTERED this 23rd day of February, 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 23rd day of February, 2005.
The Issue The issue in this case is whether Ordinance 679-L of the City of St. Petersburg ("City"), which amended the Future Land Use Map (“FLUM”) of the City's Comprehensive Plan on certain property generally located at the northeast corner of 9th Avenue North and 66th Street North within the boundaries of the City (the "Subject Property") from Institutional to Residential Office Retail (R/O/R) land use on 2.98 acres, Residential Office General (R/OG) on 2.98 acres, and Residential Urban (RU) on 12.02 acres (the “Plan Amendment”), is "in compliance" as defined by Section 163.3184(1)(b), Florida Statutes,i notwithstanding Petitioners' contentions that the Plan Amendment is internally inconsistent and not based on data and analysis.
Findings Of Fact Parties Each Petitioner submitted oral and/or written comments, recommendations and/or objections to the City regarding the disputed land use amendments that are the subject of this case between the day of the transmittal hearing (July 18, 2006) and the day of the adoption hearing (February 15, 2007). Each individual Petitioner owns and/or resides on property within the boundaries of the City. The Eagle Crest Civic Association, Inc., f/k/a Eagle Crest Neighborhood Association, Inc., is a Florida not-for- profit corporation conducting business within the boundaries of the City. The Eagle Crest Civic Association, Inc., collects dues from membership, conducts monthly business and informational meetings at the St. Petersburg College Gibbs Campus Library in the City, and advocates interests on behalf of its membership before the St. Petersburg Council of Neighborhood Associations and various City and County governmental boards, commissions and councils. The Department is the state land planning agency that is statutorily charged with the duty of reviewing comprehensive plans and their amendments, and determining whether a plan or amendment is “in compliance,” as that term is defined in Section 163.3184(1)(b), Florida Statutes. The City is a municipality and political subdivision of the State of Florida and has adopted a comprehensive plan that it amends from time to time pursuant to Section 163.3167(1)(b), Florida Statutes. Sembler is a Florida corporation headquartered and conducting business in the City; by virtue of a contract for the purchase of the property that is the subject of this dispute, Sembler is an equitable owner of the property that is affected by the challenged FLUM Amendment in this case. Background The Subject Property has been owned by the Catholic Diocese of St. Petersburg since 1952. Notre Dame High School, a Catholic girls-only high school, was constructed on the Subject Property in the early 1960’s. In 1977, Notre Dame High School merged with Bishop Barry High School (a Catholic boys-only high school to the east of the Subject Property) and the improvements on the Subject Property were used for various Catholic diocesan offices and other administrative purposes. Notre Dame High School was eventually demolished, and the only improvements remaining on the Subject Property are a former field house used for storage purposes and a former convent used for a multi-purpose building. The Subject Property is otherwise currently completely vacant. Since 1977 the Subject Property has had a FLUM designation of Institutional. In January of 2006, Sembler applied to the City for a change in the FLUM designation on the Subject Property from Institutional to Commercial General for an approximately 13.25 acre portion of the Subject Property fronting predominately along the west side 66th Street North between 9th Avenue North and 13th Avenue North. On March 7, 2006, Sembler requested a deferral of its pending application to consider a modification of the development plan to less intensive commercial uses. The deferral was granted by the City Planning Commission. On March 29, 2006, Sembler submitted a new application, abandoning the prior request to change the FLUM designation for the approximately 13.25-acre portion from Institutional to Commercial General. The new application (March 29, 2006) by Sembler requested a change to the Future Land Use designation for an approximate 6.19-acre portion of the Subject Property from its existing Institutional designation to Residential Office Retail ("R/O/R"). This new application was assigned City File Number PC-700 (“PC-700”). The intention of the PC-700 application was to develop multifamily residential units on approximately 11.8 acres of the Subject Property and to develop neighborhood commercial uses on the approximate 6.19-acre portion of the Subject Property. The PC-700 application included a Development Agreement proposed by Sembler which, among other things, limited the actual commercial development of the 6.19 acre portion to 26,000 square feet of space, and required that a quarter, or 25 percent, of that space be developed under the zoning regulations for Residential Office General ("R/OG"), instead of R/O/R. On May 2, 2006, the City’s Planning Commission (the “LPA”) conducted a public hearing to consider the PC-700 Application, and voted 6-2 to recommend approval of the PC-700 application to the St. Petersburg City Council (the “City Council”). On July 18, 2006, the City Council conducted a public hearing for the First Reading of the PC-700 application, and unanimously adopted a resolution approving the transmittal of a proposed ordinance adopting PC-700 to the Department, among others, for review and comment pursuant to Chapter 163, Florida Statutes and Chapter 9J-5, Florida Administrative Code. On September 29, 2006, the Department published its Objections, Recommendations and Comments (“ORC”) Report on the Plan Amendment contained in PC-700. The Department raised no objections to the proposed Plan Amendment. Sometime between September 29, 2006, and December 14, 2006, Sembler modified its application PC-700. The modified application was intended to address some of the concerns raised by neighborhood associations representing citizens who owned property and resided in areas adjacent to the Subject Property. The modified PC-700 application requested a FLUM amendment for 2.98 acres of the Subject Property to be changed from Institutional to R/O/R, for 2.98 acres of the Subject Property to be changed from Institutional to R/OG, and for 12.02 acres of the Subject Property to be changed from Institutional to RU (“PC-700 Modified”). The PC- 700 Modified application also included a proposed Development Agreement which, among other things, limited the actual development of the R/O/R acreage to a maximum of 13,000 square feet, and limited the total combined development of the R/O/R and ROG acreage to 26,000 square feet. On December 14, 2006, the City Council conducted its First Reading of the PC-700 Modified application, approving the application and setting the Second Hearing for the application for February 15, 2006. On February 6, 2006, the Pinellas County Commission, meeting as the County Planning Authority (the “CPA”), held a public hearing to consider the PC-700 Modified application. The CPA approved the PC-700 Modified application. On February 15, 2007, the City Council conducted its Second Reading public hearing of the PC-700 Modified application and voted to adopt Ordinance 679-L, amending the FLUM designation of the Subject Property from Institutional to R/O/R on 2.98 acres, R/OG on 2.98 acres, and RU on 12.02 acres (the “Plan Amendment”). Petitioners do not challenge the FLUM amendment for the RU portion of the Subject Property. On February 23, 2007, the City transmitted the adopted Ordinance 679-L, together with staff reports from the December 14, 2006, and February 15, 2007, public hearings and certain other pertinent information, to the Department for its review pursuant to Chapter 163, Florida Statutes, and Chapter 9J-5, Florida Administrative Code. On April 16, 2007, the Department published in the St. Petersburg Times newspaper its NOI to find the City’s Plan Amendment “in compliance.” Petitioners' Challenge The Petitioners assert that the FLUM amendment adopted by the City in Ordinance 679-L is not “in compliance” pursuant to Section 163.3184(1)(b), Florida Statutes, because: (1) the FLUM amendment is not based on adequate data and analysis as required by Section 163.3177(8), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a) iii; and (2) the FLUM amendment is not internally consistent with specific objectives and policies of the City’s Plan as required by Section 163.3177(2), Florida Statutes, and Rule 9J-5.005(5)(a) and (b). The Petitioners’ challenge is centered on three specific objectives and policies contained in the Future Land Use Element ("FLUE") of the City’s Plan: Policy LU3.17, Objective LU4(2), and Objective LU18.iv The Petitioners assert that the challenged Plan Amendment is inconsistent with those objectives and policies and is not based on data and analysis. The Department and the Intervenors assert that those objectives and policies are not applicable, that the Plan Amendment is not inconsistent with those objectives and policies, and that the Plan Amendment is based on data and analysis. The Intervenors also assert that, even if the Plan Amendment were inconsistent with those objectives and policies, consistency with other goals, objectives, and policies in the plan should be "balanced" against the inconsistency and that the consistencies outweigh the inconsistencies, so that the Plan Amendment still would be "in compliance." The Petitioners and the Department do not subscribe to such a balancing of consistencies and inconsistencies, citing Dept. of Community Affairs v. Lee County and Leeward Yacht Club, LLC, AC-06-006, DOAH Case No. 06-0049GM, 2006 Fla. ENV LEXIS 158 (Admin. Comm'n Nov. 15, 2006). Pertinent City Comprehensive Plan Provisions The City's FLUE Policy LU3.17 states: The City has an adequate supply of commercial land use to meet existing and future needs. Future expansion of commercial uses shall be restricted to infilling into existing commercial areas and activity centers, except where a need can be clearly identified. The City's FLUE Objective LU4 states in pertinent part: The Future Land Use Plan and Map shall provide for the future land use needs identified in this Element: * * * Commercial – additional commercial acreage is not required to serve the future needs of St. Petersburg. An oversupply exists based upon the standard of 1 acre of commercial land for every 150 persons in the community. * * * 4. Mixed Use – developments are encouraged in appropriate locations to foster a land use pattern that results in fewer and shorter automobile trips and vibrant walkable communities. The City's FLUE Objective LU18 states: Commercial development along the City’s major corridors shall be limited to infilling and redevelopment of existing commercially designated frontages. Section 1.2.2 of the General Introduction to the City’s Plan describes the format of the elements of the Plan and includes the following pertinent sub-headings and language: 1.2.2.3 Goals, Objectives, and Policies The Goals, Objectives, and Policies have been developed in response to and in accordance with the needs and directions of growth and determined levels of service requirements as identified within the Inventory and Analysis which can be found in the accompanying 1989 Technical Support Documents [TSDs] and the 1996 Evaluation and Appraisal Report [EAR]. All objectives are designed to identify the measurable achievements necessary to support the related goal. In those cases, where the Objective is not specific and/or measurable, but rather, the actual specificity and measurability is found in the supporting policy(ies), the policy(ies) shall be used for the purposes of monitoring and evaluation. The policies are intended to act as implementation mechanisms identifying programs and procedures to be used to accomplish the related objective. This Comprehensive Plan is intended to be utilized as a document in its entirety. It shall hereby be established that no single goal, objective or policy or minor group of goals, objectives or policies, be interpreted in isolation of the entire plan. 1.2.2.5 Status and Use of the TSD and the EAR . . . . The 1989 TSD and the 1996 EAR are hereby referenced and established as the supporting data and analysis for this Comprehensive Plan. The TSD and the EAR may be used to assist in the interpretation of this comprehensive plan and to aid in the review of proposed changes to this plan. It should be updated as necessary to maintain the usability of the data and analysis as an interpretive and advisory aid. * * * 1.3.1.2 Competing Policies Where two or more policies are competing when applied to a particular set of factual circumstances, such conflict shall be resolved first by administrative interpretation of the Comprehensive plan policies. The objective of any such interpretation shall be to obtain a result which maximizes the degree of consistency between the proposed development or public sector activity and this Comprehensive Plan considered as a whole. The City’s Plan also includes the following pertinent definitions in Section 1.7: Commercial Uses - Activities within land areas which are predominately connected with the sale, rental, and distribution of products, or performance of services. * * * Mixed Use - A site that has a combination of different land uses, such as residential, office and retail. In addition, Policy LU3.1(B) of the City’s FLUE defines "Commercial and Mixed Use Categories" to include: Residential/Office General (R/OG) - allowing mixed use office, office park and medium density residential up to a floor area ratio of 0.5 and a net residential density of 15 dwelling units per acre. . . . Commercial General (CG) - allowing the full range of commercial uses including retail, office, and service uses up to a floor area ratio of 0.55. . . . Retail/Office/Residential (R/O/R) - allowing mixed use retail, office, service, and medium density residential uses generally up to a floor are ratio of 0.4 and a net residential density of 15 dwelling units per acre. . . . Finally, FLUE Policy LU3.1(D) defines "Public/Semi- Public Categories" to include: 2. Institutional (I) - Limited to designation of federal, state and local public buildings and grounds, cemeteries, hospitals, churches, and religious institutions and educational uses. Residential uses having a density not to exceed 12.5 dwelling units per acre, are also allowed. Residential equivalency uses are not to exceed 3 beds per dwelling unit. Non-residential uses permitted in the land development regulations are not to exceed a floor area ratio of 0.55. Consistency with Commercial Use Restrictions The Petitioners proved beyond fair debate that the Plan Amendment at issue increases "the supply of commercial land use to meet existing and future needs." FLUE Policy LU3.17. This is clear not only from the potential for commercial use in the mixed use R/O/R and R/OG future land use categories, but also from the City's inclusion of nine-tenths of the former's and one-tenth of the latter's acreage in the inventory of commercial land use for purposes of determining the "supply of commercial land use to meet existing and future needs" in FLUE Policy LU3.17 and the ratio described in FLUE Objective LU4.2. The question is whether the restrictions on commercial future land uses reflected in those Plan provisions apply to the mixed use categories of R/O/R and R/OG. Prior to adoption, the City's staff reports stated that the commercial restrictions do apply, and that the Plan Amendment at issue was inconsistent with those restrictions, but that the Plan Amendment was consistent with several other Plan provisions and "on balance, consistent with the goals, objectives and policies of the Comprehensive Plan." However, in this de novo proceeding, the staff reports are not controlling on the applicability of the commercial restrictions and the consistency of the FLUM amendments at issue with those restrictions. In the first place, in light of the contrary testimony of staff during the final hearing, the intent of staff in using the language in the reports is fairly debatable. Second, after the staff reports were prepared, significant testimony on need and demand for commercial land use at the particular location of the FLUM amendments at issue was presented during the final public hearing on the PC-700 Modified application on February 15, 2007, which could have changed staff's mind on at least some of the issues. Finally, the extent to which the City Council may have relied on the staff reports in determining that the Plan Amendment was "in compliance" is not clear from the evidence and is fairly debatable. The City now takes the position, along with the Department, that the restrictions on commercial future land use in FLUE Policy LU3.17 and Objective LU4.2 do not apply to R/O/R and R/OG because they are mixed use future land use categories, not commercial future land use categories. In support of this position, they point out that Objective LU4 treats "Mixed Use" and "Commercial" "future land use needs" differently and applies the restriction only to "Commercial" "future land use needs," while encouraging mixed use developments in appropriate locations. Several of the specific Plan provisions cited in the staff reports as being consistent with the Plan Amendment addressed the appropriateness of a mixed use development at the proposed location, including: FLUE Policy LU3.18, which states that "retail and office activities shall be located, designed and regulated so as to benefit from the access afforded by major streets without impairing the efficiency of operation of these streets or lowering the LOS [level of service] below adopted standards, and with proper facilities for pedestrian convenience and safety"; FLUE Policy LU3.4, which states that "[t]he Land Use Plan shall provide for compatible land use transition through an orderly land use arrangement, proper buffering, and the use of physical and natural separators"; FLUE Policy LU3.6, which states that "[l]and use planning decisions shall weigh heavily the established character of predominately developed areas where changes of use or intensity of development are contemplated"; FLUE Policy LU3.8, which seeks to "protect existing and future residential uses from incompatible uses, noise, traffic and other intrusions that detract from the long term desirability of an area through appropriate land development regulations"; and FLUE Policy LU3.5, which states that "[t]he tax base will be maintained and improved by encouraging the appropriate use of properties based on their locational characteristics and the goals, objectives and policies within this Comprehensive Plan." There also was considerable testimony at the hearing concerning the appropriateness of a mixed use development at the proposed location.v Petitioners also contend that the Plan Amendment is inconsistent with FLUE Objective LU18 concerning commercial development along major corridors. In favor of Petitioners' position, 66th Street North, where the Subject Property is located, is a major north-south corridor in the City. However, the Department and the Intervenors argue that the objective does not apply because the policies under it only specify 4th Street and Central Avenue and do not mention 66th Street. Taking all of the evidence and the City's Plan into consideration, including Sections 1.2.2.3, 1.2.2.5, and 1.3.1.2 of the General Introduction, it is found that Petitioners did not prove beyond fair debate that FLUE Policy LU3.17, Objective LU4.2, or Objective LU18 apply to the FLUM amendments at issue; even if those Plan provisions applied, Petitioners did not prove beyond fair debate that the FLUM amendments at issue do not constitute "infilling into existing commercial areas" or "infilling . . . of existing commercially designated frontages," or that "a need can[not] be clearly identified."vi All but one witness testified that, if those Plan provisions applied, the FLUM amendments would constitute commercial infill under the pertinent Plan provisions; the lone dissenter was using what he called a "narrow definition" of infill and agreed that the FLUM amendments would constitute commercial infill using the broader definition held by the majority view. There also was ample evidence that there was a clearly identified need for the FLUM amendments at issue, especially when considered along with the unchallenged RU FLUM amendment. Based on the foregoing findings on internal consistency, which is the context of Petitioners' data and analysis argument, Petitioners also did not prove beyond fair debate that the Plan Amendment was not based on data and analysis.
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 determining that the City's Ordinance 679- L is "in compliance." DONE AND ENTERED this 5th day of October, 2007, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2007.
The Issue The issue in this proceeding is whether Section 2.01.03M. as amended, of the Walton County Land Development Code is consistent with Policy L-1.1.1(B)(5), of the Walton County Comprehensive Plan.
Findings Of Fact The Walton County Comprehensive Plan was adopted on November 7, 1996. The Future Land Use Element (FLUE) of the Plan provides in pertinent part: Policy L-1.1.1: Development within the various land use categories depicted on the Future Land Use Map shall be governed by the following permitted uses and densities and intensities of use. These land use categories are grouped and identified below as (A) Land Use Categories Exclusive to North Walton County; (B) Land Use Categories Exclusive to South Walton County; and (c) Land Use Categories Common to Both North and South Walton County. * * * COASTAL CENTER (CC): This land use category is primarily residential, allowing medium densities and support uses . . . (a) Uses in the Coastal Center include: Public uses are squares, parks and playgrounds. Civic uses include libraries, post offices, churches, and similar facilities. Workplaces shall be limited to offices and artisanal uses. Commercial shall be for retail, entertainment, restaurant, services and lodging. Residential uses have a maximum density of eight (8) units per acre. The entire Land Development Code of Walton County was readopted on July 24, 1997, by Ordinance 97-28. At the time Petitioners initiated their challenge, Section 2.01.03M of the Land Development Code provided n pertinent part: Section 2.01.03M COASTAL CENTER (CC): The areas within this mixed use land use district are primarily residential, allowing medium density residential densities and supporting uses. . . Uses Allowed: The uses allowed in this district include: Public uses Civic uses Workplace, limited to offices and artisanal uses General Commercial Residential Multifamily Residential Residential Density Allowed: The maximum allowable density for residential development in this district is eight (8) units per acre (8 units/1 acre). Commercial Intensity Allowed: Commercial and industrial development within this district shall have a maximum floor area ration of 1.5 and an impervious surface ratio of .75. Section 2.01.04A of the Land Development Code provides in pertinent part: General Commercial - A wide variety of general commercial, commercial recreational, entertainment, and related activities is included in this group of uses: department stores; hospitals; hotels or motels; LP gas storage and distribution facilities below 1,000 gallons; marinas; miniature golf, driving ranges; outdoor arenas, rodeo grounds, livestock auction facilities, racetracks (auto, dog, go-cart, horse, motorcycle), shooting and firing ranges, and similar activities; miniwarehouses; plant nurseries; recreation vehicle and travel trailer parks; shopping centers; taverns, bars, lounges, nightclubs, and dance halls; theaters and auditoriums; vehicle sales, rental, service, and repair, including carwash facilities, and the sales, rental, repair and service of new or used automobiles, boats, buses, farm equipment, motorcycles, trucks, recreational vehicles, and mobile homes; veterinary offices and animal hospitals; mobile home parks; indoor recreational uses; all neighborhoods serving commercial/retail uses; mini storage; and inventory storage as part of a business. Petitioners reside at 139 North Holiday Road, Destin, Florida 32541 in Walton County, Florida, which is designated in the Coastal Center category on the Future Land Use Map of Walton County's Comprehensive Plan. In the County's Response to Petition I dated March 31, 1998, the County acknowledged that "industrial" land uses are not allowed within the Coastal Center category under the Comprehensive Plan, and that, therefore, this provision of the Land Development Code is inconsistent with the Comprehensive Plan. The County also responded that, "Retail, entertainment, restaurants, services, and lodging are general commercial uses." The Comprehensive Plan limits the commercial uses in the Coastal Center category to those uses. The County intended that any use listed in the Land Development Code under general commercial which is not retail, entertainment, restaurant, services, or lodging is not allowed in Coastal Center. On May 18, 1998, an informal hearing was conducted by the Department at the Walton County Courthouse Board Room. Each Petitioner and the County were provided opportunities to present written or oral evidence to the Department to aid it in reaching a determination about consistency. After the informal hearing the Department determined that Section 2.01.03M of the Code was inconsistent with the Walton County Comprehensive Plan. In its Determination of Inconsistency, the Department found that, because Section 2.01.03M.3. of the Code allows industrial uses in the Coastal Center, when such land uses are not permitted in the Coastal Center under the Comprehensive Plan, Section 2.01.03M.3 of the Land Development Code is inconsistent with Policy L-1.1.1(B)(5) of the Plan. The Department also found that because Section 2.01.03M, when read together with Section 2.01.04A of the Land Development Code, expands on the type of commercial uses permitted within the Coastal Center land use district under Policy L-1.1.1(B)(5) of the Comprehensive Plan, Section 2.01.03M of the Code is inconsistent with the Plan. On November 16, 1998, the County adopted the following amendments to its Land Development Code by Ordinance No. 98-21: Section 2.01.03M. COASTAL CENTER(CC): The areas within this mixed use land use district are primarily residential densities and supporting uses . . . Uses Allowed: The uses allowed in this district include: Public uses Civic uses Workplace, limited to offices and artisanal uses Commercial shall be for retail, entertainment, restaurant, services and lodging Residential Multifamily Residential Residential Density Allowed: The maximum allowable density for residential development in this district is eight units per acre (8 units/1 acre). Commercial Intensity Allowed: Commercial development within this district shall have a maximum floor area ration of 1.5 and an impervious surface ratio of .75. The amendment to Section 2.01.03M of Walton County's Land Development Code is virtually identical in language to the language of Policy L-1.1.(B)(5) of Walton County's Comprehensive Plan. Section 2.01.03M of the Land Development Code as amended clearly is consistent with the Walton County Comprehensive Plan.
