The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition for Establishment of the Split Pine Community Development District (Petition). The local public hearing was for the purpose of gathering information in anticipation of rulemaking by FLWAC.
Findings Of Fact Background Respondent, City of Daytona Beach (City), is a Florida municipal corporation subject to the land use planning requirements of Chapter 163, Florida Statutes. That chapter is administered by respondent, Department of Community Affairs (DCA). The City is responsible for the comprehensive planning for the entire municipality. Its most recent comprehensive plan (Plan) was adopted on May 16, 1990, and was found to be in compliance with the law in July 1991. On October 1, 1992, the City made application for what is known as the LPGA Plan Amendment (plan amendment). Generally, the plan amendment changes land uses and densities on approximately 4,000 acres of land within the City and adds various policies to the Plan. Public hearings on the plan amendment were held on October 22, 1992, April 21, 1993, and May 19, 1993. The plan amendment was adopted on June 2, 1993, and it was found to be "in compliance" by the DCA on July 26, 1993. Petitions challenging the plan amendment were filed in Case No. 93- 4863GM by petitioners, 1000 Friends of Florida and Robert Jenks. 1000 Friends of Florida is a non-profit tax-exempt corporation formed expressly for the purpose of overseeing implementation of Florida's growth management laws at all levels of government. Jenks is a property owner within the City and a member of 1000 Friends of Florida. A petition was also filed in Case No. 93-4864GM by petitioners, Adeline Jones, Marta Perez and Nelson Perez. Those individuals are adults residing within the City. Petitioners contended, among other issues, that the housing element of the plan, which has been revised by the amendment, would not assure the provision of adequate affordable housing within the City. Finally, a petition to intervene in support of the plan amendment has been filed in both cases by intervenors, Patricia Lagoni (Lagoni), as trustee, and Indigo Development, Inc. (Indigo). Lagoni is the trustee for two trusts that own approximately 4,600 acres of land within the City that are the subject of the plan amendment. Indigo is the developer of the trustee's property. The parties have stipulated that petitioners and intervenors are "affected persons" within the meaning of the law and have standing to participate in these proceedings. The Plan The plan is a twenty year long range planning document. It includes and applies to the entire City except for approximately 16,400 acres which has subsequently been annexed into the City limits since the adoption of the plan. The portions adopted by ordinance are goals, objectives, and policies; the Neighborhood Development Policies; Capital Improvement Element Implementation; Monitoring, Updating and Evaluation Procedures (Appendix); the Future Land Use Map Series; the Future Traffic Circulation Map; the Future Mass Transit Map; and the Future Aviation Facilities Map. Because a local government may choose not to adopt support documents such as data and analysis, the City did not adopt by ordinance the supporting data and analysis to the plan. The plan support documents include population projections through the year 2010. The population projections used in support of the plan are based on the 1980 U. S. Census. A census is an estimate of population at a particular time while a population projection is an analysis using estimates of past existing populations, such as a census, to predict future population. When the plan was prepared and adopted, the City was required to rely on the 1980 U. S. Census. At that time, the City's Evaluation and Appraisal Report (EAR) was due in 1995. Based on a 1993 change in the law, the EAR is now due in 1997. Under the Department's interpretation of the Act, which is found to be reasonable, a local government need not apply the 1990 U. S. Census until it submits its EAR. Therefore, between the adoption of the original plan and submittal of the EAR, a local government may amend its plan without having to base the amendment on a newly released U. S. Census. Such a comprehensive evaluation and updating of the plan and its data source is not required until the EAR is due because it would be a very exhaustive and expensive burden on local governments. The existing land use map is a support document of the plan. It generally depicts how land is used in various parts of the City at the time of transmittal of the proposed plan and includes six classifications: residential, vacant/undeveloped, commercial, industry, government and institution, and parks and recreation. On the other hand, a future land use map series is an adopted portion of the plan which generally depicts where the local government wants to have particular land uses by the end of its planning period. The future land use classifications include the following broad categories of land uses: residential, commercial, industry, government and institutional, parks and recreation, and miscellaneous. It is noted that the future land use map has no "vacant" classification since "vacant" is not an actual use which can be assigned a density or intensity and direct future development. The plan amendment Adoption and contents On October 1, 1992, Indigo made application for the plan amendment. Public hearings were held for the review and discussion of the amendment on October 22, 1992, and resolution number 92-460 was subsequently enacted by the City authorizing the proposed amendment to be forwarded to the DCA for review. After the amendment was submitted to the DCA, the agency conducted an in-house review of the amendment and thereafter issued its objections, recommendations and comments (ORC) on February 19, 1993. That document contains the DCA's objections and comments as well as more than twenty recommendations which address those concerns. A notice of intent was published by the DCA to advertise that fact. After considering the ORC, the City made various changes in its proposed plan amendment and issued its response to the ORC on March 24, 1993. Also, it conducted further public hearings on April 21 and May 19, 1993. On June 2, 1993, the City adopted plan amendment 93D2 by Ordinance No. 93-219. On July 8, 1993, the amendment was found by the East Central Florida Regional Planning Council (ECFRPC) to be consistent with its Comprehensive Regional Policy Plan. Finally, on July 26, 1993, the amendment was found by the DCA to be in compliance. The plan amendment (a) amends the future land use map to provide new classifications for approximately 4,000 acres within the City, (b) includes some textual changes to the future land use, conservation, coastal management, traffic, and housing elements, and (c) changes the future traffic circulation map in certain respects. The acreage in question is located mostly to the west of I-95 except for some portions east of I-95 where 11th Street crosses the Interstate. The property is intended to be developed by Indigo as a "world- class golf resort and accompanying planned community." Prior to the amendment, the predominant land use category on the property was Level 1 residential with some designation for government or institutional use and retail commercial. As originally proposed by the City, the amendment reduced Level 1 residential acreage, increased Level II residential acreage, and created new categories of passive park/buffer area, interchange commercial and mixed use. After the DCA issued its criticisms in the form of an ORC, the City revised its amendment by redistributing the future land uses and adding policies to the housing element. The land use changes include a 1,375 acre reduction in Level 1 residential (a single-family residential future land use category with 1 to 8 units per acre) caused by conversion of land to a golf course and dedication of 831 acres for conservation purposes, a 575 acre increase in Level 2 residential (a residential future land use category with 9 to 20 units per acre), and a 98 acre increase in Level 3 residential (a mixed residential/retail category with 21 to 40 residential units per acre), or a net effect of an overall increase in the residential land use density of approximately 4,300 units of higher density housing than that density which existed prior to the plan amendment. The plan amendment proposes a mixed use future land use category to allow a wide range of urban uses, including light industrial, office, tourist accommodations, retail and multi-family residential. In neighborhoods K, S, T and U, a minimum of 12 percent and a maximum of 30 percent of the total area designated as mixed use must be developed as residential with a minimum of 15 dwelling units per acre and a maximum of 25 dwelling units per acre. Increased density on the property from both the increased Levels 2 and 3 land use designations, as well as the mixed use residential requirements, provide opportunities that foster increased availability of affordable units. Housing element Every comprehensive plan must contain a housing element with goals which state the aspirations for where a community wants to be. Goal 1 of the housing element is "to assure the availability of sound and affordable housing for all current and future residents of Daytona Beach." This means that the City will assure the availability of housing for all segments of the population. The housing element must also contain specific objectives for each goal statement. In the original plan, the City adopted Objective 1.1 (on page 5.37 of the plan) entitled "New Construction." It was not revised by the amendment. That objective reads as follows: Assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995. The amendment adds seven policies to the housing element, all relating to affordable housing. In the context of a comprehensive plan, a policy is interpreted to mean the specific actions the local government will use to implement its objectives. Proposed policy 1.3.6 reads as follows: Policy 1.3.6 The City, through its land development regulations, shall establish a mechanism that permits density bonuses of at least 10 percent for projects that provide very low and low income housing units, provided that the increased density is consistent with all other goals, objectives and policies of this plan including, but not limited to, environmental and concurrency goals. Under this proposed policy, developers are encouraged to construct affordable housing through the offering of a financial incentive. The incentive, more commonly known as a density bonus, allows them to use a slightly higher density than they otherwise would have. This is a common approach in encouraging affordable housing, and while not an absolute guarantee, the policy does have the effect of encouraging additional affordable housing in the City. Proposed policy 1.3.7 reads as follows: Policy 1.3.7 The City will continue programs to maximize opportunities for private sector involvement in the formation of community-based non-profit organizations to actively participate in the provision of low and moderate income affordable housing. This policy simply reinforces the City's commitment in existing policy 1.3.2. to "continue to use its CDBG funds to provide seed money and technical assistance to non-profit corporations that construct housing for low and moderate income households including HUD 202 elderly housing and State/County housing finance agency bond-funded rental units." Proposed policy 1.3.8 provides as follows: Policy 1.3.8 The City Community Development Department will continue to support community-based non-profit organizations such as Habitat for Humanity in their efforts to provide adequate housing at a cost affordable to low-income residents by providing land that is acquired by the City. This policy reiterates the City's commitment in existing policy 1.3.2 and proposed policy 1.3.7 to supporting non-profit organizations which participate in providing affordable housing to low and moderate income households. Although the policy does not add any new assurances in providing affordable housing, it does not adversely affect the provision of affordable housing. No evidence was submitted to show that this policy is inconsistent with any requirements applicable to this proceeding. The next proposed policy is 1.3.9. It reads as follows: Policy 1.3.9 The City shall strive to participate in the State Housing Incentives Partnership Program as specified in the 1992 William Sadowski Affordable Housing Act. The City will follow its Local Housing Assistance Ordinance which establishes a local housing partnership, administrative responsibilities, and a local Housing Advisory Committee. This policy reflects a new affordable housing program which was enacted by the state subsequent to the plan's adoption. The more credible evidence reflects that the policy will have a positive impact on affordable housing. Proposed policy 1.3.10 provides that the City "will encourage the County to provide impact fee waiver programs for schools and transportation as an incentive for affordable housing." In Volusia County, impact fees are a significant cost of housing. Seventy percent of the impact fees applied in the City are County assessed. Under the proposed policy, the City is attempting to persuade the County to provide certain impact fee waivers for affordable housing. Proposed policy 1.3.11 reads as follows: Policy 1.3.11 By 1995, the City shall complete an assessment of affordable and special housing needs utilizing detailed housing data from the 1990 U. S. Census and an assessment of target areas and population segments representing priority affordable housing needs as a basis for establishing specific quantifiable near and long-term affordable housing programs. Results of the assessment shall be used to update the Comprehensive Plan's affordable housing policies. Although this policy will not have the direct effect of producing affordable housing, there is no evidence that the policy is inconsistent with any requirements at issue in this proceeding. Finally, the City has proposed a new policy 1.3.12, which reads as follows: Policy 1.3.12 The City will continue to be active in housing isues through the Community Development Department in the following ways: providing informational and technical asistance to the public on affordable housing programs, completing housing inventories and assessments, working to increase local utilization of state and federal funding programs, and coordinating with the Redevelopment Department. The City will annually update the Comprehensive Housing Affordability Strategy (CHAS) in compliance with U.S. HUD guidelines in conjunction with the State of Florida CHAS. This policy adds nothing new to the plan. It simply reiterates commitments expressed in other housing element policies. Again, no evidence was submitted to show that the policy is inconsistent with any other requirements at issue. As noted earlier, objective 1.1 is to "assist the private sector in providing 6,400 additional units of diversified (and thus affordable) housing types by 1995." The derivation of the 6,400 units is found on page 5.25 of the housing element of the plan. In general terms, the number of units was derived by taking the population of the City in 1980, updating that figure through 1987, and then projecting the number of households by income category in the year 1995. Of the 6,400 units, 2,601 are projected for the low and very low income household categories. Low income is defined as being 80 percent of the median income ($31,000) for Volusia County, or $24,800, while very low income is defined as being one-half of median income, or $15,500. Tables 5-20 and 5-21 of the data and analysis support this objective. Table 5-20 projects housing needs for the City by income category from 1987 to 1995. Table 5-21 projects housing need by income category for the years 1995 through 2000. The tables break the population into the following income categories: very low, low, moderate, middle, and upper and high. The data and analysis concludes that availability of land is not a concern with meeting the projected need for residential units through the year 2000. Rather, the principal concerns center around the current lack of federal and state subsidy programs for housing construction, and the fact that the City is already shouldering more than its regional fair share. As to this latter concern, the City now provides at least 75 percent of the public housing in Volusia County. The amendment, however, provides more opportunities for the new construction of affordable housing units. Also, the mixed use category and its location near retail and office uses and arterial roads will provide a greater diversified housing stock. Between the years 2000 and 2010, the City will need to annex additional acreage to accommodate the anticipated population growth for that period. Since the plan adoption, however, the City has annexed approximately 16,400 acres of land west of I-95 belonging to Indigo. The concept of "filtering" in relation to affordable housing is that when a new house is built, an existing household will move into that house and vacate a less expensive house. Filtering is discussed in the plan's data and analysis as a solution to providing the needed additional units for very low and low income households projected in Tables 5-20 and 5-21. The plan assumes that filtering is operative in the City, and the evidence shows that filtering does in fact operate as a source of affordable housing within the City. The City uses a large portion of its $1.2 million in federal community block grants in assisting low and very low income residents to rehabilitate existing substandard housing. The City also employs a down payment assistance program to aid in the filtering process. This program consists of homeowner education and grants to low and very low income individuals for down payments on the purchase of an existing home, thereby enabling the individual to qualify for and successfully purchase existing housing stock. The program has not had any difficulty in finding housing stock for purchase by its clients. Finally, the City recently obtained an additional $1 million award of federal Housing Opportunities for People Everywhere (HOPE) funds for use in its rehabilitation and down payment assistance programs. While it is not possible to identify the location of future affordable housing on the future land use map, local government can create favorable conditions for affordable housing on the map by utilizing densities and locations. Here, the City has done so. The data and analysis reveal increased minimum floor densities to 15 units per acre minimum and a 25 units per acre maximum of multi-family housing and the location of land uses adjacent to arterial roads of 11th Street and the municipal stadium. They also reveal that the nature of mixed use categories with increased densities could result in three-story, more affordable apartment complexes. Finally, the amendment provides an additional forty-four acres of Level III residential in the area parallel to Williamson Boulevard, south of 11th Street, and increases sites at higher residential densities, and thus increases opportunities for affordable housing. Therefore, it is found that the plan amendment does not preclude the devevopment of affordable housing. b. Data and analysis used in the amendment All elements of a comprehensive plan must be based on "appropriate data." According to Rule 9J-5.005(2)(c), Florida Administrative Code, that data must be taken from existing data sources and should be the "best available existing data." As to population data, Rule 9J-5.005(2)(e), Florida Administrative Code, requires comprehensive plans to be based on resident and seasonal population estimates and projections provided by the University of Florida, Bureau of Economic and Business Research, the Executive Office of the Governor, or generated by the local government. Finally, where data are relevant to several elements, Rule 9J-5.005(5), Florida Administrative Code, requires that "the same data shall be used, including population estimates and projections." The City has adhered to each of these requirements, and it is found that the plan amendment is based on the best available data and analysis. Population projection information is used in several plan elements. If the 1990 Census was used to support one element, as petitioners suggest it should have been, that same census must be used to support the other elements. Stated another way, the chosen population estimates and projections must be used consistently throughout the entire plan. Relying on different censuses in different elements would render the plan internally inconsistent. Contrary to petitioners' assertion, there is no specific requirement that a local government update its population estimates and projections each time it amends its plan. Such a requirement would impose an unreasonable burden on local governments without advancing any of the purposes of the Act. Petitioners failed to present any compelling reason that the 1990 Census should be the underlying basis for plan amendments before the EARs are due. The fact that the 1990 Census was available in its raw form in the fall of 1991 is not persuasive to overcome the specific requirements of Rule 9J-5.005(2)(c), Florida Administrative Code, as to the approved sources of population estimates and projections. Therefore, it is found that the City was not required to use the 1990 Census in support of its amendment. The LPGA property is located within Zone C, one of three zones designated in the future land use element. Of the 3,995 available vacant developable residential acreage, 2,740 acres were originally allocated to Zone C within the City. Under the plan amendment, the available residential land in Zone C has been reduced to 1,313 acres. The reduction of residential land by the amendment reduces the overall residential developable acres to 2,838. The City's total residential acreage need is 2,144 acres. Of that 2,144 acres, approximately 876 acres are required for very low and low income housing. The data indicates that an additional 694 excess acres are available to accommodate affordable housing needs within the City. When added to the 876 acres previously required for very low and low income housing, a total of 1,570 acres are available to accommodate the very low and low income affordable housing needs within the City. The data and analysis also indicate that a ratio of 1.8 or 180 percent of the need for affordable housing acreage is being met by the City. The more land that is made available by the City increases the opportunity for market forces to work to provide housing. The ratio of 1.8 is further increased by the recent annexation of the Indigo property of approximately 16,400 acres. Not including the recently annexed property, 46 percent of the total vacant residential acreage in the City is in the LPGA property. The LPGA Development of Regional Impact Intervenors' property which is the subject of this amendment is intended to be the future headquarters site of the Ladies Professional Golf Association (LPGA). If completed as originally planned, it will be the size of the neighboring municipality of Holly Hill. The development is a public-private joint venture between the City and intervenors, and the City and State have pledged $23 million of public money for the project. In conjunction with the project, a development of regional impact (DRI) development order was adopted by the City on August 18, 1993. Petitioners did not appeal that order. A DRI is a development order issued by a local government. It pertains to approval for a specific type of development requested by a developer for a particular site. In contrast, a comprehensive plan is a different type of document altogether which considers long range planning for an entire jurisdiction, taking into account the cumulative effect of many developments. DRIs are subject to the requirements of Chapter 380, Florida Statutes. One of the requirements for a DRI is that it be consistent with the requirements of the local government's comprehensive plan, a determination that is separate and apart from that undertaken here. Conversely, comprehensive plans and amendments must comply with Subsection 163.3184(1)(b), Florida Statutes, which defines "in compliance" as being consistent with Sections 163.3177, 163.3178, and 163.3191, Florida Statutes, the state comprehensive plan, regional policy plan, and Chapter 9J-5, Florida Administrative Code. A plan amendment does not have to be consistent with chapter 380 to be "in compliance." A DRI development order does not guarantee that the site will be developed or developed as approved. For example, the development order may be amended through the substantial deviation process to allow for different types of development or increased development over certain thresholds. Then, too, a developer may add up to ten percent more residential units without going through the substantial deviation process. Finally, a development order may expire during the planning period without finishing or even beginning construction. In reviewing a plan amendment, the whole range of development possibilities must be evaluated regardless of any development order issued for the affected land. What a DRI development order, or any other development order, allows to be constructed on a parcel of land which is the subject of a plan amendment is therefore irrelevant for amendment review purposes. Applications for DRI approval are prepared and submitted to the DCA by the developer. These applications are submitted in response to a set of criteria that differ from those applicable to a plan amendment. It is true, of course, that some information provided by a developer in support of a DRI request may be relevant to the review of a plan amendment. Here, however, the information regarding income range of employees and price range of housing anticipated to be constructed on the project site is speculative and should not guide the scope of review for a long range planning document. Indeed, it was not credibly shown how this information applies to the plan or any requirements in this proceeding. Therefore, petitioners' reliance on various projections used in the DRI application for incremental development approval and other DRI documents is misplaced and not relevant to this action. The amendment's internal and external consistency Rule 9J-5.005(5), Florida Administrative Code, requires comprehensive plan elements to be consistent with each other. The same rule requires the future land use map to reflect the goals, objective and policies within all elements of a plan. When amending a plan, consistency is maintained by using data consistently throughout the plan. In order to be internally consistent, the City was required to use 1980 census data for the plan amendment, as it did here. By adding policies to the housing element, the City has assisted with the implementation of objective 1.1 of the housing element. By changing the land use designations on the future land use map, the City has effectively increased the opportunity for higher density housing. Finally, the plan amendment's changes to the future land use element are consistent with and further objective 1.1 of the housing element. Accordingly, the plan amendment is found to be internally inconsistent. The state comprehensive plan is found in Chapter 187, Florida Statutes. The appropriate regional policy plan in this case is the East Central Florida Comprehensive Regional Policy Plan. The DCA does not interpret Subsection 163.3177(10(a), Florida Statutes, as requiring a plan or amendment to be consistent with every policy in the state or regional plans. If an inconsistency with an individual policy exists, that policy is not viewed in isolation but rather is considered in the context of the complete state or regional plan. While an amendment may frustrate the achievement of a policy in the state or regional plan, it may further the local government's pursuit of another policy, thus rendering the amendment to be consistent with the state or regional plan construed as a whole. Petitioners allege that the amendment is inconsistent with state plan goals 5, 8, 10 and 16 and with regional policy plan issues 19, 37, 43, 44 and In the joint prehearing stipulation, they also make reference to regional policies 19.1(1), 19.2 and 19.3(4) and state plan provisions found in Subsections 187.201(5)(a), (b)1. and (b)3., Florida Statutes. They did not, however, present any evidence describing how the plan amendment is inconsistent with the foregoing goals, issues or statutes. To the contrary, the more credible and persuasive evidence supports a finding that the amendment is consistent with both the state and regional plans. Therefore, the plan amendment is in compliance. Attorney's fees Intervenors, but not the DCA or City, have requested sanctions on the theory that the petition initiating Case No. 93-4863GM was filed for an improper purpose within the meaning of Subsections 120.57(1)(b)5., 120.59(6)(a), and 163.3184(12), Florida Statutes. The request is grounded principally on the notion that because the initial petition of 1000 Friends of Florida and Robert Jenks contains allegations pertaining to environmental issues, and no proof was submitted at final hearing as to those claims, the undersigned should draw an inference that the petition was filed for an improper purpose. Having cosidered the totality of the record, the undersigned concludes that insufficient evidence exists to make such an inference. Similarly, there is an insufficient record basis to find that petitioners raised the issue of affordable housing merely to cause unnecessary delay, or that 1000 Friends of Florida's conduct as a whole constitutes "economic harrassment." Therefore, the request for sanctions is denied.
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 finding the City's plan amendment to be in compliance with the law. DONE AND ENTERED this 17th day of May, 1994, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May 1994. APPENDIX Petitioners: Although the undersigned has considered petitioners' joint proposed order in the preparation of this recommended order, he has not made specific rulings on proposed findings of fact since the proposed order was untimely and it violated Rule 60Q-2.031(3), Florida Administrative Code. Respondents: 1. Partially accepted in finding of fact 3. 2-3. Partially accepted in finding of fact 1. Partially accepted in finding of fact 3. Partially accepted in findings of fact 1 and 4. Partially accepted in finding of fact 5. 7-8. Partially accepted in finding of fact 6. 9. Partially accepted in finding of fact 5. 10-11. Rejected as being unnecessary. 12. Partially accepted in findings of fact 4 and 29. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 29. 17-18. Partially accepted in finding of fact 31. 19. Partially accepted in finding of fact 30. 20-21. Partially accepted in finding of fact 31. 22. Partially accepted in findings of fact 8 and 9. 23. Partially accepted in finding of fact 9. 24-25. Partially accepted in finding of fact 10. 26. Partially accepted in finding of fact 11. 27-29. Partially accepted in finding of fact 14. 30-31. Partially accepted in finding of fact 17. 32-33. Partially accepted in finding of fact 18. 34-35. Partially accepted in finding of fact 19. 36-37. Partially accepted in finding of fact 20. 38-39. Partially accepted in finding of fact 21. 40-41. Partially accepted in finding of fact 22. 42. Partially accepted in finding of fact 15. 43.-45. Partially accepted in finding of fact 24. 46-47. Partially accepted in finding of fact 26. 48. Partially accepted in finding of fact 27. 49. Partially accepted in finding of fact 35. 50-51. Partially accepted in finding of fact 36. 52. Partially accepted in finding of fact 37. 53. Partially accepted in finding of fact 38. 54-56. Partially accepted in finding of fact 39. 57. Rejected as being unnecessary. 58-59. Partially accepted in finding of fact 43. 60-61. Partially accepted in finding of fact 44. Intervenors: 1-2. Partially accepted in finding of fact 1. 3-7. Partially accepted in finding of fact 3. Covered in preliminary statement. Partially accepted in finding of fact 1. Rejected as being unnecessary. 11-13. Partially accepted in finding of fact 4. 14-15. Partially accepted in finding of fact 5. 16. Rejected as being unnecessary. 17. Partially accepted in finding of fact 6. 18-21. Partially accepted in finding of fact 32. 22-25. Partially accepted in finding of fact 25. 26. Partially accepted in finding of fact 14. 27. Partially accepted in finding of fact 21. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 25. 30. Partially accepted in finding of fact 26. 31-32. Rejected as being unnecessary. 33. Partially accepted in finding of fact 34. 34. Partially accepted in finding of fact 27. 35. Rejected as being unnecessary. 36. Partially accepted in finding of fact 7. 37. Rejected as being unnecessary. 38-41. Partially accepted in finding of fact 8. 42-43. Partially accepted in finding of fact 9. 44. Partially accepted in finding of fact 10. 45-49. Partially accepted in finding of fact 11. 50. Partially accepted in finding of fact 12. 51. Partially accepted in finding of fact 13. 52. Partially accepted in finding of fact 29. 53-56. Partially accepted in finding of fact 32. 57. Rejected as being unnecessary. 58-60. Partially accepted in finding of fact 32. 61-64. Partially accepted in finding of fact 33. 65. Partially accepted in finding of fact 11. 66-67. Partially accepted in finding of fact 6. 68. Rejected as being unnecessary. 69-70. Partially accepted in finding of fact 6. 71-77. Partially accepted in finding of fact 28. 78-81. Rejected as being unnecessary. 82-89. Partially accepted in findings of fact 34-39. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 15. Partially accepted in finding of fact 16. Partially accepted in finding of fact 14. Rejected as being unnecessary. Partially accepted in finding of fact 25. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 24. 100-104. Partially accepted in findings of fact 40-44. 105-106. Partially accepted in finding of fact 5. 107-119. Partially accepted in findings of fact 40-44. 120-160. Rejected. See finding of fact 45. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, not supported by the evidence, subordinate, unnecessary to a resolution of the issues, or a conclusion of law. COPIES FURNISHED: Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Dan R. Stengle, Esquire General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Karen A. Brodeen, Esquire 2740 Centerview Drive Tallahassee, Florida 32399-2100 Richard J. Grosso, Esquire Post Office Box 5948 Tallahassee, Florida 32314 Paola G. Annino, Esquire 308 South Martin Luther King Drive Daytona Beach, Floirda 32014-4872 Frank B. Gummey, III, Esquire Marie S. Hartman, Esquire Post Office Box 2451 Daytona Beach, Florida 32115-2451 James F. Page, Jr., Esquire Thomas A. Cloud, Esquire Michele P. Scarritt, Esquire Post Office Box 2068 Orlando, Florida 32802-3068 Jonathan W. Hewett, Esquire 216 South 6th Street Palatka, Florida 32177-4608 Robert F. Apgar, Esquire Post Office Box 10809 Daytona Beach, Florida 32120
The Issue At "issue" in this hearing was the Petition for Rulemaking to Establish a Uniform Community Development District, dated October 10, 2002 (Petition). The Petition, filed by Beach Road Development Company L.L.C., requested that the Florida Land and Water Adjudicatory Commission (FLWAC) adopt a rule to establish a state-chartered uniform community development district, to be called the Cocohatchee Community Development District, on certain property in Lee County, Florida. The hearing was for purposes of gathering information in anticipation of quasi- legislative rulemaking by FLWAC.
Conclusions On July 27, 2011, an Administrative Law Judge (“ALJ”) of the Division of Administrative Hearings entered an Order Closing File And Relinquishing Jurisdiction to the Department.
Other Judicial Opinions OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. Final Order No. DCA11-GM-168 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished to the persons listed below in the manner described, on this é day of August 2011. Paula Ford, Agency Clerk a DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 By U.S. Mail: K. Richard Blount, RN, AICP David C. Schwartz, Esq. Post Office Box 14642 Alachua County Attorney’s Office Gainesville, FL 32604 Post Office Box 2877 Gainesville, FL 32602-2877 By Filing with DOAH: The Honorable Bram D. E. Canter Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Arborwood Community Development District (Petition), dated November 17, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issues in these cases are whether two community development district petitions should be granted: the first, a Petition to Contract Lakewood Ranch Community Development District 2; and the second, a Petition to Establish Rule [sic] for Lakewood Ranch Community Development District 5.
Conclusions Under Section 190.003(6), Florida Statutes (2000), a "community development district" (CDD) is "a local unit of special-purpose government which is created pursuant to this act and limited to the performance of those specialized functions authorized by this act; the boundaries of which are contained wholly within a single county; the governing head of which is a body created, organized, and constituted and authorized to function specifically as prescribed in this act for the delivery of urban community development services; and the formation, powers, governing body, operation, duration, accountability, requirements for disclosure, and termination of which are as required by general law." (All of the following statutory citations are to the year 2000 codification of the Florida Statutes.) Sections 190.006 through 190.046 constitute the uniform general law charter of all CDDs, which can be amended only by the Florida Legislature. Section 190.011 enumerates the general powers of CDDs. These powers include the power of eminent domain inside the district and, with the approval of the governing body of the applicable county or municipality, outside the district for purposes related solely to water, sewer, district roads, and water management. Section 190.012 lists special powers of CDDs. Subject to the regulatory power of all applicable government agencies, CDDs may plan, finance, acquire, construct, enlarge, operate, and maintain systems, facilities, and basic infrastructures for: water management; water supply, sewer, and wastewater management; needed bridges and culverts; CDD roads meeting minimum county specifications, street lights, and certain mass transit facilities; investigation and remediation costs associated with cleanup of environmental contamination; conservation, mitigation, and wildlife habitat areas; and certain projects within or without the CDD pursuant to development orders from local governments. After obtaining the consent of the applicable local government, a CDD may have the same powers with respect to the following "additional" systems and facilities: parks and recreation; fire prevention; school buildings; security; mosquito control; and waste collection and disposal. Section 190.046(1) provides for the filing of a petition for contraction of a CDD. Under paragraphs (f) and (g) of Section 190.046(1), petitions to contract a CDD by more than 250 acres "shall be considered petitions to establish a new district and shall follow all of the procedures specified in s. 190.005." Section 190.005(1)(a) requires that the petition to establish a CDD be filed with FLAWAC and submitted to the County. The petition must describe by metes and bounds the proposed area to be serviced by the CDD with a specific description of real property to be excluded from the district. The petition must set forth that the petitioner has the written consent of the owners of all of the proposed real property in the CDD, or has control by "deed, trust agreement, contract or option" of all of the proposed real property. The petition must designate the five initial members of the Board of Supervisors of the CDD and the district’s name. The petition must contain a map showing current major trunk water mains and sewer interceptors and outfalls, if any. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires that the petition propose a timetable for construction and an estimate of construction costs. The petition must designate future general distribution, location, and extent of public and private uses of land in the future land-use element of the appropriate local government. The petition must also contain a Statement of Estimated Regulatory Cost. Both the petition to contract District 2 and the petition to establish District 5 meet those requirements. Section 190.005(1)(a) also requires the petitioner to provide a copy of the local government’s growth management plan (the local government comprehensive plan). District 2 and SMR have done so. Section 190.005(1)(b) requires that the petitioner pay a filing fee of $15,000 to the county and to each municipality whose boundaries are within or contiguous to the CDD. The petitioner must serve a copy of the petition on those local governments, as well. District 2 and SMR have met those requirements. Section 190.005(1)(c) permits the county and each municipality described in the preceding paragraph to conduct an optional public hearing on the petition. Such local governments may then present resolutions to FLAWAC as to the proposed property for the CDD. Manatee County has exercised this option and has adopted a resolution in support of the contraction of District 2 and establishment of District 5. Section 190.005(1)(d) requires a DOAH ALJ to conduct a local public hearing pursuant to Chapter 120, Florida Statutes. The hearing "shall include oral and written comments on the petition pertinent to the factors specified in paragraph (e)." Section 190.005(1)(d) specifies that the petitioner must publish notice of the local public hearing once a week for the four successive weeks immediately prior to the hearing. District 2 and SMR have met those requirements. Under Section 190.005(1)(e), FLAWAC must consider the following factors in determining whether to grant or deny a petition for the establishment of a CDD: Whether all statements contained within the petition have been found to be true and correct. Whether the establishment of the district is inconsistent with any applicable element or portion of the state comprehensive plan or of the effective local government comprehensive plan. Whether the area of land within the proposed district is of sufficient size, is sufficiently compact, and is sufficiently contiguous to be developable as one functional interrelated community. Whether the district is the best alternative available for delivering community development services and facilities to the area that will be served by the district. Whether the community development services and facilities will be incompatible with the capacity and uses of existing local and regional community development services and facilities. Whether the area that will be served by the district is amenable to separate special-district government. Factor 1 Some statements in the original petition to contract District 2 were not true and correct and had to be revised. As revised, all statements in the petition were shown by the evidence to be true and correct. All statements in the petition to establish District 5 were shown by the evidence to be true and correct. There was no evidence to the contrary. Factor 2 In these cases, the evidence was that the proposed contraction of District 2 and establishment of District 5 are not inconsistent with any applicable element or portion of the state comprehensive plan or of the local government comprehensive plan. There was no evidence to the contrary. (A different and more detailed review is required to determine that future development within the proposed CDDs will be consistent with all applicable laws and local ordinances and the Manatee County Comprehensive Plan. Establishment of a CDD does not constitute and should not be construed as a development order or any other kind of approval of the development anticipated in the CDD. Such determinations are made in other proceedings.) Factor 3 In these cases, the evidence was that the areas of land within District 2, as proposed to be contracted, and within proposed District 5 are of sufficient size, are sufficiently compact, and are sufficiently contiguous for each proposed CDD to be developable as a functional, interrelated community. There was no evidence to the contrary. Factor 4 In these cases, the evidence was that District 2, as proposed to be contracted, and proposed District 5 are the best alternatives available for delivering community development services and facilities to the areas that will be served by those two proposed CDDs. There was no evidence to the contrary. Factor 5 In these cases, the evidence was that the proposed community development services and facilities will not be incompatible with the capacity and uses of existing local and regional community development services and facilities. There was no evidence to the contrary. Factor 6 In these cases, the evidence was that the areas to be served by District 2, as proposed to be contracted, and proposed District 5 are amenable to separate special-district government. There was no evidence to the contrary. REPORT AND CONCLUSIONS SUBMITTED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 2001. COPIES FURNISHED: Erin McCormick Larrinaga, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 1438 Tampa, Florida 33601-1438 Jose Luis Rodriguez, Esquire Governor's Legal Office The Capital, Room 209 Tallahassee, Florida 32399-0001 Donna Arduin, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor 2105 The Capitol Tallahassee, Florida 32399 Barbara Leighty, Clerk Growth Management and Strategic Planning The Capitol, Suite 2105 Tallahassee, Florida 32399 Charles Canaday, General Counsel Office of the Governor Department of Legal Affairs The Capitol, Suite 209 Tallahassee, Florida 32399-0001
The Issue The issue in this case is whether the Florida Land and Water Adjudicatory Commission should promulgate a rule establishing the Fiddler's Creek Community Development District.
The Issue The issue in this case is whether the amendment to the Lee County Comprehensive Plan adopted by Ordinance No. 05-20 is "in compliance," as that term is defined in Section 163.3184(1)(b), Florida Statutes (2005),1 for the reasons set forth in the Petition for Formal Administrative Hearing and Statement of Intent filed by the Department of Community Affairs ("the Department").
Findings Of Fact The Parties The Department is the state land planning agency and 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. Lee County is a 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. Leeward is a Florida limited liability company that owns a portion of the real property that is the subject of the amendment at issue. The Amendment The amendment would change the future land use designation for 41.28 acres in the northeast quadrant of the Interstate 75 (I-75)/State Road 80 (SR 80) interchange from General Commercial Interchange to Urban Community, as shown on the FLUM. The General Commercial Interchange land use is described in the County Plan as “intended primarily for general community commercial land uses: retail, planned commercial districts, shopping, office, financial, and business.” It does not allow residential development. The Urban Community land use provides for a mix of residential, commercial, public, quasi-public, and limited light industrial uses. The standard density range for residential uses in the Urban Community category is one to six dwelling units per acre (du/a). The 41.28 acres affected by the amendment ("the amendment site") consist of 19.28 acres of lands along the Orange River owned by Leeward, a platted subdivision known as Dos Rios of approximately 11 acres, and the remaining acreage consists of right-of-way for SR 80 and I-75. Currently operating on Leeward's property is a vessel repair facility, a marina with wet and dry slips, and an ecotourism company. Leeward also has its office on the site. The Dos Rios subdivision includes 26 single-family lots. Apparently, only a few of the lots (the number was not established in the record) have been developed. Because residential land uses are not allowed in the General Commercial Interchange category, the Dos Rios lots were non-conforming uses. Maximum Allowed Density The County Plan provides residential density bonuses to promote various County objectives, such as the provision of affordable housing. With density bonuses, lands designated Urban Community can boost their density to a maximum of ten du/a. There was testimony presented by Leeward that the County has not often approved applications for density bonuses. Even if the practice of the County in approving density bonuses were relevant, the practice can change. It is reasonable for the Department to consider the maximum intensity or density associated with a future land use designation when determining whether a FLUM amendment is in compliance. Therefore, in this case, it is reasonable to consider the Urban Community land use designation as allowing up to ten du/a. The Department asserts that the amendment would allow the 41.2 acres affected by the amendment to have a total of 412 dwelling units (41.2 acres x 10 du/a). Leeward disputed that figure because the 41.2 acres includes road right-of-way and the Dos Rios subdivision. A hearing officer appointed to review a Lee County development order recently determined that right-of-way external to a development should not be included in calculating allowable units, and the County accepted the hearing officer's recommendation based on that determination. The definition of "density" in the County Plan supports the determination.2 Therefore, for the purposes of this case, the right-of-way in the northeast quadrant should not be included in calculating the maximum residential density that would result from the amendment. On the other hand, Leeward's argument that the Dos Rios subdivision acreage should not be included in the ten du/a calculation is rejected. For the purposes of an "in compliance" determination, it is reasonable for the Department to apply the maximum potential densities to all developable and re- developable acreage. Using 29 acres as the approximate acreage affected by the amendment when road right-of-way is subtracted, the amendment would create the potential for 290 residences in the northeast quadrant of the interchange. Adoption of the Amendment The amendment was initiated as part of the County's reexamination of the existing land use designations in the four quadrants of the I-75/SR 80 interchange. Following the County planning staff's completion of a study of the entire interchange, it recommended several changes to the County Plan, but no change was recommended for the northeast quadrant. Apparently, the amendment at issue was urged by Leeward, and, at a public hearing held on June 1, 2005, the Board of County Commissioners voted to adopt the amendment. Pursuant to Section 163.3184(6), Florida Statutes, the proposed amendment was forwarded to the Department for an "in compliance" review. Following its review, the Department issued its ORC Report on August 19, 2005. In the ORC Report, the Department objected to the proposed amendment based upon what it considered to be inappropriate residential densities in the coastal high hazard area (CHHA) and floodplain. The Department recommended that the County not adopt the proposed amendment. On October 12, 2005, another public hearing was held before the Board of County Commissioners to consider adoption of the amendment. At the public hearing, the County planning staff recommended that the land use designation in the northeast quadrant not be changed to Urban Community "due to the potential increase in density in the Coastal High Hazard Area." Nevertheless, the Board of County Commissioners approved the amendment. Representatives of Leeward appeared and submitted comments in support of the amendment at the public hearings before the Board of County Commissioners. On December 16, 2005, the Department issued its Statement of Intent to Find Comprehensive Plan Amendment Not in Compliance, identifying three reasons for its determination: (1) inconsistency with state law regarding development in the CHHA and flood prone areas, (2) internal inconsistency with provisions of the County Plan requiring the consideration of residential density reductions in undeveloped areas within the CHHA, and (3) inconsistency with the State Comprehensive Plan regarding subsidizing development in the CHHA and regulating areas subject to seasonal or periodic flooding. On January 5, 2006, the Department filed its petition for formal hearing with DOAH. Coastal High Hazard Area The Florida Legislature recognized the particular vulnerability of coastal resources and development to natural disasters and required coastal counties to address the subject in their comprehensive plans. [I]t is the intent of the Legislature that local government comprehensive plans restrict development activities where such activities would damage or destroy coastal resources, and that such plans protect human life and limit public expenditures in areas that are subject to destruction by natural disaster. § 163.3178(1), Fla. Stat. The statute also requires evacuation planning. Until 2006, the CHHA was defined as the "category 1 evacuation zone." § 163.3178(2)(h), Fla. Stat. In 2006, the CHHA was redefined as "the area below the elevation of the category 1 storm surge line as established by the Sea, Lake, and Overland Surges from Hurricanes (SLOSH) computerized storm surge model."3 Ch. 2006-68, § 2, Laws of Fla. The County Plan defines the CHHA as "the category 1 evacuation zone as delineated by the Southwest Florida Regional Planning Council." Map 5 of the County Plan, entitled "Lee County Coastal High Hazard Area (CHHA)," shows the entire amendment site as being within the CHHA. Nothing on Map 5, however, indicates it was produced by the Regional Planning Council. Daniel Trescott, who is employed by the Southwest Florida Regional Planning Council and is responsible for, among other things, storm surge mapping, stated that the Category 1 evacuation zone is the storm surge level for the worst case scenario landfall for a Category 1 storm. He stated that the Category 1 storm surge for Lee County was determined by the SLOSH model to be 5.3 feet. Mr. Trescott stated that the 5.3 foot contour (shown on Plate 7 of the Regional Planning Council's "Hurricane Storm Tide Atlas - Lee County") more accurately delineates the CHHA than Map 5 of the County Plan. Although Mr. Trescott's testimony suggests a conflict between the County Plan's definition of the CHHA and Map 5's depiction of the CHHA, the two can be reconciled by a finding that Map 5 is a gross depiction of the CHHA for general public information purposes, but the precise location of the CHHA boundary is the one delineated by the Regional Planning Council, and the latter is controlling. Using the 5.3 contour on the amendment site, Leeward's witness, Michael Raider, estimated that there are approximately 16 acres of the amendment site within the CHHA. Applying the maximum allowable residential density under the Urban Community land use designation (with bonuses) of ten du/a means the amendment would result in a potential for 160 dwellings in the CHHA. Florida Administrative Code Rule 9J-5.012(3)(b)6. and Rule 9J-5.012(3)(c)7., respectively, require each local government’s coastal management element to contain one or more specific objectives that "[d]irect population concentrations away from known or predicted coastal high-hazard areas” and limit development in these areas. The parties' evidence and argument regarding whether the amendment was "in compliance" focused on these rules and the following goal, objective, and policy of the County Plan related to the CHHA: GOAL 105: PROTECTION OF LIFE AND PROPERTY IN COASTAL HIGH HAZARD AREAS. To protect human life and developed property from natural disasters. OBJECTIVE 105.1: DEVELOPMENT IN COASTAL HIGH HAZARD AREAS. Development seaward of the 1991 Coastal Construction Control Line will require applicable State of Florida approval; new development on barrier islands will be limited to densities that meet required evacuation standards; new development requiring seawalls for protection from coastal erosion will not be permitted; and allowable densities for undeveloped areas within coastal high hazard areas will be considered for reduction. POLICY 105.1.4: Through the Lee Plan amendment process, land use designations of undeveloped areas within coastal high hazard areas will be considered for reduced density categories (or assignment of minimum allowable densities where ranges are permitted) in order to limit the future population exposed to coastal flooding. In the opinion of Bernard Piawah, a planner employed by the Department, the amendment is inconsistent with the goal, objective and policy set forth above because these provisions only contemplate possible reductions of residential densities in the CHHA and there is no provision of the County Plan that addresses or establishes criteria for increasing residential densities in the CHHA. Population Concentrations As stated above, Florida Administrative Code Rule 9J-5.012(3)(b)6. directs local governments to include provisions in their comprehensive plans to direct population concentrations away from the CHHA. The term "population concentrations" is not defined in any statute or rule. The term apparently has no generally accepted meaning in the planning profession. The word "population" has the ordinary meaning of "all of the people inhabiting a specific area." The American Heritage Dictionary of the English Language (1981). The word "concentration" has the ordinary meaning of "the act or process of concentrating." Id. The word "concentrate" means "to direct or draw toward a common center." Id. In the context of Florida Administrative Code Rule 9J-5.012, the term "population concentrations" suggests a meaning of population densities (dwelling units per acre) of a certain level, but the level is not stated. Leeward argues that, because there is no state guidance on the meaning of the term "population concentrations," surrounding land uses should be examined to determine whether a proposed density would be "proportionate to its surroundings." According to Leeward, in order to be a population concentration, the density under review would have to be greater than the surrounding density. This comparative approach is rejected because the overarching Legislative objective is protection of life, which plainly calls for a straightforward consideration of the number of lives placed in harm's way. The Department, in its Proposed Recommended Order, states: By assigning either zero residential density to land by virtue of an Open Space land use designation, or a maximum density of one unit per acre by assigning a low density land use designation, the County Plan fulfills the mandates of State law that development be limited in and residential concentrations be directed away from the CHHA. Thus, not surprisingly, the Department does not consider one du/a to be a population concentration. A density of ten du/a is an urban density, as indicated by the fact that it is the maximum density allowed in the Urban Community land use designation and the highest density within the "standard density range" for the County's Central Urban land use designation. It is a generally known fact, of which the undersigned takes notice, that urban areas are areas where populations are concentrated. It is a another generally known fact, of which the undersigned takes notice, that ten dwelling units on one acre of land amounts to a lot of people living in a small space. Leeward, itself, described the residential density allowed under the Urban Community designation as "relatively intense." Leeward's Proposed Recommended Order, at 7. Whether measured by density alone (ten du/a) or by Leeward's estimate of 160 residences on 16 acres, the amendment places a population concentration in the CHHA. Offsets in the CHHA Leeward presented evidence that the County has been reducing residential densities, sometimes referred to as "down- planning," in other areas of the CHHA in Lee County. The reduction in dwelling units in the CHHA over the past several years may be as high as 10,000 units. The Department did not present evidence to dispute that there has been an overall reduction in dwelling units in the CHHAs of Lee County. Leeward argues that these reductions "offset" the increase in dwelling units in the CHHA that would result from the amendment and this "overall" reduction in densities in the CHHA must be considered in determining whether the amendment is "in compliance" with state law and with provisions of the County Plan related to directing population concentrations away from the CHHA. At the hearing and in its Proposed Recommended Order, the Department argued that the consideration of offsets in the CHHA was improper and unworkable, but that argument conflicts with the Department's actual practice and official position as described in the January 2006 "Department of Community Affairs Report for the Governor's Coastal High Hazard Study Committee." In that report, the Department acknowledged there is no statutory or rule guidance regarding what the maximum density should be in the CHHA. The Report notes that some local governments have established maximum densities for the CHHA (e.g., Pinellas County, 5 du/a; Franklin County 1 du/a). The Department states in the report that it reviews amendments to increase density in the CHHA on a "case by case" basis, and explains further: When a Comprehensive Plan Amendment in the CHHA proposes a density increase, DCA's review considers the amount of the density increase, the impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" (generally accomplished through public acquisition). One of the visual aides used in conjunction with the 2006 report to Governor's Coastal High Hazard Study Committee, entitled "Policy Issue #2 - Densities in High Hazard Areas," also describes the Department's practice: Without locally adopted density limits, DCA conducts a case by case review of amendments without any defined numeric limit. DCA considers amount of density increase, impact on evacuation times and shelter space, and whether there will be a corresponding offset in density through "down planning" in other areas of the CHHA. These statements use the phrase "there will be a corresponding offset," which suggests that for an offset to be considered, it would have to be proposed concurrently with an increase in residential density on other lands within the CHHA. However, according to the director of the Department's Division of Community Planning, Valerie Hubbard, offsets in the CHHA do not have to be concurrent; they can include previous reductions. Furthermore, although the Department pointed to the absence of any criteria in the County Plan to guide an offset analysis, Ms. Hubbard said it was unnecessary for a comprehensive plan to include express provisions for the use of offsets. To the extent that this evidence of the Department's interpretation of relevant law and general practice conflicts with other testimony presented by the Department in this case, the statements contained in the report to the Governor's Coastal High Hazard Study Committee and the testimony of Ms. Hubbard are more persuasive evidence of the Department's policy and practice in determining compliance with the requirement that comprehensive plans direct population densities away from the CHHA and limit development in the CHHA. As long as the Department's practice when conducting an "in compliance" review of amendments that increase residential density in the CHHA is to take into account offsets, the Department has the duty to be consistent and to take into account the County's offsets in the review of this amendment. The County planning director testified that he believed the applicable goal, objective, and policy of the County Plan are met as long as there has been a reduction in residential densities in the CHHAs of the County as a whole. The Department points out that the planning director's opinion was not included in the County planning staff's reports prepared in conjunction with the amendment. However, it necessarily follows from the Board of County Commissioners' adoption of the amendment that it does not interpret Objective 105.1 and Policy 105-1.4 as prohibiting an increase in residential density in the CHHA. Although these provisions make no mention of offsets, the Department has not required offset provisions in a comprehensive plan before the Department will consider offsets in its determination whether a plan amendment that increases density in the CHHA is in compliance. The wording used in Objective 105.1 and Policy 105-1.4 requiring "consideration" of density reductions in the CHHA can be harmonized with the County planning director's testimony and with the County's adoption of the amendment by construing these plan provisions consistently with the Department's own practice of allowing increases in the CHHA when the increases are offset by overall reductions in dwelling units in the CHHA. Seeking to harmonize the amendment with the provisions of the County Plan is the proper approach because, as discussed later in the Conclusions of Law, whether an amendment is consistent with other provisions of the plan is subject to the "fairly debatable" standard which is a highly deferential standard that looks for "any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction." Martin County v. Yusem, 690 So. 2d 1288, 1295 (Fla. 1997). Shelter Space and Clearance Time Prior to the hearing in this case, Leeward moved to strike certain statute and rule citations in the Department's petition related to shelter space and clearance time4 because they were not included in the Department's ORC Report. The motion was denied because, although Section 163.3184(8)(b), Florida Statutes, limits the Department's petition to issues raised in the "written comments" in the ORC Report, the statute does not indicate that the Department is barred from citing in its petition, for the first time, a rule or statute that is directly related to the written comments. The CHHA is defined in the County Plan as the category one "evacuation zone." It is the area most in need of evacuation in the event of a severe coastal storm. Shelter space and clearance time are integral to evacuation planning and directly related to the Department's comment in the ORC Report that the amendment would, "expose a substantial population to the dangers of a hurricane." Therefore, the Department was not barred from presenting evidence on shelter space and clearance time in support of this comment. The Department's practice when reviewing an amendment that increases residential density in the CHHA, described in its 2006 report to the Governor's Coastal High Hazard Area Study Committee, is to consider not only dwelling unit offsets in the CHHA, but also the effect on shelter space and clearance time. That report did not elaborate on how shelter space and clearance time are considered by the Department, but evidence that a comprehensive plan amendment would have a significant adverse effect on shelter space or clearance time could presumably negate what would otherwise appear to the Department to be an acceptable offset of residential density in the CHHA. On this record, however, the Department did not show that a significant adverse impact on shelter space or clearance time would be caused by this particular amendment.5 Special Planning Areas Leeward argues that, even if the amendment were determined to be inconsistent with Objective 105.1 and Policy 105-1.4, that inconsistency should be balanced against other provisions in the County Plan that are furthered by the amendment, principally the provisions related to the Caloosahatchee Shores Community Planning Area and the Water- Dependent Use Overlay Zone. There is no authority for such a balancing approach that can overcome an inconsistency with an objective or policy of the comprehensive plan. Therefore, whether the amendment furthers the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area, Water-Dependent Use Overlay Zone, or other subjects is irrelevant to whether the amendment is consistent with Objective 105.1 and Policy 105-1.4. On the other hand, the Department's contention that the amendment is inconsistent with the provisions of the County Plan related to the Caloosahatchee Shores Community Planning Area is contrary to the more credible evidence. 100-Year Floodplain The amendment site is entirely within the 100-year floodplain. In its Statement of Intent, the Department determined that the amendment was not in compliance, in part, because the amendment site's location in the 100-year floodplain made it unsuitable for residential development. In addition, the Department determined that the amendment caused an internal inconsistency with the following policies of the County Plan related to development in the floodplain: POLICY 61.3.2: Floodplains must be managed to minimize the potential loss of life and damage to property by flooding. POLICY 61.3.6: Developments must have and maintain an adequate surface water management system, provision for acceptable programs for operation and maintenance, and post-development runoff conditions which reflect the natural surface water flow in terms of rate, direction, quality, hydroperiod, and drainage basin. Detailed regulations will continue to be integrated with other county development regulations. According to Mike McDaniel, a growth management administrator with the Department, "we try to discourage increasing densities in floodplains and encourage that it be located in more suitable areas." The policies set forth above are intended to aid in the achievement of Goal 61 of the Community Facilities and Service Element "to protect water resources through the application of innovative and sound methods of surface water management and by ensuring that the public and private construction, operation, and maintenance of surface water management systems are consistent with the need to protect receiving waters.” Plainly, Goal 61 is directed to regulating construction and surface water management systems. There is no mention in this goal or in the policies that implement the goal of prohibiting all development or certain kinds of development in the 100-year floodplain. The Department's argument in this case regarding development in the 100-year floodplain is rejected because it ignores relevant facts and law. First, substantial portions of Lee County and the State are within the 100-year floodplain. Second, there is no state statute or rule that prohibits development in the 100-year floodplain. Third, the Department of Environmental Protection, water management districts, and local governments regulate development in the floodplain by application of construction standards, water management criteria, and similar regulatory controls to protect floodplain functions as well as human life and property. Fourth, there has been and continues to be development in the 100-year floodplain in Lee County and throughout the State, clearly indicating that such development is able to comply with all federal, state, and local requirements imposed by the permitting agencies for the specific purpose of protecting the floodplain and the public. Fifth, the Department "discourages" development in the floodplain but has not established by rule a standard, based on density or other measure, which reasonably identifies for local governments or the general public what development in the floodplain is acceptable to the Department and what development is unacceptable. Finally, the Department's practice in allowing offsets in the CHHA, as discussed previously, necessarily allows for development in the 100-year floodplain in that particular context.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Land and Water Adjudicatory Commission determining that the amendment adopted by Lee County in Ordinance No. 05-10 is "in compliance" as defined in Chapter 163, Part II, Florida Statutes. DONE AND ENTERED this 25th day of August, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2006.
